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SUMMARY OF THE FACTS
1. The Communication had been initiated against the Republic of Cameroon,
State Party [FN17] to the African Charter, by two Non Governmental
Organisations (NGO); The Association of the Victims of Post Electoral
Violence of 1992 of the North West Region, headquartered in Bamenda,
Cameroon; and The International Centre for the Legal Protection of Human
Rights (INTERIGHT[FN2]), headquartered in London, UK.
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[FN17] Cameroon ratified the Charteron 26th June 1989
[FN2] INTERIGHTS enjoys Observer Status with the African Commission
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2. In the Communication, the Complainants contend that on the 23rd October
1992, in reaction to the confirmation by the Supreme Court of Cameroon of
the victory of the candidate Paul Biya of the Cameroon Peoples' Democratic
Party (RDPC) in the presidential elections of the 11th October 1992, the
members of the Social Democratic Front (SDF), the Principal Opposition
Party, attacked the symbols of the State and the militants of the Party
which won the elections, in the city of Bamenda, their Party stronghold.
3. Property belonging to RDPC militants and to other citizens are said to
have been destroyed. The damages caused to Messrs. Albert Cho Ngafor and
Joseph Ncho Adu are estimated at one billion CFA francs for each of them.
Damages to the tune of 800 million CFA francs are said to have been caused
to about a hundred other individuals.
4. Certain victims such as Mr. Albert Cho Ngafor, who had been sprayed with
petrol, were moreover subjected to serious physical attacks.
5. In consequence the Cameroonian Authorities arrested certain individuals
presumed to be responsible for these events; the said Authorities also set
up, in February 1993, a Committee responsible for the compensation of the
victims.
6. However, having waited in vain for their compensation, the victims of the
post electoral violence of Bamenda organised themselves into an Association
and embarked on certain activities in order to have the matter settled
amicably.
7. This method however proved fruitless, as, in spite of firm promises made
by the President of the Republic, who had been approached in the context of
the measures taken towards an amicable settlement, no concrete result had
been obtained by the victims of the violence.
8. On the 13th March 1998, the victims of the Bamenda events brought an
appeal for responsibility against the Cameroonian State to the
Administrative Chamber of the Supreme Court. The appeal in question had been
recorded on the 22nd April 1998 by the Clerk of Courts, under the number
835/97-98.
9. On the 16th July 1998, the Government of Cameroon reacted, requesting the
Supreme Court to declare the victims' submission inadmissible and since
then, the proceedings have been blocked in spite of all the efforts made by
the Counsels of the Complainants, with the support of certain administrative
Authorities, like the Commissioner of the District of Mezam (home region of
the victims).
THE COMPLAINT
10. The Complainants allege the violation of Articles 1, 2, 4, 7 and 14 of
the African Charter by the Republic of Cameroon. In consequence, the
Complainants are requesting the African Commission to:
a. Declare the refusal by the Administrative Chamber of the Supreme Court of
Cameroon to consider their appeal against the Government of Cameroon as
contrary to the principles of the right to a fair hearing, as stipulated by
the African Charter in its Article 7 and by the relevant provisions of other
international human rights instruments;
b. Note that the Government of Cameroon has not respected its obligation to
protect the physical integrity (Article 4) and property (Article 14) of
individuals living on its territory or under its jurisdiction;
c. Request the Government of Cameroon to pay full compensation for the
damages suffered by the victims of the post electoral violence in Bamenda;
d. Request the Government of Cameroon to enact positive legislation to
ensure the fair, equitable and rapid compensation for the victims of human
rights violations and to ascertain that the human rights violations
committed in Bamenda do not happen again in Cameroon.
THE PROCEDURE
11. The Communication which was received at the Secretariat of the African
Commission on the 04/04/2003 had been registered under N° 272/2003, for
consideration by the African Commission at its 33rd Ordinary Session (15-29
May, in Niamey, Niger).
12. By letter ACHPR/COMM/2 of the 15th April 2003, the Secretariat of the
African Commission acknowledged receipt of the Communication to the
Complainants.
13. During its 33rd Ordinary Session, the African Commission examined the
Complaint and decided to be seized of it. Consideration of its admissibility
was deferred to its 34th Ordinary Session scheduled to be held from the 7th
to 21st October 2003 in Banjul, The Gambia.
14. By letter and by Note Verbale of the 27th June 2003, the Secretariat of
the African Commission informed both the Complainants and the Respondent
State of the decision of the African Commission.
15. On the 5th August 2003, the Secretariat received a memorandum from the
Complainants on the admissibility of the Complaint and conveyed it to the
Respondent State by Note Verbale dated 6th August 2003, whilst reminding it
to convey its own memorandum to the Secretariat as early as possible.
16. By Note Verbale of the 14th October 2003, the Ministry of Foreign
Affairs of the Republic of Cameroon requested additional information and
more time for it to prepare its memorandum on the admissibility of the case.
17. By letter of the 17th October 2003, the Secretariat contacted the
Complainants requesting them to provide the supplementary information
required by the Respondent State. The Complainants complied without delay
and the request of the Respondent State was met on the 30th October 2003.
18. During its 34th Ordinary Session which was held from the 6th to 20th
November 2003 in Banjul, The Gambia, the African Commission examined the
Complaint and heard the Parties. Sequel to this, the African Commission
deferred its decision on admissibility of the case to its 35th Ordinary
Session.
19. By Note Verbale and by letter of the 16th and 17th December 2003
respectively, the Secretariat of the African Commission informed the Parties
reminding the Respondent State that its memorandum on admissibility was
still outstanding.
20. By letter dated 16 March 2004, and received at the Secretariat of the
Commission on the 18 March 2004, the complainants conveyed a letter
transmitting additional arguments in response to the oral arguments made by
Respondent State at the 34th Ordinary Session held in Banjul, The Gambia
from 6th to 20th November 2003.
21. On the 19th March 2004, the Secretariat of the African Commission sent a
Note Verbale to the Respondent State reminding it to send its comments on
the admissibility of the Complaint.
22. By Note Verbale dated 6th April 2004 and received at the Secretariat of
the African Commission, the Respondent State, referring to the Note Verbale
sent to it on the 16th December 2003, informed the Secretariat that the case
of which the African Commission had been seized and which opposed it to the
Complainants, was still pending before the Administrative Chamber of the
Supreme Court of Cameroon which had deferred the said case to the 26th May
2004.
23. During its 35th Ordinary Session which was held in May/June 2004 in
Banjul, The Gambia, the African Commission examined the Complaint and heard
the Parties on the admissibility of the case. On this occasion, the
Respondent State submitted in writing, its memorandum on the admissibility
of the case to the Secretariat of the African Commission, which in turn had
conveyed it to the Complainant Party by letter dated 17th November 2004.
24. During its 36th Ordinary Session, which was held in November/December
2004 in Dakar, Senegal, the African Commission considered the Complaint and
declared it Admissible.
25. By letters dated 20th December 2004, the Secretariat of the African
Commission notified this decision to the Parties and requested their
arguments on the merits of the case as early as possible.
26. On 30th March 2005, the arguments of the Respondent State on the merits
of the Communication had been received at the Secretariat of the African
Commission through a Note Verbale dated 16 March 2005.
27. On 14th April 2005, the Secretariat of the Commission acknowledged
receipt of the memorandum from the Respondent State on the merits of the
Communication and on that same date, conveyed it to the Complainant Party
for reaction.
28. On 3rd October 2005, the Complainant sent its rejoinder to the
observations of the Respondent State on the merits of the Complaint by
letter dated 26th September 2005. On the 13th October 2005, the Secretariat
acknowledged receipt of the letter.
