THE TWENTY FIRST AFRICAN HUMAN RIGHTS MOOT COURT COMPETITION

UNIVERSIDADE EDUARDO MONDLANE, MAPUTO, MOZAMBIQUE

1 6 OCTOBER 2012

THE AFRICAN COURT ON HUMAN AND PEOPLES RIGHTS

IN THE MATTER BETWEEN

THE NGO CONCHINA CONCERNED CITIZENS COALITION (CCCC/ 4Cs)

AND
THE STATE OF CONCHINA

MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS......................................................................................................................... ii
LIST OF AUTHORITIES........................................................................................................................ iii
LIST OF ABBREVIATIONS................................................................................................................... vi
STATEMENT OF JURISDICTION........................................................................................................vii
ADMISSIBILITY................................................................................................................................... viii
STATEMENT OF FACTS...................................................................................................................... ix
SUMMARY OF ARGUMENTS.............................................................................................................. xi
MERITS................................................................................................................................................. 1
I The legality of the Investment Act ......................................................................................................1
A. Obligation of the State of Conchina under article 21 of the African Charter..................................1
B. Obligations under article 2(1) of the International Covenant on Economic, Social and Cultural
Rights................................................................................................................................................. 2
II The legitimacy of the refusal to accept financial aid from the UPF....................................................3
III The legality of Chilalas conviction under the Sedition Act................................................................5
A.Violation of Article 29(3) of the African Charter...............................................................................5
B. Violation of Article 19 of the ICCPR and Article 9(2) of the African Charter .................................6
IV The legality of the forced feeding of Chilala.......................................................................................8
A. Obligation on state parties under Article 16 of the African Charter.................................................8
B. Obligation under Article 12 of the ICESCR ...................................................................................9
V Chilalas Right to a Fair Trial............................................................................................................ 11
A.Article 7 of the African Charter and Article 14 of the ICCPR.........................................................11
PRAYERS........................................................................................................................................... 14

ii

LIST OF AUTHORITIES

INTERNATIONAL TREATIES

1. African Charter on Human and Peoples Rights (African Charter), 27 June 1981,
CAB/LEG/67/3. Rev. 5, 21 I.L.M 58 (1982), Adopted in Banjul, The Gambia
2. African Convention on the Conservation of Nature and Natural Resources, adopted 15
September 1968, Algiers, Algeria. CAB/LEG/24.1
3. African Commission on Human and Peoples Rights 2001 Resolution on Freedom of
Expression
4. AU Maputo Declaration on Agriculture and Food Security (2003)
5. Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. Adopted by the General Assembly 9 December 1988
6. Charter of the United Nations, 1 UNTS XVI
7. Declaration of Principles on Freedom of Expression in Africa
8. International Covenant on Civil and Political Rights, March 23, 1976, 999 U.N.T.S. 171
9. International Covenant on Economic Social and Cultural Rights, January 3, 1976, 993
U.N.T.S. 3
10. Protocol to the African Charter on Human and Peoples Rights on the Establishment of an
African Court on Human and Peoples Rights, AGH Res. 230 (1998/2004)
11. Revised African Convention on the Conservation of Nature and Natural Resources,
adopted in Maputo Mozambique, 11 July 2003.

iii

12. Siracusa Principles on the Limitation and Derogation of Provisions in the International
Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984)
13. Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders on 31 July
1957
14. Universal Declaration of Human Rights, G.A. Res. 217A (iii), U.N. Doc. A/811 (1948)
15. Interim Rules for the African Court on Human and Peoples Rights
16. International Food Security Treaty
17. African Union Maputo Declaration on Agriculture and Food Security in Africa, 2003

DOMESTIC LAW

1. Constitution of the State of Conchina, 1980

2. Investment Act of 2005
3. Natural Resources Act of 2003
4. Sedition Act

CASE LAW

1. Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007)

2. Dawda Jawara v The Gambia, ACHPRC. Nos. 147/95 and 149/96 at para .31
3. International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212
(ACHPR 1998)
4. Le Roux v Minister of Safety and Security and Another 2009 4 SA 491 (N)
iv

5. Lesotho: Attorney-General v 'Mopa (2002) AHRLR 91 (LeCA 2002)

6. Media Rights Agenda and Others v Nigeria (200) AHRLR 200 (ACHPR 1998)
7. Odafe and Others v Attorney-General and Others 2004 AHRLR 205 (NgHC 2004)
8. Sesana and Others v Attorney General 2006 183 AHRLR (BwHC)

