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1. The author of the
communication is Mr. Fongum Gorji-Dinka, a national of Cameroon, born on 22
June 1930, currently residing in the United Kingdom. He claims to be victim
of violations by Cameroon [FN1] of articles 1, paragraph 1; 7; 9 paragraphs
1 and 5; 10, paragraphs 1 and 2 (a); 12; 19; 24, paragraph 3; and 25 (b) of
the Covenant. He is represented by counsel. [FN2]
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[FN1] The Covenant and the Optional Protocol entered into force for the
State party on 27 September 1984.
[FN2] The communication was submitted by the author personally. However, by
letter dated 4 August 2004, Ms. Irene Schafer presented an instrument
executed by the author making her counsel of record.
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FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author is a former President of the Bar Association of Cameroon
(1976-1981), the Fon, or traditional ruler, of Widikum in Cameroon's
North-West province, and claims to be the head of the exile government of "Ambazonia".
His complaint is closely linked to events which occurred in British Southern
Cameroon in the context of decolonization.
2.2 After World War I, the League of Nations placed all former German
colonies under international administration. Under a League of Nations
mandate, Cameroon was partitioned between Great Britain and France. After
World War II, the British and French Cameroons became United Nations trust
territories, the British part being divided into the United Nations trust
territory of British Southern Cameroon ("Ambazonia") and the United Nations
trust territory of British Northern Cameroon. The "Ambas" were a federation
of sovereign but interdependent technocracies, each under a traditional
ruler called "Fon". In 1954, they were unified in a modern parliamentary
democracy, consisting of a House of Chiefs appointed from among the
traditional leaders, a House of Assembly elected by universal suffrage, and
a government led by a Prime Minister appointed and dismissed by the Queen of
England.
2.3 French Cameroon achieved independence in 1960 as the Republic of
Cameroon. While the largely Muslim British Northern Cameroon voted to join
Nigeria, the largely Christian British Southern Cameroon, in a United
Nations plebiscite held on 11 February 1961, voted in favour of joining a
union with the Republic of Cameroon, within which Ambazonia would preserve
its nationhood and a considerable degree of sovereignty. The United Kingdom
allegedly refused to implement the plebiscite, fearing that the Ambazonian
Prime Minister would come under communist influence and would nationalize
the Cameroon Development Cooperation (CDC), in which Britain had invested £
2 million. In exchange for a license to continue exploiting CDC, the United
Kingdom allegedly "sold" Ambazonia to the Republic of Cameroon which then
became the Federal Republic of Cameroon.
2.4 On 8 October 1981, the author was asked to secure bail for five Nigerian
missionaries accused of disseminating the teachings of a sect without a
government permit. At the police station, he was arrested and detained
together with the missionaries. A few months later, he was charged with the
offense of fabricating a fake permit for the sect to operate in Cameroon.
Although the trial judge found, on the facts, that the author had not been
in Cameroon when the offense was committed, he sentenced him to 12 months'
imprisonment. The author's appeal was delayed until after he had served his
prison term. Just before the hearing of his appeal, Parliament enacted
Amnesty Law 82/21, thereby expunging his conviction. The author subsequently
abandoned his appeal and filed for compensation for unlawful detention, but
he never received a reply from the authorities.
2.5 As a result of the "subjugation" of Ambazonians, whose human rights were
allegedly severely violated by members of the Franco-Cameroonian armed
forces as well as militia groups, riots broke out in 1983, prompting
Parliament to enact Restoration Law 84/01, which dissolved the union of the
two countries. The author then became head of the "Ambazonian Restoration
Council" and published several articles, which called on President Paul Biya
of the Republic of Cameroon to comply with the Restoration Law and to
withdraw from Ambazonia.
2.6 On 31 May 1985, the author was arrested and taken from Bamenda (Ambazonia)
to Yaoundé, where he was detained in a wet and dirty cell without a bed,
table or any sanitary facilities. He fell ill and was hospitalized. After
having received information on plans to transfer him to a mental hospital,
he escaped to the residence of the British Ambassador, who rejected his
asylum request and handed him over to the police. On 9 June 1985, the author
was re-detained at the headquarters of the Brigade mixte mobile (BMM), a
paramilitary police force, where he initially shared a cell with 20 murder
convicts.
