Seeking Redress for Violations of the Rights of Human Rights Lawyers before the African Commission on Human and Peoples Rights

Seeking Redress for Violations of the Rights of Human Rights Lawyers before the African Commission on Human and Peoples Rights Lawyers, as a result of their education, occupation and profile, often find themselves targeted by government actors for attempting to ensure clients are afforded their basic human rights, insisting a government comport with its own laws, or simply carrying out basic legal tasks. Reports on a few recent situations are illustrative: Amie Bensouda was arrested by Gambian authorities on December 3, 2012, after trying to obtain previous court judgments for a project for the World Bank. She was not informed of the charges against her while held incommunicado for two days, although there have been subsequent suggestions that her arrest followed an unsubstantiated complaint by a former Acting Chief Justice that her activities undermined the administration of the Gambia judiciary. 1 On October 22, 2012, Fabian Nsue Nguema was detained by authorities in Equatorial Guinea after repeatedly attempting to visit a school teacher, also being held without charges, in a local prison. He was released after nine days of solitary confinement. 2 Fathi Terbil, a Libyan attorney, represented the families of 1,200 prisoners killed in custody by the Qadhafi regime to suppress a mutiny. A thorn in the government s side, he was arrested at least seven times. On February 15, 2011, he was detained yet again. The families of those killed while incarcerated rallied against his arrest, a catalyst for the Libyan uprising which toppled Qadhafi s regime. 3 So when and how can the African Commission on Human and Peoples Rights, an institution created specifically to promote human and people s rights and ensure their protection in Africa, 4 be utilized to protect the rights of those lawyers who face persecution for attempting to do the same in their own communities? 1 Amensty International Public Statement, December 21, 2012, available at: http://www.amnesty.org/en/library/asset/afr27/015/2012/en/a2e01fdf 8037 43da 89fb 465d671254da/afr270152012en.pdf (last visited February 26, 2013). 2 Amnesty International Urgent Action Memorandum, October 31, 2012, available at: http://www.amnesty.org/en/library/asset/afr24/011/2012/en/3d8ced7e 839c 4ff3 a3b2 4fc47f5b8017/afr240112012en.pdf (last visited February 26, 2013) 3 Ludovic Traireux International Human Rights Prize 2011 Press Release, available at: http://www.ludovictrarieux.org/pdf/pressplt2011uk.pdf (last visited February 26, 2013); see also, Time Magazine, The 2011 Time 100, available at: http://www.time.com/time/specials/packages/article/0,28804,2066367_2066369_20664 67,00.html (last visited February 26, 2013). 4 African Charter on Human and Peoples Rights, Article 30. The Charter is available at: http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf (last visited February 26, 2013). 1

The answer, to a certain extent, can be found in two extremely helpful information sheets created by the Commission, as well as the Commission s Rules of Procedure, including, but not limited to, Rules 93 through 113. 5 However, the Commission has generated a significant number of decisions, which provide potentially relevant argument and authority for lawyer complainant or their counsel, who are contemplating the filing of a communication. 6 To obtain a favorable recommendation from the Commission, the complainant will be required to establish both the jurisdictional (admissibility) propriety and substantive violations relevant to the Commission s ultimate determination. 7 We look at relevant jurisprudence for each in turn. Admissibility Requirements While Article 56 of the Charter sets out seven elements that must be met before the Commission will hear a communication submitted by an interested party, most are easily met. Two, however exhaustion and timeliness require special attention. [T]he rule of exhausting domestic remedies is the most important condition for admissibility of communications, there is no doubt therefore, in all communication seized by the African Commission, the first requirement considered is the exhaustion of local remedies. 8 It is founded on the principle that a government should have notice of a 5 See Communications Procedure, available at: http://www.achpr.org/communications/procedure/ (last visited February 26, 2013), and Guidelines for the Submission of Communications, available at: http://www.achpr.org/files/pages/communications/guidelines/achpr_infosheet_communi cations_eng.pdf (last visited February 26, 2013). The Rules of Procedure are also available at: http://www.achpr.org/files/instruments/rules of procedure 2010/rules_of_procedure_2010_en.pdf (last visited February 26, 2013). Additionally, the African Human Rights Case Law Analyser includes a collection of 194 Commission cases, as well as those from other African human rights bodies, in a searchable format. Available at http://caselaw.ihrda.org/acmhpr/ (last visited February 26, 2013). 6 Given the brevity of this treatment, those seeking redress before the Commission should use this article as a starting point for conducting more exhaustive research and analysis. In addition to the prior decisions of the Commission, one should also review potentially relevant international and regional instruments on human rights as well as the decisions rendered by other humanitarian bodies, as both are regularly cited by the Commission. 7 Both admissibility and substantive violations must be addressed in the initial communication, in some fashion, or the Secretary will not forward the communication to the Commission. Rules of Procedure, Rule 93. However, complainants are also afforded the opportunity to file subsequent briefing on admissibility (after the Commission has decided it will be seized of the communication, and on substantive violations (after the Commission has found that the communication is admissible). See Rules of Procedure, Rules 105, 108. Nonetheless, some consideration should be given to providing more detailed information, particularly on the issue of exhaustion, at this initial stage. 8 228/99 : Law Offices of Ghazi Suleiman / Sudan, 29. 2

