25TH AFRICAN HUMAN RIGHTS MOOT COURT COMPETITION

UNIVERSITY OF THE GAMBIA

AND
THE AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS
BANJUL, THE GAMBIA, 1621 OCTOBER 2016

HYPOTHETICAL CASE TO BE ARGUED

Before the African Court on Human and Peoples Rights

The case between

The African Commission on Human and Peoples Rights

and

The Republic of Kuntakinte

1. The Republic of Kuntakinte is a sovereign unitary presidential constitutional

democracy. A developing country in West Africa, Kuntakinte, is located along the Gulf
of Guinea and the Atlantic Ocean. Spanning a land mass of 250 465 km2, Kuntakinte is
bordered by the Republic Malinke in the west, the Republic of Songhai in the north, the
Republic of Dagomba in the east and the Gulf of Guinea and Atlantic Ocean in the
south. Previously a Busia colony, Kuntakinte became an independent republic in 1967.
According to the UNDP Development Index Report released in 2014, Kuntakinte is
ranked 110 out of 186 countries. Kuntakinte is among the five most improved
economies in Africa and the biggest economy in West Africa. A multicultural nation,
Kuntakinte has a population of approximately 70 million, spanning a variety of ethnic,
linguistic and religious groups. Its diverse geography and ecology ranges from coastal
savannahs to tropical jungles.

2. Following alternating military and civilian governments since independence, in June

1985 the Kuntakinte military government gave way to the Fifth Republic of Kuntakinte
after presidential and parliamentary elections were held in late 1984. The 1984
Constitution of the Republic of Kuntakinte divides powers among the commander-in-
chief of the Kuntakinte Armed Forces (President of Kuntakinte), parliament, cabinet,
Council of State and an independent judiciary. The President of Kuntakinte is elected
by universal adult suffrage. Winning the 1984 presidential elections, Professor Blessed
Adonai of The Equal Distribution of Economic Resources Alliance (DERA) party was
sworn into office as the Fifth President of Kuntakinte on 3 February 1985.

3. The Republic of Kuntakinte is divided into three regions: the Bamileke region in the
west, bordering the Republic of Malinke; the Oyo region in the north, bordering the
Republic of Songhai; and the region of Zinza in the east, on the border with Dagomba.
The Bamileke, Oyo and Zinza tribes inhabit the Republic of Kuntakinte. Kuntakinte has
the third longest overall life expectancy at birth of any country in Africa, standing at
80,5 years for persons born in the period between 2000 and 2015. The Kuntakintian

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 population is rapidly aging as a result of the independence baby boom followed by a
decrease in birth rates. In 2010, about 30 per cent of the population was over 65, and
the proportion is projected to rise to almost 40 per cent by 2050. The changes in
demographic structure have created a number of social issues, particularly a decline in
the workforce population and an increase in the cost of social security benefits such as
the public pension plan. A growing number of younger Kuntakintians are not marrying
or remain childless.

4. In 2012, the Kuntakintian Immigration Service reported that there were a large number
of economic migrants and undocumented migrants inhabiting Kuntakinte. The 2010
population and housing census revealed that 15,8 per cent of Kuntakintes population
are migrants (predominantly Malinke citizens).

5. There are two major religions in Kuntakinte: Christianity, mainly practised by the
inhabitants of the Zinza region, and Islamic, predominantly practised by the inhabitants
of the Oyo region. Both Islam and Christianity are usually syncretised with traditional
and cultural practices. However, the Bamileke region of the country has remained
traditional and has resisted any attempt to inculcate Christianity and Islam into the
region. A proud traditional people, the Bamileke have continued with their traditional
ancestral worship and have a well-developed system of customary law. The Bamileke
are also known for traditional practices such as female genital mutilation, breast ironing
and ritual servitude (trokosi). The practice of trokosi has in recent years received both
local and international media attention. The practice dictates that where the Fetish
Priest of a community determines that a crime has been committed within the
community that angers the gods, a virgin girl within the family of the offender must be
pledged in life-long servitude to the gods and must serve the Fetish Priest and answer
to all his desires. A 2014 study by the Kuntakinte Human Rights Observatory (KHRO),
a local NGO, estimates that there are about 7 000 women and girls pledged as trokosis
in the Bamileke region. The study also revealed that there has been a steady decline in
the number of trokosi cases over the last decade as a result of the governments
engagement with the traditional leaders in the Bamileke region regarding this issue.