2.7 Allegedly as a result of the physical and mental torture he was
subjected to during detention, the author suffered a stroke which paralyzed
his left side.
2.8 The author's detention reportedly provoked the so-called "Dinka riots",
whereupon schools closed for several weeks. On 11 November 1985, Parliament
adopted a resolution calling for a National Conference to address the
Ambazonian question. In response, President Biya accused the President of
Parliament of leading a "pro-Dinka" parliamentary revolt against him; he had
the author charged with high treason before a Military Tribunal, allegedly
asking for the death penalty. The prosecution's case collapsed in the
absence of any legal provision which would have criminalized the author's
call on President Biya to comply with the Restoration Law by withdrawing
from Ambazonia. On 3 February 1986, the author was acquitted of all charges
and released from detention.
2.9 President Biya's intention to appeal the judgment, after having ordered
the author's re-arrest, was frustrated because the law establishing the
Military Tribunal did not provide for the possibility of appeal in cases
involving high treason. The author was then placed under house arrest
between 7 February 1986 and 28 March 1988. In a letter dated 15 May 1987,
the Department of Political Affairs of the Ministry of Territorial
Administration advised the author that his behaviour during house arrest was
incompatible with his "probationary release" by the Military Tribunal, since
he continued to hold meetings at his palace, to attend customary court
sessions, to invoke his prerogatives as Fon, to contempt and disregard the
law enforcement and other authorities, and to continue the practice of the
illegal Olumba Olumba religion. On 25 March 1988, the Sub-Divisional Office
of the Batibo Momo Division informed the author that because of his
"judicial antecedent", his name had been removed from the register of
electors until such time he could produce a "certificate of rehabilitation".
2.10 On 28 March 1988, the author went into exile in Nigeria. In 1995, he
went to Great Britain, where he was recognized as a refugee and became a
barrister.
THE COMPLAINT
3.1 The author claims that the "illegal annexation" of Ambazonia by the
Republic of Cameroon denies the will of Ambazonians to preserve their
nationhood and sovereign powers, as expressed in the 1961 plebiscite and
confirmed by a 1992 judgment of the High Court of Bamenda, thereby violating
his people's right to self-determination under article 1, paragraph 1, of
the Covenant. By reference to article 24, paragraph 3, he also alleges a
breach of the right to his own nationality.
3.2 The author claims that his detention from 8 October 1981 to 7 October
1982 and from 31 May 1985 to 3 February 1986, as well as his subsequent
house arrest from 7 February 1986 to 28 March 1988, were arbitrary and in
breach of article 9, paragraph 1, of the Covenant. The conditions of
detention and the ill-treatment suffered during the second detention period
amounted to violations of articles 7 and 10, paragraph 1, while the fact
that he was initially kept with a group of murder convicts at the BMM
headquarters, upon his re-arrest on 9 June 1985, violated article 10,
paragraph 2 (a). He further claims that the restriction on his movement
during house arrest and his current de facto prohibition from leaving and
entering his country amount to a breach of article 12 of the Covenant.
3.3 The author alleges that his deprivation of the right to vote and to be
elected at elections violated article 25 (b) of the Covenant.
3.4 Under article 19 of the Covenant, the author claims that his arrest on
31 May 1985 and his subsequent detention were punitive measures, designed to
punish him for his regime-critical publications.
3.5 The author further alleges that his right, under article 9, paragraph 5,
to compensation for unlawful detention from 8 October 1981 to 7 October 1982
was violated, because the authorities never replied to his compensation
claim.
3.6 The author claims that all his attempts to seek domestic judicial
redress were futile, as the authorities did not respond to his compensation
claim and did not comply with national laws or with the judgments of the
Cameroon Military Tribunal and the High Court of Bamenda. Following his
escape from house arrest in 1988, domestic remedies were no longer available
to him as a fugitive. He contents that the only way to make his rights
prevail would be through a Committee decision, since Cameroon's authorities
never respect their own tribunals' decisions in human rights-related
matters.
