Wakilii

XYZ v Benin (Application No. 010-2020)

African Court on Human and Peoples' Rights · [2020] AfCHPR 3 · 2020 Application Granted 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 constitutional revision law
Decision
Application granted; Respondent State ordered to repeal constitutional revision law and take legislative measures to guarantee judicial independence before any election

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court held that Benin violated the obligation to guarantee judicial independence by allowing renewable terms for Constitutional Court judges dependent on executive and legislative discretion. The Court found that the constitutional revision law was adopted without national consensus as required by the African Charter on Democracy, Elections and Good Governance, and that Benin violated the right to information by failing to disseminate the draft law and publish parliamentary debates. The Court further held that these violations threatened the right to peace and the right to economic, social and cultural development. The Court ordered Benin to repeal the constitutional revision law and take legislative measures to guarantee judicial independence.

Outcome

Application granted; Respondent State ordered to repeal constitutional revision law and take legislative measures to guarantee judicial independence before any election

Facts

On 30 October 2019, the Parliament of Benin passed Law No. 2019-40 to amend the Constitution of the Republic of Benin. The Constitutional Court found the law in conformity with the Constitution on 6 November 2019, and it was promulgated on 7 November 2019. The Applicant, a Beninese national who requested anonymity for security reasons, challenged the law on the grounds that it was adopted in secret without involvement of all sections of Beninese society and without national consensus. The Applicant alleged that the Constitutional Court was biased because its President was a close associate of the President of the Republic and had previously defended draft constitutional revisions as Minister of Justice. The law was adopted by a Parliament composed solely of deputies from the President's party following a political dialogue held in October 2019 in the absence of major opposition parties. The Applicant contended that the revision violated democratic principles and threatened peace and security in Benin.

Issues

  1. Whether the African Court on Human and Peoples' Rights has material jurisdiction to examine allegations of violations arising from a constitutional revision law.
  2. Whether the renewable nature of the term of office of judges of the Constitutional Court of Benin compromises judicial independence under Article 26 of the African Charter.
  3. Whether the Constitutional Court of Benin was impartial in reviewing the constitutional revision law under Article 7(1)(d) of the African Charter.
  4. Whether the constitutional revision law was adopted in violation of the principle of national consensus under Article 10(2) of the African Charter on Democracy, Elections and Good Governance.
  5. Whether the Respondent State violated the Applicant's right to information under Article 9(1) of the African Charter by failing to disseminate the draft revision and publish parliamentary debates.
  6. Whether the constitutional revision violated the right to economic, social and cultural development under Article 22(1) of the African Charter.
  7. Whether the constitutional revision violated the right to peace and security under Article 23(1) of the African Charter.

Orders

  • Declared that the Court has jurisdiction.
  • Dismissed preliminary objections.
  • Declared the Application admissible.
  • Found that the Respondent State violated the obligation to guarantee the independence of the courts under Article 26 of the African Charter.
  • Held that the Respondent State violated the obligation to ensure that constitutional revision reposes on national consensus under Article 10(2) of the African Charter on Democracy, Elections and Good Governance.
  • Declared that the Respondent State violated the right to information under Article 9(1) of the African Charter.
  • Held that the Respondent State violated the right to peace and the right to economic, social and cultural development under Articles 22(1) and 23(1) of the African Charter.
  • Found that the right to an impartial tribunal under Article 7(1) was not violated.
  • Ordered the Respondent State to pay the Applicant the sum of one (1) CFA franc as a token amount for moral damage.
  • Dismissed the Respondent State's counterclaim for reparation.
  • Ordered the Respondent State to take all legislative and regulatory measures to guarantee the independence of the Constitutional Court, particularly regarding the renewal of judges' terms of office.
  • Ordered the Respondent State to repeal Law No. 2019-40 of 1 November 2019 and all subsequent laws, including Law 2019-43 of 15 November 2019 on the Electoral Code, and to comply with the principle of national consensus for all constitutional revisions.
  • Ordered that these measures be undertaken before any election.
  • Ordered the Respondent State to submit a report on implementation within three months.
  • Decided that each Party shall bear its own costs.