6. Section 80 of the Constitution provides for four levels of courts: the district courts; the
High Courts; the Court of Appeal; and the Supreme Court. The Constitution also
provides for military courts, with the General Court Martial as the highest military court
of the country. The Attorney-General of Kuntakinte is vested with the sole authority to
designate that any prosecution involving the military be instituted before a military
court. The Supreme Court is the final court on all matters. If in any proceedings before
the High Court any constitutional issue arises, the Court may, and shall, if any party so
requests, refer the question to the Supreme Court unless, in the opinion of the High
Court, the raising of the question is merely frivolous or vexatious (section 87 of the
Constitution). A High Court decision not to refer a matter to the Supreme Court under
section 87 may be appealed to the Court of Appeal. Under section 29 of the
Constitution:

If any person alleges that any of the provisions of chapter 2 has been, is being or is
likely to be contravened in relation to himself or herself by any person, he or she
may apply to the High Court for individual redress. An application may be made
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 under this section in the case of a person who is detained by some other person
acting on the detained persons behalf.

7. Chapter 2 of the 1984 Constitution provides for all human rights that are contained in
the International Covenant on Civil and Political Rights (ICCPR) and International
Covenant on Economic, Social and Cultural Rights (ICESCR), all of which are rendered
justiciable under various provisions of the Constitution. Section 8 of the Constitution
provides thus:

In addition to this Constitution, the Laws of Kuntakinte consist of

(a) Acts of the National Assembly made under this Constitution and subsidiary
legislation made under such Acts;
(b) any orders, rules, regulations or other subsidiary legislation made by a
person or authority under a power conferred by this Constitution or any other
law;
(c) customary law so far as it concerns members of the communities to which it
applies;
(d) The Sharia as regards matters of marriage, divorce and inheritance among
members of the communities to which it applies.

8. Section 246 of the 1969 Criminal and Other Offences Act of Kuntakinte, which was
introduced by the Busia colonial power but retained after independence, criminalises
conducts against the order of nature. This provision has served as the legal basis to
prosecute adults engaged in consensual same-sex relations. However, there have
been only about 20 successful prosecutions for same-sex relations since the
enactment of the law, and no one has been convicted under this section in the last six
years (2010-2015). Public debate on this issue has shown overwhelming support in
favour of maintaining this section. Opinion polls conducted in 2002 by the Kuntakinte
Broadcasting Corporation (KBC) showed that about 93 per cent of Kuntakintes
predominantly Christian and Muslim population support the criminalisation of same-sex
relations. The Supreme Court in 2003 rejected a challenge to the constitutionality of
section 246.

9. The Republic of Kuntakinte is a member of the United Nations (UN) and the African
Union (AU). It is a party to the following human rights treaties: the International
Covenant on Civil and Political Rights (ICCPR); the International Covenant on
Economic, Social and Cultural Rights (ICESCR); the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families
(ICRMW); and the Convention on the Rights of the Child (CRC), as well as the two
Protocols to the CRC (on children in armed conflict and on the sale of children, child
prostitution and child pornography). Kuntakinte ratified the ICCPR and ICESCR in
1969, the ICRMW in 1994 and the CRC in 1995. It has not accepted any of the
individual complaints mechanisms allowed for under these treaties. At the regional
level, it ratified the following AU human rights instruments: the OAU Refugee
Convention (in 1973); the African Charter on Human and Peoples Rights (African
Charter) (in 1990); the African Charter on the Rights and Welfare of the Child (African
Childrens Charter) (in 2001); the Protocol to the African Charter on the Rights of
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 Women in Africa (African Womens Protocol) (in 2009); and the Convention for the
Protection and Assistance of Internally Displaced Persons in Africa (IDP Convention)
(in 2014). Kuntakinte also ratified the Protocol to the African Charter on the
Establishment of an African Court on Human and Peoples Rights (African Court
Protocol) on 1 August 2010. Kuntakinte did not make a declaration under article 34(6)
of the African Court Protocol.

