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Request for an Advisory Opinion Submitted by the Pan African Lawyers Union (PALU)

Request No. 001/2020

African Court on Human and Peoples’ Rights

ID Aboud, P; B Tchikaya, VP; B Kioko, RB Achour, S Mengue, M-T Mukamulisa, TR Chizumila, C Bensaoula, SI Anukam, DB Ntsebeza, M Sacko, JJ

July 16, 2021

Reported by Faith Wanjiku

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1. In a request for an advisory opinion, given that such requests did not involve contestation of facts between opposing parties, the issue of territorial and temporal jurisdiction did not arise. For that reason, the court would only consider whether the request satisfied the requirements for personal and material jurisdiction.
2. To determine whether it had personal jurisdiction, the court had to satisfy itself that the request had been filed by one of the entities contemplated under article 4(1) of the Protocol To The African Charter On Human And Peoples’ Rights On The Establishment Of An African Court On Human And Peoples’ Rights (Protocol) on parties that could submit requests for advisory opinions to the court. In the instant case, the question that arose was whether the author was an African organization recognised by the AU in the meaning of the provision of the Protocol.
3. An organisation could be considered as African if it was registered in an African country and had branches at the sub-regional, regional or continental levels, and if it carried out activities beyond the country where it was registered. In the instant request, the author was registered in a member state of the AU, to wit, the United Republic of Tanzania and that it had structures at the national and regional levels as an umbrella organization of national and regional lawyers’ associations. It also undertook its activities beyond the territory where it was registered.
4. The author and the AU signed an MoU to co-operate in undertaking activities concerning the rule of law, promoting peace and integration, and protecting human rights across the continent. The signing of an MoU was an accepted way by which the AU recognised non-governmental organisations. The author was an organization recognised by the AU within the meaning of article 4(1) of the Protocol. The court had personal jurisdiction to deal with the request.
5. Article 4(1) of the Protocol, whose provisions were restated in rule 82(2) of the Rules of Court (Rules), stipulated that the court could give an advisory opinion on any legal matter relating to the Charter or any other relevant human rights instrument. In the instant request, the court was requested to give its opinion about the application of articles 1 and 13 of the Charter, and articles 2(1)(2)(3)(4) (10) and (13); articles 3(1)(4)(7)(10) and (11); articles 4, 5, 6,7, 12, 13, 15, 17, 24, 25; articles 32(7)(8); articles 38(1) and 39 of the ACDEG in relation to citizens’ right to effective participation in the government of their states, especially (although not limited to), through regular, free and fair elections, in the context of the Covid-19 pandemic. In those circumstances, the court had material jurisdiction in respect of the request.
6. Article 4(1) of the Protocol, whose provisions were restated in rule 82(3) of the Rules, provided that it could provide an advisory opinion provided that the subject matter of the opinion was not related to a matter being examined by the Commission. Rule 82(2) of the Rules, provided that any request for advisory opinion would specify the context or background giving rise to the request as well as the names and addresses of the representatives of the entities making the request. For determination of the admissibility of a request for advisory opinion, the court had to determine if the author of the request was properly identified, the request was not related to a matter pending before the Commission, and the circumstances of the request had been specified. According to the author, the request was admissible since:
   

   a) it was properly identified,

   b) the request did not relate to any application pending before the Commission; and

   c) the circumstances of the request have been specified.

   The author was well identified and its representatives were explicitly indicated.