3.7 The author submits that the same matter is not being examined under
another procedure of international investigation or settlement.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
4.1 On 12 November 2002, 26 May 2003 and 30 July 2003, the State party was
requested to submit to the Committee information on the admissibility and
merits of the communication. The Committee notes that this information has
still not been received. The Committee regrets the State party's failure to
provide any information with regard to the admissibility or the substance of
the author's claims. It recalls that it is implicit in article 4, paragraph
2, of the Optional Protocol that States parties examine in good faith all
the allegations brought against them, and that they make available to the
Committee all information at their disposal. In the absence of a reply from
the State party, due weight must be given to the author's allegations, to
the extent that they are substantiated. [FN3]
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[FN3] See Communication No. 912/2000, Deolall v. Guyana,, Views adopted on 1
November 2004, para. 4.1.
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4.2 The Committee has noted that several years passed between the occurrence
of the events at the basis of the author's communication, his attempts to
avail himself of domestic remedies, and the time of submission of his case
to the Committee. While such substantial delays might, in different
circumstances, be characterized as an abuse of the right of submission
within the meaning of article 3 of the Optional Protocol, unless a
convincing explanation on justification of this delay has been adduced,
[FN4] the Committee also is mindful of the State party's failure to
cooperate with it and to present to it its observations on the admissibility
and merits of the case. In the circumstances, the Committee does not
consider it necessary further to address this issue.
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[FN4] See Communication No. 788/ 1997, Gobin v. Mauritius, decision of
inadmissibility adopted on 16 July 2001, para. 6.3.
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4.3 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
4.4 Insofar as the author claims that his and his people's right to
self-determination has been violated by the State party's failure to
implement the 1961 plebiscite, Restoration Law 84/01, the 1992 judgment of
the High Court of Bamenda, or by its "subjugation" of the Ambazonians, the
Committee recalls that it does not have competence under the Optional
Protocol to consider claims alleging a violation of the right to self
determination protected in article 1 of the Covenant. [FN5] The Optional
Protocol provides a procedure under which individuals can claim that their
individual rights have been violated. These rights are set out in part III
(articles 6 to 27) of the Covenant. [FN6] It follows that this part of the
communication is inadmissible under article 1 of the Optional Protocol.
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[FN5] See Communication No. 932/2000, Gillot v. France, Views adopted on 15
July 2002, at para. 13.4.
[FN6] See Communication No. 167/1984, Bernard Ominayak et al. v. Canada,
Views adopted on 26 March 1990, at para. 32.1.
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4. 5 Regarding the author's claim that his incarceration from 8 October 1981
to 7 October 1982 was arbitrary, in violation of article 9, paragraph 1, of
the Covenant, given that his conviction was expunged by Amnesty Law 82/21,
the Committee recalls that it cannot consider alleged violations of the
Covenant which occurred before the entry into force of the Optional Protocol
for the State party, unless these violations continue after that date or
continue to have effects which in themselves constitute a violation of the
Covenant. [FN7] It notes that the author's incarceration in 1981-82 predates
the entry into force of the Optional Protocol for the State party on 27
September 1984. The Committee observes that, while punishment suffered as a
result of a criminal conviction that was subsequently reversed may continue
to produce effects for as long as the victim of such punishment has not been
compensated according to law, this is an issue which arises under article
14, paragraph 6, rather than under article 9, paragraph 1, of the Covenant.
It does not therefore consider that the alleged arbitrary detention of the
author continued to have effects beyond 27 September 1984, which would in
themselves have constituted a violation of article 9, paragraph 1, of the
Covenant. The Committee concludes that this part of the communication is
inadmissible ratione temporis under article 1 of the Optional Protocol.
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[FN7] See Communication No. 520/1992, Konye and Konye v. Hungary, Decision
on admissibility adopted on 7 April 1994, at para. 6.4; Communication No.
24/1977, Sandra Lovelace v. Canada, Views adopted on 30 July 1981, at para.
7.3.
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4.6 As to the author's allegation that he was not compensated for his
unlawful detention in 1981-82, the Committee considers that the author has
not provided sufficient information to substantiate his claim, for purposes
of admissibility. In particular, he did not provide copies, nor indicate the
date or addressee of any letters to the competent authorities, claiming
compensation. It follows that this claim is inadmissible under article 2 of
the Optional Protocol.
4.7 Insofar as the author claims a violation of articles 7 of the Covenant
in that he was physically and mentally tortured in detention after his
re-arrest on 9 June 1985 (and which allegedly resulted in a stroke which
paralyzed his left side), the Committee notes that he has not provided any
details about the ill-treatment allegedly suffered, nor copies of any
medical reports which would corroborate his allegation. Therefore, the
Committee concludes that the author has not substantiated this claim, for
purposes of admissibility, and that this part of the communication is
inadmissible under article 2 of the Optional Protocol.
