THE TWENTY FIRST AFRICAN HUMAN RIGHTS MOOT COURT COMPETITION

UNIVERSIDADE EDUARDO MONDLANE, MAPUTO, MOZAMBIQUE

1 6 OCTOBER 2012

THE AFRICAN COURT ON HUMAN AND PEOPLES RIGHTS

IN THE MATTER BETWEEN

THE NGO CONCHINA CONCERNED CITIZENS COALITION (CCCC/ 4Cs)

AND
THE STATE OF CONCHINA

MEMORIAL FOR THE APPLICANT

TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................................................... ii
LIST OF AUTHORITIES.................................................................................................................. iii
LIST OF ABBREVIATIONS............................................................................................................. vi
STATEMENT OF JURISDICTION..................................................................................................vii
ADMISSIBILITY............................................................................................................................... ix
STATEMENT OF FACTS.................................................................................................................x
SUMMARY OF ISSUES.................................................................................................................xii
SUMMARY OF ARGUMENTS.......................................................................................................xiii
MERITS........................................................................................................................................... 1
I. LEGALITY OF THE INVESTMENT ACT......................................................................................1
A. Violation of the right to property under article 14 of the African Charter....................................1
B. Violation of the right to dispose of natural resources under article 21 and 22 of the African
Charter............................................................................................................................................. 3
C. Violation of article 14 of the Revised African Convention on the Conservation of Nature and
Natural Resources........................................................................................................................ 5
II REFUSAL TO ACCEPT AID........................................................................................................5
A.The Right to food and the violation of article 22 of the African Charter......................................5
B.Obligations under the AU Maputo Declaration on Agriculture and Food Security .....................7
III. SECTIONS 3 AND 4 OF THE SEDITION ACT AND CHILALAS CONVICTION UNDER THE
ACT.................................................................................................................................................. 8
IV. THE DEGRADING TREATMENT OF CHILALA BY FORCED FEEDING.................................12
A.Violation of article 5 of the African Charter..................................................................................12
B. Violation of Articles 1, 2 and 16 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment......................................................................................13
PRAYERS...................................................................................................................................... 15

ii

LIST OF AUTHORITIES

INTERNATIONAL TREATIES

1. African Charter on Human and Peoples Rights (African Charter), 27 June 1981,
CAB/LEG/67/3. Rev. 5, 21 I.L.M 58 (1982), Adopted in Banjul, The Gambia
2. African Convention on the Conservation of Nature and Natural Resources, adopted 15
September 1968, Algiers, Algeria. CAB/LEG/24.1
3. African Commission on Human and Peoples Rights 2001 Resolution on Freedom of
Expression
4. AU Maputo Declaration on Agriculture and Food Security (2003)
5. Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. Adopted by the General Assembly 9 December 1988
6. Charter of the United Nations, 1 UNTS XVI
7. Declaration of Principles on Freedom of Expression in Africa
8. International Covenant on Civil and Political Rights, March 23, 1976, 999 U.N.T.S. 171
9. International Covenant on Economic Social and Cultural Rights, January 3, 1976, 993
U.N.T.S. 3
10. International Food Security Treaty
11. Protocol to the African Charter on Human and Peoples Rights on the Establishment of
an African Court on Human and Peoples Rights, AGH Res. 230 (1998/2004)
12. Revised African Convention on the Conservation of Nature and Naturl Resources,
adopted in Maputo Mozambique, 11 July 2003.
13. Siracusa Principles on the Limitation and Derogation of Provisions in the International
Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984)

iii

14. Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders on 31
July 1957
15. Universal Declaration of Human Rights, G.A. Res. 217A (iii), U.N. Doc. A/811 (1948)
16. Interim Rules for the African Court on Human and Peoples Rights

DOMESTIC LAW

1. Constitution of the State of Conchina, 1980

2. Investment Act of 2005
3. Natural Resources Act of 2003
4. Sedition Act

CASE LAW

CASES FROM THE AFRICAN COMMISSION OF HUMAN RIGHTS

1. Amnesty International v Zambia, 2000 AHRLR 325 (ACHPR 1999)

2. Article 19 v Eritrea (2007) AHRLR 73
3. Attorney-General v Clarke (2008) AHRLR 259 (ZaSC 2008)
4. Bissangou v Republic of Congo (2006) AHRLR 80 (ACHPR 2006)
5. Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya, ACHR, 46th Session, 2009
in Banjul, Gambia
6. Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19
(AHCPR 2003)
iv

7. Eritrea: Interights (on behalf of Pan African Movement and Others) v Eritrea and
Ethiopia (2003) AHRLR 74 (ACHPR 2003)
8. Eritrea: Zegveld and Another v Eritrea (2003) AHRLR 84 (ACHPR 2003)
9. Forum of Conscience v Sierra Leone 223/98, 14th Annual Activity Report
IHRDA,Banjul 2002, 331334.
10. Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000)
11. Social and Economic Rights Action Center (SERAC) and the Center for Economic and
Social Rights (CESR) v. Nigeria ACHPR Comm. No. 155/96 (2001)
12. Union des Jeunes Avocats v Chad Communication 74/92

