Академический Документы
Профессиональный Документы
Культура Документы
5 10 October 2015
University of Zambia
AND
ii
List of references
International treaties
1. African Charter on Human and Peoples Rights, adopted on 27 June 1981& entered into force
on 21 October 1986.
2. African Charter on the Rights and Welfare of the Child, adopted on 11 July 1990 & entered
3. Convention on the Rights of the Child, adopted on 20 November & entered into force on 2
September 1990.
and Peoples' Rights, 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia.
5. General Comment 14, UN Committee on Economic, Social and Cultural Rights (2000).
6. General Comment 18, UN Committee on Economic, Social and Cultural Rights (2006).
7. General Comment 20, UN Committee on Economic, Social and Cultural Rights (2009).
10. International Covenant on Civil and Political Rights, adopted on 16 December 1966 & entered
11. International Covenant on Economic Social and Cultural Rights, adopted on 16 December
12. Optional Protocol to International Covenant on Economic, Social and Cultural Rights, adopted
13. Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004).
iii
14. Protocol to the African Charter on Human and Peoples Rights on the Establishment of an
African Court on Human and Peoples Rights, adopted on 10 June 1998 and entered into force
on 25 January 2004.
15. The Declaration on Academic Freedom and Autonomy of Institutions of Higher Education
16. The Kampala Declaration on Intellectual Freedom and Social Responsibility (1990).
17. Universal Declaration of Human Rights, G.A. Res 217A (iii), U.N. Doc. A/811 (1948).
Domestic laws
Case laws
Case laws from the African Commission on Human and Peoples Rights
1. Amnesty International and others v Sudan 2000 AHRLR 297 (ACHPR 1999).
iv
4. Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186
(ACHPR 1995).
5. Constitutional Rights Project and Another v Nigeria (2000) AHRLR 191 (ACHPR 1998).
8. Social and Economic Rights Action Canter (SERAC) and Another V Nigeria (2001) AHRLR
60 (ACHPR 2001).
9. Zimbabwe Human Rights NGO Forum v Zimbabwe (2005) 351AHRLR 128 (ACHPR 2005).
and 424/1990(1996).
Christine Mulundika and Others v The People (1995) SCZ Judgment No. 25 of 1995
v
Books and articles
1. Currie, I & Waal, JD The Bill of Right Hand Book (6th ed) (2005).
2. Keller, H; Ulfstein, G & Grover, L Human Rights Treaty Bodies: and Law and Legitimacy,
3. Human Right Watch: Academic Freedom and Human Rights Abuses in Africa (1990).
5. Viljoen, F International Human Rights Law in Africa (Oxford University Press: 2012).
vi
List of abbreviations
3. AU African Union.
8. GC General Comment.
vii
Statement of facts
1. The Constitution of United Republic of Mongu (URM) provides that 'all treaties duly ratified or
acceded to by URM, form part of the law of the land. As at 2012, URM had ratified all the human
rights treaties of United Nations (UN) and African Union (AU) and Protocol to the African Charter
on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples
Rights (the Court Protocol) on 10 October 2013. The URM High Courts and the Supreme Court
rights.
2. The URM Government owns 45% of shares in the Standard Minerals Limited (SML) mining
company. SML asbestos mine operates in Kankoyi District. Likando Moremi, a 16 year-old
resident of Kankoyi District, was diagnosed with advanced lung cancer. According to the Central
Provincial medical guidelines, in providing hospital space, hospitals are to be guided by the
prognosis of patients. Likando was denied hospital space and died of lung cancer. Reports indicate
that 68% Kankoyi residents death from illness is due to the fiber release from the asbestos mine.
3. Pursuant to Mining Safety Act (MSA) adopted in 2010, if a miner dies because of a mine accident,
half of his yearly salary should be paid to his estate. However, for all deaths resulting from
occupational accidents other than mining, a yearly salary has to be paid to the deceaseds estate.
From 2010 to 2014 SML gold mine had not been subjected to any inspection.
