Eleventh African Human Rights Moot Court Competition

Cairo, Egypt, 7 – 12 August 2002

The Eleventh African Human Rights Moot Court Competition was held at the American University in Cairo (AUC), Egypt from 7-12 August 2002. The competition was organised by the Centre for Human Rights based at the Faculty of Law, University of Pretoria, in collaborationwith the American University in Cairo, Egypt.

Teams of students representing the law faculties of 64 universities from 28 countries took part in this year’s Moot Court Competition. All teams were comfortably housed in the hostel of the AUC where they were warmly hosted and well fed. The opening ceremony, which included entertainment in the form of spectacular Soufi dancing, was held in Ewart Hall, the main auditorium of the University. Students also attended a one-day course on ‘The International Protection of Human Rights’ where lectures were delivered by human rights experts. An excursion was organised for all participants to the pyramids, the Sphynx, and the Citadel, followed by an excellent Egyptian meal on a boat on the Nile Maxim Boat.

There were four preliminary rounds which were adjudicated by panels comprising the human rights lecturers of the participating universities. Separate preliminary rounds were held in English and French. Each team consisted of two students who argued the merits of a hypothetical human rights case as if they were before the African Court on Human and Peoples’ Rights. Each team argued the case four times: twice for the Applicant and twice for the Respondent. The best two teams from each language group were then selected to participate in the fi nal round which was held in the Conference Hall of the League of Arab States Headquarters. By draw of lots, they merged to form two new combined teams of four students each: two English-speaking and two French-speaking students on each side. A draw of lots also determined which team would appear for the Applicant and which for the Respondent.

The judges in the fi nal round are always international human rights lawyers of the highest standing. This year, the fi nal panel comprised Justice Nabil el Araby of the International Court of Justice in the Hague; HE Mostafa Said Hanafi , Vice-President of the State Council of Egypt; Justice Tholakele Madala of the Constitutional Court of South Africa; Professor Tiya Maluwa, Legal Counsel in the Offi ce of the UN High Commissioner on Human Rights, Geneva; Professor Lyal Sunga of the Law Faculty at the University of Hong Kong; Dr. Claudia Martin, Professor of Law at the American University in Washington, D.C.; Dr David Padilla, an American Fulbright Professor and recently retired Assistant Executive Secretary of the Inter-American Commission on Human Rights; and Ms Angeline Rutazana of the National University of Rwanda.

The Judges were of the opinion that the standard of presentations from both sides was extremely high and in the end the team representing the Respondent (University of Nairobi and Universite de la Reunion) beat the University of Pretoria and the Universite Mohamed 1er from Morocco. Nicole Lewis of the University of Pretoria and Stephanie Moutoussamy of Université de la Reunion won the awards for the best English-speaking and French-speaking oralist respectively. The comments made by the Judges in the fi nal round during their summing up were most favourable. They congratulated both teams on the arguments they had presented and the way in which they had handled themselves during questioning from the bench. They thanked the organisers warmly and congratulated them on presenting a programme of such a high calibre. They strongly encouraged the Centre for Human Rights to ensure that the competition endured in future years.

A closing dinner banquet sponsored by the South African Embassy in Egypt and attended by several dignitaries was held on the fi nal night of the programme at the Semiramis Intercontinental Hotel. Professor Tiya Maluwa, Legal Counsel in the Offi ce of the UN High Commissioner for Human Rights, Geneva, gave the keynote address before certifi cates of participation were distributed and the winning team announced.

The program was a resounding success. Participants were effusive in their praise for the entire event. Although much hard work was done during the week, people found time to relax as well. Contacts were made and friendships forged. Many commented on what an unforgettable experience this had been, while others wondered how the organisers could possibly top this Moot in future years.

