The 32nd CHRIST OF HEYNS AFRICAN HUMAN RIGHTS

MOOT COURT COMPETITION

KWAME NKRUMA UNIVERSITY OF SCIENCE AND

TECHNOLOGY, KUMASI

3rd-9th SEPTEMBER 2023, KUMASI, GHANA

THE AFRICAN COURT ON HUMAN AND PEOPLES’

RIGHTS

IN THE MATTER BETWEEN

GOZANGA HUMAN RIGHTS ASSOCIATION (GoHRA)

AND

THE STATE OF SENTSIFIA

MEMORIAL FOR THE APPLICANT

1
 ABBREVATIONS

ACHPR African Commission on Human and Peoples’

Rights

ACTHPR African Court on Human and Peoples Rights

ICCPR International Covenant on Civil and Political

Rights

ICESCR International Covenant on Economic, Social

And Cultural Rights

NGO Non-Governmental Organization

UNGA United Nation General Assembly

FSHS Free Senior High School

AfCLR African Court Law Reports

ACNNR African Convention on Nature and Natural

2
 Resource

AUCPCC African Union Convention on Preventing and

Combating Corruption

ICPAPED International Convention for the Protection of

All Persons from Enforced Disappearance

CEDAW Convention on the Elimination of All Forms of

Discrimination Against Women

AHRLR African Human Rights Law Report

CRC Convention on the Right of Child

UN United Nations

No. Number

HC High Court

SC Supreme Court

CoA Court of Appeal

3
 INTERPRETATION

1. The African Charter means the African Charter on

Human and Peoples’ Rights.

2. The Commission means the African Commission on

Human and Peoples’ Rights.

3. The Court means the African Court on Human and

Peoples’ Rights.

4. The Court’s Protocol means the Protocol to the

African Charter on the Establishment of the African

Court on Human and Peoples’ Rights.

5. The Rules means Rules of the African Court on

Human and Peoples’ Rights.

6. The Constitution means the Constitution of the State

of Sentsifia.

4
 TABLE OF AUTHORITIES

A. INTERNATIONAL TREATIES

1. African Charter on Human and Peoples’ Rights

(adopted 27 June 1981 at Nairobi, Kenya, entered

into force 21 October 1986).

2. African Charter on the Rights and Welfare of the Child

(adopted 11 July 1990 at Monrovia, Liberia, entered

into force 29 November 1999).

3. UN Convention on the Elimination of All Forms of

Discrimination Against Women (adopted 18

September 1979 at New York City, entered into force

3 September 1981).

4. Protocol to the African Charter on the Establishment

of the African Court on Human and Peoples’ Rights

(Adopted in 1998 at Ouagadougou, Burkina Faso,

entered into force 2004).

5
 5. Vienna Convention Law of Treaty (adopted 23 May

1969 at Vienna, entered into force on 27 January

1980).

6. UN Convention on the Elimination of All of Forms of

Discrimination against Women (adopted 18

September 1979 at New York City, entered into force

3 September 1981).

7. Convention on the Elimination of All Forms of

Discrimination Against Women.

8. International Convention on the Elimination of All

Forms of Racial Discrimination.

9. Convention on the Rights of Child (Adopted 20

November 1989 at entry into force 2 September

1990)

B. INTERNATIONAL DECLARATIONS AND RULES

1. Rules of the African Court on Human and Peoples’

Rights (Adopted 28 September 2020 at Arusha,

Tanzania).

6
 2. Principle No. 11of the Body of Principles for the

Protection of All Persons under Any Form of

Detention of Imprisonment (adopted by UNGA in

Resolution 43/173 of 9 December 1988).

C. CASES OF AFRICAN COURT

1. Lohe Issa Konate v Burkina Faso [2004] AfCLR 314.

2. Yogogombaye v Senegal [2009] AHRLR 315.

3. Jebra Kambole v. United Republic of Tanzania.

Application No 018/2018 (July 15 2020).

4. Rutabingwa Chrysanthe V Republic of Rwanda

(2018) 2 AFCLR 361.

5. George Maili Kemboge V United Republic of

Tanzania (merits) (2008) 2 AFCLR 369.

6. AfCHPR, Norbert Zongo v. Burkina Faso, App. No.

013/11, Judgment of 21 June 2013.

7. African Commission v Kenya (merits) [2017] 2 AfCLR

9 [64].

