Second African Human Rights Moot Court Competition
Lusaka, Zambia, 8 – 11 July 1993
The Second African Human Rights Moot Court Competition took place in Lusaka, Zambia, from 8 to 11 July 1993. Law teachers and students from 29 universities in countries south of the equator participated. Chief justices or their representatives from nine countries presided in the final round.
The competition was held in the Mulungushi Conference Centre. The event was jointly organised by the Centre for Human Rights, University of Pretoria, the University of Zambia and the University of the Western Cape. The theme was Southern Africa: From human wrongs to human rights.
The proceedings were opened by Dr Ludwig Sondashi, Zambian Minister of Legal Affairs. The address during the offi cial dinner was by Dr Badawi, Chairperson of the African Commission on Human Rights. He described the event as “a signifi cant contribution to make the creation and strengthening of a human rights culture a sure way to make up for the wrongs of the past and to establish on a solid basis a course of action will ensure democracy, the rule of law, social justice and full respect for human rights and for building societies where the spirit of understanding, mutual respect and solidarity will prevail.”
The team from the University of the Witwatersrand, Johannesburg, won the competition. The University of Natal (Durban) came second, with Nairobi, Kenya in the third and Zimbabwe in the fourth place. Among the fi rst ten teams were Zambia, Tanzania, Durban-Westville, the Orange Free State, Mauritius and UNISA.
In the fi rst round of the competition arguments were heard by the deans of all participating law faculties or their representatives. In the fi nal round the chief justices of Kenya and Lesotho presided over a panel with judges from Malawi, Zambia, Namibia, Botswana, Mozambique, South Africa and Zimbabwe as members. South Africa was represented by justice of appeal Howie.
The purpose of the competition was inter alia to promote human rights in Southern Africa and to enable students and academics of different countries to come into contact with each other. A panel discussion on human rights in Africa, with the Zambian Minister of Housing and Local Government, Dr Roger Chongwe, as chairman, also took place. Various academics, including Professor I Shivji of Dar-Es-Salaam and Professor Johann van der Westhuizen of the University of Pretoria, participated.
It is the year 1995. On 1 June 1994 the Southern African Convention on Human Rights (“the Convention”) became binding on all African counties south of the equator, after all of them had previously signed and ratifi ed it. Article 1 of the Convention calls the Southern African Court on Human Rights (SACHR) into existence. This court has jurisdiction as a court of fi nal instance “in all disputes arising from the interpretation and application of instruments for the protection of fundamental rights incorporated in the constitutions of countries parties to the Convention.”
(Article 2(a) of the Convention). The parties also agreed to accept the judgements of the SACHR as “final authority in respect of adjudication of matters brought before it” (Article 2(b) of the Convention). Nationals of any of the countries parties to the Convention can bring cases to the SACHR and “subject to the provisions of Article 2(a) of this Convention, the Court shall have the authority to set aside any judgement of any court in any country party to the Convention and grant the relief it may deem fi t in the particular circumstances” (Article 2(c) of the Convention).
It is furthermore stipulated that all disputes brought before the SACHR shall be decided on the basis of Articles 1-29 of the African Charter on Human and Peoples’ Rights, that the provisions of the Charter “shall prevail over the provisions of national instruments for the protection of human rights” and that “in case of doubt, relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights may also be consulted” (Article 3 of the Convention).
The Southern African countries Sambezia, Kunenia and Caprivia are all parties to the Convention. The following two cases have been brought before the SACHR:
1. On 1 July 1993 a democratically elected government replaced an authoritarian minority regime in Sambezia, and a new constitution with a justiciable Bill of Rights came into operation. The constitution provides that all legislation in force on 1 July 1993 shall remain in force until revoked or amended by legislation or until struck down by a competent court of law. The Sambezian Bill of Rights contains provisions against cruel and inhuman punishment (Article 10(b)) and against the retroactive operation of statutes (Article 22). Article 2 of the said Bill of Rights protects the fundamental right to life of the individual and Article 10(a) guarantees a fair trial “in all proceedings of a contentious nature during which any right or privilege of an individual stands to be affected adversely”. Capital punishment is, however, not ruled out explicitly.
