24th African Human Rights Moot Court Competition

5 10 October 2015
University of Zambia

THE AFRICAN COURT ON HUMAN AND PEOPLES

RIGHTS

IN THE MATTER BETWEEN

THE GOVERNMENT OF UNITED REPUBLIC OF MONGU

AND

THE AFRICAN COMMISSION ON HUMAN AND PEOPLES

RIGHTS

MEMORIAL FOR THE APPLICANT

Table of Contents
List of references ..................................................................................................................................................... iii
List of abbreviations ............................................................................................................................................... vii
Statement of facts ................................................................................................................................................... 1
Summary of arguments ........................................................................................................................................... 3
Statement of jurisdiction ......................................................................................................................................... 4
Admissibility ............................................................................................................................................................ 5
Merits: ..................................................................................................................................................................... 6
I. Violation of Likandos right to health under article 16 of ACHPR .................................................................... 6
II. Violation of the right to satisfactory working condition of miners under article 15 of ACHPR. ..................... 9
III. Violation of right to assembly under article 11 of ACHPR ............................................................................ 10
IV. Violation of the right to freedom of expression and academic freedom under article 9 of ACHPR............ 12
Prayers ................................................................................................................................................................... 14

ii
List of references

International treaties

1. African Charter on Human and Peoples Rights, adopted on 27 June 1981& entered into force

on 21 October 1986.

2. African Charter on the Rights and Welfare of the Child, adopted on 11 July 1990 & entered

into force on 29 October 1999.

3. Convention on the Rights of the Child, adopted on 20 November & entered into force on 2

September 1990.

4. Declaration of Principles on Freedom of Expression in Africa, African Commission on Human

and Peoples' Rights, 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia.

5. General Comment 14, UN Committee on Economic, Social and Cultural Rights (2000).

6. General Comment 18, UN Committee on Economic, Social and Cultural Rights (2006).

7. General Comment 20, UN Committee on Economic, Social and Cultural Rights (2009).

8. General Comment 3, UN Committee on Economic, Social and Cultural Rights (1990).

9. Guidelines on Freedom of Peaceful Assembly, prepared by Office for Democratic Institutions

and Human Rights (ODIHR) (2010).

10. International Covenant on Civil and Political Rights, adopted on 16 December 1966 & entered

into force on 23 March 1976.

11. International Covenant on Economic Social and Cultural Rights, adopted on 16 December

1966 & entered into force on 3 January 1976.

12. Optional Protocol to International Covenant on Economic, Social and Cultural Rights, adopted

on 10 December 2008 & entered into force on 5 May 2013.

13. Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004).

iii
14. Protocol to the African Charter on Human and Peoples Rights on the Establishment of an

African Court on Human and Peoples Rights, adopted on 10 June 1998 and entered into force

on 25 January 2004.

15. The Declaration on Academic Freedom and Autonomy of Institutions of Higher Education

(adopted in Lima on 10 Septemeber1989).

16. The Kampala Declaration on Intellectual Freedom and Social Responsibility (1990).

17. Universal Declaration of Human Rights, G.A. Res 217A (iii), U.N. Doc. A/811 (1948).

18. Vienna Declaration and Program of Action, 25 June 1993.

Domestic laws

1. Act of Parliament, 1969.

2. Central Provincial Medical Guidelines.

3. Constitution of United Republic of Mongu, 1990.

4. Disciplinary code of the University of Nokeyema of 1969.

5. Enforcement Rule of Section 77 of Constitution of United Republic of Mongu (2012).

6. Mining Safety Act of 2010.

7. Occupational Safety Act.

8. Peaceful Assembly Act of 2012.

Case laws

Case laws from the African Commission on Human and Peoples Rights

1. Amnesty International and others v Sudan 2000 AHRLR 297 (ACHPR 1999).

2. Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007).

3. Attorney General V Clarke (2008) AHRLR 259 (ZaSC 2008).

iv
4. Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186

(ACHPR 1995).

5. Constitutional Rights Project and Another v Nigeria (2000) AHRLR 191 (ACHPR 1998).

6. Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000).

7. Lawyers for Human Rights V Swaziland (2005) AHRLR 66 (ACHPR 2005).

8. Social and Economic Rights Action Canter (SERAC) and Another V Nigeria (2001) AHRLR

60 (ACHPR 2001).

