The Seventh African Human Rights Moot Court Competition was held at Universidade Eduardo Mondlane, Maputo, Mozambique, from 28 September to 3 October 1998. Once again, it was an event that brought together students and academics from over one third of the law faculties in Africa to argue and debate a hypothetical human rights case in a mock courtroom. Each of the 43 faculties that participated was represented by two students and a faculty representative. The event lasted 7 days and was an enriching experience for everyone involved.
Most of the law faculties had already conducted an internal mini moot court to determine the students who would represent the faculty in Maputo. Many of the students were therefore already quite familiar with the facts of the case and looking forward to the challenges that would come from opposing teams.
Participants had already began arriving as early as Saturday 26 September. Many more arrived on different fl ights all through Sunday 27 September, ending with a large group of participants arriving on a chartered fl ight on Sunday night. All participants stayed at the Hotel Tivoli in downtown Maputo where registration started in earnest on Monday morning and lasted all through the day.
The opening ceremony was held in the Chamber of Ceremonies at the Camãra Municipal, the Maputo City Hall, and was presided over by His Lordship the Mayor of Maputo who delivered a warm welcome address to all the participants. Speeches were also delivered by the vice-chancellor of Universidade Eduardo Mondlane, Prof. Tiyanjana Maluwa, Legal Offi cer at the OAU and offi cial representative of the Secretary General Salim Ahmed Salim, and Prof. Christof Heyns, Director of the Centre for Human Rights. Immediately afterwards, there was a cocktail reception in the entrance hall and a traditional dance performance on the steps of the City Hall.
On Tuesday 29 September, the one-day course on the international protection of human rights was given at the Faculty of Law. In total 7 lectures were delivered: 4 in English, 2 in French and 1 in Portuguese on key areas of international human rights. The course, which is compulsory for all students, was very well attended. The following lectures were delivered:
- General Introduction to the International Protection of Human Rights Prof. Christof Heyns, Director, Centre for Human Rights, University of Pretoria
- The African System of Human Rights Protection Dr Frans Viljoen, Faculty of Law, University of Pretoria
- The OAU in human rights protection in Africa Prof. Tiyanjana Maluwa, Legal Offi cer, OAU Secretariat, Addis Ababa, Ethiopia
- The European System of Human Rights Protection Prof. Christof Heyns, Director, Centre for Human Rights, University of Pretoria Français
- Le système onusien de protection des droits de l’homme Prof. Mathieu Bile, Faculté de Droit, Université de Cocody Abidjan, Côte d’Ivoire
- Le système européen de protection des droits de l’homme Véronique Lechevallier, Présidente, Association Juris Ludi, Strasbourg, France Português
- The African system of human rights protection Mrs Vera Duarte Martins, Vice Chairperson, African Commission on Human and Peoples’ Rights, Banjul, The Gambia
The preliminary rounds were held over the next two days, 30 September and 1 October, at the Faculty of Law. In the preliminary rounds, faculty representatives are constituted into benches of judges. Each bench is the assigned to a particular “court”. The students then argue the case four times, twice for the Applicant and twice for the Respondent, but never twice before the same bench. The students are evaluated on their oral performance including their ability to answer questions from the judges, as well as on their pre-submitted written arguments. Being in Mozambique this year, Portuguese was made an offi cial language of the Competition. In this light, the preliminary rounds were conducted in three separate languages, English, French and Portuguese, each team of students arguing in a separate court in its fi rst language The fi nal round, which was held at the Conference Centre of the School of Posts and Telecommunications, opposed the best four teams from the preliminary rounds, newly reconstituted into two teams of four students each.
