Africa

The Effectiveness of the African Court on Human and People’s Rights is Dwindling as African Governments Pull Away From It

By: Thomas Harrington

Journal of Global Rights and Organizations, Lead News Editors 

ARUSHA, Tanzania – Amnesty International released a report in October 2020 called: The State of African Regional Human Rights Bodies and Mechanisms 2019-2020 (Report), regarding African Human Rights entities. The Report contains troubling information about the declining effectiveness of human rights organizations in Africa.

The African Court of Human and Peoples’ Rights after Benin withdraws its commitment to Article 34(6). Photo Courtesy of International Justice Resource Center.

The African Court on Human and Peoples’ Rights (AfCHPR) was one of the organizations specifically written about by Amnesty International. This is the second year that Amnesty International has written the report, and the concern for the AfCHPR has only continued to grow.

The main issue facing AfCHPR is that some African governments aren’t respecting it or it’s decisions. In fact, as a result of its decisions, four African countries have withdrawn a large part of the AfCHPR’s jurisdiction. Under Article 34(6) of the African Court Protocol, countries that have committed to the article are bound by the AfCHPR agreed to allow individuals and non-governmental organizations (NGOs) to file cases in the AfCHPR after they have exhausted all possible legal means within their country. Article 34(6) essentially allows parties that are not African governments to file their cases in the AfCHPR if they cannot get adequate assistance through their own country’s legal process.  

Rwanda became the first country to withdraw its commitment to Article 34(6) back in 2016. The AfCHPR was set to hear a claim by Victoire Ingabire, a Rwandan opposition politician who was imprisoned for genocide denial by the Rwandan government. The Rwandan government claimed their withdrawal was to “prevent exploitation of the individual complaint procedure by criminals, particularly individuals who took part in the 1994 genocide and have subsequently fled the country.”

In the last two years, three other countries have followed suit and withdrawn their commitment to Article 34(6) of the African Court Protocol. The AfCHPR home country of Tanzania announced its intention to withdraw its commitment to Article 34(6) back in November 2019. Most of the cases that the AfCHPR has decided have been against Tanzania and most of its pending cases are also against the home country. Tanzania claimed that its withdrawal was due to the AfCHPR accepting cases from claimants that haven’t exhausted their legal remedies, however, no particular case was pointed to and there seems to be no evidence of it.

In 2020, Benin and Côte d’Ivoire both announced their intentions to withdraw their commitments to Article 34(6). These announcements came after the AfCHPR had ordered that both states take measures to prevent “the exclusion of opposition candidates from upcoming elections, although Benin authorities indicated Benin had communicated its withdrawal on March 16, 2020.” 

With those four countries backing away from the AfCHPR jurisdiction leaving only eleven African nations bound by Article 34(6), the Court seems to be losing effectiveness at an exponential rate. These issues along with reduced decisions and the impact of Covid-19 on its meeting time have led to a drop in importance for the AfCHPR. Governments are not respecting the Court’s decisions and the Court appears to be getting quieter.

For further information, please see:

Amnesty International – The State of African Regional Human Rights Bodies and Mechanisms – Oct. 2020

Amnesty International – Regional Human Rights Bodies Struggle to Uphold Rights Amid Political Headwinds in Africa – 20 Oct. 2020

International Justice Resource Center – Benin and Côte d’Ivoire to Withdraw Individual Access to African Court – 6 May. 2020

International Justice Resource Center – Rwanda Withdraws Access to African Court for Individuals and NGOs -14 Mar. 2016

Police Brutality Protests in Nigeria: The Lekki Massacre

By: Alexis Eka

Impunity Watch Staff Writer

LAGOS, Nigeria – Following the breakout of protests in Nigeria on October 8, 2020, violent protests occurred at the Lekki Toll Gate on October 20, 2020. The protests in support of the #EndSars Movement resulted in several injuries and at least 56 deaths of Nigerian citizens.

