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DECISION ON COMPLAINANTS' REQUEST FOR REVIEW
1. On 1 September 2004, the Secretariat of the African Commission received
from the Complainants, a request to review the Commission's decision on the
merits of Communication 242/2001 - Interights, Institute for Human Rights
and Development in Africa, and Association Mauritanienne des Droits de
l'Homme/Islamic Republic of Mauritania, adopted at the African Commission's
35th Ordinary Session, held in Banjul, The Gambia in May 2006.
2. The request was considered at the 36th Ordinary Session of the Commission
held in Dakar, Senegal, from 23 November - 7 December 2006, and the
Commission decided to bring the request to the attention of the Respondent
State for the latter's comments. In spite of numerous reminders; the
Commission has not received any response from the Respondent State. The
Commission will therefore proceed to take a decision on the Complainants' request, in spite of the fact that the State has not responded.
3. In the request, the Complainants raised two issues: the first issue
relates to the decision of the African Commission being infra petita, and
the second issue relates to the fact that the decision of the Commission 'did not represent the required guarantees of impartiality'.
4. Regarding the first issue, the Complainants argue that having found the
Respondent State in violation of certain provisions of the African Charter,
the African Commission failed to address itself to the prayers of the
Complainants, so as to restore the victim to his rights. According to the
Complainants, this failure to pronounce on the prayers renders the
Commission's decision infra petita.
5. On the question of impartiality, the Complainants submit that the
principles of natural justice were not respected. They claim that one of the
Members of the African Commission, a national of the Respondent State, took
part in the deliberations that arrived at the final decision on the
Communication. According to the Complainants, this is against Rule 109 of
the Rules of Procedures of the African Commission, which forbids Members of
the Commission from participating in the deliberation of a Communication
when they have a "personal interest" or have "participated in whatever
capacity in the adoption of whatever decision relating to the case referred
to by the Communication".
6. To consider this request, the African Commission has to address two
preliminary issues:
a. Whether or not it is competent to review its own decision; and
b. Under what circumstances its decision should be reviewed?
ON THE COMPETENCE OF THE COMMISSION
7. Neither the African Charter nor the Commission's own Rules of Procedure
provide for a review of the African Commission's decision on the merits.
Provision is made within the Commission's Rules of Procedure only for the
review of a decision on admissibility, and even then, only in a situation
where a Communication has been declared inadmissible.[FN1]
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[FN1] See Rule 118(2).
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8. This notwithstanding, the African Commission can draw inspiration from
the practices of similar regional and international bodies to determine
whether it can review its own decision. In Purohit & Moore v The Gambia[FN2]
the Commission was confronted with a similar request and it invoked Articles
60 and 61 of the African Charter, and adopted the principles and practices
of other international tribunals with similar mandate. In that
Communication, the Commission was persuaded by the practices of the
International Court of Justice (ICJ), whereby Article 61(1) of the ICJ
Statute requires that, 'an application for revision of a judgment may be
made only when it is based upon the discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming review, always provided
that such ignorance was not due to negligence'.[FN3]
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[FN2] Communication 241/2001.
[FN3] Statute of the International Court of Justice. See www.icj-cij.org/documents
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9. The African Commission further adopts the ICJ's reasoning that an
application for revision must be made within a certain period of time.[FN4]
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[FN4] It should be noted that the ICJ has held that the application should
be submitted 'at latest within six months of the discovery of the new fact' and
'no application for revision may be made after the lapse of ten years
from the date of the judgment.' See ICJ Statute - Article 61 (4 & 5).
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10. Therefore, like all tribunals, domestic and international, judicial and
quasi-judicial, the African Commission has the competence to review its
decision on the merits, especially where it is evident that the application
for review has introduced a new or compelling issue which, had the
Commission had knowledge of, would have impacted on the decision; or where
the Commission has inadvertently failed to take into account certain facts
during the consideration of the case.
11. In other words, the Commission can review its own decision when it is
apparent that the application introduces a new or compelling element, the
failure to consider which would be an affront to fairness, justice and good
conscience.
12. After determining that it is competent to review its own decision and
the circumstances under which it can review its own decisions, the African
Commission will now examine whether the application of the Complainants meet
the African Commission's requirements for a review of its decision, that is,
whether the application introduces a new or compelling element.
13. In the present Communication, the Complainants have seized the
Commission on two main issues:
(a) allegation that the decision of the Commission was infra petita; and
(b) allegation of partiality.