29. On 30th November 2005, this document had been forwarded against a
receipt of acknowledgement, to the delegation of the Respondent State
attending the 38th Ordinary Session of the Commission.
30. During this same Session (21 November - 5 December 2005, Banjul, The
Gambia), the African Commission examined the Complaint and in the absence of
any reaction from the Respondent State to the arguments of the Complainant
Party on the merits of the case, differed its decision at this point to its
39th Ordinary Session.
31. On 7th December 2005, this decision was notified to the Parties and the
Respondent State, in particular had been invited to send its reaction on the
submissions of the Complainant within 3 months.
32. In the absence of any reaction from the Respondent State, a reminder had
been sent to it on the 23rd March 2006.
33. By Note Verbale dated 29th March 2006, and received by the Secretariat
of the African Commission on the 13th April 2006, the Respondent State
conveyed its reaction on the arguments submitted by the Complainant Party on
the merits of the case.
34. The Secretariat transmitted these arguments to the Complainant Party on
the 8th May 2006.
35. In a Note Verbale dated 30th June 2006 and a letter also dated 30th June
2006, the Parties had been respectively informed that during its 39th
Ordinary Session, the African Commission had decided to defer the case to
its 40th Ordinary Session scheduled for the 15th to 29th November 2006 in
Banjul, The Gambia.
36. On the 4th October 2006, the Secretariat of the Commission received a
memorandum from the Complainant Party in rejoinder to the arguments on the
merits formulated by the Respondent State to the Communication.
37. During its 40th Ordinary Session held in Banjul, The Gambia, from the
15th to 29th November 2006, the African Commission decided to defer the case
to its 41st Ordinary Session scheduled for the 16th to 30th May 2007 in
Accra, Ghana for a ruling on the merits of the case.
38. In a Note Verbale dated 31st January 2007 and a letter also dated 31st
January 2007, the Parties were informed about the deferment of the case to
the 41st Ordinary Session of the African Commission scheduled for the 16 to
30 May 2007 in Accra, Ghana.
39. During its 41st Ordinary Session held in Accra, Ghana, the African
Commission had deferred the Communication to its 42nd Ordinary Session for a
decision on the merits of the case.
40. By Note Verbale dated 15th June 2007 and a letter dated the same day,
the Parties to the Communication had been informed of the deferment of the
case to the 42nd Ordinary Session of the Commission scheduled for the 14th
to 28th November 2007 in Brazzaville, Congo.
41. In a Note Verbale dated 11th September 2007 a letter had been sent to
the Respondent State reminding it of the deferment of the Communication to
the 42nd Ordinary Session.
42. By letter dated 13th September 2007, the Complainant Party had been
reminded about the deferment of the Communication to the 42nd Ordinary
Session.
43. The Parties had been respectively informed in a Note Verbale and a
letter dated 19th December 2007 about the deferment of the examination of
the decision on the merits to the 43rd Ordinary Session of the Commission to
be held from 15 to 29 May 2008 in Ezulwini, in the Kingdom of Swaziland.
44. In a Note Verbale dated 18th March 2008 and a letter dated 20th March
2008, the Parties had been reminded of the deferment of the case to the 43rd
Ordinary Session of the Commission. The Parties had however been informed of
the change of dates of the said Session the holding of which had been
brought forward to the 7th to 22nd May 2008 instead of from 15th to 29th May
as had been initially announced.
45. In a Note Verbale dated 24th October 2008, the Secretariat informed the
Respondent State about the deferment of consideration on the decision on the
merits of the Communication to the 44th Ordinary Session scheduled for the
10th to 24th November 2008 in Abuja, Nigeria.
46. During the same period of the 24th October 2008, the Complainants had
been informed by letter of the deferment of the Communication for
examination on the merits to the 44th Ordinary Session of the African
Commission.
47. After the examination of the communication at the 44th Ordinary Session
held in Abuja in the Federal Republic of Nigeria, the African Commission
deferred the reexamination to the 45th Ordinary Session scheduled for the
13th to 27th May 2009 in Banjul, the Gambia for the consideration of the new
developments in the area of international law.
48. In a Note Verbale dated 21st December 2008 and a letter dated the same
day, the Secretariat informed the Parties to the communication about the
deferment of the case to the 45th Ordinary Session scheduled for 13th to
27th May 2009. In addition by note verbale dated 23rd April 2009 and a
letter dated the same day , a reminder was sent to the parties.
49. The parties to the Communication were informed that the matter was
deferred to the 46th Ordinary Session of the Commission scheduled to be held
in Banjul, The Gambia from 11-25 November 2009 in a Note Verbale and a
letter both dated June 11, 2009.
THE LAW: ADMISSIBILITY
50. The African Charter on Human and Peoples' Rights stipulates in its
Article 56 that the Communications referred to in Article 55 should
necessarily, in order to be considered, be sent after all local remedies
have been exhausted, if they exist, unless the procedure of exhaustion of
local remedies is unduly prolonged.
51. In this instance, the Complainant, while admitting that the case is
still under consideration by the legal Authorities of the Respondent State
who had been seized of it, contends that the procedures are unduly prolonged
and that under these conditions the requirement that local remedies be
exhausted as stipulated by Article 56 of the African Charter, cannot apply.
ARGUMENTS OF THE COMPLAINANT PARTY ON THE ADMISSIBILITY OF THE CASE
52. In support of his argument, the Complainant contends, in his memorandum
on admissibility dated 05th August 2003, that the Complaint had been
deposited with the African Commission five years after the same Complaint
against Cameroon had been brought before the Administrative Chamber of the
Supreme Court of this State, and which has, to date, remained without any
response.
53. In the memorandum cited earlier, the Complainant further contends that
the alleged victims of the Complaint had made several fruitless submissions
for an out-of-court settlement to the administrative and political
Authorities of the Respondent State. The alleged victims had then brought an
appeal for liability against the State of Cameroon before the Administrative
Chamber of the Supreme Court on the 13th March 1998. The latter conveyed its
statement on defence to the Complainants on the 12th August 1998. Since that
date and in spite of the reaction of the Complainants (27th August 1998) and
the numerous reminders, the Complainants did not receive any more
information relating to the case from the Administrative Chamber of the
Supreme Court, and this despite the national[FN3] procedural legislation
which stipulates that once the exchange of arguments is completed, the case
files should be closed in the 5 months that follow. 5 years have passed
without any reaction from the Administrative Chamber of the Supreme Court.
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[FN3] Cf. Law No 75/17 of the 08/12/1975 relative to the procedure before
the Supreme Court
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54. It is for this reason, pleads the Complainant, that although local
remedies are available, they do not " at all respond to the imperative of
efficacy which is their raison d'être ". The Complainant adds that the
Administrative Chamber of the Supreme Court is familiar with this type of
practices, which is why Cameroon had been condemned by the African
Commission [FN4] (for a case which had remained pending for 12 years before
the Yaoundé Court of Appeal) as well as by the United Nations Human Rights
Commission[FN5] (for a case which had remained pending before the
Administrative Chamber of the Supreme Court for more than 4 years).
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[FN4] Communication 59/91: Louis Emgba Mekongo/Cameroon
[FN5] Communication 630/1995: Abdoulaye Mazou/Cameroon
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55. During a hearing at the 34th Ordinary Session of the African Commission,
the Complainant Party had reiterated these arguments insisting on the fact
that the bringing of this case before the African Commission had contributed
a lot to the revival of the case by the Cameroon legal Authorities after all
these years of inaction.
56. In its memorandum with supplementary information on admissibility, dated
18th March 2004, the Complainant recalled that the Respondent State had been
condemned by the African Commission and by the United Nations Human Rights
Commission for the slowness of its justice system. These delays, which
cannot be attributed to Cameroon's underdevelopment, but rather, according
to the Complainant, "to the inefficiency of the Cameroonian national
Authorities, both legal and administrative" are not only contrary to the
African Charter but also to the principles of the right to a fair hearing
adopted by the African Commission.