human rights violation in order to have the opportunity to remedy such violations before being called before an international body. 9 Such a requirement prevents the Commission from acting as a court of first instance rather than a body of last resort. 10 To be capable of exhaustion, the remedy must be available, effective and sufficient A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint. 11 In other words, [t]he existence of a remedy must be sufficiently certain, not only in theory but also in practice, failing which, it will lack the requisite accessibility and effectiveness. 12 Thus, where a complainant is constantly threatened, harassed and imprisoned, of course he would have no access to local remedies, and they would be considered to be unavailable to him. 13 Additionally, if a remedy is unduly prolonged, exhaustion of that remedy is not required. 14 In the first two examples discussed in the introduction, there likely has been insufficient opportunity for state officials to remedy these situations; in the latter, the pattern of arrests would probably suffice (although the change in the regime is a complicating although not necessarily excluding factor). The Charter does not provide a specific statute of limitations or other enumerated time frame for when a communication must be tendered. Rather the length of time from the event or events at issue to submission of the communication must be reasonable. On two occasions, the Commission has found communications to be untimely when the act complained of occurred more than two years prior to submission of the communication. 15 The Commission has noted the six month period set out in the European Convention on Human Rights and Fundamental Freedoms and American Convention on Human Rights, 16 but certainly has not limited complainants to such a specific time frame. Thus, the complainant must carefully weigh his or her situation to ensure that local remedies have been exhausted, while ensuring that he or she does not delay too long, and clearly communicate the basis of admissibility of the communication to the Commission. Substantive Violations 9 25/89 47/90 56/91 100/93, Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'homme, Les Témoins de Jehovah/DRC, at 36. 10 147/95 and 149/96, Sir Dawda Jawara / The Gambia, at 31 32. 11 147/95 and 149/96, 31 32. 12 228/99, 32. The remedy, if judicial in nature, cannot be subordinate to the discretionary power of the public authorities. Id. at 30. 13 228/99, 33. 14 See also, 147/95 and 149/96, at 34. 15 305/05 : ARTICLE 19 and Others v Zimbabwe, at 91; 310/05 : Darfur Relief and Documentation Centre / Sudan, at 75. 16 European Convention, Article 35; American Convention, Article 41(1)(b). 3

When a lawyer is specifically targeted, the individual rights found in Articles 1 to 18 of the Charter are generally those which have been violated (although all options should be explored). Certain of those individual rights are more likely to be at issue here. 17 1. Article 6 As illustrated by the examples above, one of the most obvious and frequently violated rights is the right to be free from arbitrary arrest and detention. Article 6 lays out the right to liberty and security of the person, limiting deprivation of the right to reasons and conditions previously laid down by law. 18 The right to liberty, as contemplated by Article 6, includes both freedom from restraint and security of the person. 19 The former is the ability to do as one pleases, provided it is done in accordance with the law. 20 The question immediately arises as to when an arrest or detention is arbitrary (which is specifically prohibited by Article 6) or when it lawfully made. As a general rule: 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 remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. 21 Prior Commission recommendations have required that: Arrests must be conducted under the authority and supervision of persons procedurally and substantively competent to certify it. 22 Persons who are arrested shall be informed at the time of arrest of the reason for their arrest and any charges against them. 23 17 As noted above, a communication which can set out violations of specific enumerated rights under the Charter should satisfy the fourth jurisdictional requirement. 18 Personal liberty is a fundamental condition, which everyone should generally enjoy. Its deprivation is something that is likely to have a direct and adverse effect on the enjoyment of other rights, ranging from the right to family and private life, through the right to freedom of assembly, association and expression, to the right to freedom of movement. 279/03 296/05 : Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) / Sudan, 171. 19 279/03 296/05, 172 174. 20 279/03 296/05, 172. 21 275/03, 92; see also, 279/03 296/05, 147. 22 279/03 296/05, 172, citing 241/01 : Purohit and Moore / Gambia (The), 65. 23 Resolution on the Right to Recourse Procedure and Fair Trial, quoted in 292/04 : Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) / Angola, 54. 4