BOOKS AND ARTICLES

1. Amollo R Ensuring Rights make Real Change 2009 ESR Review Volume 10
2. Dugard J International Law A South African Persepeive 3rd ed (Juta & Co Ltd Claremont
2009)
3. Ebobrah T Human Rights Developments in African Sub-Regional Communities during
2009 2010 AHRLR 249-252
4. Lumina C Free trade or just trade? The world trade organisation, human rights and
development (Part 2) 2010Law, Democracy and Develoment Volume 4
5. Robinson P 2009 The Right to a Fair Trial in International Law Colloquium on
International Justice Rome

LIST OF ABBREVIATIONS

1.

ACCNNR African Convention on the Conservation of Nature and

Natural Resources

2. ACHPR

African Charter on Human and Peoples Rights (African Charter)

3. AHRLR

African Human Rights Law Reports

4. CCCC

Conchina Concerned Citizens Coalition

5. DAFS

AU Maputo Declaration on Agriculture and Food Security

6. HRC

Human Rights Committee

7. ICCPR

International Covenant on Civil and Political Rights

8. ICESCR

International Covenant on Economic, Social and Cultural Rights

9. NGO

Non-Governmental Organisation

10.

CAT

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment

11. UDHR

Universal Declaration of Human Rights

12. UN

United Nations

13. UNECA

United Nations Economic Commission for Africa

14. US$

United States Dollar

vi

STATEMENT OF JURISDICTION

1. The respondent submits that in terms of article 3 of The Protocol to the African Charter on
the Establishment of the African Court on Human and Peoples Rights 1 the Court should
decide on its own jurisdiction in the matter at hand.

Article 3(1) of the The Protocol to the African Charter on the establishment of the African Court on
Human and Peoples Rights on jurisdiction provides thus, The jurisdiction of the Court shall extend to all
cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol
and any other relevant Human Rights instrument ratified by the States concerned. While article 3(2)
provides, In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.

vii

ADMISSIBILITY

2. The Interim Rules of the African Court on Human and Peoples Rights states that
applicants should comply with the provisions of article 56 of the ACHPR which provides
that local remedies should be exhausted before the court is approached. 2

The

Respondent contends that the Applicant did not exhaust local remedies before
approaching the court. FICH approached the Constitutional Court of Conchina and not the
CCCC.

Rule 40(5) of the Interim Rules for the African Court on Human and Peoples Rights and Article 19 v
Eritrea (2007) AHRLR 73 (ACHPR 2007).

viii

STATEMENT OF FACTS

3. The State of Conchina is a developing country in Africa. Conchina is divided into five
provinces of which the central province is well known for its industrialisation. The total
population amount to approximately 15 million people.
4. After gaining independence in 1963 a civil war broke out between the Northern, Central
and Southern Provinces and the Coastal Province. The first democratic election was held
in 1980 in which CHIP was elected as the ruling party and has remained such.
5. Prior to 2005, Conchina was a rural country with few industries and substantially reliant on
donations from foreign countries. In 2005 the Investment Act was enacted by the
government of Conchina with the aim of stimulating the domestic economy by attracting
foreign investment and forming international relations which would ensure sustainable
development. Furthermore, the Investment Act was aimed at developing domestic
companies by stipulating that the foreign companies have to provide counseling, advice
and training to citizens.
6. A report released by the Ministry concluded that unemployment had decreased
substantially and is projected to continue on a downward trend. Furthermore, the report
stated that local mining companies had subsequently been registered and are working in
partnership with the foreign companies.
7. Despite Conchinas fertile soil, the country is faced with sever threats to food security
namely insect plagues and low nutritional content of its staple crops. In reaction the
government of Conchina concluded the NSFSN agreement. The first genetically-modified
crops were marked as a success and malnutrition-related sicknesses decreased
ix

