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SUMMARY OF FACTS
1. On 8 February 2002, the Secretariat of the African Commission on Human
and People's Rights (the African Commission) received from Mr. Ibrahima
Doumbia, First Vice-President of the Mouvement Ivoirien des Droits Humains (MIDH)
[FN2] a Communication submitted pursuant to Article 55 of the African
Charter on Human and Peoples' Rights (the African Charter).
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[FN2] The MIDH is an NGO based in Côte d'Ivoire and which enjoys Observer
Status with the African Commission on Human and Peoples' Rights since
October 2001 (30th Ordinary Session).
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2. The Communication was filed against the Republic of Côte d'Ivoire (State
Party [FN3] to the African Charter, hereunder referred to as Côte d'Ivoire)
in which MIDH alleges that the Constitution of Côte d'Ivoire, adopted by a
minority of citizens during the Constitutional Referendum of 23rd July 2000,
contained provisions which are discriminatory to some citizens of Côte
d'Ivoire, prohibiting them from performing political functions.
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[FN3] Cote d'lvoire ratfied the African Charter on 6th January 1992.
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3. The Communication alleges furthermore that the provisions granting
immunities to some persons, particularly the members of the National
Committee for Public Security (CNSP), the military executive organ which
ruled the country during the military transition period (from 24 December
1999 to 24 October 2000), as well as the authors of the coup d'état of 24
December 1999, were discriminatory.
COMPLAINT
4. The Complainant alleges that the events cited above constitute a
violation of Articles 2, 3 and 13 of the African Charter and requests the
African Commission to recommend to Côte d'Ivoire to review Articles 35, 65
and 132 of the Constitution adopted on 23rd July 2000.
PROCEDURE
5. During the 31st Ordinary Session held in Pretoria, South Africa, from 2nd
to 16th May 2002, the African Commission considered this Communication and
decided to be seized of the said Communication.
6. Through Note Verbale ACHPR/COMM 246/2002 dated 11th June 2002, the
Secretariat of the Commission informed the Respondent State (Côte d'Ivoire)
of this decision and requested it to provide within two months its arguments
on the admissibility of the Communication.
7. Through its letter ACHPR/OBS/266 of the 11th June 2002, the Secretariat
of the African Commission informed the Complainant (MIDH) of this decision
and requested it to provide within two months its arguments on the
admissibility of the case.
8. Through Note Verbale No. 563/MEMREIE/AF/AJC/BAB/VG of 16th October 2002,
the Minister of State, Ministry of Foreign Relations and Ivorians living
abroad requested the African Commission for extra time to present its
arguments and observations on the Communication.
9. This request from the Respondent State which the African Commission
received during the 32nd Ordinary Session held from 17 to 23 October in
Banjul, The Gambia, prompted the Commission to defer its decision on the
admissibility of the Communication to the 33rd Ordinary Session.
10. In Note Verbale ACHPR/COMM 246/2002 of 28th October 2002, the
Secretariat of the Commission informed the Respondent State that an extra
period of three (3) months was granted and that its arguments and
observations on the Communication were expected by end January 2003.
11. The same information was communicated to the Complainant by letter ACHPR/COMM
246/02 of 28th October 2002.
12. Having received no reply from the Respondent State by end January 2003,
the Secretariat of the Commission sent a reminder by Note Verbale ACHPR/246/02
of 10th February 2003, drawing the attention of Côte d'Ivoire to the fact
that its arguments and observations on the Communication were necessary for
the Commission to take a well informed decision on the admissibility of the
case during its 33rd Session scheduled for May 2003.
13. During its 33rd Ordinary Session held from 15th to 29th May 2003 in
Niamey, Niger, the Commission decided to defer its decision on the
admissibility of this Communication to its 34th Session, thus granting the
verbal request of the delegate of the Respondent State attending the Session
for extra time to present its arguments, particularly on the admissibility
of the case.
14. The Secretariat of the Commission also gave a copy of the complaint to
the delegate of Côte d'Ivoire attending the Session.
15. On 11th June 2003, through its Note Verbale ACPHR/246/2002, the
Secretariat sent a copy of the complaint to the Respondent State by DHL,
requesting a rapid response, in any case before the end of August 2003, to
enable the Commission make a ruling on the admissibility of the case.
16. The Secretariat also wrote to the Complainant on 11th June 2003
explaining to him the reasons of the postponement of the decision of the
Commission on the admissibility of the Communication.
17. During its 34th Ordinary Session which was held from the 6th to 19th
November 2003 in Banjul, The Gambia, the representatives of the Respondent
State made an oral presentation before the Commission and conveyed the
substance of their observations on the issue in a written memo to the
Secretariat.
