Sixth African Human Rights Moot Court Competition

Kampala, Uganda, 1 – 6 September 1997

The Sixth African Human Rights Moot Court Competition was held at Makerere University, Kampala, Uganda, from 1 to 6 September 1997. It was a highly successful event that brought together, once again, one third of the law faculties in Africa to argue and debate crucial human rights issues in the fi erce but friendly atmosphere of a mock court room. Each of the 40 participating faculties was represented by a faculty representative and two students. It was a thoroughly enjoyable experience for all involved, an event that ran for seven days without a major hitch.

The Moot Court Competition in reality started at the beginning of the year when knock-out rounds were held at all these universities to determine which students were going to represent the faculty in Kampala.

Most participants in the Uganda moot arrived on the Sunday 31 August to a warm welcome by a small team of dedicated Makerere University law students. Registration took place all through the following morning and into the afternoon as well. The opening ceremony was held that afternoon in the Great Hall of the University at which the Attorney General, who formally declared the competition open, was guest of honour. The Deputy Vice-Chancellor, on behalf of Makerere University, lauded the venture saying “as we progress towards the 21st Century, it is my strong belief that this competition - by bringing together the youngest and the brightest of the intellectual class - can do much to inspire greater cooperation in the struggle to realise the human rights for which we are all sincerely committed to achieving.”

Tuesday 2 September was the fi rst day of preliminary rounds, the second day being Thursday 4 September. For the preliminary rounds, the faculty representatives were constituted into benches of judges and assigned to particular “courts”. The students argue the hypothetical case four times, twice for the applicant and twice for the respondent, never before the same bench twice. The evaluation from both students and faculty representatives indicate that the standards were quite high On the Wednesday 3 September, the one day course on the international protection of human rights was held. Eight lectures were delivered, four in English and four in French through the day on key areas of international human rights. Attendance was compulsory for all students and the quality of the lectures was very high.

English

• The UN system for the protection of human rights Prof Gudmundur Alfredsson, Co-director, Raoul Wallenberg Institute, Sweden
• The African system for the protection of human rights Mr Emile Yakpo, General Secretary, African Society of International and Comparative Law, Ghana/London
• The European system for the protection of human rights Mr Pascal Dourneau-Josette, European Commission of Human Rights, Strasbourg, France French
• Le système Onusien de sauvegarde des droits de l’homme Prof Aloys Muberanziza, Doyen, Faculté de Droit, Université Nationale du Rwanda
• Le système Européen de sauvegarde des droits de l’homme Mr Pascal Dourneau-Josette, Commission Européenne, Strasbourg, France
• Le système Africain de sauvegarde des droits de l’homme Prof Gervais Gatunange, Titulaire du cours des droits de l’homme, Faculté de Droit, Université du Burundi
• La protection des droits de l’homme en Afrique du Nord: cas des pays de l’Union du Maghreb Arabe Prof Mohammed Bedhri, Faculté de Droit, Université Mohamed Ier, Oujda, Maroc

The final round was held at the International Conference Centre in Kampala. It opposed the best four teams, paired to form two joint teams.

Applicant:

Makerere University and the University of the Witwatersrand

Respondent:

University of Pretoria and Université du Bénin, Togo

The bench in the fi nal round was presided over by the Deputy Chief Justice of Uganda and included:

• Jean Mutsinzi - Président, Cour Suprême du Rwanda
• Justice Fergus Blackie - High Court of Zimbabwe
• JusticeStanley Maphalala - Chief Justice’s Chambers, Swaziland
• Prof Gudmundur Alfredsson - Co-director, Raoul Wallenberg Institute, Sweden
• Mrs MO Ogungbe - Dean of Law, Ogun State University, Nigeria
• Prof Rita Jordaan - Law Faculty, University of South Africa
• Mr Rosario Domingue - Law Faculty, University of Mauritius

