16th Moot B 2007

Sixteenth African Human Rights Moot Court Competition

St Louis & Dakar, Senegal, 6 – 11 August 2007

During the week of 6-11 August 2007, teams of law students from 65 law faculties across the continent gathered in Senegal to argue a hypothetical human rights case dealing with refugee status, nationality, HIV/AIDS and the right to education, as though before the recently established African Court on Human and Peoples’ Rights. They were there to compete in the 16th African Human Rights Moot Court Competition organised by the Centre for Human Rights of the Faculty of Law at the University of Pretoria, in collaboration with Université Gaston Berger de Saint-Louis, Senegal. The Moot Court Competition was one of the programmes for which the Centre for Human Rights was recently awarded the 2006 UNESCO Prize for Human Rights Education.

During the four preliminary rounds, which were conducted in French, English and Portuguese over two days in the lecture rooms of the Law Faculty of Université Gaston Berger de Saint- Louis. each team argued, in their own language, twice for the Applicant and twice for the Respondent, before panels of judges comprised of faculty representatives. One day was allocated to relaxation and the group went by ferry to Goree Island, 3kms from Dakar, which had played such an important role in African history, particularly in the development of the slave trade. The following day, as part of the training provided through the Moot Competition, everyone attended a one-day conference on human rights in Africa, devoted to “Slavery, Pan-Africanism and Human Rights in Africa”.

The final round was adjudicated on 11 August by an eminent panel of international jurists which included Justice Fatsah Oouguergouz of the African Court on Human and Peoples’ Rights, who presided, and Justice Bess Nkabinde of the Constitutional Court of South Africa, among others. The top two teams from the English and French language groups merged to form two new combined teams of four students each: two English-speaking and two French-speaking students. The University of Ilorin from Nigeria and the Université Catholique de l’Afrique de l’Ouest from Côte d’Ivoire appeared for the Applicant against the University of the Free State, South Africa and the Université Libre de Kinshasa from the Democratic Republic of the Congo for the Respondent. In their summing up, the judges praised both sides and congratulated them on their arguments and general presentations. However, the team appearing from the Respondent, Free State and Libre de Kinshasa, were ultimately declared the winners.

Hypothetical Case

1 It is August 2007. The African Court on Human and Peoples’ Rights (African Human Rights Court) has been established, with its seat in Arusha, Tanzania, to complement the protective mandate of the African Commission on Human and Peoples’ Rights (African Commission).

2 At independence in 1965, the African country Sentonia consisted of three major ethnic groups, the Ambo, Bunga and Chomba. The Chomba formed a small minority of about 1 million people of the total Sentonian population of some 12 million. Its neighbouring state, Malakia, which also gained independence in 1965, consisted predominantly of members of one ethnic group, the Dara. Sentonia is a rapidly industrialising country, and ranks at number 139 on the UNDP’s Human Development Index. The World Bank estimates that the average gross national per capita income is US $ 1200 per year.

3 In 1979, Samba (then 25 years old) and Bineta (then 15 years old), who were born in and were citizens of Sentonia, fl ed from Sentonia to Malakia, due to serious ethnically-based civil disturbances and violence, mostly directed by the Ambo and Bunga groups against the minority Chomba population. Together with some half a million members of the Chomba group, Samba and Bineta fl ed to Malakia. Upon their arrival in Malakia, the Chomba’s were housed in several refugee camps, in the south of Malakia, the area the furthest away from Sentonia. The status of these people was never formally determined, but they were allowed to settle in Malakia, and gradually integrated into the country. At the time, Malakia did not have any domestic refugee legislation. To the present, relations between Sentonia and Malakia remain strained, especially due to Malakia allowing the Chomba National Movement (CNM) party to operate within its territory. Although armed incursions never occurred, war rhetoric has been and still occasionally is prevalent in the speeches of leaders of both countries.

4 Malakia is a member of the United Nations (UN) and the African Union (AU). The total population of Malakia is some 15 million. The bulk of the citizenry of Malakia rely on agriculture as their livelihood. About 55% of the population lives in rural areas, and 45% in cities.

