The judicial function of the African Court on Human and Peoples’ Rights in default judgments: the developments set forth in the Léon Mugesera case

3.1 Personal jurisdiction

On the matter of jurisdiction, the African Court had to ascertain whether it enjoyed personal jurisdiction with regard to the respondent state. In 2016, Rwanda withdrew its declaration under article 34(6) of the Protocol to the African Charter8 accepting the African Court’s jurisdiction to receive applications from individuals and non-governmental organisations (NGOs).9 In line with Ingabire Victoire Umuhoza v Republic of Rwanda,10 the African Court confirmed that the declaration would remain in effect until one year after the withdrawal. In this instance, the application was filed one day before this period expired and, therefore, the African Court proceeded with deciding the case.11 In light of Rwanda’s non-appearance, the African Court decided to render a judgment in default.12

3.2 Merits of the case

As far as the right to a fair trial is concerned, Mugesera claimed violations of the right to defence, the right to legal aid and the right to be heard by an independent and impartial court. The African Court dismissed most of these claims. The applicant complained that he had not been allowed to stand trial in a language of his choice, in violation of his right to defence under article 7(1)(a) of the African Charter. He argued that, although French is one of Rwanda’s three official languages, the trial was held in Kinyarwanda, a language that his counsel did not speak. His complaint was dismissed since he had not demonstrated that an interpreter had been requested and a member of his team of counsels was a Rwandan national.13 With respect to Mugesera’s submission that his right to legal aid had been breached, the African Court held that the interests of justice did not require free legal representation in this instance. Mugesera may have been accused of a serious crime (genocide) which is punishable by life imprisonment, but he did not prove that he could not afford a lawyer of his choice. The Court noted that, in addition to one lawyer from Rwanda, the applicant was represented by two lawyers of foreign origin.14

Nonetheless, the African Court found that certain allegations pertaining to the right to a fair trial were substantiated. The applicant submitted that he was not fully informed of the charges brought against him. The public prosecutor had declined to provide him with the information necessary to prepare his defence and the High Court Chamber for International Crimes had refused to hear his arguments and witnesses. The African Court found that these allegations were proven by the applicant’s letter addressed to the Attorney General, in which he highlighted the difficulties he faced in preparing his defence. A breach of article 7(1)(a) of the African Charter was declared, even though it is not entirely clear from the African Court’s reasoning how this letter proved said allegations.15

Mugesera also raised a complaint concerning the right to be heard by an independent and impartial court. He alleged that the High Court Chamber for International Crimes was neither independent nor impartial, as per the requirements of articles 7(1)(d) & 26 of the African Charter. Two years after the beginning of the trial, when most of the evidence had already been presented, one of the members sitting in the High Court Chamber was replaced by a new judge. The applicant argued that this replacement was driven by political interference. In support of his claims, he invoked a statement by the former Minister of Justice that the applicant would not enjoy a fair trial and he cited reports by intergovernmental and non-governmental organisations raising concerns about the independence and impartiality of the Rwandan judiciary.16 The African Court found that the submissions lacked substantiation; the replacement of a judge did not in itself constitute a violation of the independence or impartiality of a court.17 Moreover, the reports that Mugesera submitted made general assessments about Rwandan courts without establishing evidence for the circumstances of his own trial.18 However, Judge Ben Achour, in his dissenting opinion attached to the majority’s judgment, expressed the view that the majority had not sufficiently examined the appearance of partiality in the Rwandan courts as a possible violation of the right to a fair trial.19 The safeguard of the impartiality of courts concerns the perception of bias generated in the eyes not only of the party concerned but also of any reasonable observer.20 Judge Ben Achour also submitted that the majority had not placed appropriate weight on the evidentiary value of international reports and views by inter-governmental and non-governmental organisations.21

The remainder of Mugesera’s claims concerned his conditions of detention. The complaints pertained to the prohibition of torture, cruel, inhuman and degrading treatment (article 5 of the African Charter), the right to physical and mental integrity (article 4 of the African Charter) and the right to family (article 18(1) of the African Charter). The African Court held that Rwanda had violated article 5 of the African Charter concerning human dignity on account of death threats made by prison officials, limited access to a doctor and medication, no provision of an orthopaedic pillow, deprivation of adequate food (Mugesera’s fruit-based and cholesterol-free diet was not respected) and obstacles to contact his family and lawyers. Other claims were dismissed as unfounded (for example, the prison’s repeated broadcasting of his 1992 speech or the inclusion of his name on the list of persons to be executed).22

