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9th Moot B 2000

Ninth African Human Rights Moot Court Competition

Accra, Ghana, 5 – 10 August 2000

The Ninth African Human Rights Moot Court Competition was held at the University of Ghana, Legon, from 5 to 10 August 2000. The Moot brought together students and lecturers from 57 law faculties representing 27 African countries, being half of all the law faculties in Africa. Each faculty was represented by two students and a lecturer.

After registration in the morning of 5 August, the opening ceremony was held in the Great Hall of the University of Ghana and was formally opened by a personal representative of the Vice President of Ghana. Speeches were also delivered by the following people: The Vice-Chancellor of the University of Ghana; Prof Akua Kuenyehia, Dean of the host Faculty of Law; Prof. Christof Heyns, Director of the Centre for Human Rights, and the Chairperson of the Ghana Commission on Human Rights and Administratove Justice.

The competition itself takes the form of preliminary rounds in which the faculty representatives are constituted into benches of between 5 and 7 judges each and assigned to specifi c “courtrooms”. The teams of two students each then argue the case four times over the next 2 days, twice for the Applicant and twice for the Respondent.

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. The preliminary rounds were held on Sunday 6 and Tuesday 8 August at School of Administration, University of Ghana. The preliminary rounds are conducted in the 2 offi cial languages of the competition: English and French, each team of students arguing in a separate court in its fi rst language.

On Monday 7 August, the one-day training course on “The International Protection of Human Rights” which is compulsory for all participating students, was presented. The following lectures were presented:

English

  • General Introduction to the International Protection of Human Rights
  • The UN system of Human Rights Protection
  • The African System of Human Rights Protection
  • The European System of Human Rights Protection
  • The Inter-American System of Human Rights Protection

Français

  • Le système onusien de protection des droits de l’homme
  • Le système européen de protection des droits de l’homme
  • Le système inter-américain de protection des droits de l’homme

On Wednesday 9 August, the moot court excursion took the participants to Cape Coast where they visited the Cape Coast Castle, an important landmark in the slave trade.

The fi nal round was held on Thursday 10 August at the Accra International Conference Centre. The fi nal round opposed the best four teams from the preliminary rounds, 2 from the English rounds and 2 from the French rounds. They were then newly reconstituted into two teams of four students each: one anglophone and one francophone team on each side. By draw of lots, they chose which side of the case they will argue. They were:

Applicant:

  • Université Catholique d’Afrique Centrale (Cameroon) and the University of Ghana

Respondent:

  • Université du Caire (Egypt) and the University of the Witwatersrand

The finalists are evaluated exclusively on their oral arguments in this phase of the competition. The judges were:

  • Judge Abdul Koroma, Judge of the International Court of Justice
  • Justice Edward Wiredu, Acting Chief Justice of Ghana
  • Mr Justice Tholakele Madala, Judge, Constitutional Court of South Africa
  • Prof Tiya Maluwa, Chief Legal Counsel, OAU Secretariat, Addis Ababa
  • Mrs Evelyne Ankumah, Africa Legal Aid, The Netherlands
  • Prof Michelo Hansungule, Raoul Wallenberg Institute, Lund, Sweden
  • Ms Karin Lehmann, Faculty of Law, University of Cape Town
  • Ms Providence Umurungi, Faculty of Law, National Univeristy of Rwanda
  • Prof Oussedik Fawzi, Faculty of Law, Université de Blida, Algeria

The competition was won by the combined team for the Applicant.

The closing dinner and prize-giving ceremony were held at the Great Hall of the University of Ghana. Judge Koroma of the International Court of Justice congratulated both the students for their high academic level and the organisers for their vision and industry.

He said the African Human Rights Moot Court Competition ranked among the best in the world and should give a sense of pride to all participants.

The Ninth African Human Rights Moot Court Competition was a successful event. Of the 57 faculties present, 15 were French-speaking. It is expected that there will be 80 faculties present at the Tenth African Human Rights Moot Court Competition, with half of them being French-speaking.

After eight years, the Moot Court has developed a life of its own. It is the biggest meeting of young African lawyers around the theme of human rights. It is also the only event in Africa, outside the meeting of University CEOs, to bring together so many African universities. The students who arrive at the Moot have been selected form a pool of students who took part in a selection process. This means that many students, at law faculties across Africa get to study the hypothetical case and master the African Charter.

The Moot Court continues to attract publicity both in the host country and across the continent. A wealth of research is done by the students to prepare their arguments and comments from judges in the preliminary rounds are that the standards are very high. The sense of seriousness and commitment that permeates the students’ work at the Moot Court is testimony to the fact that human rights at African law faculties have transcended the talk shop stage and have become a source of common thinking to young African lawyers who are convinced, even as they argue before a hypothetical African Human Rights Court, that their work is a contribution to the creation of an indigenous African human rights jurisprudence; that this is critical to sustainable human development in Africa; and that it will, in the words of the Moot Court slogan, help move “Africa: from human wrongs to human rights”.

