Wakilii

Dicko and Others v Burkina Faso (Application No. 037-2020)

African Court on Human and Peoples' Rights · [2020] AfCHPR 14 · 2020 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for provisional measures before the African Court on Human and Peoples' Rights
Decision
Application for provisional measures dismissed; main application to proceed to merits

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Holding

The African Court on Human and Peoples' Rights dismissed the applicants' request for provisional measures to stay amendments to Burkina Faso's Electoral Code. While the Court found urgency established due to the imminent elections, it held that determining irreparable harm would require examining issues relevant to the merits, including proportionality of disenfranchisement and the application of supervening impossibility. The Court concluded that ruling on provisional measures would risk prejudging the merits of whether the amendments violated the right to participate in elections under the African Charter on Democracy, Elections and Governance.

Outcome

Application for provisional measures dismissed; main application to proceed to merits

Facts

In July 2019, Burkina Faso's President convened a National Dialogue Forum to prepare for 2020 elections. Following the Forum, the Government tabled amendments to the Electoral Code in January 2020, despite population displacement due to insecurity in several regions and the abandonment of towns by mayors. The amendments introduced provisions allowing elections to be validated based on partial constituency results where supervening impossibility or exceptional circumstances prevented voting in parts of a constituency. Political actors proposed postponing elections, and the Government initially withdrew the amendment bill in July 2020 to allow political dialogue. However, on 20 July 2020, without new dialogue, the Government re-tabled the bill, which was passed on 25 August 2020 and promulgated on 28 August 2020. The applicants challenged the amendments before the Constitutional Council on 16 September 2020, but the petition was dismissed as inadmissible on 16 October 2020 because it challenged an already-promulgated law. The applicants then filed this application on 5 November 2020, seeking provisional measures to stay the amendments before elections scheduled for 22 November 2020.

Issues

  1. Whether the Court should order provisional measures to stay the application of amendments to Burkina Faso's Electoral Code pending determination of the main application.
  2. Whether the amendments to Articles 148 and 155 of the Electoral Code allowing elections to be validated based on partial constituency results constitute irreparable harm to the right to participate in elections.

Orders

  • Request for provisional measures dismissed.

Rules and key headnotes

Provisional Measures — Prima Facie Jurisdiction — African Court on Human and Peoples' Rights
When considering an application for provisional measures, the African Court on Human and Peoples' Rights does not have to ascertain its jurisdiction on the merits of the matter but only that it has prima facie jurisdiction.
Provisional Measures — Requirements — Extreme Gravity, Urgency, and Irreparable Harm
Under Article 27(2) of the Protocol to the African Charter and Rule 59(1) of the Rules of Court, provisional measures may be granted in cases of extreme gravity and urgency where necessary to avoid irreparable harm to persons. Urgency presupposes the existence of a real and imminent risk that irreparable harm will be caused before determination on the merits.
Provisional Measures — Urgency — Imminent Elections
Urgency for purposes of provisional measures is established where an application concerns elections scheduled to be held before the Court can rule on the merits, even where the applicant delayed in bringing the matter to the Court after exhausting domestic remedies.
Provisional Measures — Irreparable Harm — Risk of Prejudging Merits
Where determining the existence of irreparable harm would necessarily entail examining issues particularly relevant to the merits of the case, the Court will decline to grant provisional measures to avoid prejudging the outcome of the matter on the merits. The burden of proving irreparable harm lies with the applicant.

Legislation cited (9)

  • African Charter on Democracy, Elections and Governance Article 4(2)
  • 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 5(3)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27(2)
  • 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)
  • Law No. 034-2020/AN of 25 August 2020 (Burkina Faso Electoral Code amendments) Articles 148 and 155
  • Law No. 014-2001/AN of 3 July 2001 (Burkina Faso Electoral Code)
  • Rules of Court Rule 49(1)
  • Rules of Court Rule 59(1)

Cases cited (9)

  • Guillaume Kgbafori Soro and Others v Republic of Côte d'Ivoire (Application No. 012/2020)
  • Babarou Bocoum v Republic of Mali (Application No. 023/2020)
  • Suy Bi Gohore Emile and Others v Republic of Côte d'Ivoire (Application No. 044/2019)
  • African Commission on Human and Peoples' Rights v Libya (2013) 1 AfCLR 149
  • Amini Juma v United Republic of Tanzania (2016) 1 AfCLR 687
  • Actions pour la protection des droits de l'homme v Republic of Côte d'Ivoire (2016) 1 AfCLR 697
  • Suy Bi Gohoré Emile and Others v Republic of Côte d'Ivoire (Application No. 044/2019)
  • XYZ v Republic of Benin (Application No. 057/2019)
  • Komi Koutché v Benin (Application No. 020/2019)

Full judgment

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

Dicko and Others v Burkina Faso (Application No. 037-2020) [2020] AfCHPR 14 (20 November 2020)
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.