CASES FROM THE INTER AMERICAN COMMISSION OF HUMAN RIGHTS

1. Mayagna (Sumo) Awas Tingni Community v Nicaragua, IAcmHR (ser C) No. 79

2. Velsquez Rodrguez v Honduras IAcmHR (ser C) No. 4 (1989)

CASES DECIDED BY NATIONAL COURTS

S v Makwanyane and Another (CCT3/94) [1995] ZACC 3
BOOKS AND ARTICLES

1. Amollo R Ensuring Rights make Real Change 2009 ESR Review Volume 10
2. Dugard J International Law A South African Persepeive

3rd ed (Juta & Co Ltd

Claremont 2009)
3. Ebobrah T Human Rights Developments in African Sub-Regional Communities during
2009 2010 AHRLR 249-252

4. Lumina C Free trade or just trade? The world trade organisation, human rights and
development (Part 2) 2010Law, Democracy and Develoment Volume 4
5. Robinson P 2009

The Right to a Fair Trial in International Law

Colloquium on

International Justice Rome

LIST OF ABBREVIATIONS

1. ACCNNR

African Convention on the Conservation of Nature and Natural

vi

Resources
2. AHRLR

African Human Rights Law Reports

3. African Charter

African Charter on Human and Peoples Rights

4. African Commission

African Commission on Human and Peoples Rights

5. CCCC

Conchina Concerned Citizens Coalition

6. DAFS

AU Maputo Declaration on Agriculture and Food Security

7. HRC

Human Rights Committee

8. ICCPR

International Covenant on Civil and Political Rights

9. ICESCR

International Covenant on Economic, Social and Cultural

Rights

10. NGO

Non-Governmental Organisation

11. CAT

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment

12. UDHR

Universal Declaration of Human Rights

13. UN

United Nations

14. UNECA

United Nations Economic Commission for Africa

15. US$

United States Dollar

STATEMENT OF JURISDICTION
1. The applicant and respondent have both submitted issues on procedural and
substantive grounds to the African Court on Human and Peoples Rights (hereinafter
referred to as the Court). Pursuant to article 1 of the Protocol to the African Charter
vii

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

and Peoples Rights (hereinafter referred to as the Protocol), the Court is established
and the organisation, jurisdiction and functioning thereof is governed by the Protocol.
2.

The respondent state of Conchina has ratified the African Charter on Human and
Peoples Rights, the above mentioned Protocol and all other relevant international
human rights instruments to be interpreted and applied to the applicants and
respondents submitted issues. Hereby the jurisdiction of the Court to deal with the
parties respective issues is established.1 Article 3(2) of the Protocol further empowers
the Court to enforce its decision power when a dispute arises as to whether the Court
has jurisdiction to hear a certain matter.2

3.

The applicant, acting on behalf of the civilians of Conchina, is entitled, in terms of

article 5(3) of the Protocol to submit its case to the Court. 3

Article 3(1) 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 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.
Article 3(2) of the Protocol to the African Charter on Human and Peoples Rights on the
Establishment of an African Court on Human and Peoples Rights. In the event of a dispute as to
whether the Court has jurisdiction, the Court shall decide.
Article 5(3) 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 Court may entitle relevant NonGovernmental Organizations (NGOs) with observer status before the Commission, and individuals to
institute cases directly before it, in accordance with article 34 (6) of this Protocol. Article 34(6) forces
the State of Conchina to declare acceptance of the jurisdiction of the Court under article 5(3) of the
Protocol. Failure to do so will result in no allowed submissions of issues under article 5(3) of the
Protocol to the Court. As indicated in paragraph 4 of the hypothetical fact set, the respondent state of
Conchina made an article 34(6) declaration under the Protocol on 10 December 2011.

viii

ADMISSIBILITY
4. In terms of article 5(3)4 and in relation to article 34(6)5 of the Protocol to the African
Charter, the Court may permit any relevant NGO with observer status before the Court
to institute action. CCCC is an NGO with such status. 6
5. Communications can be received from both state 7 and non-state8 actors by the Court.
CCCC is a non-state actor submitting its communication based on the principles of the
actio popularis adopted by the African Commission in Article 19 v Eritrea (2007)
AHRLR 73.
6. Seven preconditions of admissibility have been set out in article 56 of the African
Charter and must be adhered to by a complainant for a communication to be declared
admissible before the Court. CCCC complies with the conditions under article 56. 9
Article 56(5) does however require closer consideration. Article 56(5) requires that
local remedies, if any, be exhausted. FICH, as a subsidiary of CCCC, approached the
Constitutional Court contending a violation of the right to food by the State of
Conchina. The case was rejected by the Court. Further, Chilalas case was heard by
the Central Province High Court and Chilala was subsequently convicted by the Court.
The Applicant therefore submits that local remedies were exhausted.