7
D. CASES OF AFRICAN COMMISSION

1. Jawara v Gambia [2000] AHRLR 10.

2. African Commission on Human and Peoples’ Rights

Civil Liberties Organization v. Nigeria, Communication

No. 101/93.

E. OTHER INTERNATIONAL CASES

1. Eweida v United Kingdom [2013] ECHR 37, (2013) 57

EHRR 8.

2. Toonen v Australia, UN Human Rights Committee,

Communication No 488/1992, UN Doc

CCPR/C/50/D/488/1992 (4 April 1994).

F. NATIONAL LEGISLATIONS

1. The Constitution of the State of Sentsifia (1992).

2. Proper Sexual Identity Bill 2022.

3. Unnatural Offence Act of 1960.

8
 4. The Children’s Act 2004 (ACT 650).

5. NGO Registration Act 1995 (ACT 399).

6. Minerals and Mining Act 2002 (ACT 589).

G. BOOKS AND OTHERS

1. Audrey Lebret, COVID-19 Pandemic and Derogation

to Human Rights (4 May 2020).

2. Exhaustion of Domestic Remedies in the African

Human Rights System, International Justice Resource

Center (Last updated: August 2017).

9
 QUESTIONS PRESENTED

The Court is humbly invited to adjudge:

1. Whether the case presented by Applicant is

admissible.

2. Whether Sentsifia violated the African Charter and

other relevant human right instruments by failing to

hold Mr Putin Yeungo accountable for illegal mining

and Mr Nsana Adongo accountable for corruption.

3. Whether Sentsifia violated the African Charter and

other relevant human right instruments by ill-treatment

of children and 20 GoHRA staff members.

4. Whether Sentsifia violated the African Charter and

other relevant human right instruments by liming the

FSHS Policy only to less endowed schools.

5. Whether Sentsifia violated the African Charter and

other relevant human right instruments by refusing the

CSMR Space.

10
SUMMARY OF RELEVANT FACTS

Sentsifia is a small coastal State in West Africa, member of

African Union and UN. It is bordered by the Republic of

Camelot ,the Kingdom of Kategath, the State of Zeitounia,

and the Republic of Afutuo.1 It has ratified numerous human

rights treaties with limited amendment.2 Sentsifia has been in

stable democratic culture and administration and has

peaceful relationship with its neighboring States.

Sentsifia State is an investment hub. Many multinational

companies engage in diverse businesses including mineral

extraction and processing. Adryx Ltd and Angold PLC have

been granted mining leases. The residents of mining town

had complained that the two companies have in cooperation

with some chiefs and politicians started engaging in illegal

mining. According to a residents a resident of Akumumu,

captured Mr Nsana receiving an enveloped parcel from

1
Facts, para 1.
2
Facts, para 9.

11
officers of the two companies. The Tiger Eye Media report

followed by the reports of the UN Environment Programme

(UNEP) reported that these two companies engaged in

deep-earth mining that involves the removal of vegetation

covers, soil earthening and rock-blasting using explosives

and gas pressure blasting pyrotechnics. After the Sentsifia

Minerals Commission (SMC) conducted a night raid and

arrested Camelot nationals who worked on unlicensed

concessionary lands including Mr Putin Yeungo, a Camelot

national who owns all the equity shares in that two

companies, the Respondent extradited them to their country,

Camelot for prosecution after the two States reached an

agreement on prosecution of them and sufficient

compensation that will be paid to the affected persons.

Neither chief nor politician was arrested .Moreover, Mr Putin

and others have since been granted pardons by Camelot.

Camelot is yet to compensate the affected Persons.3

3
Facts, para 13.

12
Besides, Local habitats and farms continue to wane leaving

many families destitute as orpailleurs continue to operate.

An association of potentially displaced persons sued in the

HC and claimed compensation for loss of livelihood and an

order for rehabilitation and relocation. The HC awarded US$

3.5 million monetary damages which was affirmed by CoA

and SC but made no orders as to rehabilitation and

relocation of the inhabitants. The government has provided a

temporary shelter site and indicated that new lands have

been acquired to build a ‘relief city’ for them.4

Mr Kwame Nsenku, a brother of Mr Nsana, made statements

on United Television that indicate his brother’s role in his

wealth accumulation. He said that ‘’Get the best people to be

at the corridors of power and see if you will not succeed’’.

