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Suy Bi Gohore Emile and Others v Côte d'Ivoire (Application 44 of 2019)

African Court on Human and Peoples' Rights · [2020] AfCHPR 2 · 2020 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights challenging the independence and impartiality of Côte d'Ivoire's electoral commission
Decision
Application partly allowed. Violations found on two grounds relating to electoral body independence. Orders made for remedial measures before any election.

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Holding

The African Court held that Côte d'Ivoire partially violated its obligation to establish an independent and impartial electoral body. The Court found violations regarding the manifest imbalance of Chairpersons at local electoral commissions favouring the ruling party, and the absence of a mechanism ensuring that nomination of electoral body members by political parties and civil society organisations is driven by those entities. The Court ordered Côte d'Ivoire to organise new Bureau elections at local levels and establish an appropriate nomination mechanism before any election. The Court found no violation of the obligation to execute its previous judgment, nor violations of the right to participate freely in government or equal protection of the law.

Outcome

Application partly allowed. Violations found on two grounds relating to electoral body independence. Orders made for remedial measures before any election.

Facts

Between January and June 2019, Côte d'Ivoire organised political dialogue to reform its Independent Electoral Commission. Parliament passed a new law on the electoral commission's recomposition on 30 July 2019 (Senate) and 2 August 2019 (National Assembly), promulgated as Law No. 2019-708 on 5 August 2019. On 2 August 2019, 65 National Assembly members petitioned the Constitutional Council challenging the law's constitutionality. The Constitutional Council declared the petition inadmissible on 5 August 2019 because it referenced a draft law. A second petition on 6 August 2019 referencing the actual law was declared inadmissible on 13 August 2019 because the law had already been promulgated. On 4 March 2020, Côte d'Ivoire adopted Order No. 2020-306 modifying Law No. 2019-708 by giving opposition parties the possibility of proposing one additional member to the electoral body at central and local levels. The application relied on the Court's 2016 judgment in APDH v Côte d'Ivoire which found violations regarding the electoral commission's independence and ordered Côte d'Ivoire to amend the electoral law.

Issues

  1. Whether the Court has material jurisdiction to hear a case concerning alleged violation of Article 30 of the Protocol (obligation to execute judgments).
  2. Whether the Application is admissible where an amended Application replaced an initial Application.
  3. Whether the Application is admissible under Article 56 of the Charter where it concerns a new law adopted after a previous judgment on a similar subject matter.
  4. Whether the adoption of Order No. 2020-306 of 4 March 2020 amending the impugned law renders the Application without merit.
  5. Whether Côte d'Ivoire violated its obligation to establish an independent and impartial electoral body under Article 17 of the ACDEG and Article 3 of the ECOWAS Democracy Protocol.
  6. Whether the composition of the electoral body offers sufficient guarantees of independence and impartiality.
  7. Whether the electoral body has sufficient institutional independence through administrative and financial autonomy.
  8. Whether the reform process of the electoral body was sufficiently inclusive, transparent and participatory to ensure credibility of its independence and impartiality.
  9. Whether Côte d'Ivoire violated the right to participate freely in government under Article 13(1) and (2) of the Charter by not including independent candidates in the electoral body.
  10. Whether Côte d'Ivoire violated the right to equal protection of the law under Article 10(3) of the ACDEG, Article 3(2) of the Charter and Article 26 of the ICCPR.
  11. Whether Côte d'Ivoire violated its obligation to execute the Court's judgment in APDH v Côte d'Ivoire (merits) within the stipulated time under Article 30 of the Protocol.

Orders

  • Objection to jurisdiction dismissed.
  • Court has jurisdiction.
  • Objection to admissibility dismissed.
  • Application declared admissible.
  • Respondent State has not violated Article 13(1) and (2) of the African Charter (right to participate freely in government).
  • Respondent State has not violated Article 10(3) of the ACDEG, Article 3(2) of the Charter and Article 26 of the ICCPR (right to equal protection of the law).
  • Respondent State has not violated Article 30 of the Protocol (obligation to execute judgment).
  • Respondent State has not fully complied with Article 17 of the ACDEG and Article 3 of the ECOWAS Democracy Protocol regarding independent and impartial electoral body. Violation found regarding manifest imbalance of Chairpersons at local electoral commissions.
  • Respondent State has not fully complied with Articles 3(7), 3(8) and 13 of the ACDEG and Article 3 of the ECOWAS Democracy Protocol. Violation found regarding absence of mechanism for nomination of electoral body members by political parties and civil society organisations.
  • Respondent State ordered to take necessary measures before any election to ensure new Bureau elections at local levels based on new composition of electoral body.
  • Respondent State ordered to take necessary measures before any election to ensure nomination process of electoral body members by political parties and civil society organisations is driven by those entities based on pre-determined criteria.
  • Respondent State ordered to report to Court on implementation measures within three months and thereafter every six months until full implementation.
  • Each party to bear its own costs.