5 Malakia is a state party to the African Charter on Peoples’ and Human Rights (African Charter), which it had ratifi ed in 1987. It also ratifi ed the Protocol Establishing the African Human Rights Court on 4 March 2003, without making a declaration in terms of article 34(6) of the Protocol; the OAU/AU Convention Governing the Specifi c Aspects of Refugee Problems in Africa on 1 January 1975; the African Charter on the Rights and Welfare of the Child (African Children’s Charter) on 14 August 2004; and the Protocol to the African Charter on the Rights of Women in Africa (African Women’s Protocol) on 14 February 2006. Malakia became a state party to the UN Refugee Convention and its 1967 Protocol in 1970. It is also a state party to the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC), which were all ratifi ed in 1996, and the UN Convention on the Protection of All Migrant Workers and Members of Their Families (ratifi ed in February 2006). It has not ratifi ed any other relevant human rights instrument, but signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995.

6 Malakia functions according to a Constitution providing for a multiparty democracy, with a justiciable Bill of Rights, containing rights very much akin to those enshrined in the ICCPR. However, Malakia’s Constitution also includes the right to education, in line with the formulation of article 13 of the ICESR, in its Bill of Rights. The Bill of Rights does not contain any other justiciable socio-economic rights, but all other socio-economic rights in the ICESCR are contained in a chapter of the Constitution entitled “Directive Principles of State Policy”. The Constitutional Court is the highest domestic court of constitutional jurisdiction; each province has a High Court, and there are magistrates’ courts in every district. Article 110 of its Constitution declares that international agreements duly ratifi ed by Malakia are “part and parcel of the law of the land”. Moreover, such treaties duly ratifi ed by Malakia are the “supreme law of the land” by virtue of article 119 of its Constitution. Article 114 of the Constitution provides that, when interpreting the Bill of Rights, courts “must take into account” international law.

7 Malakia is one of the poorest states in Africa, and is classifi ed as a “least developing country”. It is ranked at number 165 on the UNDP’s Human Development Index. The World Bank estimated the average gross national per capita income in Malakia at US $ 300 per year. Approximately 48% of the population lives in conditions defi ned as “extreme poverty” (that is, living on less than US $1 per day). The United Nations Educational, Scientifi c and Cultural Organisation (UNESCO) has noted that investment made by the government of Malakia in education services was relatively low. In particular, the allocation in the annual budget to the education department has been criticised for representing only 6,1% (in the 2004/5 fi scal year), 5,5% (in the 2005/6 fi scal year) and 6,2% (in the 2006/7 fi scal year). This contrasts sharply with allocations for defence, which made up 11%, 12,5% and 10% of the total budget in the corresponding fi scal years. According to the most recent seroprevalence survey of pregnant women attending public health facilities, the HIV rate stands at 18%.

8 Like many other members of Chomba, Samba and Bineta settled in Malakia. They got married according to Chomba customary law in 1990. Samba, a qualifi ed engineer, started working with a construction company in Bangura, a district capital of Malakia. Bangura is located in the Lamine province of Malakia. Two children were born to them, Bambi (in 1993) and Chitang (in 1996). Their births were never registered.

9 By 2006, Samba and Bineta had established themselves as respected members of the community, in Bangura, where they had lived since 1986. Samba still worked with the construction company, and made it possible for him and his family to live comfortably, but without any luxury. After all household and necessary expenses were catered for, he was left with about US $ 45 per month. Samba held some political ambitions. He therefore made himself available for local elections (as member of Bangura’s district council). He was nominated and started his campaign for the local elections that had been scheduled for November 2006. Malakia’s national electoral system is constituency-based, and local elections are ward-based. However, a month before the election, the CNM received a letter from the serving council mayor, issued under article 20 of the Local Government Act, indicating that Samba was disqualifi ed from standing for election, as he was not a national of Malakia. Article 20 of the Local Government Act reads as follows: “To be eligible for election to hold a seat in municipal councils, candidates have to show proof of nationality of Malakia.” Under article 22, the Act allows council mayors to assess the eligibility of candidates for local elections. There is no legislative provision stipulating a period within which mayors have to make this assessment. Similar legislation exists at the national and provincial levels. Samba, who had never obtained nationality in Malakia, approached the Department of Internal Affairs. He was informed that, according to article 5 of the Citizenship Act, “nationality is only granted if the applicant can show proof that one of his or her parents were nationals of Malakia; or if he or she had been born in Malakia”. As Samba could not do that, he was disqualifi ed from standing as a candidate.

10 Samba was a candidate for the CNM party. CNM is a registered political party in Malakia, but not in Sentonia. One of its main objectives is to advocate for “self-determination” of the Chomba people in both these states, and to reunify them in a newly established independent state.

