Why Alfred Agbesi Woyome application fell flat @ African Court

Businessman Alfred Agbesi Woyome attempt to halt the selling of his properties meant to offset the GH¢46 million owed to Ghana at the African Court on Human and Peoples’ Right (ACHPR) based in Arusha, Tanzania, was dismissed in a unanimous decision by  a 10-member panel of the court.

This was a review application filed by Mr Woyome on the basis that he failed to introduce any convincing new evidence, which was the legal requirement for review under Rule 67 of the ACHPR Rules.

Apart from the court dismissing his case, it also that Ghana has treated him fairly and equally before the law during those legal proceedings, and, therefore, there had been no violation of his rights under the African Human Rights Charter, as he sought to claim.

The African Charter on Human and People’s Right also known the Banjul Charter was established in 1991, however, came into force in 1995. The Charter is purposed to help steer Africa from the age of human wrongs into a new age of human rights. It opened up Africa to supra-national accountability. The Charter sets standards and establishes the groundwork for the promotion and protection of human rights on the continent.

Under Article 30, the Commission for Human Right was established, with focus on human, as an individuals and people as collective group, and charged with the mandate to promote, protect and interpret human right issues. For these mandates to be fulfilled, Article 56 provides seven grounds for which human right matters can be admitted by the Commission.   

 Article 56(1) requires that the author(s) of a petition against the state in question should disclose their identity even when they are requesting anonymity. Without meeting this requirement, the communication is regarded inadmissible. For instance in the case of the Centre of the Independence of Judges and Lawyers vs Algeria, the Commission found the communication inadmissible on the grounds that it “does not give specific places, dates, and times of alleged incident.” Therefore, it was sufficient to permit the Commission to intervene or investigate.

 Article 56(2) is about jurisdiction, thus the communications must be compatible with the Charter. In fulfilling this requirement, three things come to play: ratione personae, ratione materiae and ratione temporis.

Ratione personae- the communication may be brought against a state that is a party to the treaty. For example of cases that were inadmissible include Austrian Committee against Torture v. Morocco, George Eugene v. United States and International PEN v. Morocco.

Ratione materiae- the substantive requirement entails the necessity that claimants make plausible claims that articles of the Charter have been violated. In this regard, it is worth pointing out that violations may concern not only concrete acts of harm, but also legal or policy frameworks that deny or deprive rights, failures to take necessary positive steps, or inadequate remedial systems. Communications that have been declared inadmissible on this grounds include Frederick Korvah v. Liberia; Seyoum Ayele v. Togo, where the Commission found the complaint inadmissible due to the vagueness of the allegations.

Ratione temporis – requirement stipulates that only violations which took place after the date of entry into force of the treaty for the country in question will be cognizable as violations under that treaty by the body in question. Where a violation preceded the treaty, however, but still has ongoing effects, claimants may argue for an exception on the basis on ‘ongoing’ or ‘continuing’ violation.

Example In Dabalorivhuwa Patriotic Front v. South Africa, the Commission expanded this jurisprudence by observing that it “has the competence to pronounce on violations which occurred prior to the Charter’s application to the State Party in question, where there is evidence of continuing violation. In the present case… even though the violations occurred in 1994/1995 before the Respondent State became party to the Charter.

Article 56(3) – tone of the communication must not be written in disparaging or insulting language directed against the state concerned and its institutions or to the African Union. As the requirement persists, however, it is important that complainants bear it in mind, and avoid the use of language that could be taken as disparaging, such as for example disparaging description of the governing regime or the use of a mocking tone, and instead stick to a dispassionate account of the facts.

Example-In Ilesanmi v. Nigeria, the Commission observed that “To say an institution or person is corrupt or that he/she has received bribes from drug dealers, every reasonable person would lose respect for that institution or person. In an open and democratic society individuals must be allowed to express their views freely… To expose vital State institutions to insults and disparaging comments like those expressed in the communication brings the institution to disrepute and renders its effectiveness wanting.

 Article 56(4)- evidential base communications must not be based exclusively on news disseminated through the mass media. In Jawara v. Gambia, the State claimed petitioners had not complied with Article 56(4); the Commission held that In short, the Commission in Jawara narrowed the potential that an application might be found inadmissible under Article 56(4) to complaints based solely on extremely shaky, media-based evidential grounds – one might say to cases where the evidential base is manifestly ill-founded. This is appropriate for the admissibility stage, where evidential issues that will be considered more fully in the course of a merits determination, should be interpreted in favour of the applicants.

Article 56(5)- communications must be sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged. After the State be given a first chance to address the matter in question, the international body in question not be made a court of first instance. Victims and their representatives should bring the matter in question to the local court system. Should the court of first instance refuse to hear the case, claimants should appeal the matter; should no more appeals be possible, domestic remedies have been exhausted. Alfred Cudjoe vs Ghana (1999), Raymond Tsatsu Tsikata vs Gnana (2006). 

Article 56(6)- timeliness, communication must be submitted within a reasonable period from the time local remedies were exhausted or from the date the Commission is seized with the matter. The African Court in the case of beneficiaries of late Norbert Zongo et al. v. Burkina Faso, tends to confirm the rule that Article 56(6) will not apply when an exception has been found to Article 56(5), as in that case the fact that a substantial period had passed between dismissal of the case at the national level and submission to the supranational level was not held relevant, presumably on the basis that national level proceedings had been unduly prolonged such that appropriate remedies for exhaustion were never provided to claimants.

Article 56(7)- avoidance of conflicting settlements, the communication must not deal with cases, which have been settled by those states involved in accordance with the principles of the charter of the United Nations, or the charter of the AU or the provisions of the present charter. Example Mpaka-Nsusu Andre Alphonse v. Zaire, where the Commission found the communication inadmissible as it “had already been referred for consideration to the Human Rights Committee established under the International Covenant on Civil and Political Rights.

In conclusion, it is very important that for a communication to be admissible at the court, author(s) must ensure that all the listed requirements are met.

By Bernice Bessey/ student