Université du Bénin, Togo, and the University of Cape Town, South Africa
Universidade Eduardo Mondlane, Maputo, Mozambique, and the University of Botswana
The bench in the fi nal round was presided over by the Vice Chairperson of the African Commission on Human and Peoples’ Rights. Other members of the bench were:
- Mr Justice Vittorino - Judge of the Supreme Court of Mozambique
- Mr Justice Laurie Ackermann - Judge of the Constitutional Court of South Africa
- Prof. Gudmundur Alfredsson - Co-director, Raoul Wallenberg Institute, Sweden
- Mrs Vera Duarte Martins - African Commission on Human and Peoples’ Rights
- Mrs MO Ogunbe - Dean, Faculty of Law, Ogun State University, Nigeria
- Prof. Meledje Djedjro - Faculté de Droit, Université d’Abidjan, Côte d’Ivoire
The combined team for the Respondent won the fi nal round. The three best oralists from the three separate language groups in the preliminary rounds were:
- Lawrence Mashava, University of Pretoria, South Africa
- Dahirou Sant’anna, Université du Bénin, Togo
- Alexandria Antunes, Universidade Eduardo ondlane, Mozambique
The closing dinner and prize-giving ceremony were held at the Polana Hotel at which the Honourable Minister of Justice was the guest of honour. The vice-chancellor of Universidade Eduardo Mondlane also delivered an address. Both men expressed their satisfaction with the overall success of the event and thanked all participants for their efforts and hard work.
Almost all participants left on Sunday 4 October back to their respective countries.
As in previous years, there was a general sense of satisfaction at the success of the event, many students and faculty representatives coming personally to express their satisfaction and good wishes for the future. For many of the students it was a once-in-a-life time opportunity to meet so many other young people from all across Africa with the common aim of debating human rights. Many of them pledged to carry back with them a commitment to fostering the human rights culture in their faculty and further in their country. The one-day course on “The International Protection of Human Rights” that was presented again this year and that has become such a key feature of the week’s proceedings, is for many of the students and lecturers the only formal human rights instruction they have received.
The organisers would like to continue with the African Law Students’ Internship Programme which offers some students who participated in the Moot Court the opportunity of doing a three-week practical internship at a law fi rm or human rights organisation in another African country. Since 1995, 16 students have been placed in various parts of the continent. These internships have proved to be of tremendous personal benefi t to the students in exposing the different legal systems of other African countries to them and allowing them the opportunity of making a positive contribution to the work of the host organisation. The Secretariat of the OAU has expressed the desire to take in four students for internships in the course of next year.
The Seventh African Human Rights Moot Court Competition was a highly successful event. The organisers set themselves the objective of increasing the number of participating faculties and achieved modest success in this regard. Perhaps a very signifi cant improvement was the increased number of participating faculties from francophone Africa with the notable fi rst appearance of Madagascar, Mali, Niger, the Democratic Republic of Congo and Benin. It is important to secure the continued participation of these faculties and strive to have half of the law faculties in Africa participate next year.
The multiplying effects of the Moot Court continue to be felt. Student and lecturer exchange programmes are facilitated, external supervision and research is made possible, and the general need for human rights awareness that is absent in many parts of Africa is slowly being addressed. The Moot Court continues to attract publicity both in the host country and across the continent. In the light of the Protocol to the African Charter on Human and Peoples’ Rights setting up the African Court of Human Rights, there is no doubt that the Moot Court is making its contribution towards the creation of an indigenous African human rights jurisprudence. At the dawn of the new millennium, the All-African Human Rights Moot Court Competition is unique in giving the young people of Africa the opportunity to critically examine the human rights situation on their continent with a view to improving it through the use of the persuasive tactics of logical legal argument.
1. The African Court of Human Rights (“the African Court”) has been set up in terms of an amending Protocol to the African Charter on Human and Peoples’ Rights (“the African Charter”). The jurisdiction of the African Court extends to all cases and disputes submitted to it concerning the interpretation and application of Part 1 of the African Charter. Cases can be brought before the African Court by either a State Party to the Charter or the African Commission on Human and Peoples’ Rights (“the African Commission”) after a petition by individuals or non-governmental organizations (NGOs) has been considered by the Commission. In exceptional cases, petitions by persons, groups of individuals or non-governmental organisations, claiming to be victims of a violation of the rights set forth in the Charter, by one of the States Parties, may be allowed directly by the African Court. Before considering the merits of any case, the African Court may also reconsider the issue of admissibility with reference to article 56 of the African Charter. In terms of the Protocol (article 24), the Court may take the following findings:
- If the Court fi nds that there has been violation of a human or peoples’ rights, it shall order an appropriate measure to remedy the situation.
- The Court may also order that the consequences of the measure or situation that constituted the breach of such right, be remedied and that fair compensation or reparation be paid or made to the injured party.
- In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems necessary.