7. On 14 June 2021, in response to the court’s request dated June 9, 2020, the Commission informed the Registry that no case related to the subject matter of the advisory opinion was pending before it. The author had provided the context within which the request arose, which was the political, economic and social crisis wrought upon Africa, and the rest of the World, by the Covid-19 pandemic and which posed serious challenges to democratic governance, the rule of law and the promotion and protection of human and peoples’ rights, more generally, and the organisation of elections, more specifically. The request was thus admissible.
8. The citizens’ right to participate freely in the government of their countries was very broad. It did not cover only direct and indirect participation in the government of their countries through elections. However, in the instant request, the author limited its question to the participation of citizens in the government of their respective countries within an electoral framework. Thus, the court’s response would be limited to the material scope as set out by the author.
9. In exercising its advisory jurisdiction, the court did not resolve factual disputes between opposing parties. Its main duty was to provide its opinion by answering questions raised by the author of the request, as envisaged by article 4(1) of the Protocol. Any use of examples simply served to highlight the practical dimensions of the opinion and did not amount to a decision on any factual situation described in those illustrations.
10. The court’s advisory opinions were designed to provide guidance to all member states of the AU in fulfilling their international human rights commitments. The opinion did not seek to examine the lawfulness of any specific elections that were held or postponed during the Covid-19 Pandemic, much less to assess the extent to which they were free, fair and transparent.
11. One of the fundamental principles of democracy was the regular conduct of transparent, free and fair elections aimed at creating the conditions for the possibility of democratic alternation and, at the same time, affording the electorate the opportunity to regularly evaluate and politically sanction the performance of those elected officials, through universal suffrage. State Parties could decide to conduct elections within the time frame provided for by law, notwithstanding the situation of the Covid-19 pandemic, if they deemed it possible. Concerning the postponement, article 13(1) of the Charter, as supplemented by articles 2 and 3 of the ACDEG, by referring to domestic law, the determination of conditions for the exercise by citizens of the right to participate freely in the governance of their countries, gave the competent bodies of each state the power to decide to postpone elections in accordance with its domestic law.
12. In the absence of specific provisions on the postponement of elections, the provisions concerning the scheduling and holding of elections, including during a situation of emergency were applicable to their postponement. Those who could schedule elections also had to be able to call them off or postpone them if the conditions for holding the elections were not met because of the emergency situation, as was the case with the Covid-19 pandemic. If necessary, appropriate legislation could be adopted for the purpose. Even though the decision to conduct or not to conduct elections, remained with the competent organs of the State concerned, because of the situation of a public health emergency or a pandemic, a consultation of health authorities and political actors, including representatives of civil society, was necessary to ensure the inclusiveness of the process.
13. The consultation should concern not only the decision to hold elections but also the measures necessary to ensure that they were conducted in a transparent, free and fair manner. In that regard, the provisions of the ECOWAS Protocol on Democracy and Elections, which required that the consent of the majority of political actors needed to be obtained when substantial changes were made to the electoral laws within six (6) months before the elections, were an important source of inspiration for states that decided to conduct elections during a situation of public health emergency.
14. The electoral period provided a framework for the general mobilisation of political parties, candidates and their supporters, and public institutions involved in the electoral process, notably, those responsible for issuing documents and validating candidatures. National and international observers, and civil society organisations participating in the civic and voter education campaigns, were also involved in the electoral process. Conducting elections in a situation of emergency, as was the case with the Covid-19 Pandemic, a disease that was easily transmissible, including through contact between humans and between humans and contaminated objects, required that appropriate measures be taken to prevent its transmission, without undermining the integrity of the electoral process.
15. After the World Health Organisation (WHO) declared the Pandemic, a number of countries that organised elections took restrictive measures that negatively impacted the right of citizens to participate in the government of their countries through elections and the exercise of other rights during the election period. Those measures included restrictions on rights during the election period, including the right of movement of candidates and voters, to register, to obtain documents necessary for submission of candidatures, to participate in meetings related to elections, to access information related to the electoral process, as well as election observation by domestic and international observers.
16. Also following the declaration of pandemic, different national and international institutions, including the WHO itself, the AU’s relevant bodies, Regional Economic Communities (RECs), and certain civil society organisations issued instructions or guidelines on measures to be taken to mitigate the spread of the disease, including in an electoral context. The Communiqué of the AU Peace and Security Council, recommended to States that decided to organise elections during that period to create the necessary conducive conditions to ensure safety and security of the population against Covid-19, in line with safeguard protocols issued by WHO and the CDC Africa, as well as to preserve the gains made and to maintain the current momentum in the fight against the pandemic and other public health emergencies.
17. The court as a judicial body, its role was not to develop policy guidelines for States on how to conduct elections in a situation of emergency. That role fell essentially on the entities that promoted human rights at the continental and domestic levels, which indeed had been doing so since the outbreak of the pandemic. In a pandemic context, where States took measures that were restrictive of human and peoples’ rights or postponed elections, it was incumbent on the court to share with those concerned, through the opinion, the legal standards applicable to restrictions or suspension of rights under the Charter and other human rights instruments that the court interpreted and applied.
18. The Charter did not explicit have provisions for derogation of rights even in emergency situations. That means that, under the Charter, States that chose to conduct elections during a state of emergency, as was the case with Covid-19, were obliged to respect human rights. Where they took measures that restricted human rights, they had to observe the provisions of article 27(2) of the Charter on the rights and freedoms of each individual being exercised with due regard to the rights of others, collective security, morality and common interest. Measures restrictive of rights had to also comply with article 2 of the Charter, which provided for the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind for every individual.
