The African Union (AU)

		Website: www.africa-union.org
		Keywords: African Court of Human Rights, Hissène Habré, universal jurisdiction, crimes against humanity

First Judgment

The present report is closely connected to three previous reports on the African Union. The first concerns the project to create a single judicial organ, which will evolve from the merger between the AU Court of Justice (to become the general section) and the African Court on Human and Peoples’ Rights (the human rights section).[1] The second concerns the AU attempts to have Senegal try the former dictator of Chad, Hissène Habré, for crimes against humanity, torture, etc.[2] The third concerns Africa’s difficulties with the principle of universal jurisdiction.[3] Since reporting, nothing much has happened: the single judicial organ is still a utopia (the Protocol concluded in July 2008 to establish the African Court of Justice and Human Rights has been ratified by only two states),[4] the trial of Habré is still in limbo,[5] while the universal jurisdiction principle is still causing headaches.[6] However, the first ever case to be heard by the African Human Rights Court (hereinafter “Court”) in 2009 connected some of the dots.

In the matter of Michelot Yogogomboye v. the Republic of Senegal, applicant, a national of Chad residing in Switzerland, submitted in mid August 2008 by means of an electronic mail application to the AU Commission, a body unrelated to the Court, “with a view to obtaining suspension of the ongoing proceedings instituted by … Senegal with the objective to charge, try and sentence Mr Hissène Habré … presently asylumed in Dakar, Senegal”.[7] The application reached the Court four months later. Its gist was that Senegal, by amending its Constitution in July 2008 to allow retroactive application of criminal legislation, violated the principle of non-retroactivity of criminal legislation, which is also envisaged in Article 7(2) of the African Human Rights Charter. Further, the applicant alluded that the case was politically motivated, that Senegal had a monetary incentive in trying Habré and that the case abused the principle of universal jurisdiction, a principle having devastating effects for Africa and having the potential to harm its development.[8]  Finally, applicant asked the Court to order, inter alia, that Chad and Senegal establish a national “Truth, Justice and Reconciliation Commission” following the South African model for all crimes committed in Chad between 1962 and 2008.

On its part, Senegal submitted preliminary objections and objections regarding the admissibility of the case. In particular, Senegal argued that it had not recognized the Court’s jurisdiction to receive individual applications pursuant to Article 34(6) of the Protocol establishing the Court; that the trial of Habré was a sovereign concern of Senegal and therefore the Court could not meddle; and that applicant had no legitimate interest in the case.

In its judgment, the Court concluded that as a matter of fact Senegal had not accepted its jurisdiction to “receive” applications by individuals and, consequently, it lacked the competence to hear the case. Based on this pronouncement, the Court did not “deem it necessary” to examine the question of admissibility and indeed the many surrounding questions raised by the application. Judge F. Ouguergouz, while in agreement with the Court’s conclusions, appended a Separate Opinion where he raised a number of issues, mostly of a procedural nature. He started by analyzing the problematic wording of Article 34(6) of the Protocol and, later, based on the experience of the ICJ and the European Human Rights Court, questioned, for example, why the Court did not simply remove the case from the dock but went on to render a judgment. 

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In September 2010, the Court will convene for its 18th Ordinary Session. In the six years that (at least in theory) the Court has been in operation it has only one judgment to show and even this one judgment did not delve into the merits of the case. The Court could have validly refused even to deal with it considering that the application was addressed to the wrong entity and arguably an application lodged per electronic mail cannot lead to litigation. It presumably chose not to do so but to proceed. One would expect that the judges would have taken this opportunity and, leaving aside the quite formalistic approach that characterizes the workings of the AU, deal with the many and significant issues (both legal and procedural) that the Court’s operation entail and the present application raised.

This was a unique opportunity for the judges to, inter alia, lay down what they think the Court’s role is, or should be, in a continent that has witnessed and continues to witness the gravest violations of human rights (how to handle allegations of consistent violations as in the case of Habré?); talk about the extent of their powers even from a theoretical point of view (could the Court have ever suspended Senegal’s proceedings against Habré or could it have ruled on the legality of its Constitutional amendments?); delimitate its functions vis-à-vis the organs of the AU (could it have reviewed the Assembly Decision ordering Senegal to try Habré?); form an opinion on the use of the principle of universal jurisdiction, a matter that will come up in Belgium v Senegal, presently before the ICJ;[9] rule on the requirement that applicant must have a legitimate interest in the proceedings; and settle the issues arising from the wording of Article 34(6) of the Protocol and the access that private individuals and non-governmental organization enjoy, issues that will very likely recur.

The judges did not avail themselves of this unique opportunity and produced a judgment that is rather unworthy of a transnational judicial entity. The Separate Opinion by Judge Ouguergouz did raise some of the issues but his colleagues chose not follow this path. For the time being, concerns raised about the Court’s ability to play an effective role in cementing the protection and the promotion of fundamental freedoms in Africa are proving true.     

October 2010