2. The State of Ruritania is a party to the African Charter and has accepted the compulsory jurisdiction of the African Court. In terms of the Judicature Act of 1965, an appeal from Ruritania’s highest court is to the Judicial Commission of the Privy Council in London. Ruritania is also a member of the United Nations and has signed and ratifi ed the following international human rights treaties of the UN:
- The International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol I (OPI);
- The International Covenant on Economic, Social and Cultural Rights (ICESCR);
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
- The four Geneva Conventions of 1949 relative to the Protection of Civilian Persons in Time of War and the two 1977 Additional Protocols.
3. Ruritania is a federal state. It gained independence from the United Kingdom in 1962. Ruritania is made up of approximately eight ethnic groups, each with their own language. The smallest ethnic group in Ruritania, the Odonis, all live together in the Eastern State, on the border with El-Byson. This area, popularly known as “Odonia”, takes up about 30% of the ground surface of the Eastern State. The Odonis have been living there since time immemorial. Another ethnic group, the Garumbas, also inhabit the Eastern State. The Garumbas form about 60% and the Odonis about 40% of the population of the Eastern State. The total population of Odonia is some 1,5 million. the main sources of Ruritania’s income are its copper mining industry (in the Northern State), its fi shing (in the Southern State) and its oil reserves. These oil reserves are situated and exploited exclusively in the Eastern State.
4. The National Council (the national legislature) and State Councils (the provincial legislatures) are elected every fi ve years by direct vote of all citizens older than 18 years. A Federal Ruling Council (the federal executive) is elected by members of the National Council from among its members. The executive and legislative powers of states (provinces) are limited to issues such as abattoirs, state sport, state roads and traffi c, local amenities, markets, state building regulations and state trading regulations. These powers are exercised by the various State Councils, who have both legislative and executive authority. All other powers are exercised at the national level.
The following are excerpts from the Ruritanian Federal Constitution:
FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION
Sovereignty of the People
- All sovereign power resides in the nations, nationalities, and peoples of Ruritania.
- This Constitution is an expression of their sovereignty.
- They exercise, in accordance with this Constitution, their sovereignty through their elected representatives and through direct democratic participation.
Member States of the Federal Democratic Republic of Ruritania
- The Federal Democratic Republic shall be comprised of States.
- The States shall be delimited on the basis of the settlement patterns, identity, language and consent of the people concerned.
Members States of the Federal Democratic Republic of Ruritania
- The Member States of the Federal Democratic Republic of Ruritania are the following:
- Eastern State
- Northern State
- Southern State
- Western State
- Nations, nationalities and peoples within the States enumerated in Sub-Article (1) of this Article have the right to establish, at any time, their own States.
- The right of any nation, nationality or people to form its own State can be exercised under the following procedures:
(a) when the demand for statehood has been approved by a two-thirds majority of the members of the State Council, and the demand is presented in writing to the National Council;
(b) when the National Council, after receiving the demand, has organized a referendum within one year to be held in the nation, nationality or people that made the demand;
(c) when the demand for statehood is supported by a majority vote in the referendum;
(d) when the State Council has transferred its powers to the nation, nationality or people that made the demand; and (e) when the new state created by the referendum becomes a member of the Federal Democratic Republic of Ruritania.
- Member States of the Federal Democratic Republic of Ruritania shall have equal powers and rights.
5. In 1990, the military in Ruritania seized power in a coup d’etat under General Siki. General Siki declared himself head of state and government. Military governments were appointed for each state. During 1995 a former army Captain, James Tata, launched an uprising in the Eastern State, ostensibly to overthrow the military government of General Siki. Captain Tata’s guerilla group, known as the Red Light Commandos, comprised mostly of members of the Odoni ethnic group. The underlying causes of the uprising were the grievances of the Odonis about alleged human rights abuses by the Siki dictatorship in Odonia. For many years the Odonis have preserved a strong identity and culture. As hunters, gatherers and fi shermen, they remained physically and emotionally dependent on and interlinked with nature for their survival. The Odonis complained about a purposeful and persistent attempt from sectors of government and the oil companies to wipe them out. Among the grievances against the oil companies were: the noise from exploration activities drives away game, and intensive motor boat river traffi c and frequent oil spills in some rivers cause fi shing, bathing and drinking to become impossible. These oil companies are private companies, in which the government holds 40% of the shares. Independent studies have confi rmed that in the areas in Odonia affected by oil pollution and toxic waste, people suffer from skin rashes, stomach ache and chronic headaches and fever.