Hypothetical Case

1. It is the year 2002. Assume that the African Court on Human and Peoples’ Rights has been operational since 2000, after the Republic of Kalakuta delivered the fi fteenth instrument of ratifi cation of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (Court Protocol) with the Secretary General of the Organisation of African Unity (OAU). Kalakuta did not make a declaration in terms of Article 34(6) of the Protocol.

2. The Republic of Kalakuta gained independence from Britain in 1964. It is a member state of the OAU, and has ratifi ed the following OAU instruments dealing with human rights:

  • The African Charter on Human and Peoples’ Rights (the “African Charter”) (ratifi ed on 10 September 1985)
  • The 1969 OAU Convention Governing Specifi c Aspects of the Refugee Problem in Africa (ratifi ed on 03 January 1970)
  • The African Charter on the Rights and Welfare of the Child (assume that this Charter en tered into force in March 1999) (ratifi ed on 10 December 1998)
  • The Protocol Additional to the African Charter on Human and Peoples’ Rights on the Rights of Women (assume this Protocol entered into force in March 2000) (ratifi ed on 26 October 1999)

3. Kalakuta is also a member of the United Nations and has signed the following UN instruments:

  • International Covenant on Civil and Political Rigths (“ICCPR”) (signed on 20 August 1969)
  • International Covenant on Economic, Social and Cultural Rights (“ICESCR”) (signed on 20 August 1969) It has ratifi ed the Convention on the Elimination of All Forms of Discrimination against Women. This was done on 28 July 1981.

4. The Republic of Kalakuta is a state on the East Coast of Africa. The Republic of Sizanda borders it to the west and south, and the Republic of Tzikwanda to the north. For many years Sizanda has been engaged in a civil war involving the democratically elected government and the rebels who want to secede from Sizanda.

5. As a result of the war most citizens of Sizanda have fl ed to Kalakuta and Tzikwanda. In Kalakuta they are granted refugee status pursuant to Article 1(2) of the OAU Convention Governing Specifi c Aspects of the Refugee Problem in Africa, which has been incorporated into the domestic law of Kalakuta. After independence Kalakuta had not included a bill of rights in its constitution. According to the Constitution Act of 1991 the Bill of Rights consists of all the OAU human rights instruments to which the Republic of Kalakuta is bound. According to Section 113 of the Constitution Act an international agreement only becomes binding under the following circumstances:

a) The authority to enter into international agreements binding on the Republic shall be vested in the President, subject to the provisions of Ss. (b).
b) International agreements, in order for them to be binding on the Republic shall be approved by the people through their democratically elected representatives. In order for an international agreement to be enforceable in the territory of Kalakuta it shall be incorporated into law by the people through their democratically elected representatives.

6. Kalakuta’s main source of income is the agricultural industry, which from 1990 to 1995 accounted for 55% of gross domestic product (GDP). Other main sectors of the economy are textiles and the manufacturing of cars. As a result of its membership of the World Trade Organisation (WTO) Kalakuta has seen growth in its economy. It has been able to access markets in Europe, North and South America and Asia a lot easier than it was able to in the past. It has also seen an unprecedented rise in foreign direct investment. The latter has brought about a decrease in the levels of unemployment, but there have been complaints from some trade unions that this investment has also resulted in a decrease of real wages in the agricultural industry. According to an independent study conducted by UNESCO the rate of literacy for women is 25%, and that of men is 62%. In order to ensure an improvement of this problem the government passed the Compulsory School Attendance Act of 1995 compelling all parents to send their children to school. In terms of section 5 of the Act, parents who do not comply can be sentenced to a maximum prison term of six months or to the maximum fi ne of US$ 200.

7. In 1997 Kadidja Malhali, a widow, and her blind child Lyla, managed to escape to Kalakuta from a concentration camp in which the government forces in Sizanda had held them. Kadidja’s late husband, Mahmood, was a leader of the rebel forces who wanted to secede. He was detained with his wife and child and repeatedly tortured until he committed suicide.