The Court also found that these detention conditions were not in line with Rwanda’s obligations under article 4 of the African Charter concerning the right to physical and mental integrity. Unlike other human rights treaties, the African Charter establishes an explicit link between the right to life and the integrity of a human being. The right to life under article 4 is understood in its physical sense and as a right to a decent existence.23 The Court’s view was that Mugesera’s detention circumstances had violated both its literal right to life, since they were likely to cause his death, and his right to a dignified life as a prisoner, especially given his vulnerable status (being elderly and ill).24

Finally, the African Court declared a breach of the right to family under article 18(1) of the African Charter on account of the failure of the prison authorities to provide the applicant with the statutory means to communicate with his family. The Court noted that it was not apparent from the record why the maximum duration of communications between the applicant and his family was set at ten minutes.25

The violation of articles 4, 5 and 18(1) of the African Charter was substantiated on the basis of medical reports submitted by Mugesera and a series of letters that he had sent to state authorities.26 The question of whether this evidence was sufficient to satisfy the Court that the allegations were well-founded will be discussed below.

4.1 Applying the requirements for default judgments: The African Court’s practice until Léon Mugesera

In September 2020 the African Court revised its Rules of Procedure,41 including the provision concerning the default process (rule 63).42 However, the rule applicable to cases decided prior to Léon Mugesera was former rule 55. This subsection focuses on the requirements of former rule 55 so as to arrive at a critical assessment of the Court’s practice until Léon Mugesera and thus shed light on the revised rule applied in this case in subsections 4.2 and 4.3.

According to former rule 55: ‘Whenever a party does not appear before the Court, or fails to defend its case, the Court may, on the application of the other party, pass judgment in default’. Moreover, the Court ‘shall satisfy itself that it has jurisdiction in the case, and that the application is admissible and well-founded in fact and in law’.43 Consequently, the African Court could not decide on its own motion whether to render a judgment in default; the other party to the dispute had to request it. It is interesting to note that this rule departed from equivalent provisions in the Rules of Procedure of the other two international human rights courts, the ECtHR and the IACtHR. In particular, the ECtHR and IACtHR can decide to render a judgment in default on their own motion, without a request from the other party.44

Rwanda’s first instance of non-appearance was in Ingabire Victoire Umuhoza. In this case, Rwanda had already informed the Court of its response to the application before notifying it of its withdrawal from the African Court’s jurisdiction. Following the notification, Rwanda submitted a preliminary objection arguing that its withdrawal was effective immediately and so the Court had no jurisdiction to decide the case. The Court held that the withdrawal could not be applied to the application retroactively and that therefore it had jurisdiction.45 From this point on, Rwanda stopped participating in the proceedings of this case (and all subsequent cases).46 Yet, the Court neither held that it would render a judgment in default nor applied former rule 55 as a basis to this effect.47 Instead, it decided the case on its merits by relying, in many parts of its judgment, upon Rwanda’s initial response to the application.48

In a series of subsequent rulings concerning Rwanda in 2019-2020, the African Court applied former rule 55 and gave judgments in default. However, in doing so, the Court disregarded the stipulation that it may pass judgment in default only upon the request of the other party. Instead, it followed the default procedure, despite the fact that the applicant had not made any such request.49 Judge Bensaoula Chafika criticised the majority for ignoring the conditions of former rule 55 without any justification.50 In subsequent cases, the Court acknowledged that ‘it should, in principle, have given a judgment in default only at the request of the Applicant’ but considered that ‘in view of the proper administration of justice, the decision to rule by default falls within its judicial discretion’.51 There was no explanation, however, of why the judgments served the interests of justice or how it was possible for the Court to exercise judicial discretion on a matter that it did not in fact enjoy unless the applicant had requested a default judgment.52

