Twelfth African Human Rights Moot Court Competition

Yaoundé, Cameroon, 4 – 9 August 2003

The Law Faculties of 62 universities from across the African continent sent teams to participate in the 12th African Human Rights Moot Court Competition which was hosted during the period 4-9 August, 2003, in Yaoundé, Cameroon, by the Centre for Human Rights in collaboration with the Catholic University of Central Africa. This was one Moot where the patience and endurance of participants were tested both in and out of the courtroom.

The Catholic University of Central Africa (UCAC) proved an ideal venue for an event of this nature and the team of local organisers were gracious hosts. All teams were comfortably housed in the spacious hostels on the campus. This meant that everything was in close proximity: the hostels, the dining hall, the lecture rooms where the preliminary rounds were conducted, the main auditorium where the fi nal round was held, the administrative centre where participants were registered and from where the bailiffs operated. A large swimming pool provided opportunities for students to cool off and one evening a competition attracted keen interest and provided excellent entertainment. The organisers at UCAC, for whom nothing was too much trouble, thoughtfully kept a pub open in the evenings especially for the duration of the Moot and many friendships were forged here after the daytime tussles in the courtrooms.

The opening ceremony, which included some traditional music and dancing, and was followed by a gala dinner, was held in the impressive Yaoundé Congress Centre. The guest of honour was the Minister of Higher Education who addressed the audience. The event received extensive coverage on Cameroon national television.

Students also attended a one-day course on ‘The International Protection of Human Rights’ where lectures were delivered by human rights experts. An excursion by bus to Kribi Beach was thoroughly enjoyed by all the participants, as was the traditional meal and vibrant entertainment in the Mango Village Restaurant on the outskirts of Yaoundé.

Cameroon is famous for its artifacts and the wonderful collections of masks and colourful traditional clothing attracted many of the visitors to the markets, resulting in what was surely a somewhat substantial investment in the Cameroonian economy!

An incident occurred at the start of the programme which might have had some nasty consequences but which fortunately had a happy ending. One of the visitors was pick-pocketed in the market place, losing his passport in the process. Naturally, this caused him considerable consternation and he immediately began the trying process of arranging for his re-entry back home. Two days later, however, he returned to the scene of the crime and put out the word that a reward of $10.00 was being offered for the missing passport. Within ten minutes, to his utter relief, his passport was safely back in his pocket!

To avoid similar problems, several participants left their passports in their rooms when they left the campus. This proved not to be a wise move. Some zealous police offi cials didn’t take kindly to this and some of the South African participants were detained for a while. Fortunately, thanks to the timely intervention of Ms Sihaka Tsemo, Regional Representative of the U.N. High Commissioner for Human Rights who served on the panel of judges in the fi nal round, they were released within hours, leaving them somewhat shaken but unscathed and with plenty of tales to tell when they returned home.

Fellow academics took advantage of the Moot to organize a SUR International Meeting in Africa which was attended by the Faculty Representatives while their students attended the course of the International Protection of Human Rights. Professor Jeremy Sarkin, the SUR organiser, was extremely pleased and felt that this had been a most successful day.

The competition itself consisted of four preliminary rounds that 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. By draw of lots the four teams 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. Both sides were assisted by interpreters who had traveled from Belgium for the occasion.

As is always the case, the judges in the fi nal round were international jurists of the highest standing. This year’s panel was presided over by Professor Paul Gérard Pougoué, Vice-Rector of the University of Yaounde II. He was supported by South African Constitutional Court Judge Sandile Ngcobo; Ms Sihaka Tsemo, Regional Representative of the UN High Commissioner for Human Rights; Dr David Padilla, an American Fulbright Professor and recently retired Assistant Executive Secretary of the Inter-American Commission on Human Rights; Mr Wolfgang Strasser, Deputy to the Registrar of the European Court of Human Rights based in Strasbourg, France; Professor Michelo Hansungule, visiting Professor of Human Rights Law at the University of Pretoria; and Ms Florence Mukamugema of the University of Rwanda.