Following this, the Respondent publicly encouraged the

Commission on Human Rights and Administrative Justice

(CHRAJ) to investigate Mr Nsana and his brother ‘if

4
Facts, para 14.

13
possible’.5 The acting director of CHRAJ, Dr Jojo Asemisis

was the childhood of Mr Nsana. CHRAJ can make only

recommendatory orders.6 The Office of the Special

Prosecutor (OSP) is mandated to investigate and prosecute

cases of corruption involving public officers and private

persons.7 The OSP’s prosecutorial powers were subject to

the powers of the Attorney-General.8 Within 24 hours of

launching the platforms, the OSP received over 150

complaints which mostly alleged the embezzlement by

officers of the Minister of Foreign Investment (MoFI) and

Foreign Partnership Board (FPB), including Mr Nsana. The

complainants those give information to OSP did not leave

any personal contact or documents to buttress the

allegations. Shortly after the OSP Act was adopted, CHRAJ

found that Mr Nsana is not a corrupt person and his brother‘s

5
Facts, para 15.
6
Ibid.
7
Facts, para 16.
8
The Constitution, art 80.

14
wealth is ‘explainable’ since he is a reputable businessman

in Sentsifia. Then, the OSP decided not to further probe the

allegations against Mr Nsana and the officers of the FPB. On

application by the Attorney-General, the HC quashed the

OSP‘s decision and ordered that those investigations be

reopened. The investigation was ongoing.

In Sentsifia, the Covid-19 pandemic was increased. The

government issued Directive on various restrictions and

arrested and detained those flouted that Directive. The

Aseda Regional police rounded up and detained 50 children

who were unaccompanied on the streets of Aseda and 20

GoHRA senior staff members including African Jehovah

Witnesses at the Villa which is surrounded with very high

walls, and armed guards at placed at the entrance gate. The

President lifted the Covid-related bans and restored public

life. He announced the immediate implementation of a

compulsory Covid-19 vaccination policy. Sentsifia State

15
vaccinated them without any testing, explanation as to the

reasons for, or negative effects of the vaccine.9

Sentsifia initiated FSHS Policy under which all students who

have successfully completed seven years of primary school

and the first two years of secondary school are admitted to

the last three years of secondary school without any charge

for tuition, accommodation, and learning materials. He also

announced that the first year of implementation, the

2019/2020 academic year, would only cover half of all

secondary schools, due to the need to ensure appropriate

budgetary planning and allocation. As the pandemic grew

and continued to affect the economy of Sentsifia, President

Ragnar implemented the electronic levy policy (e-levy) to

stabilize the economy. The pooled revenue failed to mitigate

the economic hardship. As a result, the President began to

cut governments-sponsored policies across the various

9
Facts, para 22.

16
sectors. On 19 June 2020, President Ragnar issued a public

statement. It provides that:

‘’While we hope in the future to extend the coverage beyond

these 150 schools, the policy shall in the foreseeable future

under no circumstances run in any well-to-do schools. This

will help us to divert adequate resources to other sectors of

the economy where there is a dire need for support’’.10 Later,

the government issued a statement that, ‘’regrettably, the

FSHS policy will….be implemented only in respect of the

same 150 schools as in the previous academic year.11

Aisha Moshoeshoe, a Sentsifian transgender activist,

applied to the Department of Social Welfare and

Development (DSWD) to register CSMR under the NGO

Registration Act. All the documents required by the

legislation were submitted. The submitted include CSMR‘s

Constitution, which its objective stated that ‘’CSMR aims to

10
Facts, para 21.
11
Facts, para 23.

17
work towards the prevention and eradication of LGBT

(lesbian, gay, bisexual or transgender) phobia in Sentsfia,

and the protection of all the rights of LGBT persons in

Sentsfia and beyond.’’ The DSWD rejected the application

on the basis that the objectives of CSMR are not in harmony

with The Constitution. The HC, CoA and SC dismissed

Aisha‘s action on the same reasoning. GoHRA is an

association which advocates for the protection of and

respect of human rights in Sentsifia and internationally. It

has observer status before the Commission and with the

African Children‘s Committee.12. Against these backgrounds,

the GoHRA instituted a suit before the Court against

Sentsifia on the violation of African Charter and other

relevant international human rights instruments.

12
Facts, para 8.

18
SUMMARY OF ARGUMENTS: An Applicant submits that

the Court has all jurisdictions to entertain the matter. An

Applicant exhausted all local remedies on merit A. There is

no need of exhausting local remedies on merit B, C and D.