The lawfulness and necessity of holding someone in custody must be determined by a court or other appropriate judicial authority. 24 The decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. 25 Every detained person must have prompt access to a lawyer and to their families and their rights with regards to physical and mental health must be protected as well as entitlement to proper conditions of detention. 26 In addition, the Commission has expressly stated that incommunicado detention is a gross human rights violation, noting that it can lead to other violations, such as torture or illtreatment or interrogation without due process safeguards, and itself can be a form of cruel, inhuman or degrading punishment and treatment. 27 The second prong of Article 6 is the security of the person, which, according to the Commission, can be seen as an expansion of rights based on prohibitions of torture and cruel and unusual punishment. 28 It is a broad concept, expanding to national security issues i.e., how the State protects the physical integrity of its citizens from external threats and individual security how the State protects the physical integrity of its citizens from abuse by official authorities and other citizens. Thus, Article 6 can be used to protect the lawyer from actions of militias or other quasi state actors, who might seek to promote state agenda in silencing the attorney when the state turns a blind eye. 2. Article 7 Article 7 generally provides that every individual shall have the right to have his cause heard and applies to both criminal and civil litigation. Those seeking to protect the rights of lawyers may find one or both prongs applicable to their situation. 24 250/02 : Liesbeth Zegveld and Mussie Ephrem / Eritrea, 56. 25 250/02, 56; see also, 275/03, 92 (detention must be necessary under the circumstances ). 26 250/02, 55. 27 250/02, 55. 28 279/03 296/05, 14. Thus, Articles 4 (inviolability of human beings and the entitlement to respect for life and integrity of the person) and 5 (prohibiting all explotation and degreadation of man, including cruel, inhuman or degrading punishment or treatment) may also be asserted under such circumstances. Key cases interpreting these articles include: 279/03 296/05, 146 143, 155 158; 334/06 : Egyptian Initiative for Personal Rights and Interights v. Egypt, 228 232; 292/04, 49 53. 5

For those accused of criminal acts, there are several specifically enumerated rights listed in Article 7, including the right to be presumed innocent until proved guilty; the right to defence, including the right to be defended by counsel of his choice; and the right to be tried within a reasonable time before an impartial tribunal. Thus, where public officials declare suspects guilty prior to trial, manufacture evidence, compel convictions or improperly attempt to convince the public of the suspects guilt prior to trial, the right to be presumed innocent is violated. 29 The right to choose freely one s counsel is fundamental for the guarantee of a fair trial. 30 Persons arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released. 31 The right to an impartial tribunal has been frequently recognized by the Commission. 32 Violations of Article 7 may also result in violations of Article 6 that is, when the right to have one s cause heard is violated, other acts of violations may also be committed such that the detentions become illegal 33 In addition to the rights of an accused, Article 7 also ensures that a complainant has the right to have his cause (a violation of his rights) heard in a state forum. In short, an individual has the right to have an effective remedy i.e., one that is available and accessible. 34 For the remedy to be effective, the decision of the domestic court must be enforced by the state. 35 An attorney seeking protection of his or her other rights, unrelated to the criminal process, may be able to advance that cause with the Commission based on the domestic judiciary s unwillingness or inability to address those concerns. 3. Article 3 29 222/98 229/99 : Law Office of Ghazi Suleiman / Sudan, 54 55. 30 222/98 229/99, 59, quoting 48/90, 50/91, 52/91, 89/93 Amnesty International et al. / Sudan, 64. 31 275/03, 96. 32 275/03, 67; see also, 334/06, 191 208; 281/03 : Marcel Wetsh okonda Koso and others / DRC, at 76 81. In addition, Article 26 of the African Charter, regularly applied by the Commission, provides that States Parties have the duty to guarantee the independence of the Courts. See e.g., 266/03 : Kevin Mgwanga Gunme et al / Cameroon, 209 211. 33 222/98 229/99, 52. 34 272/03 : Association of Victims of Post Electoral Violence & INTERIGHTS / Cameroon, 128 130 (right to a have cause heard in an expedient manner was violated because their petition had been pending in the state court for five years prior to filing communication with Commission). See also, 292/04, 56 60 (violation of Article 7 where complainants not afforded the opportunity to take their illegal deportation to court). The right to appeal a necessary to an effective Article 7 remedy and is also relevant to the exhaustion requirement for admissibility purposes. 228/99, 35. 35 253/02 : Antonie Bissangou / Congo, 73 75. 6