57. The Complainant further reiterates that the violation, according to him,
by the Administrative Chamber of the Supreme Court, of the regulations which
stipulate that once the exchanges of memoranda are completed, the latter
should close the case file within 5 months, as since August 1998, the
Complainants had not received any news from the said Chamber in spite of
several reminders and, according to the Complainants, despite the fact that
the Judges of this Court were "perfectly aware of the implications of this
procedure for the Complainants".
58. The Complainant Party moreover denounces the attitude of the powers that
be, who had made promises which never culminated in results, but above all
the shortcomings of the Cameroonian Authorities exposed by the
mal-functioning of the Commission responsible for compensating the victims
of the violence (placed under the Prime Minister's Office), which had been
created in the context of the effort to find an amicable solution to the
problem. This Commission, declares the Complainant, had been one of the
local remedies open to the victims. But 12 years after its creation and 11
years after having heard the victims, this Commission had still not
submitted its report. There again, concludes the Complainant, the delay is
unduly prolonged. The Complainant therefore implores the African Commission
to declare the Complaint admissible.
ARGUMENTS OF THE RESPONDENT STATE ON THE ADMISSIBILITY OF THE CASE
59. The Respondent State had for its part pleaded, during the hearing before
the African Commission at its 34th Ordinary Session, that the delays
observed in the administration of justice in Cameroon are due to the under
developed nature of the country, which does not have the means to provide
all the facilities required for a diligent justice system, and not to a
deliberate desire by the Government to hinder the administration of justice.
60. The Respondent State again reiterated this point during a hearing by the
African Commission at its 35th Ordinary Session. In its memorandum on
admissibility submitted on this occasion, the Respondent State pleads that
the Complaint is still under consideration before one of the highest
national Courts which, certainly has a lot of backlog in its work, but which
is aware of the situation and that the Parties require that the case be
concluded by the national legal Authorities. Thus, on the 25th February and
the 31st March 2004, the Administrative Chamber of the Supreme Court held
two ordinary sessions. The debate on the case in question, scheduled for the
31st March 2004 had been postponed to the 26th May 2004 on the request of
the Counsel for the Complainants.
61. The Respondent State further pointed out that for these reasons, the
Complainant should not speak of abnormally long delays in the Cameroonian
justice system, particularly where the " current delay is not attributable
to the Court in charge of the case but rather to the Complainant Party
itself ".
62. In consequence, the Respondent State requests the African Commission to
declare the Communication inadmissible.
ANALYSIS OF THE AFRICAN COMMISSION ON THE ADMISSIBILITY
63. The African Commission considers that the Complainant Party, before
appearing before it had started to use the remedies available at the local
level. The procedure before the Administrative Chamber of the Supreme Court
had lasted 5 years without any feedback for the Complainants, contrary to
the regulations in force and in spite of the numerous reminders which had
been sent to the said Court. The African Commission therefore considers that
the delay on the part of the Court in the treatment of the case was unduly
prolonged.
64. Pertaining to the Compensation Commission set up under the Prime
Minister's Office, its operations were highly inefficient as 12 years after
its creation and 11 years after hearing the victims, it had not published
its report. There also, the African Commission considers that this ad hoc
Commission, whose establishment was aimed at achieving an amicable
settlement of the case, had registered excessive delays in its operations.
65. The Respondent State pleads that the legal Authorities remain aware of
the case at the national level but the African Commission considers the
delays by the Administrative Chamber of the Supreme Court of Cameroon
excessive.
66. The African Commission further notes that re-introduction of the
proceedings on the case before the Administrative Chamber of the Supreme
Court in February 2004, namely after a gap of 5 years, only took place after
the submission of a Complaint (to the African Commission), by the victims in
April 2003 and after the decision on seizure taken by the Commission on the
said Complaint in May 2003 (33rd Ordinary Session), as well as the hearing
of the Parties to the case in November 2003 during its 34th Ordinary
Session. This leads the African Commission to presume that the
re-introduction of the proceedings was not accidental but rather it was due
to the action brought by the victims before the African Commission.
67. The African Commission considers that State Parties have an obligation
to administer, on their territory, clear and diligent justice in order to
give satisfaction to the Complainants in the shortest possible time, in
conformity with the relevant provisions of the African Charter and with the
directives and principles of the right to a fair hearing in Africa.
68. In this particular case, the Commission notes that for 5 years, the
Administrative Chamber of the Supreme Court of the Respondent State had not
provided any reaction to the Complainants, in spite of several appeals by
the latter. The Respondent State has admitted this fact but attributes it to
lack of resources. Consideration of the case has indeed recommenced a short
while ago, but one can reasonably conclude that this consideration was
largely due to the seizure of the African Commission by the victims. Whereas
this should not be the case, that is, justice to be administered by State
Parties should not wait for the African Commission to be seized of a matter
before it is rendered fully, clearly and diligently. This had not been the
case with the Administrative Chamber of the Supreme Court of the Respondent
State.
69. Concerning the Compensation Commission, an ad hoc institution meant to
solve the problem amicably at the national level, has shown its limitations
in failing to produce any Report after twelve years of existence. The
Respondent State does not refute these allegations, which allows one to
believe that they are true. The African Commission therefore considers that
this remedy is neither effective nor satisfactory.
70. For these reasons, the African Commission declares the Communication
admissible.
THE MERITS
71. Pursuant to Rule 120 of the Rules of Procedure of the African
Commission, once a Communication which is submitted under the terms of
Article 55 of the Charter has been declared admissible, the Commission "examines it in the light of all the information which the Complainant and
the Respondent State concerned have submitted in writing, and it renders its
observations on the subject".
72. It appears from the case file that parties have made their conclusions
on the merits of the case since 30 March 2005, and that the information
provided by the Parties to the Communication and added to the case file is
sufficient to allow a ruling on the merits of the case.
SUBMISSIONS OF THE COMPLAINANTS ON THE MERIT
73. The Complainants are requesting the African Commission to declare the
State of Cameroon in violation of the relevant provisions of the African
Charter and in particular of Articles 1, 2, 4, 7 and 14 of the said Charter
and, in consequence, to declare the State of Cameroon bound to pay
compensation for the prejudices sustained by the victims of the post
electoral events of 1992.
74. The Commission is consequently obliged to examine the alleged violations
on the basis of the facts and the law.
ON THE VIOLATION OF ARTICLE 1 OF THE AFRICAN CHARTER
75. Under the terms of Article 1 of the African Charter, " the OAU Member
States, Parties to the present Charter, recognize the rights,
responsibilities and freedoms enunciated in this Charter and undertake to
adopt legislative and other measures for their application ".
