In a historic move intended to ensure that African states do not encourage impunity by abdicating their responsibilities to protect their citizens’ lives, and provide effective remedies where such rights are violated, the African Court on Human and Peoples’ Right (ACHPR) held a two-day public hearing in the case of a Burkinabe journalist killed by suspected state’s agents. Eric Ikhilae, who witnessed the proceedings held in Arusha, Tanzania reports
When can an African state be said to have effectively discharged its responsibilities, under the African Charter on Human and People’s Rights (ACHPR) and similar legislations for the protection of its citizens’ right to life?
When can a state be adjudged to have failed in providing effective remedies where the right to life is violated? And, what remedies exist for victims or their beneficiaries where a state fails to discharge these responsibilities?
These, among others are issues to be determined by the African Court on Human and Peoples’ Rights (ACHPR) in a case that queries the manner in which the government of Burkina Faso handled the assassination of an investigative journalist and newspaper publisher, Nobert Zongo and three others.
The case marked “Application No: 013/2011” was initiated against the Burkinabe government by the beneficiaries of the deceased and Burkinabe Movement for Human and Peoples’ Right (BMHPR) after the country discontinued the trial of a man held in connection with the killings and, the Burkinabe’s Court of Appeal dismissed the case.
The applicants alleged that Zongo, who was the publisher and editor of l’Indépendant newspaper in Burkina Faso, was assassinated after the paper started investigating the murder of David Ouedraogo, a driver who worked for President Blaise Campaore’s junior brother.
They stated that an Independent Commission of Enquiry set up later, concluded that Zongo and others were killed for purely political reasons, because of the journalist’s investigative work into the death of Ouedraogo.
They accused the government of not only failing in its obligation to protect the lives of its citizens, it also abdicated it duties of providing adequate amenities for redress, by allegedly failing to conduct thorough investigation and frustrating the judicial process by manipulating it to shield state’s agents suspected of being behind the killings.
According to the applicants, Zongo, his brother, Ernest and two others – Abdoulaye Nikiema (alias Ablassé) and Blaise Ilboudo were found dead in Sapouy, outside the country’s capital on December 13, 1998 few days after he wrote in his paper that his life was being threatened and told those close to him that he was being pressured to back down on the Ouedraogo story. Three of them were burnt inside the vehicle they rode in, while the body of the fourth was recovered by the road side.
They said after the incident, the government, rather than allow a normal investigative process by security agencies, set up what it called an Independent Commission of Enquiry (ICE) to investigate the killings. The body was made up of 11 people including representatives of the state’s Ministries of Justice, Defence and Interior.
In its final report on May 7, 1999 the ICE was said to have identified six “serious suspects” as members of the Regiment of the Presidential Security.
The applicants stated that rather than apprehend those identified in the ICE reports and prosecute them, President Campaore set up another body he called the “College of the Wise” headed by Archbishop Anselme Titiama Sanon of Bobo-Dioulasso, to review the report of the ICE and propose recommendations likely to obtain “consensus of all actors on national political scene.”
According to them, the College of the Wise submitted its report on July 30, 1999 following which the government reluctantly charged one – W. O. Kafando – out of the identified state’s agents to court.
On July 13, 2006, the state’s prosecutor applied to withdraw charges against kafando, following which the court dismissed the charges. The complainants challenged the decision at the Court of Appeal, but had their appeal dismissed on August 16, 2006, a development that prompted their case at the ACHPPR.
For two days, on November 28 and 29, the court at its 31st Ordinary Session held in Arusha, Tanzania conducted a public hearing in the case, where parties were afforded the opportunities to present their cases.
The applicants’ case was presented by a three-man legal team led by the Chairman, National Human Rights Commission (NHRC) of Nigeria, Dr Chidi Odinkalu. Also in the team were Ibrahima Kané from Senegal and Benewende Sankara from Burkina Faso.
The applicants’ main contention is to the effect that the killings and Burkinabe government’s alleged failure to fully investigate and try those involved, violated the provisions of Articles 1, 2, 3, 4, 7 and 9 of the African Charter on Human and Peoples’ Rights, Articles 2 (3), 14 and 19 (2) of the International Covenant on Civil and Political Rights and Article 8 of the Universal Declaration of Human Rights.
