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Temporal jurisdiction and continuing violation

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Temporal jurisdiction and continuing violation

Commentary

Commentary type: Procedure

Procedure: Jurisdiction

Jurisdiction: Temporal jurisdiction and continuing violation

Commentary: The Court does not have jurisdiction over alleged human and peoples’ rights violations which occurred prior to the coming into force for the state concerned of the African Charter and the Protocol establishing the Court or any declaration made under it, ‘unless in circumstances where such violation bears a continuous character’ (Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania, application 009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania, application 011/2011, judgment, 14 June 2013 para 22; African Commission on Human and Peoples’ Rights v Kenya, application 006/2012, Judgement, 26 May 2017, paras 64 & 65). In Zongo the Court held that it did not have jurisdiction to deal with alleged violations of the right to life with regard to extrajudicial executions prior to the entry into force of the Court Protocol ( Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso, application 013/2011, order, 23 August 2012, para 68).

Where the alleged violations occur after the ratification of the Charter, the Court will have jurisdiction on the matter (Peter Joseph Chacha v The United Republic of Tanzania, application 003/2012, judgment, 28 March 2014 para 126; Lohé Issa Konaté v Burkina Faso, application 004/2013, judgment, 5 December 2014 paras 38-40).

The Court retains jurisdiction over violations occurring before the declaration under article 34(6) of the Protocol where the violations are continuous and persist after the respondent states makes the declaration (*Chacha v Tanzania8 para 126; Wilfred Onyango Nganyi & 9 others v Tanzania v The United Republic of Tanzania, application 006/2013, judgment, 18 March 2016 para 66; Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso, application 013/2011, order, 23 August 2012, paras 76-77).

In the Mtikila case, the Court found that although Tanzania had not ratified the Court’s Protocol at the time of the alleged violation, it had ratified the African Charter at the time of the purported violation. As such, the Court held that the Charter having been in operation at the time of the alleged violation, the respondent state was duty bound by its provisions. It also held that the barring of independent candidates which was the conduct complained against was a continuous act which subsisted until the coming into force of the Court’s Protocol. Therefore, the Court found that the applicants’ complaints alleging violations of articles 2, 10 and 13(1) of the African Charter fell within its jurisdictional competence (Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania, application 009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania, application 011/2011, judgment, 14 June 2013, para 85; see also Urban Mkandawire v Republic of Malawi, application 003/2011, judgment, 21 June 2013, para 38). In a separate opinion, Judge Niyungeko was of the view that the Court should have categorically stated that it lacked jurisdiction for alleged violations which occurred before the coming into force of the Court’s Protocol, unless they were of a continuing character (Separate Opinion of Judge Niyungeko, para 12; see also Joint dissenting opinion of Niyungeko, Guissé, para 8.).

Date modified: Aug 25, 2017

Primary Documents

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009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

22.By a letter dated 25 August 2011, the Registrar served the 2nd Applicant’s Counsel with the Respondent’s Response to the 2ndApplication and informed Counsel that he if he wished to file a Reply to the Respondent’s Response he was to do so within thirty (30) days of receipt of the Respondent’s Response.

Contentious cases

006/2012 African Commission on Human and Peoples’ Rights v the Republic of Kenya

64. The Court has held that the relevant dates concerning its temporal jurisdiction are the dates when the Respondent became a Party to the Charter and the Protocol, as well as, where applicable, the date of deposit of the declaration accepting the jurisdiction of the Court to receive Applications from individuals and NGOs, with respect to the Respondent. s 65. The Court notes that the Respondent became a Party to the Charter on 10 February 1992 and a Party to the Protocol on 4 February 2004. The Court also notes that, though the evictions by the Respondent leading to the alleged violations began before the aforementioned dates, these evictions are continuing. In this regard, the Court notes in particular, the threats of eviction issued in 2005 and the notice to vacate the South Western Mau Forest Reserve issued on 26 October 2009 by the Director of Kenya Forestry Service. It is the Court's view that the Respondent's alleged violations of its international obligations under the Charter are continuing, and as such, the matter falls within the temporal jurisdiction of the Court.

Contentious cases

013/2011 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso - (Judgment)

Contentious cases

003/2012 Peter Joseph Chacha v The United Republic of Tanzania

126. The rights alleged to be violated are protected by the Charter. By the time of the alleged violation, the Respondent had already ratified the Charter, having done so on 9 March 1984, and was therefore bound by it. The Charter was operational in respect of the Respondent, and there was therefore already a duty on it as at the time of the alleged violation to protect those rights. The Respondent ratified the Protocol on 10 February 2006 and the alleged violations occurred thereafter. The Respondent made the declaration required under Article 34(6) of the Protocol on 29 March 2010. Though the Respondent made the declaration after the alleged violations occurred, the alleged violations of the Applicant's following rights continued: the right to equal protection of the law and equality before the law, the right to the respect of the dignity inherent in a human being and to the recognition of his legal status, the right to liberty and security of the person and not to be arbitrarily arrested or detained, the right to a fair trial, the right to property. The Court therefore finds that it has jurisdiction ratione temporis over the Application.

