Wakilii

Roseline Emma Rasolovoahangy v The Republic of Madagascar (Communication 453-13)

African Commission on Human and Peoples' Rights · [2022] ACHPR 12 · 2022 Communication Upheld — Violations Found AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violation of the African Charter following annulment of presidential candidacy by the Special Electoral Court of Madagascar
Decision
Communication upheld; Respondent State found in violation of the African Charter and ordered to take remedial measures including conforming its electoral laws to Charter obligations

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No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found that Madagascar violated Articles 7(1) and 13(1) of the African Charter. The Special Electoral Court annulled the applicant's presidential candidacy without proper notice or opportunity to be heard, breaching the fundamental principle of audi alteram partem and denying her right to fair hearing. The amended electoral law establishing a mechanism for challenging approved candidates, applied retroactively to disqualify the applicant, violated her right to participate in government. The Commission ordered Madagascar to repair the damages and bring its electoral laws into conformity with the Charter.

Outcome

Communication upheld; Respondent State found in violation of the African Charter and ordered to take remedial measures including conforming its electoral laws to Charter obligations

Facts

Roseline Emma Rasolovoahangy's candidacy for Madagascar's presidential elections was initially validated by the Special Electoral Court (CES) on 3 May 2013. On 12 August 2013, the Transitional President signed Ordinance No. 2013-002 permitting modification of the electoral law to establish a mechanism for challenging approved candidates. Two days later, three petitions were filed challenging Rasolovoahangy's candidacy on grounds she did not fulfill residency requirements under Article 5 of Loi organique no. 2012-015. On 17 August 2013, before Rasolovoahangy was aware of the petitions or properly served, the CES annulled her candidacy without hearing any defence. She received notice only on 20 August 2013. Her request for review submitted on 20 August was summarily dismissed on 21 August 2013 as res judicata. Unlike Rasolovoahangy, three other similarly affected candidates had opportunity to submit their defence. The CES is an ad hoc chamber of the Supreme Court with no right of appeal.

Issues

  1. Whether the Special Electoral Court of Madagascar violated the applicant's right to have her cause heard under Article 7(1) of the African Charter by annulling her presidential candidacy without affording her an opportunity to be heard.
  2. Whether the Respondent State violated the applicant's right to participate in government under Article 13(1) of the African Charter by disqualifying her candidacy based on residency requirements.

Orders

  • Communication declared admissible in accordance with Article 56 of the African Charter.
  • Respondent State found to have violated Articles 7(1) and 13(1) of the African Charter.
  • Respondent State requested to take all necessary measures to repair the damages caused by the violations found.
  • Respondent State requested to take all necessary measures to ensure that Loi Organique no. 2012-015 of 1 August 2012 and all other relevant laws and practices are brought into conformity with the African Charter.
  • Respondent State requested to report back in writing within one hundred and eighty (180) days of notification on measures taken to implement these recommendations.

Rules and key headnotes

Fair Trial — Right to Be Heard — Audi Alteram Partem — Notice and Opportunity to Respond
The right to have one's cause heard under Article 7(1) of the African Charter includes the fundamental principle of natural justice that all parties must be given reasonable opportunity to present their case, which requires adequate notice of allegations and sufficient time to prepare and submit a defence before any adverse decision is made.
Fair Trial — Equality of Arms — Adversarial Proceedings
The principle of equality of arms, as an essential element of fair hearing under Article 7(1), requires that each party be afforded opportunity to have knowledge of and comment on observations or evidence adduced by the other party, and that proceedings be adversarial such that no party is placed at substantial disadvantage vis-à-vis the opponent.
Right to Stand for Election — Limitations — Proportionality and Reasonableness
While the right to participate in government under Article 13(1) of the African Charter may be limited by national law in accordance with Article 27(2), any restrictions on the right to stand for election must be justifiable on objective and reasonable criteria, be proportionate to the legitimate aim pursued, and must not be unreasonable, discriminatory, or applied in a manner that nullifies the enjoyment of Charter rights.
Claw-Back Clauses — Interpretation — Limitations on Rights
Claw-back clauses permitting limitation of Charter rights must not be interpreted against the principles of the Charter, and recourse to such clauses should not be used as a means of giving credence to violations of express Charter provisions.
Admissibility — Exhaustion of Local Remedies — Highest Court with No Appeal
Local remedies are exhausted for purposes of Article 56(5) of the African Charter where the disputed decision was taken by a chamber of the Supreme Court which is the highest court in the State with no right of appeal against its decisions, and where a request for reconsideration has been rejected in a fashion preventing additional recourse to the same or any other court.
Retroactive Application of Law — Electoral Candidacy — Legitimate Expectations
Where a candidate's eligibility for election has been validated and officially published, the subsequent enactment and retroactive application of a law establishing a mechanism to challenge and review approved candidates may violate the right to participate in government under Article 13(1) of the African Charter, particularly where applied in a manner that is unreasonable or discriminatory.

Legislation cited (11)

  • African Charter on Human and Peoples' Rights Article 7(1)
  • African Charter on Human and Peoples' Rights Article 13(1)
  • African Charter on Human and Peoples' Rights Article 12(2)
  • African Charter on Human and Peoples' Rights Article 27(2)
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 60
  • African Charter on Human and Peoples' Rights Article 61
  • Loi organique no. 2012-015 of 1 August 2012 Article 5
  • Loi organique no. 2012-015 of 1 August 2012 Article 9
  • Ordinance No. 2013-002 of 12 August 2013
  • International Covenant on Civil and Political Rights Article 25

Cases cited (24)

  • Institute for Human Rights and Development in Africa v Angola (Communication 292/04)
  • Union Inter Africaine des Droits de l'Homme and Others v Angola (Communication 159/96)
  • Centre for Minority Rights Development v Kenya (Communication 276/03)
  • Democratic Republic of Congo v Burundi, Rwanda, Uganda (Communication 227/99)
  • Zimbabwe Lawyers for Human Rights v Zimbabwe (Communication 284/03)
  • Ilesanmi v Nigeria (Communication 268/03)
  • Dawda Kairaba Jawara v The Gambia (Communications 147/95 & 149/96)
  • Institute of Human Rights and Development in Africa v Mauritania (Communication 242/01)
  • Alfred B. Cudjoe v Ghana (Communication 221/98)
  • Amnesty International and Others v Sudan (Communications 48/90, 50/91, 52/91, 89/93)
  • Social and Economic Rights Action Center v Nigeria (Communication 155/96)
  • Purohit and Moore v Gambia (Communication 241/01)
  • Constitutional Rights Project and Others v Nigeria (Communications 140/94, 141/94, 145/95)
  • Malawi Africa Association and Others v Mauritania (Communications 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98)
  • Antoine Bissangou v Congo (Communication 253/02)
  • Platakou v Greece (Application no. 38460/97)
  • Zubac v Croatia (Application no. 40160/12)
  • Kenneth Good v Botswana (Communication 313/05)
  • Ruiz-Mateos v Spain (Application no. 12952/87)
  • Ankerl v Switzerland
  • Gabriel Shumba and Others v Zimbabwe (Communication 430/12)
  • Amnesty International v Zambia (Communication 212/98)
  • Rev. Christopher Mtikila v Tanzania (Application 011/2011)
  • Decision No. 11-HCC/D3 of 28 August 2013

Full judgment

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Roseline Emma Rasolovoahangy v The Republic of Madagascar (Communication 453-13) [2022] ACHPR 12 (9 March 2022)
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.