THE ARGUMENTS OF THE COMPLAINANTS PERTAINING TO THE VIOLATION OF ARTICLE 1
OF THE AFRICAN CHARTER
76. From the point of view of the violation of Article 1, the Complainants
contend:
i. That the African Charter sets out in its Article 1 a general obligation
on the protection of rights. In this context, like " the majority of the
human rights treaties, besides requiring the States Parties to abstain from
all violation or unauthorized restriction of the rights it proclaims,
compels them to take positive measures to guarantee the widest possible
protection of the individuals under their jurisdiction ".
ii. That if the recognition referred to by Article 1 of the Charter "bestows
them universality[FN6], to the guaranteed rights, the taking of appropriate
measures allows them to assume real effectiveness". That the Commission has
had the opportunity to underscore this aspect during the examination of a
case on the activities of a petroleum consortium in Southern Nigeria by
re-affirming that the African Charter was creating a certain number of
obligations for the States Parties which include, in particular, "the
responsibility of respecting, protecting, promoting and implementing[FN7]" the rights which it sets out before specifying that
"the Governments have a
responsibility to protect their citizens, not only by adopting appropriate
legislation and by applying them effectively, but also by protecting the
said citizens from harmful activities which can be perpetrated by private
parties. This responsibility requires positive action on their part".
iii. That the interpretation by the Commission of Article 1 of the African
Charter can be compared with that of the United Nations Human Rights
Commission on Article 2 of the International Convention on Civil and
Political Rights (CDH)[FN8], interpretation in which the CDH affirms that
the provision contained in Article 2 embraced an obligation of "absolute
character" with "effect immediate[FN9]" requiring the States Parties to "take legislative, judicial, administrative, educational and other
appropriate measures to fulfill their obligations[FN10]".
iv. That the Commission had to judge that the refusal or the negligence of
the
a. Authorities of a State Party to protect journalists and human rights
activists against
b. repeated attacks (harassment, arbitrary arrests, assassination, torture)
by the security forces and unidentified groups, constitutes (d) a violation
of the said Charter even if this State or its officers are (were) not the
direct perpetrators of this violation[FN11]".
v. That the present Communication provides the Commission with the
opportunity to
a. clarify the meaning and scope of the " positive actions " that the States
are required to carry out in order to conform with the conditions of the
African Charter, and this, by responding to the affirmation made by the
Cameroonian Authorities and according to which the implementation of
"all the legal, technical, human and material means at their disposal to
control the post-electoral events of Bamenda in 1992 frees them from the
obligation of means which is incumbent upon them".
vi. That the African Charter really and truly imposes an obligation of
result and not one of diligence on the States Parties, of guaranteeing to
the victims of the October 1992 events the enjoyment and effective exercise
of the rights which it proclaims and the lack of respect for which gives
rise to a right to compensation for the victims or their dependents and
implies, for the Cameroonian State, the responsibility to compensate and the
freedom to act against the perpetrator or perpetrators of the violation.
vii. That, in effect, where, the Commission has not had numerous
opportunities to make a ruling on the exact content of Article 1 of the
Charter[FN12], it has nonetheless pointed out that this Article is the basis
of the rights recognized by the African Charter in so far as it confers on
it " the legally binding nature which is generally attributed to
international Treaties of this nature and that any violation of one of its
provisions would automatically represent a violation of Article 1[FN13]".
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[FN6] See Juan Antonio Carrillo Salcedo "Article 1" In the European Human
Rights Convention : Commentary Article by Article under the direction of
Louis Edmond Pettiti, Emmanuel Decaux and Pierre-Henry Imbert, Edition
Economica 1999 page 141 "the use of the word in Article 1 recognizes
preferably terms such as protect or respect, suggests that the recognized
rights have a value erga omnes"
[FN7] Communication 155/96 Action Centre for Economic and Social Rights vs.
Nigeria paragraph 44.
[FN8] See Note No. 22
[FN9] General Observation No. 31 " " the nature of the legal obligation
imposed on the States Parties to the Convention " of the United Nations
Human Rights Commission, CCPR/C/21/Rev.1/Add.13. Op. Cit. Paragraph 14
[FN10] Cf. General Observation No. 31 " the nature of the legal obligation
imposed on the States Parties to the Convention " of the United Nations
Human Rights Commission, CCPR/C/21/Rev.1/Add.13. Op. Cit. Paragraph 7
[FN11] Cf. Communication 74/92 National Human Rights and Liberties
Commission against Chad, paragraph 35.
[FN12] See Communications: No. 74/92; No. 137/94; No. 48/90; No. 50/91; No.
52/91; No. 89/93; No. 139/94; No. 154/96; No. 161/97; No. 147/95; No.
149/96; No. 155/96; No. 211/98; No.b223/98.
[FN13] Cf. Communication No. 147/95 and 149/96 Sir Dawda K. Jawara against
The Gambia paragraph 46.
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PERTAINING TO THE VIOLATION OF ARTICLES 2, 4, 7 & 14 OF THE AFRICAN
CHARTER12
77. Concerning the violation of Articles 2, 4, 7 and 14 the Complainants
appear to link it to the importance that Article 1 represents in the present
case, since according to the Complainants, Article 1 is " the only one which
defines the scope of the legal obligations contracted by the States Parties
to the Charter, thereby allowing correct interpretation of the obligations
contained in the other provisions of the Continental Treaty ". Thus, the
Complainants contend that if taken in isolation, Article 1 of the Charter
commits the State Parties to taking all the necessary legislative measures
allowing the effective protection of the rights and liberties contained in
the Charter, that is to say, of averting or at least of minimizing all risks
of violating the exercise or enjoyment of these rights, and in combination
with the other relevant provisions of the Charter, the obligation of
averting violations imposes on the States Parties the obligations of:
e. Taking preventive measures;
f. Taking measures so that the enjoyment and exercise of the rights are not
hindered by measures of seizure[FN14] or of expropriation which are not
dictated by the satisfaction of a general interest or a public necessity or
even the looting or the destruction of the property of natural persons or
legal entities; • Putting in place legislation which makes it possible to
avert, repress and punish violations to life, but also "to take preventive
measures of a practical nature to protect the individual whose life is
threatened by the actions of another[FN15]".
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[FN14] Cf. Communication No. 140/94, 141/94 et 145/95 Constitutional Rights
Project, Civil Liberties Organization and Media Rights Agenda vs. Nigeria
paragraph 54
[FN15] Cf. CEDH, Affaire Kilic vs. Turkey, 28 March, 2000 paragraph 62
--------------------------------------------------------------------------------
78. Thus, the Complainants contend :
i. That the above mentioned Articles had been violated by the State of
Cameroon since the latter had failed in its obligation to take adequate
preventive measures if not to avert or prevent the events in question, at
least to reduce them to zero. To support this reasoning, the Complainants
emphasize that the Cameroonian Authorities knew that the Bamenda events were
going to take place and that several personalities had spoken of threats
coming from the Social Democratic Front (SDF) against the security of people
and property in the Province.
ii. That the Prime Minister at the time, Mr. Achidi Achu had alluded to the
said threats
a. in the campaign speech he made on the 6th October 1992[FN16] in Kumbo in
the North-West Province. The said threats had been later mentioned by the
Minister of Communication and Government Spokes-person in a press briefing
on the political situation of the country during which he had spoken of the
existence of a provisional arsenal of the SDF estimated at 300 pistols and
60 combat [FN17] weapons. Furthermore, in the interview granted to the
national Daily the Cameroon Tribune, the Secretary General of the ruling
RDPC Party, had unveiled " the diabolical plan" concocted at the beginning
of the month of October by the Opposition to take over power[FN18].
Moreover, direct threats having been made against all those who support the
ruling party, several complaints received by the Governor of the North West
province brought by citizens wishing to obtain Government protection testify
to the fact that the territorial Administrative Authorities had been
informed about the SDF's plans.
iii. That despite these early warning signs, the Government of Cameroon, in
neglecting to take adequate measures to prevent the events of October 1992
from taking place, thereby violated, even passively, the obligation of
prevention contained in Article 1 of the African Charter. The State of
Cameroon has neither brought the perpetrators of these atrocities to
justice, nor paid compensation for the damages suffered by the victims whose
right to an effective remedy has been violated.
iv. That in consequence, the Commission should request the Cameroonian
Authorities, in conformity with its own jurisprudence19, to pay compensation
in view of the long delay by the Justice Administration in examining the
Complainants' case. In conclusion, the Commission is being requested to
reject the arguments of the Cameroonian Government, to take note of the
violation of Articles 1, 4, 7 and 14 of the African Charter; to request the
Government of Cameroon to institute proceedings against the perpetrators of
the atrocities committed between the 23rd and 27th October 1992; to
determine, on the basis of the evidence presented, the amount of
compensation to be paid to the victims based on all the damages suffered by
the latter. The Complainants further request the Commission to ask the State
of Cameroon to amend the laws which are incompatible with the provisions of
the African Charter and to fix a deadline for the State of Cameroon relative
to the application of any decision that the Commission may take on this
matter.