10. Unlike its eastern neighbour, the Republic of Malinke is relatively poor. The 2011
population and housing census revealed that the eastern region of Malinke had the
highest proportion of people living on less than one dollar a day and that, between the
years 1980 and 2000, poverty rates rose in absolute and relative terms. The eastern
region has a bulging youth population experiencing soaring unemployment. Many
people in this region still face life-threatening water, hygiene and sanitation conditions
as well as food insecurity. Dissatisfaction among the youth population in the region
has been building up steadily and civil disobedience has been on the rise for some
time. On 3 February 2014, a parliamentary announcement by the President of Malinke,
Mananseh Bobo, proposing to amend the constitutional two-term limit to allow himself
a third term in office, escalated the level of civil disobedience in the region.

11. One week later, on 10 February 2014, a major newspaper revealed that the President
had benefited unduly from $14 million of tax payers money spent to upgrade his
private home. According to the report, the complex holds a visitors centre;
amphitheatre; a cattle enclosure; a marquee area; extensive paving; new houses for
relocated extended relatives; and a swimming pool referred to in official documents
as a fire pool on the pretext that it could double up as a water reservoir for fire
fighting purposes; a zoo with animals imported from different parts of the world; a
movie theatre; and a club house to entertain guests.

12. In the early evening of 10 November 2014, enraged by the media reports, a local
youth group in Malinke, the Young Panthers, through its social media pages
encouraged hundreds of young people to rise up and demand change and an end to
Bobos government. The leaders of the Young Panthers together with hundreds of
young people stormed the local government office in the region, burnt it down and
beheaded five senior employees reported to be responsible for embezzling funds
allocated for the development of the region. Subsequent political upheaval and
widespread killings by the Malinke Armed Forces (MAF) further unsettled the region.
President Bobo publicly branded the Young Panthers as a terrorist organisation and
vowed to hunt them down wherever they may be in the world. Police used lethal force
and shot demonstrators indiscriminately. The MAF, opposition groups and unknown
assailants killed hundreds of people. The authorities arrested hundreds of suspected
opponents, in many cases arbitrarily. The government launched a crackdown against
civil society activists and journalists. It closed the six most popular private radio
stations and suspended the activities and froze the bank accounts of three civil society
organisations. As a result of the economic and recent political instability in the region,
more than 100 000 young people have fled the region into the neighbouring
Kuntakinte.

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 13. Since the early 1990s, the Republic of Kuntakinte has adopted an open-arms
approach towards migrants from its neighbouring countries. It has relaxed the
enforcement of its immigration laws to absorb the influx of migrants in order to
complement its weakening workforce. Most migrants have settled in well. However,
most migrants are undocumented without visas or work permits. It is difficult for most
of these workers to become citizens of the country because they do not have the
cultural or ethnic background of the majority of the countrys citizens as required for
citizenship. Although the possibility exists for migrants to become citizens through
naturalisation, in practice this is rare because of the rather onerous legal
requirements. The Citizenship Act of Kuntakinte, for instance, requires an applicant for
naturalisation to speak at least one indigenous language and to be assimilated into the
customs and traditions of one of the ethnic groups of Kuntakinte.

14. Ratif emigrated in 1995 from the eastern region of Malinke in search of work in the
Bamileke region of Kuntakinte. He lives in the Bamileke city of Abebe with his wife,
Adama, and two daughters, Salema (aged 21) and Marema (aged 15). Athough
Salema and Marema were born in Kuntakinte, they are not recognised as citizens of
Kuntakinte and currently do not possess any form of identification. They have never
visited Malinke and are not aware of the existence of any relatives in Malinke.

