Seventeenth African Human Rights Moot Court Competition
Pretoria, South Africa, 30 June - 5 July 2008
During the week of 30 June to 5 July 2008, students and faculty representatives representing a record number of 71 law faculties from 28 countries across Africa, assembled in Pretoria for the 17th African Human Rights Moot Court competition. The event was organised by the Centre for Human Rights, Faculty of Law, University of Pretoria as part of the University’s centenary celebrations.
The competition simulated the African Court on Human and Peoples’ Rights, which was recently established by the African Union for the African continent.
The keynote address at the Opening Ceremony, which was held in the Auditorium of the Faculty of Law, was presented by Dr Zola Skweyiya, Minister of Social Development. In his remarks, the Minister addressed the problem which the teams were arguing in the competition, ‘the right not to be poor’.
The four preliminary rounds were conducted in French, English and Portuguese over two days in the lecture rooms of the Law Faculty, with each team arguing in a separate court in their own language before panels of judges comprised of faculty representatives. Each team was required to argue twice for the Applicant and twice for the Respondent.
One day was allocated to relaxation and on Thursday, the participants were taken by bus on a tour of Soweto and the Apartheid Museum.
The following day, as part of the training provided through the Moot Competition, everyone attended a one-day conference on human rights in Africa. Experts gave the students advice on their analysis of the issues, writing of memorials and oral argumentation.
The highlight of the week, however, defi nitely took place on Saturday, 5 July on the Groenkloof campus of the University of Pretoria, when the top three teams from the English, the top two French language, and the top Portuguese-speaking team merged to form two new combined teams of six students each in the fi nal round. Justice Gérard Niyungeko, President of the African Court on Human and Peoples’ Rights, presided over a panel which included Justice Sanji Monageng, Chairperson of the African Commission, and the Deputy Chief Justice of South Africa Dikgang Moseneke.
The University of Pretoria, the University of Ghana and Eduardo Mondlane University in Mozambique appeared for the Applicant against the Université Gaston Berger de Saint-Louis, Senegal, Université Mohammed Premier, Oujda, Morocco, and the University of Lagos, Nigeria, 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 for the Applicant were ultimately declared the winners by a narrow margin.
Mr Jody Kollapen, Chairperson of the South African Human Rights Commission, delivered the keynote address at the Closing Ceremony where the fi nal results were announced and the prizes awarded.
1 Zanola is an African country and member of the African Union (AU). Since its independence from the United Kingdom in 1960, it has been governed by the same political party, the Zanola Independence Party (ZIP). Multi-party elections were fi rst held in 1996. Amid unconfi rmed speculation about electoral manipulation, ZIP remained in power, and has retained power in subsequent elections. ZIP holds just over two-thirds of the seats in the lower house. Popular participation in national elections has dwindled, with only 27% of registered voters casting a ballot in the most recent elections, held in 2004.
2 Zanola is landlocked and covers a vast land mass. Administratively, it is divided into three provinces. According to the 2005 census, its total population is 22 million, up 9 million from the previous census, which had been conducted in 1991. In 2007, the World Bank recorded a GDP of US$ 700 per capita. Approximately 45% of the population lives on less than US $1 per day. Zanola falls in the category of “least developed countries”. In 2006, the infl ation rate was 10%, and in 2007, it increased to 14%. The Zanola budget is tabled in parliament on 1 March annually. According to the UNDP Human Development Index for 2007, Zanola’s budgetary allocation to health made up 3% of the national GDP in 2006. (In 1995, the corresponding fi gure stood at 2,8%.) The allocation to education stood at 4,8% of GDP (up from 2,9% in 1995). After the discovery of oil in Zanola in 2005, the bulk of the national budget (25% in the 2005, and 26% in the 2006 budgets) went towards the development of drilling and pipeline facilities. Allocation towards the military in 2005 and 2006 made up 8% and 7% of the budget, respectively. In his budget speech of 2006, the Minister of Finance observed as follows: “Although Zanola faces no immediate military threat, we have to secure our strategic interests, which will in the long run be to the benefi t of all our people.”