--------------------------------------------------------------------------------
[FN16] Cf Cameroon Tribune No. 5231 dated 7 October 1992, page 16
[FN17] Cf. "The Minister Kontchou Kouamegni reacts to the SDF strategy of
chaos " in Cameroun Tribune No. 5246 du 26 October 1992. Page 4
[FN18] Cf. Cameroun Tribune No. 5231 dated 7 October 1992 page 8.
[FN19] See Communication 211/98 Legal Resources Foundation vs. Zimbabwe.
--------------------------------------------------------------------------------
THE ESSENCE OF THE ARGUMENTS OF THE RESPONDENT STATE IN
RELATION TO THE VIOLATION OF ARTICLES 1, 2, 4, 7 & 14 OF THE AFRICAN CHARTER
79. The Respondent State for its part, argues that the violations being
alluded to by the Complainants are completely groundless since the State of
Cameroon has not, in this particular case, deprived any of the Complainants
of the right to respect for his life and physical integrity nor his right to
property. The State of Cameroon took measures to save the life and property
of individuals during what can be called the Bamenda events.
80. Furthermore, the Respondent State intimates that this particular case
happened in the context of the years called democratic agitation during
which Cameroon had experienced a certain amount of agitation due to the
return to a multiparty system and to individual liberties. That for this
reason, from May 1990 to December 1992, and due to the organization of two
major elections, the legislative then the presidential, public law and order
had been disrupted throughout the country thereby giving rise to a large
loss of life, and important material damage.
81. According to the Respondent State, the specific case of Bamenda, which
was of major proportions took place between the 23rd and 30th October 1992,
and was marked notably by the difficulty of the State to maintain law and
order. The Respondent State further contends that in the case of Bamenda,
the implementation of the mandate to protect people and property by using
the forces of law and order had been reinforced after the 23rd October 1992,
date on which the results of the presidential elections were proclaimed.
Thus, about 548 men had been deployed in the region of Bamenda with motor
vehicles and other vehicles for the maintenance of law and order and
equipment adapted to deal with the situation on the ground. However,
although the post electoral disturbances had taken place in other parts of
the territory, these incidents had been extraordinarily violent in Bamenda
where they took the form of a generalized insurrection and had been
instigated by the militants of an Opposition Party, the Social Democratic
Front (SDF).
82. Moreover, the Respondent State contends that:
i. Following the destruction, a joint Gendarmerie-Police-Justice Commission
had been set up and given the responsibility for carrying out investigations
on all suspects who had been arrested. However, the individuals who were
given heavy charges and had been brought before the State security Court had
later been released on the persistent request of the human rights defender
organizations.
ii. That it happened that the State of Cameroon, having steadfastly
implemented the legal, technical, human and material resources at its
disposal to contain the post electoral events of Bamenda in 1992, it was
thus freed from the obligation of diligence which was its responsibility.
The extent of the events in question having the character of force majeure
was such that they could not be attributed to the State of Cameroon.
iii. That in view of the full compensation being demanded by the
Complainants, it should be recalled that the responsibility of the State of
Cameroon could not be established in either the unexpected happening of the
Bamenda events, or in their management. Consequently, it would be extremely
difficult to pay compensation since there is no law which authorizes this
sort of payment particularly where the State is not the perpetrator in any
way.
iv. That in relation to the enactment of a law allowing the payment of fair
and equitable compensation to the victims of the human rights violations in
Cameroon, following the unexpected happening of the events in question, the
following institutions had been successively put in place:
g. An organization for political dialogue at the national level called the
Tripartite and comprising the State, Civil Society and the Political
Parties. This Tripartite had made possible the realization of the
constitutional amendments of 18th January 1996.
h. A Committee then a National Human Rights and Liberties Commission;
i. A National Elections Observatory and the strengthening of the National
Communications Council.
v. That taking all these matters into consideration and with all the proper
reservations, the African Commission should declare the present
Communication baseless.
ANALYSIS OF THE COMMISSION WITH REGARD TO THE NATURE AND SCOPE OF THE
OBLIGATION CONTAINED IN ARTICLE 1 OF THE AFRICAN CHARTER.
83. It follows from the arguments of the facts and the law presented by the
Complainant Party and responded to by the Respondent Party, that the nature
and the scope of the obligation contained in Article 1 of the African
Charter constitute a matter of special importance in the present
Communication. Thus, according to the Complainant Party, Article 1 of the
African Charter imposes an obligation on the States Parties to take measures
which can produce concrete results. Whereas it can be inferred from the
arguments submitted by the Respondent Party that the provisions of Article 1
of the African Charter impose an obligation of diligence on the States
Parties.
84. It is therefore up to the African Commission to clarify the nature and
scope of thisArticle. It is evident that the legal aspect raised by the
argument of the two Parties present before the African Commission relates to
the question whether Article 1 of the African Charter imposes an obligation
of diligence or an obligation of result vis-à-vis the States Parties to the
said Charter. In other words, did the States Parties to the African Charter
make the commitment of taking measures which should give certain results by
virtue of Article 1?
85. In view of the importance of this question of law, and the importance
which the Complainant Party appears to give Article 1, the African
Commission should, in the present Communication, determine the legal nature
of the obligation which the afore-mentioned Article imposes on States
Parties.
THE EXTENT OR THE SCOPE OF THE OBLIGATION CONTAINED IN ARTICLE 1 OF THE
CHARTER
86. Concerning the scope or the extent of the obligation imposed by Article
1 of the African Charter, it is important to point out that it had been
clarified sui generis[FN20], (in a distinctive manner) and that the
Commission's jurisprudence is abundant enough in this area.
--------------------------------------------------------------------------------
[FN20] See Communications : No. 74/92 ; No. 137/94 ; No. 48/90 ; No. 50/91;
No. 52/91; No. 89/93; No. 139/94; No. 154/96; No. 161/97; No. 147/95; No.
149/96; No. 155/96; No. 211/98; No.b223/98., in which the African Commission
has had to clarify the scope of Article 1 of the Charter
--------------------------------------------------------------------------------
87. Thus, according to the Commission's jurisprudence, Article 1 confers on
the Charter the legally binding character generally attributed to
international Treaties of this nature. The responsibility of the State Party
is established by virtue of Article 1 of the Charter in case of the
violation of any of the provisions of the Charter. Article 1places the
States Parties under the obligation of respecting, protecting, promoting and
implementing the rights.
88. The respect for the rights imposes on the State the negative obligation
of doing nothing to violate the said rights. The protection targets the
positive obligation of the State to guarantee that private individuals do
not violate these rights. In this context, the Commission ruled that the
negligence of a State to guarantee the protection of the rights of the
Charter having given rise to a violation of the said rights constitutes a
violation of the rights of the Charter which would be attributable to this
State, even where it is established that the State itself or its officials
are not directly responsible for such violations but have been perpetrated
by private [FN21] individuals.
--------------------------------------------------------------------------------
[FN21] Communication 74/92, National Human Rights and Liberties Commission
vs.Chad; Communication 155/96, Social and Economic Rights Action Centre and
the Centre for Economic and Social Rights vs. Nigeria.