Hypothetical Case

1. Two Central African states – Doduka and Kanu – are situated adjacent to each other. Kanu is a small and poor state. Its total population is 5 million people. The fi rst democratic elections in Kanu were held in 1994, and thereafter periodic elections have taken place. It has two provinces, the northern province of Kagili and the southern province of Rebuta. The population of Kagili is about 2 million, and that of Rebuta about 3 million. The economy in both provinces is primarily based on agriculture, although more and more industrialisation has taken place in Rebuta over the last three years. The capital city, Kanu City, is in the southernmost part of Rebuta, bordering the Atlantic Ocean. Doduka is a developed country, with great mineral wealth. It has a population of about 20 million people. Although periodic elections are held, Doduka remains a de facto one-party state, as members of only one party are allowed to contest elections. The Kanu Constitution allows for one central parliament, whose members are elected on a majority vote in constituencies. The country is divided into 100 constituencies, of which 30 are in Kagili and 70 in Rebuta.

2. Kanu is a member of the OAU and the UN, both of which it joined in 1968, the year of its independence. Kanu has ratifi ed the following relevant international human rights treaties (the dates given are dates on which instruments of ratifi cation were deposited):

• The African Charter on Human and Peoples’ Rights (on 15 November 1988)
• The Protocol to the African Charter establishing an African Court on Human and Peoples’ Rights (on 25 November 2001), without making a declaration in terms of article 34(6) of the Protocol
• The African Charter on the Rights and Welfare of the Child (on 1 March 2001)
• The UN Genocide Convention (in 1995)
• The Geneva Conventions and Protocols I and II thereto (in 1995)

Kanu has voted in favour of all relevant General Assembly resolutions. Kanu still has its initial Constitution, dating back to 1968, although numerous amendments have been made after 1994. The Constitution contains a Bill of Rights, providing for substantive rights similar to those set out in the European Convention on Human Rights.

3. An ethnic group called the Koos live in the northern part of both states, Kanu and Doduka. Koos make up 15% of the total population of Kanu and 10% of Doduka. Almost all of the Koos in Kanu are living in the Kagili province. The Koos settled in the region in about 1500, according to available archeological data, ancestral anecdotes and narratives. They are a nomadic group, mainly moving around the northern parts of what are now Kanu and Doduka. The Koos believe that the northern part of both countries form one unifi ed cultural and religious system and that they have an inherent right to settle in both states and to make full use of available land in the region. In 1994, some prominent Koos formed the Koo Liberation Movement (KOLIMO) which dedicates itself to attain the right to self-determination of the Koos. KOLIMO has been involved in the last contested elections, which took place in 1999, winning ten seats in parliament.

4. Diamond Development (DD) is a privately-owned company, registered in Doduka. It has business interests in a number of African countries. Late in 2000, DD entered into an agreement with the government of Kanu, in terms of which DD is allowed to undertake geological exploration in the Kagili province, and to start exploration of diamonds in that area if it is feasible to do so. Part of the agreement is that 25% of all gross income from diamonds have to go to the government of Kanu. To eliminate corruption, the agreement states that this income is to be used for the building of an international airport, the fi rst in the history of the country. The airport will be built close to Kanu City.

5. DD geologists entered and started explorations in northern Kagili. Some of the members of the Koo group approached them and found out what is going on. To show their resistance, KOLIMO captured fi ve geologists and threatened to kill them if the DD did not disband its operations. Anticipating an attack by the government forces, members of KOLIMO retreated into the mountainous terrain in the far north of the country, with the hostages. About 10 000 men, 2 000 women and 3 000 children (under the age of 18 years) formed part of this group. KOLIMO issued a statement, broadcast on national radio, that they were holding the geologists hostage until the government gives an undertaking that DD will not continue with mining operations. The statement further stated that the men were held in an inaccessible cave, and that the government must not try to secure their release, as such an attempt will be resisted. In the statement, it was made clear that some women and children were together with men in various locations in the mountain.

6. The government forces went on a reconnaissance mission and found that they experienced great diffi culty negotiating the terrain. Almost none of the armed forces (less than 1%) are Koos. On 3 February 2001, the government started a conscription campaign of members of the Koo group living in neighbouring Doduka, who are knowledgeable about the terrain. They found few willing to under3 take this, and had to offer relatively huge amounts of compensation, similar to that which teachers in Doduka would earn in half a year, for a month’s work. After a week the Kanu army had conscripted 130 male Koos, of which 30 were younger than 18 (but all were older than 16). In terms of Kanu legislation, the use of any Kanu nationals under the age of 18 years in the Kanu Defence Force is illegal.