The Judges were most impressed at the calibre of the arguments presented and congratulated both teams on their presentations and on the way in which they had acquitted themselves during questioning from the Bench. They commented on how diffi cult it had been to make a selection but in the end the trophy was awarded to the team representing the University of Cocody, Abidjan from the Ivory Coast, and the University of Natal-Durban, who just edged out the team from the University of Nairobi, Kenya, and the University of Dschang, Cameroon. Mr Godfrey Musila of the University of Nairobi was judged the best English-speaking oralist in the preliminary rounds, and Mr Boris Tchoumavi, the best French-speaking oralist.

While most participants believed the Moot to have been tremendously successful, with several lecturers commenting that they thought the standard of Mooting was the best they had ever heard, there was one jarring note at the end of the week. The Air Cameroon fl ight back to Johannesburg eventually left 27 hours later than originally scheduled, leaving some of the participants more than a little disgruntled. In addition, the fl ight was overbooked and 21 passengers had to retrieve their luggage and spend an additional three nights in Yaoundé. However, it was not all doom and gloom, and the Centre for Human Rights organisers and 14 other cheerful volunteers were accommodated by Air Cameroon in a fi rst-rate hotel with a splendid view and all modern comforts. Nonetheless, there were 21 happy, smiling faces when the aircraft eventually touched down at Johannesburg International Airport on 13 August instead of 9 August. The organisers are most grateful to these volunteers.

Despite these few unavoidable hitches, the general consensus was that the Moot had once again been hugely successful and people are already looking toward the Thirteenth African Human Rights Moot Court Competition which will be held in Dar-es-Salaam, Tanzania.

Hypothetical Case

1. The Republic of Tiya and the Republic of Maza are neighbouring states in Central Africa. They became independent in 1965 and are members of the United Nations Organisation (UNO) and the African Union (AU). Both states have undertaken, by way of unilateral declarations, to adhere to all UN and AU (including all OAU) resolutions on human rights and democracy. Furthermore, the state of Tiya has ratifi ed the following international instruments:

• The Convention for the Prevention and Punishment of the Crime of Genocide of 9 December 1948;
• The Convention on the Status of Refugees of 28 July 1951 as well as the 1967 Protocol thereto;
• The two International Covenants of 16 December 1966 and the two Protocols to the International Covenant on Civil and Political Rights;
• The Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment of 10 December 1984;
• The African Charter on Human and Peoples’ Rights;
• The Protocol to the African Charter establishing the African Court on Human and Peoples’ Rights (without making a declaration in terms of Article 34(6));
• The Charter of the African Union;
• The Statute of the International Criminal Court (…). No other relevant human rights treaty has either been signed or ratifi ed by Tiya.

2. The population of Tiya is made up of 14 million inhabitants (8 million women and 6 million men). There are three ethnic groups: the Kole (9 million), the Kassa (4 million) and the Tek (1 million). The Kole are farmers and stockbreeders and live mostly in the Northern region which has not experienced economic and social growth since independence. Social infrastructure (schools and hospitals) is poor and receives little government support. Roads are not maintained and some villages do not have access to clean water. Due to frequent power cuts, pharmacies cannot sell certain medicines. In order to support their families, several Kole girls (approximately 300) live as prostitutes in the country’s big towns. This group (of more or less 300 Kole girls) has an HIV-positive rate that is ten times higher than the national average. The 1999 Law on Commerce stipulates in article 35: “Medicines are a special category of goods, the importation and sale of which may, with government authorisation, derogate from the rules of international trade”. Despite NGO requests, the government has not yet taken a decision to introduce the derogation provided for in the legislation.

3. The Kassa, for the most part, live in the South of the country where the capital city, Tiyaville, is located. They make up more than 80 % of the armed forces and the police, as well as over 70% of the civilian employees of the civilian public service. The Kassa are also business people and own the main shops in the capital. The Southern part of the country enjoys signifi cant government investments in the areas of health and education.