4.8 With regard to the author's claim that his arrest on 31 May 1985 and his
subsequent detention were measures designed to punish him for the
publication of his regime-critical pamphlets, in violation of article 19 of
the Covenant, the Committee finds that the author has not substantiated, for
purposes of admissibility, that said detention was a direct consequence of
such publications. It follows that this part of the communication is also
inadmissible under article 2 of the Optional Protocol.
4.9 As regards the author's claim under article 25 (b) of the Covenant, the
Committee is of the view that exercise of the right to vote and to stand for
election is dependent on the name of the person concerned being included in
the register of voters. If the author's name is not on the register of
voters or is removed from the register, he cannot exercise his right to vote
or stand for election. In the absence of any explanations from the State
party, the Committee notes that the author's name was arbitrarily removed
from the voters' list, without any motivation or court decision. The very
fact of removal of the author's name from the register of voters may
therefore constitute denial of his right to vote and to stand for election
in accordance with article 25 (b) of the Covenant. The Committee is
accordingly of the view that the author has sufficiently substantiated this
claim, for purposes of admissibility.
4.10 Insofar as the author claims that he is being denied his right to
Ambazonian nationality, in violation of article 24, paragraph 3, of the
Covenant, the Committee recalls that this provision protects the right of
every child to acquire a nationality. Its purpose is to prevent a child from
being afforded less protection by society and the State because he or she is
stateless, [FN8] rather than to afford an entitlement to a nationality of
one's own choice. It follows that this part of the communication is
inadmissible ratione materiae under article 3 of the Optional Protocol.
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[FN8] See General Comment No. 17 [35] on article 24, para. 8.
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4.11 With regard to exhaustion of domestic remedies, the Committee takes
note of the author's argument that, following his escape from house arrest
in 1988, he was not in a position to seek redress at the domestic level, as
a person who was wanted in Cameroon. In the light of its jurisprudence [FN9]
that article 5, paragraph 2 (b), of the Optional Protocol does not require
resort to remedies which objectively have no prospect of success, and in the
absence of any indication by the State party that the author could have
availed himself of effective remedies, the Committee is satisfied that the
author has sufficiently demonstrated the ineffectiveness and unavailability
of domestic remedies in his particular case.
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[FN9] See, e.g., Communications Nos. 210/1986 and 225/1987, Earl Pratt and
Ivan Morgan v. Jamaica, Views adopted on 6 April 1989, para. 12.3.
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4.12 The Committee concludes that the communication is admissible, insofar
as it raises issues under articles 7, 9, paragraph 1, 10, paragraphs 1 and 2
(a), 12 and 25 (b) of the Covenant, and to the extent that it relates to the
lawfulness and the conditions of detention following his arrest on 31 May
1985, his incarceration initially with a group of murder convicts at the BMM
headquarters, the lawfulness of, as well as the restrictions on his liberty
of movement during his house arrest from 7 February 1986 to 28 March 1988,
and the removal of his name from the voters' register.
CONSIDERATION OF THE MERITS
5.1 The first issue before the Committee is whether the author's detention
from 31 May 1985 to 3 February 1986 was arbitrary. In accordance with the
Committee's constant jurisprudence, [FN10] "arbitrariness" is not to be
equated with "against the law", but must be interpreted more broadly to
include elements of inappropriateness, injustice, lack of predictability and
due process of law. This means that remand in custody must not only be
lawful but reasonable and necessary in all the circumstances, for example to
prevent flight, interference with evidence or the recurrence of crime.
[FN11] The State party has not invoked any such elements in the instant
case. The Committee further recalls the author's uncontested claim that it
was only after his arrest on 31 May 1985 and his re-arrest on 9 June 1985
that President Biya filed criminal charges against him, allegedly without
any legal basis and with the intention to influence the outcome of the trial
before the Military Tribunal. Against this background, the Committee finds
that the author's detention between 31 May 1985 and 3 February 1986 was
neither reasonable nor necessary in the circumstances of the case, and thus
in violation of article 9, paragraph 1, of the Covenant.
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[FN10] See Communication No. 305/1988, Van Alphen v. The Netherlands, Views
adopted on 23 July 1990, para. 5.8; Communication No. 458/1991, Mukong v.