8. Soon after their arrival in Kalakuta they were able to fi nd the offi ces of the UN High Commissioner for Refugees (UNHCR) which arranged for them to be declared refugees in accordance with the applicable laws of Kalakuta. The UNHCR also managed to help Kadidja fi nd work in a nearby banana plantation. Prior to her marriage to Mahmood, Kadidja had qualifi ed as a teacher and obtained a doctoral degree in education from the National University of Sizanda. She had also held the post of National Inspector of Public Schools in Sizanda. She resigned from this post after her marriage in order to dedicate her time to looking after her family

9. When they arrived in Kalakuta, Lyla was 12 years old. During the time she had lived in Sizanda she had not received any formal education. Her parents had decided to teach her themselves. It was impossible for Kadidja to continue teaching Lyla at home now because of the long hours she had to work at the banana plantation. She therefore decided to enrol Lyla in a school for the blind. The nearest school was 300km away. Although the school provided room and board, Kadidja could not bear to be so far away from her child. She therefore decided to enrol Lyla in the nearest public school. The school undertook to provide Lyla with a tape recorder for her to be able to record the lessons and later listen to them. They also undertook to make special arrangements for her to write exams using typewrite. Despite all this the school informed Kadidja that due to fi nancial constraints these undertakings would only be implemented in two years’ time. When Kadidja complained about this she was told that it would be best if she took Lyla to the school for the blind.

10. Out of frustration with the work she was doing at the banana plantation and the dismay she felt at the way her daughter had been treated, Kadidja decided to apply for a job with Department of Education. The post for Provincial Inspector of Schools was vacant and applications were being invited. Four candidates, including Kadidja, were shortlisted. Kadidja was the only foreign candidate. Two of the other candidates were males. The one had a doctoral degree in administration and had worked in the Department of Education for over 20 years in many capacities including school principal. The other male candidate had a doctoral degree in education. The other candidate was a woman and had a master’s degree in education administration from Stirling University in Scotland.

11. On 20 March 1999, the candidates were interviewed before the Board of Appointments of the Department of Education. The board had eight members, one of whom was a woman. Professor Neville Banganyika was chairing the board. According to a press statement issued after the interviews the board was divided over two candidates. One of them was Kadidja. Eventually they decided in favour of the other candidate who had a doctoral degree in administration.

12. Feeling hopeless about the whole situation Kadidja decided to write a pamphlet outlining the human rights abuses perpetrated against her by the Kalakutan government. She approached a local NGO. On her behalf, the NGO requested a transcript of Kadidja’s interview before the Board. These are excerpts from the interview:

Banganyika: We learn that you are a widow? Is there anyone you are seeing at present?

Kadidja: At the moment I am not seeing anyone, because I have a lot of work to do. And I have to look after my child.

Banganyika: But do you not feel that a person holding such an important job in the public sector, especially where the job includes dealing with children should be married and therefore be able to set an example in keeping with the natural roles of men and women?

Kadidja: Not necessarily. A single parent can look after a child, and through good living she should be able to set the best example to children. Appointing a woman to such a demanding job would set a good example for the advancement of women in society.

Banganyika: But that is exactly the point Ms Malhali, according to traditions in most cultures of the world women should stay at home, and that is where their hard work is valuable.

Kadidja: That statement refl ects the patriarchal vitriol of the mindset of male chauvinist pigs around the world. Women should be able to give their input in the workings of society in general and in the family, just as men are able to do.

Banganyika: But Ms Malhali would you not say that a woman in power cannot be without a man. (Looking at the other board members) The temptation to engage in immoral activities will be great on women who are single, as our past experience has shown. In fact we are told that you prostituted yourself to escape out of the concentration camp where you and your child were detained. Does that not say that you are a morally unfi t and improper person to hold such an important position?

Kadidja: I resent the statements by the Chairperson. The chairperson is old-fashioned. The allegations he’s making are false and he has no proof for them whatsoever.

12. Subsequent to her learning of the contents of the transcript Kadidja wrote a letter to the Minister of Education and Training complaining about the behaviour of Professor Banganyika. The Minister refused to reply even after numerous attempts to arrange an audience with him. The Head of State was also approached but he also refused to comment or take any action, saying: “Prof. Banganyika is one of the most valuable civil servants we have. These remarks by a foreigner have no credibility whatsoever, and should be taken with a pinch of salt. It is also an unfortunate reality in today’s Kalakuta that the incidence of violent crimes in rural areas makes it unsafe for a woman to travel alone. It is also a reality which dismays us and we are doing everything in our efforts to correct that”.

13. The NGO also revealed some statistics and fi gures on the level of gender equality in the management of the Department of Education. It found that in the previous two years for the ten posts that had been advertised only two women had been appointed. It also revealed that 70% of the applicants had been men. Generally at the managerial level of the Department of Education, 35% of the staff was made up of women, but most of the women occupied administrative posts. Looking at all the departments in the public service it was found that women comprised 40% of the staff. At managerial level the statistics revealed that 85% of these posts were occupied by men.