3 The Zanola independence Constitution contained a Bill of Rights, which was a copy of the substantive rights contained in articles 1 to 18 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), with the necessary adaptations. After the wave of democracy of the 1990s, the Constitution was amended in a number of respects, but the Bill of Rights was retained in its original form. (None of the Protocols to the European Convention were made part of Zanola law.) The Constitution also contains “Directive Principles of State Policy”, attached hereto. According to article 300 of the Constitution, “international treaties duly ratifi ed become part of domestic law once national law to such effect has been adopted”. There is no general “anti-discrimination” legislation in Zanola. No social security system has been put in place, although the government has engaged consultants to investigate the feasibility of such a system early in 2008. Neither the National Education Act nor any other legislation regulate the establishment or running of private schools. The Zanola parliament has not adopted any law dealing specifi cally with HIV or AIDS.
4 Zanola is a state party to the African Charter on Human and Peoples’ Rights (African Charter), which it had ratifi ed in 1991. It also ratifi ed the Protocol Establishing the African Human Rights Court in 2003, without making a declaration in terms of article 34(6) of the Protocol, the African Charter on the Rights and Welfare of the Child (African Children’s Charter) on 1 August 2005 and the Protocol to the African Charter on the Rights of Women in Africa (African Women’s Rights Protocol) on 24 January 2006. Zanola is a member of the United Nations (UN). It is 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 1992. It has not ratifi ed any other relevant human rights instruments. In 2005, Zanola became a member of the World Trade Organization (WTO) and of the WTO Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS).
5 According to the most recent national statistics (2005), the infant mortality rate in Zanola stood at 140 per 1 000 live births. (In 1970, this fi gure stood at 100, and in 1985 at 128.) According to national statistics, the maternal mortality ratio in 2005 was 540 per 100 000 women giving birth. (UNICEF and the WHO adapted this ratio to 700 per 100 000 women, due to underreporting and misclassifi cation.) (In 1970, the corresponding national statistics stood at 700, and in 1985, at 600.)
6 Based on occasional sero-prevalence studies at antenatal clinics, the HIV prevalence in Zanola is estimated at 18% of the population between 16 and 49. According to the National HIV/AIDS Strategic Plan 2004-2009, the government is “working towards ensuring” that all people living with HIV with a CD4 count of less than 200 should have access to a fi rst-line regimen of anti-retroviral medication, consisting of Stavudine (commercially known as Zerit), Lamivudine (3TC) and Nevirapine (Viramune). All these medications have been patented under Zanola’s Patent Law. No second-line regimen is in place for anyone who may show adverse effects to the fi rst-line regimen, or who have built up resistance against that regime. According to the same Plan, a national Prevention-of-HIV-Transmissionof- Mother-to-Child (PMTCT) programme “must be in place in all government health care facilities”. The PMTCT regime consists of a prescribed dose of Nevirapine to both HIV mothers and their newborn children. In practice, the fi rst-line regimen is available to about 6 000 people living with HIV, mainly in Zanola City. It is estimated that about 120 000 people may be in need of ARVs. These estimates are, however, unreliable, due to the small number of people who present themselves for HIV testing. There is a small number of voluntary counseling and testing clinics in the biggest cities of Zanola. There are only four testing laboratories, two in Zanola City, and two in provincial capitals. The government’s application in 2006 to the Global Fund was unsuccessful, due to technical imperfections in the application. No application was made in 2007. According to a statement by the Minister of Health, treatment access is hampered by the high prices of medications, despite efforts by the government to negotiate price reductions with an international pharmaceutical company, BigPharma. The cost of a course of PMTCT (for three days of drugs to the mother and the prescribed dosage to the newly born infant), which was US $500 in 2005, has been negotiated down to US $100 per course of treatment in 2007.
7 Section 48 of Zanola’s Patents Act states the following: In order to carry out any service for public consumption or which is of vital importance to the defense of the country or for the preservation or realization of natural resources or the environment or to prevent or relieve a severe shortage of food, drugs or other consumable items or for any other public service, the Commissioner of Patents may grant a compulsory licence on any patented product, while stipulating that an adequate royalty shall be paid to the patentee or his exclusive licensee and that the patentee or his exclusive licensee shall without delay be notifi ed in writing.
