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Improving the Protection of Human and Peoples’ Rights in Africa: Reflections from the Yogogombaye Case

Document Cited authorities 7 Cited in Related
Vincent
AuthorBrian Sang Y.K.
DOI10.3366/ajicl.2012.0040
Pages341-364
Published date01 October 2012
Date01 October 2012
<p><disp-quote> <p>C'est un petit pas pour la Cour africaine des droits de l'homme et des</p> <p>peuples, mais un bond de géant pour le système africain de protection</p> <p>des droits de l'homme.<xref ref-type="fn" rid="fn1"><sup>1</sup></xref><fn id="fn1"><label>1</label><p>G.-F. Ntwari, ‘Note sur le premier arrêt de la Cour africaine des droits de l'homme et des peuples’, 18(2) <italic>African Journal of International and Comparative Law</italic> (2010): 233–7, 233. The statement is a French paraphrased version of Neil Armstrong's famous statement as he bounced on the lunar surface. It translates as: ‘It's one small step for the African Court of Human and Peoples’ Rights, but a giant leap for the African system of human rights protection’ (translation by author).</p></fn></p></disp-quote></p> INTRODUCTION

On 15 December 2009, the African Court on Human and Peoples’ Rights (‘the African Court’ or ‘the Court’), sitting in Arusha, Tanzania, rendered its historic maiden judgement in Michelot Yogogombaye v the Republic of Senegal.2

Application no. 001/2008, Judgement (2010) 49 ILM 850 (hereinafter Yogogombaye Majority Judgement); J. D. Mujuzi, ‘Michelot Yogogombaye v The Republic of Senegal’, 10(2) Human Rights Law Review (2010): 372–81, 372; C. B. Murungu ‘Judgment in the First Case before the African Court on Human and Peoples’ Rights: A Missed Opportunity or a Mockery of International Law in Africa?’, available at http://ssrn.com/abstract=1526539 (accessed 20 May 2011).

The applicant in this case, a Chadian national resident in Switzerland, sought to prevent the prosecution of Hissène Habré for crimes against humanity and war crimes, including torture, which were committed during his eight-year regime.3

C. C. Jalloh, ‘Michelot Yogogombaye v Republic of Senegal’, 104 American Journal of International Law (2010): 620–8, 620; S. P. Marks, ‘The Hissène Habré Case: The Law and Politics of Universal Jurisdiction’, in S. Macedo (ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Crimes, University of Pennsylvania Press (2004), p. 135.

 This application came in the wake of earlier attempts at holding Hissène Habré to account for these crimes

In 2000, an attempt to prosecute him in Senegal stalled owing to provisions against retroactive application of criminal law in the Senegalese Constitution.4

Human Rights Watch, The Trial of Hissène Habré: Time is Running Out for the Victims, Human Rights Watch (2007): 1; E. Olufemi, ‘Introductory Note to the African Court on Human and Peoples’ Rights: Yogogombaye v Senegal’, 49(3) International Legal Materials (2010): 850–7, 850; M. Niang, ‘The Senegalese Legal Framework for the Prosecution of International Crimes’, 7 Journal of International Criminal Justice (2009): 1047–62, 1048.

An international arrest warrant and request for extradition for Hissène Habré was subsequently issued by a Belgian Court for the international crimes committed during his regime.5

Belgium v Senegal, Application Instituting Proceedings (ICJ 19 February 2009).

 However, Senegal neither prosecuted nor extradited Habré to Belgium, leading to a complaint of its violation of the United Nations Convention against Torture6

Articles 5(2) and 7, United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, GA Res 39/46, annex, 39 UN GAOR Supp (no. 51), 197, UN document A/39/51 (1984), entered into force 26 June 1987), ratified by Senegal on 21 August 1986.

 being instituted against Senegal before the United Nations Committee against Torture.7

Suleymane Guengueng et al v Senegal, Communication no. 181/200, CAT/C/36/D/181/2001, 19 May 2006; Human Rights Watch, supra note 4, 5–6.

 Later on, Senegal's alleged violation of its obligation to prosecute or to extradite Habré to Belgium was the subject of an application before the International Court of Justice (ICJ).8

Belgium v Senegal, Questions relating to the Obligation to Prosecute or Extradite, Provisional Measures (ICJ 28 May 2009).

 A subsequent decision of the African Union9

Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3.

 (AU) Assembly expressly directed Senegal to ensure the prosecution of Habré ‘on behalf of Africa’.10

Decision on the Hissène Habré Case and the African Union, document Assembly/AU/3 (VII), paragraph 5 (1–2 July 2006); Human Rights Watch, supra note 4, 1.

 This prompted the amendment of the Senegalese Constitution to allow for retrospective application of criminal law, thus making provision for the prosecution of Habré.11

Olufemi, supra note 4, 850.

