Munyandu Tembani and Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen Others
Summary of the Complaint:
1 The Communication was originally submitted by Mr. Norman Tjombe (the Complainant) on behalf of Mr. Luke Munyandu Tembani and Mr. Benjamin John Freeth (the Victims) against the Republic of Angola (First Respondent), the Republic of Botswana (Second Respondent), the Democratic Republic of Congo (Third Respondent), the Kingdom of Lesotho (Fourth Respondent), the Republic of Malawi (Fifth Respondent), the Republic of Mauritius (Sixth Respondent), the Republic of Mozambique (Seventh Respondent), the Republic of Namibia (Eight Respondent), the Republic of Seychelles (Ninth Respondent), the Republic of South Africa (Tenth Respondent), the Kingdom of Swaziland (Eleventh Respondent), the United Republic of Tanzania (Twelfth Respondent), the Republic of Zambia (Thirteenth Respondent) and the Republic of Zimbabwe (Fourteenth Respondent) (collectively the Respondent States) as well as the Summit of Heads of State of the Southern African Development Community (SADC) and the Council of Ministers of SADC (SADC Council).
2 The African Commission on Human and Peoples’ Rights (the Commission) however became seized of, and has considered this Communication against the fourteen (14) named Respondent States in their capacities as State Parties to the African Charter on Human and Peoples’ Rights (African Charter).
3 By virtue of affidavits deposed to by the Victims, supported by various evidentiary documents (altogether comprising the Communication), the Complainant alleges that the First Victim, a Zimbabwean, had acquired a registered title to agricultural land in 1995, in which he invested considerable resources on farming facilities, and that he has now been deprived of his title and forced to leave the same, consequent upon an executive action by the Government of Zimbabwe. This matter was taken to the Tribunal of the SADC (the Tribunal), which made a ruling in favour of the First Victim, upholding the latter’s contention that the deprivation of his land was in conflict with Zimbabwe’s Treaty obligations and hence in violation of international law.
4 The Complainant submits that the judgement of the Tribunal has not been complied with by Zimbabwe, and that this has been the case with other judgements handed down by the Tribunal against Zimbabwe, including the award in favour of what has now been termed the Campbell applicants , which was issued by the Tribunal in the case of Mike Campbell (PVT) Limited and Others v. The Republic of Zimbabwe (the Campbell Case). The Second Victim was one of the Campbell Applicants, who now acts on behalf of the Campbell applicants in the present Communication. The Complainant also states that a series of further applications were made by the Victims to the Tribunal, seeking a referral of Zimbabwe’s defiance to the Summit of Heads of State of the SADC (SADC Summit) for measures to be taken against Zimbabwe as a member State and that these were also granted, but similarly defied.
5 Please see the Founding Affidavit of William Michael Campbell, Annexure D to the Communication, p10-29 (141-161 of the Communication compilation) and paragraph 2 of the Confirmatory Affidavit of Benjamin John Freeth, Annexure L to the Communication (p. 348 of the Communication compilation).
6 The Complainant alleges that by a decision taken by the SADC Summit, comprising the Respondent States as decision-makers, between 16 to 17 August 2010 (the “First Decision”), the Tribunal has now been suspended and its decisions cannot be enforced. The Victims sought to address this issue of suspension by filing an application to the Tribunal in March 2011, seeking a declaration inter alia that the SADC Summit was bound to support and facilitate the continued functioning of the Tribunal;6 however, the Tribunal could/has not been convened to deal with these matters because it is suspended by virtue of a further decision (the “Second Decision”) taken by the SADC Summit (and allegedly by implication, the Respondent States) on 20 May 2011.
7 The Complainant asserts that the Second Decision perpetuates the indefinite paralysis of the Tribunal by failing to ensure the appointment of judges, and reiterating the moratorium on receiving any new cases or hearings by the Tribunal until the SADC Protocol on the Tribunal has been reviewed and approved. It is also alleged that the Second Decision did not take into account the First Decision of the SADC Summit which had left open, enforcement applications and ancillary applications to matters already heard, and pending applications.