9. Zimbabwe Human Rights NGO Forum v Zimbabwe (2005) 351AHRLR 128 (ACHPR 2005).

Case laws from the European Court of Human Rights

1. C v France (2002) EHRR 51346/99.

2. Handy side v UK ECHR (7 December 1976) 54937.

Case laws from the Inter-American Court of Human Rights

1. VR v H IACHR (29 July 1988) (Ser. C) No. 4.

Communications decided by the Human Rights Committee:

Communication Nos 422/1990,423/1990 & 424/1990, U.N. Doc.CCPR/C/51/D/422/1990, 423

and 424/1990(1996).

Cases decided by national courts

Christine Mulundika and Others v The People (1995) SCZ Judgment No. 25 of 1995

v
Books and articles

1. Currie, I & Waal, JD The Bill of Right Hand Book (6th ed) (2005).

2. Keller, H; Ulfstein, G & Grover, L Human Rights Treaty Bodies: and Law and Legitimacy,

(Cambridge university press: 2012).

3. Human Right Watch: Academic Freedom and Human Rights Abuses in Africa (1990).

4. Langford, M Social Rights Jurisprudence: Emerging Trends in International and Comparative

law (Cambridge University Press: 2009).

5. Viljoen, F International Human Rights Law in Africa (Oxford University Press: 2012).

vi
List of abbreviations

1. ACC African Charter on the Right and Welfare of the Child.

2. ACHPR African Charter on Human and Peoples Rights.

3. AU African Union.

4. CESCR International Covenant on Economic, Social and Cultural Rights.

5. CRC Convention on the Rights of the Child.

6. ECHR European Court of Human Rights.

7. ESCRs Economic, social and cultural rights.

8. GC General Comment.

9. HRC Human Rights Committee.

10. IACHR Inter-American Court of Human Rights.

11. ICCPR International Covenant on Civil and Political Rights.

12. MSA Mining Safety Act.

13. ODIHR Office for Democratic Institution and Human Rights.

14. PAA Peaceful Assemblies Act.

15. SML Standard Minerals Limited.

16. UN United Nations.

17. UNESCO United Nations Educational, Scientific and Cultural Organization

18. UNINOK University of Nokeyema.

19. URM United Republic of Mongu.

vii
Statement of facts

1. The Constitution of United Republic of Mongu (URM) provides that 'all treaties duly ratified or

acceded to by URM, form part of the law of the land. As at 2012, URM had ratified all the human

rights treaties of United Nations (UN) and African Union (AU) and Protocol to the African Charter

on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples

Rights (the Court Protocol) on 10 October 2013. The URM High Courts and the Supreme Court

have in no occasion interpreted constitutional rights as containing elements of socio-economic

rights.

2. The URM Government owns 45% of shares in the Standard Minerals Limited (SML) mining

company. SML asbestos mine operates in Kankoyi District. Likando Moremi, a 16 year-old

resident of Kankoyi District, was diagnosed with advanced lung cancer. According to the Central

Provincial medical guidelines, in providing hospital space, hospitals are to be guided by the

prognosis of patients. Likando was denied hospital space and died of lung cancer. Reports indicate

that 68% Kankoyi residents death from illness is due to the fiber release from the asbestos mine.

3. Pursuant to Mining Safety Act (MSA) adopted in 2010, if a miner dies because of a mine accident,

half of his yearly salary should be paid to his estate. However, for all deaths resulting from

occupational accidents other than mining, a yearly salary has to be paid to the deceaseds estate.

From 2010 to 2014 SML gold mine had not been subjected to any inspection.

4. On 4 March 2014, a mining accident occurred in SML gold mine, resulting in death of over 200

miners. Mr Kozo, who is lecturer at UNINOK, has conducted study on SML asbestos and gold

mine. He shared the findings of his study through public lecture to UNINOK students. The

UNINOK Disciplinary Panel dismissed him for disgracing the University in his study.

5. According to the Peaceful Assemblies Act (PAA) adopted by the URM Government, anyone who

engages in any form of public assembly shall obtain prior permission from the District Prefect. On
1
20 January 2015, organisers of students protest submitted written request for permission to Prefect

secretary, but no response had been received. On 21 January 2015, when the students started

protesting members of the Presidential Guard stormed the group, hitting them with batons. Twenty-

three protesters were admitted to hospital with severe injuries.