MERIT A: The Respondent violated the African Charter,

ACNNR and AUCPCC for it failed to hold accountable Mr

Nsana and Mr Putin Yeungo for illegal mining and

corruption.

MERIT B: The Respondent violated African Charter,

ACRWC and CRC for the ill-treatment of street children and

some GoHPR’s senior staff members at Villa.

MERIT C: The Respondent violated the African Charter and

other relevant human rights law by its decision to limit the

FSHS policy only in 150 less endowed schools.

MERIT D: The Respondent violated the African Charter,

ICCPR and ICESCR for refusing the CSMR Space to

register under its NGO Registration Act.

19
 ARGUMENTS

I. JURISDICTION AND ADMISSIBILITY

A. JURISDICTION OF THE COURT

As per Rule 49(1) of the Rules the Court can conduct a

preliminary examination of its jurisdiction. The Court may

satisfy that it has jurisdiction on all four13 basis of jurisdiction

over the instant matter.14 The Applicant submits that the

Court has all four bases of jurisdictions on this matter.

(1) Material Jurisdiction

The Court has material jurisdiction in all matters concerning

the application and interpretation of the African Charter, the

Protocol and other relevant human rights instruments ratified

by the Respondent State.15 The Applicant contends that the

Court has material jurisdiction for the failure of the

13
Material, personal, temporal and territorial jurisdiction.
14
Mariam Kouma and Another v Mali [2018] 2 AfCLR 237 [25].
15
The Courts Protocol, art 3(2).

20
Respondent to hold those accountable for illegal mining and

corruption16, the ill-treatment of the detained children and

some GoHRA at the villa17, the decision of Respondent to

limit FSHS Policy only in 150 less endowed schools18 and

the refusal of the Respondent to register CSMR Space

under its NGO Registration Act19 call for the interpretation

and application of the African Charter and other relevant

human rights instruments ratified by Respondent State.

Hence, an Applicant submits that the Court has material

jurisdiction on this matter.

(2) Personal Jurisdiction

NGO with observer status before the Commission can

institute a suit before the Court if the Respondent State has

16
Facts, para 13.
17
Facts, paras 19, 22, 23.
18
Facts, para 23.
19
Facts, para 26.

21
made Optional Declaration under Article 34(6) of the Court’s

Protocol.20

The Respondent has ratified the Court’s Protocol,21 made

Optional Declaration under Article 34(6) of the Court’s

Protocol,22 and deposited it,23 allowing NGO with observer

status before the Commission such as GoHRA24 to institute

a suit before the Court. Hence, an Applicant submits that the

Court has personal jurisdiction.

(3) Temporal Jurisdiction

Temporal jurisdiction can be established when the alleged

violation have occurred after the dates the African Charter,

the Court’s Protocol and the Optional Declaration under

20
Yogogombaye v Senegal [2009] AHRLR 315 [34].
21
Facts, para 9.
22
Ibid.
23
Ibid.
24
Facts, para 8.

22
Article 34(6) of the Court’s Protocol come into force for the

Respondent State.25

Besides, the Court will still have temporal jurisdiction when

the alleged violation was started before the Respondent

ratified the above stated instruments and is still continuous.26

The violation of the right of CSMR was started before the

Respondent ratified the above stated instruments27 and still

continuous.28 Hence, an Applicant submitted that the Court

has temporal jurisdiction.

(4) Territorial Jurisdiction

Territorial jurisdiction can be established only when the

alleged violation was occurred in the territory of Respondent

State which is party to African Charter and Protocol.29 Since

25
African Commission v Kenya (merits) [2017] 2 AfCLR 9 [64].
26
Kijiji Isiaga v Tanzania [2018] 2 AfCLR 218 [37].
27
Facts, para 4.
28
Facts, para 24-27.
29
Konate v Burkina Faso [2014] 2 AfCLR 314 [41].

23
all alleged violations were occurred within the Respondent

State30, the Court has territorial jurisdiction.

B. ADMISSIBILITY OF THE APPLICATION

The Court may rule on the admissibility of cases taking into

account Article 56 of the African Charter.31 An Applicant

submits that an Applicant had exhausted all available local

remedies on merit D32 and is not required to exhaust on

merit A, B and C

(a) Exhaustion of Local Remedies on Merit A

In relation with illegal mining, the Applicant submitted that a

local remedy is not sufficient. A remedy is considered

sufficient if it can redress the violations alleged.33 In the

instant case, the domestic court awarded the displaced

victims only monetary damages without rehabilitation and

30
Facts, para 27.
31
The Court’s Protocol, art 6(2).
32
Facts, para 26.
33
ACHPR, Sir Dawda K. Jawara v. Gambia, para. 39.