significantly. The project was however a trial period and a financial contribution of 40 per
cent of the purchase price of the seeds was required thereafter. To create space for the
genetically-modified seeds the government of Conchina had to destroy the older
agricultural seeds.
8. Given financial constraints, a food shortage ensued in Conchina. Political tensions have
historically been present between the UPF and Conchina and based thereon, in 2010
Conchina declined to accept financial support from the UPF.
9. Following these events, Domingos Chilala, a member of the FICH army, commenced a
hunger strike and publicly remarked that he would overthrow the government of Conchina.
Subsequently, demonstrations were conducted countrywide without police permits.
Following an effort by the police to disperse the crowds, the protests turned violent
resulting in the death of 15 police officers and 200 demonstrators.
10. As a result of the fatal protests and information received by the police, Chilala was
arrested and charged with sedition under the Sedition Act of Conchina. Chilala continued
his hunger strike and showed symptoms of fat and muscle tissue decay; a fatal condition.
The government of Conchina ordered the administration of a glucose drip to save Chilalas
life. The drip had to be forcefully administered.
11. On the 7th of May 2012 Chilala was convicted of sedition and sentenced to life in prison by
the Central Province High Court of Conchina. The trial was conducted in the presence of
Chilalas legal representative following consultation with Chilala. Chilala was absent due to
his poor health resulting from his hunger strike. On appeal, the Constitutional Court
confirmed the decision.

SUMMARY OF ARGUMENTS

12. The respondent argues that the government of Conchina acted in accordance with the
obligation created under article 21 of the African Charter and its obligations as custodian
of the iron ore resource of Conchina. Further the respondent argues that the provisions of
the Investment Act are in accordance with article 2(1) of the ICESCR in that states should
ensure the full realisation of rights given legislative measures.
13. The respondent argues that the socio-economic rights in the African Charter do not create
unqualified obligations on the respondent state. Further that the rights contained in article
22 of the African Charter were met by the respondent state in as far as this was possible.
14. In charging and imprisoning Chilala under the Sedition Act, the Respondent submits that it
was not in contravention of articles 9(2) and 29(3) of the African Charter and article 19 of
the International Covenant on Civil and Political Rights The Respondent submits that
Chilala was rightfully charged and convicted under the Sedition Act, as he is guilty in terms
of sections 3 and 4 of the said act, placing a rightful limitation on his right to free
expression. The Respondent argues that the objection that the Applicant raises to this
issue doesnt outweigh the restrictions on the right to free expression.
15. Finally with respect to Chilalas forced feeding, the Respondent submits that it was the
duty of the Republic of Conchina to ensure the health of Chilala in terms of article 16 of
the African Charter and article 12 of the International Covenant on Economic, Social and
Cultural Rights.

xi

MERITS
I
A.

The legality of the Investment Act

Obligation of the State of Conchina under article 21 of the African Charter

16. The Respondent argues that the government of Conchina acted in accordance with
its obligation as custodian of the iron ore wealth of Conchina. Section 22 of the
Constitution of the Republic Conchina, 19803 establishes the democratically-elected
representatives of Conchina as the custodians of the natural resources of Conchina.
17. As custodians of the stated resources, the democratically elected government of the
State is required to exercise care and control over the natural resources for the
ultimate benefit of the persons in whom ownership of the resources vest; namely the
citizens of Conchina. In the case of Sesana and Others v Attorney General4 it is
established that the state has the right and indeed the obligation to formulate
policies regarding the management and allocation of national resources. 5
18. The Respondent accordingly states that the promotion of the general welfare of the
people of Conchina falls within the ambit of the States duties. Article 21(3) 6 and
article 21(4) 7 of the African Charter qualifies this obligation.
3

4
5

Section 22 of the Constitution of the State of Conchina, 1980 states The natural resources of the
Republic of Conchina are the property of its people; the democratically-elected representatives shall
be the custodians of the resources.
4
Sesana and Others v Attorney General 2006 183 AHRLR (BwHC).
5
Article 2 of the African Convention on the Conservation of Nature and Natural Resources
obligates states parties to adopt measures necessary to ensure utilization of natural resources with
due regard to the best interests of the people.
Article 21(3) of the African Charter states that: The free disposal of wealth and natural
resources shall be exercised without prejudice to the obligation of promoting international economic
cooperation based on mutual respect, equitable exchange and the principles of international law.
Article 21(4) of the African Charter states that: States parties to the present Charter shall
individually and collectively exercise the right to free disposal of their wealth and natural resources
with a view to strengthening African unity and solidarity.

