Wakilii

Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo, Baise Ilboudo and The Mouvement Burkinabe des Droits De L’homme Et Des Peuples v Burkina Faso (Application No. 013-2011)

African Court on Human and Peoples' Rights · [2013] AfCHPR 123 · 2013 Preliminary Objections Partly Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights alleging human rights violations arising from the 1998 murder of journalist Norbert Zongo and three companions, and the subsequent failure to investigate and prosecute perpetrators. Respondent raised preliminary objections on jurisdiction and admissibility.
Decision
Preliminary objections partly upheld and partly overruled. Matter to proceed to consideration on the merits regarding allegations of violation of the right to be heard by competent national courts.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that it lacks ratione temporis jurisdiction over the allegation of violation of the right to life arising from the 1998 murder, as this was an instantaneous act completed before the Protocol's entry into force. However, the Court has jurisdiction over allegations concerning the right to be heard by competent national courts, as the alleged failure to investigate and prosecute constitutes a continuing violation extending beyond the Protocol's entry into force. The objection based on non-exhaustion of local remedies was joined to the merits. The objection based on unreasonable delay in filing was overruled, as the three-year period from the entry into force of the Court's Rules to the filing date was reasonable in the circumstances.

Outcome

Preliminary objections partly upheld and partly overruled. Matter to proceed to consideration on the merits regarding allegations of violation of the right to be heard by competent national courts.

Facts

On 13 December 1998, investigative journalist Norbert Zongo and three companions (Abdoulaye Nikiema, Ernest Zongo, and Blaise Ilboudo) were found burnt in their car near Sapouy, Burkina Faso. Zongo had been investigating the death of David Ouedraogo, driver to the President's brother, who died in January 1998 allegedly from ill-treatment by presidential security guards. Following the murders, an Independent Commission of Inquiry was established and submitted its report in May 1999. Judicial investigations commenced immediately after the murders and continued until 2006, when the Court of Appeal of Ouagadougou dismissed proceedings for lack of evidence against the sole accused. No further investigations or charges have been brought since. The beneficiaries of the deceased and a human rights organisation filed an application with the African Court in December 2011, alleging violations of the right to life, the right to be heard by competent courts, freedom of expression, and other human rights.

Issues

  1. Whether the Court has ratione temporis jurisdiction to hear allegations of violation of the right to life arising from the 1998 murder of Norbert Zongo and his companions, given that the murder occurred before the entry into force of the Protocol establishing the Court.
  2. Whether the Court has ratione temporis jurisdiction to hear allegations of violation of the right to be heard by competent national courts, where the alleged violations constitute continuous acts extending beyond the entry into force of the Protocol.
  3. Whether the Application is inadmissible for failure to exhaust local remedies, specifically the failure to appeal to the Cour de Cassation.
  4. Whether the Application is inadmissible for failure to file within a reasonable time after the exhaustion of local remedies.

Orders

  • Upholds the ratione temporis objection to the jurisdiction of the Court in regard to the violation of the right to life based on the 13 December 1998 murder of Norbert Zongo, Abdoulaye Nikiema known as Ablasse, Ernest Zongo and Blaise Ilboudo.
  • Overrules the ratione temporis objection to its jurisdiction in regard to the allegation of violation of the rights of the Applicants to have their cause heard by a Judge based on the judicial acts and procedures which occurred during the treatment of this matter at the national level.
  • Overrules the ratione temporis objection to the jurisdiction of the Court on allegations of violations of human rights in regard to the obligation to guarantee respect for human rights, the right to equal protection of the law and equality before the law, and the right to freedom of expression and the protection of journalists, as long as these allegations are directly linked to the allegation of violation of the right of the Applicants to have their cause heard by competent national Courts.
  • Declares that the objection to the admissibility of the Application based on the failure to exhaust local remedies is not an exclusively preliminary objection and is joined to the substantive case.
  • Overrules the objection to the admissibility of the Application based on the failure to observe reasonable time in the submission of the Application to the Court.
  • Decides to consider the matter on its merits.
  • Directs the Respondent to submit to the Court its Response on the merits of the case within 30 days of the date of this Ruling.
  • Directs the Applicants to submit to the Court their Brief on the merits of the case within 30 days from the date of receipt of the Response of the Respondent State.

Rules and key headnotes

Temporal Jurisdiction — Instantaneous vs Continuing Violations — Right to Life
A court lacks ratione temporis jurisdiction to hear allegations of violation of the right to life arising from a murder that occurred before the entry into force of the instrument conferring jurisdiction, where the murder constitutes an instantaneous and completed act, even if the state had already ratified the substantive human rights instrument at the time of the murder.
Temporal Jurisdiction — Continuing Violations — Right to Fair Hearing
A court has ratione temporis jurisdiction to hear allegations of continuing violations of the right to be heard by competent national courts where the alleged failure to investigate, arrest, try and punish perpetrators of a crime commenced before but continued after the entry into force of the instrument conferring jurisdiction, as such conduct constitutes a continuing wrongful act that extends over the entire period during which it remains not in conformity with the international obligation.
Admissibility — Exhaustion of Local Remedies — Joinder to Merits
Where an application alleges violation of the right to be heard by competent national courts, and the question of whether local remedies were unduly prolonged or ineffective is inextricably linked to the merits of that substantive allegation, the preliminary objection based on non-exhaustion of local remedies is not entirely preliminary and should be joined to the substantive case for determination on the merits.
Admissibility — Reasonable Time for Filing — Commencement Date
Where an applicant claims that local remedies have not been exhausted because the procedure was unduly prolonged, the reasonable time for filing an application with an international court begins to run from the date of expiry of the right to appeal not exercised under national law, not from the date when the national judicial system finally resolves the matter.
Admissibility — Reasonable Time for Filing — Newly Established Court
For applications filed in the early years of a newly established international court's existence, the time limit for filing should not begin to run from a date prior to the entry into force of the court's rules of procedure, as potential applicants cannot reasonably be expected to file applications before the procedural framework for doing so has been established and publicised.
Admissibility — Reasonable Time — Case-by-Case Assessment
The reasonableness of the time limit for filing an application with an international court depends on the particular circumstances of each case and must be determined on a case-by-case basis, taking into account factors such as the recent establishment of the court, the need for applicants to reflect on the suitability of filing, and whether the delay affects the court's ability to establish relevant facts.

Legislation cited (28)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 56(5)
  • African Charter on Human and Peoples' Rights Article 56(6)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 6(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 33
  • 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)
  • International Covenant on Civil and Political Rights Article 2(3)
  • International Covenant on Civil and Political Rights Article 6(1)
  • International Covenant on Civil and Political Rights Article 14
  • International Covenant on Civil and Political Rights Article 19(2)
  • Universal Declaration of Human Rights Article 8
  • Revised Treaty of the Economic Community of West African States Article 66(2)(c)
  • Vienna Convention on the Law of Treaties Article 28
  • Rules of Court Rule 26(2)
  • Rules of Court Rule 35(3)
  • Rules of Court Rule 35(4)(a)
  • Rules of Court Rule 37
  • Rules of Court Rule 39(1)
  • Rules of Court Rule 40
  • Rules of Court Rule 40(6)
  • Rules of Court Rule 52(3)
  • Rules of Court Rule 52(7)

Full judgment

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Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema Alias Ablassé, Ernest Zongo, Baise Ilboudo and The Mouvement Burkinabe des Droits De L’homme Et Des Peuples v Burkina Faso (Application No. 013-2011) [2013] AfCHPR 123 (21 June 2013)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.