The notion of fairness in reparation litigation before the African Court on Human and Peoples’ Rights

2.1 In the African Charter

The drafters of the African Charter were concerned about the notion of fairness and included provisions in this instrument to reflect its importance. Even if the term ‘fairness’ does not appear expressly in the Charter, certain provisions nevertheless relate to this notion. Every person is equal before the law. This equality before the law extends to equal protection of the law.25 In addition, article 7 provides guarantees of a fair trial for all persons subject to the law.26 In other words, the concept of fairness is contained in the Charter, albeit implicitly. The legal compass for the analysis that follows will therefore be the provisions of the Charter. Although the Charter implicitly takes account of the concept of fairness, it must be said that it is in the African Court Protocol that it is actually highlighted.

2.2 In the African Court Protocol

The concept of fairness is governed by article 27(1) of the African Court Protocol. In contentious matters, the African Court applies the Protocol and any other relevant human rights instrument. Clearly, to determine the notion of fairness in a trial, the Court refers to this provision to rule. In practice, it has done so in a number of cases, which we will examine below. In any event, article 27(1) states: ‘If the Court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.’27 This provision will therefore be used to analyse the case law on fairness. The Court sometimes applies the concept of fairness strictly.

3.1 The importance of examining the evidence

In reparation cases before the Court, evidence plays a predominant role, especially when it comes to ruling in fairness. Evidence consists of elements used to support a claim.28 Article 26(2) of the African Court Protocol gives the Court the latitude to accept the evidence it deems appropriate on which to base its decisions.29 The international judges’ assessment of evidence in human rights cases is less rigorous. This was observed in the judgment of the International Court of Justice (ICJ).30 Similarly, the Inter-American Court in Velasquez Rodriguez v Honduras insisted that the evidence required should be less formal than that required before the domestic courts.31 On the other hand, the African Court adopts an approach contrary to that of counterpart courts. This assertion is confirmed by legal doctrine, which considers that the assessment made by the African Court does not depart from the rules of evidence before international courts.32 While the standard of proof is lower in the judgments of the international courts cited above, it is higher in the case law of the African Court. In fact, the Arusha Court positions itself as a body that reviews the evidence in a case. In the Abubakari v Tanzania (Reparations) case, it stated:33

As regards, in particular, the evidence relied on to convict the applicant, the Court considers that it was not for it to decide on its value for the purposes of examining that conviction. However, in the Court’s view, there is nothing to prevent it from examining that evidence in the context of the case before it in order to ascertain generally whether the national court’s examination of that evidence complied with the requirements of a fair trial within the meaning of article 7 of the Charter in particular.

This approach of the Court, which requires a thorough verification of the evidence provided by one or other of the parties, is part of the search for certainty or veracity of the parties’ allegations. In any event, the parties must provide standards of ‘proof beyond reasonable doubt’.34 In this case, for example, it found the evidence provided by the defendant to be insufficient.35 Lack of evidence or insufficient evidence from one of the parties to the proceedings is likely to affect the fairness of the trial. While the principle of actori incumbit probatio, which is common to all litigation, is applied in the various jurisdictions of international human rights law in the absence of formalism and the judge’s freedom to assess the elements of proof.36 On the other hand, the Court has limited room for manoeuvre. The Arusha Court cannot judge in fairness on the basis of mere declarations. In Mugesera v Rwanda it stated that ‘[g]eneral statements that a right has been violated are not enough. Greater justification is required.’37

In addition, it is up to the party whose right has been violated to provide proof. This is what the Court decided in Abubakari v Tanzania, in which it ruled that ‘the burden of proof lies with the party claiming to have been the victim of discriminatory treatment’.38 With regard to the assessment of quantum, a twofold observation could be made about the burden of proof. On the one hand, the Court is flexible when dealing with victims whose material or moral loss has previously been established. In Onyango Nganyi & Others v Tanzania the Court held that ‘[t]he presentation of a business licence and delivery notes constitutes proof that a business existed and was in operation. However, these documents do not provide an exhaustive and detailed account of the income generated to justify the amount claimed.’39

In this case, the Court awarded the victim US $2 000 by way of compensation for the partial or incomplete proof of his allegations, whereas he was claiming US $288 889 for material damage.40 The Court’s case law is remarkably consistent with regard to claimants’ unjustified claims for material damage. In its jurisprudence, the Court requires in virtually every case that the claimants provide material evidence in relation to the damage they have suffered, failing which the claims are rejected. This means that when the evidence is provided, the Arusha Court judges in fairness by awarding direct victims compensatory costs for material loss. This is what it did in the case of Ingabire Victoire Umuhoza v Rwanda by awarding the full amount of 230 000 Rwandan francs requested by the applicant for the administrative handling of her legal case.41 It follows that evidence is inherent in the Court’s equitable judgment. It is for this reason that in its jurisprudence fairness has a substantive or procedural character.