18. During the 35th Ordinary Session which was held from the 21st May to 4th
June 2004 in Banjul, The Gambia, the African Commission considered the
Communication and decided to declare it admissible.
19. On 21st June 2004, the Secretariat notified the decision of the African
Commission to the parties and requested them to submit their submission on
merits within 3 months.
20. At its 36th Ordinary Session, which was held from 23rd November to 7th
December 2004, in Dakar Senegal, the African Commission considered the
Communication and deferred it to the 37th Ordinary Session pending receipt
of the arguments of the Respondent State on the merits of the case.
21. On 20th December 2004, the Secretariat of the African Commission
notified this decision to the Respondent State and requested its submission
on the merits as early as possible.
22. On the same date, a similar letter was sent to the Complainant
requesting him to submit, at the earliest, his arguments on the merits of
the case.
23. At its 37th Session, the African Commission, acceding to the request of
the respondent Party, deferred its decision on the merits of the Complaint
pending receipt of its arguments. This decision was conveyed to both Parties
on the 3rd June 2005.
24. On 12 September 2005 a reminder was sent to the Respondent State.
25. On 8th November 2005, the Respondent State forwarded its supplementary
submissions on the merits of the Complaint.
26. The Secretariat acknowledged receipt of these submissions and conveyed
them to the Complainant on the 10th November 2005.
27. At its 38th Ordinary Session which took place from the 21st November to
5th December 2005 in Banjul, the Gambia, the African Commission considered
the Complaint and deferred its decision to the 39th Session.
28. On the 7th December 2005, the Parties were informed of this decision.
29. At its 41st ordinary session held in Ghana in May 2007, the Commission
considered the above communication and decided to defer it to its 42nd
session on the request of the Respondent State who informed the Commission
that it had intiated amicable settlement of the matter with the complainant.
30. By note verbale of 7 July 2007 and by letter of the same date, both
parties were notified of the Commission's decision.
31. At its 42nd Ordinary Session, held in Brazzaville, Republic of Congo,
the African Commission considered the Communication and deferred its
decision to the 43rd Ordinary Session due to confirm from the complainant
whether they were engaged in amicable settlement as suggested by the State.
32. By note verbale of 19 December 2007 and by letter of the same date, both
parties to the Communication were notified of the Commission's decision.
LAW ADMISSIBILITY
COMPLAINANT'S SUBMISSIONS ON ADMISSIBILITY
33. The Complainant submits that the only possible remedy against the
Ivorian Constitution is to request its revision, which, though provided for
in the said Constitution, "is impossible in the present state of affairs". He added that, under Article 124 of the Ivorian Constitution,
"the initiative for the review of the Constitution is a joint undertaking by the
President of the Republic and the members of the National Assembly".
34. He argues further that the President of the Republic has on several
occasions clearly expressed his opposition to any review of the Constitution.
The Complainant also alleges that the President of the Republic has
peremptorily asserted that he will never submit the Constitution to a review,
which clearly expresses his intention of not applying this mechanism which
only he and the Speaker of the National Assembly have the prerogative to
initiate.
35. The Complainant alleges further that, the Speaker of the National
Assembly, speaking on behalf of all the Deputies of the Forum for National
Reconciliation, rejected the possibility of a Constitutional review by
asserting that "the people of Côte d'Ivoire do not want a constitutional
review".
36. The Complainant further argues that the final hope to have the
Authorities (the President of the Republic and the Speaker of the National
Assembly) reconsider their position remained with the "National Forum for
National Reconciliation held from 9th October 2001 to 18th December 2001 in
Abidjan". And yet, the Forum, in its final resolutions, did not rule on a
review of the Constitution.
37. The Complainant contends therefore that there is no possible domestic
remedy in this particular case and asks the African Commission to draw the
appropriate conclusions by declaring the Communication admissible.
RESPONDENT STATE'S SUBMISSIONS ON ADMISSIBILITY
38. The Respondent State, in a memorandum conveyed to the African Commission
on 10 November 2003 claims that as far as it is concerned, the Communication
is "inadmissible and baseless". The Respondent State maintains that there is
indeed a local remedy "constituted by the imminent revision of Articles 124
and others of the Constitution".
39. The Respondent State further notes that the Complainant has not
submitted any evidence on the use and exhaustion of existing local remedies.
The Respondent State which considers "local remedies" as any legal and
lawful action undertaken to "ensure the cessation of the alleged violations" claims that the Complainant did not attempt anything of the sort.
40. Concerning the request of the Complainant relative to the revision of
certain Articles of the Ivorian Constitution, the Respondent State intimates
that the Ivorian people freely espoused this Constitution which in no way "either grossly or manifestly negates human dignity". It concludes therefore
that the request for revision of this Constitution by the Complainant is not
"compatible with the provisions of the OAU Charter and the African Charter
on Human and Peoples' Rights" and that the Communication should therefore be
declared inadmissible by the African Commission, because it is not in
conformity with Article 56 (2) of the African Charter.