19. Applicable to the regime of restrictions were articles 4(1) and (2) of the International Covenant on Civil and Political Rights (ICCPR), which provides that states party to the ICCPR would take such measures that were not inconsistent with their other obligations under international law and did not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
20. As regards proportionality, the restrictions had to be appropriate to the intended purpose, including their territorial extent and duration in time; they had to be necessary in a democratic society, in the sense that there were no alternative measures less burdensome for the rights of individuals and peoples; and they were not abusive (proportionality stricto sensu), in the sense that they were surrounded by safeguards so as to avoid their abusive application.
21. Measures restricting rights could not negate the essential content of the restricted rights. That was, the practical effect of the restrictions could not imply the annulment of the essential features of the restricted rights.
22. In the instant request, there were some aspects which formed the essential content of the right of citizens to freely participate in the government of their countries through elections. Those aspects comprised the effective participation in the electoral process, including campaigning, fair and equitable access to the State controlled media; the monitoring of the electoral process by candidates, political parties and the competent voter registration public institutions; the secret ballot; participation in the process of vote counting and publication of the election results by political parties, candidates and any other relevant actors for the transparency of the elections; the possibility of contesting the results before the competent administrative and judicial bodies, if appropriate. Those aspects of citizens’ right to participate in the government of their countries could not be suppressed, even in an emergency situation such as the Covid-19 Pandemic, without undermining the integrity of the electoral process.
23. Particular attention should be given to the right of movement of persons during the election period, so restrictions on movement, besides not being absolute, other measures should be considered to mitigate restrictions such as creating conditions for meetings to be held virtually, which required improving the coverage of the telecommunications network, lifting restrictions on the use of online communication platforms, namely social media.
24. On polling day and at electoral events involving crowds of people, appropriate protective measures such as social distancing, the wearing of masks, the sanitation of polling booths and ballot papers, and the protection of polling agents were required, among other such measures that states could deem appropriate. Finally, measures restricting rights had to not be discriminatory. That was, a state should seek to ensure that, within the overall framework, the measures taken did not, in practice, create an advantage for one party, notably, the incumbent governing parties or candidates, to the detriment of other candidates or parties.
25. States should regularly conduct elections within the electoral calendar. In a situation of an emergency, such as the Covid-19 Pandemic, it was incumbent upon the States which were sovereign to determine when to conduct elections and to take appropriate measures to protect the health and life of people without undermining the integrity of the elections.
26. Unlike the holding of elections in a public health emergency or a pandemic, in which rights were restricted in order to protect the health and lives of the people, the postponement of elections entailed the suspension of the right of citizens to participate regularly in the governance of their countries through elections, as provided for in article 13(1) of the Charter and articles 2(3) and 3(4) both of the ACDEG.
27. The question could arise whether the Charter and other instruments which it applied were susceptible to suspension in whole or in part in emergency situations. The question of partial suspension of the Charter would arise only if the aspect of the right in question was directly governed by the Charter. Those provisions referred back to domestic law the definition of the conditions for the exercise by the citizens of their right to participate in the government of their countries through elections, including in particular their postponement. As those aspects were not directly regulated by the Charter and the ACDEG, it was for the domestic law to define the conditions for postponing elections, namely specific criteria for postponement and the regime applicable in the event the term of office of the elected officials expired without elections having been held.
28. The reference to domestic law to outline the criteria for postponing elections in declared emergencies was subject to certain conditions. The regime of restrictions provided for in article 27(2) of the Charter on the rights and freedoms of each individual being exercised with due regard to the rights of others, collective security, morality and common interest was applicable mutatis mutandis to the suspension of rights. That is, the postponement must be made in application of a general law, must aim at the legitimate purpose, be proportionate to the intended purpose and had to not undermine the essential content of rights.
29. A State concerned who invoked the situation of emergency to postpone elections, had to declare it through a general law. In the instant request, the postponement was legitimate if it aimed at protecting the health and life of the people, as well as allowing the creation of conditions for the holding of transparent, free and fair elections.
30. From the point of view of proportionality, the postponement of elections had to be a last resort, without which it would not be possible to protect the health and lives of the people and ensure the integrity of the electoral process. The period of postponement had to be strictly necessary to create the conditions that were required for the elections to take place under the best possible conditions, in accordance with acceptable international standards in the context of an emergency. The deferral period could not be used to undermine the obligation of regular legitimization of the elected officials and become a form of unduly prolonging their term of office.
31. Elections could be postponed and still be held before the end of the term of office of the elected officials. It was only the electoral timetable that had changed, without that implying the expiration of the term of office and the consequent lapse of the organs. In cases where elections were held after the end of the term of office of the organs or the electoral process was completed afterwards, there was a situation of expiration of the organs. The question then arose as to how the problem of the apparent vacancy of power was to be solved.
32. The exercise of the right of citizens to participate in the government of their countries was governed by domestic law. It was therefore for the latter to define the legal regime applicable when the term of office of elected officials expires. It was up to the law to define whether interim replacement mechanisms were triggered; whether the elected officials remained in office with full powers; or whether they remained in office but in a caretaker management arrangement, that was, with limited powers.
33. Situations of emergency were neither a new phenomenon for States, nor a new phenomenon for the law. Only the causes underlying their declaration varied. In principle, states had to have their own legislation on the consequences of the expiry of the term of office of elected officials without elections being held due to the declaration of a state of emergency.
34. If such legislation existed, it had to be applied otherwise new legislation should be enacted by the competent bodies. Considering that it was a specific context in which the rights of other political and social players were at stake, consultation with those actors was required before the legislation in question was enacted by the competent bodies.