They also argued that, as a practicing journalist, Zongo’s right to freely practice his trade without threats and molestation has been breached by his murder. The applicants also argued that the Burkinabe government should be held liable because, in failing to secure the lives of its citizens, it allowed the killing and by also failing to punish the culprits, it has failed on its obligation under Article 66(2)(c) of the ECOWAS Treaty.
They prayed the court to hold that the Burkinabe government failed in its obligations to preserve its citizens’ right to life and provide adequate remedies for redress where such right had been violated. The applicants urged the court to ensure justice and order compensation for the deceased’s beneficiaries.
In his presentation, Sankara argued that the applicants decided to approach the court because of the failure of his country’s legal system to address the unjust elimination of the four deceased by suspected agents.
He said the gruesome murder of the journalist and others was a reflection of the state of impunity in his country. He said Zongo had, while alive, insisted on ethical conduct, a belief that led to his murder by suspected state’s agents.
Kane said the judiciary in Burkina Faso failed to bring those behind the killing to book because it is independent and was amenable to the manipulation of the government.
“We request that the state of Burkina Faso be condemned for the violation of the African Charter,” he said, while insisting that a point must be made with this case for African states to learn to act with less impunity.
Odinkalu noted that the case addresses the most important question in the continent today, which is: “What is of life in Africa and what responsibilities do states parties to the African human rights system have to protect life?”
He argued that state’s obligation for the protection of right to life includes the duty to effectively and dutifully investigate and ensure accountability for violation of the right to life. He contended that with the failure of the Burkinabe government to punish those behind the killings, it was providing impunity for their killers.
On argument by the Burkinabe government that the applicants failed to prove that it failed to discharge its responsibilities to provide effective remedies, Odinkalu argued that burden of demonstrating the effectiveness of the remedies available to victims is on the state. He further argued that the respondent has failed to discharge this responsibility.
He contended that, by praying the court to dismiss the case, the respondent seek the court’s sanctioning of impunity and “clothe audacious, cynical and deliberate abdication of state responsibility with judicial legitimacy.”
In their counter argument, respondent’s lawyers, Maitre Ouedraogo and Pascal Some, denied the allegations by the applicants. They argued that the country’s government had done all it could to ascertain the actual killers of the deceased.
They objected to the suit on three grounds: First is that the court lacked the jurisdiction to hear the case on the ground that the incident occurred before the court came into existence.
Secondly, they argued that the applicants had not exhausted domestic remedies before seeking help from outside and, thirdly, that the applicants delayed in filing the case before the court.
Ouedraogo argued that the Burkinabe government took all the necessary steps in discharging its responsibilities on the African Charter and other similar laws on the provision of adequate remedies where right to life was abused.
She objected to the applicants’ argument that this case was similar to the manner the government handled the killing of the country’s former leader, Thomas Sankara and the eventual dismissal of the case by the country’s apex court for want of evidence.
The respondent lawyer argued that both cases were distinguishable. She issues raised by the applicants bordered on mere allegations, without hard facts and evidence to support them.
Some argued that it was wrong for the applicants to accuse the state of being behind the killings. He said the state learnt that Zongo, before his death, allegedly had disagreement with some poachers on his range and that he had earlier survived attempt to poison him at an event.
In response to a question form one of the judges on why the state did not take steps o protect Zongo on realizing that his life was in danger, Some blamed the deceased journalist for not making a formal complaint to the government.
He argued that although the journalist had written, in his paper before he was killed, about threats to his life, there was limit to the extent the state could go in protecting a citizen. This, he said, was because the government could not have singled Zongo out for special protection when other citizens equally deserve the same level of protection.
Some argued that there was the limit to what the state could provide for its citizens. He urged the court to dismiss the case.
On the last day, after parties adopted their briefs and addressed questions raised by some members of the nine-man panel of judges, the presiding judge and court’s President, Justice Sophia Akuffo announced that by the provision of Rule 59 of the court’s Rules, judgment will be delivered within 90 days.