DECISION OF THE COMMISSION ON ADMISSIBILITY
41. The admissibility of communications submitted to the African Commission
pursuant to Article 55 is determined by seven requirements provided for
under Article 56 of the African Charter. In communications 147/95 and 149/96
� Sir Dawda K Jawara v The Gambia, the Commission held that these
requirements must all be satisfied for a communication to be declared
admissible.
42. In the present communication, without making references to the other
requirements, the complainant submits that local remedies are not available
in his circumstance, as the remedy available could only be used by the
President and the members of the National Assembly. He then concluded that
for this reason, there are no remedies and the communication should be
declared admissible. The state on the other hand avers that the
communication is incompatible with the OAU Charter and the African Charter,
and without specifying, also notes that the complainant has not attempted
the remedies available to him. The state concludes that for the above
reasons, the communication should be declared inadmissible.
43. In view of the foregoing, the African Commission notes that since the
state did not raise objections on the other requirements under Article 56,
it is presumed that they have been complied with by the complainant. The
Commission will therefore pronounce on the two requirements in dispute, that
is Article 56(2) incompatibility with the Charter, and Article 56 (5)
exhaustion of local remedies.
44. Compatibility, according to the Black's Law Dictionary means �in
compliance' or �in conformity with' or �not contrary to' or �against'. The
African Commission has interpreted compatibility under Article 56 (2) of the
Charter to mean the communication must reveal a prima facie violation of the
Charter. In the present communication, the complainant alleges that the Cote
d' Ivoire constitution of 2000 includes provisions which are discriminatory
and do not provide citizens of the country equal opportunity to fully
participate in the governance of their country. The complainant claims that
in terms of Article 35 of the constitution "The President of the Republic
...........should be of Ivorian origin, born of a Father and Mother of Ivorian
origin..........", Article 65 of the constitution stipulates that a Candidate to
the Presidential elections or to the functions of Speaker or Deputy Speaker
of the National Assembly "should be or Ivorian origin, with both parents
being of Ivorian origin, should never have renounced Ivorian nationality,
and should never have acquired another nationality" and Article 132
according to the complainant accorded civil and criminal immunity to the
members of the former National Committee for Public Security (CNSP), an
executive military body which had directed the transition, and to the
perpetrators of the events which brought about the change of Government
following the Coup d'Etat of 24 December 1999.
These allegations in the opinion of the Commission do raise a prima facie
violation of human rights. Based on this, the African Commission holds that
the requirement of Article 56(2) of the African Charter has been
sufficiently complied with.
45. Secondly, the respondent State contends that the complainant has not
attempted any domestic remedies. The complainant has stated clearly that the
remedy available to secure a revision of the Constitution can be used only
by the President and the members of parliament. It is not available to any
other individual or citizen. The respondent state did not dispute this fact
but instead indicated, without elaborating, that the complainant has not
submitted any evidence on the use and exhaustion of existing local remedies,
adding that "local remedies" include any legal and lawful action undertaken
to "ensure the cessation of the alleged violations".
46. In Sir Dawda K. Jawara/The Gambia, the African Commission made it clear
that a local remedy is available if the Complainant is able to pursue it
without any hindrance; the remedy is effective if it offers the Complainant
the possibility of success and if this remedy is adequate and capable of
providing reparation for the alleged violation[FN4].
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[FN4] Communication 147/95 and 149/96 - Sir Dawda K. Jawara/The Gambia.
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47. Where the complainant demonstrates to have exhausted all remedies, the
burden shifts to the respondent state which has to show the remedies
available and the extent to which the complainant could use them to remedy
his/her claim. Making a general statement on the availability of local
remedies without substantiating is not sufficient. This view is supported by
the Human Rights Committee on Albert Mukong v Republic of Cameroon, [FN5]
where the Committee stated that the State party had merely listed in
abstracto the existence of several remedies without relating them to the
circumstances of the case, and without showing how they might provide
effective redress in the circumstances of the complainant's case.
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[FN5] Communication No. 458/1991.
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48. In the Velasquez Case [FN6] the Inter-American Court on Human Rights, in
interpreting Article 46 of the Inter-American Human Rights Convention (Article
similar to Article 56 of the African Charter) on the matter of exhaustion of
local remedies, declared that, for the necessary condition of the exhaustion
of local remedies to apply, the local remedies of the State concerned should
be available, adequate and effective so that they can be used and exhausted.
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[FN6] Velasquez Rodriguez Case, Judgment of the 29th July 1988,
Inter-Am.Ct.H.R (Ser.C) No.4 (1988).