The combined team for the applicant won the fi nal round. The best oralist of the competition was Sim Katende of Makerere University. The closing dinner and prize giving ceremony were held at the Equatoria Hotel in central Kampala at which the chairperson of the Human Rights Commission was guest of honour. The winners and runners-up received trophies as well as the best oralist. Each team was given a copy of the most recent Raoul Wallenberg Compilation of International Human Rights Instruments for the law library of their university. Each individual student also received a copy of the second edition of Buergenthal’s Human Rights in a Nutshell. The chairperson of the Human Rights Commission praised the very idea of the All-African Human Rights Moot Court Competition and its aims and objectives. These book donations are motivated by the need to increase the volume of human rights literature in university libraries across the continent, many of which do not have any at all.

Participants left as from Sunday 7 September on various fl ights to all parts of the continent. If one thing can be said of the competition this year, it is a general sense of great satisfaction expressed by everyone at the smooth running of the event and the personal gain experienced by the participants in particular.

The organisers would like to continue with the African Law Students’ Internship Programme, born of the 1995 competition and offering participants in the Moot Court the opportunity of doing a three week practical internship at a law fi rm or human rights NGO in another African country. Sixteen students have received placements so far.

The Sixth African Human Rights Moot Court Competition was, beyond any doubt, a great success. It showed, however, that there is a need to increase the number of law faculties that participate. It is the premier vehicle for facilitating contact between African law faculties. The schooling competition has enormous multiplying effects throughout Africa. Not only is the competition and its logo - Africa: From human wrongs to human rights covered widely in the media (TV and newspapers), but the preliminary rounds at the various universities, the experience of the team which attends, and their feedback afterwards contributes greatly to an increased level of knowledge about human rights in Africa. It is an important contribution to a certain degree of human rights awareness necessary for the young people of Africa to enter the next millennium. Furthermore, the African Human Rights Moot Court Competition is making a signifi cant contribution to the development of an indigenous African human rights jurisprudence, in anticipation of the African Human Rights Court.

Hypothetical case

1. The African Court of Human Rights (“the African Court”) has been set up in terms of an amending Protocol to the African Charter on Human and Peoples’ Rights (“the African Charter”). The jurisdiction of the African Court extends to all cases and disputes submitted to it concerning the interpretation and application of Part 1 of the African Charter. Cases can be brought before the African Court by either a State Party to the Charter or the African Commission on Human and Peoples’ Rights (“the African Commission”) after a petition by individuals or non-governmental organizations (NGOs) has been considered by the Commission. In exceptional cases, petitions by persons, groups of individuals or non-governmental organisations, claiming to be victims of a violation of the rights set forth in the Charter, by one of the States Parties, may be allowed directly by the African Court. Before considering the merits of any case, the African Court may also reconsider the issue of admissibility with reference to article 56 of the African Charter. In terms of the Protocol (article 24), the Court may take the following findings:

1. If the Court fi nds that there has been violation of a human or peoples’ rights, it shall order an appropriate measure to remedy the situation.
2. The Court may also order that the consequences of the measure or situation that constituted the breach of such right, be remedied and that fair compensation or reparation be paid or made to the injured party.
3. In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems necessary.

2. The State of Ruritania is a party to the African Charter and has accepted the compulsory jurisdiction of the African Court. In terms of the Judicature Act of 1965, an appeal from Ruritania’s highest court is to the Judicial Commission of the Privy Council in London. Ruritania is also a member of the United Nations and has signed and ratifi ed the following international human rights treaties of the UN:

• The International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol I (OPI);
• The International Covenant on Economic, Social and Cultural Rights (ICESCR);
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
• The four Geneva Conventions of 1949 relative to the Protection of Civilian Persons in Time of War and the two 1977 Additional Protocols.