2
Summary of arguments

6. The non-justiciability of economic, social and cultural rights (ESCRs) under the URM Constitution

is violation of right to health. Moreover, by applying discriminatory guidelines and denying

Likando timely access to healthcare service, the URM Government violated Likandos' right to

health.

7. The MSA is discriminatory since it provides lesser amount of compensation for deaths resulting

from mining accident than deaths resulting from other accidents. In addition, by failing to monitor

unsafe working condition in SML gold mine operation the URM Government violated the right to

work of miners.

8. The PAA that requires anyone who engages in any form of public assembly to request prior

permission violates right to assembly. Forcefully dispersing peaceful assembly is also violation of

duty to respect right to assembly.

9. UNINOK Disciplinary Code is outdated, overly vague and excessively restricts freedom of

expression and academic freedom. Dismissal of Mr Kozo because of criticizing Government in his

study is unnecessary and not proportional in a democratic society.

3
Statement of jurisdiction

1. The applicant and respondent have both submitted this communication to the African Court on

Human and Peoples Rights (the Court) which was established by the Court Protocol.1

2. The URM has ratified all the UN and AU human right instruments as of 2012 and the Court

Protocol in 2013. Although, the UNINOK Disciplinary Code, MSA, PAA and the Medical

guidelines were enacted before the ratification of the Court Protocol, since their effects constitutes

continuous violation the Court is competent ratione temporis.2 Pursuant to article 3(1) of the Court

Protocol, the Court has the authority to interpret and apply those ratified instruments to the current

communication. Further article 3(2) of the Protocol empowers the Court to decide in the event of a

dispute on its jurisdiction.

3. Thus, the applicant is entitled to submit its case to the Court in terms of article 5(1) (a) of the Court

Protocol.

1
Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights
(the Protocol), Art 1.
2
Lawyers for Human Rights v Swaziland (2005) AHRLR 66 (ACHPR 2005), Para 44.

4
Admissibility

10. Pursuant to article 6(2) of the Court Protocol, the Court shall rule on the admissibility of cases

taking into account the provisions of Article 56 of African Charter on Human and Peoples' Rights

(ACHPR). Among the preconditions, issues of exhaustion of local remedies requires scrutiny.3

11. The issue of Likandos right to health was submitted to the High Court. However, the Court

rejected the case arguing that the right to health is not justiciable under URM Constitution.4 As held

by the African Commission, the non- justiciability of ESCRs is an impediment that makes local

remedies unavailable. 5 Further, regarding the miners right, the High Court and Supreme Court

rejected a case instituted by the Miners trade union on want of locus standing.6 This act is contrary

to the principle of actio popularis adopted under African Charter. 7 In addition, such procedural

hurdle makes local remedy inaccessible. The existence of remedy should be practical and

sufficiently certain.8 The 2012 Enforcement rule has no practical effect. The African Commission

has held that, remedies, the availability of which is not evident, cannot be invoked by the State to

the detriment of the complainant.9

12. Furthermore, a case challenging the legality of PAA was submitted to the Supreme Court but the

latter dismissed it without giving any reasons.10 By extension, the protesters should not be required

to institute a new case since there is no prospect of success. Similarly, Mr Kozo has approached the

Supreme Court to challenge the decision of the Disciplinary Panel. However, the Court endorsed

the decision of the Panel, putting Kozo in vain.11

3
ACHPR, Art 56(5).
4
Hypothetical case, Para 11.
5
Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) (Jawara case), Para 31.
6
Hypothetical case, Para 13.
7
Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007), Para 65.
8
Jawara case, Para 35.
9
Jawara case, Para 34.
10
Hypothetical case, Para 3.
11
Hypothetical case, Para 18.
5
13. In determining exhaustion of local remedies; the availability, effectiveness and sufficiency of the
12
remedies are major and cumulative criteria. Therefore, the applicant submits that the

communication is admissible since there is no available, accessible, effective and sufficient local

remedy in URM.

