You are here:       
Kenya Law / Blog / Case Summary: Failure to execute decisions of the ACtHPR by state parties thereto amounts to violations of rights and obligations imposed upon them

Failure to execute decisions of the ACtHPR by state parties thereto amounts to violations of rights and obligations imposed upon them

Sébastien Germain Marie Aïkoue Ajavon v Republic of Benin

Application No. 065/2019

African Court on Human and Peoples’ Rights

S Ore, P; B Kioko, VP; RB Achour, AV Matusse, S Mengue, M-T Makamulisa, TR Chizumila, C Bensaoula, B Tchikaya, SI Anukam and lD Aboud, JJ

March 29, 2021

Reported by Faith Wanjiku

Download the Decision

International Law - treaties – African Charter on Human and Peoples’ Rights (Banjul Charter) – Protocol to the Banjul Charter – African Charter on Democracy, Elections and Governance – rights and respondent state obligations – failure of a respondent state to implement a decision of the court in favour an applicant – whether the respondent state by failing to implement the decisions of the court given out in an order on provisional measures and subsequently, a judgment on merits had violated the applicant’s rights and the state party’ s obligations under the Charter, Protocol and the ACDEG – African Charter on Human and Peoples’ Rights, articles, 1981, 1, 2, 3 (2), 7, 13 (1) & (2), 14; Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998, article 30; African Charter on Democracy, Elections and Governance, 2007, article 10 (2)

International Law - treaties – African Charter on Human and Peoples’ Rights (Banjul Charter) – Protocol to the Banjul Charter– right to human and peoples’ rights and obligation of states parties to the Protocol to implement court judgments – whether failure by the respondent state to implement the decisions of the court given out in an order on provisional measures and subsequently, a judgment on merits violated article 1 of the Charter and article 30 of the Protocol on execution of judgments by state parties- African Charter on Human and Peoples’ Rights, articles, 1981, 1; Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998, article 30

International Law - treaties – African Charter on Human and Peoples’ Rights (Banjul Charter) – Protocol to the Banjul Charter – access to the court – access by individuals – sufficient grounds by an individual while bringing a case to the court – whether the applicant lacked interest in filing proceedings and thus his application was an abuse of the right to file legal proceedings.

International Law – rules of procedure – rules of the African Court on Human and Peoples Rights - measures for taking evidence – where the court could here an expert whose evidence, assertions or statements it deemed likely to assist it in carrying out its task – what were the circumstances in which the court could enlist the use of an expert appraisal for the purpose of obtaining evidence which in its opinion could provide clarification of the facts of a case– Rules of the African Court on Human and Peoples Rights, rule 55

Jurisdiction - African Court on Human and Peoples’ Rights- material jurisdiction – where an application involved the interpretation and application of the Charter and the Protocol – whether the court had material jurisdiction to hear matters on alleged violation of human rights on account of non-execution of the orders of the court – Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998, article 3

Brief facts

The applicant contended that in a matter between him and the respondent state (Benin), Application No. 013/2017 the court issued, all in his favour, a ruling on provisional measures, a judgment on merits and a judgment on reparations. In that case, the applicant alleged the violation of his human rights in connection with criminal proceedings instituted against him before the Court for the Repression of Economic Offences and Terrorism (CRIET) of the respondent state. The court through a judgment on merits of March 29, 2019 ordered the respondent state to take all the necessary measures to annul judgment No.007/3C.COR delivered on October 18, 2018 by the CRIET in a way that erased all its effects and to report thereon to the court within six (6) months from the date of notification of the judgment. He stressed that the failure of the respondent state to execute the decisions had resulted in several violations of his human rights.

The applicant alleged the violation of the rights to non-discrimination and to equal protection of the law, as enshrined in articles 2 and 3(2) of the African Charter on Human and Peoples’ Rights (the Charter); the right to a fair trial under article 7; the right to property under article 14; the rights to participate freely in the government of his country and to have the right of equal access to the public service under article 13(1) and (2); the obligation to adopt legislative or other measures for the implementation of the rights, duties and freedoms enshrined in the Charter provided for in its article 1; the obligation to comply with the decisions rendered by the court, provided for under article 30 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) and the obligation to ensure that the process for revising its Constitution based on national consensus, obtained if need be, through referendum as stipulated under article 10(2) of the African Charter on Democracy, Elections and Governance (the ACDEG).