3. Ruritania is a federal state. It gained independence from the United Kingdom in 1962. Ruritania is made up of approximately eight ethnic groups, each with their own language. The smallest ethnic group in Ruritania, the Odonis, all live together in the Eastern State, on the border with El-Byson. This area, popularly known as “Odonia”, takes up about 30% of the ground surface of the Eastern State. The Odonis have been living there since time immemorial. Another ethnic group, the Garumbas, also inhabit the Eastern State. The Garumbas form about 60% and the Odonis about 40% of the population of the Eastern State. The total population of Odonia is some 1,5 million. the main sources of Ruritania’s income are its copper mining industry (in the Northern State), its fi shing (in the Southern State) and its oil reserves. These oil reserves are situated and exploited exclusively in the Eastern State.

4. The National Council (the national legislature) and State Councils (the provincial legislatures) are elected every fi ve years by direct vote of all citizens older than 18 years. A Federal Ruling Council (the federal executive) is elected by members of the National Council from among its members. The executive and legislative powers of states (provinces) are limited to issues such as abattoirs, state sport, state roads and traffi c, local amenities, markets, state building regulations and state trading regulations. These powers are exercised by the various State Councils, who have both legislative and executive authority. All other powers are exercised at the national level.

The following are excerpts from the Ruritanian Federal Constitution:

FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION

Article 8 Sovereignty of the People

1. All sovereign power resides in the nations, nationalities, and peoples of Ruritania.
2. This Constitution is an expression of their sovereignty.
3. They exercise, in accordance with this Constitution, their sovereignty through their elected representatives and through direct democratic participation.

STATE STRUCTURE

Article 46

Member States of the Federal Democratic Republic of Ruritania

1. The Federal Democratic Republic shall be comprised of States.
2. The States shall be delimited on the basis of the settlement patterns, identity, language and consent of the people concerned.

Article 47

Members States of the Federal Democratic Republic of Ruritania

1. The Member States of the Federal Democratic Republic of Ruritania are the following:
   • Eastern State
   • Northern State
   • Southern State
   • Western State
2. Nations, nationalities and peoples within the States enumerated in Sub-Article (1) of this Article have the right to establish, at any time, their own States.
3. The right of any nation, nationality or people to form its own State can be exercised under the following procedures: (a) when the demand for statehood has been approved by a two-thirds majority of the members of the State Council, and the demand is presented in writing to the National Council; (b) when the National Council, after receiving the demand, has organized a referendum within one year to be held in the nation, nationality or people that made the demand; (c) when the demand for statehood is supported by a majority vote in the referendum; (d) when the State Council has transferred its powers to the nation, nationality or people that made the demand; and (e) when the new state created by the referendum becomes a member of the Federal Democratic Republic of Ruritania.

4. Member States of the Federal Democratic Republic of Ruritania shall have equal powers and rights.

In 1990, the military in Ruritania seized power in a coup d’etat under General Siki. General Siki declared himself head of state and government. Military governments were appointed for each state. During 1995 a former army Captain, James Tata, launched an uprising in the Eastern State, ostensibly to overthrow the military government of General Siki. Captain Tata’s guerilla group, known as the Red Light Commandos, comprised mostly of members of the Odoni ethnic group. The underlying causes of the uprising were the grievances of the Odonis about alleged human rights abuses by the Siki dictatorship in Odonia. For many years the Odonis have preserved a strong identity and culture. As hunters, gatherers and fi shermen, they remained physically and emotionally dependent on and interlinked with nature for their survival. The Odonis complained about a purposeful and persistent attempt from sectors of government and the oil companies to wipe them out. Among the grievances against the oil companies were: the noise from exploration activities drives away game, and intensive motor boat river traffi c and frequent oil spills in some rivers cause fi shing, bathing and drinking to become impossible. These oil companies are private companies, in which the government holds 40% of the shares. Independent studies have confi rmed that in the areas in Odonia affected by oil pollution and toxic waste, people suffer from skin rashes, stomach ache and chronic headaches and fever.

