Case discussion of Mornah v Benin and 7 Others: is the African Court on Human and Peoples’ Rights prevented from implementing the right of selfdetermination?

1 INTRODUCTION: SELF-DETERMINATION AND TERRITORIAL INTEGRITY

The right to self-determination is provided for in articles 1(2) and 55 of the United Nations (UN) Charter of 1945. The International Covenant on Civil and Political Rights (ICCPR)1 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)2 in their common article 1 ascribe to ‘all peoples’ the right to self-determination, equal ‘political status’, and a guarantee of ‘economic, social and cultural development’.3 Instruments setting up various UN entities also echo these rights. They are usually linked with the concept of ‘sovereignty’ and ‘territorial integrity’. Once self-determination, sovereignty and territorial integrity co-occur, a state is said to have achieved ‘independence’. An independent entity enjoys unfettered control of its territory. Such a territory is defined as a ‘state’ in international law because it can boast of a permanent population; a defined territory; a government, and has capacity to enter into relations with other states.4

The African Charter on Human and Peoples’ Rights (African Charter) provides for the right to self-determination in article 20, along with other rights and freedoms associated with it, in subsequent articles. The right to self-determination ‘has two interconnected aspects: internal and external’,5 and is concerned with the plight of dependent people seeking to break away from the boundaries set by erstwhile colonial entities. Anyangwe aptly elaborates on the internal and external elements, where he states that self-determination ‘is an enabling, collective human right for asserting claim to political autonomy within a state or to sovereign statehood’.6

By reaffirming the pledge to eradicate all forms of colonialism from Africa in its preamble, the African Charter must be read as implicitly including the eradication of similar acts of colonialism between African Union (AU) member states. The preamble emphasises that African states would honour the pledge

solemnly made in Article 2 of the said Charter to eradicate all forms of colonialism from Africa, to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights. 7

The right to self-determination guaranteed in articles 20 to 22 of the African Charter are not feasible without the assurance of sovereignty and territorial integrity. It is for this reason that political claims tend to be brought along with the right to enjoy the natural resources in the territory, as clarified by Anyangwe.

In view of these provisions of the African Charter, could the African Court on Human and Peoples’ Rights (Cour) be barred from interrogating questions touching on self-determination, sovereignty and territorial integrity? This question arose in the context of the Court’s decision in Mornah v Benin, Burkina Faso, Côte d’Ivoire, Ghana, Malawi, Mali, Tunisia, Tanzania. These states have ratified the African Court Protocol and made declarations under article 34(6) of the Protocol to the African Charter on the Establishment of an African Court on Human Peoples’ Rights (Court Protocol). Mornah brought a case against these states, alleging that when they, as sitting members of the AU Assembly of Heads of State and Government, in 2017 took the decision to admit Morocco to the AU, they failed to safeguard the sovereignty, independence and territorial integrity of the Sahrawi Arab Democratic Republic (SADR) and violated the rights of the Sahrawi people to self-determination.

Answering this question, the Court rightly asserted that as long as there were commissions or omissions that also evinced violations of human rights, it has jurisdiction to determine them.8 In fact, article 20(2) of the Charter provides that ‘colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community’. The right to self-determination is a fundamental right, without which there can be no dignity for a people who have a rightful claim to it. In addition, article 21(1) of the African Charter declares as follows:9 ‘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.’ Under article 21(3), states are exhorted to ‘exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity’. Article 22 goes on to assure that ‘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’. It further states that ‘States shall have the duty, individually or collectively, to ensure the exercise of the right to development’. It follows, therefore, that the Sahrawi Arab Democratic Republic (SADR) voluntarily contracted with Morocco to exploit its natural resources, even though doing so breaches the sovereign rights of the SADR.

