Ajavon v Republic of Benin (Application No. 062-2019)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The African Court found that Benin violated multiple human rights provisions including the right to strike, the right to life and freedom from torture during electoral violence, the right to freedom of association through bans on electoral alliances and independent candidacies, the right to participate in government through residency requirements, and the right to an effective remedy by enacting an amnesty law. The Court also found violations of the duty to establish independent electoral bodies and to guarantee judicial independence. The constitutional revision of November 2019 was found to violate the principle of national consensus. The Court ordered Benin to repeal the offending laws and take measures to ensure judicial independence.

Outcome

Application partly allowed with orders for repeal of laws and measures to ensure judicial independence

Facts

The Applicant, a Beninese businessman residing in France as a political refugee, challenged the legality of Benin's parliamentary elections of 28 April 2019 and subsequent constitutional and legislative changes. He alleged that the elections were irregular and that the resulting National Assembly was established based on electoral laws inconsistent with international conventions. On 31 October to 1 November 2019, this Parliament unanimously adopted a law revising the Constitution, which was promulgated after review by the Constitutional Court. The Applicant claimed that these laws and subsequent legislation caused multiple human rights violations. Violence erupted after the legislative elections, with the army firing live rounds at protesters, killing several people. An amnesty law was subsequently enacted for crimes committed during the electoral violence. The Applicant also challenged various laws restricting the right to strike, criminalising certain digital expression, and imposing conditions on political participation including bans on electoral alliances and independent candidacies.

Issues

1. Whether the Respondent State violated the right to freedom of opinion and expression by criminalising certain forms of digital expression.
2. Whether the Respondent State violated the right to strike by prohibiting certain categories of workers from exercising that right.
3. Whether the Respondent State violated the right to freedom of assembly through provisions of the Penal Code.
4. Whether the Respondent State violated the right to life, the right not to be subjected to torture, and the right to dignity through violence during the 2019 legislative elections.
5. Whether the Respondent State violated the right to freedom of association by prohibiting electoral alliances and independent candidacies.
6. Whether the Respondent State violated the right to participate freely in government by imposing residency requirements and other eligibility conditions.
7. Whether the Respondent State violated the right to have one's cause heard by enacting an amnesty law for post-electoral violence.
8. Whether the Respondent State violated the duty to establish independent and impartial electoral bodies.
9. Whether the Respondent State violated the duty to guarantee the independence of the Constitutional Court and the judiciary.
10. Whether the constitutional revision of 7 November 2019 was adopted in violation of the principle of national consensus.

Orders

• Dismisses the objection on jurisdiction of the Court.
• Declares that it has jurisdiction.
• Dismisses the preliminary objections relating to admissibility.
• Declares the Application admissible.
• Finds that the Respondent State has not violated the right to freedom of opinion and expression under Article 9(2) of the Charter.
• Finds that the Respondent State has not violated the right to freedom of assembly under Article 11 of the Charter.
• Finds that the Respondent State has not violated the right to freedom and security of the person under Article 6 of the Charter.
• Finds that the Respondent State did not violate the obligation not to modify electoral law within six months preceding elections.
• Finds that the Respondent State has not violated the right to non-discrimination and the right to participate freely in government by reason of eligibility conditions relating to bond, tax clearance and age.
• Finds that the Respondent State has not violated the obligation to guarantee the impartiality of the Constitutional Court.
• Finds that the Respondent State has violated the right to strike under Article 8(1)(d)(2) of the ICESCR.
• Finds that the Respondent State has violated the right to life, right to physical and moral integrity and the right not to be subjected to torture under Articles 4 and 5 of the Charter.
• Finds that the Respondent State has violated the right of victims of post-electoral violence to have their causes heard under Article 7(1) of the Charter.
• Finds that the Respondent State has violated the right to freedom of association under Article 10 of the Charter due to the possibility of dissolution of political parties, the ban on electoral alliances and independent candidacies.
• Finds that the Respondent State has violated the right to non-discrimination and the right to participate freely in government under Articles 2 and 13(1) of the Charter as a result of the ban on independent candidates and the residency requirement.
• Finds that the Respondent State has violated the obligation to establish independent and impartial electoral bodies under Article 17(1) of the ACDEG and Article 3 of the ECOWAS Protocol on Democracy.
• Finds that the Respondent State has violated the duty to guarantee the independence of its Constitutional Court and of the judiciary under Article 26 of the Charter.
• Finds that the Respondent State has violated the duty to ensure a constitutional revision based on national consensus under Article 10(2) of the ACDEG.
• Acknowledges the Applicant's waiver of his claim for pecuniary reparations.
• Dismisses the Applicant's request for referral to the Peace and Security Council of the African Union.
• Dismisses the Applicant's request for dissolution of the Constitutional Court.
• Dismisses the Applicant's request to invalidate the legislative elections of 28 April 2019.
• Orders the Respondent State to repeal within three months Article 27 paragraph 2 of Law No. 2018-23 on the Charter of Political Parties.
• Orders the Respondent State to repeal within three months Articles 1 and 2 of Organic Law No. 2018-02 relating to the Higher Judicial Council.
• Orders the Respondent State to repeal within three months Law No. 2019-39 granting amnesty and to conduct investigations to enable victims to obtain recognition of their rights and reparation.
• Orders the Respondent State to repeal within three months Constitutional Law No. 2019-40 revising the Constitution and all subsequent laws, in particular Law No. 2019-43 on the Electoral Code.
• Orders the Respondent State to repeal within six months all provisions prohibiting the right to strike.
• Orders the Respondent State to take all necessary measures to fulfill its duty to guarantee the independence of the Constitutional Court and of the judiciary.
• Orders the Respondent State to publish the operative part of the Judgment within one month on government websites for six months.
• Orders the Respondent State to submit reports on implementation within three and six months.
• Finds that the request for provisional measures is moot.
• Orders that each party shall bear its own costs.