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49. In the present case, the Complainant does not have the possibility of
resorting to any judicial means to remedy the alleged violation as the
mechanism provided for by Article 124 of the Constitution is not available
to him. In effect, the Complainant does not have the necessary capacity to
initiate the local remedy because this is reserved exclusively for the
President of the Republic and for the members of the National Assembly. It
can therefore be concluded that the remedy offered by Article 124 of the
Constitution is neither adequate nor available to the Complainant.
50. The Respondent State is under obligation to provide all possible,
effective and accessible remedies for its citizens by which means the latter
can seek, at the national level, recognition and remedying of the alleged
violations of their rights, even if it means resorting, should the need
arise, to the international systems of protection of human rights like the
African Commission for Human and Peoples' Rights.
51. In view of the foregoing, the African Commission considers that in the
context of the present Communication, the domestic remedies are not
available and as such the condition for exhausting them as envisaged by
Article 56 of the African Charter cannot be invoked. The African Commission
therefore concludes that the objections raised by the Respondent State in
terms of Article 56 (2) and (5) are not substantiated, and thus holds that
the present communication is admissible.
DECISION ON THE MERITS
COMPLAINANT'S SUBMISSIONS ON THE MERITS
52. The Complainant claims that the provisions of Articles 35 and 65 of the
2000 Constitution of the Republic of Cote d'Ivoire contravenes both articles
2 and 13 of the African Charter. Article 35 of the said Constitution
stipulates that:
"The President of the Republic ...should be of Ivorian origin, born of a
Father and Mother who themselves must be Ivorian by birth..."
53. Article 65 of the Constitution stipulates that the candidate to the
Presidential elections or to the posts of Speaker or Deputy Speaker of the
National Assembly "should be of Ivorian by birth, with both parents being of
Ivorian origin, should never have renounced Ivorian nationality, and should
never have acquired another nationality".
54. The Complainant contends that in establishing the rules and conditions
of access to the above-mentioned public offices, the Constitution makes a
distinction between Ivorians on the basis of their places of origin and
their birth, and divides Ivorians into categories, applying different
standards to different categories, something the complainant finds
discriminatory and contrary to Article 2 of the African Charter.
55. In terms of Article 35 of the Constitution the following categories of
citizens cannot be eligible to run for the office of President of the
Republic, or to be elected as Speaker of the National Assembly or Deputy
Speaker of the National Assembly:
a) Ivorians who acquired Ivorian nationality other than by birth, that is,
either through, marriage or naturalisation;
b) Ivorians who although Ivorians by birth, were born of Ivorian parents, do,
at some stage in their lives, hold another nationality; and
c) Ivorians who had once renounced Ivorian nationality.
56. Such a distinction, according to the Complainant, would result in the
exclusion of more than "40% of the Ivorian population...from submitting
candidature to the above-mentioned public offices...", and this would reduce
the choice left to citizens to freely choose their fellow citizens to direct
the affairs of their nation, contrary to Articles 13 (1) of the African
Charter.
57. On the allegation that the Constitution violates Article 3 of the
African Charter, the Complainant points out that the Constitution, in its
Article 132, accords civil and criminal immunity to the members of the
former National Committee for Public Security (CNSP), an executive military
body which had directed the transition, and to the perpetrators of the
events which brought about the change of Government following the Coup
d'Etat of 24 December 1999.
58. According to the complainant, this immunity is "total and unlimited" in
time and would prevent certain persons, victims of the acts perpetrated by
those granted amnesty to bring their cases to court in order to obtain
compensation for the wrongs done to them. According to the complainant, this
constitutes unequal protection of the law contrary to Article 3 (2) of the
Charter.
RESPONDENT STATE'S SUBMISSIONS ON THE MERITS
59. The Respondent State, for its part, while disputing the assertion that
the Constitutional provisions in question have excluded "more than 40% of
the population" of Côte d'Ivoire from access to the said offices as argued
by the Complainant, justifies instead the need of the said provisions by the
1. fact that the State has the right to legally determine the category of
citizens to whom "the accomplishment of a specific act or the access to a
specific situation" should be entrusted.
60. The Respondent State considers it legitimate to require "a certain level
of loyalty from whoever aspires to preside over its highest offices in the
land", which is the case for the office of President of the Republic or that
of Speaker of the National Assembly or that of Deputy Speaker of the
National Assembly.
61. Moreover, the Respondent State refutes the notion of discrimination
advanced by the Complainant in this case, and contends that the Ivorian
Constitution rather makes a "distinction" between the different citizens of
the same country. Whereas, argues the Respondent State, it is not
discrimination "when the distinction between individuals placed under
similar conditions is made on a "reasonable and objective" basis.