3.2 The substantive and procedural nature of fairness

In African human rights law, fairness can be both substantive and procedural. With regard to the former, it refers to the decision itself and includes compliance with the relevant rules (legislation, policy, standards of practice) and consideration of individual circumstances in order to achieve a result that is fair to the parties.42 From a substantive standpoint, the judge examines the nature, purpose and effects of an act performed by the lower decision-making bodies in order to determine whether it is fair. Here, the Court undertakes an exercise aimed at ascertaining the content of the legal arguments put forward by the parties in order to make a substantive finding. This is what emerges from its judgments in Onyachi and Njoka v Tanzania43 and Abubakari.44 In the first case, the applicants argued that their right to be presumed innocent had not been respected under article 7(1) of the African Charter because of their defence of alibi, which had been arbitrarily rejected by the Court of Appeal and the High Court.45 In addition, they argued that evidence had been submitted that they had never been in Tanzania on the day and at the time the crime was committed. The Court noted that an alibi is an essential element with consequences for fairness, provided that it is supported by a witness. The Court, therefore, recalls the following:46

His findings above that the evidence of the sole prosecution witness PW8 was obtained following a flawed line-up. Accordingly, the conviction of the applicants solely on the basis of the evidence of the sole witness PW8 and the unsubstantiated allegations that the applicants had used unlawful means to enter Tanzania violated the applicants’ right to a defence guaranteed by article 7(1)(c) of the Charter and thus constituted a violation of the applicants’ right to a fair trial.

The Court’s reasoning is based on respect for the right to a defence enshrined in article 7 of the African Charter, which is the only provision of the Charter devoted to a fair trial.47 With regard to the procedural dimension of fairness, the Court emphasises the following in Abubakari, where the Court held that the defence of alibi is established as a prerequisite for the right to a fair trial. It held:48

Where an alibi is established with certainty, it can be decisive on the issue of the guilt of the person prosecuted. The alibi in the present case was all the more important because the applicants’ indictment was based on the statements of a single witness, and no identification parade had been held.

In this case, the applicants were claiming procedural fairness, which unfortunately is not included in the list of fair trial rights contained in article 7(1)(c) of the African Charter. In this case, the African Court should have relied on other alternatives relating to general law, such as article 14 of the International Covenant on Civil and Political Rights (ICCPR)49 or the Guidelines and Principles on the Right to a Fair Trial.50 An analysis of the Court’s case law shows that it favours the reasoning of the procedural nature of fairness based on the effects of procedural irregularities carried out by the judicial bodies of the African states, even though it has refused to examine the facts to determine whether there had been a miscarriage of justice. These requirements of the Court express the idea that ‘[f]or a system of rules to be fair, it must be firmly rooted in a framework of formal requirements about how rules are made, interpreted, and applied’.51 This was the conclusion it reached in Onyachi, where it stated in this context that ‘the Court has no option but to conclude that the procedural irregularities in the identification parade affected the fairness of the trial and of the applicants’ conviction’.52

On the other hand, in Guehi v Tanzania53 the Court rejected the applicant’s request to set aside the conviction and sentence imposed on him and to order his release.54 To summarise the facts, the applicant, an Ivorian citizen, was convicted and sentenced to death for the murder of his wife. He lodged an application alleging a violation of his rights as a result of his detention without trial. The Court found that certain fair trial guarantees had been violated, but that certain remedies sought by the applicant, such as his release, were not justified.55 In order to justify its reply, the Court lists the conditions under which the applicant’s release may be ordered, in particular in special and compelling circumstances, which is likely to broaden its powers.56 In addition, the Court refers to the proportionality between the seriousness of the violation and the measure taken, which should be taken into account with a view to preserving fairness and preventing double jeopardy.57 Finally, it concluded that the violations had no impact on the proceedings before the courts that could lead to an arbitrary judgment.58 This reasoning is supported by Possi, who expressed the following view: ‘Essentially, fairness in the administration of justice accommodates the rule of law and the maintenance of public confidence in the legal system. Significantly, fair trial norms facilitate due legal process aimed at preventing unlawful and arbitrary curtailment of individual rights.’59

However, just as the judge can apply equity strictly in the exercise of his or her office, he or she can also moderate his strict rules.