Cameroon, Views adopted on 21 July 1994, para. 9.8.
[FN11] See ibid.
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5.2 With regard to the conditions of detention, the Committee takes note of
the author's uncontested allegation that he was kept in a wet and dirty cell
without a bed, table or any sanitary facilities. It reiterates that persons
deprived of their liberty may not be subjected to any hardship or constraint
other than that resulting from the deprivation of liberty and that they must
be treated in accordance with, inter alia, the Standard Minimum Rules for
the Treatment of Prisoners (1957). [FN12] In the absence of State party
information on the conditions of the author's detention, the Committee
concludes that the author's rights under article 10, paragraph 1, were
violated during his detention between 31 May 1985 and the day of his
hospitalization.
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[FN12] General Comment No. 21 [44] on article 10, paras. 3 and 5.
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5.3 The Committee notes that the author's claim that he was initially kept
in a cell with 20 murder convicts at the headquarters of the Brigade mixte
mobile has not been challenged by the State party, which has not adduced any
exceptional circumstances which would have justified its failure to
segregate the author from such convicts in order to emphasize his status as
an unconvicted person. The Committee therefore finds that the author's
rights under article 10, paragraph 2 (a), of the Covenant were breached
during his detention at the BMM headquarters.
5.4 As to the author's claim that his house arrest between 7 February 1986
and 28 March 1988 was arbitrary, in violation of article 9, paragraph 1, of
the Covenant, the Committee takes note of the letter dated 15 May 1987 from
the Department of Political Affairs of the Ministry of Territorial
Administration, which criticized the author's behaviour during his house
arrest. This confirms that the author was indeed under house arrest. The
Committee further notes that this house arrest was imposed on him after his
acquittal and release by virtue of a final judgment of the Military
Tribunal. The Committee recalls that article 9, paragraph 1, is applicable
to all forms of deprivation of liberty [FN13] and observes that the author's
house arrest was unlawful and therefore arbitrary in the circumstances of
the case, and thus in violation of article 9, paragraph 1.
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[FN13] General Comment No. 8 [16] on article 9, para. 1.
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5.5 In the absence of any exceptional circumstances adduced by the State
party, which would have justified any restrictions on the author's right to
liberty of movement, the Committee finds that the author's rights under
article 12, paragraph 1, of the Covenant were violated during his house
arrest, which was itself unlawful and arbitrary.
5.6 As regards the author's claim that the removal of his name from the
voters' register violates his rights under article 25 (b) of the Covenant,
the Committee observes that the exercise of the right to vote and to be
elected may not be suspended or excluded except on grounds established by
law which are objective and reasonable. [FN14] Although the letter dated 25
March 1998, which informed the author of the removal of his name from the
register of voters, refers to the "current electoral law", it justifies that
measure with his "judicial antecedent". In this regard, the Committee
reiterates that persons who are deprived of liberty but who have not been
convicted should not be excluded from exercising the right to vote, [FN15]
and recalls that the author was acquitted by the Military Tribunal in 1986
and that his conviction by another tribunal in 1981 was expunged by virtue
of Amnesty Law 82/21. It also recalls that persons who are otherwise
eligible to stand for election should not be excluded by reason of political
affiliation. [FN16] In the absence of any objective and reasonable grounds
to justify the author's deprivation of his right to vote and to be elected,
the Committee concludes, on the basis of the material before it, that the
removal of the author's name from the voters' register amounts to a
violation of his rights under article 25 (b) of the Covenant.
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[FN14] General Comment No. 25 [57] on article 25, para. 4.
[FN15] Ibid., at para. 14.
[FN16] Ibid., at para. 15.
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6. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it reveal violations of
articles 9, paragraph 1; 10, paragraphs 1 and 2 (a); 12, paragraph 1; and 25
(b) of the Covenant.
7. In accordance with article 2, paragraph 3, of the Covenant, the author is
entitled to an effective remedy, including compensation and assurance of the
enjoyment of his civil and political rights. The State party is also under
an obligation to take measures to prevent similar violations in the future.
8. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, that State party has undertaken to ensure all
individuals within its territory or subject to its jurisdiction the rights
recognized in the Covenant and to provide an effective and enforceable
remedy in case a violation has been established, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to the Committee's Views. The State party is also
requested to publish the Committee's Views.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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