62. The Respondent State quotes the American, Algerian, Beninoise, Burkinabé
and Gabonese examples where access to the office of President of the
Republic is restricted by various criteria including, for instance, that of
nationality.
63. The Respondent State further argues that the discrimination and
exclusion denounced by the Complainant can no longer be put forward before
the African Commission considering that within the context of the Pretoria
Accord [FN7], which the Parties had concluded under the aegis of the African
Union, the President of the Republic of Côte d'Ivoire, making use of the
exceptional powers vested in him by the Constitution (Article 48), had
declared eligible all the candidates designated by the Parties in the
Marcoussis Accord [FN8].
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[FN7] The Accord was concluded in April 2005 in Pretoria, South Africa.
[FN8] This Accord was concluded at Marcoussis, France, in January 2003.
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64. For the Respondent State, "it appears from the terms of the
Communication (currently under consideration) that its main objective is the
candidature of all those who want it, notably that of Mr. Alassane Dramane
Ouattara. Since this requirement has been satisfied in accordance with the
principles of the African Union, article 56 (7) of the Charter can be
applied.
65. On the allegation of unequal protection of the law, the Respondent State
argues that the immunity granted to the perpetrators of the events which
brought about the change of Government on 24 December 1999 is neither total
nor limitless in time, and that it only covers "the Members of the National
Committee for Public Security (CNSP) and all the perpetrators of the events". Therefore, the other perpetrators of the looting, whether civilians or
military, committed during the military transition period, are not covered
by this immunity.
66. With regard to the possibility of the victims instituting legal
proceedings in order to obtain compensation for the wrongs they have
suffered, the Respondent State contends that there is no inequality as no
victim can be allowed to institute proceedings against the people benefiting
from the amnesty.
AFRICAN COMMISSION'S DECISION ON THE MERITS
67. At its 41st Ordinary session held in Accra, Ghana in May 2007, the state
informed the Commission that it was in the process of dealing with the civil
crisis in the country, and the issues raised in the present communication
would be dealt with. The Commission regrets the State Party's failure to
provide any further information with regard to developments on the substance
of the author's claims since then.
68. Having received submissions on the merits from both parties, and in the
absence of any indication that this matter has been or is being resolved by
the parties amicably, the Commission will proceed to consider this
communication on the merits.
69. In the case under consideration, the Complainant alleges violation by
the respondent state of Articles 2, 3 and 13 of the African Charter. The
African Commission has analysed these allegations in the light of the
information at its disposal.
70. The Commission will deal with allegations regarding violation of
Articles 2 and 13 together, and allegations regarding the violation of
Article 3 separately.
ALLEGATIONS ON THE VIOLATION OF ARTICLES 2 AND 13 OF THE AFRICAN CHARTER.
71. Articles 2 of the African Charter stipulates that:
"Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin,
fortune, birth or any other status".
And Article 13 (1) of the Charter provides that:
"Every citizen shall have the right to participate freely in the Government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law.
72. The African Commission considers that the restrictions which can be
imposed on the enjoyment of the rights prescribed by the African Charter
should only be applied, where the need arises, in the spirit of the
conditions provided for by the Charter.
73. In Civil Liberties Organisation (on behalf of the Nigerian Bar
Association)/Nigeria [FN9] the Commission stated that "in regulating the
exercise of this right [referring to the right to association] the competent
authorities should not enact [legislation which would limit the right...". In
Constitutional Rights Project and Civil Liberties Organisation/Nigeria
[FN10], The Commission while restating the above statement added that �with
these words, the Commission states a general principle that applies to all
rights, not only freedom of association". The Commission went further to
state that "Governments should avoid restricting rights, and take special
care with regard to those rights protected by constitutional or
international human rights law...".
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[FN9] Communication 101/93.
[FN10] Communication 102/93.
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74. The Ivorian Constitution of 2000, in its Articles 35 and 65, as
conditions of eligibility to certain high offices of State, imposed
limitations which effectively disqualified a certain percentage of the
Ivorian population from aspiring to these positions. The complainant puts
the figure at 40%, and although the respondent state disputes this figure,
it does not dispute the existence of the situation itself. According to the
state, the disqualification clause is justified on the basis of exigencies
of "the level of loyalty". It added that the practice is also current in
other countries.
75. Article 2 of the African Charter provides that every individual shall be
entitled to the enjoyment of the rights and freedoms recognised and
guaranteed in the present Charter without distinction on any kind such as
"...national
or social origin, fortune, birth or other status". Article 13 provides that
"every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law".
76. Unlike Article 2 which talks of �every individual', Article 13 is even
clearer as it talks of �every citizen'. Under this Article therefore, every
citizen shall have the right and the opportunity, without any of the
distinctions mentioned in Article 2, and without unreasonable restrictions,
to take part in the conduct of government of his country, directly or
through freely chosen representatives, which includes to vote and to be
elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot.