15. The pamphlet dealt with the treatment meted out to her child at the hands of the school authorities, her treatment by the Department of Education, including the statements made by Prof. Banganyika and the Head of State. She also complained about the poor working conditions of the workers at the banana plantation where she worked. The NGO managed to publish the pamphlet widely. These are some of the contents of the pamphlet:

The human rights situation in this country is degenerating day by day as we stand aside and do nothing. The multi-national corporations which this corrupt government continues to allow to plunder the wealth of our beloved country are running the country dry. The masses of people continue to live in squalor while the fat cats continue to grow fatter on the toil of the hard working men and women of Kalakuta. It is time to rise up. Time for us to say no to exploitation of our wealth. Time to say no to male chauvinist pigs like Banganyika. We must rise and stake our claim to what is rightfully ours. Forward to mass mobilisation for a society where all are treated equally. Let us start today. Away with the foreign corporations Away!!

16. Soon after the publication of the pamphlet, in November 1999, Kadidja was arrested for disturbing the public order. It was alleged that as a result of her pamphlet there had been a lot of restlessness in some quarters of Kalakutan society. The NGO that had helped her to publish the pamphlet had started to complain and agitate for certain changes to government legislation and policies. And some trade union leaders began to complain about the deteriorating conditions of the workers, and they attributed this mainly to the “laissez faire economic policies of the government”. She was detained in the local police cell and later transferred to the state prison in the capital.

17. During December 2000, the Special Rapporteur of the African Commission on Human and Peoples’ Rights on Prisons was given a mandate to investigate the prison situation in Kalakuta. He was able to speak with Kadidja. He reported that he had seen evidence of maltreatment of Kadidja but could not confi rm this as there had been no medical evidence.

18. After the visit of the Special Rapporteur, in January 2001, the prosecutorial service fi nally decided to charge Kadidja with contravention of s 6(1) of the Incitement of Public Disorder Act of 1992. The Act reads in relevant parts as follows:

Preamble

In order to maintain public order at all times, which is a prerequisite for the enjoyment of human rights and peace, the representatives of the people of Kalakuta enact this law:

(…)

Article 6

(1) Notwithstanding any provision contained in the Bill of Rights or any other relevant human rights instrument incorporated in respect thereof, anyone who publishes or utters anything that leads to a public uprising or a disturbance of the public order shall be deemed to have committed an offence. Article 10 A conviction for any crime prohibited by this Act shall carry a sentence of life imprisonment unless there are extenuating circumstances. Article 11 (1) Anyone us shall be on the accused to prove those extenuating circumstances. Article 11charged with an offence under this Act shall be tried before the High Court, whereupon appeal of the conviction and sentence may lie to the Supreme Court of Kalakuta or to the Judical Committee of the Privy Council in London. Upon failure of the appeal, the President of the Republic enjoys the power to reduce or commute the sentence.

19. Kadidja was charged before the High Court. The trial took nine months before it was completed. She was found guilty and a sentence of life imprisonment was passed on her.

20. Lyla had been placed in the custody of Kadidja’s lawyers. Kadidja was remanded to prison where she managed to smuggle a letter out to the African Commission on Human and Peoples’ Rigths. The Commission decided that grave violations of human rights have been committed by Kalakuta. The Commission tried to fi nd a peaceful settlement to the matter. The Kalakutan government turned down all attempts at the peaceful settlement of the matter.

21. The Commission then approached the African Court on Human and Peoples’ Rights on the basis of the allegations made by Kadidja in terms of article 5(1)(a) of the Court Protocol. She alleged that Lyla had been discriminated against on the basis of her nationality and disability in denying her access to the school. Furthermore in respect of herself she alleged that the decision not to appoint her as Provincial Inspector of Public Schools amounted to discrimination, or at least a failure by the government to take measures to ensure equality between men and women. She also claimed that her conviction and the sentence imposed were violations of her human rights. 22. The Commission brought a complaint before the African Court asking for an order declaring the following:

  1. That the complaint be declared admissible in accordance with Article 5 of the Protocol Establishing the Court.
  2. That the Court fi nd that the refusal of access to education of Lyla Malhali be found to be in violation of the African Charter on Human and Peoples’ Rights and the African Charter on the Rights and Welfare of the Child.
  3. That there has been a violation of Ms Kadidja Malhali’s rights under the African Charter and the Additional Protocol on the Rights of Women by refusing to appoint her to the Provincial Inspectorate.
  4. That the Court fi nd that Section 6(1) of the Incitement of Public Disorder Act of 1992 is in violation of the African Charter on Human and Peoples’ Rights and the Additional Protocol on the Rights of Women.

23. The Government of the Republic of Kalakuta replied as follows:

  1. The Commission has no competence to bring an action on behalf of an individual if local remedies have not been exhausted.
  2. There has been no violation of Miss Lyla Malhali’s rights.
  3. There has been no violation of Ms Kadidja Malhali’s rights by not appointing her to the Provincial Inspectorate.
  4. That section 6(1) of the Incitement of Public Disorder Act does not violate any rights in any of the instruments cited.

24. Prepare substantive arguments for the African Commission on Human and Peoples’ Rights and the Government of the Republic of Kalakuta.