2. Mr Beresford Banda was a captain in the Sambezian security police until the end of April 1993 when he retired. He was suspected of being responsible for the deaths of several people who were detained under legislation authorising detention without trial. On 15 May 1993 a Commission acting in terms of section 3 of the Indemnity Act 66 of 1992 (which took effect on 1 August 1992) indemnifi ed Banda against “any prosecution, which might arise from any act committed by him in the course of his duty as a member of the security police”. Shortly after coming into offi ce the new government passed the Further Indemnity Act 12 of 1993 which took effect as from 1 September 1993 and which provided for the appointment of a Commission r\to revise “all case of indemnity dealt with in terms of the Indemnity Act 66 of 1992” (section 1 of the 1993 Act) and to act on the guidelines laid down in the 1993 Act. The Act furthermore provided for the right of “all parties likely to be affected by fi ndings of the Commission” to be present during proceedings before the Commission (Section 4(a) of the 1993 Act). Should a party, after having been duly summoned, fail to appear before the Commission, “the Commission will be entitled to continue its proceedings, to hear evidence and to make a fi nding in the absence of the person or persons so summoned” (Section 4(b) of the 1993 Act).
3. On 22 September 1993 a summon to appear before the commission on 10 October 1993 was duly and legally served on Mr Banda. He was advised that his indemnity against prosecution decided by the Commission in May 1993 was to be revised in terms of the guidelines laid down in the new Act. On 9 October 1993 Banda left Sambezia for Caprivia and failed to attend to the proceedings of the commission on 10 October. He told a newspaper that as far as he was concerned the proceedings before the Commission were a nullity and that he saw no reason why he should be tried “for offences of which I have already been acquitted”. The Commission continued its proceedings in the absence of Banda and ruled that in terms of the guidelines laid down in the 1993 Indemnity Act, he did not qualify for indemnity and that he could therefore, be prosecuted. Banda was subsequently extradited to Sambezia by the authorities in Caprivia who acted in terms of an extradition treaty existing between the two countries. He was then charged with, and eventually found guilty of murder without extenuating circumstances.
4. During the trial it became known that Banda had been convicted before this trial in Caprivia on two separate counts of murder. These date from before he had joined the security forces. The second of those murders was committed while he served a prison sentence imposed for the fi rst murder. Banda was, however, granted executive pardon on both counts and released from prison in order to join the security forces.
5. On 10 March 1994 the Sambezian Supreme Court sentenced Banda to death on all fi ve counts. Section 223 of the Sambezian Criminal Procedure Act provides for the automatic review of all death sentences by the Sambezian Court of Appeal (which also acts as Sambezia’s highest court in constitutional matters). Banda’s sentence was so reviewed on 10 August 1994 and the Court of Appeal commute the death sentence to life imprisonment, ruling that the death penalty had become unconstitutional in Sambezia after the commencement of its new constitution on 1 July 1993.
6. Banda now approaches the SACHR for an order declaring that he had been properly indemnifi ed in terms of the Indemnity Act 66 of 1992, that the revision of his indemnifi cation in terms of the Further Indemnity Act 12 of 1993 was null and void and that he should therefore not have been prosecuted, convicted and sentenced in the Sambezian court. In the alternative, should the SACHR fi nd that he had been properly prosecuted for, and convicted of murder, he should have the right to choose whether he wants to be executed or not, since lifelong imprisonment is a cruel and inhuman punishment and someone convicted of a capital crime and sentenced to lifelong imprisonment has the right to decide whether he or she wants to be executed.
The Government of the Republic of Sambezia is the Respondent.