77. The right to participate in government or in the political process of
ones country, including the right to vote and to stand for election, is a
fundamental civil liberty and human right, and should be enjoyed by citizens
without discrimination. The reason for this lies in the fact that, as
historical experience has shown, governments derived from the will of the
people, expressed in free elections, are those that provide the soundest
guarantee that the basic human rights will be observed and protected.
78. Several other international instruments guarantee the rights under
Articles 2 and 13 of the African Charter, that is, non-discrimination and to
participate in government. Article 5(c) of International Convention on the
Elimination of Racial Discrimination (ICERD) states inter alia that: in
compliance with the fundamental obligations laid down in Article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to
equality before the law, notably in the enjoyment of the following rights:
"...(c) Political rights, in particular the right to participate in elections,
to vote and to stand for election on the basis of universal and equal
suffrage, to take part in the Government as well as in the conduct of public
affairs at any level and to have equal access to public service". Article 2
in the ICERD refers to the obligation to eliminate racial discrimination and
�to amend, rescind or nullify any laws and regulations which have the effect
of creating or perpetuating racial discrimination wherever it exists.'
Article 21 of the Universal Declaration on Human Rights on its part,
provides that: "everyone has the right to take part in the government of his
country, directly or through freely chosen representatives," and "has the
right to equal access to public service." Article 25 of the International
Covenant on Civil and Political Rights (ICCPR) recognizes and protects the
right of every citizen to take part in the conduct of public affairs, the
right to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force, the
Covenant requires States to adopt such legislative and other measures as may
be necessary to ensure that citizens have an effective opportunity to enjoy
the rights it protects.
79. The most elaborate interpretation of the right to participate in
government has been provided by the Human Rights Committee of the United
Nations. In its General Comment No. 25 on participation in public affairs
and the right to vote [FN11], the Committee stated inter alia, that: "the
effective its implementation of the right and the opportunity to stand for
elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria.
Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person
should suffer discrimination or disadvantage of any kind because of that
person's candidacy.[FN12]
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[FN11] CCPR/C/21/Rev.1/Add.7, General Comment No. 25. Adopted by the
Committee at its 1510th meeting (fifty-seventh session) on 12 July 1996.
[FN12] See the African Commission's Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa, para C(d).
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80. In the present communication, could it be said that the conditions set
out in Articles 35 and 65 of the Ivorian Constitution of 2000 are
justifiable on objective and reasonable criteria and reasonable and
non-discriminatory?
81. Article 35 of the said Constitution stipulates that the President of the
Republic ...should be of Ivorian origin, born of a Father and Mother who
themselves must be Ivorian by birth...".Article 65 stipulates that the
Candidate to the Presidential elections or to the posts of Speaker or Deputy
Speaker of the National Assembly "should be Ivorian by birth, with both
parents being of Ivorian origin, should never have renounced Ivorian
nationality, and should never have acquired another nationality".
82. Admittedly, the constitution places these restrictions only on the
highest positions in the land. Many other countries, including European,
American and African countries have similar provisions to determine those
eligible to ascend to the highest offices. Most of these countries have the
same justification given by the Ivorian government, that is, persons having
these positions must have undoubted loyalty to the nation. It is doubtful
though whether this is the only way to test loyalty or whether this is even
the best way to test loyalty.
83. The Commission recognises the right of each State Party to the Charter
to adopt appropriate legislation that would regulate the conduct of
elections. It is also for the states to determine criteria for eligibility
for those who can vote and those who can stand for elections to whatever
positions. The exercise of adopting criteria to regulate those who can vote
and those who can stand for elections is in itself not a violation of human
rights norms. In every society, some positive measure/actions need to be
taken to regulate human behaviour in certain areas. However, these criteria
must be reasonable, objective and justifiable. They must not seek to take
away the already accrued rights of the individual.
84. The African Commission is of the view that the right to vote as well as
the right to stand for election are rights attributable and exercised by the
individual. This is why voting, in democratic societies, is by secret ballot,
to the extent that even the individual's father or mother may not know who
the individual has voted for. By the same token, the exercise of the right
to stand for elections is a personal and individual right which must not be
tied to the status of some other individual or group of individuals. The
right must be exercised by the individual simply because he/she is an
individual, and not tied to the status of another individual. Distinctions
must thus be made between the rights an individual can exercise on his own
and the rights he/she can exercise as a member of a group or community.
85. Thus, to state that a citizen born in a country cannot stand for
elections because his/her parents were not born in that country would be
stretching the limit of objectivity and reasonableness too far. The
Commission recognises the fact that the position of President, Speaker and
Deputy Speaker, and indeed other similar positions are very crucial to the
security of a country, and it would be unwise to put a blank cheque
vis-à-vis accessibility to these positions. Placing restrictions on
eligibility for these posts is in itself not a violation of human rights.