4. On 4 March 2014, a mining accident occurred in SML gold mine, resulting in death of over 200
miners. Mr Kozo, who is lecturer at UNINOK, has conducted study on SML asbestos and gold
mine. He shared the findings of his study through public lecture to UNINOK students. The
UNINOK Disciplinary Panel dismissed him for disgracing the University in his study.
5. According to the Peaceful Assemblies Act (PAA) adopted by the URM Government, anyone who
engages in any form of public assembly shall obtain prior permission from the District Prefect. On
1
20 January 2015, organisers of students protest submitted written request for permission to Prefect
secretary, but no response had been received. On 21 January 2015, when the students started
protesting members of the Presidential Guard stormed the group, hitting them with batons. Twenty-
2
Summary of arguments
6. The non-justiciability of economic, social and cultural rights (ESCRs) under the URM Constitution
Likando timely access to healthcare service, the URM Government violated Likandos' right to
health.
7. The MSA is discriminatory since it provides lesser amount of compensation for deaths resulting
from mining accident than deaths resulting from other accidents. In addition, by failing to monitor
unsafe working condition in SML gold mine operation the URM Government violated the right to
work of miners.
8. The PAA that requires anyone who engages in any form of public assembly to request prior
permission violates right to assembly. Forcefully dispersing peaceful assembly is also violation of
9. UNINOK Disciplinary Code is outdated, overly vague and excessively restricts freedom of
expression and academic freedom. Dismissal of Mr Kozo because of criticizing Government in his
3
Statement of jurisdiction
1. The applicant and respondent have both submitted this communication to the African Court on
Human and Peoples Rights (the Court) which was established by the Court Protocol.1
2. The URM has ratified all the UN and AU human right instruments as of 2012 and the Court
Protocol in 2013. Although, the UNINOK Disciplinary Code, MSA, PAA and the Medical
guidelines were enacted before the ratification of the Court Protocol, since their effects constitutes
continuous violation the Court is competent ratione temporis.2 Pursuant to article 3(1) of the Court
Protocol, the Court has the authority to interpret and apply those ratified instruments to the current
communication. Further article 3(2) of the Protocol empowers the Court to decide in the event of a
3. Thus, the applicant is entitled to submit its case to the Court in terms of article 5(1) (a) of the Court
Protocol.
1
Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights
(the Protocol), Art 1.
2
Lawyers for Human Rights v Swaziland (2005) AHRLR 66 (ACHPR 2005), Para 44.
4
Admissibility
10. Pursuant to article 6(2) of the Court Protocol, the Court shall rule on the admissibility of cases
taking into account the provisions of Article 56 of African Charter on Human and Peoples' Rights
(ACHPR). Among the preconditions, issues of exhaustion of local remedies requires scrutiny.3
11. The issue of Likandos right to health was submitted to the High Court. However, the Court
rejected the case arguing that the right to health is not justiciable under URM Constitution.4 As held
by the African Commission, the non- justiciability of ESCRs is an impediment that makes local
remedies unavailable. 5 Further, regarding the miners right, the High Court and Supreme Court
rejected a case instituted by the Miners trade union on want of locus standing.6 This act is contrary
to the principle of actio popularis adopted under African Charter. 7 In addition, such procedural
hurdle makes local remedy inaccessible. The existence of remedy should be practical and
sufficiently certain.8 The 2012 Enforcement rule has no practical effect. The African Commission
has held that, remedies, the availability of which is not evident, cannot be invoked by the State to
12. Furthermore, a case challenging the legality of PAA was submitted to the Supreme Court but the
latter dismissed it without giving any reasons.10 By extension, the protesters should not be required
to institute a new case since there is no prospect of success. Similarly, Mr Kozo has approached the
Supreme Court to challenge the decision of the Disciplinary Panel. However, the Court endorsed
3
ACHPR, Art 56(5).
4
Hypothetical case, Para 11.
5
Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) (Jawara case), Para 31.
6
Hypothetical case, Para 13.
7
Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007), Para 65.