4.1 Remedial measures

In its report on the work of its 31st session on state succession in respect of matters other than treaties, the International Law Commission took a position that fairness is

more a balancing factor, a corrective designed to preserve the reasonableness of the connection between movable state property and the territory. Fairness allows for a more judicious interpretation of the concept of property linked to the activity of the Predecessor State in relation to the territory and gives it an acceptable meaning.60

Transposed to the field of international human rights law, the corrective nature of fairness should allow the judge to interpret it in order to avoid a considerable imbalance between the violations alleged by the victim and the reparation for the harm suffered. In African human rights law, it happens that when the applicant demonstrates the existence of an abuse or injustice, the African Court can order compensation for the harm suffered. The desire to correct injustice without undermining the rights of applicants is a constant concern for the African Court. Even if corrective justice is fundamentally a matter of climate justice,61 it is relevant to this research. The principle of corrective justice as it is interpreted here is that reparation can be just if it attempts to re-establish an equality of fundamental rights between the victim and the perpetrator of the violation. This assertion is defended by Aristotle, who said that the ‘reason is that the law is always a general statement, and yet there are cases which it is not possible to cover in a general statement. This is the essential nature of fairness: it corrects the law when it is imperfect because of its generality.’62 To speak of corrective justice means for the judge, by means of ethics, to re-establish arithmetical equality without regard to persons but proportional to the gains and losses of the parties to a dispute.63 Thus, the Court proceeds by a proportional evaluation of the gains and losses of the applicants when it considers that one of them goes beyond what can be reasonable. This reasoning of the African Court is reflected in Mugesera v Rwanda.64

In this case the applicant applied to the Arusha Court for a finding that his conditions of detention had been violated. He argued that the alleged violations had caused him atrocious psychological suffering. He therefore asked the Court to order the respondent state to pay him US $1 095 000 for the six years he spent in the respondent state’s judicial system.65 In response, while recalling that in the case of violations of the damage alleged by the applicant, the general standard applicable is that of lump sums,66 the Court considered that the assessment made by the victim was excessive and decided to award him on the basis of fairness compensation for non-pecuniary damage of 10 million Rwandan francs67 or approximately US $8 500, that is, approximately 0,77 per cent of the amount claimed. In ruling that the applicant’s claim was excessive, the African Court based its decision on the totality of the violations of the applicant’s rights in order to rule ultra petita and proportionally correct the victim’s gains and suffering. However, the Court did not specify what constituted lump sums for non-pecuniary damage. On the other hand, the Court adopted the same reasoning but sorted out the rights violated by the respondent state in the Abubakari case, and it avoided certain rights of the applicant.68

In the Abubakari case the applicant alleged that he had been a victim of the rights enshrined in articles 4, 5 and 18(1) of the African Charter and asked the Court to award him the sum of US $261 111 by way of non-pecuniary damage as a direct victim. He also asked the Court to take into account the duration of his imprisonment, namely, 19 years. The respondent state, for its part, refuted the allegations made against it.69 In response, the Court noted that the rights violated by the respondent state related solely to the applicant’s right to a fair trial and his right to a defence.70 It added that the claimant’s request was excessive and decided to award him, on the basis of fairness, the sum of 2 000 000 Tanzanian shillings by way of compensation for non-pecuniary damage.71 Once again, the Court demonstrated its rationality in applying the principle of fairness. In comparison with the Onyango Nganyi case, the applicants asked the Court to award reparations to the indirect victims for the emotional suffering they endured as a result of the violation and the harm they suffered.72 Despite the respondent state’s opposition, the Court, while basing itself on the evidence, considered that ‘the amount to be awarded to indirect victims by way of reparation must be proportional to the damage suffered by direct victims. It therefore considered that the amounts claimed by the applicants for indirect victims were exaggerated.’73 It concluded that

the claimants and beneficiaries do not allege a differentiated level of prejudice and in the interests of fairness awards the following reparations: one thousand (1 000) US dollars to each of the wives, eight hundred (800) dollars to each of the children and five hundred (500) US dollars to each of the fathers and mothers.74

However, there was a lack of reasoning on the part of the Court with regard to the assessment of the amounts of reparation, an issue that will be developed further below.