14. Can the Commission consider these two issues to be new or compelling to
warrant a review of its decision?
15. While the two issues raised by the Complainants do not raise any new
element relating to the substance of the Communication that they submitted,
they certainly are compelling enough to warrant a review.
ON THE QUESTION THAT THE DECISION IS INFRA PETITA
16. The Complainants in their application for review are not raising new
facts. They have also not introduced evidence that was not brought to the
attention of the African Commission during the consideration of the
Communication on the merits. Rather they are asking the Commission to
pronounce itself on each of the prayers they made when the Communication was
submitted to the Commission.
17. The Complainants, in the Communication, had requested the Commission
that should the latter find the State in violation of any of the provisions
of the African Charter, it should:
c. urge the State to restore all rights of the UFD/EN and instruct it to
restore all confiscated properties;
d. request the Mauritanian authorities to harmonise national legislation in
accordance with the relevant provisions of the African Charter pertaining to
fair trial and freedom of association and expression;
e. ask the Mauritanian government to take necessary measures to ensure that
such violations against political parties not be repeated;
f. call on the State to put an end to such infractions; and
g. request the Mauritanian government to inform the Commission of any
measures it takes to address the breaches elaborated in the Communication.
18. In its decision, the African Commission held with respect to the
allegations made against the State that "the dissolution of UFD/Ere Nouvelle
political party by the Respondent State was not proportionate to the nature
of the breaches and offences committed by the political party and is
therefore in violation of the provisions of Article 10(1) of the African
Charter". The Commission did not pronounce itself on any of the prayers made
by the Complainants.
19. Does the fact that the Commission did not address the prayers of the
Complainants make its decision infra petita? Put differently, could the
Commission's decision not to pronounce on the prayers made by the
Complainants be considered infra petita?
WHAT IS AN INFRA PETITA DECISION?
20. The term infra petita is a Latin expression sometimes used to describe a
situation where the court has failed to pronounce itself on one of the main
claims of a petition. In terms of Article 190 (2)(c) of the Swiss Federal
Statute on Private International Law (PILA), an arbitral award or remedy can
be set aside if the tribunal has adjudicated beyond the relief sought
(ultra-petita) or granted relief different than what was sought (extra-petita)
or failed to adjudicate certain claims raised by the complainant (infra-petita).
21. To fully appreciate whether the Commission's decision was infra petita,
there is need to differentiate between an 'allegation' or 'claim' and a 'prayer' or
'remedy'.
22. An allegation is a claim by a party in a pleading, which the party
intends to prove in a court of law. According to the Black's Law Dictionary,
an allegation is an assertion, claim, declaration or statement of a party to
an action, made in a pleading, setting out what he expects to prove.
Allegations thus remain assertions without proof, until they can be proved.
Generally, in a civil complaint, as is the present case, the plaintiff (in
this case, the Complainants) must carry the burden of proof and the burden
of persuasion in order to prove their allegation.
23. In the present Communication, the Complainants allege or claim that the
Respondent State has violated certain provisions of the Charter, which
allegation/claim they want to prove before the Commission. Simply put, an
allegation or a claim is a legal action to obtain a remedy, or the
enforcement of a right against another party. It is a legal statement made
to alert the accused of the legal implications.
24. A remedy on the other hand is an action taken by a court of law to
enforce a right, impose a penalty, or make some other court order in order
to resolve a dispute. According to the Black's Law Dictionary, a remedy is
the means by which a right is enforced or the violation of a right is
prevented, redressed or compensated.
25. In the Communication under consideration, the Complainants allege/claim
that the Respondent State has violated Articles 1, 2, 7(1), 9(1), 10(1),
13(1) and 14 of the African Charter, dealing with the State's obligations
under the Charter, freedom from discrimination, the right to have one's
cause heard, freedom of expression, freedom of association, the right to
participate in government and the right to property. These, in the opinion
of the Commission, are the Complainants' allegations/claims put before the
Commission, which the Complainants want to prove had been violated by the
Respondent State and which they required the Commission to pronounce itself
on, based on the interpretation of the African Charter.