8
Jawara case, Para 35.
9
Jawara case, Para 34.
10
Hypothetical case, Para 3.
11
Hypothetical case, Para 18.
5
13. In determining exhaustion of local remedies; the availability, effectiveness and sufficiency of the
12
remedies are major and cumulative criteria. Therefore, the applicant submits that the
communication is admissible since there is no available, accessible, effective and sufficient local
remedy in URM.
Merits:
14. Human rights are indivisible.13 The enjoyment of civil and political rights cannot be dissociated
from ESCRs.14 The right to health is recognized indiscriminately to every individual under rights
instruments.15
15. Nevertheless, contrary to the indivisibility principle, the URM Constitution restricts the courts
jurisdiction only to civil and political matters- rendering ESCRs non-justiciable.16 The justiciability
of ESCRs is among the peculiar features of the ACHPR.17 Furthermore, in Ogoniland case, the
African Commission has stated that there is no right in the African Charter that cannot be made
effective.18 Thus, such unwarranted distinction between rights and failure to make domestic laws
compatible with human rights instruments undermines State obligation as set out under articles 1 of
16. Pursuant to article 16 of the ACHPR, every individual shall have the right to enjoy the best
attainable state of physical and mental health. 19 To ensure the full realization of this right the
12
Jawara case, Para 31.
13
Vienna Declaration and Program of Action (1973), Para 5.
14
ACHPR, Preamble, Para 8.
15
ACHPR, Art 16(1); ACC, Art 14 (1); CESCR, Art 12(1) & CRC, Art 24(1).
16
Hypothetical case, Para 11.
17
F Viljoen: International Human Rights Law in Africa (2012) 214.
18
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (Ogoniland case), Para
68.
19
ACHPR, Art 16(1).
6
Government shall ensure that their people receive medical treatment in the event sickness. 20
Further, the Convention on the Rights of the Child (CRC) obligates the URM Government to
strive to ensure that no child is deprived of his or her right of access to healthcare services.21
17. Further, the Pretoria Declaration provides that, right to health entail availability of accessible and
affordable health facilities for all.22 However, the Central Provincial medical guidelines direct that
in providing hospital space, hospitals are to be guided by the prognosis of patients. 23 In this
regard, the UN Committee on Economic, Social and Cultural Rights (Committee on ESCR) has
held that:
Health facilities, goods and services must be accessible to all, especially the most vulnerable or
marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited
grounds.24
Moreover, it is prohibited to make discrimination in access to health care on the ground of health
status, which has the effect of nullifying or impairing the equal enjoyment or exercise of right to
health. 25 Thus, URM Government has jeopardized the rights to health, dignity and equality of
18. Furthermore, Likando was child at the time he was seeking for healthcare service. 26 His minority
and the severe lung cancer he suffering makes him to be vulnerable person. The Committee on
ESCR has stated that, even in times of severe resource constraints, the vulnerable members of
society must be protected.27 Ensuring the right of access to health facilities, goods and services and
drugs on a non-discriminatory basis, especially for vulnerable group are among the components of
20
International Covenant on Economic, Social and Cultural rights (CESCR), Art 12(2) (c).
21
Convention on the Rights of the Child (CRC), Art 24(1).
22
Pretoria Declaration on Social, Economic and Cultural Rights (Pretoria Declaration), Para 7.
23
Hypothetical case, Para 10.
24
General Comment 14, UN Committee on ESCR (GC 14, CESCR), Para 12(b).
25
GC 14, CESCR, Para 18.
26
Hypothetical case, Para 10.
27
General Comment 3, Committee on ESCR (GC 3, CESCR), Para 12.
7
core minimum obligations, which are non-derogable. 28 The URM Government has special
obligation to protect the vulnerable persons like Likando. It should not misinterpret progressive
realization as depriving obligation of all meaningful content.'29 Thus, the URM Government cannot
invoke its financial constraints for its failure to provide healthcare service for Likando.