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9th Moot B 2000

Ninth African Human Rights Moot Court Competition

Accra, Ghana, 5 – 10 August 2000

The Ninth African Human Rights Moot Court Competition was held at the University of Ghana, Legon, from 5 to 10 August 2000. The Moot brought together students and lecturers from 57 law faculties representing 27 African countries, being half of all the law faculties in Africa. Each faculty was represented by two students and a lecturer.

After registration in the morning of 5 August, the opening ceremony was held in the Great Hall of the University of Ghana and was formally opened by a personal representative of the Vice President of Ghana. Speeches were also delivered by the following people: The Vice-Chancellor of the University of Ghana; Prof Akua Kuenyehia, Dean of the host Faculty of Law; Prof. Christof Heyns, Director of the Centre for Human Rights, and the Chairperson of the Ghana Commission on Human Rights and Administratove Justice.

The competition itself takes the form of preliminary rounds in which the faculty representatives are constituted into benches of between 5 and 7 judges each and assigned to specifi c “courtrooms”. The teams of two students each then argue the case four times over the next 2 days, twice for the Applicant and twice for the Respondent.

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. The preliminary rounds were held on Sunday 6 and Tuesday 8 August at School of Administration, University of Ghana. The preliminary rounds are conducted in the 2 offi cial languages of the competition: English and French, each team of students arguing in a separate court in its fi rst language.

On Monday 7 August, the one-day training course on “The International Protection of Human Rights” which is compulsory for all participating students, was presented. The following lectures were presented:

English

  • General Introduction to the International Protection of Human Rights
  • The UN system of Human Rights Protection
  • The African System of Human Rights Protection
  • The European System of Human Rights Protection
  • The Inter-American System of Human Rights Protection

Français

  • Le système onusien de protection des droits de l’homme
  • Le système européen de protection des droits de l’homme
  • Le système inter-américain de protection des droits de l’homme

On Wednesday 9 August, the moot court excursion took the participants to Cape Coast where they visited the Cape Coast Castle, an important landmark in the slave trade.

The fi nal round was held on Thursday 10 August at the Accra International Conference Centre. The fi nal round opposed the best four teams from the preliminary rounds, 2 from the English rounds and 2 from the French rounds. They were then newly reconstituted into two teams of four students each: one anglophone and one francophone team on each side. By draw of lots, they chose which side of the case they will argue. They were:

Applicant:

  • Université Catholique d’Afrique Centrale (Cameroon) and the University of Ghana

Respondent:

  • Université du Caire (Egypt) and the University of the Witwatersrand

The finalists are evaluated exclusively on their oral arguments in this phase of the competition. The judges were:

  • Judge Abdul Koroma, Judge of the International Court of Justice
  • Justice Edward Wiredu, Acting Chief Justice of Ghana
  • Mr Justice Tholakele Madala, Judge, Constitutional Court of South Africa
  • Prof Tiya Maluwa, Chief Legal Counsel, OAU Secretariat, Addis Ababa
  • Mrs Evelyne Ankumah, Africa Legal Aid, The Netherlands
  • Prof Michelo Hansungule, Raoul Wallenberg Institute, Lund, Sweden
  • Ms Karin Lehmann, Faculty of Law, University of Cape Town
  • Ms Providence Umurungi, Faculty of Law, National Univeristy of Rwanda
  • Prof Oussedik Fawzi, Faculty of Law, Université de Blida, Algeria

The competition was won by the combined team for the Applicant.

The closing dinner and prize-giving ceremony were held at the Great Hall of the University of Ghana. Judge Koroma of the International Court of Justice congratulated both the students for their high academic level and the organisers for their vision and industry.

He said the African Human Rights Moot Court Competition ranked among the best in the world and should give a sense of pride to all participants.

The Ninth African Human Rights Moot Court Competition was a successful event. Of the 57 faculties present, 15 were French-speaking. It is expected that there will be 80 faculties present at the Tenth African Human Rights Moot Court Competition, with half of them being French-speaking.

After eight years, the Moot Court has developed a life of its own. It is the biggest meeting of young African lawyers around the theme of human rights. It is also the only event in Africa, outside the meeting of University CEOs, to bring together so many African universities. The students who arrive at the Moot have been selected form a pool of students who took part in a selection process. This means that many students, at law faculties across Africa get to study the hypothetical case and master the African Charter.

The Moot Court continues to attract publicity both in the host country and across the continent. A wealth of research is done by the students to prepare their arguments and comments from judges in the preliminary rounds are that the standards are very high. The sense of seriousness and commitment that permeates the students’ work at the Moot Court is testimony to the fact that human rights at African law faculties have transcended the talk shop stage and have become a source of common thinking to young African lawyers who are convinced, even as they argue before a hypothetical African Human Rights Court, that their work is a contribution to the creation of an indigenous African human rights jurisprudence; that this is critical to sustainable human development in Africa; and that it will, in the words of the Moot Court slogan, help move “Africa: from human wrongs to human rights”.

