Fifth African Human RightsMoot Court Competition
Oujda, Morocco, 28 September – 3 October 1996
From 28 September to 3 October 1996, the Second All-African Human Rights Moot Court Competition was held at the Faculty of Law of the Université Mohammed 1er, Oujda, Morocco. As in previous years, the competition was an enriching, challenging and fulfi lling experience for all involved, made all the more interesting by its venue, which for the fi rst time was a North African Arabic and a Francophone country.
The competition was formally opened in a very solemn ceremony at which the Royal Message, from HM King Hassan II, was delivered by his representative. In giving his support and blessing to the competition, King Hassan recognised the hardships and struggles of African peoples and stressed “... that the way to a genuine rebirth and total liberation does not only lie in retrieving freedom, but also in a continued endeavour for the safeguard of human dignity ...”
The following day saw the presentation of the one day seminar on the international protection of human rights in a number of lectures delivered in both English and French by the following personalities:
- The UN system
(English: Ms Erika de Wet, ILO, Geneva)
(French: Prof El Ghazi, Université Mohammed 1er, Oujda, Morocco) - The African system
(English: Prof Dankwa, University of Ghana)
(French: Ms Khadija El Madinad, Université Hassan II, Casablanca, Morocco) - The European system
(English and French: Ms Claudia Westerdick, European Commission)
Participants in the competition had earlier received a compilation of background material to help them prepare their arguments and give them a somewhat general, albeit cursory, overview of human rights protection. The preliminary rounds followed over the next two days, during which all the teams argued the case four times before the deans of participating law faculties. A fi rm request from the Moroccan teams for a separate French speakers’ fi nal was conceded to. The best four English-speaking teams and the best two French-speaking teams qualifi ed for these finals. They included:
English
- Combined team 1: University of Nairobi and University of Pretoria
- Combined team 2: University of Ghana and University of Port Elizabeth
French:
- Team 1: Université Hassan II, Casablanca
- Team 2: Université de Côte d’Ivoire
Combined team 2 won the English final and team 2 won the French final.
A prize giving ceremony was held concurrently with the closing dinner. The winners and the top ten teams received book prizes. Final remarks from representatives of the host faculty, the participating students, the chief justices, the organisers and the local government were characterised by great warmth and satisfaction at the overall success of the competition.
The African Law Students Internship Programme, born of the 1995 competition and offering some participants at the latter competition the opportunity of doing a three week practical internship at a law fi rm in another African country, was highly successful. Fourteen students received placements in other African countries at law fi rms, the South African Legal Resources Centre and the UN High Commission for Refugees, South Africa. Evaluation forms from both the participating students and the fi rms at which they worked carried very positive remarks of enthusiasm and encouragement for ALSIP.
The 1996 Second All-African Human Rights Moot Court Competition brought together almost 100 law students at 40 deans of law faculties or their representatives from all around Africa. Judges from the highest courts of the following countries presided over the fi nal: Senegal, Mauritania, Ethiopia, Namibia, Uganda, Zimbabwe and Ghana. Chief Justice Hag Ali of Sudan was judge president. The 1996 competition maintained the usually high number of participants and has become a much looked forward to event in the annual diary of many African law faculties.
The financial contribution of the sponsors is gratefully acknowledged.
Hypothetical Case
1. It is the year 1998. An Inter-African Court of Human Rights (the Court) has been set up by the inter-Africa Convention on Human and Peoples’ Rights (the Convention).
The jurisdiction of the court extends to all cases concerning the interpretation and application of Part I of the African Charter on Human and Peoples’ Rights (the Charter). Cases can be brought before the court either by a state party to the convention or by the African Commission on Human and Peoples’ Rights. Any person or non-governmental organisation or group of individuals claiming to be the victim of a violation of the rights set forth in the Charter by one of the State parties to the Convention may petition to the Commission. The Court may only deal with a case once all the domestic remedies have been exhausted. The Convention further stipulates that in interpreting the Charter the Court must have regard to public international law involving the rights contained in the Charter.
2. The African state of Juxta is party to the Convention and has as such accepted the compulsory jurisdiction of the Court. Juxta is also a member of the United Nations and the organisation of African Unity and signed and ratifi ed all the major international human rights instruments. It also voted in favour of the United Nations General Assembly Resolutions endorsing the Basic Principles on the Independence of the judiciary. A case on the following facts has been brought before the Court.