6
7
8
9

Article 5(3) of the Protocol to the African Charter on Human and Peoples Rights on the
Establishment of an African Court on Human and Peoples Rights.
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.
See paragraph 16 of the Hypothetical facts.
Article 47-54 of the African Charter.
Article 55-57 of the African Charter.
The importance of compliance with article 56 was emphasised in Eritrea: Interights (on behalf of
Pan African Movement and Others) v Eritrea and Ethiopia (2003) AHRLR 74 (ACHPR 2003).

ix

STATEMENT OF FACTS
7. The respondent State of Conchina is a developing African country and is classified as
one of the poorest countries. The total population of Conchina is estimated at fifteen
million people. The ruling political party is Conchina Independence Party and its main
opposition is Front for the Independence of Conchina (FICH). Prior to 2005 the
economy of Conchina was mainly based on agriculture.
8. In 2005 the Investment Act was enacted by the Conchina Government with the
intention of attracting foreign investment and stimulating development. The state of
Conchina has, pursuant to the Act, granted mining licenses to several multi-national
mining corporations. The licenses give the corporations the authorisation to mine iron
ore with tax exemption.
9. The UNECA issued a report stating that Conchina suffered annual losses in revenue
amounting to US$ 1,2 billion. Conchinas position on the UN Human Development
Index has remained stagnant since the implementation of the provisions of the Act. In
2010 the Constitutional Court of Conchina ruled that the Investment Act was not in
violation of the Constitution.
10. The government concluded an agreement (NSFSN) in 2007 to combat the severe
threats to food security faced in Conchina. Following a trial period, farmers were
expected to contribute to the purchase price of the GM seeds as per the agreement.
Farmers were unable to do this and a serious food shortage ensued in Conchina.
Fiancial assistance offered by the United Peoples Federation to alleviate the crisis was
rejected by the respondent. Following this, a coalition of civil society organisations
(namely CCCC) was formed acting as the applicant.

11. In January 2011, FICH approached the Constitutional Court stating that the right to
food had been violated. The Court rejected the case on the ground that they had no
locus standi. Following this judgment several trade unions called for peaceful
demonstrations without police permits in violation of national law. The demonstrations
however turned violent subsequently coined the bloody March protest.
12. Domingos Chilala, the leader of FICH was arrested following the fatal protest on
charges of sedition. Chilala had stated to fellow comrades that he would overthrow the
government to ensure food security. In prison, Chilala self-imposed a hunger strike
which led to the breakdown of his fat and muscle tissue. Upon direction, a doctor in the
employment of the government administered a glucose drip to treat the catabolysis.
Chilala refused the drip and was resultantly physically restrained. He abandoned his
hunger strike thereafter.
13. In May 2012 the Central Province High Court convicted Chilala of sedition in his
absence. He was sentenced to life in prison following a two day trial during which his
legal counsel with whom he regularly consulted, was present. The High Court refused
to refer the matter to the Constitutional court stating that no constitutional issue was
involved. On appeal the Constitutional court confirmed this decision.

xi

SUMMARY OF ISSUES
14. The CCCC respectfully asks this honourable court to determine:

I.

Whether the enactment of the Investment Act by the respondent State of Conchina
violated the right to property of the people of Conchina as under article 14 and the
right to the free disposal of natural resources as under article 21 of the African
Charter.

II.

Whether the respondent State of Conchinas refusal to accept aid from the UPF
violated the right to development of the people of Conchina as under the article 22 of
the African Charter.

III.

Whether Chilalas conviction under sections 3 and 4 of the Sedition Act by the State
of Conchina violated Chilalas right to freedom of expression as under article 9 of the
African Charter, the 2001 Resolution on Freedom of Expression and article 19 of the
ICCPR.

IV.

Whether Chilalas trial violated his right to a fair trial as under the Declaration and
Recommendations, the Resolution on the Right to Recourse and Fair Trial and article
14 of the ICCPR.

V.

Whether the forced feeding of Chilala violated his right to the respect of human dignity
and prohibition of inhumane or degrading treatment as under article 5 of the African
Charter and articles 1, 2 and 16 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.

xii

SUMMARY OF ARGUMENTS
16. The applicant submits that the people of Conchina have a collective right to property
and by implementing the Investment Act the respondent state violated the right to
property as contained in article 14 of the African Charter. Further, the State of
Conchina violated article 21 of the African Charter which guards against foreign
misappropriation of natural resources.
17. In refusing to accept aid from the UPF, the applicant submits that the respondent
prevented the right to development of the people of Conchina as under article 22 of the
African Charter and the DFS.
18. The applicant submits that Chilalas arbitrary arrest and subsequent conviction under
sections 3 and 4 of the Sedition Act violated his individual right to freedom of
expression as contained in article 9 of the African Charter and the 2001 Resolution of
Freedom of Expression. The applicant further submits, that Chilalas subsequent trial
and conviction violated his right to a fair trial as under article 14 of the ICCPR due to
the absence of reasonableness in his trial and the undermining of his fundamental right
to a fair trial.
19. Finally the applicant submits that the forced feeding of Chilala resulted in inhuman and
degrading treatment in terms of article 5 of the African Charter and articles 1, 2 and 16
of the CAT. Such a violation was committed due to his restraint and the infliction of
physical and mental pain and suffering during his forced feeding. The applicant submits
that such actions were intentionally inflicted for purposes of punishment for Chilalas
alleged seditious liable.

xiii

MERITS
I.
A.