8 The Complainant avers that the SADC Summit’s decision to suspend the Tribunal was motivated by ulterior motives, stating that instead of giving effect to the decision of the Tribunal against Zimbabwe as a Member State of SADC, the SADC Summit gave effect to the wishes of Zimbabwe to be absolved from its responsibilities as declared by the Tribunal, by suspending the latter; an act which allegedly does not provide any remedy for the human rights violations which the Tribunal has pronounced upon.
9 The Complainant also submits that the suspension of the Tribunal violates the African Charter and the SADC Treaty and Protocol, and that the decision to suspend the Tribunal, is irrational, arbitrary, and motivated by extraneous considerations, and otherwise unlawful.
10 The Complainant submits that the Victims in this Communication are seeking remedy from the African Commission on Human and Peoples’ Rights (the Commission) because since the Tribunal has been suspended, the decision of the Tribunal in their favour has not been complied with. In this regard, they and their families continue to suffer.
11 The Complainant claims that the decisions and actions of the SADC Summit, and thereby each Member State of SADC, that is, the Respondent States, in assenting thereto, as well as the consequential failures to ensure that the Tribunal continues to function, constitute a violation of the rights of the Victims under the African Charter, as well as the provisions of the SADC Treaty (Articles 4 and 6) and SADC Protocol.
Articles alleged to have been violated
12 The Complainant alleges violations of Articles 7 and 26 of the African Charter.
13 In his original Complaint, the Complainant prayed that:
a the Commission should refer the Communication to the African Court on Human and Peoples’ Rights (the Court):
b for declarations that:
(i) the decisions taken by the SADC Summit (that is, comprising the Respondent States as decision-makers) to suspend the functions of the Tribunal, infringe the African Charter, the SADC Treaty and principles of international law binding on the Respondent States;
(ii) the Respondent States should lift, with immediate effect, the purported suspension of the Tribunal’s functions, and do all such things necessary in order to support and facilitate the Tribunal and its functions, including:
A re-appointing the members of the Tribunal whose terms of office were allowed to expire pursuant to the decision to suspend the Tribunal;
B providing the necessary funding for the Tribunal’s continued operations;
C refraining from taking any measures likely to jeopardise the functioning of the Tribunal; and;
D abstaining from any measures likely to detract from the independence, impartiality, effectiveness, accessibility and status of the Tribunal.
(iii) the Respondent States should give effect to the rulings by the Tribunal, including the orders referred to the SADC Summit by the Tribunal, and implement the recommendations made in the Final Report by the Experts on the review of the Role, Responsibilities and Terms of Reference of the SADC Tribunal, dated 6 March 2011.
Alleged violation of Articles 7 and 26 of the African Charter
135 The Complainant’s contention that the Respondent States have violated the right of access to court is hinged on the understanding that such a right of access to the SADC Tribunal can be founded on a combined reading of Articles 7 and 26 of the Charter. The Commission will analyse the two articles to determine whether such a right and a correlative obligation on the Respondent States can be sustained.
136 Article 7(1)(a) which is the portion relevant to the Communication provides that “Every individual shall have the right to have his cause heard. This comprises: (a) The right to an appeal to competent national organs against acts of violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and custom in force” The Complainant’s contention is that these provisions guarantee the Victims a right of access to court and that this includes the right of access to the SADC Tribunal. In the Complainant’s view, this translates into a correlative international obligation on the part of the Respondent States to ensure unrestricted access to the SADC Tribunal inter alia, in matters alleging violation of human rights. The Complainant refers to the jurisprudence of the Commission in support of this argument.
137 As the Commission has previously noted, “the right to be heard requires that the Complainant has unfettered access to a tribunal of competent jurisdiction to hear his case”.83 The Commission also understands that the right to be heard “requires the matter to be brought before a tribunal with competent jurisdiction to hear the cases”.84 In the opinion of the Commission, the claim of a right of access to court is consistent with the right to fair hearing under Article 7 of the Charter.