26. Apart from making these allegations, the Complainants also called upon
the Commission that, should it find that they (the Complainants) have proven
the allegations, it should adopt certain measures to reinstate the victim to
his rights, including, urging the Respondent State to restore all rights of
the UFD/EN and instruct it to restore all confiscated properties; requesting
the Mauritanian authorities to harmonise national legislation in accordance
with the relevant provisions of the African Charter pertaining to fair trial
and freedom of association and expression; requesting the Mauritanian
government to take necessary measures to ensure that such violation against
political parties not repeat itself; call on the State to put an end to
further violations; and requests the Mauritanian government to inform the
Commission of measures it has taken to address the breaches elaborated in
the Communication. In the opinion of the Commission, the above requests
represent the remedies sought by the Complainants.
27. There is thus a clear distinction between an allegation/claim and a
remedy/prayer. In the present Communication, the Complainants are not
disputing the fact that the Commission addressed the allegations. They are
rather arguing that the Commission, having considered the allegations and
found a violation, did not provide them with the remedies they requested.
28. Naturally, when a petitioner brings a complaint before a tribunal,
he/she expects the tribunal to make a determination as to his/her rights
vis-à-vis the other party (in this case the State). There is a legitimate
expectation on the part of the petitioner that where the tribunal (in this
case, the African Commission) finds that a State has violated the rights of
the petitioner, he/she would be provided with remedies so as to restore
his/her rights; that the State would be cautioned to take measures to ensure
that the act that resulted in the violation does not repeat itself; and the
tribunal could make any other decision it deems necessary in the particular
circumstance. These are legitimate expectations from the Complainants.
29. The right to a remedy for a violation has been firmly established under
international law. This principle is provided in Article 63 (1) of the
Inter-American Convention on Human Rights which provides that "…if the
[Inter-American Court] finds that there has been a violation of a right or
freedom protected by the Convention, the Court shall rule that the injured
party be ensured enjoyment of his right or freedom that was violated. It
shall also rule, if appropriate, that the consequences of the measure or
situation that constituted the breach of such right or freedom be remedied
and that fair compensation be paid to the injured party". In applying this
provision, the Inter-American Court held in Yakye Axa v Paraguay[FN5] that,
"any violation of an international obligation that has caused damage entails
the duty to provide appropriate reparations".
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[FN5] Case of Yakye Axa Indigenous Community v Paraguay, Judgment of 17 June
2005, Series C No. 125. 5. I/A Court H.R.
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30. In the present Communication, the Commission found that "the dissolution
of UFD/Ere nouvelle political party by the Respondent State was not
proportional to the nature of the breaches and offences committed by the
political party and is therefore in violation of the provisions of Article
10(1) of the African Charter". It made no further determination, either by
way of restoring the victim to his rights or proposing what the State should
do to prevent a recurrence of the violation.
31. Does the fact that the Commission, after concluding that there was a
violation of the Charter but failing to provide the remedies requested by
the Complainants, renders its decision infra petita?
32. To answer this question, the Commission will have to analyse the
decision to examine the claims made by the Complainants and the extent to
which the Commission addressed them.
33. A tribunal will not be considered to have omitted to pronounce itself on
a claim if it can be deduced from the judgment that the claim was implicitly
rejected, or on the contrary, that the tribunal implicitly admitted it. It
is usually the case for example, where a petition contains main, as well as,
subsidiary claims.
34. In the present Communication, the allegation/claim of the Complainants
before the Commission is clear - that by its action, the Respondent State
has violated Articles 1, 2, 7(1), 9(2), 10(1), 13(1) and 14 of the Charter.
These are mere allegations/claims which the Complainants have to prove
before the Commission. At the same time, the remedies the Complainants
requested were also clear. (See para 17 above).
35. After analyzing the submissions made by both the Complainants and the
State, the Commission held with respect of the Complainants
allegations/claims that Article 7(1) as alleged has not been violated (see
Commissioner's arguments from paras 43 - 47 of the decision); that Articles
9 (2), and 13(1) as alleged have equally not been violated; but that Article
10(1) has indeed been violated as alleged (see paras 76 - 85 of the
decision).
36. In its analysis of the Complainants allegations/claims, the Commission
failed to address three allegations/claims, that is, the alleged violation
of Articles 1, 2 and 14, dealing with the state obligations under the
Charter, non-discrimination and the right to property, respectively.
37. While it is important for the Commission to provide remedies to a victim
whenever it finds that the State has infringed the victim's right, failing
to do so does not render the Commission's decision infra petita, if it can
be deduced from the decision that all the allegations mentioned in the
Communication have been addressed by the Commission.