19. Article 21(4) of the African Charter places an obligation on state parties to enact
legislation which promotes economic development and cohesiveness among African
states. The Respondent provides that the provisions of the Investment Act8 are
clearly aimed at enabling the achievement of this goal. Attaining economic growth
within Conchina will undoubtedly result in a positive spillover effect for other African
states.
20. In accordance with article 21(3) of the African Charter, the provisions of the
Investment Act promote international economic cooperation. The objective of the
Investment Act was to stimulate the domestic economy and to attract foreign
investors. Based on available data, this objective has been attained in a sustainable
manner.9 The Respondent submits that the provisions of the Investment Act attain
the obligations stipulated by article 21 of the African Charter.
B. Obligations under article 2(1) of the International Covenant on Economic,
Social and Cultural Rights
21. The Respondent argues that the Investment Act is in accordance with article
2(1) of the ICESCR which provides that States should ensure the full
realisation of rights given available natural resources and the adoption of
legislative measures.

Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and
8
9

Investment Act of 2005.

Paragraph 10 of the Hypothetical Facts. Report released by the Minister of finance indicated
unemployment had decreased and partnerships between foreign and domestic companies had
increased.

technical, to the maximum of its available resources, with a view to achieving

progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures.10

22. The Respondent submits that the objectives of the Investment Act and subsequent
results ensure the realization of the rights of the citizens of Conchina pertaining to
social and economic welfare. The Investment Act simulated the domestic economy
and attracted foreign investors as indicated by available data. 11
II

The legitimacy of the refusal to accept financial aid from the UPF

23. The Respondent argues that socio-economic rights do not create unqualified
obligations on the State to provide certain socio-economic goods on demand. The
Respondent State argues that it initiated the NSFSN agreement to increase the
nutritional value of the agricultural seeds. As recorded, the objectives of the agreement
were met.12 This agreement was in accordance with article 22 of the African Charter as
it was aimed at securing the economic and social rights of the poor and attaining
development. However, the financial constraints incurred by the government of
Conchina, which resulted in the inability to supply the agricultural seeds, constituted a
legitimate limitation of the rights under article 22 of the African Charter. The

10
11

12

Article 2(1) of the International Covenant on Economic, Social and Cultural Rights, 1966.
Paragraph 10 of the Hypothetical Facts. Report released by the Minister of finance indicated
unemployment had decreased and partnerships between foreign and domestic companies had
increased.
Paragraph 13 of the Hypothetical Facts: To record, 2009 was the most successful planting year
in recent history. Medicins Sans Frontires remarked that in 2010, the incidence of blindness as a
result of Vitamin A deficiency was down by almost 50 per cent.

Respondent submits that were the State is financially limited, the rights are not
absolute.
24. The Respondent further argues that the government of Conchina has the
prerogative to make executive decisions regarding the countys economical and
financial situation and the resulting implications of such decisions. The International
Food Security Treaty13 stipulates that States have an obligation to provide food and
water to its citizens. However, the manner in which, and the measures that must be
employed by a Government to attain this obligation are not stipulated. The State of
Conchina has recorded a turbulent history with the United Peoples Federation. 14
The State of Conchina formally gained their independence in 1963 and soon
thereafter engaged in a civil war with the UPF faction as it manifested during
colonization.15 The Respondent therefore submits that the State of Conchina's
decision to refuse aid from the UPF was therefore undoubtedly to ensure continued
political unity among the majority of the citizens of the States and was taken in the
long term interests of the State.

13

14
15

Article 6 of the International Food Security Treaty provides that States have an obligation to respect,
protect, and fulfill the right to access to food and safe water for minimum nutritional requirements of
all people, without discrimination, within their borders who are unable to gain such access on their
own.
Hereinafter referred to as the UPF.
Paragraph 2 of the Hypothetical facts.