138 The language of Article 7(1)(a) of the Charter itself is a clear indication that the provision envisages the right of individuals to access court at the national level. Accordingly, the Commission understands Article 7(1)(a) of the Charter to embrace both a right of access to court and a right to an effective remedy at the domestic level in the event of a violation of the rights guaranteed in the Charter. A denial of the right of access to a national judicial forum will amount to a definite and inexcusable violation of Article 7(1)(a) of the Charter. In this regard, the Commission notes its established jurisprudence as cited by the Complainant that in appropriate cases the ouster of the jurisdiction of the courts constitutes a restriction of access to court and therefore amounts to a violation of Article 7(1)(a) of the Charter.85 However, as is clearly laid out in the Charter itself, the access envisaged in Article 7(1)(a) of the Charter is access to national courts within the domestic legal system of the State Parties to the Charter.
139 In the view of the Commission, although a teleological interpretation of Article 1 of the Charter permits State Parties to the African Charter to adopt appropriate measures, including cooperation at intergovernmental levels, to give effect to the rights guaranteed in the Charter, the primary obligation undertaken by State Parties in Article 7(1)(a) of the Charter is to ensure access to national courts. Accordingly, the Commission has consistently interpreted Article 7 of the Charter as imposing an obligation on State Parties to ensure the right to a fair trial at the national level.86
140 The view of the Commission coincides with the position of the European Court of Human Rights (ECtHR) whose jurisprudence can be of inspirational value to the Commission to by virtue of Articles 60 and 61 of the African Charter. Dealing with a question of access to court in relation to Article 13 of the European Convention of Human Rights (ECHR), the ECtHR stated in the case of Maksimo v Russia that “...the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic level”.
141 The claim presented by the Complainant is that a procedural right granted on the platform of SADC has been withdrawn by the Respondent States. The Commission notes that the Complainant has not alleged that access to the national courts of the Respondent States in cases of alleged violation of Charter rights have been withdrawn. In fact, instead, the Complainant has supplied a decision of the Constitutional Court of South Africa which upholds the rights of the Victims.
142 The Commission notes further that in the event of a failure of the national courts to protect the rights of the Victims, access to alternative forums such as the African Commission remains intact. The Commission therefore, takes the view that Article 7(1)(a) of the Charter does not impose an international legal obligation on the Respondent States to ensure access to the SADC Tribunal and thus finds that there has been no violation of Article 7(1)(a) of the Charter.
143 In relation to Article 26 of the Charter, apart from the contention that when read together with Article 7 of the Charter, it guarantees a right of access to the SADC Tribunal, the Complainant argues that it imposes a duty on the Respondent States to ensure the independence, competence and institutional integrity of the SADC Tribunal. Article 26 of the Charter provides that “State Parties to the present Charter shall have the duty to guarantee the independence of the courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the Present Charter”. The question that needs to be answered is whether Article 26 of the Charter imposes an obligation on the Respondent States vis-à-vis the SADC Tribunal.
144 The Commission agrees with the Complainant that Article 26 of the Charter should be read together with Article 7 of the Charter. In that regard, the Commission takes the view that reference to “the Courts” in Article 26 of the Charter cannot be reference to an international court but is akin and related to the national judicial organs mentioned in Article 7 of the Charter. The Commission notes that its established jurisprudence on the meaning and implications of Article 26 of the Charter apply to the national courts which exercise compulsory jurisdiction over individuals who have no possibility of opting out of the coverage of the judicial authority of those courts. Accordingly, the Commission does not find any Charter obligation on the Respondent States to guarantee the independence, competence and institutional integrity of the SADC Tribunal.
145 Having failed to find the existence of an obligation to ensure access to the SADC Tribunal in the separate analysis of Articles 7 and 26 of the Charter, the Commission is of the opinion that even a combined reading of the two provisions does not create an obligation to ensure access to the SADC Tribunal.
Decision of the African Commission
146 In view of the reasoning above, the African Commission finds no violation of Articles 7 and 26 of the African Charter by the Respondent States.
Done in Banjul, the Gambia during the 54th Ordinary Session of the African Commission on Human and Peoples Rights, 22 October to 5 November 2013