LEGALITY OF THE INVESTMENT ACT

Violation of the right to property under article 14 of the African Charter10

20. The Investment Act is in contravention of the right to property as contained in article 14
of the African Charter. A collective right to property is accorded to the citizens of
Conchina in respect of the mineral rich land of the State of Conchina. In Mayagna
Awas Tingni Community v Nicaragua11 the court held that property should be given a
wide and autonomous meaning. In the Endorois Welfare Council v Kenya12 the African
Commission on Human and Peoples Rights noted that property rights could also
include the economic resources and rights over the common land of the applicants.
The iron ore deposits therefore constitute the property of the citizens of Conchina and
subsequent property rights are accorded to the citizens.
21. The Investment Act is further in violation of article 14 in that the general interests of the
citizens of Conchina are not fulfilled through its implementation. The independent
study reported by the UNECA recorded an annual loss of revenue for the country by
virtue of the consequences of the Investment Act.13 Furthermore, the report released
by the Minister of Finance of Conchina indicated a negative impact on the national
income of the state.14 The state has a duty to respect, protect, promote, and fulfil the
rights in the African Charter.15 This entails positive and negative duties which must be

10

Article 14 of the African Charter on Human and Peoples Rights (Hereafter referred to as the
African Charter). The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in accordance with the provisions
of appropriate laws.
11
Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment of 31 August 2001, para 146.
12
Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of
Endorois Welfare Council v. Kenya, Communication No. 276 / 2003, May 2009, para 86.
13
Paragraph 10 of the Hypothetical Case.
14
Paragraph 10 of the Hypothetical Case.
15
Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights
(CESR) v. Nigeria ACHPR Comm. No. 155/96 (2001).

exercised in the general interest of the community. The public interest requirement
stipulated in article 14 can be seen as the protection of property for the collective
benefit of the people and was incorporated into a public interest test in the Endorois
case.16 The primary requirement of the test is not met in that the consequences of the
provisions of the Investment Act are not to the benefit of the public or community and
is accordingly in contravention of article 14.
22. The Investment Act is further in contravention of article 14 as it undermines
fundamental rights of the citizens of Conchina by extending mining licenses to multinational corporations. In Nigerian Bar Association v Nigeria 8th Annual Activity Report 17
the court held that competent authorities of a State should not undermine fundamental
rights of its citizens guaranteed by international human rights standards. Furthermore,
in the case Constitutional Rights Project and Another v Nigeria 18 it was stated that the
Government should avoid restricting rights. The exploitation of the natural iron ore
resources of Conchina infringes a human right norm, namely a collective right to
property of the citizens.
23. It is therefore the applicants contention that in light of the relevant law the provisions
and resulting consequences of the Investment Act constitute a clear violation of the
right to property of the people of Conchina. The expropriation of the iron ore resource
by foreign multi-nationals is not exercised in the interest of the public or for the general
welfare of the country and domestic development. The legislation constitutes a
derogation of applicable standards of international law. The Investment Act should
consequently be declared in contravention of article 14 of the African Charter.
16

17

18

Centre for Minority Rights Development and Minority Rights Group International on behalf of Endorois
Welfare Council v Kenya, ACHR, 46th session, 2009 in Banjul Gambia. The court held that the test had
two-parts; namely that the government must act in the public interest and any infringement must be in
accordance with law.
Communication 101/93, Civil Liberties Organisation in respect of the Nigerian Bar Association v Nigeria
8th Annual Activity Report.
Constitutional Rights Project and Another v Nigeria (2000) AHRLR 191 (ACHPR
1998).

B. Violation of the right to dispose of natural resources under article 21 and 22 of

the African Charter
24.The state of Conchina is in express violation of its duty to ensure the welfare and
exclusive interest of the people in condoning and indeed promoting the acts of foreign
corporations instead of ensuring the utilisation of the natural resources of the country
for the benefit of the people. The natural resources of African countries are guarded
against foreign misappropriation by virtue of article 21. 19 The origin of this right may be
linked to the colonial era, during which the human and material resources of Africa
were largely exploited for the benefit of outside powers. In Social and Economic Rights
Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v
Nigeria20 the right of governments to exercise control and manage the natural
resources of their state was acknowledged but the court qualified this by stating that
authorities should not act arbitrarily in exercising the right to freely dispose of its wealth
and natural resources. The court further stated that the right to natural resources
vested in the people themselves. 21 In Bissangou v Republic of Congo 22 the African
Court for Human and Peoples Rights stated that the article had to be exercised in light
of the exclusive interest of the people. The respondent state had therefore failed to
enable its people to fully benefit from the advantages derived from their natural
resources as stated in article 21(5) of the African Charter:

19

Article 21 of the African Charter. 1. All peoples shall freely dispose of their wealth and natural
resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people
be deprived of it.
20
Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social
Rights (CESR) v Nigeria ACHPR Comm. No. 155/96 (2001).
21
21 Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social
Rights (CESR) v Nigeria ACHPR Comm. No. 155/96 (2001).
22
Bissangou v Republic of Congo (2006) AHRLR 80 (ACHPR 2006).