Request for advisory opinion allowed.

Orders:

On jurisdiction

i. Finds that it has jurisdiction to give the Advisory Opinion requested.

On admissibility

ii. Declares that the Request for Advisory Opinion is admissible.

On the merits

On the decision to conduct or not conduct elections in the context of a public health emergency or a pandemic

iii. Finds that states may decide to conduct or not to conduct elections in the context of a public health emergency or a pandemic. Such a decision requires prior consultation with health authorities and political actors, including representatives of civil society.

On the obligations of State Parties to ensure effective protection of citizens’ right to participate in the government of their countries in the context of an election held during a public health emergency or a pandemic, such as the Covid-19 crisis

iv. Finds that measures restricting rights, applied by States in elections conducted during a public health emergency or a pandemic, must, in accordance with Article 27(2) of the Charter, be in the form of general law; pursue a legitimate purpose; be proportionate; must not undermine the essential content of rights; must not derogate the rights provided for in Articles 6, 7, 8(1) and (2), in Articles 11, 15, 16 and 18, in accordance with Article 4(2) of the ICCPR; and must not be discriminatory.

On the obligations of State Parties that decide to postpone elections because of a public health emergency or a pandemic, such as the Covid-19 crisis

v. Finds that the postponement of an election because of a public health emergency or a pandemic must comply with Article 27(2) of the Charter mutatis mutandis and Article 4(1) of the ICCPR.

On the standards applicable in the event the term of office expires

vi. Finds that it is for domestic law to outline the applicable legal standards when the term of office of elected officials expires, including to an interim replacement, to an extension of term of office with full powers, or to a caretaker arrangement. Where appropriate legislation does not exist at the time of a public health emergency or a pandemic, a law may be enacted by the competent bodies, based on prior consultation with political actors, including representatives of civil society.

Relevance to Kenya’s legal system

Article 38 of the Constitution on political rights provides that every citizen is free to make political choices, which includes the right—

(a) to form, or participate in forming, a political party;

(b) to participate in the activities of, or recruit members for, a political party; or

(c) to campaign for a political party or cause.

Sub-article (2) provides that every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

(a) any elective public body or office established under this Constitution; or

(b) any office of any political party of which the citizen is a member.

Sub-article (3) provides that every adult citizen has the right, without unreasonable restrictions—

(a) to be registered as a voter;

(b) to vote by secret ballot in any election or referendum; and Constitution of Kenya, 2010

(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Article 24 of the Constitution on limitation of rights and fundamental freedoms provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including; the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

The Elections Act, No. 24 of 2011 in section3 (1) provides that an adult citizen shall exercise the right to vote specified in Article 38(3) of the Constitution in accordance with the Act.

Section 55B of the Elections Act on postponement of elections by the Commission provides that the Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where—

(a) there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;

(b) it is impossible to conduct the elections as a result of a natural disaster or other emergencies,

(c) that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.

Sub-section (2) provides that where an election is postponed under subsection (1), the election shall be held at the earliest practicable time.

Section 109 (1) (z) of the Elections Act provides that the Commission may make regulations generally for the better carrying out of the purposes and provisions of this Act, and in particular, but without prejudice to the generality of the foregoing, may make regulations with reasonable grounds for the postponement of elections.

Kenya is a state party to the African Charter on Human and Peoples’ Rights having ratified it in January 23, 1992 and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights having ratified it on February 4, 2004 hence the decisions of the African Court on Human and Peoples’ Rights such as advisory opinions form part of Kenyan law as per article 2 (6) of the Constitution of Kenya, 2010 (Constitution).

The advisory opinion of the African Court on Human and Peoples’ Rights on conduction of elections during the COVID-19 pandemic while respecting the citizens’ right to vote and participate in a free and fair election is therefore a jurisprudential and essential guide to Kenya, a member state of the Banjul Charter, which is set to hold its general elections in 2022. The advisory opinion will thus guide Kenya to decide whether it will hold its general elections in 2022 depending on how the situation will be in the country in relation to the COVID-19 pandemic.