7. These new recruits were soon deployed, and provided very important and useful information to the Kanu defence chiefs. The Kanu army raided villages and towns in the northern province, but always found that the Koos have escaped them, sometimes retreating into the mountainous areas very soon before the arrival of the forces. Feeling increasing frustration, the Kanu forces decided to conduct an air raid. After consulting with their informant-conscriptees, they determined that the most likely place for the leaders of the KOLIMO to be based is a huge cave in a particularly inaccessible region, high up the mountains. The available information indicated that it is very diffi cult to reach that place by land. An air raid followed, in which powerful bombs were dropped which destroyed the hide-out. The army issued a statement about the incident, claiming that according to available information no women and children were at the spot. It also appeared that about 1 000 leafl ets warning against the attack were dropped from the air one day prior to the attack.

8. It turns out that some of the leaders of the KOLIMO were indeed killed in the air bombing, as well as about 40 men, ten women and three of the fi ve hostages.

9. KOLIMO applied to the High Court of Kagili province, alleging that the following are violations of the Kanu Constitution:

1. DD’s diamond operations in the Kagili province;
2. The conscription of Koo children into the Kanu army;
3. The killing of civilians and women during the air raid.

10. The Court found against the applicants on the fi rst ground, but granted their application on the second two grounds. The Court ordered the government to immediately free everyone under 18 of employment contracts with the Kanu Defence Force, and to pay them full salaries for one year. The court also ordered that the families of those civilians killed or injured during the air raid should be compensated. The government then appealed to the Supreme Court.

11. Under the laws of Kanu, an aggrieved applicant has a right of appeal to the Supreme Court. The Supreme Court is the highest court in Kanu in respect of all disputes. In terms of the Constitution, it consists of fi ve judges, three who had previously served on the High Court of Rebuta and two who had previously served on the High Court of Kagili. In terms of the Constitution, the Minister of Justice may, “if circumstances so require”, appoint up to two acting judges of the Supreme Court. Acting judges are, according to the Constitution, full members of the Supreme Court. The only requirement is that an acting judge must be a serving judge of the High Court or a retired judge of the Supreme Court. This mandate was used only once before, in 1997, when one of the serving judges of the Supreme Court was ill for about a year and a half. In June 2001 the Minister of Justice appointed two retired judges, who had previously served on the Rebuta High Court, as acting judges of the Supreme Court. He motivated this as follows in a statement to parliament:

As members know, there is an important constitutional matter pending before the Supreme Court. This matter requires thorough research, with which experienced judges may greatly assist. I also do not want the court’s general work load to suffer under the strain of the current circumstances. The period of their term as acting judges is for three months, and can be renewed.

12. When the Supreme Court heard the matter, the applicants fi rst raised the appointment of the two acting judges as against the principle of judicial independence. Having rejected this argument, the Court went on to fi nd against the applicants on the other three matters (with a four to three majority – the dissenting judges were the two who had previously served on the Kagili High Court, as well as another judge who was one of the fi ve permanent members of the Supreme Court).

13. The KOLIMO approached the African Commission alleging that the case is admissible , and further that the following violations of international law have occurred:

1. The composition of the Supreme Court infringed the principle of judicial independence.
2. The conscription into the Kanu army of people under the age of 18 violates Kanu’s international law obligations.
3. The killing of civilians by Kanu forces during the air raid is a violation of international humanitarian law.
4. DD’s activities violate the Koo people’s right to development and self-determination.

14. The African Commission found that the case is admissible, and referred it for a decision by the African Court on Human and Peoples’ Rights without any fi nding on the merits of the case.

15. Prepare argument for the applicant (KOLIMO) and the respondent state (Kanu) to be submitted to the African Court on Human and Peoples’ Rights.