The rights to self-determination, development and to a clean environment are interconnected, and have been portrayed as the pride of Africa and evidence of the progressive stance of Africa towards human rights development. In fact, Okafor and Dzah extol the African human rights system for bequeathing to the world the norms enshrined in the rights to self-determination, to environment and to development.10 To them, the African human rights system

has equipped diverse actors and rights systems with an enhanced toolbox, well beyond what usually is available in mainstream human rights praxis, for evolving norms and strategies for, and intervening in, contentious politico-legal affairs. The transformative force of the African human rights system thus is visible across key aspects of human rights law, especially in the way in which norms emerging from Africa socialise actors and their legal and policy choices and actions. Comprising treaty texts, protocols, declarations and resolutions as well as judicial and non-judicial processes, the African human rights system has enunciated, promoted and practised a significantly (even if only partly) organic African vision of rights, while still being responsive to the necessity for broader approaches to human rights.11

Robertson and Megrills reflect the above view with regards to the African Charter, stating that ‘the creation of this specifically African machinery represents an attempt to settle disputes on a regional basis without referring them to the Security Council, which is ... consistent with Articles 52 and 53 of the UN Charter’.12 For Africa to deserve such accolades, each organ of the system must maintain a steady tempo of engagements that dispel any shadow of doubt in the precedents they set. There can be no arbitrariness attributable to the decision-making process of the Court, nor should conclusions reached not become applicable to similar scenarios.

The Court Protocol spells out its jurisdiction in article 3, as follows:

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. ... In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.

It bears emphasizing that the right to self-determination is a Charter right and should not be made inferior to the general objectives of the AU. The Court must be able to pronounce on a right once parties approach it to do so. In exercising such a wide jurisdiction and in view of the above provisions, which were exhaustively argued before the Court in Mornah, and which the Court scrutinised in detail, the conclusions finally reached by the Court left some questions unanswered.

Even before the Court started operating, the African Commission on Human and Peoples’ Rights (Commission) has recognised that different forms of infringement of the right to self-determination persists in parts of Africa.13 In a case concerning the Anglophone Cameroonians, it stated that ‘post-colonial Africa has not been free of domination’, but added that contemporary domination does not constitute colonialism ‘in the classic sense’.14 This interpretation raises the query as to whether, if slavery currently occurs within a state, it should be ignored for not corresponding with the forms as slavery that used to be practised.15 Anyangwe decries the Commission’s interpretive approach on this issue:16

The exercise of the right of self-determination under the African Charter is constrained first by the equally important principle of territorial integrity, and second by the conservative and timorous interpretation of that norm by the African Commission.

In several cases, the Commission has refused to accede to claims for self-determination for fear of conflicting with the principle of territorial integrity, even though ‘in all these cases, political, (cultural as well, in Gumne), social and economic oppression or domination is additionally alleged’.17 The Commission has not through its pronouncements advanced political solutions, to placate the yearning of the peoples of Africa who were promised that right under the Charter, even as the right is ‘intertwined’ with the struggle for ‘decolonization’ and ‘independence’.18 Anyangwe maintains that the ‘territorial integrity’ which the Commission prefers to defer to, exists merely as a policy or directive ‘principle’ of the AU Constitutive Act, which it vows to protect in its article 3.19 It is not one of the AU’s central goals. For the purpose of this case discussion, it is taken as trite that an objective does not override an assured right.

For avoidance of doubt, article 3(b) of the AU Constitutive Act provides that the Union would ‘defend the sovereignty, territorial integrity and independence of its member states’. That is noble in itself, but the Constitutive Act also vows in article 3(h) to ‘promote and protect human and peoples’ rights in accordance with the African Charter ... and other relevant human rights instruments’. As between the SADR and Morocco, in the case under consideration, there are two sovereign states whose dispute on sovereignty and territorial integrity should not be allowed to continue to fester without a solution, making the AU appear to be a toothless bulldog. In playing its complementary role alongside the Commission, the Court must do better to fully achieve the objective of the Charter to ensure the self-determination of Africa’s peoples, something that the Commission has continuously failed to do. Besides, the Court has its work cut out for it as the supranational regional court on human rights. It must be seen to give proper directions that create clear precedents to deter future violations by states. Membership of the AU comes with a mutual duty to make concerted efforts towards achieving African unity. The situation in SADR is still continuing, long after foreign occupation of African states has become a matter of history. The Court should not, like the Commission, fail to face the thorny issue of self-determination head on. It should also align itself with the Commission’s decisions and appear to defer to the dominant power in that conflict.