8 In June 2005, a local private pharmaceutical company, ZaPha, requested that the Commissioner of Patents grant it a compulsory licence to manufacture generic versions of the three fi rst-line drugs under the Zanola Patents Act. The basis for the approval, as stated in the request, is to increase competition and drive down prices for anti-retrovirals in Zanola, where the majority of HIV-infected persons do not have access to these medicines. In January 2006, a hearing was held, at which BigPharma raised the objection that ZaPha would not be able to produce the drugs on a sustained basis. In the same month, the Commissioner of Patents ordered that a government task team be instituted to investigate the capacity of ZaPha to manufacture the drugs on a sustainable basis. The government established a task team in November 2006. In January 2008, the task team reported that, given the present investment climate, the granting of a compulsory licence would be prejudicial to Zanola’s economy, as it would threaten the loss of investment and may lead to trade sanctions. Applying his discretion, the Commissioner of Patents decided not to grant ZaPha a compulsory licence.
9 Linda Didiza was born in the capital city of Zanola, Zanola City. Her mother passed away when she was only eight years old, and she never knew her father. She grew up with her grandmother, Mrs Gugu Didiza, who lived in a small apartment in Zanola City, and earned a living as a municipal cleaner.
10 Linda excelled in her studies, and obtained a government bursary to study towards a teacher’s diploma. As prescribed by the terms of the bursary, upon completion of her studies, she was required to relocate to a remote rural area and work there for four years in a government-funded secondary school. Her annual remuneration was set at an equivalent of US $55 per month, to be adjusted with infl ation. She was allocated to the only secondary school in the provincial town of Dola. Linda settled in Dola and started teaching in 2005. Due to severe fi nancial problems, this school has for some time been on the verge of disintegration and faced closure. Matters reached a crisis level when the salaries for the seven teachers employed at the school were not paid in 2006. Efforts to address the issue with the provincial and national government did not succeed. A group of businesspeople in Dola came together, and started a private foundation. They collected contributions and established a private school. The school made use of the government buildings, but, in terms of salaries and equipment, was run entirely by the private foundation. Linda was kept on as one of the seven teachers. Linda wrote to the Department of Education in Zanola City, informing it of the situation and requesting permission to stay on at the school. She received the following reply: “Thank you for informing us of the changing circumstances. We regret the non-payment, which is due to fi nancial constraints. However, we will attend to the matter. You are free to continue at the privately funded school, but note that any service rendered there will not be considered as part of your remaining three-year obligation to the state of Zanola.”
11 After initially being viewed as an “outsider”, Linda integrated well into the community and decided to stay on. She befriended Jacob, a 35 year-old unemployed man. On several occasions, they had unprotected sex. In December 2006, Linda realised that she was pregnant. She attended a nearby state owned and operated clinic, where she was advised to undergo an HIV test. To access the test, she had to go to a state owned and operated provincial hospital in the provincial capital, Munseville. She did so, and tested positive for the presence of the virus. Linda was extremely distressed, and during the post-test counselling session, she was advised to confi de in a close friend. Upon her return, she waited a few days and then told a colleague about the test result. The colleague did not keep this information confi dential, and soon news spread like a wild fi re in the school and surrounding village. Within a week, the board of the school’s foundation informed her of its decision to release her of her duties. Linda’s protest that she had a government bursary fell on deaf ears. She subsequently wrote to the Department of Education, but received no response. Since she felt ashamed about falling pregnant and blamed herself for becoming HIV positive, she did not want to go back to her grandmother. She therefore decided to stay on in Dola, at least until the birth of her child.
12 Increasingly, the community shunned and isolated Linda. The little money she had saved up soon ran out, and she could not afford to pay rent to the family she lived with. After she had been told to leave the house, she lived in a shack she had built herself, without any access to electricity, running water or sanitation facilities. She had to get water from a river, about 10 minutes’ walk from her shack. She also realised that she would not be able to go to the hospital in Munseville, due to a lack of money for transport. Three weeks before the birth was due, she enquired from the local clinic whether she could give birth there, and whether the clinic has any PMTCT treatment programme in place. She was told that there was no problem with her giving birth there, and that the clinic was, in principle, part of the nationwide PMTCT programme, but that there was no medication at present. However, the hope was expressed that the clinic would receive medication within “a week or so”. Linda accepted that she had to give birth at the clinic, and hoped that PMTCT medication would be available.