However, where these restrictions are discriminatory, unreasonable and
unjustifiable, the purpose they intended to serve will be overshadowed by
their unreasonableness.
86. In the present instance, the rights to vote and to stand for elections
is an individual right and conditions must be made to ensure that the
individual exercises these rights without reference to his/her attachment to
other individuals. The Commission thus finds the requirement that an
individual can only exercise the right to stand for the post of a President
not only if he/she is born in Cote d'Ivoire, but also that his parents must
be born in Cote d'Ivoire unreasonable and unjustifiable, and find this an
unnecessary restriction on the right to participate in government guaranteed
under Article 13 of the African Charter. Article 35 is also discriminatory
because it applies different standards to the same categories of persons,
that is persons born in Cote' d'Ivoire are now treated based on the places
of origin of their parents, a phenomenon which is contrary to the spirit of
Article 2 of the African Charter.
87. This was also the Commission's position in Legal Resources Foundation v/
Zambia [FN13], where the African Commission held that the right to equality
is very important. It means that citizens should expect to be treated fairly
and justly within the legal system and be assured of equal treatment before
the law and equal enjoyment of the rights available to all other citizens.
The right to equality is important for a second reason. Equality or lack of
it affects the capacity of one to enjoy many other rights. For example, one
who bears the burden of disadvantage because of one's place of birth or
social origin suffers indignity as a human being and equal and proud citizen.
He may vote for others but has limitations when it comes to standing for
office. In other words, the country may be deprived of the leadership and
resourcefulness such a person may bring to national life".
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[FN13] Communication 211/98.
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88. The Complainant also alleges the violation by the Respondent State of
Article 3 of the African Charter which stipulates:
"1 Every individual shall be equal before the law
2 Every individual shall be entitled to equal protection of the law".
89. The Respondent State argues that the immunity granted to the
perpetrators of the events which brought about the change of Government on
24 December 1999 is neither total nor limitless in time, and that it only
covers "the Members of the National Committee for Public Security (CNSP) and
all the perpetrators of the events". Therefore, the other perpetrators of
the looting, whether civilians or military, committed during the military
transition period, are not covered by this immunity. With regard to the
possibility of the victims instituting legal proceedings in order to obtain
compensation for the wrongs they have suffered, the Respondent State
contends that there is no inequality as no victim can be allowed to
institute proceedings against the people benefiting from the amnesty.
90. It appears therefore that "the Members of the National Committee for
Public Security (CNSP)" had total and complete immunity, and no action could
be brought against them by any body for whatever reason.
91. Over the years, the strict interpretation of Clemency powers or pardons
have been the subject of considerable scrutiny by international human rights
bodies and legal scholars. There has been consistent international
jurisprudence suggesting that the adoption of amnesties leading to impunity
for serious human rights has become a rule of customary international law.
In a report entitled "Question of the impunity of perpetrators of human
rights violations (civil and political)", prepared by Mr. Louis Joinet for
the Sub-commission on Prevention of Discrimination and Protection of
Minorities, pursuant to Sub-commission decision 1996/119, it was noted that
"amnesty cannot be accorded to perpetrators of violations before the victims
have obtained justice by means of an effective remedy" and that "the right
to justice entails obligations for the State: to investigate violations, to
prosecute the perpetrators and, if their guilt is established, to punish
them".[FN14]
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[FN14] See E/CN.4/Sub.2/1997/20/Rev.1, paras. 32 and 27.
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92. The Report went on to state that "even when intended to establish
conditions conducive to a peace agreement or to foster national
reconciliation, amnesty and other measures of clemency shall be kept within
certain bounds, namely: (a) the perpetrators of serious crimes under
international law may not benefit from such measures until such time as the
State has met their obligations to investigate violations, to take
appropriate measures in respect of the perpetrators, particularly in the
area of justice, by ensuring that they are prosecuted, tried and duly
punished, to provide victims with effective remedies and reparation for the
injuries suffered, and to take acts to prevent the recurrence of such
atrocities.[FN15]
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[FN15] Ibid. Principles 18 and 25.
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93. In its General Comment No. 20 on Article 7 of the ICCPR, the UN Human
Rights Committee noted that "amnesties are generally incompatible with the
duty of States to investigate such acts; to guarantee freedom from such acts
within their jurisdiction; and to ensure that they do not occur in the
future. States may not deprive individuals of the right to an effective
remedy, including compensation and such full rehabilitation as may be
possible".[FN16] In the case of Hugo Rodríguez v. Uruguay,[FN17] the
Committee reaffirmed its position that amnesties for gross violations of
human rights are incompatible with the obligations of the State party under
the Covenant and expressed concern that in adopting the amnesty law in
question, the State party contributed to an atmosphere of impunity which may
undermine the democratic order and give rise to further human rights
violations.