Hypothetical Case

1. It is the year 2002. Assume that the African Court on Human and Peoples’ Rights has been operational since 2000, after the Republic of Kalakuta delivered the fi fteenth instrument of ratifi cation of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (Court Protocol) with the Secretary General of the Organisation of African Unity (OAU). Kalakuta did not make a declaration in terms of Article 34(6) of the Protocol.

2. The Republic of Kalakuta gained independence from Britain in 1964. It is a member state of the OAU, and has ratifi ed the following OAU instruments dealing with human rights:

  • The African Charter on Human and Peoples’ Rights (the “African Charter”) (ratifi ed on 10 September 1985)
  • The 1969 OAU Convention Governing Specifi c Aspects of the Refugee Problem in Africa (ratifi ed on 03 January 1970)
  • The African Charter on the Rights and Welfare of the Child (assume that this Charter en tered into force in March 1999) (ratifi ed on 10 December 1998)
  • The Protocol Additional to the African Charter on Human and Peoples’ Rights on the Rights of Women (assume this Protocol entered into force in March 2000) (ratifi ed on 26 October 1999)

3. Kalakuta is also a member of the United Nations and has signed the following UN instruments:

  • International Covenant on Civil and Political Rigths (“ICCPR”) (signed on 20 August 1969)
  • International Covenant on Economic, Social and Cultural Rights (“ICESCR”) (signed on 20 August 1969) It has ratifi ed the Convention on the Elimination of All Forms of Discrimination against Women. This was done on 28 July 1981.

4. The Republic of Kalakuta is a state on the East Coast of Africa. The Republic of Sizanda borders it to the west and south, and the Republic of Tzikwanda to the north. For many years Sizanda has been engaged in a civil war involving the democratically elected government and the rebels who want to secede from Sizanda.

5. As a result of the war most citizens of Sizanda have fl ed to Kalakuta and Tzikwanda. In Kalakuta they are granted refugee status pursuant to Article 1(2) of the OAU Convention Governing Specifi c Aspects of the Refugee Problem in Africa, which has been incorporated into the domestic law of Kalakuta. After independence Kalakuta had not included a bill of rights in its constitution. According to the Constitution Act of 1991 the Bill of Rights consists of all the OAU human rights instruments to which the Republic of Kalakuta is bound. According to Section 113 of the Constitution Act an international agreement only becomes binding under the following circumstances:

a) The authority to enter into international agreements binding on the Republic shall be vested in the President, subject to the provisions of Ss. (b).
b) International agreements, in order for them to be binding on the Republic shall be approved by the people through their democratically elected representatives. In order for an international agreement to be enforceable in the territory of Kalakuta it shall be incorporated into law by the people through their democratically elected representatives.

6. Kalakuta’s main source of income is the agricultural industry, which from 1990 to 1995 accounted for 55% of gross domestic product (GDP). Other main sectors of the economy are textiles and the manufacturing of cars. As a result of its membership of the World Trade Organisation (WTO) Kalakuta has seen growth in its economy. It has been able to access markets in Europe, North and South America and Asia a lot easier than it was able to in the past. It has also seen an unprecedented rise in foreign direct investment. The latter has brought about a decrease in the levels of unemployment, but there have been complaints from some trade unions that this investment has also resulted in a decrease of real wages in the agricultural industry. According to an independent study conducted by UNESCO the rate of literacy for women is 25%, and that of men is 62%. In order to ensure an improvement of this problem the government passed the Compulsory School Attendance Act of 1995 compelling all parents to send their children to school. In terms of section 5 of the Act, parents who do not comply can be sentenced to a maximum prison term of six months or to the maximum fi ne of US$ 200.

7. In 1997 Kadidja Malhali, a widow, and her blind child Lyla, managed to escape to Kalakuta from a concentration camp in which the government forces in Sizanda had held them. Kadidja’s late husband, Mahmood, was a leader of the rebel forces who wanted to secede. He was detained with his wife and child and repeatedly tortured until he committed suicide.