Zewudie makes the point that

the AU has been heavily criticised for not living up to its promises as far as human rights are concerned. Despite the establishment of human rights mechanisms, the AU, as a collective of States, has played an inadequate role in supporting and encouraging them. Discrepancies between AU’s decisions and actions concerning its relation with the Commission led some scholars to conclude that the AU ‘does not wish to see the Commission to become more effective and forceful’. The AU has put inadequate effort in liberalising and democratising its members and in promoting human rights on the domestic level. It has also been observed to focus more on protecting leaders than the human rights of ordinary people. Constantly placing ‘key policy issues’ such as integration, peace and security and development at the centre of their discussions, leaders occasionally ignore grave human rights issues that warrant their special attention.20

2 BACKGROUND AND FACTS PRESENTED BY MORNAH

The applicant in this case is Bernard Anbataayela Mornah, a Ghanaian national and the national chairperson of a political party registered in Ghana. Mornah approached the Court to determine the international responsibility of the eight respondent states, who by their action of voting in favour of AU membership of Morocco, allegedly made themselves complicit in the violations of the rights of the Sahrawi people. The main violation of rights he complained of, is the continued occupation of the territory of the SADR by Morocco, which amounted to ‘violations of the human rights of the Sahrawi people’ and an ‘erosion of the sovereignty, territorial integrity and independence of Western Sahara’.21 The other alleged violation is that Morocco continues to exploit the natural resources of those areas under its occupation, against the rights and interests of the Sahrawi people.

The SADR had been colonised by Spain until February 1976, after which Morocco and Mauritania took over parts of its territory. The Sahrawi people resisted the occupation by the two states, resulting in Mauritania giving up its claim to any part of the country. However, Morocco remained an occupying power.22 Different from Morocco, the SADR was a founding member of the AU. Morocco withdrew from the OAU in 1984 after the SADR had been admitted as a member of the OAU.23 In 1992, the United Nations supervised a referendum on the independence of the SADR. Morocco scuttled that effort, by claiming that the electoral process was tantamount to secession. The bad blood between the two states continues to reverberate in international politics to this day. They remain pitted against each other, competing for the natural resources available in the territory of the SADR. As an erstwhile colonial power, Spain has in furtherance of its own economic interests maintained close ties with Morocco.24

The allegation that Morocco continues to exploit the abundant natural resources of the territory to the detriment of the Sahrawi people is an important aspect of the applicant’s case. Mornah also stated that in spite of Morocco being admitted to membership of the AU in 2017, the state had not shown any intention of relinquishing its occupation of the Sahrawi territory. He alleged that in spite of the AU’s recognition of Sahrawi as ‘the legitimate government in exile’ and the fact that ‘no less than eighty-four ... countries have accorded it diplomatic recognition’, parts of the country remained under Moroccan occupation.25 The applicant categorically called into question the act of the AU in unconditionally admitting Morocco as a member, stating that the action contradicted ‘the established practice with regard to admission of members’ to the AU (previously, the OAU). He recalled that apart from condemning illegal and unconstitutional change of governments, the OAU and AU had in the past, refused to admit colonial powers as members. Examples of these were South Africa, which only joined the OAU after the demise of the apartheid regime, and in recent times, Côte d’Ivoire, Niger, Burkina Faso and Egypt, which were sanctioned for the unconstitutional change of government through coups d’etat.