4. The Tek inhabit the forests in the centre of the country and are originally pygmies. Their main activities are hunting, fi shing and growing flowers which they sell to the numerous tourists who frequent the forests in their region. For years, they have complained against the destruction of the forests by companies that export the wood with licences issues by the government. Joseph Sizongo, leader of the Tek people who studied through to a government scholarship, decided to set up an NGO called ‘Protect Tek Forests’ (PTF). This NGO incites the population to commit acts of sabotage against logging companies that do not respect their claims. The companies decided to spread a chemical substance in the forests and rivers in order to chase away animals and fi sh. This compels the Tek to leave the forests altogether or to go much further away in search of food. The Tek people experienced a considerable decrease in their birth rate. Attempts by the NGO PTF to seek administrative redress from the government remain unanswered and there was no outcome to their legal action. The High Court in Tiyaville requested an expert report which has still not been written 5 years later.

5. The population of Maza is made up of 3 ethnic groups: the Kole (1 million), the Tek (100,000) and the Dassira (500,000). Together they make up an immigrant population settled in Maza for generations. The Kole in Maza have signifi cant family links with the Kole in Tiya. The Tek are protected by environmental legislation that forbids all forest destruction up to 50 km from a village. The Dassira are the majority owners of logging companies in Tiya and are hostile to the government of President John Maloba, the democraticallyelected Head of State of Maza, who refuses to amend the environmental legislation.

6. The new Constitution of the Republic of Tiya was adopted by a 55 % vote in a popular referendum in November 2002. Article 5 stipulates that the President of the Republic is elected by Parliament. In the same Constitution, Article 1 says: “The Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights inspire and form an integral part of this constitution”. Article 3 stipulates: “Equality between men and women is the foundation of the Republic everywhere and at all times including public responsibility”. The result of the referendum was contested by the Tiya Liberation Front (TLF), a political party whose leadership is of Kole origin. The Movement for Tiya Renaissance (MTR) is the ruling party and has been in power since independence. It supports its President Chabaya Mabondo who presents himself as the father of independence and democracy. The TLF alleges that the army and the police compelled rural populations to vote “yes” or lose access to public services. The Constitution divides the country up into 120 electoral districts: 40 in the South, 40 in the Centre and 40 in the North. An Independent Electoral Commission is provided for to monitor the elections. Its members include 6 former Supreme Court judges and 7 independent persons. All the former judges are Kassa. The independent persons include 6 Kole and 1 Tek, all of whom are traditional chiefs.

7. Legislative elections were organised in the middle of the rainy season. On the day of voting, it was raining so heavily that international observers could not go to the Centre and North regions. Flooding made the roads impassable. All the country’s helicopters were requisitioned for transporting ballot boxes and ballots. The elections produced the following results: 70 seats for the MTR, 40 seats for the TLF and 10 seats for independent candidates including Joseph Sizongo. Of the 120 parliamentarians, there are 80 men (59 MTR, 12 TLF and 9 independent) and 40 women (11 MTR, 28 TLF and 1 independent). TLF leaders contested the elections due to the practice of voter intimidation and discrimination against women. An observer from the local branch of the international NGO ‘World Democracy’ declared having seen, from a private helicopter, army trucks transporting Tek people to polling stations set up in military camps. The government claimed that it was done to avoid acts of sabotage. Due to the underdeveloped infrastructure of the Central region, half the polling stations in that region were set up in military camps.

8. Nevertheless, on the basis of the Independent Electoral Commission’s report, the Constitutional Court confi rmed that the elections were free, fair and transparent despite minor problems. In protest at this decision, 12 male TLF parliamentarians decided not to take up their seats in Parliament. They organised popular demonstrations calling for civil disobedience in the face of illegitimate power. In the course of these demonstrations, shops were looted, and several people including two policemen were killed in the confrontations. The 11 women MTR parliamentarians made a public statement condemning the violent actions of the Police and the TLF leaders.

9. While these demonstrations were going on, and by majority vote going against Mary Kola, the independent candidate, Parliament elected Chabaya Mabondo President for a renewable 7-year term, as mandated by Article 47 of the 2002 Constitution. The fi nal vote gave the following result: 59 votes for Chabaya Mabondo and 49 votes for Mary Kola. President Chabaya Mabondo formed a government of National Unity made up of 24 ministers including 12 TLF women and the leader of the Tek Sizongo. The TLF President, Dr Steve Takobo, decided to exclude the newly appointed ministers from the party for corruption and treason. At the same time, Joseph Sizongo, the new Minister of Justice, requested the Public Prosecutor to charge those responsible for violent demonstrations, crimes against the police and destruction of public and private property. The Public Prosecutor issued a warrant for the arrest of about 20 people presumed to be responsible for these crimes, including the 12 TLF parliamentarians who refused to take up their seats in Parliament. The Public Prosecutor then made the following declaration to the media: “If these men want to benefi t from parliamentary immunity, then they should come and take up their seats in Parliament. If they don’t, they will be arrested within 72 hours because they have freely renounced their parliamentary immunity”. The Tiya Internal Security Law stipulates that “all elected political leaders can only obtain a passport and leave the country with the authorisation of the Minister of Security”.