6. Violations of the rights of the Odonis have also come directly from the government of General Siki. Under a law entitled “Unifi cation Decree No. 10 of 1990” demonstrations and strikes throughout Ruritania were banned and the use of local languages in schools were declared unlawful. The government claimed that the law was not aimed at any particular group, but was intended to foster national unity throughout Ruritania. The Odonis, however, complained that the law was aimed at them in particular, and that they were not allowed to use their own language in their schools or to participate in government. The government denied these allegations and appointed two members of the Odoni ethnic group to the Federal Ruling Council.
7. On 10 January 1994, a company of Ruritania government troops commanded by Major Sisili conducted a counter-insurgency operation in Odonia. Without the knowledge of Major Sisili, ten civilians who were suspected of belonging to the rebel group, the Red Light Commandos, were blindfolded, put on a military vehicle and driven to an unknown destination. A few kilometres away, they were forced out of the vehicle, order to dig their own graves and summarily shot.
8. On 30 October 1994, Mr Frundini, the leader of the Odonia Civil Rights Movement, was arrested on suspicion of aiding the Red Light Commandos and detained in the Central Police Station at Menda, the capital of the Eastern State. He was found in possession of 50 pamphlets in which the Red Light Commandos propagated “the armed struggle”. He was held without charge in a cell without light and elementary necessities such as water and a toilet. He spent a month in detention, before he was convicted by an ordinary court on a charge of sedition. After his conviction he was sentenced to three years’ imprisonment, he was brought back to the same cell. The warders then cut his mattress in half and told him “the idea is that he should not sleep too well - he must refl ect upon his sins”. He was kept in this cell until his release.
9. Some time in January 1996, the military dictatorship of General Siki was overthrown in a bloodless military coup. The new military government ordered elections for a return to civilian rule. Following general elections, Mr Wali was elected the new civilian President of Ruritania in June 1996. After elections at state level, a Garumba-dominated government was installed in the Eastern State. The activities of the oil companies continued. The new civilian government immediately repealed all the decrees promulgated by General Siki’s government, and all “political prisoners”, including Mr Frundini, were released. A Truth Commission was set up to look into allegations of human rights abuses, but all its actions were to be secret and its report would only be given to the President. The President would then decide whether to publish the Commission’s report or not. The Truth Commission may grant provisional amnesty to those who have confessed to human rights violations. Those granted amnesty will not be liable for any future criminal prosecution, but may still be held liable under civil law. Findings of amnesty have to be confi rmed by the President. The Federal Constitution was amended to provide for a Bill of Rights. Enshrined in it are fundamental rights to language and culture. Articles 8, 46 and 47 quoted above were retained unaltered.
10. Soon thereafter, the Odonia Civil Rights Movement, on behalf of the Odonian victims of human rights abuses which occurred under the military dictatorship of General Siki, sought legal redress by instituting proceedings in the Menda High Court. The judge rejected their claims. The Odonian victims then appealed to the Court of Appeal of the Eastern State, which upheld the High Court’s decision. They now felt compelled to seize the highest court in the country, the Supreme Court of Ruritania, with the matter. The Odonia Civil Rights Movement contacted a constitutional lawyer and requested him to take on the case of the victims. The lawyer estimated that the cost involved would be R(Rutti) 5 000. The Movement is a registered company without gain, and depends on donations for its survival. After an intensive fundraising drive, the movement had a total of R3 500 in its only savings account. In the light of this information, the movement decided to abandon attempts to approach the Supreme Court of Ruritania. It subsequently lodged a complaint with the African Commission.
11. The grievances and claims of the petitioners were based on the following:
- Failure by the new civilian administration to investigate violations of human rights during the former regime and failure to bring the perpetrators to justice.
- Reparation for the torture and suffering of the victims under the former regime.
- Under the heading, “aggregate rights relating to the right of self-determination”, the petitioners further allege the violation of the Odoni people’s rights and claim that their right to self-determination allows them to secede from the state of Ruritania.
12. The African Commission found all three complaints admissible and submitted the case to the African Court for its fi nal decision.
13. Prepare and argue the case for the Applicants (Odonia Civil Rights Movement) and the Respondents (the present Government of Ruritania) before the African Court.