11 CNM organised protests, arguing that the notice by the serving council mayor deprives the party from posting a candidate in the particular ward. As the registration of candidates had closed three months before the date of the election, CNM was not able to nominate a candidate to replace Samba.

12 CNM approached the Bangura magistrates’ court, to contest the constitutional validity of article 20 of the Local Government Act and article 5 of the Citizenship Act. The Court referred the matter to the Lamine High Court, which declined the application without reasons. Due to the prohibitive expenses of taking the matter to the Constitutional Court, and the lack of a reasoned judgment against which it could appeal, CNM did not pursue the matter further.

13 In 2006, Bineta fell pregnant again. When she went for a routine examination to the state hospital in Bangura, she was required to undergo an HIV test. When she protested, she was informed that Malakia has a national HIV/AIDS policy which requires that all pregnant women undergo an HIV test as a condition for further health care. Bineta then reluctantly took the test. Although she tested HIV negative, she felt “violated”, as she told her husband afterwards. HIV testing is only compulsory for pregnant women in Malakia.

14 Bineta went back to the hospital, with her husband. They raised their objection against the compulsory HIV testing for pregnant women to the Superintendent of the Bangura Hospital, who informed them that there is no chance that the policy will be changed. He told them that a challenge had been brought in another province of Malakia, where it was rejected, adding that the applicants in that matter had to pay for all the parties’ costs.

15 The family’s one child, Bambi, went to a state school, Bangura Primary School. Bambi, a girl, experienced diffi culties due to the attitude of other students on the basis of her status as a member of Chomba. She was sometimes taunted and humiliated. Nevertheless, she was a very good pupil, who usually topped her class. When her father started looking at the content of her schoolwork, he arrived at the opinion that the education she received in mathematics was “below par”. He consulted with acquaintances in Sentonia, and obtained the curricula of the Sentonian Department of Education for the corresponding academic year. As an engineer, Samba was familiar with the requirements of a mathematics curriculum, and was very concerned about the level of complexity in the Malakian curriculum compared to that of Sentonia. In addition, he noticed that the history curriculum and textbooks only deal with the history of the Dara, and omit all reference to the Chomba, their history, and their contribution to Malakia. Samba was further concerned about the teacher: pupil/ learner ratio, which stood at a national average of 1: 75, and in Bangura Primary School, at 1: 82. He approached the principal of Bangura Primary School, who dismissed his concerns as “the usual parental anxieties and infl ated expectations”.

16 Chitang, now 14 years old, was to complete his studies at Bangura Primary School at the end of 2006. Following the requirements, Samba applied to Bangura Secondary School, for admission in 2007. According to the application form, prospective learners had to pay an annual amount of US $ 100 for their own school fees, unless they got a “waiver” or “subsidy”. A “waiver” or “subsidy” is granted by each school’s governing board, which is established under the National Education Act to allocate the government’s educational subsidies. When this board sat in October 2006, it granted 110 “waivers” and “subsidies” out of a pool of about 200 applications. Chitang’s application was unsuccessful. The Board gave no reasons for their selection. According to the Education Act, in terms of which community boards are instituted, these boards have an absolute discretion to issue “waivers” and “subsidies”. The grounds that they have to take into account include “prior academic performance”, “links to the community” and “fi nancial need”. Chitang had been a relatively good student, and ranked number 70 in a class of 210.

17 In November 2006, the family approached an NGO, Social Justice for All (SOJUFA), not registered but de facto operating in Malakia, and with its headquarters and main activities in Sentonia. SOJUFA does not have observer status with the African Commission. When SOJUFA approached local courts for legal redress on issues (b), (c) and (d) below, it was not allowed to institute proceedings because it lacked locus standi under Malakian procedural law. The NGO, SOJUFA, submitted a communication to the African Commission, in which it alleged violations of the African Charter and other international law in respect of the following:

(a) the disqualification of Samba to stand as candidate in the local election;
(b) Malakia’s national HIV testing policy, requiring all pregnant women to undergo an HIV test;
(c) the content and quality of Malakia’s primary school education;
(d) the decision of the Bangura Secondary School governing board, requiring Chitang to pay for his secondary school fees.

18 After the Commission had found all four matters admissible, it decided, under article 5(1)(a), to refer the matter to the Court without deciding it on the merits.

Prepare arguments to be submitted to the African Court by the applicant (the Commission), and the respondent (the State of Malakia), on the four issues including their admissibility and an appropriate remedy on each issue.