Rules and key headnotes

Legislation cited (13)

• African Charter on Human and Peoples' Rights
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights
• African Charter on Democracy, Elections and Governance
• ECOWAS Protocol A/SP1/12/01 on Democracy and Good Governance
• Law No. 2018-20 of 20 April 2018 on the Digital Code of Benin Articles 551, 552, 553
• Law No. 2018-34 of 5 October 2018 on the exercise of the right to strike Articles 2, 14, 17
• Law No. 2018-23 of 17 September 2018 on the Charter of Political Parties Articles 16, 27, 48
• Law No. 2018-31 of 9 October 2018 on the Electoral Code Articles 44, 46, 233, 242, 249, 269, 272
• Law No. 2019-39 of 7 November 2019 granting amnesty
• Law No. 2019-40 of 7 November 2019 revising the Constitution
• Organic Law No. 2018-02 of 4 January 2018 relating to the Higher Judicial Council Articles 1, 2
• Constitution of Benin Articles 7, 31, 114, 115, 117, 121, 122, 125, 127, 155

Cases cited (20)

• Ingabire Victoire Umuhoza v Republic of Rwanda (Application No. 003/2016)
• Houngue Eric Noudehouenou v Republic of Benin (Application No. 003/2020)
• Yacouba Traoré v Republic of Mali (Application No. 010/2018)
• Ernest Francis Mtingwi v Republic of Malawi (Application No. 003/2012)
• Alex Thomas v United Republic of Tanzania (Application No. 005/2013)
• Lohé Issa Konaté v Burkina Faso (Application No. 004/2013)
• Tanganyika Law Society and Others v Tanzania (Application No. 009/2011)
• Sébastien Germain Ajavon v Republic of Benin (Application No. 013/2017)
• Actions pour la protection des droits de l'homme v Côte d'Ivoire (Application No. 001/2014)
• XYZ v Republic of Benin (Application No. 059/2019)
• African Commission on Human and Peoples' Rights v Kenya (Application No. 006/2012)
• Armand Guehi v United Republic of Tanzania (Application No. 001/2015)
• Alfred Agbesi Woyome v Republic of Ghana (Application No. 001/2017)
• ECtHR, Podkolzina v. Latvia, Application n°46726/99, Judgment of 09 April 2002
• ECtHR, Akdivar and Others v. Turkey, Application No. 21893/93, Judgment of 16 September 1996
• ECtHR, Melnichenko v. Ukraine, Application n ° 17707/02, Judgment of 19 October 2004
• ECtHR, Margus v. Croatie (2014)
• IACtHR, Barrios Altos v. Peru (Merits), 14 March 2001, Series C No.15
• ACHPR, 54/91: Malawi African Association v. Mauritania
• ACHPR, Kevin Mgwanga Gunme et al v. Cameroon, Communication 266/03

The original judgment as reported. Read the original PDF before relying on any passage.