Merits:

I. Violation of Likandos right to health under Art 16 of ACHPR

14. Human rights are indivisible.13 The enjoyment of civil and political rights cannot be dissociated

from ESCRs.14 The right to health is recognized indiscriminately to every individual under rights

instruments.15

15. Nevertheless, contrary to the indivisibility principle, the URM Constitution restricts the courts

jurisdiction only to civil and political matters- rendering ESCRs non-justiciable.16 The justiciability

of ESCRs is among the peculiar features of the ACHPR.17 Furthermore, in Ogoniland case, the

African Commission has stated that there is no right in the African Charter that cannot be made

effective.18 Thus, such unwarranted distinction between rights and failure to make domestic laws

compatible with human rights instruments undermines State obligation as set out under articles 1 of

ACHPR and article 2(1) of CESCR.

16. Pursuant to article 16 of the ACHPR, every individual shall have the right to enjoy the best

attainable state of physical and mental health. 19 To ensure the full realization of this right the

12
Jawara case, Para 31.
13
Vienna Declaration and Program of Action (1973), Para 5.
14
ACHPR, Preamble, Para 8.
15
ACHPR, Art 16(1); ACC, Art 14 (1); CESCR, Art 12(1) & CRC, Art 24(1).
16
Hypothetical case, Para 11.
17
F Viljoen: International Human Rights Law in Africa (2012) 214.
18
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (Ogoniland case), Para
68.
19
ACHPR, Art 16(1).
6
 Government shall ensure that their people receive medical treatment in the event sickness. 20

Further, the Convention on the Rights of the Child (CRC) obligates the URM Government to

strive to ensure that no child is deprived of his or her right of access to healthcare services.21

However, Likando was denied access to medical treatment in URM.

17. Further, the Pretoria Declaration provides that, right to health entail availability of accessible and

affordable health facilities for all.22 However, the Central Provincial medical guidelines direct that

in providing hospital space, hospitals are to be guided by the prognosis of patients. 23 In this

regard, the UN Committee on Economic, Social and Cultural Rights (Committee on ESCR) has

held that:

Health facilities, goods and services must be accessible to all, especially the most vulnerable or

marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited

grounds.24

Moreover, it is prohibited to make discrimination in access to health care on the ground of health

status, which has the effect of nullifying or impairing the equal enjoyment or exercise of right to

health. 25 Thus, URM Government has jeopardized the rights to health, dignity and equality of

Likando by adopting this discriminatory guideline.

18. Furthermore, Likando was child at the time he was seeking for healthcare service. 26 His minority

and the severe lung cancer he suffering makes him to be vulnerable person. The Committee on

ESCR has stated that, even in times of severe resource constraints, the vulnerable members of

society must be protected.27 Ensuring the right of access to health facilities, goods and services and

drugs on a non-discriminatory basis, especially for vulnerable group are among the components of

20
International Covenant on Economic, Social and Cultural rights (CESCR), Art 12(2) (c).
21
Convention on the Rights of the Child (CRC), Art 24(1).
22
Pretoria Declaration on Social, Economic and Cultural Rights (Pretoria Declaration), Para 7.
23
Hypothetical case, Para 10.
24
General Comment 14, UN Committee on ESCR (GC 14, CESCR), Para 12(b).
25
GC 14, CESCR, Para 18.
26
Hypothetical case, Para 10.
27
General Comment 3, Committee on ESCR (GC 3, CESCR), Para 12.
7
 core minimum obligations, which are non-derogable. 28 The URM Government has special

obligation to protect the vulnerable persons like Likando. It should not misinterpret progressive

realization as depriving obligation of all meaningful content.'29 Thus, the URM Government cannot

invoke its financial constraints for its failure to provide healthcare service for Likando.

19. The obligation to provide medical treatment and save life is the duty of government hospital. The

right to health is integral to the right to life and the government has a constitutional obligation to

provide health facilities.30 Further, the failure of a government hospital to provide a patient medical

treatment is a violation of the patient's right to life.31 Thus, Likandos exclusion from healthcare

service through discriminatory guideline violates the rights to life and health as provided under

articles 4 and 6 of ACHPR and ICCPR respectively.