States parties to the present Charter shall undertake to eliminate all forms of
foreign economic exploitation particularly that practiced by international
monopolies so as to enable their peoples to fully benefit from the advantages
derived from their national resources.23

25. Article 21(5) of the African Charter further emphasises and makes specific reference to
the duty of the state to eliminate all forms of foreign economic exploitation by
monopolies. Emphasis has specifically been placed on the duty of governments to
protect citizens from the damaging acts perpetuated by foreign sovereigns or parties
and for the exercise of the right in the exclusive interest of the people. This must be
ensured positively through appropriate legislation and the effective enforcement of
such laws; both municipal and international.24
26. The Investment Act is further in contravention of article 22(1) of the African Charter
which entrenches the right to development with specific regard to the enjoyment of
common heritage.25 The people of Conchina are excluded from participating and
sharing in the benefits of development.26 In the case Democratic Republic of the Congo
v Burundi, Rwanda and Uganda 27 the court stated that the states deprivation of its
peoples right to natural resources constitutes the violation of the right to development
as guaranteed in article 22 of the African Charter. The provision contains no claw-back
clause in that it is expressly stated that in no case shall a people be deprived of the
right. By extending mining permits to the multi-national corporations, the people of
23

24

25

26

27

Article 21(5) of the African Charter.

International standards concerning the expropriation of natural resources have been set through the
1962 UN General Assembly Resolution on the Permanent Sovereignty over Natural Resources. The
1962 Resolution states that such acts of exploitation must be exercised for reasons of national utility or
interest over individual or private benefit.
Article 22(1) of the African Charter. All peoples shall have the right to their economic, social and
cultural development with due regard to their freedom and identity and in the equal enjoyment of the
common heritage of mankind.
Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf
of Endorois Welfare Council v. Kenya, Communication No. 276 / 2003, May 2009, para 135.
Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (AHCPR 2003).

Conchina have been denied the ability to exploit Conchinas natural resources of iron
ore for their own development. The Investment Act is thus submitted to be in
contravention of article 21 and article 22 of the African Charter.
C. Violation of article 14 of the Revised African Convention on the Conservation of
Nature and Natural Resources28
27. The respondent state of Conchina violates the ACCNNR in the implementation of the
Investment Act as the full economic, social and cultural development of the citizens are
not ensured. The ACCNNR encompasses the iron ore deposits of the state of
Conchina as per its description of its natural resources. 29 Article III(2) of the ACCNNR
reiterates the duty on states to ensure the enjoyment of development. 30 Further, article
XIV of the ACCNNR provides for the consideration of all applicable factors in
formulating developmental plans.31 The Investment Act is in contravention of the
ACCNNR as it results in the exploitation of the natural resources of Conchina in favour
of foreign corporations and not to further the development of the citizens of Conchina.

II

REFUSAL TO ACCEPT AID

A. The Right to food and the violation of article 22 of the African Charter
28. The refusal of the State of Conchina to accept aid from the UPF to curb the severe
food shortages in Conchina constituted a contravention of the development of the
28

29

30

31

Revised African Convention on the Conservation of Nature and Natural Resources, adopted in
Maputo Mozambique, 11 July 2003.
Article V(1) of the Natural Resources Convention. Natural Resources" means renewable
resources, tangible and non tangible, including soil, water, flora and fauna and non renewable
resources.
Article III(2) of the Natural Resources Convention. In taking action to achieve the objectives of this
Convention and implement its provisions, the Parties shall be guided by the following: 2. the duty of
States, individually and collectively to ensure the enjoyment of the right to development.
Article 14(1)(b) of the Natural Resources Convention. The Parties shall ensure that b) in the
formulation of all development plans, full consideration is given to ecological, as well as to economic,
cultural and social factors in order to promote sustainable development.

people of Conchina as protected by article 22 of the African Charter and the

consequent right to food. As a natural consequence, the prevailing food shortages in
Conchina negatively impacted the productivity and development of the people of
Conchina.32 Article 22 of the African Charter envisions the protection and development
of persons in an economic, social and cultural light. 33 Although the explicit right to food
is not provided for in the African Charter, in Social and Economic Rights Action Center
v Nigeria34 the court stated that a combined interpretation of the right to life as well as
the right to health and economic, social and cultural development as contained in
article 22 would result in the deprivation of the implicit right to food. 35 In this landmark
judgement the African Commission stated that:

A State is obliged to protect and improve existing food sources and to ensure
access to adequate food for all citizens.36

29. The respondent State of Conchina is thus in violation of Article 22 of the African
Charter by neglecting to ensure access to existing food sources which would ensure
the development of the people of the State. 37 The refusal of such access to food
sources further contravenes the right of the people of Conchina to food.38
32

33

34

35

36

37

38

The United Nations Declaration on the Right to Development adopted by the UN General Assembly
resolution 41/128 of December 4, 1986 recognizes that development is a comprehensive economic,
social, cultural and political process, aimed at the constant improvement of the well-being of the entire
population on the basis of their active, free and meaningful participation in development.
The Preamble of the Charter emphasises the importance of the right to development by stating
that, it is henceforth essential to pay particular attention to the right to development and that civil and
political rights cannot be dissociated from economic, social and cultural rights in their conception as well
as universality.
Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social
Rights (CESR) v. Nigeria ACHPR Comm. No. 155/96 (2001).
The NGO Forum meeting in Ezulwini (Swaziland) on the occasion of the 43rd Ordinary
Session of the African Commission on Human and Peoples Rights (ACHPR).
Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social
Rights (CESR) v. Nigeria ACHPR Comm. No. 155/96 (2001).
Article 22 of the African Charter stipulates that States shall have the duty, individually or
collectively, to ensure the exercise of the right to development.
38 In.Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social
Rights (CESR) v. Nigeria ACHPR Comm. No. 155/96 (2001) para 65 the Commission stated: The
minimum core of the right to food requires that the Nigerian government should not destroy or