All the respondents have ratified the African Court Protocol and made declarations under article 34(6) of the Protocol, giving access to NGOs enjoying observer status with the Commission and individuals to bring cases against them directly to the Court.26 While some of the respondent states had withdrawn their declaration, the Court held that such withdrawal did not have retroactive effect or bearing on matters submitted to it prior to the withdrawal of the declarations. Such withdrawal would only come into effect after one year from the date the document for withdrawal had been deposited.27 The withdrawal of these declarations therefore had no effect on the Court’s exercise of jurisdiction. SADR and Mauritius applied to and were granted the right to join in the suit as interveners, and the African Union of Lawyers (PALU) joined as amicus curiae.28

3 THE COURT’S DECISION ON JURISDICTION AND ADMISSIBILITY

4 THE COURT’S DECISION ON THE MERITS

5 CRITIQUE AND RECOMMENDATIONS

The Court ought to have more strongly admonished the respondent states for their apparently tolerant disposition towards Morocco. The applicant was right to insist that these states should have protested by withholding their votes allowing for Morocco’s admission to the AU. The Court should have found applicable in the exercise of its inherent jurisdiction the customary international law precept of attribution and of acts that enabled the situation of violation. Such an approach would have captured justice as encapsulated in the preamble of the Charter, especially to the people of the SADR whose right to self-determination has been impeded for many years. Morocco might not have been a party to the case, but the evidence of the violations has long been a matter of judicial notice. In its finding in Mornah, the Court passed by an opportunity to contribute to the liberation of the SADR and its people from Morocco’s domination.

Based on the above analysis, it is my conclusion that the African Court is not barred from determining violations of human rights in claims related to sovereignty, territorial integrity and independence. The Court should in Mornah have adopted a more proactive stance and should have placed less ‘timorous’ reliance on the black letter of the law, which the judgments of the Commission has been criticised for.56 It is my firm view that the right to self-determination is a right that urgently needs to be made accessible in view of the state of agitation in various parts of Africa. The Court spoke from two sides of its mouth on the matter. On the one hand, it noted that the right was being infringed. On the other hand, it refused to accept that the actions of the respondents in welcoming into the community of African states a state at odds with their core common precepts could be interpreted as enabling violations by that state.

How did the fact that the respondent states voted in favour of Morocco not reflect their acceptance of the country’s already condemned adverse occupation of the territories of the SADR? How did the Court not see a causal link between the respondents’ votes (of confidence in Morocco) and the continuing exploitation of the natural resources of SADR by Morocco? Above all, how are the respondents demonstrating their adherence to the African Charter, which exhorts them in its preamble ‘to coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa and to promote international cooperation’?57 In spite of the heavy weather it made, dismissing the various objections to its jurisdiction, the Court’s decision appears at the end of the day, to be an exercise in futility.

Hopefully, the views canvassed in this case discussion may redirect the Court with regards to its interpretative role concerning the objectives of the African Charter. In addition to the upbeat views of Okafor and Dzah, referred to above, such roles have been attributed to the African human rights system as evidenced in the views expressed by Solomon Dersso, a former Chairperson of the Commission, on the occasion of the Charter’s 40 years of existence in 2021.58 He identified the primacy of ‘piercing the veil of sovereignty’ as the main achievement of the Charter through developing the African human rights system. According to him,

in embracing human rights and extending their scope and articulation, the African Charter ended the debate about the legitimacy of human rights in Africa. This is of particular importance as the African Charter opens further avenues for the recognition and articulation of human rights both at the continental and national levels. The Charter inspired the adoption of various human rights and democracy and governance norms within the OAU and its successor, the AU. This also accounts for the huge space given to human rights in the AU’s founding treaty, the Constitutive Act. The African Charter and the various other human rights instruments that succeeded it served as a source of inspiration in the elaboration of national bills of rights and various laws giving effect to specific human rights.59

The above statement communicates the need for a broader approach, rather than a restrictive one, in the Court’s interpretation of the Charter rights. One of the recurring challenges in the African human rights system is the lack of state compliance. My view is that it may well be this state of affairs that accounted for the Court stepping back on holding the respondents partly responsible, thus enabling Morocco’s violations against the SADR. In other words, the apprehension that the respondents would have ignored the judgment with impunity, could well have played a role in the Court arriving at the decisions it made.