38. From the analysis above, it is evident that that the Commission failed
to pronounce itself on all the allegations made by the Complainants, in
particular, it failed to pronounce itself on the alleged violation of
Articles 1, 2 and 14, the latter being a principal allegation. To the extent
that the Commission did not address all the allegations, the decision of the
Commission is infra petita.
39. Having established that the decision is infra petita, can the Commission
supplement its decision?
40. It is perfectly legal for a tribunal that has forgotten to decide on a
claim (infra petita) to supplement its decision without affecting the res
judicata character of the other claims decided upon. This procedure excludes
recourse to a higher court and can be undertaken suo moto or on the request
of one of the parties.
41. The Commission will therefore proceed to pronounce on the alleged
violation of Articles 1, 2 and 14 of the Charter.
ALLEGED VIOLATION OF ARTICLE 2
42. The Complainants allege that there the Respondent State has violated
Article 2 of the African Charter. Article 2 states 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 status".
43. The Complainants do not demonstrate how the Respondent State
discriminated against the victim, and as such the Commission cannot hold
that the State violated Article 2 of the Charter.
ALLEGED VIOLATION OF ARTICLE 14
44. The Complainants alleged that the State confiscated the property of the
political Party in violation of Article 14 of the Charter which provides
that '[t]he 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'.
45. The right to property is a traditional fundamental right in democratic
and liberal societies. It is guaranteed in international human rights
instruments as well as national constitutions, and has been established by
the jurisprudence of the African Commission.[FN6] The role of the State is
to respect and protect this right against any form of encroachment, and to
regulate the exercise of this right in order for it to be accessible to
everyone, taking public interest into due consideration.
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[FN6] See Communications 71/92 - Rencontre Africaine pour la Défense des
Droits de l'Homme/Zambia, Communication 292/2004 - Institute for Human
Rights and Development in Africa/Republic of Angola, and Communication
159/1996 - Union Inter Africaine des Droits de l'Homme, Fédération
Internationale des Ligues des Droits de l'Homme and Others v. Angola.
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46. The right to property encompasses two main principles. The first one is
of a general nature. It provides for the principle of ownership and peaceful
enjoyment of property. The second principle provides for the possibility,
and conditions of deprivation of the right to property. Article 14 of the
Charter recognises that States are in certain circumstances entitled, among
other things, to control the use of property in accordance with the public
or general interest, by enforcing such laws as they deem necessary for the
purpose.
47. However, in the situation described by the present Communication, the
State has not demonstrated that the property of the Complainant was
confiscated for public interest or in accordance with any established law.
The confiscation was done arbitrarily in a manner that violates Article 14
of the African Charter.
ALLEGED VIOLATION OF ARTICLE 1
48. The African Commission concludes further that Article 1 of the African
Charter imposes a general obligation on all States Parties to recognise the
rights enshrined therein, and requires them to adopt measures to give effect
to those rights. As such any finding of violation of those rights
constitutes a violation of Article 1.
ON THE QUESTION OF PARTIALITY
49. On the question relating to the participation of a Member of the
Commission who is a national of the Respondent State, the Commission would
like to reiterate that its Rule 109(1) requires that no Member shall take
part in the consideration of a Communication:
h. If s/he has any personal interest in the case, or
i. If he/she has participated, in any capacity in the adoption of any
decision relating to the case which is the subject of the Communication'.
50. Rule 109 (2) further empowers the Commission to rule on the
applicability of Rule 109(1) where it is called to do so.
51. In the opinion of the African Commission 'take part' under Rule 109 (1)
of its Rules of Procedure means contributing in the deliberations of a
subject matter. While it is recommended that a Commissioner who recuses
him/herself leaves the hall during deliberations, a Commissioner who recuses
him/herself but chooses to sit in the hall cannot be considered to have
taken part in the deliberations. In terms of Article 31, the members are
independent experts of the highest reputation, known for their high
morality, integrity, impartiality…and serve in their personal capacity. It
is thus expected that Members of the Commission live up to the standards
befitting their position.
52. It is not necessarily the case that a Member of the Commission from a
country against which a complaint has been lodged would have an interest in
that particular case. However, it is important to take into consideration
the public perception or adopt the principle of a reasonable person in the
consideration of a Communication. Would the public or a reasonable man
believe that a member of the Commission would 'take part' in the
deliberation of a Communication concerning his country and take a neutral
decision?