B. Obligations under the AU Maputo Declaration on Agriculture and Food Security39

30. The respondent State of Conchina violated its positive duty to ensure the food security
of the people of Conchina as stipulated in the DAFS. The DAFS constitutes a
recognition by African States40 that there is a responsibility to ensure economic
prosperity and the welfare of people through food and agriculture. 41 By destroying the
stock pile of agricultural seeds the government of Conchina did not further the welfare
or prosperity of its citizens.
31. The consequences of the NSFSN agreement, as implemented by the government of
Conchina, resulted in a violation of the DAFS. In terms of the DAFS , States resolve to
implement policies and strategies to revitalize the agricultural sector, specifically by
encouraging the private sector to participate in development. Such policies should be
aimed at ensuring the engagement of small-scale farmers, traditional farmers as well
as other relevant minority groups. To the contrary, the government of Conchina did not
make provision for such policies and those in place resulted in a serious food shortage
and famers were informed that the situation was not salvageable.
32. The State of Conchina further violated the DAFS by destroying the stockpile of
agricultural seeds to make room for the GM seeds 42 which subsequently could not be
afforded by farmers due to the price increase. 43 The DAFS resolves to ensure regional
food reserve systems are in place to combat hunger and poverty and that States
should call upon the African Union Commission and related partners to provide
contaminate food sources. It should not allow private parties to destroy or contaminate food sources,
and prevent peoples' efforts to feed themselves.
39
39 Au Maputo Declaration on Agriculture and Food Security in Africa (2003).
40
40 Heads of State and Governments of the African Union.
41
41 The International Food Security Treaty, although only enforceable against signatory States,
provides for a minimum standard of nutrition recognized by the United Nations to all people unable to
gain such access on their own and requires that States establish law prohibiting activities that deny the
minimum standard of nutrition to any person within the borders of the State.
42
Genetically Modified seeds containing Vitamin A.
43
Paragraph 13 of the Hypothetical Case. Farmers were expected to contribute 40 per cent of the
purchase price of new seeds in subsequent years.

required support. Such action was not taken by the State of Conchina. The respondent
State of Conchina should consequently be declared to be in contravention of the
DAFS.

III. SECTIONS 3 AND 4 OF THE SEDITION ACT AND CHILALAS CONVICTION

UNDER THE ACT
A. Violation of articles 1, 2 and 9 of the African Charter.
33. The respondent violated Chilalas right to freedom of expression by acting in
contravention of article 9 of the African Charter and the African Commission on Human
and Peoples Rights 2001 Resolution on Freedom of Expression 44 through the
implementation of sections 4 of the Sedition Act in that it creates a criminal law that
inhibits the right to freedom of expression. Domingos Chilalas expressed comment, as
indicated in paragraph 18 of the hypothetical fact set, contains an element to be
protected by article 9(2) of the African Charter in that it provides Chilala the right to
express and disseminate his opinions within law.
34. Article 945 of the African Charter guarantees the right to freedom of expression and can
be interpreted in association with the 2001 Resolution on Freedom of Expression. This
Resolution is concerned with the violation of the right to freedom of expression by state
parties to the African Charter on Human and Peoples Rights.

44

45

The 2001 Resolution on Freedom of Expression states in this regard that it is...Concerned at the
widespread violation of this right by state parties to the Charter through the harassment, arbitrary arrest
and detention of journalists, victimisation of media houses deemed critical of the establishment,
inadequate legal framework for regulating electronic media especially broadcasting, and criminal and
civil laws that inhibit the right to freedom of expression... this right, as indicated in the above quote,
refers to the right to freedom of expression.
Article 9 of the African Charter on Human and Peoples Rights. (1) Every individual shall have the
right to receive information. and (2) Every individual shall have the right to express and disseminate his
opinions within the law.

35. In Zegveld and Another v Eritrea46 it was indicated that the right to freedom of

expression, as a fundamental individual human right, constitutes one of the building

blocks of a democratic state and ensures respect for all human rights and freedoms.
This was also confirmed in Attorney-General v Clarke.47 It was also further indicated
that this right does not exist without restrictions and that article 9(2) of the African
Charter and principle II(2) of the Declaration of Principles on Freedom of Expression in
Africa categorically state that these restrictions must be provided for by the law of the
applicable country. 48 The applicable law however, cannot exist in contravention of
international human rights norms and standards relating to freedom of expression and
should not threaten the right itself, not even in circumstances of state emergencies or
special events. In the event that an expression or dissemination of opinion arises as
provided for in article 9(2) and the aforementioned criteria are met, the affected person
should be allowed to seek redress in a court of law.
36. A violation of articles 1 and 9(2) of the African Charter occurred. The respondent state
of Conchina, as state party to the African Charter, did not recognise the right and
freedom bestowed upon Chilala. In denying Chilala the right to express his opinion, a
contravention of article 249 of the African Charter occurred. The applicant requests that
a declaration should be made proclaiming the states contravention of the above
mentioned articles.
B. Violation of article 19 of the ICCPR.
37. In consideration of the right to freedom of expression, the applicant submits that
Chilalas arrest was arbitrary and infringed on his article 19 right. Despite Chilalas right
46
47
48
49

Eritrea: Zegveld and Another v Eritrea (2003) AHRLR 84 (ACHPR 2003).