20. Furthermore, Likando contracted lung cancer due to fibres released from the SML asbestos mine.

Report indicates that these fibres were responsible for poor health condition and 68% of death from

illness of Kankoyi residents, including Likando.32 The URM Government has the duty to protect

individuals health from being endangered by the practices of non-state actors. 33 Further, since

URM Government is a joint owner of SML Company, it is both carrying out and tolerating

operation of SML asbestos mine that has negative health impact.34 Thus, as held by the African

Commission in Zimbabwe Human Rights NGO Forum case, violation of Likandos health right is

transferred into a constructive act of URM Government because of lack of due diligence to prevent

the violation.35

21. Therefore, by enforcing discriminatory medical guidelines, denying Likando access to medical

treatment and by tolerating the unsafe operations of SML asbestos, the URM Government has

28
GC 14, CESCR, Para 43(a) & 47.
29
GC 3, CESCR, Para 9.
30
State of Punjab v Mohinder Singh Chawla (1997) 2 SCC 83.
31
Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another (1996) AIR SC 2429, Para 9.
32
Hypothetical case, Para 15.
33
Ogoniland case, Para 44 - 46.
34
Hypothetical case, Para 8.
35
Zimbabwe Human Rights NGO Forum v Zimbabwe (2005) AHRLR 128 (ACHPR 2005) (Zimbabwe Human Rights case), Para 143.
8
 violated the right to health of Likando guaranteed under article 16 of ACHPR, article 24 of CRC,

article 14 of ACC and article 12 of CESCR.

II. Violation of the right to satisfactory working condition of miners under article 15 of ACHPR.

22. Every individual shall have the right to work under equitable and satisfactory working conditions.36

States Parties to CESCR should recognize the right of everyone to the enjoyment of just and

favorable conditions of work, which includes in particular, safe and healthy working conditions.37

23. The URM Government has the duty to regulate the operations of non-state actors to ensure the

realization of the right to satisfactory working conditions for miners. 38 However, it had not

inspected SML gold mine that had been operating under unsafe working condition. 39 The

occupational accident in SML gold mine that claimed the life of more than 200 miners is largely

due to this unsafe working condition.40 Report indicates that an estimate of 50% of this death was

avoidable had safety measures were taken by the company. 41 Thus, the URM Government is

responsible for the violations committed by the SML gold mine, as it lacked due diligence to

inspect the company.42

24. The Pretoria Declaration provides that the right to work entail, inter alia, effective remedies for

work place-related accidents. 43 However, MSA provide that, if a miner dies because of a mine

accident, half his yearly salary should be paid to his estate. Whereas, under the Occupational (Other

than Mines) Safety Act, the amount of compensation is equivalent to one-year salary of the

deceased.44 According to the Committee on CESCR, discrimination constitutes:

36
ACHPR, Art 15 & CSECR, Art 7.
37
CESCR, Art 7(b).
38
General Comment 18, Committee on ESCR (GC 18, CESCR), Para 36.
39
Hypothetical case, Paras 7 & 15.
40
Hypothetical case, Para 12.
41
As above.
42
VR v H IACHR (Ser. C) No. 4 (29 July 1988) (Velasquez Rodriguez case), Para 172.
43
Pretoria Declaration, Para 6.
44
Hypothetical case, Para 7.
9
 Any differential treatment that is directly or indirectly based on the prohibited grounds of discrimination

and which has the intention or effect of nullifying or impairing the recognition, enjoyment on an equal

footing of Covenant rights.45

Differential treatment based on the nature of work is prohibited under the phrase other status in

both the ACHPR and the CESCR. 46 Thus, the compensation scheme adopted by the MSA is

discriminatory. In addition, it does not qualify the requirement of effective remedy as required by

law. 47

25. Therefore, by adopting discriminatory Act, failing to monitor operations of SML gold mine to

enforce safe working conditions and by restricting the miners trade union from representing its

members before court, the URM Government has violated articles 15 and 7 of ACHPR and CESCR

respectively.

III. Violation of right to assembly under Art 11 of ACHPR

26. The right to freedom of assembly is universally recognized human rights. 48 This right encompasses

a range of activities including but not limited to meetings, mass actions, demonstrations and rallies

that are exercised freely without the need to secure prior permission from the public authorities.49

The ACHPR and ICCPR do not require prior permission to exercise right assembly.