III The legality of Chilalas conviction under the Sedition Act

A. Violation of Article 29(3) of the African Charter
25. The Respondent argues that Chilala's statement is clearly directly related in time and

consequence to the said protests and that the violent nature of the protests
threatened the protection of the national security and public order of the State of
Conchina. Article 29(3) of the African Charter determines that each individual has
the duty not to compromise the security of the State whos national or resident he
is.16 Chilala's statement and the consequences thereof are in breach of this duty.
Chilalas subsequent conviction under the Sedition Act is therefore legitimate.
26. In Lesotho: Attorney-General v Mopa (2002) AHRLR 9117

it was held that a

limitation must be shown to serve a justifiable purpose. The limitation of Chilala's

freedom of expression in order to preserve public peace and security is a legitimate
purpose and weighs proportionally more than the fulfillment of Chilala's right to
freedom of expression in the circumstances.
27. The Respondent accordingly states that the provisions of the Sedition Act are
legitimate and legal, as is Chilala's conviction there under. The Sedition Act is not in
conflict with the African Charter.

16
17

Article 29(3) of the African Charter.

Lesotho: Attorney-General v 'Mopa (2002) AHRLR 91 (LeCA 2002) par 34.

B. Violation of Article 19 of the ICCPR and Article 9(2) of the African Charter
28. The Respondent submits that the statement made by Chilala constituted sedition
and his subsequent conviction on a charge of sedition was lawful. Section 3 of the
Sedition Act criminalizes as sedition any form of activity which directly or indirectly
contributes towards violence against an elected government. 18 The said section
corresponds with article 19 of the International Covenant on Civil and Political
Rights, 196619
29. In January 2011 Chilala stated in the presence of his office staff and party comrades
that the only way to ensure food security was to overthrow the government and that
he would do it himself. 20 As a direct consequence of Chilalas public statement,
protests were conducted unlawfully21 and while police tried to diffuse the crowds the
protests turned violent killing 15 police officers and hundreds of civilians. 22
30. Article 19 of the ICCPR states that

(3) The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
18
19

20

21

22

Paragraph 19 of the Hypothetical Case.

Article 19 of the International Covenant on Civil and Political Rights, 1966 states that Everyone
shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom
of expression; this right shall include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
Paragraph 18 of the Hypothetical case.
National legislation requires that peaceful demonstrations must be conducted with police
permits. This legislation is in accordance with article 21 of the ICCPR that determines: The right of
peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right
other than those imposed in conformity with the law and which are necessary in a democratic society
in the interests of national security or public safety, public order, the protection of public health or
morals or the protection of the rights and freedoms of others.
Also known as the Bloody March Protest.

subject to certain restrictions, but these shall only be such as are

provided by law and are necessary:
(b) For the protection of national security or of public order (order public),
or of public health or morals.23

31. The Respondent argues that this statement constitutes sedition under article 19 of
the ICCPR as it directly publicises violence towards the Government and resulted in
the violent protest.
32. Accordingly, article 19(3)(b) of the ICCPR provides that Conchina may place
limitations on an individuals freedom of expression, including expressions
represented in a written or oral form, by means of the enactment of legislation for the
purpose of national and public security. The Sedition Act is in line with this provision
and Chilalas subsequent conviction there under is not in conflict with international
legal principles.
33. The Respondent is not in violation of Chilalas article 9(2) right to freedom of

expression due to the allowed free exercise thereof within the confinements of the
law of Conchina. Sections 3 and 4 of the Sedition Act allows for free expression,
precluding instances where acts of sedition or seditious libel are present. 24 Chilala
conducted a wrongful act by overstepping the boundaries of his right to free
expression and so the Sedition Act was rightfully implemented to protect the
existence of a democratic society of Conchina. 25
23
24
25

Article 19(3) of the ICCPR.

Paragraph 19 of the Hypothetical Case.
The interference with the fundamental right to freedom of expression is allowed if restrictions
are provided for by law and serves a legitimate interest for a democratic society. This provision is
reiterated in article II of the Declaration of Principles on Freedom of Expression in Africa.

IV The legality of the forced feeding of Chilala

A. Obligation on state parties under Article 16 of the African Charter
34. Every human being has the inherent right to life. This right shall be protected and no

one shall be arbitrarily deprived of his life. 26 A State not only has a duty to prevent a
persons life from being taken, but also the active duty of ensuring that a person's
right to life is preserved. The Respondent argues that the State of Conchina was
acting in accordance with this obligation.
35. As a result of Chilalas self-inflicted hunger strike Chilala showed symptoms of
catabolysis27 following which a doctor was summoned by the prison warden to treat
Chilala. Chilala received the required medical treatment and consequently
recovered. He did however protest against the treatment and as such had to be
physically restrained. After Chilalas recovery he elected to cease his hunger strike. 28
36. Article 16 of the African Charter stipulates that every individual has the right to enjoy
the best attainable state of physical and mental health. 29 There is also an obligation
on state parties to the Charter to take the necessary measures to protect the health
of their people and that includes the insurance that they receive medical attention in
case of sickness.30

26
27
28
29

30

Article 6(1) of the International Convenant on Civil and Political Rights.