Lekki Toll Gate Part-Destroyed On Night of Protest. Photo Courtesy of BBC.

Protestors have been peacefully demonstrating in the streets of Lagos, demanding an end to the police brutality, extrajudicial executions, and extortion by the Special Anti-Robbery Squad (SARS), the unit of the Nigerian police force that oversees violent crimes.

On October 20, 2020, several peaceful demonstrators were shot when the Nigerian army opened fire on Nigerian citizens at the Lekki Toll Gate. An investigation led by Amnesty International confirmed that the Nigerian army and police have also been found responsible for the deaths of these Nigerian citizens.

The timeline suggests that on the evening of Tuesday, October 20, 2020, army tanks left the Bonny Camp military base and drove on the Lekki-Epe Expressway for approximately seven minutes. They continued toward the Lekki Toll Gate at 18:29 local time. At around 18:45, the Nigerian military opened fire on the protestors. Moments before the Lekki massacre, video footage captured peaceful protestors gathered together at the Lekki Toll Gate. The protestors were seen dancing, singing, and styling their hair. Many of the hair stylists inscribed the words #EndSars on their heads, while speeches were made from a platform at the front of the Lekki Toll Gate.

After the continuous stream of violence that occurred that night, there were several bullet casings found in the streets of Lagos, and the Lekki Toll Gate was destroyed. Members of the Lagos State Judicial panel investigated the allegations of excessive force and visited the Lekki Gate Toll bridge to gain insight into the events that transpired on that evening. The panel was led on a tour by the head of Lekki Concessions Centre, the group that supervises and runs the gate.

Through the investigation, a series of photos were taken and the Judicial panel investigated the room that housed the CCTV Footage from the evening. There were several holes in the windows leading the panel members to assume the holes were caused by bullets. Members of the panel found the bullet casings about one week after Amnesty International announced the shootings. However, the Nigerian police and the army have dismissed Amnesty International’s contentions claiming them to be fictitious and unfounded.

Leaders worldwide have spoken directly to President Muhammadu Buhari to end the violence in the streets of Lagos. Britain’s Secretary of State for Foreign affairs, Dominic Raab, called for an end to the violence in Nigeria and demanded a series of wide-ranging reforms. Rabb stated, “The Nigerian government must urgently investigate reports of brutality at the hands of the security forces and hold those responsible to account.”

Representatives from the African Commission on Human and People’s Rights (the Commission) have voiced sincere concern for the lethal force that has been used against protestors. News outlets including Amnesty International Nigeria, ActionAid Nigeria, and the Human Rights Watch have created a list of demands including an “urgent review and implementation of the various reports on police and security reform” and “the respect and protection for the rights to peaceful protest and assembly.” Like many, the Commission has called upon the Nigerian government to take proactive measures in the process of dismantling the SARS officers including withdrawing military forces and implementing measures for comprehensive reform of the Nigerian law enforcement.

For further information, please see:

African Commission on Human and People’s Rights – Press statement on unlawful killings by security forces in Nigeria – 22 Oct. 2020

Amnesty International – Nigeria: The Lekki Toll Gate massacre – new investigative timeline – 28 Oct. 2020

BBC NEWS – Bullet Casings found at site of  #EndSars Protest – 30 Oct. 2020

Human Rights Watch – Nigeria: End Excessive Force Against Protesters – 22 Oct. 2020

PRNewswire – EndSARS Protest: Majority Condemns Killings and Offers Free Calls to Nigeria – 22 Oct. 2020

Reuters – Britain calls for an end to violence in Nigeria – 21 Oct. 2020

ICC Prosecutor Files Response to Ntaganda Appeal

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 14, 2020, the International Criminal Court (“ICC”) released the public redacted version of the Prosecutor’s response to Appellant’s brief in the case of The Prosecutor v. Bosco Ntaganda.  ICC Prosecutor Fatou Bensouda presented the appellee’s brief.