1. The family Sakala and Mr Brian Sakala are the Applicants, and the Government of the Kingdom of Caprivia is the Respondent in a case before the SACHR, the circumstances of which are the following:
2. Mr Raymond Sakala is a national of Kunenia and his wife Winifred a national of Caprivia. They married in Kunenia in 1965 and lived there until the end of 1991. They have three children: Brian born in 1969, Constance born in 1974 and Alfred born in 1977. Mr Sakala was a lecturer at a teachers’ training college in the Eastern province of Kunenia where he was an active member of a political party opposing the government. His eldest son, Brian, graduated from the same college and was also active in opposition politics. Mr Sakala was reliably informed by a friend that the security police was about to interrogate him and Brian about their political activities and that they would most probably be detained in terms of legislation authorising the detention without trial of “anyone constituting a threat to the security of the State”. He then decided to fl ee from Kunenia and to seek asylum in Caprivia. His family accompanied him.
3. The Caprivian government granted Mr Sakala refugee status and his son, Brian, asylum. Mr Sakala found a job as a street cleaner in Lusando, the capital of Caprivia. Brian could not fi nd any work and remained unemployed. The family occupied a shack in Tintatown, a settlement for informal housing on the outskirts of Lusando. The settlement was on land belonging to the state and none of the inhabitants had obtained permission from the government to build their shacks. The family Sakala had diffi culty surviving on Mr Sakala’s meagre income but somehow managed. Brian got married in the meantime and he built his own shack. Mr Sakala, however, continued to support him.
4. Section 8(vi) of the Caprivian Prevention of Unwarranted Squatting Act 44 of 1990 provides for the resettlement of people living without permission on land belonging to the State should the government need such land “for the purpose likely to contribute to the development of the economy of Caprivia”. The government, claiming that it needed the land occupied by the inhabitants of Tintatown for an international airport, resettled them in various locations all over the country. The Sakalas were allocated a piece of land about 50 km from Lusando in an area where, as a result of the inadequacy of public transport, Mr Sakala was forced to give up his job in Lusando. He could not fi nd any other work and remained unemployed. The fi nancial position of the Sakala family deteriorated rapidly. Brian and his wife who accompanied the family to the new settlement went to live with the wife’s parents in a remote rural area some 200 km away. Constance was eventually sent to live with Mr Sakala’s parents in Kunenia and Alfred had to go and live with Mrs Sakala’s parents in Lusando. There was no money to pay for the further education of the two youngest children.
5. The Sakala’s position was desperate when their case was brought to the attention of Activists for Human Rights (AHR), an organisation undertaking litigation on behalf of people alleging violations of their basic rights. Mrs Sakala has contracted tuberculosis as a result of the appalling conditions in which they were living and Mr Sakala was badly in need of psychiatric treatment for a condition that is directly related to the deterioration of his personal circumstances.
6. AHR fi rst approached the Constitutional Court of Caprivia for an order declaring the Prevention of Unwarranted Squatting Act unconstitutional and for a declaratory order that, in principle, damages suffered as a result of the implementation of the Act could be recovered from the Caprivian government. The court is Caprivia’s highest authority in the adjudication of constitutional issues. Caprivia’s Bill f Rights inter alia guarantees freedom of movement (Article 22) and the choice of residence (article 23) and the protection of the family (Article 29). It furthermore states (in Article 33) that “the State recognises the population’s needs for housing and medical services and undertakes to provide these in accordance with available means.” The constitutional court found that the Act was not unconstitutional but that “reasonable compensation” was payable to the detrimentally affected by its operation. The Caprivian Supreme Court was then approached on the strength of the latter fi nding of the Constitutional Court and the provision of housing for the Sakala family and for Brian was claimed against the Government of Caprivia. In addition, the Sakala family as family claimed the following against the government:
(1) The provision of free medical and psychiatric services for the members of the family in need of it.
(2) The provision of education for the two youngest children
(3) $10 000 compensation for the loss of Mr Sakala’s job. (The government agreed that the quantum claimed would be reasonable in the circumstances, but it denied liability for its payment).
7. These claims were dismissed in the Supreme Court and the court’s judgement was subsequently confi rmed on appeal. The Applicants are now approaching the SACHR for relief. In addition to the claim previously brought in the Caprivian Supreme Court, the Applicants are also seeking an order declaring the prevention of Unwarranted Squatting Act unconstitutional.