4.2 The 2020 revision of the requirements to give a default judgment and its application in Léon Mugesera

Against this background, in 2020 the Court revised former rule 55 by making three changes.53 First, the now-revised rule 63 prescribes that the Court may enter a decision in default on its own motion. This amendment entails that an applicant’s request to that effect is no longer a requirement aligning the African Court’s Rules of Procedure with the respective rules of the ECtHR and IACtHR. The Léon Mugesera case was the first opportunity for the Court to apply new rule 63. The applicant had not requested a judgment in default but the revised rule granted the Court the power to decide on its own motion. The Court proceeded with deciding the case after confirming that the defaulting party (Rwanda) had been duly notified.54

Second, curiously, the Court decided to delete paragraph 2 of former rule 55, which provided the obligation to ‘satisfy itself that it has jurisdiction in the case, and that the application is admissible and well-founded in fact and in law’. The rationale for purposefully omitting this provision from the text of revised rule 63 is unclear and raises the question of whether the Court is still under this obligation. It is argued that irrespective of whether this obligation is expressly incorporated in the statute or Rules of Procedure of an international court, it is still incumbent upon that court, pursuant to its judicial function, to determine whether claims are well-founded in fact and in law.55 The obligation to ascertain whether a claim is well-founded in law, independently of the parties’ submissions, stems from the principle jura novit curia. An international court is not solely dependent on the arguments of the parties before it with respect to the applicable law.56 As to the facts of a case, in principle, an international court is not bound to confine its consideration to the material formally submitted to it by the parties (although it may not be possible for a court to examine the accuracy of the facts in all of their detail).

The norms governing the functioning of international courts and/or their respective judicial practice strengthen this argument. Article 53 of the statute of the International Court of Justice (ICJ) reads that it ‘must ... satisfy itself, not only that it has jurisdiction ... but also that the claim is well-founded in fact and law’.57 In contrast, international human rights courts have less concrete requirements on paper for rendering a judgment in default: as far as the ECtHR is concerned, the default procedure needs to be ‘consistent with the proper administration of justice’,58 while the IACtHR needs to ‘take the measures necessary to conduct the proceedings to their completion’.59 Despite the unclarity of these provisions, the IACtHR specifically affirms in its case law that it must satisfy itself that claims are well-founded in fact and law.60 Therefore, even if the African Court has removed the obligation from its Rules of Procedure, it is still under the obligation to ascertain whether the applicant’s claims are well-founded. This was also confirmed in Léon Mugesera, when the Court restated that it needed to determine ‘whether the Applicant’s claims are founded in fact and in law’.61

The third change to the provision on default judgments was the introduction of a remedy for the defaulting party, which may now apply to set aside a decision entered in default. This is a novel provision in international dispute settlement.62 It may be that it is an attempt by the Court to counterbalance its extended power to render a judgment in default on its own motion by providing a remedy to the defaulting party.63 The defaulting party needs to ‘show good reason’ in its application for setting the judgment aside, although there are no criteria for what qualifies as good reason.64 The application needs to be submitted within one year from the judgment notification date and the Court must notify the other party, giving it thirty days to submit written observations. It remains to be seen whether non-appearing parties will use this remedy in the future.

4.3 Were Mugesera’s claims well-founded in fact? The problematic assessment of evidence

The non-appearance of a party has an adverse impact on the sound administration of justice and creates challenges for an international court in fulfilling its judicial function.65 Such challenges manifest themselves prominently when establishing disputed facts, since the non-appearing party forfeits the opportunity to submit evidence and arguments in support of its own case.66

Difficulties concerning evidence and the establishment of facts were also present in Léon Mugesera. The African Court declared a violation of articles 4, 5, 7 and 18(1) of the African Charter on the basis of medical reports concerning the applicant’s health and a series of letters that he had sent to state authorities complaining of the circumstances of his trial and detention.67 This is arguably circumstantial evidence raising the issue of whether it should have been deemed sufficient to satisfy the Court that the allegations were well-founded in fact.68 This is for two reasons. First, it is doubtful whether the material submitted by the applicant constituted convincing prima facie evidence meeting the standard of proof. Second, the evidentiary weight placed upon certain inferences appears to be misguided. It is also to be regretted that the Court missed the opportunity to explore, on its own motion, the possibility of gaining evidence by other means.