19. The obligation to provide medical treatment and save life is the duty of government hospital. The
right to health is integral to the right to life and the government has a constitutional obligation to
provide health facilities.30 Further, the failure of a government hospital to provide a patient medical
treatment is a violation of the patient's right to life.31 Thus, Likandos exclusion from healthcare
service through discriminatory guideline violates the rights to life and health as provided under
20. Furthermore, Likando contracted lung cancer due to fibres released from the SML asbestos mine.
Report indicates that these fibres were responsible for poor health condition and 68% of death from
illness of Kankoyi residents, including Likando.32 The URM Government has the duty to protect
individuals health from being endangered by the practices of non-state actors. 33 Further, since
URM Government is a joint owner of SML Company, it is both carrying out and tolerating
operation of SML asbestos mine that has negative health impact.34 Thus, as held by the African
Commission in Zimbabwe Human Rights NGO Forum case, violation of Likandos health right is
transferred into a constructive act of URM Government because of lack of due diligence to prevent
the violation.35
21. Therefore, by enforcing discriminatory medical guidelines, denying Likando access to medical
treatment and by tolerating the unsafe operations of SML asbestos, the URM Government has
28
GC 14, CESCR, Para 43(a) & 47.
29
GC 3, CESCR, Para 9.
30
State of Punjab v Mohinder Singh Chawla (1997) 2 SCC 83.
31
Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another (1996) AIR SC 2429, Para 9.
32
Hypothetical case, Para 15.
33
Ogoniland case, Para 44 - 46.
34
Hypothetical case, Para 8.
35
Zimbabwe Human Rights NGO Forum v Zimbabwe (2005) AHRLR 128 (ACHPR 2005) (Zimbabwe Human Rights case), Para 143.
8
violated the right to health of Likando guaranteed under article 16 of ACHPR, article 24 of CRC,
II. Violation of the right to satisfactory working condition of miners under article 15 of ACHPR.
22. Every individual shall have the right to work under equitable and satisfactory working conditions.36
States Parties to CESCR should recognize the right of everyone to the enjoyment of just and
favorable conditions of work, which includes in particular, safe and healthy working conditions.37
23. The URM Government has the duty to regulate the operations of non-state actors to ensure the
realization of the right to satisfactory working conditions for miners. 38 However, it had not
inspected SML gold mine that had been operating under unsafe working condition. 39 The
occupational accident in SML gold mine that claimed the life of more than 200 miners is largely
due to this unsafe working condition.40 Report indicates that an estimate of 50% of this death was
avoidable had safety measures were taken by the company. 41 Thus, the URM Government is
responsible for the violations committed by the SML gold mine, as it lacked due diligence to
24. The Pretoria Declaration provides that the right to work entail, inter alia, effective remedies for
work place-related accidents. 43 However, MSA provide that, if a miner dies because of a mine
accident, half his yearly salary should be paid to his estate. Whereas, under the Occupational (Other
than Mines) Safety Act, the amount of compensation is equivalent to one-year salary of the
36
ACHPR, Art 15 & CSECR, Art 7.
37
CESCR, Art 7(b).
38
General Comment 18, Committee on ESCR (GC 18, CESCR), Para 36.
39
Hypothetical case, Paras 7 & 15.
40
Hypothetical case, Para 12.
41
As above.
42
VR v H IACHR (Ser. C) No. 4 (29 July 1988) (Velasquez Rodriguez case), Para 172.
43
Pretoria Declaration, Para 6.
44
Hypothetical case, Para 7.
9
Any differential treatment that is directly or indirectly based on the prohibited grounds of discrimination
and which has the intention or effect of nullifying or impairing the recognition, enjoyment on an equal
Differential treatment based on the nature of work is prohibited under the phrase other status in
both the ACHPR and the CESCR. 46 Thus, the compensation scheme adopted by the MSA is
discriminatory. In addition, it does not qualify the requirement of effective remedy as required by
law. 47
25. Therefore, by adopting discriminatory Act, failing to monitor operations of SML gold mine to
enforce safe working conditions and by restricting the miners trade union from representing its
members before court, the URM Government has violated articles 15 and 7 of ACHPR and CESCR
respectively.