15. A Presidential Directive by President Adonai, broadcast on both television and radio
stations and published in all major newspapers in Kuntakinte on 24 December 2014,
reads as follows:

All Malinkeese residing in Kuntakinte without valid legal status after 1 April 2015 will
lose their right to remain in Kuntakinte if they do not legalise their stay by obtaining
work and residence permits. In light of this new situation, any Malinkeese who
decides to remain in Kuntakinte after 1 April 2015 will bear full responsibility for the
consequences that may follow. To avoid unnecessary problems, which will occur as
a result of your illegal stay in Kuntakinte after 1 April, we request you to seriously
consider the circumstances which will assist you in taking a reasonable decision to
guarantee your safety and that of the future of your family.

16. In support of the global fight against terrorism and in solidarity with the government of
Malinke, the government of Kuntakinte in February 2015 began arresting a number of
young people believed to have links with the Young Panthers group. Most of these
young people were detained at the Paradise Detention Facility (PDF) popularly known
as Hell on Earth. The government of Kuntakinte claims that those captured have links
with a terrorist organisation, based on President Bobos declaration of the Young
Panthers as a terrorist group. The government will, however, not provide any evidence
to support this claim, saying that it would compromise national security to do so. Many
of the prisoners have not been charged with a specific crime but were arraigned before
a High Court after six months of detention and were all remanded into prison custody
pending investigations. The warrant for their remand has been renewed by the High
Court every three months since then at the request of the Attorney-General of
Kunkakinte, as allowed for under the Criminal Procedure Code of Kuntakinte, citing the
need for sufficient time to conduct a thorough investigation. KHRO estimates that about
700 suspected members of the Young Panthers are currently detained at PDF. Some
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 of the prisoners have been in detention for more than 15 months, with no indication of
when they might be tried or set free. About 150 of the detainees have, however, been
tried and convicted by the General Court Martial, the highest military court of
Kuntakinte. Those convicted by the General Court Martial serve sentences of
imprisonment ranging between five and 15 years in ordinary prison facilities.

17. The events taking place in the region have received wide local and international media
attention. There have been reports linking the government of Kuntakinte to various
tactics to extract information from those captured. At a bar in the city of Abebe, an
undercover journalist overheard a senior army officer who claimed that Malinkeese are
wimps, just strap them to a board with their feet raised above the head, add water and
cloth and they will confess all their sins to you. The senior army officer is reported to
be suspended indefinitely from the army, pending investigations. Other media sources
have reported accounts of stress, anxiety and depression among those captured within
the detention facility. An international NGO, Detention Watch, issued a report, based
on sources kept confidential, confirming these allegations. There has been a strong
outcry from African NGOs to force President Adonai to close PDF. An appeal from the
Chairperson of the AU Commission fell on deaf ears. Several local and international
NGOs have indicated their desire to bring cases of human rights violations against the
government before the African Commission on Human and Peoples Rights (African
Commission).

18. A local NGO, Rights Without Borders (RWB), approached the High Court in Kuntakinte
on 5 June 2015 to challenge the constitutionality of the treatment of prisoners at PDF
and to petition the Court to close PDF and to order the government to investigate the
human rights violations that are taking place in the detention facility. RWB also
challenged the constitutionality of the order of deportation of all migrants, including
children born in Kuntakinte to Malinkese parents. The High Court dismissed the case,
finding that the requirement of national security necessity had been satisfied. The
Court of Appeal rejected an appeal, citing a 2005 Supreme Court ruling that matters of
national security are the exclusive preserve of the executive arm of government. The
Supreme Court has subsequent to that ruling rejected several applications, brought on
behalf of detainees at PDF, based on the governments reliance on national security.
RWB did not pursue a further appeal to the Supreme Court.

19. After 1 April 2015, a large number of Malinkese returned to Malinke in fear of reprisals
from the police and the public. However, a substantial number of Malinkese, mostly
from the eastern region, including Ratif and his daughters, remained because of the
economic and political instability in Malinke. In the early hours of 2 April 2015, the
Kuntakinte Police Intelligent Unit (PIU) embarked on a nationwide crackdown,
arresting, detaining and deporting Malinkese who could not provide legal identification
documents.