Although receiving relatively light treatment in prior Commission recommendations, Article 3 may also play an important role if the lawyer has been wrongfully singled out by government actors, providing that every individual shall be equal before the law and entitled to equal protection of the law. Equality before the law relates to the status of individuals before the law, while equal protection by the law concerns the implementation of the law and is applicable where the rights of the Complainant are implemented unequally. 36 Although Article 2 focuses on the group association of the individual race, ethnicity, political persuasion Article 3 is specific to the individual complainant s treatment as compared to others treatment under the law. 37 Thus, to the extent an attorney might be denied the same access to legal process that others are afforded, he could potentially have a claim under Article 3. 4. Article 14 Article 14 states: The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. The Commission has elaborated: The right to property is a traditional fundamental right in democratic and liberal societies The right to property encompasses two main principles. The first one is of a general nature. It provides for the principle of ownership and peaceful enjoyment of property. The second principle provides for the possibility, and conditions of deprivation of the right to property. 38 36 253/02, 70. While the Commission has regularly found a violation of Article 1 (imposing a duty for state parties to recognize the rights duties and freedoms enshrined in the Charter and to undertake to...measures to give effect to them ) when any other article has been violated, it may also be invoked on distinct equal protection grounds. 294/04 : Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) / Zimbabwe, 96 98 (citing it for the right by all to equal treatment under similar conditions). 37 292/04, 47 ( In order for a Complainant to establish a successful claim under Article 3(2) of the Charter therefore, it must show that, the Respondent State had not given the victims the same treatment it accorded to the others. ). 38 373/09 : INTERIGHTS, Institute for Human Rights and Development in Africa, and Association Mauritanienne des Droits de l Homme / Mauritania, at 43 44; 279/03 296/05, 192 93. The Commission has further explained: While the right to property under the African Charter is not absolute, the Respondent State has not provided evidence to prove that its actions were necessitated either by public need or community interest. Without such a justification and the provision of adequate compensation determined by an impartial tribunal of competent jurisdiction, the African Commission finds the Respondent State s actions in violation of the right to property under Article 14 of the African Charter. 292/04, 73. 7

While the right to property is often invoked following mass human rights violations, 39 the Commission has also found violation of the right in more limited situations, such as the confiscation of property of political parties 40 and newspapers. 41 5. Article 15 The right to work under equitable and satisfactory conditions, and receive equal pay for equal work is guaranteed by Article 15. To the extent a state takes actions to limit the lawyer s ability to work (including in defense of others human rights), a violation of Article 15 may have occurred. The Commission has found violations of Article 15 in a number of situations, including: when a newspaper was closed by the government, preventing the complainants and their employees from working 42 ; where those lawfully working in Angolan mines were deported without any possibility of due process 43 ; and where a magistrate was prevented from returning to work as a magistrate, even though others similarly condemned by a military tribunal and subsequently amnestied were reinstated. 44 6. Political Rights Provisions In a case directly involving the rights of a human rights attorney, Ghazi Suleiman submitted a communication to the Commission for violations of Articles 9 (the right to receive information and express and disseminate opinions), 10 (right to free association), 11 (the right to assembly freely with others), and 12 (right to freedom of movement and residence within the borders of the State). 45 The Commission focused on Article 9, stressing the fundamental importance of freedom of expression and information as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms. 46 After noting that Mr. Suleiman had a history of promoting and encouraging human rights the very reason for the offensive conduct by Sudanese 39 276/03 : Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya, 191; 279/03 296/05, 194; 272/03, 133 136. 40 373/09, 42, 45. 41 284/03 : Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe / Zimbabwe, 179. 42 284/03, 179. 43 292/04, 75 76 44 39/90_10AR : Annette Pagnoulle (on behalf of Abdoulaye Mazou) / Cameroon, 29. 45 The Commission has dealt with each of these articles in substantially greater detail in the following recommendations: 284/03, 92 94, 100, 106 108 (Article 9); 250/02, 58 62 (Article 9); 251/02 : Lawyers of Human Rights / Swaziland, 34 36, 60 (Articles 9 11); 242/01 : Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l'homme / Mauritania, 76 (Article 10); 266/03, 134 138 (Article 11); 54/91 61/91 96/93 98/93 164/97_196/97 210/98 : Malawi African Association et al. / Mauritania, 109 111 (Article 11); 279/03 296/05, 187 190 (Article 12). 46 228/99, 40. 8

government the Commission found that multiple arrests, an attack and threats preventing Mr. Suleiman from travelling to a conference to deliver a lecture on human rights, were violations of each of these articles. 47 Final Thoughts Bringing a claim before the Commission is not the answer for every situation. There must be a substantive violation of a right guaranteed by the Charter and local remedies must be exhausted, among other requirements. And the process can take a very long time. But, in some cases, it may be the best option for a lawyer, who, in defending others or attempting to advance human rights, has found his or her own rights violated. A well drafted communication (and subsequently submitted materials), cognizant of Commission rules and jurisprudence, could result in a recommendation from the Commission that facilitates the recognition of the lawyer s rights when the state has previously refused to do so. 47 While not raised by the complainant, the Commission also found the acts of the Sudanese government to violate Article 6 (discussed in more detail above). 228/99, 53. 9