3. Since its independence, a democratic government, elected every fi ve years in multiparty elections, has ruled Juxta. The Juxtan Constitution contains a justiciable Bill of Rights. This document contains all the traditional rights, but specifi cally states the following: Section 1: the Constitution applies to all law and binds all organs of state at all levels of government and furthermore all private persons and juristic persons to the extent the nature of each specifi c right permits it.
Section 2:
Every person has the right to personal freedom and security
Section 3:
Every person has the right to freedom of speech and opinion. Hate speech is prohibited.
Section 4:
(i) Every person has the right to
(a) take part in cultural life
(b) enjoy the benefi ts of scientifi c progress and its applications
(ii) Every person has the right to the freedom indispensable for scientifi c research and creative activity.
Section 7:
Every person has the right to be tried within a reasonable time by an impartial court.
Section 28:
All rights contained in the Bill of Rights may be limited in accordance with the duties, which are justifi able in an open and democratic society, including the duty to respect the rights of others.
The Constitution states, in Section 234, that the judiciary shall be independent. A special court, the High Court of the Constitution, enforces the constitution. This Court has the power to test all statutory laws and all actions of government, whether executive or administrative, against the Juxtan Bill of Rights. The Judges of this Constitutional Court are appointed for renewable terms of seven years by the State President, acting on the advice of the cabinet.
4. The Liberal Democratic Party (LDP) has been in power in Juxta for three successive terms of fi ve years. Although the LDP received spirited opposition during each of the three elections, no other party had suffi cient support to threaten its dominance.
The political stability, which had prevailed in Juxta since independence, engendered unprecedented economic growth. The offi ces of multinational companies became common sight in Dualia, capital of Juxta, and a stream of foreign tourists visited Juxta’s golden beaches and game parks.
The economic growth also had a downside. Multinational companies drilling for oil in Juxta contributed greatly to the pollution of the Juxtan countryside. The absence of the strict labour standards in Juxta allowed the international companies to employ Juxtan workers at substandard wages. Furthermore, the booming tourist trade caused an upsurge in prostitution and the illegal sale of historical Juxtan artefacts.
5. A new nationalist movement, the Juxtan Nationalist Movement (JNM), was established in 1991. Although initially the JNM was regarded as part of the political fringe, it soon gained support with its homespun message of exclusionist nationalism. Under the leadership of a law professor from the Juxtan National University, Professor Buntu Africa, a strong support base for the JNM was formed amongst students at the university on the basis of the reestablishment of traditional African values and principles in African society andpolitics. The students, organising meetings and demonstrations, developed a reputation for radicalism and militancy. The LDP based its 1996 election campaign on its economic successes, emphasising the tremendous growth in the GNP during its three terms of power. The JNM who also contested the election, emphasised the retention of Juxtan tradition and values, describing the foreign involvement in Juxta as a serious threat to Juxtan culture and identity. It argued that the economic boom was a short-term nature and that the long-term effects of the foreign involvement in the country would give rise to dependence and social and moral degeneration.
6. The students of the National University were at the forefront of the JNM campaign. They organised a series of meetings and demonstrations, threatening the orderly running of the university. The situation was brought to a head when the Faculty of languages invited an internationally known publisher, William Milton, to speak at the annual faculty lecture. Mr Milton used the occasion to donate 5 000 volumes of western literature entitled “The world’s best literature” to the library. Mr Milton’s lecture had to be abandoned when a contingent of JNM supporters invaded the stage, tore out pages from the books he was donating and forced Mr Milton to eat them. The incident was fi lmed by an international television crew and caused an international stir. It prompted the Juxtan government, in the person of its Minister of Education, to issue the following statement:
“The recent incident at the National University has brought shame upon our country and has caused damage to our international reputation as a civilised and orderly society. The government urges the authorities at the National University to rid the University of the elements, including members of staff, who initiated the debacle and to restore order and stability at the University”.
7. The University Principal, Professor Jack Schola, a leader fi gure in the LDP, responded by saying that he also condemned the incident, but could not act because he could not identify the culprits. He did however announced that he had received a complaint from two staff members against Prof Afrika, and that he has convened a disciplinary hearing to determine Prof Afrika’s fate.