20. Abiba is a well-known human rights advocate of Kuntakinte nationality. She was
arrested for failure to provide her identification documents. The police seized her
phone and, after reading through her messages, came across a number of intimate
messages between her and Salema. She was charged with conduct against the order
of nature under section 246 of the 1969 Criminal and Other Offences Act, given a
6
 police inquiry bail and released the next day. Upon her release, the police informed the
chief of the community of the reason for her arrest, and the matter was referred to the
Fetish Priest in accordance with the customs of the Bamelike. The Fetish Priest
determined that this was a crime against the gods and that, for that reason, the
youngest daughter of Ratif, Marena, must be pledged as a trokosi before the familys
deportation.

21. Abiba and 14 of her colleagues from the Law School of one of the leading universities
of Kuntakinte, the University of Kuntakinte, had in February 2012 applied to register the
National Union of Gay and Lesbians of Kuntakinte (NUGAL). NUGAL aims to provide
gays, lesbians and bisexuals in Kuntakinte with information on human rights, and to
advocate for their rights to non-discrimination, especially the right to access health care
without impediment based on sexual orientation. In July 2012, the Companies and
Societies Registry rejected their application on the basis that the Constitution of
Kuntakinte did not recognise homosexuals and that the objectives of the organisation
were contrary to section 17(2)(a) of the Societies Act. Section 17(2)(a) of the Societies
Act provides as follows:

The Registrar shall refuse to register a local society where it appears to him, after
consultation with members of affected stakeholders, that any of the objects of the
Society is or is likely to be used for any unlawful purpose or any purpose prejudicial
to or incompatible with peace, welfare, good order or morality in Kuntakinte.

22. On 1 September 2012, RWB approached the High Court, on behalf of the members of
NUGAL, to challenge the constitutionality of the refusal to register NUGAL. The
application is pending before the High Court, with no trial date yet set. On 17 January
2016, following numerous media campaigns run by RWB on the unacceptable delays
regarding this case, the Chief Justice of Kuntakinte, His Lordship Kwame Tshepo,
called a press conference attended by all judges of the High Court, Court of Appeal
and Supreme Court, at which he declared that the judiciary had resolved not to allow
itself to be used in the immoral pursuit of RWB and NUGAL.

23. On 4 May 2016 and after months of international appeal and condemnation of the
events taking place in Kuntakinte, President Adonai announced that Kuntakinte had
decided to withdraw its ratification of the African Court Protocol. This was followed by
parliamentary debate and enactment of the African Court Protocol Renunciation Act,
passed on 17 May 2016, ratifying President Adonais decision to withdraw Kuntakintes
ratification of the African Court Protocol. A formal communication in this regard was
then sent to the Chairperson of the African Union Commission.

24. In June 2016, RWB brought a case to the African Commission. Acting pursuant to Rule
118(4) of its Rules of Procedure, on the stated basis that there is an urgent need that
the question of the jurisdiction of the African Court on Human and Peoples Rights be
clarified, the African Commission referred the case to the African Court, contending the
following:

(i) The African Court has jurisdiction over the case, and all the elements of the case
are admissible.
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 (ii) Kuntakinte violated the African Charter and other relevant treaties in respect of the
circumstances leading to the detention of the inmates of PDF, and the conditions
under which they are detained.
(iii) Kuntakinte violated the African Charter and other relevant treaties by refusing to
register NUGAL.
(iv) Kuntakinte violated the African Charter and other relevant treaties by not providing
for the abolition of the trokosi custom of the Bamileke people.

The date for oral arguments before the African Court is on 17, 18 and 21 October
2016. Assume it is October 2016. Prepare arguments for the African Commission
and the Republic of Kuntakinte on both procedural and substantive issues, to be
submitted to the African Court on Human and Peoples Rights.