The applicant approached the court praying that it establishes failure of the respondent state to comply with the decisions of the African Court delivered on December 7, 2018 and March 29, 2019 and adjudge and determine that the applicant’s fundamental rights had been violated. He also prayed for the court order the respondent state to remove obstacles to the execution of the decisions of the African Court; find and rule that the violations committed against him had caused him immeasurable harm which merited reparation and order the State of Benin to compensate him for the prejudice suffered and award him the sum of three hundred billion (300,000,000,000) CFA francs as damages.

Issues

  1. Whether the respondent state by failing to implement the decisions of the court given out in an order on provisional measures and subsequently, a judgment on merits had violated the applicant’s rights and the state party’ s obligations under the Charter, Protocol and the African Charter on Democracy, Elections and Governance (ACDEG).
  2. Whether failure by the respondent state to implement the decisions of the African court given out in an order on provisional measures and subsequently, a judgment on merits violated article 1 of the Charter and article 30 of the Protocol on execution of judgments by state parties.
  3. Whether the applicant lacked interest in filing proceedings and thus his application was an abuse of the right to file legal proceedings.
  4. What were the circumstances in which the court could enlist the use of an expert appraisal for the purpose of obtaining evidence which in its opinion could provide clarification of the facts of a case?
  5. Whether the court had material jurisdiction to hear matters on alleged violation of human rights on account of non-execution of the orders of the court.

Relevant provisions of the law

African Charter on Human and Peoples’ Rights, 1981

Article 1- Human and Peoples’ Rights

The Member States of the Organization of African Unity [now African Union], parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.

Article 66-General Provisions

Special protocols or agreements may, if necessary, supplement the provisions of the present Charter.

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998

Article 30- Execution of Judgment

The States Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.

African Charter on Democracy, Elections and Governance, 2007

Article 10(2)- Democracy, Rule of Law and Human Rights

State Parties shall ensure that the process of amendment or revision of their Constitution reposes on national consensus, obtained if need be, through referendum