Attorney-General v Clarke (2008) AHRLR 259 (ZaSC 2008) 64.
Eritrea: Zegveld and Another v Eritrea (2003) AHRLR 84 (ACHPR 2003) par 59.
Article 2 of the African Charter on Human and Peoples Rights. Every individual shall be entitled to
the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or other status.

to express himself freely, Chilala was arrested after his secretarys husband called the
police to relay to them what his wife had told him. This indicates that an arrest was
made dependant on hearsay. Article 19 of the ICCPR guarantees that everyone shall
have the right to hold opinions and have freedom of expression without interference. 50
In the case of Angola: Marques de Morais v Angola (2005) AHRLR 3 (HRC 2005)51 the
Committee reiterated that article 19(2) of the ICCPR included right of individuals to
criticise or openly and publicly evaluate their governments without fear of interference
or punishment and that an arrest made based on such a statement is arbitrary and in
violation of the right to freedom of expression. In terms of this argument, the applicant
submits that a declaration be made stating the respondents violation of article 19(2) of
the ICCPR.

C. Violation of the Dakar Declaration and Recommendations, the Resolution on

the Right to Recourse and Fair Trial and article 14 of the ICCPR.

38. The respondent violated Chilalas right to a fair trial. Chilala was absent during his trial
and subsequent conviction due to his weakness from the catabolises. His trial lasted
only two days infringing on his right to a reasonable time to prepare for the trial,
investigate all claims made against him and examine the states evidence. The lack in
the element of reasonableness created an obstruction in the fulfilment of Chilalas right
to a fair trial.

50

51

Article 19 of the ICCPR. 1. Everyone shall have the right to hold opinions without interference. 2.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice.
Angola: Marques de Morais v Angola (2005) AHRLR 3 (HRC 2005) par 6.7.

10

39. The Dakar Declaration and Recommendations declares the right to a fair trial to be a

fundamental right of which non-observance undermines all other human rights. 52 This
Declaration can be interpreted in conjunction with article 7 53 of the African Charter and
the Resolution on the Right to Recourse and Fair Trial. These authorities guarantee the
right to a fair trial for all parties tried before a court of law and sets out different
requirements to be fulfilled for this right to be acknowledged.
40. In the case of Kenya: Juma and Others v Attorney-General (2003) AHRLR 179 (KeHC
2003) the court reiterated the importance of adherence to the requirements set out in
article 7 of the African Charter. The meaning of the concept of a fair trial was explored
and the court concluded that for a fair trial to exist, the following circumstances should
be present:
It(fair trial) is an elementary principle in our system of the administration of
justice, that a fair hearing within a reasonable time, conducted impartially in
accordance with the fundamental principles of justice and due process of law for
which he has had a reasonable opportunity to prepare, at which he is permitted
to have the assistance of a lawyer of his choice as he may afford and during
which he has a right to present his witnesses and evidence in his favour, a right
to cross-examine his adversary's witnesses.54

The element of reasonableness is highlighted by the court to comply with in all

procedural and substantive steps taken by any court of law.
52

53

54

Preamble Dakar Declaration and Recommendations : The right to a fair trial is a fundamental right,
the non-observance of which undermines all other human rights. Therefore the right to a fair trial is a
non-derogable right, especially as the African Charter does not expressly allow for any derogations from
the rights it enshrines. The realisation of this right is dependent on the existence of certain conditions
and is impeded by certain practices.
Article 7 of the African Charter. 1. 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 violating his
fundamental rights as recognised and guaranteed by conventions, laws, regulation and customs in
force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the
right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried
within a reasonable time by an impartial court or tribunal.
Kenya: Juma and Others v Attorney-General (2003) AHRLR 179 (KeHC 2003) par 8.

11

41. The court further established that any accused should be free from difficulty and

obstruction in fighting a criminal charge made against him. 55 Article 14(3)(d) of the
ICCPR creates the right of an accused to be tried in his presence.
42. Based on the above stated authorities, Chilalas right to a fair trial was infringed upon
and the applicant submits that a declaration be made stating the existence of this
violation.

IV. THE DEGRADING TREATMENT OF CHILALA BY FORCED FEEDING

A. Violation of article 5 of the African Charter
43. The State of Conchina acted in contravention of article 5 of the African Charter which
regulates the right to the respect of human dignity and prohibition of inhuman or
degrading treatment. Contrary to the prohibition set out in this article, Chilala was
treated in an inhuman and degrading manner by physically restraining him and
administering a glucose drip to him with force by a guard. This was done during the
period Chilala was detained for his alleged act of sedition against the state. Under the
provisions of article 556 the Government of Conchina must respect every human beings
right to respect of human dignity and in conjunction with this, is prohibited from
exploiting or degrading a human being by way of cruel, inhuman or degrading
treatment or punishment. In the case Media Rights Agenda v Nigeria 57 the court stated
that the terms cruel, inhuman and degrading punishment should be interpreted in its
widest possible sense to ensure the protection of victims. A broad interpretation of the
facts in casu indicates that the Government of Conchina treated Chilala in a degrading
55

56

57

Kenya: Juma and Others v Attorney-General (2003) AHRLR 179 (KeHC 2003) par 10.
Article 5 of the African Charter: Every individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status. All forms of exploitation and
degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment
and treatment shall be prohibited.
Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000) 71.