24
relocation reparation.34 Besides, at the time of extradition the

two States did not have Extradition treaty.

In relation with corruption issue, the local remedy is not

effective. Effective remedies are those that offer a prospect

of success.35 In the instant case, the local remedy is not

effective for the following reasons: first, OSP which was

mandated to investigate corruption issue was not

independent institution36 for its prosecutorial power is subject

to Attorney General. Second, the OSP decided not to further

probe the allegations against Mr Nsana and the officers of

the FPB for mere CHRAJ whose Acting Director was the

childhood of Mr Nsana decided that Mr Nsana is not a

corrupt person and his brothers wealth is explainable for he

is reputable businessmen. Later, OSP was ordered by HC to

re-open investigation. Thirdly, the OSP has not yet

accomplished the investigation process till the Applicant

34
Facts, para 14.
35
ACHPR, Gabriel Shumba v. Zimbabwe para. 57.
36
Facts, para 16.

25
submits this suit before the Court. Hence the Applicant

submits that the local remedies is not sufficient and does not

have a prospect of success. Hence, it is submitted that the

Applicant is not required to exhaust local remedies.

(b) Exhaustion of Local Remedies on Merit B

When the State made an Optional Declaration and that State

violate the African Charter and other relevant human rights,

an individual or NGO can institute a suit before the Court.37

Once an Applicant was considered as it lack locus standi by

the domestic court, an Applicant are not required to exhaust

local remedies.38 In the case at hand the HC decided that

GoHRA has no locus standi to represent the detained

children and some GoHRA members before the court.39

37
See The Court’s Protocol, art 34(6) cum art 5(3).
38
AfCHPR, Norbert Zongo v. Burkina Faso, App. No. 013/11, Judgment
of 21 June 2013, para 107–112, available at http://en.african-
court.org/images/Cases/Judgment/Nobert%20Zongo%20Judgment
English.pdf.
39
Facts, para 23.

26
Hence, an Applicant is not required to exhaust local

remedies and an application is therefore admissible.

(c) Exhaustion of Local Remedies on Merit C

There were no local remedies on FSHS Policy because

under The Constitution, only ‘basic education’ is justiciable.40

This ousts the jurisdiction of the domestic court to entertain

the matter other than ‘basic education’ issue. When The

Constitution ousts jurisdiction on the matter at hand, an

Applicant is not required to exhaust local remedies.41 Hence,

an Applicant submits that an Applicant is not required to

exhaust local remedies on this issue.

40
Ibid.
41
See Communications 137/94, 139/94, 154/96 &161/97, International
Pen and Others (on behalf of Saro-Wiwa Jr), Twelfth Annual Activity
Report, para 76.

27
II. SUBMISSIONS ON THE MERITS OF THE CASE

A. The Obligation of the State To Hold Those

Accountable for Illegal Mining and Corruption

The Applicant submits that the Respondent violates Article

24 of African Charter, Article 5(3) of AUCPCC and Article II,

IV and VIII of ACNNR.

For OSP was not independent institution42, the ineffective

investigation influences the final judgment of the domestic

court. Reparation must, depending on the particular

circumstances of each case, include restitution,

compensation and rehabilitation of the victim, as well as

measures to ensure non-recurrence of the violations.43 The

court decided only monetary compensation. Hence, an

Applicant submits that local remedies were exhausted but it

42
Facts, para 16.
43
Ingabire Victoire Umuhoza v. Republic of Rwanda, Application
003/2014. Judgment of 7 December 2018 (Reparations), para 20.

28
was not adequate to address an infringement of a legal right

and did not guarantee non repetition of the violations.

All peoples shall have the right to a general satisfactory

environment favorable to their development.44 In the instant

case, the Respondent denied them this right in two ways:

First, the government did not make effective investigation

and prosecution towards those affect the favorable

environment for the development of the victims. Not only

this, the Respondent extradited these criminal to their

country in which after a while get pardon by their

government.

Second, the Respondent was litigating with the victims by

arguing that the government should not rehabilitate and

relocate the displaced victims.45 This indicates that Let alone

providing favorable environment for its citizens, the

44
African Charter, art 24.
45
Facts, para 14.

29
Respondent stands against the right to rehabilitation and

relocation of the displaced citizens.