A biological process in which the body breaks down fat and muscle tissue in order to stay alive.
Paragraph 19 of the Hypothetical Case.
Article 16(1) of the ACHPR.
Article 16(2) of the ACHPR.

37. In Media Rights Agenda and Others v Nigeria 31 the court held that the responsibility
of the state heightens in cases where the individual is in its custody and therefore
someone whose integrity and well-being is completely dependent on the activities of
authorities.32 In lawfully detaining Chilala the State of Conchina therefore had a
responsibility to ensure that Chilalas well-being was maintained while under its
authority.
38. In Odafe and Others v Attorney-General and Others 33 the Court confirmed the
above by stating that article 16(2) of the African Charter places a duty on the state to
take the necessary measures to protect the health of their detainees and to ensure
that they receive medical attention when they are sick.
39. Article 16 of the African Charter placed a direct duty on the Government of Conchina
to ensure that Chilala received the necessary medical attention as required to keep
him alive. Accordingly, the respondent submits that the actions of the State of
Conchina were not unlawful.

B. Obligation under Article 12 of the ICESCR

40. The respondent submits that the Government of Conchina had an obligation to take
positive measures to ensure the administration of medical treatment for Chilala
under article 12 of the ICESCR.
41. Article 12 of the ICESCR declares that state parties to the Covenant recognize the
right of everyone to the enjoyment of the highest attainable standard of physical and
31
32
33

Media Rights Agenda and Others v Nigeria (200) AHRLR 200 (ACHPR 1998).
Media Rights Agenda and Others v Nigeria (200) AHRLR 200 (ACHPR 1998) par 90.
Odafe and Others v Attorney-General and Others 2004 AHRLR 205 (NgHC 2004) par 34-35.

mental health.34 Article 12(2)(d) of the ICESCR declares that the necessary steps
the parties to the covenant shall take in full realisation of the above right, is the
creation of conditions which will assure medical services and medical attention in
event of sickness. In accordance with these provisions the State of Conchina had a
legal obligation towards Chilala, as a citizen of Conchina, to provide him with
adequate medical care. 35
42. In International Pen and Others (on behalf of Saro-Wiwa) v Nigeria 36 it was again
stated by the court that the responsibility of the state heightens where an individual
is in its custody. 37 In the case Le Roux v Minister of Safety and Security 38 the
Supreme court held that a persons fundamental rights may be limited if he/she is
acting in a way to harm himself/herself. Chilalas hunger strike resulted in a threat to
his life and the respondents actions were aimed at preventing Chilala from taking
his own life. 39
43. It submitted that for the respondent at all relevant times acted within its powers and
that no rights of Chilala was infringed, that the High Court correctly rejected Chilala's
objection to the charges, and that the Applicant is not entitled to the relief claimed.
34
35

36
37
38

39

Article 12(1) of the ICESCR.

The Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders on 31 July
1957.Rule 22 provides that every prison or institution there must at least be one qualified
medical officer. Rule 24 provides that the medical officer shall see and examine every prisoner as
soon as possible after admission and thereafter as necessary, with a view of physical and mental
illness and taking all necessary measures. The medical officer shall see to the care of the physical
and mental health care of the prisoners.
International Pen and Others v Nigeria (2000) AHRLR 212 (ACHPR 1998).
International Pen and Others v Nigeria (2000) AHRLR 212 (ACHPR 1998) par112.
Le Roux v Minister of Safety and Security and Another 2009 4 SA 491 (N).
Principle 24 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment. Adopted by the General Assembly 9 December 1988.
Principle 24 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment stipulates that a proper examination shall be offered to a detained or imprisoned
person as promptly as possible after admission to the place of detention or imprisonment. Medical
care or treatment shall be provided thereafter if necessary.