26. The right to freedom of assembly is universally recognized human rights. 48 This right encompasses
a range of activities including but not limited to meetings, mass actions, demonstrations and rallies
that are exercised freely without the need to secure prior permission from the public authorities.49
The ACHPR and ICCPR do not require prior permission to exercise right assembly.
27. Contrary to this norm, the URM Government has passed PAA that provides for prior permission to
conduct assembly that may reasonably lead to an act or acts of public violence. 50 This law
excessively restricts the right to assembly that is recognized in the URM Constitution, ACHPR and
45
General Comment 20, Committee on CESCR, Para 7.
46
ACHPR, Art 2 & CESCR, Art 2(2).
47
ACHPR, Art 15; CESCR, Art 7(b) Article 7(b) & Pretoria Declaration, Para 6.
48
ACHPR, Art 11; Universal Declaration of Human Rights, Art 20(1) & ICCPR, Art 21.
49
Office for Democratic Institutions and Human Rights (ODIHR): Guidelines on Freedom of Peaceful Assemblies (ODIHR Guideline),
principle 1 & Para 16.
50
Hypothetical case, Para 3.
10
The competent authorities should not enact provisions, which would limit the exercise of freedom, and
they should not override constitutional provisions or undermine fundamental rights guaranteed by the
In addition, UN Special Rapporteur on freedom of assembly stated that, the right to freedom of
peaceful assembly does not require the issuance of a permit to hold an assembly, rather, if
28. Any restriction on the right to assembly must have a formal basis in law, must be sufficiently
precise and should be proportional.53 However, PAA does not qualify these requirements since it
imposed excessive restriction and overly vague, as to what constitute public violence is not
clearly defined. Advance notification is sufficient to protect public order; thus, prior permission
requirement is excessive.54 Moreover, due to the wider discretion placed on authorities, they can
arbitrarily deny or grant the permission and this directly affect the freedoms of assembly.55
29. Lastly, the URM Government has a positive duty to protect and respect peaceful assemblies.56 The
phrase 'peaceful assembly' should be interpreted even to include conduct that deliberately impedes
or obstructs activities of third parties.57 In Cisse v France case, the European Court Human Rights
(ECHR) held that an assembly is deemed peaceful if its organizers have peaceful intentions.58 The
student marching was peaceful as their intention was to save Kankoyi residents from the negative
health impacts of operation of SML gold mine. However, instead of protecting this peaceful
30. Therefore, the author submits that, by passing unreasonable law that requires prior permission to
conduct assembly and by violently dispersing peaceful assembly, the URM Government has
51
Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186 (ACHPR 1995), Para 15.
52
Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association (A/68/299) (2013), Para 24 &
53
ODIHR Guideline, principle 3 & 4.
54
ODIHR Guideline, Section B , Para 123.
55
Mulundika and Others v The People 6.
56
ODIHR Guideline, Section A, Principle 2 & Section B, Paras 26 & 137.
57
ODIHR Guideline, Section B, Para 22.
58
Cisse v France ECHR (2002) Ser A 17, Para 37.
59
Hypothetical case, Para 17.
11
violated freedom of assembly and protesters right under articles 11 and 21 of the ACHPR and
ICCPR.
IV. Violation of the right to freedom of expression and academic freedom under article 9 of
ACHPR
31. Everyone has the right to freedom of expression, including the right to receive and impart
information and ideas of all kind orally or in writing. 60 Academic freedom is one way of exercising
freedom of expression, inter alia, through research and teaching.61 Teaching and researching, which
are vessels of expression, can only be fully enjoyed in an atmosphere of academic freedom and
32. Pursuant to the Committee on ESCR, UNESCO Recommendations and Kampala Declaration on
Academic Freedom, academic personnel shall have security of tenure, the right to fulfill their
functions of teaching and researching without fear of interference or repression from the State or
any other public authority.63 Free speech and academic freedom are inseparable. Conducting and
33. Though academic freedom is not explicitly provided under the ACHPR, the applicant agrees with
the suggestion of African human rights scholars that it can be read into the right to freedom of
expression and the right to education under articles 9 and 17(1) respectively. 64 Further, the Court,
pursuant to article 60 and 61 of the ACHPR, can consider the aforementioned declarations and
recommendations in protecting academic freedom and freedom of expression under the ACHPR.