--------------------------------------------------------------------------------
89. According to the permanent jurisprudence of the Commission, Article 1
imposes restrictions on the authority of the State Institutions in relation
to the recognized rights. This Article places on the State Parties the
positive obligation of preventing and punishing the violation by private
individuals of the rights prescribed by the Charter. Thus any illegal act
carried out by an individual against the rights guaranteed and not directly
attributable to the State can constitute, as had been indicated earlier, a
cause of international responsibility of the State, not because it has
itself committed the act in question, but because it has failed to exercise
the conscientiousness required to prevent it from happening and for not
having been able to take the appropriate measures to pay compensation for
the prejudice suffered by the victims[FN22].
--------------------------------------------------------------------------------
[FN22] 22 Communication 245/2002, Zimbabwe Human Rights NGO Forum vs.
Zimbabwe, parag. 143.
--------------------------------------------------------------------------------
90. In this context of prevention, the State should carry out investigations
so as to detect the various risks of violence and take the necessary
preventive measures. The problem here does not concern so much the acts
violating the rights but rather of knowing whether the State took the
tangible measures to prevent the imminent risks of perpetration of the said
acts. It is not a question of inculpating the State for its lack of
conscientiousness regarding any act perpetrated in relation to the
guaranteed rights but of knowing whether the State, considering the imminent
risks of serious violations, used due diligence that was required. Under the
terms of comparative law, it is the position that was taken by the
InterAmerican Human Rights Court in the Vélasquez Rodriguez case in the
following terms:
91. - an illegal act which violates human rights and which is initially not
directly imputable to a state (for example because it is the act of a
private person or because the person responsible has not been identified)
can lead to the international responsibility of State, not because of the
act itself, but because of the absence of due diligence to prevent the
violation or to respond to it as required by the convention.‖
92. In the case Zimbabwe Human Rights Forum vrs. Zimbabwe, the Commission
had indicated and ruled that the doctrine of due diligence should be applied
on a case by case basis.
ON THE NATURE OF THE OBLIGATION CONTAINED IN ARTICLE 1 OF THE CHARTER
93. The scope of the State's general obligation to protect, sanctioned by
Article 1 of the
Charter having been clarified, it is therefore necessary to determine the
nature of this obligation. Is it an obligation of diligence or an obligation
of result?
94. Though by their origin, the obligation of diligence and the obligation
of result emanate from the domestic law systems, particularly from
continental civil law, this term has also been frequently used in
international law since the 20th century [FN23].
--------------------------------------------------------------------------------
[FN23] The distinction between these two types of obligations in
international law has for the first time been established in explicit terms
by D. Donatti whohas made it a general principle( D. Donati I Trattati
internazionali nel diritto costituzionale, Turin, Unione
tipografico-editrice torinese, 1906, vol. I . p. 343 et suivant) . It had
already implicitly been done by H. Triepel where he highlighted the
difference between domestic law immediately applicable and domestic law that
is internationally pertinent (H. Triepel, Volkerrecht und Landesrecht,
Leipzig Hirschfeld, 1899, p. 299) [édition française : Droit international
et droit interne, tr. Par R. Brunet, Paris, Pedone, 1920, p. 297]
--------------------------------------------------------------------------------
95. The obligation of diligence consists, for a Party to a Contract, in
placing at the disposal of the other Party all the available resources
without however guaranteeing the result that the said resources would
produce. Thus, in the context of this obligation, the debtor undertakes to
deploy all efforts to provide the creditor with a given requirement, but
without being able to guarantee it. It is the case of the Doctor who
undertakes to provide all the necessary care to his patient without however
being able to guarantee the recovery of the said patient.
96. The assertion of such a responsibility has the effect of compelling the
Party on whom reposes the obligation of diligence to pay compensation for
the damages it may have caused in the execution of this obligation. This
compensation takes the form of a conviction for the payment of damages with
interest, that is to say an obligation to pay a sum of money. It is in this
context that the notion of obligations arises, to which the Respondent State
alludes in talking about its resources on the one hand and its corollary,
the obligations of result, on the other.
97. On the contrary, the obligation of result pre-supposes the commitment of
the debtor to obtain a specific result. Thus, in the context of this
obligation, the transporter of a traveller undertakes to carry the passenger
from point A to point B safe and sound.
98. Pertaining to evidence, the evidence of a fault is only required from
the Complainant in the case of obligations of diligence since the
Complainant has to prove that the debtor has not deployed all the required
efforts to obtain the success of the undertaking. On the other hand, the
creditor of an obligation of result is exempted from providing such
evidence. In effect, all he has to do is to establish that the promised
result has not been obtained; the debtor can only obtain release from his
responsibility by establishing that the non-execution is due to
circumstances beyond his control which cannot be attributed to him but to
force majeure. The force majeure represents a foreign event which is both
unforeseeable and uncontrollable which is at the root of an injury [FN24].
--------------------------------------------------------------------------------
[FN24] Aubert Jean-luc, Introduction to the Law and Fundamental Themes of
Civil Law, Paris, Armand Colin, 1995 N°244 P.252
--------------------------------------------------------------------------------
99. Generally, in international law, the notion of obligation of diligence
and that of result emanate from the interpretation of Articles 20 and 21 of
the draft articles of the International Law Commission (ILC) pertaining to
the responsibilities of States. It must be noted that the comments from
these two articles were adopted by the ILC which caused the latter to make a
distinction between the violation of international obligations referred to
as "behaviour or "diligence and the violation of obligations otherwise
called " result" [FN25]
--------------------------------------------------------------------------------
[FN25] Yearbook of the International Law Commission, 1977, Vol II, Part 2,
page 12 onwards
--------------------------------------------------------------------------------
100. Under Article 20 of the draft Articles of the ILC entitled "Violation
of an international obligation requiring the adoption of a predetermined
specific behaviour when the behaviour of the said State is at variance with
the behaviour specified under that obligation".
101. In respect of Article 21 of the draft ILC Articles which is entitled "Violation of an international obligation requiring the attainment of a
specific result, the provision stipulates that:
1) "A State is in violation of an obligation requiting it to choose a
determined result if by the behaviour exhibited, the State does not ensure
the realisation of the expected result required from it under the terms of
that obligation.
2) If the behaviour of the State has created a situation that does not
conform to the result required from it by the international obligation, but
that it emerges from the obligation that this result or an equivalent result
can all the same be achieved by the subsequent behaviour of the State, then
a violation of the obligation occurs only when the State also fails by its
subsequent behaviour to achieve the result expected from her by that
obligation."
102. Thus, if the obligation of diligence requires that the State adopts
specific behaviours or actions to attain specific results, then under
obligation of result, the State enjoys the freedom of choice and action to
achieve the result required by that obligation."
103. Consequently, in the case Coloza vs Italy case, the European Court of
Human Rights declared and rendered judgement that - the contracting States
(parties) enjoy very wide discretion in terms of the calculation of the
choices and means to ensure that their legal systems are in keeping with the
provisions of Article 6 paragraph 1 (Art 6-1) in this field. The task of the
Court is not to indicate to the States these means, but to determine if the
result required by the Convention had been achieved.
--------------------------------------------------------------------------------
[FN26] Request No. 9024/80, CEDH, (1985) Série A, vol. 89
--------------------------------------------------------------------------------
104. Similarly, in the De Cubber vs Belgium [FN27], the European Court of
Human Rights observed that its task was to determine if the contracting
States achieved the result required by the European Convention and that its
task was not to point out specifically the means used to arrive at that
result.