8. Soon after their arrival in Kalakuta they were able to fi nd the offi ces of the UN High Commissioner for Refugees (UNHCR) which arranged for them to be declared refugees in accordance with the applicable laws of Kalakuta. The UNHCR also managed to help Kadidja fi nd work in a nearby banana plantation. Prior to her marriage to Mahmood, Kadidja had qualifi ed as a teacher and obtained a doctoral degree in education from the National University of Sizanda. She had also held the post of National Inspector of Public Schools in Sizanda. She resigned from this post after her marriage in order to dedicate her time to looking after her family

9. When they arrived in Kalakuta, Lyla was 12 years old. During the time she had lived in Sizanda she had not received any formal education. Her parents had decided to teach her themselves. It was impossible for Kadidja to continue teaching Lyla at home now because of the long hours she had to work at the banana plantation. She therefore decided to enrol Lyla in a school for the blind. The nearest school was 300km away. Although the school provided room and board, Kadidja could not bear to be so far away from her child. She therefore decided to enrol Lyla in the nearest public school. The school undertook to provide Lyla with a tape recorder for her to be able to record the lessons and later listen to them. They also undertook to make special arrangements for her to write exams using typewrite. Despite all this the school informed Kadidja that due to fi nancial constraints these undertakings would only be implemented in two years’ time. When Kadidja complained about this she was told that it would be best if she took Lyla to the school for the blind.

10. Out of frustration with the work she was doing at the banana plantation and the dismay she felt at the way her daughter had been treated, Kadidja decided to apply for a job with Department of Education. The post for Provincial Inspector of Schools was vacant and applications were being invited. Four candidates, including Kadidja, were shortlisted. Kadidja was the only foreign candidate. Two of the other candidates were males. The one had a doctoral degree in administration and had worked in the Department of Education for over 20 years in many capacities including school principal. The other male candidate had a doctoral degree in education. The other candidate was a woman and had a master’s degree in education administration from Stirling University in Scotland.

11. On 20 March 1999, the candidates were interviewed before the Board of Appointments of the Department of Education. The board had eight members, one of whom was a woman. Professor Neville Banganyika was chairing the board. According to a press statement issued after the interviews the board was divided over two candidates. One of them was Kadidja. Eventually they decided in favour of the other candidate who had a doctoral degree in administration.

12. Feeling hopeless about the whole situation Kadidja decided to write a pamphlet outlining the human rights abuses perpetrated against her by the Kalakutan government. She approached a local NGO. On her behalf, the NGO requested a transcript of Kadidja’s interview before the Board. These are excerpts from the interview:

Banganyika: We learn that you are a widow? Is there anyone you are seeing at present?

Kadidja: At the moment I am not seeing anyone, because I have a lot of work to do. And I have to look after my child.

Banganyika: But do you not feel that a person holding such an important job in the public sector, especially where the job includes dealing with children should be married and therefore be able to set an example in keeping with the natural roles of men and women?

Kadidja: Not necessarily. A single parent can look after a child, and through good living she should be able to set the best example to children. Appointing a woman to such a demanding job would set a good example for the advancement of women in society.

Banganyika: But that is exactly the point Ms Malhali, according to traditions in most cultures of the world women should stay at home, and that is where their hard work is valuable.

Kadidja: That statement refl ects the patriarchal vitriol of the mindset of male chauvinist pigs around the world. Women should be able to give their input in the workings of society in general and in the family, just as men are able to do.

Banganyika: But Ms Malhali would you not say that a woman in power cannot be without a man. (Looking at the other board members) The temptation to engage in immoral activities will be great on women who are single, as our past experience has shown. In fact we are told that you prostituted yourself to escape out of the concentration camp where you and your child were detained. Does that not say that you are a morally unfi t and improper person to hold such an important position?

Kadidja: I resent the statements by the Chairperson. The chairperson is old-fashioned. The allegations he’s making are false and he has no proof for them whatsoever.

12. Subsequent to her learning of the contents of the transcript Kadidja wrote a letter to the Minister of Education and Training complaining about the behaviour of Professor Banganyika. The Minister refused to reply even after numerous attempts to arrange an audience with him. The Head of State was also approached but he also refused to comment or take any action, saying: “Prof. Banganyika is one of the most valuable civil servants we have. These remarks by a foreigner have no credibility whatsoever, and should be taken with a pinch of salt. It is also an unfortunate reality in today’s Kalakuta that the incidence of violent crimes in rural areas makes it unsafe for a woman to travel alone. It is also a reality which dismays us and we are doing everything in our efforts to correct that”.

13. The NGO also revealed some statistics and fi gures on the level of gender equality in the management of the Department of Education. It found that in the previous two years for the ten posts that had been advertised only two women had been appointed. It also revealed that 70% of the applicants had been men. Generally at the managerial level of the Department of Education, 35% of the staff was made up of women, but most of the women occupied administrative posts. Looking at all the departments in the public service it was found that women comprised 40% of the staff. At managerial level the statistics revealed that 85% of these posts were occupied by men.