Besides, this writer has noted that the demarcation of the Court’s powers, relative to the other organs of the AU, is often blurred, thus chipping away at the claim to being the supranational court on human rights in Africa. The respondents relied heavily on this weakness to dare the Court to accuse them of wrongful acts enabling rights violation. This writer is of the view, further, that to liberate itself from impending obscurity, the Court must, without fear or favour, stand its ground by delivering judgments that clarify and grow its autonomous jurisprudence.

The African Court possesses unique characteristics which it must take advantage of, going by the view of Nyman-Metcalf and Papageorgiou,60 who state that in comparison with other regional courts of human rights, the African human rights system

emphasises the collective rights of peoples as well as those of individuals and it is the strongest on developing actio popularis to permit groups to support protection of human rights.

More individuals and CSOs like the applicant in the present case, ought to be encouraged to approach the Court on similar matters of public interest. It is bad enough that article 34(6) of the Court Protocol allows member states to opt in and opt out of the Court’s jurisdiction at will. This exerts a huge restraint on seizing the Court’s jurisdiction. To further burden the system with lacklustre and unconvincing reasoning portends badly for the development of the Court’s jurisprudence. In fact, Trésor Makunya describes the effect of article 34(6) of the Protocol as a ‘haemorrhagic trend’ which if allowed to continue, would result in loss of opportunities for individuals ‘to effectively engage the Court and that the ability of the latter to serve as a regional arbitrator of human rights violations will be significantly undermined’.61

In addition, Makunya reviewed several cases in his article, and found that the Court has shown little rigour in the pronouncements it has been making. For instance, in respect of the XYZ (010) case against Benin, he criticised the Court for arriving at the conclusion that article 22(1) of the Charter was breached based on a ‘single sentence-paragraph’.62 According to him, if the Court had consulted the jurisprudence of the Commission, its reasoning would have been strengthened by placing reliance on precedents such as the following:63

In Institute for Human Rights and Development in Africa v Democratic Republic of Congo the Commission considered that the right to development under article 22 of the African Charter was both an individual and a collective right. In Endorois it held that the right to development was ‘both constitutive and instrumental, or useful as both a means and an end’.

Conscious of its role in the promotion of human rights in Africa, the African Court has reached out on several occasions, to seek the collaboration of stakeholders to contribute to improving the impact of its judgments on the continent. It is in that spirit that this case discussion calls on the Court to pay attention to these reviews. The Court must aim to prove itself as a supranational body which parties may resort to for refuge against violations of rights. Africa is badly in need of an even-handed arbiter to strengthen the integration and development of members of the AU. It goes without saying that a perpetual state of conflict between states will not augur well for meaningful development.

A strong recommendation was made in the communique that came out of the Conference of the African Court in November 2021,64 namely, for an amendment to the Court Protocol to remove article 34(6), so that access to the Court would no longer be impeded at the will of state parties. It is a small gain that the Court, as already stated above, can continue to hear cases already before it, even if a state withdrew its article 34(6) declaration. Of course, the removal of the restriction will no doubt result in an influx of cases to the Court. The AU may then have to consider amending the Court’s enabling instruments to increase the number of judges; and possibly, convert the tenure of judges from part time to full time, as has happened with its European counterpart. Considerations of the resulting increase in funding need not be overwhelming if member states begin to demonstrate the political will to achieve the Charter objectives. Besides, the amicable settlement option in the Protocol, if activated, should be useful in dealing with the increased load on the Court.

Whatever the anticipated difficulties, that amendment must now be seen as a sine qua non for the development of human rights in Africa. One must not, however, ignore the positive recorded fact that in Mornah two states requested to join in a matter in the interest of the public, albeit one (the SADR) with a very direct interest. However, the intervention of Mauritius was altruistic. Mauritius’s intervention is in line with both the principles of the Charter and other settled international customary law that make the question of the right to self-determination the concern of all states. One hopes that with similar interventions human rights in Africa will continue to develop with the attendant benefit of developments in other areas of governance. The AU should be wary in the face of ongoing skirmishes all over the world, not least of which is the ongoing Israeli-Palestinian war, to be alert to such eventualities between its members.