Contentious cases

004/2013 Lohé Issa Konaté v Burkina Faso - Judgment

On its ratione temporis jurisdiction, the Court is of the view that in the instant case, the relevant dates are those of the entry into force, with regard to the Respondent State, of the Charter (21 October 1986), the Protocol (25 January 2004), -12-and the Covenant (4 April 1999) as well as the optional declaration accepting the jurisdiction of the Court to hear Applications from individuals or non-governmental organizations (25 January 2004). 39. The alleged violation of the Applicant's right to freedom of expression stems from the latter's conviction by the Ouagadougou High Court and the fact that the conviction was upheld on 10 May 2013 by the Ouagadougou Court of Appeal. 40. Hence, the Court notes that the alleged violation of the Applicant's right to freedom of expression is likely to have occurred on 10 May 2013 or well after the Respondent State had become Party to the Charter and the Covenant, and had made the declaration accepting the Court's jurisdiction to receive Applications from individuals or non-governmental organizations. Consequently, the Court finds that it has the ratione temporis jurisdiction to hear the allegation of violation of the right to freedom of expression raised in this case.

Contentious cases

006/2013 Wilfred Onyango Nganyi & 9 others v Tanzania v The United Republic of Tanzania

s far as the Court is concerned, the violations alleged by the Applicants in the instant case do not constitute instantaneous but continuous violations of the international obligations of the Respondent, and as such gives the Court jurisdiction to hear the matter: While the alleged violations occurred before the filing of the special declaration by the Respondent, i.e. 29 March 2010, they were continuing after this date. Indeed, the Applicants are still in detention, and some of the cases 20 brought against them are still pending before the Respondent's Courts and they have not been provided with legal aid to pursue the pending cases.

Contentious cases

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

Contentious cases

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

Article 3(1) of the Protocol confers jurisdiction on this Court to hear matters concerning the alleged violation of human rights; the Article reads: 30“The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.”It appears that the alleged violations fall within the scope of this provision.

Contentious cases

003/2011 Urban Mkandawire v Republic of Malawi - Judgment

38. Some jurisprudence on the requirement of the exhaustion of local remedies: 38.1. By exhaustion of local remedies, this Court is referring primarily to judicial remedies. This Court has recently confirmed the jurisprudence that what is envisaged by local remedies is primarily remedies of a judicial nature. In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre vs. The Unite Republic of Tanzania, Application no. 009/2011 and Reverend Chri$f.gphe(R. Mtikila vs. the ( {19) '>_ ----;-X> N--7? A Lr/~ United Republic of Tanzania, Application no. 011/2011 paragraph 82. 3, the Court held that: "The term local remedies is understood in human rights jurisprudence to refer primarily to judicial remedies as these are the most effective means of redressing human rights violations. f) What the Court needs to determine in this case is whether the Applicant has exhausted local judicial remedies. 38.2 The Inter-American Commission of Human Rights (IACHR) stated in Mariblanca Staff Wilson and Oscar E. Ceville v. Panama. Case 12.303. Report No. 89/03, Inter-Am. C.H.R., OEA/Ser.UV/11.118 Doc. 70 rev. 2 at 531 (2003), paragraph 35 and 36 as follows: 1135. In the present situation, the State argues that the petitioners did not exhaust domestic remedies because the tamparo' brought by the presumed victim was not the appropriate remedy It argues that in reality the petitioners should have presented a motion of unconstitutionality ... 36. In support of its arguments, the State invokes the decision of the Supreme Court . . . . . . in which the court, analyzing the 'amparo' brought by the alleged victim, ruled that the tamparo' was not the appropriate remedy because the challenged law was a legislative act of a general nature issued by an authority constitutionally empowered to do so. . .. and that it was not susceptible to challenge through 'amparo' for constitutional protection . . . . . The court concluded that this type of challenge must be pursued through independent action for unconstitutionality. The State argues tbaf-.t~etitioners failed [20] -=---..... -1!! ~/ LIJ-e___ / S ,_Y?--Cit-

Contentious cases

003/2011 Urban Mkandawire v Republic of Malawi - Judgment

8. In our opinion. the Courl ought to have been uneqwvocal on this point and ~hould have indicated that U1ough lhe Respondent State wa~ alrcadv bound by the Charter, t hc-Court lacks temporal jurisd1cLion Wtlh respect lo ll, as long as Lhe Protocol conferring JUnsdictiOn on il is yet to become opcrattonnl, unless of course the argument of lht! alleged continuing vtolatton ts invoked

Contentious cases

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

12. In my opinion, in order to fully address the argument raised by the 2nd Applicant, the Court ought to have been unequivocal on this point and should have indicated that though the Respondent State was already bound by the Charter, the Court lacked temporal jurisdiction with respect to it as long as the Protocol conferring jurisdiction on it was yet to become operational (unless of course the argument of the alleged continuing violation is invoked). That clarification is all the more necessary as, in regard to the application of the principle of the non-retroactivity of treaties, the 2nd Applicant seems to be making a distinction between treaties of a normative nature and those of an institutional nature (supra, paragraph 9).

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