The JNM supporters on the campus reacted to this statement with a renewed fl urry of activity. A large anti-LDP demonstration was announced. The Minister of Education, on hearing about the demonstration, contacted the Principal of the University and urged him to prohibit it.
8. Prof Schola issued a statement prohibiting the demonstration. This only had the effect of strengthening the resolve of the JNM students. They decided to go ahead in defi ance of the ban. On the appointed day, thousands of JNM supporters took part in the demonstration, marching across the campus bearing placards expressing their anti-LDP sentiments. They fi nally congregated on the steps of the University library, where Prof Afrika, who read an article he had recently published, addressed them entitled “Why Africa should remain African”. To rapturous applause he said: “When the people rise to bring Africa onto its feet again, there will be no place in Juxta for corrupting westerners. All Europeans are racists and should be barred from our country. All classes in which western ideas are given preference over African ideas should be disrupted.”
9. Some students chased a group of tourists off the campus. Others thrashed the campus, throwing litter all over the place. Classes were disrupted for two days and traffi c in the surrounding streets was brought to a standstill. The Professor of Western Philosophy was beaten up. The demonstration received comprehensive media coverage and was hailed as a triumph for the JNM.
10. The University reacted to the demonstration by convening the disciplinary hearing of Prof Afrika. The hearing was based on three charges: fi rstly, Prof Afrika was accused by two of his colleagues of disrupting the university to such an extent that their physical and intellectual security was threatened. Secondly, he was accused of insubordination. It was alleged that he had, in contravention of a prohibition by the University, lead the banned demonstration on campus. Thirdly, Prof Afrika was accused of issuing statements against westerners amounting to hate speech. He was found guilty on all three charges. He was suspended from university for one year. An appeal to the University Council was unsuccessful.
11. Prof Afrika brought an application in the High Court of the constitution for an order that his suspension was an infringement of his right to freedom of speech and academic freedom and therefore invalid.
12. The hearing was set for 30 April 1996, two weeks before the general elections. The trial soon came to be seen as a confrontation between the JNM and the LDP. Senior members of the LDP made statements in the media about the trial, stating that it would be in the interest of the country, but also in the interest of the LDP that the application was denied. Three days before the trial, the Juxtan Minister of Justice, Dr Sam Solon, appeared on a television show about the trial. During the show Minister Solon made it clear that he thought the application should be denied. At the end of the programme he said the following.
“It has become clear to me that it would be in the interest of law and order in the days before the election, if the judges of the highest court reject this application. They must keep in mind that they are indirectly, through the President and his cabinet, appointed by the people of Juxta, and if they do not exercise their duties with the interest of the majority of people in Juxta in mind, we have to ask ourselves whether they are still fit for office.”
13. On 30 April the matter was heard. Counsel for Prof Afrika brought a motion for the recusal of two of the judges of the Court. They argued that the President of the Court, Judge Ben Fido, a former LDP cabinet minister, and Judge Justus Honore could have been infl uenced by the statement by the Minister of Justice as their terms would expire at the end of 1996 and they would be eligible for reappointment on the Court. This motion was rejected. After hearing further argument the Court, in a judgement lasting only two minutes, refused the application.
The Court, through its President, stated that the National University was an independent body, even though it was 50% subsidised by the state, and as such was not bound by the provisions of the Juxtan Bill of Rights, as the Constitution bound only organs of state. The Court further indicated that, even if the University were bound by the Constitution, its actions would be justifi ed, because they were necessary to preserve law and order on the campus and to safeguard the right to personal security of the students and staff of the University. The Court also characterised Prof Afrika’s statements about westerners as hate speech.
14. The judgement caused an outcry in JNM circles where the trial was widely perceived to be unfair. Prof Afrika approached the African Commission on Human and Peoples’ Rights. The Commission in turn referred the case to the inter-African Court of Human Rights, where an application requesting the following order was consequently brought:
- That Prof Afrika’s suspension constituted a violation of his right to freedom of speech and opinion, as well as the right to academic freedom;
- That Prof Afrika’s right to a fair trial had been violated.
15. Prepare arguments for Prof Afrika (applicant) and the Government of Juxta (respondent