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[FN16] See Human Rights Committee General Comment No. 20 (44) on Article 7,
para. 15 at www.unhchr.ch/tbs/doc.nsf/view40?SearchView.
[FN17] Rodríguez v. Uruguay, Communication No. 322/1988, U.N. Doc. CCPR/C/51/D/322/1988
(1994).
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94. The African Commission has also held amnesty laws to be incompatible
with a State's human rights obligations.[FN18] Guideline No. 16 of the
Robben Island Guidelines adopted by the African Commission during its 32nd
session in October 2002 further states that �in order to combat impunity
States should: a) ensure that those responsible for acts of torture or ill
treatment are subject to legal process; and b) ensure that there is no
immunity from prosecution for nationals suspected of torture, and that the
scope of immunities for foreign nationals who are entitled to such
immunities be as restrictive as is possible under international law'.[FN19]
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[FN18] See also: Various communications v. Mauritania Communications 54/91,
61/91, 96/93, 98/93, 164/97-196/97, 210/98 and Jean Yokovi Degli on behalf
of Corporal N. Bikagni, Union Interafricaine des Droits de l'Homme,
Commission International de Juristes v Togo Communications 83/92, 88/93,
91/93.
[FN19]
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95. In Malawi African Association and Others v. Mauritania, [FN20] "the
Commission held that the amnesty law adopted by the Mauritanian legislature
had the effect of annulling the penal nature of the precise facts and
violations of which the plaintiffs are complaining; and that the said law
also had the effect of leading to the foreclosure of any judicial actions
that may be brought before local jurisdictions by the victims of the alleged
violations". The Commission went further to note that its role consists
precisely in "pronouncing on allegations of violations of the human rights
protected by the Charter of which it is seized in conformity with the
relevant provisions of that instrument. It is of the view that an amnesty
law adopted with the aim of nullifying suits or other actions seeking
redress that may be filed by the victims or their beneficiaries, while
having the force of law ...cannot shield that country from fulfilling its
international obligations under the Charter.
--------------------------------------------------------------------------------
[FN20] Guidelines and Measures for the Prohibition and Prevention of Torture,
Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben
Island Guidelines), African Commission on Human and Peoples' Rights, 32nd
Session, 17 - 23 October, 2002: Banjul, The Gambia. See also: Various
communications v. Mauritania Communications 54/91, 61/91, 96/93, 98/93,
164/97-196/97, 210/98
--------------------------------------------------------------------------------
96. In Zimbabwe Human Rights NGO Forum/Zimbabwe [FN21] this Commission
reiterated its position on amnesty laws by holding that "by passing the
Clemency Order No. 1 of 2000, prohibiting prosecution and setting free
perpetrators of "politically motivated crimes",...the State did not only
encourage impunity but effectively foreclosed any available avenue for the
alleged abuses to be investigated, and prevented victims of crimes and
alleged human rights violations from seeking effective remedy and
compensation. This act of the state constituted a violation of the victims'
right to judicial protection and to have their cause heard under Article 7
(1) of the African Charter".
--------------------------------------------------------------------------------
[FN21] Communication 245/2002.
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97. If there appears to be any possibility of an alleged victim succeeding
at a hearing, the applicant should be given the benefit of the doubt and
allowed to have their matter heard. Adopting laws that would grant immunity
from prosecution of human rights violators and prevent victims from seeking
compensation render the victims helpless and deprives them of justice.
98. In light of the above, the African Commission holds that by granting
total and complete immunity from prosecution which foreclosed access to any
remedy that might be available to the victims to vindicate their rights, and
without putting in place alternative adequate legislative or institutional
mechanisms to ensure that perpetrators of the alleged atrocities were
punished, and victims of the violations duly compensated or given other
avenues to seek effective remedy, the Respondent State did not only prevent
the victims from seeking redress, but also encouraged impunity, and thus
renaged on its obligation in violation of Articles 1 and 7 (1) of the
African Charter. The granting of amnesty to absolve perpetrators of human
rights violations from accountability violates the right of victims to an
effective remedy.22
FOR THESE REASONS, THE AFRICAN COMMISSION
a) Finds that the Respondent State is in violation of Articles 1, 2, 3(2), 7
and 13 of the African Charter and requests it to take the appropriate
measures to remedy the situation.
b) Requests both parties to inform the Commission on the progress made in
reviewing the discriminatory provisions in the Constitution.
c) Offers its Good Offices in case it is needed to assist.
Adopted at the 5th Extraordinary Session of the African Commission on Human
and Peoples' Rights, 21 - 29 July 2008, Banjul, The Gambia. |
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