27. Contrary to this norm, the URM Government has passed PAA that provides for prior permission to

conduct assembly that may reasonably lead to an act or acts of public violence. 50 This law

excessively restricts the right to assembly that is recognized in the URM Constitution, ACHPR and

ICCPR. In this regard, the African Commission has held that:

45
General Comment 20, Committee on CESCR, Para 7.
46
ACHPR, Art 2 & CESCR, Art 2(2).
47
ACHPR, Art 15; CESCR, Art 7(b) Article 7(b) & Pretoria Declaration, Para 6.
48
ACHPR, Art 11; Universal Declaration of Human Rights, Art 20(1) & ICCPR, Art 21.
49
Office for Democratic Institutions and Human Rights (ODIHR): Guidelines on Freedom of Peaceful Assemblies (ODIHR Guideline),
principle 1 & Para 16.
50
Hypothetical case, Para 3.
10
 The competent authorities should not enact provisions, which would limit the exercise of freedom, and

they should not override constitutional provisions or undermine fundamental rights guaranteed by the

constitution and international human rights standards.51

In addition, UN Special Rapporteur on freedom of assembly stated that, the right to freedom of

peaceful assembly does not require the issuance of a permit to hold an assembly, rather, if

necessary, a mere prior notification.52

28. Any restriction on the right to assembly must have a formal basis in law, must be sufficiently

precise and should be proportional.53 However, PAA does not qualify these requirements since it

imposed excessive restriction and overly vague, as to what constitute public violence is not

clearly defined. Advance notification is sufficient to protect public order; thus, prior permission

requirement is excessive.54 Moreover, due to the wider discretion placed on authorities, they can

arbitrarily deny or grant the permission and this directly affect the freedoms of assembly.55

29. Lastly, the URM Government has a positive duty to protect and respect peaceful assemblies.56 The

phrase 'peaceful assembly' should be interpreted even to include conduct that deliberately impedes

or obstructs activities of third parties.57 In Cisse v France case, the European Court Human Rights

(ECHR) held that an assembly is deemed peaceful if its organizers have peaceful intentions.58 The

student marching was peaceful as their intention was to save Kankoyi residents from the negative

health impacts of operation of SML gold mine. However, instead of protecting this peaceful

assembly, the Government violently dispersed the protesters. 59

30. Therefore, the author submits that, by passing unreasonable law that requires prior permission to

conduct assembly and by violently dispersing peaceful assembly, the URM Government has

51
Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACHPR 1995), Para 15.
52
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association (A/68/299) (2013), Para 24 &
53
ODIHR Guideline, principle 3 & 4.
54
ODIHR Guideline, Section B , Para 123.
55
Mulundika and Others v The People 6.
56
ODIHR Guideline, Section A, Principle 2 & Section B, Paras 26 & 137.
57
ODIHR Guideline, Section B, Para 22.
58
Cisse v France ECHR (2002) Ser A 17, Para 37.
59
Hypothetical case, Para 17.
11
 violated freedom of assembly and protesters right under articles 11 and 21 of the ACHPR and

ICCPR.

IV. Violation of the right to freedom of expression and academic freedom under article 9 of

ACHPR

31. Everyone has the right to freedom of expression, including the right to receive and impart

information and ideas of all kind orally or in writing. 60 Academic freedom is one way of exercising

freedom of expression, inter alia, through research and teaching.61 Teaching and researching, which

are vessels of expression, can only be fully enjoyed in an atmosphere of academic freedom and

autonomy for institutions of higher education.62

32. Pursuant to the Committee on ESCR, UNESCO Recommendations and Kampala Declaration on

Academic Freedom, academic personnel shall have security of tenure, the right to fulfill their

functions of teaching and researching without fear of interference or repression from the State or

any other public authority.63 Free speech and academic freedom are inseparable. Conducting and

disseminating research finding is exercising academic freedom through freedom of expression.

33. Though academic freedom is not explicitly provided under the ACHPR, the applicant agrees with

the suggestion of African human rights scholars that it can be read into the right to freedom of

expression and the right to education under articles 9 and 17(1) respectively. 64 Further, the Court,

pursuant to article 60 and 61 of the ACHPR, can consider the aforementioned declarations and

recommendations in protecting academic freedom and freedom of expression under the ACHPR.