Rules and key headnotes

Jurisdiction of International Courts — Material Jurisdiction — Monitoring Execution of Judgments
An international court has material jurisdiction to determine whether a State has complied with its judgment where a new dispute is submitted concerning the interpretation and application of the obligation to execute judgments, even though the primary responsibility for monitoring execution lies with the political organs of the international organisation.
Jurisdiction of International Courts — Withdrawal of Declaration — Temporal Effect
The withdrawal of a State's declaration accepting jurisdiction of an international court to receive cases from individuals has no retroactive effect and does not affect matters pending before the court prior to the withdrawal, and the withdrawal takes effect twelve months after deposit of the instrument of withdrawal.
Admissibility — Replacement of Application — Procedural Fairness
Where an applicant files an amended application before the respondent has filed its response to the initial application, and the respondent is given adequate time to respond to the amended application and is notified of the replacement, no prejudice is caused to the respondent and the replacement does not violate the right to fair proceedings.
Admissibility — Res Judicata — Identity of Parties, Subject Matter and Legal Basis
An application does not raise matters previously settled where the legal and factual basis differs from a previous case, even where the parties and general subject matter are similar. Three cumulative criteria must be met: identity of parties, identity or supplementary nature of applications, and existence of a first decision on merits.
Independent Electoral Bodies — Criteria for Independence and Impartiality
An electoral body is independent where it has administrative and financial autonomy and offers sufficient guarantees of its members' independence and impartiality. Institutional independence alone is insufficient; the electoral body must be constituted by law in a manner that guarantees independence and impartiality and must be perceived as such. For a body to reassure the public of its ability to organise transparent, free and fair elections, its composition must be balanced.
Independent Electoral Bodies — Composition — Political Party Representation
Having political parties represented in an electoral body does not necessarily exclude the possibility for it to offer sufficient guarantees of independence and impartiality, provided the composition is balanced and does not allow any political group to dominate the body.
Independent Electoral Bodies — Nomination Process — Civil Society and Opposition Participation
Best practice requires that the nomination process for representatives of civil society organisations and opposition parties in an electoral body be driven by those entities based on pre-determined criteria, with authority to organise themselves, consult, hold elections as necessary, and submit required nominees, rather than having the State determine which entities to invite to propose members.

Legislation cited (25)

  • African Charter on Human and Peoples' Rights Article 3(2)
  • African Charter on Human and Peoples' Rights Article 13(1)
  • African Charter on Human and Peoples' Rights Article 13(2)
  • African Charter on Democracy, Elections and Governance Article 3(7)
  • African Charter on Democracy, Elections and Governance Article 3(8)
  • African Charter on Democracy, Elections and Governance Article 10(3)
  • African Charter on Democracy, Elections and Governance Article 13
  • African Charter on Democracy, Elections and Governance Article 17
  • ECOWAS Protocol on Democracy and Good Governance Article 3
  • International Covenant on Civil and Political Rights Article 26
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 22
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 26
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 29
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 30
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 31
  • 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)
  • African Charter on Human and Peoples' Rights Article 56
  • Côte d'Ivoire Law No. 2019-708 of 5 August 2019
  • Côte d'Ivoire Order No. 2020-306 of 4 March 2020
  • Côte d'Ivoire Constitution Article 4
  • Côte d'Ivoire Constitution Article 53
  • Côte d'Ivoire Constitution Article 113
  • Côte d'Ivoire Constitution Article 123

Cases cited (9)

  • Actions pour la Protection des Droits de l'Homme (APDH) v Côte d'Ivoire (merits) (2016) 1 AfCLR 668
  • Actions pour la Protection des Droits de l'Homme (APDH) v Côte d'Ivoire (interpretation) (2017) 2 AfCLR 141
  • Tanganyika Law Society and Others v Tanzania (merits) (2013) 1 AfCLR 34
  • Lohe Issa Konaté v Burkina Faso (merits) (2014) 1 AfCLR 314
  • Association pour le Progrès et la Défense des Droits des Femmes Maliennes v Mali (merits) (2018) 2 AfCLR 380
  • Ingabire Victoire Umuhoza v Rwanda (jurisdiction) (2016) 1 AfCLR 562
  • Ghati Mwita v United Republic of Tanzania (Application No. 012/2019)
  • Gombert v Côte d'Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
  • Dexter Eddie Johnson v Republic of Ghana (Application No. 016/2017)

Full judgment

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Suy Bi Gohore Emile and Others v Côte d'Ivoire (Application 44 of 2019) [2020] AfCHPR 2 (15 July 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.