10. Faced with this threat, and without passports or visas, the 12 parliamentarians crossed the border into Maza at night, accompanied by their families and some sympathisers, as well as the eight or so other people for whom a warrant of arrest had been issued. They were received by President Maloba, a Kole, who decided to create a National Refugee Commission to examine their application for asylum. Responding to a question from an international television journalist, President Chabaya Mabondo declared: “In the TLF, there are true political leaders and dangerous terrorists. The political leaders are working for peace and national unity. The terrorists want civil war and are constantly disturbing public order. They will be punished, even abroad, and their accomplices will have the same fate”. A few weeks after this statement, President Maloba was assassinated by mercenaries. A group of international human rights and democracy NGOs wrote an investigative report stating that the mercenaries received logistical support from the State of Tiya.

11. Army Chief of Staff General Bill Tapaka (of Dassira origin) seized power with the fi nancial support of the logging companies. He decided to suspend the National Refuge Commission and the environmental legislation. In a letter to the Tiya Head of State, he promised to “fi ght against terrorism to ensure regional peace”. The NGO ‘World Democracy’ organised a peaceful demonstration in the capital of Maza to protest against this military take-over. Some protesters, but no members of the security forces, were killed as a result of an exchange of fi re. In the dead people’s clothes, Red Cross volunteers found TLF tracts calling for the liberation of the Kole people from the tyranny of Tiya and Maza. Fearing for their safety, TLF leaders tried to leave Maza. They were arrested at the border for illegal immigration.

12. On the same day, a special tribunal in Tiya, made up of 5 civil and 4 military judges, convicted and sentenced the President of the TLF to death in abstentia for crimes compromising the public order, against the two policemen killed during the demonstrations in Tiya. The other parliamentarians were sentenced to life in prison. International warrants of arrest were issued against them. General Tapaka declared that his country respects and executes all regular judicial decisions of friendly states. The special tribunal is provided for in legislation, and operates on an ad hoc basis to deal with crimes compromising the public order. Its members are appointed by the President from a list submitted to him by a special committee of Parliament.

13. The NGO ‘World Democracy’ (with consultative status at the UN and observer status with the African Commission on Human and Peoples’ Rights), and with the support of its local branch in Tiya has decided to seize the African Commission urgently and seek preventive measures and the condemnation of the State of Tiya for the following grievances:

1. Violation of the right to participate in the management of public affairs in one’s country;
2. Violation of the right to a free and fair trial;
3. Discrimination against women;
4. Violation of the right to health and the right to life;
5. Violation of the right to a healthy environment.

14. On behalf of the Takobo family, an international lawyer decides to seize the International Criminal Court to charge President Chabaya Mabondo with crimes against humanity and genocide.

15. The Council of Ministers of the African Union adopts a resolution asking both states to urgently take appropriate measures to respect the Constitutive Act of the Union and relevant African regional human rights instruments.

16. At the request of General Bill Tapaka, negotiations are opened between the two states on the basis of Article 48 of the African Charter. Having been invited to present arguments before the African Commission, the government of Tiya asks the African Commission to reject the request for preventive measures and the request by ‘World Democracy’ which is blocking the ongoing negotiations between the two states. Furthermore, President Mabondo declares that he will appear before the International Criminal Court to defend his damaged reputation.

17. Without deciding on the merits of the case, the Commission decides to refer the matter to the African Court on Human and Peoples’ Rights.

18. Prepare arguments for the Applicant ‘World Democracy’ and for the Respondent, the State of Tiya, to be submitted before the African Court on Human and Peoples’ Rights.