13 On 1 July 2007, when Linda arrived at the clinic, she was told that no PMTCT medicines were available. She was very upset. Later the same day, she went into labour. Complications arose, leading to intense bleeding. No emergency obstetric care was available at the clinic. Although the baby was saved, Linda died. The baby was later tested as being HIV positive. 14 When Linda’s grandmother received news of these circumstances, she arranged to undertake a visit to Dola. She used her last savings to undertake the visit, and returned with the baby to Zanola City. Upon her return, she would not let the matter rest. She approached the Zanola Bar Council. The Zanola Bar Council enjoys observer status with the African Commission. Under its limited legal aid programme, the Bar Council assigned a lawyer to the case, who investigated the matter. A twofold case was brought in the Zanola High Court, aimed at a fi nding (a) that Linda’s dismissal was illegal and unconstitutional under the National Education Act and the Constitution, and (b) that her death was a violation of the National Health Act.
15 The provincial High Court rejected these claims, on the grounds that (a) the conduct of a private school is not regulated under the National Education Act, and (b) the personnel of the clinic were not negligent and complied with the requirements of the National Health Act.
16 In order to appeal the judgment, it is a legal requirement that leave to appeal must be obtained from the High Court. The High Court refused leave, without stating any reasons. Legislation allows the High Court, in routine matters, to refuse leave to appeal without providing reasons. Under the Judicature Act, the Chief Justice may “under exceptional circumstances” overrule a fi nding of a High Court to refuse leave. This procedure is by way of a petition, which is decided by the Chief Justice, without any further hearing on the matter. The Zanola Bar Council did not bring such an application.
17 The Zanola Bar Council then approached the African Commission on Human and Peoples’ Rights on behalf of Mrs Gugu Didiza, claiming the following:
(a) Linda Didiza’s dismissal violated the African Charter on Human and Peoples’ Rights;
(b) Linda Didiza’s death constituted a violation of articles 4 and 16 of the African Charter, read with article 10(3) of the African Women’s Rights Protocol;
(c) the lack of PMTCT medication in the Dola clinic, and in Zanola generally, constituted a violation of article 16 of the African Charter, in that the state had not made use of the flexibilities allowed for under TRIPS to ensure accessible anti-retroviral medication in Zanola.
18 In a brief finding, the African Commission found violations on each of the issues above, and referred the matter to the Court. In its arguments before the Court, the African Commission, preparing heads of argument with the assistance of the Zanola Bar Council, raised the same three matters above, and added the following:
(d) Linda Didiza’s “right not to be poor”, as derived from the totality of the provisions of ICESCR, had been violated.
19 Prepare arguments on behalf of both the applicant (the African Commission, assisted by the Zanola Bar Council) and the respondent (the state of Zanola). Deal with admissibility, merits and the appropriate remedy pertaining to each of the four issues.
Annexure: Directive Principles of State Policy
I. Fundamental obligations of the government
It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution. These principles shall not be enforceable by any court of law.
II. Economic objectives
- The State shall, within the context of the ideals and objectives for which provisions are made in this Constitution
(a) harness the resources of the nation and promote national prosperity and an effi cient, a dynamic and self-reliant economy; and
(b) control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity.
III. Social objectives
- The State social order is founded on ideals of Freedom, Equality and Justice.
- The State shall direct its policy towards ensuring that-
(a) all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment;
(b) conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;
(c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;
(d) there are adequate medical and health facilities for all persons:
(e) there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever;
(f) children, young persons and the age are protected against any exploitation whatsoever, and against moral and material neglect; and
(g) provision is made for public assistance in deserving cases or other conditions of need.
IV. Educational objectives
- Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.
- Government shall promote science and technology.
- Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide
(a) free, compulsory and universal primary education;
(b) free secondary education;
(c) free university education; and
(d) free adult literacy programme.
V. Duties of the citizen It shall be the duty of every citizen to -
- abide by this Constitution, respect its ideals and its institutions, the National Flag, the National Anthem, the National Pledge, and legitimate authorities;
- respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood; and
- make positive and useful contribution to the advancement, progress and well-being of the community where he resides.