One should start by clarifying how the African Court allocated the standard of proof and burden of evidence. The African Court’s (revised) Rules of Procedure remain silent on whether a different standard of proof is to be applied in cases of non-appearance. In the absence of prescribing a different standard, the regular standard of proof applies. In contrast, the ECtHR and the IACtHR enjoy discretion to apply a lower standard of proof by introducing a presumption against the non-appearing party.69 The ECtHR ‘may draw such inferences as it deems appropriate’,70 and the IACtHR ‘may consider those facts that have not been expressly denied and those claims that have not been expressly controverted [by the state] as accepted’.71 Given the absence of a specific provision in the African Court’s (revised) Rules of Procedure on whether a different standard of proof is to be applied in cases of non-appearance, it is reasonable to conclude that the regular standard of proof applies. Consequently, the African Court, pursuant to its Rules of Procedure, does not enjoy the discretion that the IACtHR or the ECtHR enjoy. Moreover, the fact that this point was not included in the recent revision of the rule on default judgments strongly suggests that the Court did not find it necessary to set out a deviating from the regular standard of proof position in a way similar to the rules of procedures of the ECtHR and IACtHR. Yet one may ask whether the Court may elucidate such a deviating position in its case law. In the view of the present author, the answer to this question is in the negative. Even if it were the Court’s intention in Mugesera to do so, there is nothing in the Court’s reasoning to suggest this. Turning to the burden of proof, that still fell to the applicant. However, given the fact that Mugesera remained under state control (in prison), the African Court correctly held that the applicant needed to provide prima facie evidence in support of his allegations and, if he did so, the burden of evidence would shift to the respondent state.72 The prima facie evidence rule has the effect of shifting the burden of evidence from the proponent of the burden of proof to the other party.73 This is an evidentiary practice followed regularly in international jurisprudence.74

Notwithstanding that the Court allocated the standard of proof and burden of evidence soundly, the assessment and weighing of evidence present shortcomings. Admittedly, international courts enjoy considerable freedom on how to apply rules of evidence. The practice is that judges determine the weight to be accorded to the evidence submitted.75 The weighing of said evidence many times depends on the special circumstances of a case and the nature of allegation made. With that being said, it is expected of international courts to satisfy themselves that a claim is well argued and proven and to respectively explain so in their judicial reasoning. Turning now to the African Court, it considered that letters and medical reports submitted by the applicant successfully provided prima facie evidence in support of his allegations and that ‘in the absence of contrary information ... these allegations ... [we]re well-founded’.76 Although international courts often find that claims are proven if prima facie evidence remains unrebutted, certain conditions need to be met to this effect.77 The Court failed to address these conditions. First, it did not examine whether the evidence did constitute cogent prima facie evidence. Mere allegations or unconvincing evidence are not considered prima facie evidence.78 In this case, the only evidence that the Court relied upon was the applicant’s letters sent to state authorities setting out his allegations. Second, the Court did not assess whether said evidence was sufficient to discharge the burden of proof.79 Unrebutted prima facie evidence does not automatically lead to proven claims. The African Court did not provide solid reasoning explaining why and how, in the absence of contrary information, these allegations were well-founded. Since there was no other evidence but the applicant’s allegations and letters, the consistency and credibility of their content could not be verified. Consequently, the absence of contrary information could not justify the application of a de facto presumption against the non-appearing party. Even the IACtHR, which enjoys the discretion to apply such a presumption (as mentioned earlier, the African Court does not, as per its Rules of Procedure), still needs to ensure that the evidence is consistent with the facts on which the non-appearing state remains silent.80 To give an example, the Court found a violation of the right to a defence under article 7(1)(a) of the African Charter on account of the applicant’s allegations that the High Court Chamber for International Crimes refused to hear his arguments, experts and witnesses as well as the Public Prosecutor’s refusal to provide the applicant with the information necessary to prepare his defence.81 However, the Court in its judgment makes no reference to the actual judgment by the High Court Chamber and whether there was evidence of the applicant’s claims therein. There is no reference either to the applicant’s trial. Both the judgment and the trial are matters of public record and the Court could very easily have had access to them. If it did, there is nothing in its reasoning to affirm that. Finally, besides the applicant’s letter addressed to the Public Prosecutor there is no mention to whether the latter responded or not to said letter. Consequently, it remains unclear on what basis the Court found the applicant’s claims to be proven.