6. Violations of the rights of the Odonis have also come directly from the government of General Siki. Under a law entitled “Unifi cation Decree No. 10 of 1990” demonstrations and strikes throughout Ruritania were banned and the use of local languages in schools were declared unlawful. The government claimed that the law was not aimed at any particular group, but was intended to foster national unity throughout Ruritania. The Odonis, however, complained that the law was aimed at them in particular, and that they were not allowed to use their own language in their schools or to participate in government. The government denied these allegations and appointed two members of the Odoni ethnic group to the Federal Ruling Council.

7. On 10 January 1994, a company of Ruritania government troops commanded by Major Sisili conducted a counter-insurgency operation in Odonia. Without the knowledge of Major Sisili, ten civilians who were suspected of belonging to the rebel group, the Red Light Commandos, were blindfolded, put on a military vehicle and driven to an unknown destination. A few kilometres away, they were forced out of the vehicle, order to dig their own graves and summarily shot.

8. On 30 October 1994, Mr Frundini, the leader of the Odonia Civil Rights Movement, was arrested on suspicion of aiding the Red Light Commandos and detained in the Central Police Station at Menda, the capital of the Eastern State. He was found in possession of 50 pamphlets in which the Red Light Commandos propagated “the armed struggle”. He was held without charge in a cell without light and elementary necessities such as water and a toilet. He spent a month in detention, before he was convicted by an ordinary court on a charge of sedition. After his conviction he was sentenced to three years’ imprisonment, he was brought back to the same cell. The warders then cut his mattress in half and told him “the idea is that he should not sleep too well - he must refl ect upon his sins”. He was kept in this cell until his release.

9. Some time in January 1996, the military dictatorship of General Siki was overthrown in a bloodless military coup. The new military government ordered elections for a return to civilian rule. Following general elections, Mr Wali was elected the new civilian President of Ruritania in June 1996. After elections at state level, a Garumba-dominated government was installed in the Eastern State. The activities of the oil companies continued. The new civilian government immediately repealed all the decrees promulgated by General Siki’s government, and all “political prisoners”, including Mr Frundini, were released. A Truth Commission was set up to look into allegations of human rights abuses, but all its actions were to be secret and its report would only be given to the President. The President would then decide whether to publish the Commission’s report or not. The Truth Commission may grant provisional amnesty to those who have confessed to human rights violations. Those granted amnesty will not be liable for any future criminal prosecution, but may still be held liable under civil law. Findings of amnesty have to be confi rmed by the President. The Federal Constitution was amended to provide for a Bill of Rights. Enshrined in it are fundamental rights to language and culture. Articles 8, 46 and 47 quoted above were retained unaltered.

10. Soon thereafter, the Odonia Civil Rights Movement, on behalf of the Odonian victims of human rights abuses which occurred under the military dictatorship of General Siki, sought legal redress by instituting proceedings in the Menda High Court. The judge rejected their claims. The Odonian victims then appealed to the Court of Appeal of the Eastern State, which upheld the High Court’s decision. They now felt compelled to seize the highest court in the country, the Supreme Court of Ruritania, with the matter. The Odonia Civil Rights Movement contacted a constitutional lawyer and requested him to take on the case of the victims. The lawyer estimated that the cost involved would be R(Rutti) 5 000. The Movement is a registered company without gain, and depends on donations for its survival. After an intensive fundraising drive, the movement had a total of R3 500 in its only savings account. In the light of this information, the movement decided to abandon attempts to approach the Supreme Court of Ruritania. It subsequently lodged a complaint with the African Commission.

11. The grievances and claims of the petitioners were based on the following:

(1) Failure by the new civilian administration to investigate violations of human rights during the former regime and failure to bring the perpetrators to justice.
(2) Reparation for the torture and suffering of the victims under the former regime.
(3) Under the heading, “aggregate rights relating to the right of self-determination”, the petitioners further allege the violation of the Odoni people’s rights and claim that their right to self-determination allows them to secede from the state of Ruritania.

12. The African Commission found all three complaints admissible and submitted the case to the African Court for its fi nal decision.

13. Prepare and argue the case for the Applicants (Odonia Civil Rights Movement) and the Respondents (the present Government of Ruritania) before the African Court.