Congolese warlord Bosco Ntaganda stands in the ICC courtroom during closing statements of his trial. Photo Courtesy of Reuters.

The Prosecutor’s brief addresses each of Ntaganda’s twelve grounds of appeal in turn.  Whereas Ntaganda attempted to downplay his involvement in crimes of sexual violence and slavery in grounds one through four, the Prosecutor asserted that Ntaganda played an essential role in the commission of these crimes throughout the period of the charges.  Furthermore, the Prosecutor asserted that Ntaganda himself killed and raped, participated in recruitment drives, and used children under 15 years of age as his personal escorts.  The Prosecutor maintained that the Trial Chamber assessed these factors correctly when arriving at Ntaganda’s 30-year prison sentence.  

In addressing Ntaganda’s argument in grounds seven through twelve, that the Trial Chamber failed to properly assess alleged mitigating factors, the Prosecutor asserts that the Ntaganda simply disagrees with the Court’s fair evaluation and rejection of these circumstances.  The Prosecutor stated that the Court correctly considered Ntaganda’s alleged acts of protecting civilians from attacks, saving the lives of enemy soldiers, and contributing to the reconciliation with the Lendu community, among others, however they did not carry enough weight to impact his sentence.  This difference of opinion does not indicate a failure to consider the circumstances properly.

As for grounds five and six, that the Court erred in applying some aggravating circumstances, the Prosecutor argued that Ntaganda misapplied the relevant provisions of the Rome Statute.  While Ntaganda asserted that the Court considered an improper aggravating circumstance in ground 5, the Prosecutor stated that the elements of the uncharged crime allow for it to be considered as an aggravating circumstance.  In ground 6, which Ntaganda accused the court of “double-counting” some factors the Prosecutor argued that Ntaganda failed to understand the “two-step” process the Court uses for sentencing established by article 78(3).

While grounds one through four and seven through twelve are likely based on matters which were at the discretion of the trial court, and therefore likely to be upheld on appeal, the arguments in grounds five and six present reasonably more nuanced legal issues. Particularly interesting is the Court’s “two-step” process for sentencing, in which the individual sentences for each crime is calculated before the appropriate joint sentence is determined.  While sentences are calculated two times using this process, aggravating factors are not “double-counted,” for each sentence.

No scheduling order has been released for the Appeals Hearing of Ntaganda.  Ntaganda also stated to be appealing the judgement of conviction in his notice of appeal, however no brief has been filed yet.

For further information, please see:

International Criminal Court – Prosecution Response to “Sentencing Appeal Brief” – 14 Apr. 2020

International Criminal Court – Case Information Sheet: The Prosecutor v. Bosco Ntaganda – 7 Nov. 2019

Indigenous Namibians Fight for Rights to Ancestral Land

By: Katherine Davis

Impunity Watch Staff Writer

WINDHOEK, Namibia – In 2015, eight members of the Hai//om brought a class action suit against Namibia’s government and other interested parties, seeking to gain rights in Etosha National Park, their former homeland. In November 2019, the Namibian High Court dismissed the case after Hai//om chief, David // Khamuxab withdrew his support. The Hai//om await an appeal date for the Supreme Court; however, Peter Watson, legal counsel for the Hai//om, announced that his team is prepared to take the case to the African Court on Human and Peoples’ Rights.

A Hai//om woman and children outside of their homes in the Oshikoto Region. Photo Courtesy of the Legal Assistance Centre and the Desert Research Foundation of Namibia.

The Hai//om occupied Etosha until 1954, when they were forced to leave their homes and move off of the property. This move forced them to become farm-laborers on the borders of Etosha, working for the white-owned commercial agricultural sector. Now, the Hai//om want to have a share in Etosha’s profits and the right to determine the use of the land as guaranteed to them in the African Charter on Human and Peoples’ Rights.