Generally speaking, the Court’s case law is intended to act as balancing role, that is, to satisfy the parties to the proceedings on an equal basis, ensuring in some way that the victim’s claim does not exceed or is proportionate to the respondent state’s violations, with a view to educating the victim in the culture of fairness or reasonableness. In any event, the principle of corrective justice is particularly important for the Court in determining the forms of damage.75 In any event, the Court sometimes bases their rulings on the interests of the parties.

4.2 Balancing the interests of the various parties

In its role of moralising and humananising African human rights law,76 the Court integrates a balance between the interests of the parties into its decision. At the end of an analysis that incorporates both subjective and objective evidence, as detailed above, the Court’s interpretation of article 27(1) of the African Court Protocol is not to say whether or not an act was unjust, but to say whether or not there was a violation of a right. The Court can do this through the discretionary power conferred on it by article 27(1) of the Protocol, which requires it to take ‘appropriate measures’. This power is relevant because there would be an infinite number of principles that the Court could have followed. As a ‘judge of fairness’, the African Court may decide to follow its own reasoning or to respond to the request of one of the parties to the proceedings. In short, the Court can decide in a discretionary manner or take into account the interests of the parties.

True fairness consists of ‘balancing, as far as possible, the considerations of fairness invoked by both parties’.77 Choosing to take the interests of the parties into account would thus make it possible to achieve an equitable result. This was the reasoning developed by the International Court of Justice in Tunisia v Libya, in which the Court defined its task as the obligation to ‘weigh carefully the various considerations which it considers relevant, so as to arrive at an equitable result’.78

However, in the case law of the African Court, the balancing of the interests of the various parties can be assessed through two arguments. Thus, when the African Court reimburses the costs of proceedings and determines the amount of aid for legal representation and assistance, it is required to report on.

On the first point, the judge endeavours to rule with the aim of re-establishing the ex-post equality of the parties. Thus, the Court may grant reimbursement of travel and subsistence expenses for the applicants’ representatives at its seat for the proper conduct of the trial, as it did in the case of the Beneficiaries of late Norbert Zongo.79 In this case the Court found that the claimants were seeking compensation for both the non-material damage suffered by them and the material damage suffered by MBDHP.80 To justify its reasoning, the African Court noted that damages can take several forms under article 34 of the draft articles of the ILC.81 However, the claimant will not be entitled to reparation for amounts justified by evidence.82 The Court is therefore right to adopt a ‘maternalist’ approach to the proceedings, taking into account the interests of the parties. On another front, the Court grants reimbursement of lawyers’ fees, even though the principle is that each party bears its own costs, unless the Court decides otherwise.83 It may, however, allow the applicant to claim reimbursement of costs by way of reparation. This was confirmed in Mtikila v Tanzania, where the Court stated:84

Costs and expenses are part of the concept of reparation. Thus, when liability is established in a declaratory judgment, the Court may order the state to compensate the victim for the costs and expenses incurred in bringing actions to obtain justice at national and international level.

On the second point, the Court rules in fairness on the basis of the interests of the parties in granting aid for representation and legal aid as a remedy. While article 10(2) of the African Court Protocol states that legal representation or assistance may be provided free of charge where the interests of justice so require,85 there is a mitigating factor in article 31 of the Rules of Court. This provision makes the granting of aid for representation conditional on the financial resources available.86 In its jurisprudential approach, the Court is fastidious in granting aid for legal representation and assistance. In Cheusi v Tanzania87 the Court, basing itself on the seriousness of the offence committed by the applicant, notes:88

It appeared from the file that the applicant had been charged with a serious offence punishable by a heavy custodial sentence of at least thirty years. Moreover, the case involved eight prosecution witnesses, two defence witnesses and five exhibits, reflecting the complexity of the issue. In the circumstances, it was clear that the interests of justice required that free legal assistance be provided to the applicant, in order to ensure fairness at first instance and on appeal.

In other words, legal aid should be granted for the entire duration of the proceedings. Since the applicant did not receive legal aid at first instance, the Court is entitled to conclude that the respondent state violated the right to legal aid guaranteed by article 7(1)(c) of the African Charter and article 14(3)(b) of ICCPR.89 However, in Mugesera the Court recognised that the applicant’s right to justice had not been violated by the respondent state.90 In this case, the applicant claimed that his lawyer had been convicted of unreasonably delaying the trial.91 Thus, the Court notes that states may impose sanctions on lawyers who violate professional or ethical obligations in accordance with the guidelines and principles on the right to a fair trial and legal aid in Africa.92 From the above, the Court balances interests while ensuring that they do not violate human rights standards. However, concerns arise from the judge’s application of fairness.