Held

  1. The applicant alleged violations of human rights protected by the Charter and the Protocol to which the respondent state was a party. The Protocol did not make a distinction between the type of cases or disputes submitted to the court, as long as it concerned the application and interpretation of any of the instruments listed in article 3 of the Protocol namely, the Charter, the Protocol and any other instrument on human rights and ratified by the states concerned.
  2. It was not disputed that the instant case concerned alleged human rights violations due to non-compliance with the decisions delivered by the court. The case therefore concerned the interpretation or application of article 30 of the Protocol, under which states committed to comply with the decisions of the court on any case in which they were a party and to guaranteed their execution.
  3. The jurisdiction of the court in relation to such a dispute was exercised without prejudice to the prerogative conferred by article 29(2) of the Protocol on the Executive Council of the African Union to monitor the execution of decisions rendered by the court, on behalf of the Assembly of Heads of State and Government. The jurisdiction was based on article 3 of the Protocol which conferred on it the ability to apply or interpret all the provisions of the Protocol, including article 30. The court had material jurisdiction to do so.
  4. The court had personal jurisdiction, insofar as the respondent state was a party to the Charter, the Protocol and had deposited the Declaration. The fact that the respondent state withdrew its Declaration on March 25, 2020 had no effect on the present application as it was already pending at the time of the withdrawal. The court also had temporal jurisdiction, insofar as the alleged violations were committed, in respect of the respondent state, after the entry into force of the Charter and the Protocol to which the respondent state was a party. Finally, the court had territorial jurisdiction, insofar as the facts of the case and the alleged violations took place on the territory of the respondent state.
  5. In Application No. 013/2017 involving the same parties, the court issued an order on provisional measures on December 7, 2018 and, subsequently, a judgment on merits on March 29, 2019, giving time limits of fifteen days and six months, respectively, to execute the decisions. It could not be disputed that the said time limits had expired, which meant that the preliminary objection regarding the alleged violations with respect to those two decisions had to be dismissed. In his latest submissions, the applicant claimed that he made reference only to the non-execution of the order on provisional measures of December 7, 2018, and to the judgment on merits of March 29, 2019, and not to the non-execution of the judgment on reparations delivered on November 28, 2019. That statement rendered the respondent state’s objection moot.
  6. Neither the Charter, the Protocol, much less the African Court on Human and Peoples’ Rights Rules of Court (Rules) required that an applicant be a victim of the violations alleged. That was due to a particularity of the African regional human rights system. In any case, the failure to comply with the order on provisional measures of December 7, 2018 and the judgment on merits of March 29, 2019 was prejudicial to the applicant and his ability to enjoy his rights of which the court had established their violation.
  7. Although human rights courts had a common mission to protect human rights, they did not necessarily share the same rules of procedure, particularly with respect to questions of admissibility. In the instant case, the respondent state based its objection on the victim status of the applicant, which was a procedural requirement of having an interest in proceedings, provided for in article 10(d) of the Protocol on the ECOWAS Court of Justice, 2005. Neither the Charter, the Protocol, nor the Rules, contained a similar provision.
  8. The failure to comply with the order of December 7, 2018 and the judgment of March 29, 2019 was a sufficient ground for the applicant’s interest in bringing the instant application. The objection of the respondent State based on lack of interest in filing proceedings was dismissed.
  9. The principle of res judicata presupposed the existence of three cumulative conditions, namely the identity of the parties, identity of the prayers or their supplementary or alternative nature, and the existence of a first decision on merits. In the instant case, while the identity of the parties was established, the prayers were not identical. In Application No. 013/2017 which led to the decisions of December 7, 2018 and March 29, 2019, the applicant alleged the violation of his human rights in connection with criminal proceedings instituted against him before CRIET of the respondent state. However, in the present application, the alleged violations were related to the failure to comply with the decisions issued by the court.
  10. In view of the cumulative nature of the requirements, and without having to examine the aspect relating to the existence of a first decision on merits, the court dismissed the objection to admissibility based on the res judicata rule.
  11. Judicial acts included, in particular, orders for provisional measures, the binding nature of which was unanimously recognised by international jurisprudence. Orders indicating provisional measures had a binding character. The term judgment included all judgments rendered by the court, the binding nature of which was confirmed by rule 72 (2) of the Rules of Court, which stated that the judgment would be binding on the parties and was enforceable as provided under article 30 of the Protocol.
  12. In the present case, all the violations alleged by the applicant related in one way or another, directly or indirectly, to the non-enforcement of the order for provisional measures of December 7, 2018 and the judgment of March 29, 2019. The respondent state had not filed any report, nor did it dispute that it had not executed the relevant decisions. The respondent state had violated article 30 of the Protocol. The violation of rights, duties and freedoms set out in any protocol or instrument adopted to supplement the Charter implied a violation of article 1 of the Charter. The violation of article 30 of the Protocol implied the violation of article 1 of the Charter.
  13. Under rule 55 of the Rules, the court could, of its own accord or at the request of a party, obtain any evidence which in its opinion could provide any necessary clarification, including through the appointment of an expert. Although the court did not follow from the letter of the above-mentioned rule, the decision to resort to an expert opinion presupposed the existence of a technical issue for which the court needed to obtain further information before making a decision. The applicant had not demonstrated that there was an issue of such a technical nature as to warrant the appointment of an expert.
  14. Reparation was only awarded when the responsibility of the respondent state for an internationally wrongful act was established and the causal link between the wrongful act and the alleged injury was established. The burden of proof of the causal link rested, in principle, on the applicant, who had to therefore provide the evidence to support his claims. The obligation to execute its decisions lay with the respondent state concerned. It was incumbent on the applicant to prove the damage he claimed to have suffered as a result of the violations found.
  15. The applicant contended that the sum of 300,000,000,000 CFA Francs was paid as a deposit for participation in the legislative elections of April 28, 2019 of the USL party, of which he was the honorary president. The restitution of the sum of money could only be considered if it was established that it was actually paid into the coffers of the respondent state. In the instant case however, none of the exhibits produced related to the payment of that deposit. Even if the money was paid, the applicant did not show that it was his, since it was intended for the payment of a political party’s guarantee and not for the applicant himself. The applicant had not established any possible link between the deposit that was paid and the failure to execute the Order for provisional measure of December 7, 2018 or the judgment of March 29, 2019.
  16. The applicant’s allegations that the respondent state refused to lift the seizures made on his assets and to restore the licenses of his companies did not stand. Those allegations were unrelated to the measures ordered in the two decisions that the court had found not to have been executed.
  17. The documents submitted by the applicant in support of his claim for reparation could be classified in two categories: those that tended to establish a given situation and those that related to the travels of the applicant’s advocate. The first category of documents, consisting of bailiff’s reports, showed that the applicant was unable to obtain a certificate of clean criminal record or that his name was listed on the website of the Ministry of Justice as a wanted person. They showed that the respondent state did not implement the decisions of the court. However, they did not constitute evidence of any material prejudice, nor did it show a causal link with the non-enforcement of the said decisions.
  18. With respect to the documents in the second category, consisting of airline tickets, their probative value was limited to evidence of the fact that the applicant’s advocate made a hotel reservation in Zanzibar and made several trips. The applicant did not state the purpose of those travels. They were not of such a nature as to constitute evidence of any prejudice that would have arisen from the failure to comply with the order of December 7, 2018 and the judgment of March 29, 2019.
  19. In case of violation of human rights, moral prejudice was presumed. Moral prejudice could, in fact, be considered as an automatic consequence of the violation, without the need to establish it by any other means. The determination of the amount to be awarded for moral damage was made on the basis of equity, taking into account the circumstances of each case.
  20. The counterclaim for damages made by the respondent state was based on the abuse of the right to bring proceedings before a court. The applicant did not abuse that right, especially since not all of the allegations he made were dismissed. The court after having examined his allegations, found that they were not frivolous, nor motivated by malicious intent.