60
ACHPR, Art 9 & ICCPR, Art 19(2).
61
General Comment 34, Human Rights Committee (GC 34, HRC), Para 11.
62
General Comment 13, Committee on CESCR (GC 13, CESCR), Paras 38 & 40.
63
GC 13, CESCR, Para 39; Kampala Declaration on Intellectual Freedom and Social Responsibility (1990) & United Nations
Educational, Scientific and Cultural Organisation (UNESCO): Recommendation concerning the Status of Higher-Education Teaching
Personnel (1998) (UNESCO Recommendation), Para 46 & 50.
64
Unpublished: T Massingi Academic Freedom in Africa: A Case for the Interpretation of the African Charter on Human and Peoples
Rights as Providing Protection for the Human Right to Academic Freedom Unpublished LLM thesis, Center of Human Rights,
University of Pretoria, 2006 53.
12
34. In instant communication, in accordance with the University of Nokeyema (UNINOK) disciplinary
code, the UNINOK Principal confronted Mr Kozo to renounce his research findings that openly
criticize the Government. Following his resistance, the University Disciplinary Panel, headed by
the Principal of the University, dismissed Kozo from his employment based on a disciplinary code
that is excessively restrictive and grossly inconsistent to the academic freedom and freedom of
expression. The Principal is political appointee. 65 This undermines the Universitys autonomy,
35. The URM Government is under an obligation not to enact provisions that excessively limit the
enjoyment of rights and freedoms in ACHPR. 67 Furthermore, in Article 19 v Eritrea case, the
African Commission has held that, 'any limitation on the rights of the Charter must be in
conformity with the provisions of the Charter.'68 The Commission further stated that, 'where it is
necessary to restrict rights, the restriction should be as minimal as possible.'69 It is settled that the
protection to freedom of expression extends not only to expressions that are considered as favorable
by government authorities, but also to expressions that may offend, shock or disturb the State or
any sector of the population.70 Free speech allows individuals to openly and publicly criticize their
governments without fear of interference or punishment.71 This could be done through, inter alia,
teaching or researching. Thus, Kozos dismissal for criticizing Government in disseminating his
36. Therefore, the applicant submits that, by enforcing an outdated disciplinary code and by
excessively restricting freedom of expression and academic freedom, the URM Government has
65
Hypothetical case, Para 14.
66
GC 13, CESCR, Para 40 & UNESCO Recommendation, Para 18.
67
Constitutional Rights Project and Another v Nigeria (2000) AHRLR 191 (ACHPR 1998), Para 58.
68
Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007), Para 105.
69
Amnesty International and others v Sudan 2000 AHRLR 297 (ACHPR 1999), Para 80.
70
Handy side v UK, Series A No 24, Para 49; GC34, HRC, Para 11
71
Communication Nos 422/1990,423/1990 & 424/1990, U.N. Doc.CCPR/C/51/D/422/1990, 423 and 424/1990(1996), Para 7.4
13
Prayers
Pursuant to article 27 of the Court Protocol, the Court has authority to order State parties to grant
remedies for human rights violation. Thus, the applicant respectfully requests the honorable court for
the following:
Likando from essential healthcare services and order the URM Government grant
II. A declaration that URM Government has violated article 15 of ACHPR in failing to ensure
favorable working condition for miners and to order compensation payment to miners'
IV. A declaration that the URM Government has violated article 9 of ACHPR in excessively
restricting freedom of expression and academic freedom, and to order the Government to:
Respectfully submitted,
14