10

Chilalas Right to a Fair Trial

A. Article 7 of the African Charter and Article 14 of the ICCPR

44. The procedure followed in the trial and conviction of Chilala did not violate his right
to a fair trial as stipulated in Article 7 of the African Charter. Chilala was arrested on
10 April 2012, transferred to a high security prison in Conchina City and charged
with sedition. These events occurred within a few hours. 40 On 7 May 2012, nearly a
month after Chilalas arrest, he was convicted of sedition. 41
45. The Right to a Fair Trial is a well-established rule of customary international law and

is viewed as a peremptory norm of international law. 42Article 7 of the African Charter

incorporates this norm and states that, Every individual has the right to have his
cause heard.43 The Right is further qualified in that the African Charter provides the
specific aspects which the right comprises.
46. Article 7 stipulates that and accused has the right to appeal to the appropriate

authority. Further, the right encompasses the presumption of innocence until proven
guilty and the right to legal defence as chosen by the accused. 44 The accused also
has the right, under his right to a fair trial, to be tried within a reasonable time.

40
41

42
43
44

Paragraph 19 of the Hypothetical Case.

Paragraph 20 of the Hypothetical Case.
Robinson P 2009 The Right to a Fair Trial in International Law Colloquium on International Justice
Rome.
Article 7(1) of the African Charter.
Article7(1)(b) and Article 7(1)(c) of the African Charter.

11

47. In the case of Kenya: Juma and Others v Attorney-General (2003) AHRLR 179
(KeHC 2003)45 the court considered the meaning of fair trial and indicated that the
element of reasonable time requires that a balance be maintained between the time
period the accused is detained and allowing enough or reasonable time for the
accused to prepare and complete a trial. The respondent adhered to the element of
reasonable time by informing the applicant of his charges shortly after his arrest and
maintaining the balance of allowing enough time for the applicant to prepare for the
trial, but not detaining him too long before the commencement of the trial.
48. Following Chilalas conviction in the Central Province High Court, an impartial
tribunal, Chilala appealed to the appropriate authority, namely the Constitutional
Court of Conchina, which confirmed the decision of the High Court. Chialas legal
counsel as chosen by Chilala was present at the trial. Chilalas own absence from
the trial was attributed to his own weakness as a result of his hunger strike but
regular consultations with his legal counsel took place prior to and during the trial. 46
49. Article 7(1) of the African Charter does not expressly specify the presence of the
accused at his trial under extenuating circumstances such as in the present case.
Article 14 of the ICCPR substantially mirrors Article 7 of the African Charter.
Specifically, Article 14(3)(d) states that everyone shall be entitled
(d) To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; 47

45
46
47

Kenya: Juma and Others v Attorney-General (2003) AHRLR 179 (KeHC 2003) para 8.
Paragraph 20 of the Hypothetical Case.
Article 14(3)(d) of the ICCPR.

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50. Chilala regularly consulted with his legal counsel and therefore was given adequate
opportunity to prepare his defence with his legal counsel, who subsequently
defended Chilala in court. The Respondent provides that Chilalas rights under
Article 7 of the African Charter and Article 14 of the ICCPR were not violated in that
he was tried under the allowed circumstances created in these articles, constituting
a fair trial.

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PRAYERS

The respondent respectfully requests the honourable court for the following:
I.

A declaration that the respondent acted in accordance with article 21 of the African
Charter in that it fulfilled its obligation to enact legislation in order to promote
economic development and cohesiveness among African states and that it did not
violate the African Charter or any other international law.

II. A declaration that the respondent acted in accordance with article 22 of the African
Charter to the extent that the rights contained therein do not create an unqualified
obligation on the State and that it did not violate the African Charter or any other
international law.
III. A declaration that the respondent had a sovereign right in arresting and prosecuting
Chilala on the grounds of sedition and seditious libel on the grounds of limiting
Chilalas right to freedom of expression for the protection of public order and that it
did not violate the African Charter or any other international law.
IV. A declaration that the respondent fulfilled its obligation of ensuring that Chilalas
right to life was preserved by administering medical treatment while Chilala was
detained and that it did not violate the African Charter or any other international law.

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V. A declaration that Chilalas right to a fair trial was not violated in that he was tried
under the stipulations provided for in article 7 of the African Charter and article 14 of
the ICCPR. In terms of this right, there was no violation of the African Charter or any
other international law.
Respectfully submitted,
Agents for the Government of Conchina (Respondent)

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