Wakilii

Tembani and Another v Angola and Others (Communication 409 of 2012)

African Commission on Human and Peoples' Rights · [2014] ACHPR 4 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging violation of the African Charter arising from the suspension of the SADC Tribunal
Decision
Communication dismissed on the merits after being declared admissible

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that it has jurisdiction over the fourteen respondent states as parties to the African Charter, not as members of SADC. The Communication was declared admissible. On the merits, the Commission found no violation of Articles 7 and 26 of the African Charter. Article 7(1)(a) guarantees access to national courts, not regional tribunals. The primary obligation is to ensure access to domestic judicial forums. The suspension of the SADC Tribunal, while affecting procedural rights under SADC, does not violate the Charter obligation to ensure access to national courts, which remained intact.

Outcome

Communication dismissed on the merits after being declared admissible

Facts

The applicants, Zimbabwean farmers, obtained judgments from the SADC Tribunal against Zimbabwe for land deprivation. Zimbabwe did not comply with the Tribunal's rulings. In August 2010, the SADC Summit suspended the Tribunal and imposed a moratorium on new cases. In May 2011, the Summit declined to reappoint judges whose terms had expired, effectively paralysing the Tribunal permanently. The applicants filed a communication to the African Commission alleging that the fourteen SADC member states, by collectively suspending the Tribunal, violated their rights of access to justice under the African Charter. The applicants had no remaining avenue to enforce the Tribunal's judgments or pursue their applications before it.

Issues

  1. Whether the African Commission has jurisdiction ratione personae and ratione materiae to consider a complaint against fourteen SADC member states arising from decisions of the SADC Summit.
  2. Whether the Communication satisfies the admissibility requirements under Article 56 of the African Charter.
  3. Whether the suspension and permanent ouster of the SADC Tribunal by the Respondent States violates Articles 7 and 26 of the African Charter.
  4. Whether Article 7(1)(a) of the African Charter imposes an obligation on State Parties to ensure access to a regional tribunal such as the SADC Tribunal.
  5. Whether Article 26 of the African Charter imposes an obligation on State Parties to guarantee the independence of regional tribunals.
  6. Whether member states of an international organisation can bear direct responsibility for wrongful acts and omissions of that organisation.

Orders

  • Communication declared admissible.
  • No violation of Articles 7 and 26 of the African Charter found.

Rules and key headnotes

Jurisdiction — African Commission — Jurisdiction over Member States of International Organisations
The African Commission has no jurisdiction over intergovernmental organisations and their organs, but has jurisdiction over individual State Parties to the African Charter in their individual capacities, even where the alleged violations arise from collective decisions taken within the framework of a regional organisation.
State Responsibility — International Organisations — Responsibility of Member States
Member states of an international organisation can bear direct responsibility for wrongful acts and omissions of that organisation, especially where the rights of third parties are involved and where the wrongful act would have invoked the international responsibility of the member states individually had they acted on their own.
Right to Fair Hearing — Access to Court — Scope of Article 7(1)(a) African Charter
Article 7(1)(a) of the African Charter guarantees the right of access to national courts within the domestic legal system of State Parties. It does not impose an international legal obligation on State Parties to ensure access to regional or international tribunals.
Independence of the Judiciary — Article 26 African Charter — Scope of Application
Article 26 of the African Charter, which requires State Parties to guarantee the independence of the courts, refers to national judicial organs exercising compulsory jurisdiction over individuals. It does not impose an obligation on State Parties to guarantee the independence of regional or international tribunals.
Admissibility — Exhaustion of Local Remedies — Multiple Respondent States
Where a communication is filed against multiple State Parties alleging a collective decision that violates Charter rights, and each state has its unique legal jurisdiction and court systems, requiring exhaustion of domestic remedies in all respondent states would occasion paralysing delay and costs. In such circumstances, the complainant is dispensed from the requirement to exhaust local remedies under Article 56(5) of the African Charter.
Admissibility — Reasonable Time — Article 56(6) African Charter — Computation of Time
Where local remedies are not required to be exhausted, the timeline for submission of a communication under Article 56(6) of the African Charter is computed from the date on which the alleged cause of action under the Charter arose, being the date on which the jurisdiction of the Commission began in relation to the facts of the communication.

Legislation cited (14)

  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 57
  • African Charter on Human and Peoples' Rights Article 60
  • African Charter on Human and Peoples' Rights Article 61
  • SADC Treaty Article 3
  • SADC Protocol on the Tribunal Article 15(1)
  • SADC Protocol on the Tribunal Article 32(5)
  • International Covenant on Civil and Political Rights Article 2(3)
  • International Covenant on Civil and Political Rights Article 14
  • European Convention on Human Rights Article 13
  • European Convention on Human Rights Article 35(1)
  • American Convention on Human Rights Article 46(1)(b)

Cases cited (18)

  • Dawda K Jawara v The Gambia (Communications 147/95 & 149/96)
  • Mike Campbell (PVT) Limited and Others v The Republic of Zimbabwe (SADC (T) 11/08)
  • Femi Falana v The African Union (Application No. 001/2011)
  • Efoua Mbozo'o Samuel v The Pan African Parliament (Application No. 010/2011)
  • Ligue Camerounaise des Droits de l'Homme v Cameroon (Communication 65/92)
  • Tsatsu Tsikata v Ghana (Communication 322/2006)
  • Kenya Section of the International Commission of Jurists and Others v Kenya (Communication 263/02)
  • Southern Africa Human Rights NGO Network and Others v Tanzania (Communication 333/2006)
  • Article 19 v Eritrea (Communication 275/2003)
  • Earl Spencer and Countess Spencer v United Kingdom (App. Nos. 28851/95, 28852/95)
  • Civil Liberties Organisation v Nigeria (Communication 129/94)
  • Lawyers for Human Rights v Swaziland (Communication 251/02)
  • Zimbabwean Human Rights NGO Forum v Zimbabwe (Communication 245/02)
  • Kenneth Good v Botswana (Communication 313/05)
  • Waite and Kennedy v Germany (Application No. 26083/94)
  • Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirketi v Ireland (Case C-84/95)
  • Maksimo v Russia (Application No. 43233/02)
  • Golha v The Czech Republic (Application No. 7051/06)

Full judgment

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Tembani and Another v Angola and Others (Communication 409 of 2012) [2014] ACHPR 4 (30 April 2014)
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.