This article provides a brief commentary on the issues raised in the Yogogombaye judgement. It also discusses the lessons that may be gleaned from the judgement by not only the African Court, but also other regional human rights protection mechanisms for the development of their jurisprudence. With particular regard to the African Court, it is noteworthy that it has more recently issued its first Order for Provisional Measures against Libya in response to a case submitted by the African Commission on Human and Peoples’ Rights (‘the African Commission’). The second part of this article sets the scene for the maiden judgement of the Court by providing a general introductory background to the African human rights system. The third part presents a commentary on the unfolding scenes in the Yogogombaye application in three sections: (i) a summary of the arguments raised by both the applicant and the respondent; (ii) the majority judgement; and (iii) the Separate Opinion of Judge Ouguergouz. The fourth part of the article highlights the implications of the Court's first judgement on the development of international law in Africa before concluding in the fifth part.

 BACKGROUND: SETTING THE SCENE FOR THE AFRICAN COURT'S FIRST JUDGEMENT IN <bold><italic>YOGOGOMBAYE</italic></bold>

The spectre of horrific, systematic human rights violations on a massive scale has, for a long time, continued to be a prominent and devastating feature of Africa's recent history, and has afflicted the lives of millions of people across the continent.12

N. J. Udombana, ‘Towards the African Court on Human and Peoples’ Rights: Better Late than Never’, 3 Yale Human Rights and Development Law Journal (2000): 45–111, 46; U. Umozurike, ‘The African Charter on Human and People's Rights’, 77 American Journal of International Law (1983): 902–12, 902; S. Sceats ‘Africa's New Human Rights Court: Whistling in the Wind?’ (2009), International Law Briefing Paper 1–2, available at http://www.chathamhouse.org.uk/files/13587_bp0309sceats.pdf (accessed 20 May 2011); V. Dankwa, ‘The African Charter on Human and Peoples’ Rights: Hopes and Fears’, in African Law Association (ed.), The African Charter on Human and Peoples’ Rights: Development, Context, Significance, Marburg (1990), pp. 4–5.

Efforts to combat this problem are apparent in the fact that the idea of a regional human rights court was envisaged as early as the 1960s.13

C. Heyns, ‘The African Regional Human Rights System: The African Charter’, 108 Penn State Law Review (2004): 679–702, 681–5; Jalloh, supra note 3, p. 623.

 However, it took an inordinately long time – over 40 years – for such a prospect to come to fruition.14

F. Viljoen, International Human Rights Law in Africa, Oxford University Press (2007), pp. 420–2; Jalloh, supra note 3, p. 623.

 The first judicial mechanism for accountability was the African Commission – sitting in Banjul, Gambia15

For an explanation of the reasons leading to the establishment of the African Commission's headquarters in Banjul in the Gambia, see F. Viljoen, ‘Overview of the African Human Rights System’, in C. Heyns (ed.), Human Rights Law in Africa 1998, Kluwer International (2001), p. 150.

 – which was established under the African Charter on Human and Peoples’ Rights,16

Article 30, African Charter on Human and Peoples’ Rights (adopted 27 June 1981, OAU document CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986).

 and to which complaints could be made by individuals and non-State actors against African States.17

G. J. Naldi (ed.), Documents of the Organization of African Unity, Mansell (1992), p. 151; R. Murray, ‘Decisions by the African Commission on Human and Peoples’ Rights on Individual Communications under the African Charter on Human and Peoples’ Rights’, 46 International Law & Comparative Law Quarterly (1997): 412–34, 412–13.

 Unfortunately, the effectiveness of the Commission was dismal,18

W. Benedek, ‘The African Charter and the African Commission on Human and Peoples’ Rights: How to Make it More Effective’, 11 Netherlands Quarterly of Human Rights (1993): 25–40, 25; C. E. Welch, ‘The African Commission on Human and Peoples’ Rights: A Five Year Report and Assessment’, 14 Human Rights Quarterly (1992): 43–61, 43.

 compromised by, inter alia, a slow institutional start,19

Jalloh, supra note 3, p. 623; C. Flinterman and E. Ankumah, ‘The African Charter on Human and Peoples’ Rights’, in H. Hannum (ed.), Guide to International Human Rights Practice, Pennsylvania University Press (1992), p. 159; R. Gittleman, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’, 22 Virginia Journal of International Law (1982): 667–714, 667.

 ineffective confidential procedures, limited powers of investigation and enforcement,20

K. O. Kufuor, ‘Safeguarding Human Rights: A Critique of the African Commission on Human and Peoples’ Rights’, 18 Africa Development (1993): 65–77, 66–9; Z. Motala, ‘Human Rights in Africa: A Cultural, Ideological, and Legal Examination’, 12 Hastings International and Comparative Law Review (1989): 373–410, 405.

 State indifference and non-compliance owing to the absence of a binding force to its decisions,21

R. M. D'Sa, ‘The African Charter on Human and Peoples’ Rights: Problems and Prospects for Regional Action’, 10 Australian Year Book of International Law (1981–3): 101–30, 126; M. Hansangule, ‘The African Charter on Human and Peoples’ Rights: A Critical Review’, 8 African Yearbook of International Law (2000): 265–332, 267; G. J. Naldi and...

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