Another example comes from the Court’s reasoning when it held that Rwanda violated the applicant’s right to be free from cruel, inhuman or degrading treatment and the right to physical and mental integrity (articles 5 and 4 of the African Charter respectively) due to the fact, among others, that the applicant was deprived of adequate food, access to an orthopedic pillow or access to a psychiatrist so as the applicant addresses certain trauma.82 Besides the reference to the applicant’s medical certificates and letters from his own doctors there was no effort by the Court to verify the applicant’s medical conditions and, more importantly, the consequences of the applicant not having access to specific food or services. A medical expert appointed by the Court could have given an independent opinion on these matters. This would have enabled the Court to verify certain of the applicant’s claims and have a more robust reasoning as to the facts demonstrated, especially in an instance of non-appearance of the respondent state. Crucially, the Court had no justification either on how the applicant’s claims (assuming that they were found proven) amounted to the threshold of degrading treatment under article 5 of the African Charter. The Court also noted that the state ‘took no appropriate measures to correct the abuses against the applicant’83 but there is no explanation on whether this was actually possible to verify or not. Mugesera’s vulnerable status (being elderly and ill) was treated in the Court’s reasoning as an inference in his favour, supporting the finding that his detention conditions had violated article 4 of the African Charter.84 International courts admittedly enjoy a certain latitude in assessing facts and evidence, but circumstantial evidence, including inferences, may only be considered insofar as it results in conclusions consistent with the facts.85 Mugesera’s vulnerable status was undoubtedly an inference that supports his claims but the Court was not diligent in noting that this circumstantial evidence concerned a series of facts that were unclear, as explained earlier.

Overall, the Court’s reasoning leaves much to be desired as to whether the evidence was sufficient to find the applicant’s claims proven; how the Court discusses and analyses the evidence; and how transparent the Court is in explaining the evidentiary difficulties at hand. An instance of the Court’s cryptic reasoning is that it cited certain documentary evidence, including a report of the Council/Nurse (dated 28 December 2016)86 and a letter from the Council (dated February 2017)87 without explaining in the text of the judgment what documents were and how they supported the applicant’s claims. One may note that the Court’s approach manifests the same shortcomings in African Commission of Human and Peoples’ Rights v Libya (also a judgment in default), where the Court merely endorsed the applicant’s claims in a telegraphically reasoned judgment, as Judge Fatsouh Ouguergouz pointed out in his Separate Opinion.88 One may, therefore, discern that the Court has a strong inclination in default judgments to accept applicants’ allegations without sufficiently examining whether they are well-founded.

In addition to this, in neither case did the African Court exercise its power under rule 55 of the Rules of Procedure to request certain measures on its own accord so as to obtain evidence which may provide clarification of the facts of a case. Such measures include the option to hear from a witness or expert, request an opinion or report or conduct an inquiry and on-site visit.89 Moreover, the Court on its own motion may invite an individual or organisation to act as amicus curiae in a particular matter pending before it.90 When international courts render judgments in default, they must explore other ways to gain access to evidence in an attempt to partially compensate for the absence of the party to the dispute.91 Admittedly, an on-site visit would not have been feasible in practice, since there was little chance, if any, that Rwanda -- the non-appearing party -- would have cooperated. Yet, the Court could have sought direct evidence (testimonial or documentary including an opinion or a written report), for example, from experts or NGOs or a national or regional body regarding the circumstances of Mugesera’s trial, status of his health and/or his conditions of detention. In similar instances, the regional counterparts of the African Court have adopted, on their own motion, various investigative measures which were capable of clarifying the facts of the case, and have obtained further evidence concerning matters considered by it to be relevant to the case. For example, in the Hilaire, Constantine and Benjamin and Others case, experts testified before the IACtHR as to the prison conditions in Trinidad and Tobago.92 In Husayn (Abu Zubaydah) v Poland, the ECtHR invited the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to take part in the hearing and also decided, of its own motion, to hear evidence from experts.93