Rules and key headnotes

Judicial Independence — Renewable Terms of Office — Constitutional Courts
The renewable nature of the term of office of judges of a constitutional court, where renewal depends on the discretion of the President and the National Assembly without clear criteria, compromises judicial independence and violates the obligation to guarantee the independence of courts under Article 26 of the African Charter on Human and Peoples' Rights.
Constitutional Amendment — National Consensus — Democratic Process
A constitutional revision adopted by a parliament composed solely of members from the ruling party, without consultation of all actors and different opinions, and without a referendum, violates the principle of national consensus required by Article 10(2) of the African Charter on Democracy, Elections and Good Governance, even if the revision is adopted unanimously by the sitting parliament.
Right to Information — Constitutional Revision — Publication of Parliamentary Debates
A state violates the right to information under Article 9(1) of the African Charter on Human and Peoples' Rights where it fails to disseminate a draft constitutional revision among the population to enable citizens to form an opinion and participate in debate, and where it fails to publish parliamentary debates in the official gazette as required by domestic law. The burden of proof that citizens have enjoyed their right to information lies with the state.
Right to Development — Constitutional Revision — Social Disruption
A constitutional revision adopted outside the process of national consensus and in violation of fundamental human rights may constitute a major disruption of the economic, social and cultural development of a state and thereby violate the right to development under Article 22(1) of the African Charter on Human and Peoples' Rights.
Right to Peace and Security — Constitutional Revision — Exclusion of Population Segments
A constitutional revision adopted without national consensus, thereby putting aside a large segment of the population who may not identify with the law, poses a threat to peace and stability and violates the right to peace and security under Article 23(1) of the African Charter on Human and Peoples' Rights.
Judicial Impartiality — Presumption of Impartiality — Burden of Proof
The impartiality of a judge is presumed and undisputable evidence is required to refute this presumption. A mere allegation of impartiality is not sufficient, and any subjective perception by a party of the existence of bias must be justified and substantiated by credible evidence. Previous involvement of a judge in a constitutional revision process, while creating a possibility of appearance of bias, does not necessarily demonstrate the existence of preconceived bias where the judge is one among several judges sitting on the bench and there is no evidence that the judge imposed his opinions on other members of the court.
Standing — Public Interest Litigation — Direct Interest Requirement
Under Article 5(3) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court, individuals are not required to demonstrate a personal interest in an application in order to access the Court, especially in public interest litigation. A citizen has a direct interest in challenging the manner and context of a constitutional revision, as the constitution is the supreme law of the land and its amendment has a direct or indirect bearing on individual rights and the security and well-being of society.

Legislation cited (24)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 7(1)(d)
  • African Charter on Human and Peoples' Rights Article 9(1)
  • African Charter on Human and Peoples' Rights Article 13(1)
  • African Charter on Human and Peoples' Rights Article 20(1)
  • African Charter on Human and Peoples' Rights Article 22(1)
  • African Charter on Human and Peoples' Rights Article 23(1)
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Democracy, Elections and Good Governance Article 10(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
  • 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 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 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 34(6)
  • Constitution of the Republic of Benin (Law No. 90-032 of 11 December 1990) Article 3
  • Constitution of the Republic of Benin (Law No. 90-032 of 11 December 1990) Article 57
  • Constitution of the Republic of Benin (Law No. 90-032 of 11 December 1990) Article 86
  • Constitution of the Republic of Benin (Law No. 90-032 of 11 December 1990) Article 114
  • Constitution of the Republic of Benin (Law No. 90-032 of 11 December 1990) Article 115
  • Constitution of the Republic of Benin (Law No. 90-032 of 11 December 1990) Article 121
  • Law No. 2019-40 of 1 November 2019 (revising Constitution of Benin)
  • Law No. 91-009 of 4 March 1991 (Organic Law on the Constitutional Court of Benin) Article 18
  • Law No. 2019-43 of 15 November 2019 (Electoral Code of Benin)

Cases cited (22)

  • Ingabire Victoire Umuhoza v Republic of Rwanda (Jurisdiction) (3 June 2016) 1 AfCLR 585
  • Houngue Eric Noudehouenou v Republic of Benin (Application No. 003/2020)
  • Franck David Omary and Others v United Republic of Tanzania (Merits) (28 March 2014) 1 AfCLR 371
  • Peter Chacha v United Republic of Tanzania (Ruling on Admissibility) (28 March 2014) 1 AfCLR 413
  • Actions pour la Protection des Droits de l'Homme (APDH) v Cote d'Ivoire (Merits and Reparations) (18 November 2016) 1 AfCLR 697
  • Suy Bi Gohore Emile and Others v Republic of Cote d'Ivoire (Application No. 044/2019)
  • African Commission on Human and Peoples Rights, Communications 25/89, 47/90, 56/91, 100/93, World Organisation Against Torture, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah (WTOAT) v. Zaire, § 51
  • Christopher Jonas v United Republic of Tanzania (Merits) (28 September 2017) 2 AfCLR 105
  • Norbert Zongo and Others v Republic of Burkina Faso (Ruling on Preliminary Measures) (21 June 2013) 1 AfCLR 204
  • Alfred Agbesi Woyome v Republic of Ghana (Application No. 001/2017)
  • Alex Thomas v United Republic of Tanzania (Merits) (20 November 2015) 1 AfCLR 482
  • Beneficiaries of Late Norbert Zongo and Others v Burkina Faso (Reparations) (5 June 2015) 1 AfCLR 265
  • Lohé Issa Konaté v Burkina Faso (Reparations) (3 June 2016) 1 AfCLR 359
  • Reverend Christopher Mtikila v Tanzania (Reparations) (13 June 2014) 1 AfCLR 74
  • Ingabire Victoire Umuhoza v Republic of Rwanda (Reparations) (7 December 2018) 2 AfCLR 202
  • ECHR, Campbell and Fell, §78, Judgment of 28 June 1984
  • Incal v. Turkey Judgment of 9 June 1998, Reports 1998-IV, p. 1571, §65
  • Human Rights Committee, Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN Doc. GAOR, A/48/40(vol. II), § 7.2
  • Constitutional Court Decision DCC 19-504 of 6 November 2019
  • Constitutional Court Decision DCC 06-74 of 08 July 2006
  • Constitutional Court Decision DCC 10-049 of 05 April 2010
  • Constitutional Court Decision DCC 10-117 of 08 September 2010

Full judgment

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XYZ v Benin (Application No. 010-2020) [2020] AfCHPR 3 (27 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.