60
ACHPR, Art 9 & ICCPR, Art 19(2).
61
General Comment 34, Human Rights Committee (GC 34, HRC), Para 11.
62
General Comment 13, Committee on CESCR (GC 13, CESCR), Paras 38 & 40.
63
GC 13, CESCR, Para 39; Kampala Declaration on Intellectual Freedom and Social Responsibility (1990) & United Nations
Educational, Scientific and Cultural Organisation (UNESCO): Recommendation concerning the Status of Higher-Education Teaching
Personnel (1998) (UNESCO Recommendation), Para 46 & 50.
64
Unpublished: T Massingi Academic Freedom in Africa: A Case for the Interpretation of the African Charter on Human and Peoples
Rights as Providing Protection for the Human Right to Academic Freedom Unpublished LLM thesis, Center of Human Rights,
University of Pretoria, 2006 53.
12
34. In instant communication, in accordance with the University of Nokeyema (UNINOK) disciplinary

code, the UNINOK Principal confronted Mr Kozo to renounce his research findings that openly

criticize the Government. Following his resistance, the University Disciplinary Panel, headed by

the Principal of the University, dismissed Kozo from his employment based on a disciplinary code

that is excessively restrictive and grossly inconsistent to the academic freedom and freedom of

expression. The Principal is political appointee. 65 This undermines the Universitys autonomy,

which is institutional form of academic freedom.66

35. The URM Government is under an obligation not to enact provisions that excessively limit the

enjoyment of rights and freedoms in ACHPR. 67 Furthermore, in Article 19 v Eritrea case, the

African Commission has held that, 'any limitation on the rights of the Charter must be in

conformity with the provisions of the Charter.'68 The Commission further stated that, 'where it is

necessary to restrict rights, the restriction should be as minimal as possible.'69 It is settled that the

protection to freedom of expression extends not only to expressions that are considered as favorable

by government authorities, but also to expressions that may offend, shock or disturb the State or

any sector of the population.70 Free speech allows individuals to openly and publicly criticize their

governments without fear of interference or punishment.71 This could be done through, inter alia,

teaching or researching. Thus, Kozos dismissal for criticizing Government in disseminating his

research finding is excessive and unnecessary in democratic society.

36. Therefore, the applicant submits that, by enforcing an outdated disciplinary code and by

excessively restricting freedom of expression and academic freedom, the URM Government has

violated articles 9 and 19 of ACHPR and ICCPR respectively.

65
Hypothetical case, Para 14.
66
GC 13, CESCR, Para 40 & UNESCO Recommendation, Para 18.
67
Constitutional Rights Project and Another v Nigeria (2000) AHRLR 191 (ACHPR 1998), Para 58.
68
Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007), Para 105.
69
Amnesty International and others v Sudan 2000 AHRLR 297 (ACHPR 1999), Para 80.
70
Handy side v UK, Series A No 24, Para 49; GC34, HRC, Para 11
71
Communication Nos 422/1990,423/1990 & 424/1990, U.N. Doc.CCPR/C/51/D/422/1990, 423 and 424/1990(1996), Para 7.4
13
Prayers

Pursuant to article 27 of the Court Protocol, the Court has authority to order State parties to grant

remedies for human rights violation. Thus, the applicant respectfully requests the honorable court for

the following:

I. A declaration that URM Government has violated article 16 of ACHPR in excluding

Likando from essential healthcare services and order the URM Government grant

compensation to Likandos family and to revise the medical guideline;

II. A declaration that URM Government has violated article 15 of ACHPR in failing to ensure

favorable working condition for miners and to order compensation payment to miners'

family and to revise the discriminatory MSA;

III. A declaration that URM Government violated article 11 of ACHPR in excessively

restricting protesters freedom of assembly, and order payment of compensation to the

victims and to revise the PAA, and

IV. A declaration that the URM Government has violated article 9 of ACHPR in excessively

restricting freedom of expression and academic freedom, and to order the Government to:

a) reinstate Mr Kozo to his position,

b) pay him compensation, and

c) revise the outdated UNINOK disciplinary code.

Respectfully submitted,

Agents for African Commission on Human and Peoples Rights (Applicant)

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