Application partly allowed; each party to bear its own costs.

Orders

  1. The objection based on the lack of material jurisdiction was dismissed.
  2. The respondent state had violated article 30 of the Protocol.
  3. The respondent state had violated article 1 of the Charter.
  4. The applicant’s prayer for an expert appraisal of the damages resulting from the failure to execute the order for provisional measures of December 7, 2018 and the judgment on merits of March 29, 2019 in Application 013/2017 with respect to the same parties was dismissed.
  5. The request for payment of the amount of Three Hundred Billion (300, 000, 000, 000) francs CFA was dismissed.
  6. The respondent state’s counterclaim for payment of the amount of One Billion (1,000,000,000) CFA Francs as damages for abuse of process initiated by the applicant was dismissed.
  7. The applicant was awarded a symbolic amount of 1 CFA francs as reparation for moral prejudice.
  8. The respondent state was ordered to comply with article 30 of the Protocol by executing the judgment of March 29, 2019, that was, by taking all necessary measures to annul the judgment N° 007/3C.COR delivered on October 18, 2018 by the CRIET in a way to erase all its effects.
  9. The respondent state was ordered to report to the court within seven (7) days from the notification of the judgment.

Relevance to Kenya’s legal system

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 form part of Kenyan law as per article 2 (6) of the Constitution of Kenya, 2010.

Article 30 of the Protocol provides that state parties to the present Protocol shall undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.

In the case of African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No. 006/2012 the Republic of Kenya was a respondent state where it was found to have violated articles 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the African Charter on Human and Peoples’ Rights (the Charter) in its evictions of the Ogiek Community of the greater Mau Forest from the forest. The Republic of Kenya, was ordered to take all appropriate measures within a reasonable time frame to remedy all the violations established and to inform the court of the measures taken within six (6) months from the date of the judgment.

Until today, there is no evidence to suggest that Kenya has complied with the orders from the African Court. In addition, according to a report by Minority Rights Group (MRG), (a leading international human rights organization working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples reported that since July 2, 2020, the Kenya Forest Service (KFS) has engaged in a large-scale and deliberate campaign to remove Ogiek communities from their lands in the Mau Forest, prejudicing the implementation of the 2017 judgment. As of July 9, 2020, over 100 Ogiek families, including 9 families in Maasai Mau (approximately 600 people in total) had been evicted and rendered homeless.

The report further stated that the sudden and unannounced nature of those evictions had traumatised victims who were sheltering in their homes from the Covid-19 pandemic. Some members of the community had been injured. Hundreds of Ogiek houses, structures and fences had been demolished or burned to the ground. The evictions took place without notice, in the midst of the Covid-19 pandemic and the rainy season, in violation of the Government of Kenya’s domestic and international law obligations. While the Government of Kenya had previously announced it would establish a moratorium on evictions during the pandemic, it has continued evicting people, including the Ogiek.

State parties to the Banjul Charter and its Protocol such as Kenya and Benin which fail to execute judgments in favour of applicants within the stipulated timelines ordered by the African Court on Human and peoples’ Rights are therefore in violation of their obligations under article 30 of the Protocol to the Banjul Charter and human and peoples’ rights under article 1 of the Banjul Charter which they are supposed to undertake to adopt legislative or other measures to give effect to them.

© 2022 National Council for Law Reporting (Kenya Law) is ISO 9001:2015 Certified | Creative Commons | Privacy Policy & Disclaimer