--------------------------------------------------------------------------------
[FN27]
--------------------------------------------------------------------------------
105. Moreover, in the judgement pronounced on January 19, 2009 in the case
relating to the request for interpretation of the judgement of March 31,
2004, in the Avena case and other Mexican citizens (Mexico vs the United
States of America, the International Court of Justice which had been seized
by Mexico for the interpretation of paragraph 153 of the aforementioned
judgement as imposing on the United States of America an obligation of
result, maintained that
"It is true that the obligation enunciated in this paragraph is an
obligation of result which should manifestly be enforced unconditionally...
[FN28]"
--------------------------------------------------------------------------------
[FN28]
--------------------------------------------------------------------------------
106. Thus, the question that arises generally is to appreciate, on the one
hand, the ultimate purpose or objective of the rights prescribed by the
African Charter on Human and People's Rights and on the other hand, whether
yes or no the obligation prescribed in Article 1 of the Charter seeks to
attain a purpose, an objective or to achieve a result through the provisions
contained therein.
107. In the view of the Commission, the distinction between the obligation
of diligence and that of result should not make one lose sight of the fact
that , all obligations contained in a Treaty, Convention or a Charter seek
to attain an objective, a purpose or a result. The Governments of the States
Parties are linked to the people living on their territory by a social
contract consisting of ensuring the security and guaranteeing the
fundamental rights, including the right to life and respect for the physical
and material integrity of the citizens. Where the rights, responsibilities
and freedoms recognized by the States Parties to the Charter can hardly pose
major problems, since these regulations are outlined in the Articles 2 to 29
of the Charter and their recognition emanates from the will of the States
themselves to ratify the Charter, nonetheless this recognition ensues from
the commitment made by these States to take tangible measures capable of
implementing the provisions prescribed by the Charter.
108. It is also important to clarify that the signature, acceptance and
ratification by the States of the provisions contained in the Charter, the
preparation or the adoption of legal human rights instruments only
constitute, in themselves, the beginning of the indispensable exercise of
promotion, protection and the reparation of human and peoples' rights. The
practical implementation of these legal instruments through the State
Institutions endowed with creditor, material and human resources, is also of
considerable importance. It is not enough to make do with taking measures,
these measures should also be accompanied with institutions that produce
tangible results. Furthermore, the Periodic Report imposed on the States
Parties in the context of Article 62 of the African Charter is part of the
procedure placed at the disposal of the African Commission to verify the
results obtained by the States regarding their commitment as outlined in
Article 1 of the said Charter.
109. Where it is true that the laws guaranteeing the rights and freedoms,
those criminalizing the given facts and providing for penalties against the
perpetrators of the said facts, as well as the State institutions which
implement these instruments use the resources at the disposal of the
citizens, it is also true that the decisions of the Courts and Tribunals
made in relation to the violations of these rights and the results of the
execution of the said decisions, contribute to restoring the rights of the
victims.
110. It follows from the above that Article 1 of the African Charter imposes
on the States Parties the obligation of using the necessary diligence to
implement the provisions prescribed by the Charter since the said diligence
has to evolve in relation to the time, space and circumstances, and has to
be followed by practical action on the ground in order to produce concrete
results. Thus, in its decision on Communication 74/92, the Commission said
that the Governments have the responsibility of protecting their citizens
not only through appropriate legislation and its effective enforcement but
also by protecting them against injurious acts which can be perpetrated by
third parties.
111. In fact, in the Commission's view, it is an obligation of RESULT that
Article 1 of the African Charter imposes on the States Parties. In effect,
each State has the obligation of guaranteeing the protection of the human
rights written in the Charter by adopting not only the means that the
Charter itself prescribes, in particular "all the necessary legislative
measures for this purpose but in addition measures of their choice that the
Charter called for by Article 1 and it therefore defined as one of result.
112. In accordance with its traditional commitment to protect the rights
guaranteed by the Charter, the State Party is obliged to ensure the
effective protection of human rights through out its territory. If this
obligation were that of an obligation of diligence the guaranteeing of human
rights would be the object of legal insecurity liable to release the State
Parties to the human rights protection instruments from any responsibility
of effective protection. It is in taking into account the compelling nature
of the protection of human rights that the human rights instruments set up
control institutions to ensure that the obligations ensuing from these
instruments are effectively implemented.
ANALYSIS OF THE COMMISSION WITH REGARD TO THE APPLICATION OF THE CASE IN
POINT
113. The legal nature of the obligations outlined in the provisions of
Article 1 of the Charter having been clarified, the specific question raised
with regard to its application to the case in point is that of knowing
whether the State of Cameroon was held by an obligation of diligence or an
obligation of result and whether the circumstance of force majeure cited by
the Respondent State is fulfilled in order to release the said State from
its obligation.
114. The Complainant contends that the State of Cameroon is bound by an
obligation of result and consequently is compelled to pay compensation for
the injuries suffered by the victims of the 1992 post-electoral events. The
State of Cameroon on her part maintains that it was bound by an obligation
of diligence as the 1992 events were of an insurrectional character. They
are akin to a situation of force majeure which the means employed by the
Government could not curtail. Consequently, the State of Cameroon avers that
it is free from any liability.
115. Pertaining to the case in point, considering the definition of the
legal nature indicated above, the Commission is of the view that the
obligations which ensue from Article 1 impose on the State of Cameroon the
need to implement all the measures required to produce the result of
protecting the individuals living on its territory. The use of the legal,
technical, human and material resources that the State of Cameroon claims to
have did not produce the expected result, namely that of guaranteeing the
protection of human rights. For the post electoral events which gave rise to
serious violations against the lives and property of the citizens would not
have taken place if the State which, through its investigations knew or
should have known about the planning of the said events, had taken the
necessary measures to prevent their happening.
116. The events in question having taken place the day after the
announcement of the results of the presidential elections, the Authorities
only acted four days after the exploding of the hostilities, which promoted
the magnitude of the violence and the serious violations of human rights and
destruction of property. It has been established that, under the
circumstances, the Respondent State has failed in its obligation to protect,
considering its lack of diligence and allowed the destruction of lives and
property. Furthermore, by invoking the circumstances of force majeure to
free itself from its responsibility, the State of Cameroon has implicitly
shown that it had been held by an obligation of result in this particular
case.
117. In principle, the circumstance of force majeure which assumes the
characters of unpredictability, irresistibility and imputability can be
invoked if the conditions had been fulfilled at the time of the events. In
this case, the said characters of unpredictability, irresistibility and
imputability required by a situation of force majeure and which the
Respondent Party is invoking cannot be applicable for, according to the
Respondent State itself, disturbances of public law and order existed in the
country since May 1990 and specifically during the holding of the elections,
and that moreover, the threats[FN24] of the 11, 18, 19 and 22nd October 1992
from the SDF, the Opposition Party and qualified by the Respondent State as
" an atmosphere of political intimidation and counter intimidation... ",
sufficiently prove the existence of early warning signs of the events in
question and consequently the predictability of the events.
--------------------------------------------------------------------------------
[FN24] Cf. Cameroun Tribune No. 5231 of 7 October 1992 p. 8 and 16, Cameroun
Tribune No. 5246 of 26 October 1992 p.4
--------------------------------------------------------------------------------
118. What is more, the Respondent State had manifested its control of the
territory and therefore its ability to stand up to the perpetrators of the
post electoral events, by instituting a state of siege a few days after the
events in question; had this state of siege been instituted earlier, the
events in question would have at least been reduced in scope if not entirely
quelled.