15. The pamphlet dealt with the treatment meted out to her child at the hands of the school authorities, her treatment by the Department of Education, including the statements made by Prof. Banganyika and the Head of State. She also complained about the poor working conditions of the workers at the banana plantation where she worked. The NGO managed to publish the pamphlet widely. These are some of the contents of the pamphlet:

The human rights situation in this country is degenerating day by day as we stand aside and do nothing. The multi-national corporations which this corrupt government continues to allow to plunder the wealth of our beloved country are running the country dry. The masses of people continue to live in squalor while the fat cats continue to grow fatter on the toil of the hard working men and women of Kalakuta. It is time to rise up. Time for us to say no to exploitation of our wealth. Time to say no to male chauvinist pigs like Banganyika. We must rise and stake our claim to what is rightfully ours. Forward to mass mobilisation for a society where all are treated equally. Let us start today. Away with the foreign corporations Away!!

16. Soon after the publication of the pamphlet, in November 1999, Kadidja was arrested for disturbing the public order. It was alleged that as a result of her pamphlet there had been a lot of restlessness in some quarters of Kalakutan society. The NGO that had helped her to publish the pamphlet had started to complain and agitate for certain changes to government legislation and policies. And some trade union leaders began to complain about the deteriorating conditions of the workers, and they attributed this mainly to the “laissez faire economic policies of the government”. She was detained in the local police cell and later transferred to the state prison in the capital.

17. During December 2000, the Special Rapporteur of the African Commission on Human and Peoples’ Rights on Prisons was given a mandate to investigate the prison situation in Kalakuta. He was able to speak with Kadidja. He reported that he had seen evidence of maltreatment of Kadidja but could not confi rm this as there had been no medical evidence.

18. After the visit of the Special Rapporteur, in January 2001, the prosecutorial service fi nally decided to charge Kadidja with contravention of s 6(1) of the Incitement of Public Disorder Act of 1992. The Act reads in relevant parts as follows:

Preamble

In order to maintain public order at all times, which is a prerequisite for the enjoyment of human rights and peace, the representatives of the people of Kalakuta enact this law:

(…)

Article 6

(1) Notwithstanding any provision contained in the Bill of Rights or any other relevant human rights instrument incorporated in respect thereof, anyone who publishes or utters anything that leads to a public uprising or a disturbance of the public order shall be deemed to have committed an offence. Article 10 A conviction for any crime prohibited by this Act shall carry a sentence of life imprisonment unless there are extenuating circumstances. Article 11 (1) Anyone us shall be on the accused to prove those extenuating circumstances. Article 11charged with an offence under this Act shall be tried before the High Court, whereupon appeal of the conviction and sentence may lie to the Supreme Court of Kalakuta or to the Judical Committee of the Privy Council in London. Upon failure of the appeal, the President of the Republic enjoys the power to reduce or commute the sentence.

19. Kadidja was charged before the High Court. The trial took nine months before it was completed. She was found guilty and a sentence of life imprisonment was passed on her.

20. Lyla had been placed in the custody of Kadidja’s lawyers. Kadidja was remanded to prison where she managed to smuggle a letter out to the African Commission on Human and Peoples’ Rigths. The Commission decided that grave violations of human rights have been committed by Kalakuta. The Commission tried to fi nd a peaceful settlement to the matter. The Kalakutan government turned down all attempts at the peaceful settlement of the matter.

21. The Commission then approached the African Court on Human and Peoples’ Rights on the basis of the allegations made by Kadidja in terms of article 5(1)(a) of the Court Protocol. She alleged that Lyla had been discriminated against on the basis of her nationality and disability in denying her access to the school. Furthermore in respect of herself she alleged that the decision not to appoint her as Provincial Inspector of Public Schools amounted to discrimination, or at least a failure by the government to take measures to ensure equality between men and women. She also claimed that her conviction and the sentence imposed were violations of her human rights. 22. The Commission brought a complaint before the African Court asking for an order declaring the following:

  1. That the complaint be declared admissible in accordance with Article 5 of the Protocol Establishing the Court.
  2. That the Court fi nd that the refusal of access to education of Lyla Malhali be found to be in violation of the African Charter on Human and Peoples’ Rights and the African Charter on the Rights and Welfare of the Child.
  3. That there has been a violation of Ms Kadidja Malhali’s rights under the African Charter and the Additional Protocol on the Rights of Women by refusing to appoint her to the Provincial Inspectorate.
  4. That the Court fi nd that Section 6(1) of the Incitement of Public Disorder Act of 1992 is in violation of the African Charter on Human and Peoples’ Rights and the Additional Protocol on the Rights of Women.

23. The Government of the Republic of Kalakuta replied as follows:

  1. The Commission has no competence to bring an action on behalf of an individual if local remedies have not been exhausted.
  2. There has been no violation of Miss Lyla Malhali’s rights.
  3. There has been no violation of Ms Kadidja Malhali’s rights by not appointing her to the Provincial Inspectorate.
  4. That section 6(1) of the Incitement of Public Disorder Act does not violate any rights in any of the instruments cited.

24. Prepare substantive arguments for the African Commission on Human and Peoples’ Rights and the Government of the Republic of Kalakuta.