It is not the Hai//om’s intent to take this land away from the people of Namibia, tourists, and others. Their main goal is to promote and preserve the Hai//om culture, knowledge, and language. “If we win this case, we do not want to get rid of Etosha,” said Nicodemus Hawaseb, one of the eight applicants, in an interview with Reuters, “[w]e just want to be included in it. We want to showcase our culture to the world.”

Namibia’s government claims to be working diligently with the Hai//om in granting tourism rights, so that the indigenous communities can benefit financially from the park. However, the government refuses to label the park as ancestral land. In a phone interview with Reuters, the head of Namibia’s Wildlife and National Parks directorate, Colgar Sikopo, explained, “If we do this, then everyone else will want to claim a park of the park.”

For further information, please see:

Kim Harrisberg – Indigenous Namibians Fight for Ancestral Land in National Park – 13 Apr. 2020

Legal Assistance Centre – Constitutional Rights & Human Rights: Litigation – 2020

Xoms | Omis Project – History of the Hai||om – 2020

Werner Menges – Hai||om sue for Rights Over Etosha – 19 Oct. 2015

Ute Dieckmann, et. al. – Scraping the Pot: San in Namibia Two Decades After Independence – 2014

Appellant’s Brief Released in Ntaganda Case

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 8, 2020, the International Criminal Court (“ICC”) released the public redacted appellate brief of former Congolese militia leader and convicted war criminal Bosco Ntaganda. The brief was originally filed on February 10, 2020 but was unavailable to the public. Ntaganda is currently appealing only his 30-year sentence of imprisonment.

Bosco Ntaganda looks on in an ICC courtroom during trial. Photo Courtesy of CNN.

Ntaganda raised twelve grounds on appeal, generally asserting that the Trial Chamber failed to assess mitigating factors properly when determining his sentence. Grounds one through four claim the Trial Chamber failed to properly assess Ntaganda’s “limited” degree of participation in various crimes committed, including rape and sexual slavery. Grounds seven through twelve claim the Trial Chamber failed to properly assess mitigating conduct of Ntaganda, both during the commission of the crimes and in the courtroom. These grounds assert the Court did not properly consider that Ntaganda saved the lives of enemy soldiers, protected civilians from attacks on occasions, protected an individual from harm, contributed to reconciliation with the Lendu community, and cooperated with the Court. 

The remaining grounds assert the Court erred in assessing aggravating factors. Ground five asserts the Court considered an improper aggravating circumstance in determining its sentence, which it claims fell outside the scope of the crimes charged. Ground six asserts the Court “double-counted” certain aggravating factors to arrive at its sentence.

This is a robust brief submitted on behalf of Ntaganda. While he may find little sympathy from the Appeals Chamber for his “limited role and knowledge” in crimes of sexual violence and slavery, a merit which the Court may more thoroughly address is the question of what constitutes a proper aggravating factor. The degree of relation of the factor to the crime, relations to an uncharged crime, and how to apply the factor in a sentencing decision are all areas which the Court might provide clarity.

There is not much precedent for the appellate process of the ICC. Only two other cases have reached decision by the Appeals Chamber, both of which confirmed the Trial Chamber’s findings. In the only appellate decision, which upheld a sentence of imprisonment, the case of The Prosecutor v. Thomas Lubanga Dyilo, the Appeals Chamber declined to reduce a prison sentence, partially because the appellant had already served most of it. If the present case reaches a decision on the merits, it could solidify sentencing procedure, and depending on the outcome, empower or restrain the Trial Chambers in their sentencing decisions.

Once the Prosecutor responds to the Appellant’s brief, a hearing date will be set. The COVID-19 outbreak will likely slow progress of this appeal process, as all ICC staff members based in The Hague will be working remotely until at least April 28.  

For further information, please see:

International Criminal Court – Public Redacted Version of “Sentencing Appeal Brief” – 10 Feb. 2020

International Criminal Court – Case information Sheet: Situation in the Democratic Republic of the Congo – 7 Nov. 2019

International Criminal Court – The Prosecutor v. Thomas Lubanga Dyilo – 15 Dec. 2017