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Update on the African Court of Human Rights

The African Court of Human Rights, which has its seat in Arusha (Tanzania), delivered one Judgment and issued 2 Orders for provisional measures on 15 March 2013. The Judgment was in respect of Application 014/2001: Atabong Denis Atemnkeng v. The African Union.

The matter in Application 014/2001: Atabong Denis Atemnkeng v. The African Union concerns the validity of Article 34 (6) of the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples’ Rights. The Applicant in this matter, Mr Atabong Denis Atemnkeng, a national of Cameroon and regular staff member of the African Union Commission, alleges that Article 34 (6) of the Protocol should be declared null and void, as it is contrary to the African Union Constitutive Act and the African Charter on Human and Peoples’ Rights, as such is an obstruction to justice and the rule of law, promotes impunity, as it excludes sections of African Citizenry from access to justice by placing human rights abusers above the law. Article 34(6) provides as follows:

At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol [giving direct access to the Court to individuals]. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.

In response to the allegations of the Applicant, the Respondent raises a preliminary objection arguing that Mr Atabong Denis Atemnkeng is not entitled to submit cases to the Court in terms of Article 34 (6), and that the African Union is not a State Party to the Protocol and cannot be made to account for treaties adopted, signed and ratified by sovereign States. The Court ruled that it lacks jurisdiction over the case because Mr Atabong Denis Atemnkeng is from a country which has not ratified the Protocol nor made the declaration allowing individual to directly institute cases before the Court. Also the African Union cannot be sued before the Court because is not party to the Protocol.

The two Orders issued on the same day were in respect of Application No 006/2012: The African Commission on Human and Peoples’ Rights v. The Republic of Kenya and Application No. 002/2013: The African Commission on Human and Peoples’ Rights v. Libya.

Regarding Application No 006/2012, the Applicant alleges that the Kenyan Government, through the Kenya Forestry Service, has demanded the Ogiek Community and other settlers of the Mau Forest to move out of the Mau Forest on the grounds that the forest constitutes a reserved water catchment zone, and is in any event part and parcel of government land under Section 4 of the Government Land Act. In that regard, the applicant requests for imposition of provisional measures to stop the Government from evicting the Ogiek community and other settlers of the Mau Forest following a 30 days eviction notice issued by the Government of Kenya in October 2009 and related statements made by some Kenyan political authorities.  The Applicant submits that the eviction would have far reaching implications on the political, social and economic survival of the Ogiek Community, and that it may result in irreparable harm to the victims.

The Court ordered to the Government of Kenya to immediately reinstate the restrictions it had imposed on land transactions in Mau Forest and refrain from doing anything that would or might irreparably prejudice the main application pending the decision of the Court on the matter. The Order also enjoins the Government of Kenya to report on execution of the measures within 15 days from the receipt of the Order.

Regarding Application No. 002/2013, the matter alleges violations of the rights of MrSeif al-Islam Gadhafi, the son of the late Libyan leader Muammar Gaddafi, who is detained in Zintan military camp, in Libya, since November 2011. In its Order, the Court asked Government of Libya to preserve the integrity of the person of the detainee, refrain from taking any action that may affect the detainee’s physical and mental integrity as well as his health, allow him access to a lawyer of his choice, and allow him visits from family members and friends. The Order also enjoins the Government of Libya to report on execution of the measures within 15 days from the receipt of the Order. This order would be important for the case before the International Criminal Court (ICC), where a decision is expected soon on the issue of admissibility challenge raised by Libya against ICC’s jurisdiction.

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