53. The African Commission adheres strictly to the natural justice principle
of nemo judex in sua causa: "no man is permitted to be a judge in his own
cause". This principle is very critical in the administration of justice,
for justice must not only be done, but must be seen to be done.
54. The use of the word 'shall' in Rule 109 implies that the Commission
would not compromise in the implementation of this principle. In the
Complainants' submissions, they quoted paragraphs 2 and 17 of the Final
Communiqué of the 35th Ordinary Session of the African Commission to
buttress their argument that a Commissioner, a national from the Respondent
State, took part during deliberations of the Communication in question.
55. In terms of Rule 106 of the Commission's Rules of Procedure,
Communications are examined in private session and the Complainants could
not have been privy to what transpired during the examination of the
Communication in question.
56. The African Commission's records indicate that the Commissioner in
question did not take part in the deliberations of the present
Communication.
57. The burden of proving that he did rests with the Complainants. Under
such circumstances, and relying on the presumption of regularity, it is
presumed that the Commission complied with its procedures under Rule 109.
58. In terms of the presumption of regularity, there is a favourable
presumption that all what the Commission does in the normal course of its
duty is regular and valid. This evidentiary principle which has its
historical roots in the presumption against misconduct of public officials,
presupposes that every individual in his or her private and official
capacity, does his or her duty, until the contrary is proved. In other
words, it will be presumed that government officials (in this case, the
Members of the Commission) have discharged their duty rightly and in good
faith, unless the circumstances of the case provide adequate proof to the
contrary
59. To overturn this presumption, the party that seeks to challenge the
presumption, and in this case, alleges that the Commission did not comply
with its Rules, bears the burden of proof.
60. The Commission noted in this instance that the fact that the name of the
Commissioner, a national of the Respondent State, appeared in the Final
Communiqué of the Commission does not signify that the latter took part in
the proceedings regarding the Communication in question, in violation of
Rule 109. The Complainants therefore have the burden to prove that the
spirit and object of 109 have been breached. The only evidence that the
Complainants adduced was the reference to the 2nd paragraph of the Final
Communiqué of the 35th Ordinary session of the Commission which indicated
that the Commissioner was one of the Members that attended that session.
61. In terms of the Commission's practice, the Final Communiqué lists the
names of the Members who attend a particular session. The Communiqué however
does not indicate which Members took part in the deliberations of which any
particular agenda item. In this case, the name of the Commissioner in
question, like the names of all the other Members who attended the session,
was indicated in the Final Communiqué of the session. This does not however
mean that he took part in the deliberations with respect to the
Communication in question.
62. Admittedly, the Complainants could have been misled by the Final
Communiqué to assume that all the Members who attended the session also took
part in deliberations on all the agenda items, especially as the Final
Communiqué did not indicate whether or not any member recused themselves on
any particular item.
63. The African Commission is very strict in its application of its Rules of
Procedure, and in particular, Rules 109, and with respect to the said Rule,
its application is not limited to the consideration of Communications, but
extends to all items considered by the Commission.
64. The Commission is therefore of the view that the Complainants have not
fully discharged their burden of proof, and to state that the Commissioner,
a national of the Respondent State did not take part in the consideration of
the Communication in question, and his participation at the session is not
proof that he participated in the deliberation related to this
Communication.
DECISION OF THE AFRICAN COMMISSION
65. In view of the above, the Commission finds that:
i. the decision on the merits of Communication Communication 242/2001 - Interights, Institute for Human Rights and Development in Africa, and
Association Mauritanienne des Droits de l'Homme/Islamic Republic of
Mauritania is infra petita, to the extent that it did not address itself to
the allegation of violations of Articles 1, 2 and 14 of the African Charter;
ii. the Respondent State did not violate Article 2 of the African Charter;
iii. the Respondent State violated Articles 1 and 14 of the African Charter;
iv. the Complainants have not discharged their burden of proof with respect
to the allegation of partiality, and relying on the presumption of
regularity, concludes that the Commission acted correctly and in good faith.
66. The African Commission recommends that:
i) the Respondent State should pay adequate compensation to the victim for
the loss suffered;
ii) the Respondent State should take steps to ensure that its law on freedom
of association, in particular the establishment and functioning of political
parties, is in conformity with the provisions of the Charter;
iii) the Respondent State should inform the African Commission on measures
adopted to implement these recommendations within 180 days of receipt of
this decision.
Adopted at the 8th Extraordinary Session of the African Commission on Human
and Peoples' Rights, Banjul, The Gambia. |
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