12

manner by forcing him stay alive in order for them to keep him in prison and punish him
for his alleged acts of seditious libel.

B. Violation of Articles 1, 2 and 16 of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment
44. By virtue of article 158 Chilala was treated in a degrading manner due to physical and

mental pain and suffering which was intentionally inflicted on him for the purpose of
punishing him for his suspected crime of sedition. Under this provision, the treatment
must be inflicted by a state official or due to an order from a state official to ensure the
criminalisation of the act. In this regard the physical restraint of Chilala and the
administering of the glucose drip, without Chilalas consent, was due to an order from a
doctor in the employment of the Department of Health.
45. Under article 2 of this Convention, 59 the Government of Conchina neglected to
implement legislative measures to prevent the degrading treatment Chilala was
exposed to while detained in prison. This article places an obligation on the state to
adopt legislative and other measures to prevent acts of degrading treatmnent in any
territory under its jurisdiction. This must be done to ensure the criminalisation of

58

Article 1 of the United Nations Convention Against Torture and Other Cruela, Inhuman or
Degrading Treatment or Punishment: 1.For the purposes of this Convention, torture means any act by
which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confession, punishing him for an act
he or a third person has committed or is suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.

59

59 Article 2 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment: 1.Each State Party shall take effective legislative, administrative, judicial or
other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional
circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any
other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer
or a public authority may not be invoked as a justification of torture.

13

degrading treatment under section C 4 60,961,1062 and 1163 of the Resolution on

Guidelines and Meausures for the Prohabition and Prevention of Torture, Cruel,
Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines
on Torture). The political unrest in Conchina was spurred on by the bloody March
protest.64 Despite this, the State of Conchina is not free from liability in terms of the
degrading treatment of Chilala. No exceptional circumstances or order from any state
official, in this case the doctor from the Department of Health, or public authority, CHIP
the current raining political party, can be invoked as a justification of any treatment that
falls under the scope of this Convention.
46. The Government of Conchina is in violation of article 16 of this Convention by not
preventing the degrading treatment of Chilala within their jurisdiction. Chilala was
arrested on 10 April 2012 in the Coastal Province of Conchina and transferred to a high
security prison in Conchina City where the subsequent degrading treatment was
inflicted.65 Article 1666 of this Convention places an obligation on the Government of
Conchina not to only prevent the occurrence of acts under article 1 of the Convention,
but also to prevent any other form of cruel, inhuman or degrading treatment in any
60

61

62

63

64
65

66

Section C 4 of the Resolution: States should ensure that acts, which fall within the definition of
torture, based on article 1 of the UN Convention against Torture, are offences within their national legal
system.
Section C 9 of the Resolution: Circumstances such as state war, threat of war, internal political
instability or any public emergency, shall not be invoked as a justification of torture, cruel, inhuman or
degrading treatment or punishment.
Section C 10 of the Resolution: Notions such as necessity, national emergency, public order, and
order public shall be invoked as a justification of torture, cruel, inhuman or degrading treatment or
punishment.
Section C 11 of the Resolution: Superior orders shall never provide a justification or lawful excuse
for acts of torture, cruel, inhuman or degrading treatment or punishment.
Paragraph 18 of the Hypothetical Case.
Paragraph 19 of the Hypothetical Case.
Article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment: 1.Each State Party shall undertake to prevent in any territory
under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not
amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity. In
particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for
references to torture or references to other forms of cruel, inhuman or degrading treatment or
punishment.

14

territory which falls under the jurisdiction of the Government. This provision ensures
that the Government of Conchina can be held liable for the pain and suffering
experienced by Chilala during the period of his detention.
47. Based on the above mentioned arguments, the applicant requests a declaration from
the honourable court indicating a violation of article 5 of the African Charter and articles
1,2 and 16 of the Convention based on Chilalas forced feeding.

PRAYERS

The applicant respectfully requests the honourable court for the following:
I.

A declaration that the State of Conchina violated article 14 and 21 of the African
Charter in the implementation of the provisions of the Investment Act.

II.

A declaration that the State of Conchina violated article 22 of the African Charter
and article 2, 4, 6 and 8 of the AU Maputo Declaration on Agriculture and Food
Security in refusing to accept aid from the UPF.

III.

A declaration that the State of Conchina violated article 9 of the African Charter,
the 2001 Resolution on Freedom of Expression and article 19 of the ICCPR in
the conviction of Chilala under the Sedition Act.
15

IV.

A declaration that the State of Conchina violated the Dakar Declaration and
Recommendations, the Resolution on the Right to Recourse and Fair Trial and
article 14 of the ICCPR in the subsequent trial.

V.

A declaration that the forced feeding of Chilala violated article 5 of the African
Charter and articled 1, 2 and 16 of the Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment.

Respectfully submitted,
Agents for CCCC (Applicant)

16