119. The obligations prescribed by the African Charter in its Article 1
impose on the States Parties (the State of Cameroon included) the need to
put in place all measures liable to produce the result of preventing all
violations of the African Charter over their entire territory. These are not
only violations which could emanate from the State machinery itself or those
from non State actors. The implementation of the legal , technical, human
and material means alluded to by the State of Cameroon should have, in
principle, produced the result of preventing the events in question since
the said events were foreseeable; the said means should at least, have
served to bring the perpetrators to justice, have them judged and sentenced
in accordance with the law and restore the rights of the victims or their
dependents after the said events had taken place. This is an à posteriori
result which should have produced results considering the means chosen by
the State of Cameroon itself
120. Each State Party to the African Charter is responsible for the security
of the people and property living everywhere on its territory. Having a
character of erga omnes[FN25], such an obligation constitutes part of those
which cover a particular interest for all the States Parties to the African
Charter and for the entire international Community since it is recognized in
both domestic and international law. Therefore, as underscored by the
Respondent State, if it cannot be directly responsible for the events, the
State of Cameroon cannot also extricate itself from its responsibility for
the actions of others which are a result of its failure to conform to the
provisions prescribed by Article 1 of the African Charter and therefore of
its obligation of RESULT.
--------------------------------------------------------------------------------
[FN25] Cf. Barcelona Traction Judgement, CIJ, 5 Feb. 1970
--------------------------------------------------------------------------------
121. Consequently, in having failed to prevent the 1992 post electoral
violence even though there were early warning signs (evidently) of the
events in question and not having obtained the intended results mentioned
above, the State of Cameroon has failed in its obligation of Result imposed
on it by Article 1 of the African Charter, and that in consequence the
Respondent State is hardly in a position to invoke the circumstances of
force majeure. It therefore follows that the victims and their dependents
should have their rights restored in full.
ANALYSIS OF THE COMMISSION WITH REGARD TO THE VIOLATION OF ARTICLES 2, 4, 7
AND 14 OF THE AFRICAN CHARTER
122. By invoking the violation of Articles 2 and 7 of the Charter, the
Complainants wish to contest the freezing of the petition by the victims
pertaining to responsibility of the issue which has been pending before the
Administrative Chamber of the Supreme Court since 1998, in order to obtain
full compensation of the corporal and material damages suffered. For the
Complainants this procedure constitutes a violation of the right to an
effective remedy.
123. Article 2 stipulates that:
"Every individual has the right to enjoy the rights and freedoms recognized
and guaranteed under the present Charter without distinction of any kind,
such as race, ethnic group, colour, sex, language, religion, political or
any other opinion, national or social origin, fortune, birth or other
status".
124. It appears that complainants drew the infringement of the enjoyment of
their rights and freedoms hence the violation of article 2 of the Charter,
from the fact that the respondent State failed to take adequate measures to
prevent the violence which led to the physical harm and material damage
suffered by the victims.
125. The African Commission is of the view that there is no doubt in the
present case that the victims of the post elections violence suffered from
damage which infringed the enjoyment of their rights. Respondent State did
not debate the fact of harm being caused to the victims, but rather argued
that the post election events are act of God and therefore it is beyond the
capability of the State of Cameroun which should not be held liable
126. The African Commission is therefore in the position to hold that the
provisions of article 2 of the African Charter have been violated because
the victims were enjoying their rights and freedoms when they were attacked.
Such attacks which infringed their rights and freedoms were made possible
because the State of Cameroun failed to fulfill its obligation to protect
which incumbent upon the State.
127. Article 7 stipulates:
"Every individual shall have the right to have his cause heard. This right
comprises:
[...] (d) the right to be tried within a reasonable time by an impartial
Court or Tribunal"
128. The term "remedy" refers to "any procedure by means of which one
submits a constitutive act of an alleged violation of the [Charter] to an
institution qualified in this respect, for the purpose of obtaining, as the
case may be, a cessation of the act, its annulment, its amendment or
compensation [FN26]. Is effective the remedy which not only exists de facto,
but also is accessible to the party concerned and is appropriate. The
petition should be appropriate so as to allow the denunciation of the
alleged violations and the payment of appropriate compensation.
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[FN26] Pettiti Louis-Edmond, Decaux Emmanuel and Imbert Pierre-Henri, the
European Human Rights Convention, commentary Article by Article,
Paris,Economica,1999 P.467-468
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129. However, the effectiveness of the remedy is not linked to the expected
outcomes. Nonetheless, the effects in question should be of a nature to
remedy the alleged violation, otherwise the effective character of the
remedy disappears. Finally, there is need to specify that the right to
effective remedy sanctions an obligation of diligence, for what is
guaranteed is the existence of an appropriate remedy and not its favourable
result, but an unfavourable jurisprudence renders the remedy useless.
130. Considering all of the foregoing, the Commission is of the view that
the Complainants did not benefit from the right to an effective remedy, for
if it was established that the remedy was available and assessable, it
should be noted that it had not been appropriate since the fact that it was
frozen made it impossible for the Court to make a ruling. The petition
remained pending for more than 5 years before the Complainants decided to
seize the African Commission in 2003.
131. With regard to Articles 4 and 14, the Complainants highlight the
violations to the physical integrity and to the material damages suffered by
the victims.
132. Under the terms of Article 4,
"Human beings are inviolable. Every human being shall be entitled to respect
for his life and the integrity of his person. No one may be arbitrarily
deprived of this right".
133. Article 14 provides that
"The right to property shall be guaranteed. It may only be encroached upon
in the interest of public need or in the general interest of the community
and in accordance with the provisions of appropriate laws."
134. In the light of their arguments, it would appear that the Parties seem
to agree on the effectiveness of the violations to the lives of the victims
and the considerable material damages which resulted from the violence of
the post-electoral events. The Government has shown this agreement by
setting up a Rescue Committee for the Victims, in conformity with the Law of
26 June 1964 which authorizes the State to provide "assistance within the
limits of the amounts provided for this purpose or constant assistance in
any other form". The said Committee had evaluated the amount of damages
–interest at five billion, eight hundred and eight million, three hundred
and ten thousand, and eight hundred and eighty francs CFA (5 808 310 880).
From all appearances, the victims had not been entirely unprejudiced.
135. The Respondent State observed in its arguments that it was not at all a
compensation on its part but a show of solidarity, because it is not
directly responsible for the prejudices suffered by the victims, and that it
was an act by private individuals that the victims could bring to justice so
as to have satisfaction with respect to their grievances.
136. The Commission is of the view that the responsibility of the Government
has been established. It therefore follows that the Government should pay
compensation for the prejudices suffered. Despite the fact that the
Government is denying it, it understood that it could not remain insensitive
to its obligation to pay fair compensation to the victims, for this reason
it set up a Committee to assess the damages suffered by the Complainants.
DECISION OF THE COMMISSION
137. Based on the foregoing reasons, the African Commission Decides that:
i. The provisions of Article 1 of the African Charter impose on States
Parties an obligation of Result;
ii. The State of Cameroon failed in its general obligation as set forth and
sanctioned under Article 1 of the African Charter and consequently the State
of Cameroon has an obligation of RESULT;
iii. Due to its obvious lack of diligence, the State of Cameroon is held
responsible for the violation of Articles 2, 4, and 14 of the African
Charter; and therefore, the State of Cameroon is responsible for the acts of
violence which took place on its territory which gave rise to human rights
violations, whether these acts had been committed by the State of Cameroon
itself or by people other20; than the State;
iv. The State of Cameroon had moreover violated the provisions of Article 7
of the same Charter;
138. Recommends to the State of Cameroon to:
i. Take all the necessary measures for guaranteeing the effective protection
of human rights at all times, and everywhere both in times of peace and in
times of war;
ii. Pursue its commitment to give fair and equitable compensation to the
victims and without delay, to pay fair and equitable compensation for the
prejudices suffered by the victims or their beneficiaries;
iii. That the amount of compensation for the damages and interest be fixed
in accordance with applicable laws;
Done in Banjul, The Gambia at the 46th Ordinary Session of the African
Commission on Human and Peoples’ Rights held from 11 – 25 November 2009. |
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