In relation with preventing corruption, the Respondent failed

to comply with Article 5(3) of AUCPCC. Article 5(3) states

that ‘State parties undertake to establish, maintain and

strengthen independent national anti-corruption authorities’.

Neither CHRAJ nor OSP are effective or independent anti-

corruption authorities or agencies respectively. CHRAJ can

make only recommendatory order.46 The OSP’s

prosecutorial power in its activity is subject to Attorney

General.47 This contravenes Article 5(3) of AUCPCC.

The annual report of the Auditor General noted that the

Board has recorded a cash flow deficit of SED$ 20 billion,

which was unexplained by the Foreign Partnership Board

(herein after called ‘FPB’).48 The report also noted that Mr.

46
Facts, para 7.
47
Facts, para 16.
48
Facts, para 11.

30
Nsana‘s assets have increased in value by 15 per cent over

the last three years.49 These two concrete evidences could

be used to make effective investigation and prosecution

against this person and his accomplices’. However, the

dependency nature of OSP resulted in ineffective

investigation and prosecution tasks.

The residents had complained that the two companies have,

in cooperation with some chiefs and politicians, started

engaging in illegal gold mining. According to the residents,

on two occasions, a resident captured Mr. Nsana receiving

an enveloped parcel from officers of the two

companies.50Besides, its failure to prosecute and punish Mr.

Yeungo and his accomplices for illegal mining in the

Respondent State is contrary to The Constitution which

states that ‘’A person who without a license granted by the

SMC undertakes a small-scale mining operation contrary to

49
Ibid.
50
Facts, para 12.

31
subsection (1) commits an offence and is liable on summary

conviction to a minimum fine of SED$ 2 million or to

imprisonment for a term not more than three years or to

both’’.51 Despite Camelot violated the treaty between Afutuo

and Camelot supervised by the Respondent52, the

Respondent extradited those criminals into Camelot.

Article IV of ACCNNR stipulates about sustainable use of

natural resources. Let alone preparing a mechanism to

follow up the extent the natural resources have been used,

the Respondent failed to guarantee non repetition of unsafe

deep-earth mining activities which make Local habitats and

farms continue to wane leaving many families destitute.53

Besides, the Respondent violates Article VIII (1) of ACCNNR

which states that the party shall take all necessary measures

for the protection, conservation, sustainable use and

51
Minerals and Mining Act, art 82(2).
52
Facts, para 3.
53
Facts, para 14.

32
rehabilitation of vegetation. In here, the Respondent violated

this Article when UNEP reported that local habitats, rivers,

and forest vegetation have been decimated because of

unsafe deep-earth mining and it failed to adopt any

necessary measures to protect and conserve the remaining

habitats. This failure resulted in making Local habitats and

farms continue to wane leaving many destitute.54

B. The Ill-Treatment of Those Detained Children and 20

GoHRA’s Senior Staff Members Violated Their Human

Rights

The Applicant submits that the ill-treatments of the detained

persons in vaccinating them without their consent or

informing them the reason of or the risks of vaccination

violate the African Charter, CRC, ICPAPED, ICCPR and

ACRWC.

54
Ibid.

33
The Respondent by vaccinating the detained children

without their consent or providing them the reason or risks of

vaccination violates Article 2(2) of Children’s Act, Article 4 of

ACRWC and Article 3(1) of CRC which prioritize the best

interest of the child as a primary consideration by all bodies

and organs. The Respondent did not make the best interest

of the child the primary consideration in vaccinating them. As

it can be construed from the above articles, the best interest

of the child is not subject to anything.

Article 17(2) (c) of ICPAPED states that State party shall

guarantee that any person deprived of liberty shall be held

solely in officially recognized and supervised place of

deprivation of liberty. However, the Respondent detained the

children and senior staff officer in the Villa which was not

officially recognized place of deprivation of liberty. Detention

34
shall be in an officially recognized place of detention and

under decent human condition.55

The Respondent violates the right to health information

privacy which is stipulated under Article 17(1) of ICCPR.

Pursuant to Article 4 of ICCPR, those stringent

circumstances shall exist to derogate this right. While the

victim of this acts were under the control of the Respondent

State and there were no compelling circumstances to deny

the right to health privacy. The continued detention of street

children and 20 officers at The Villa56 violated Article 37(b) of

CRC which stipulated that the detention of a child shall for

the shortest period of time.

55
See Principle No. 11 (3) of the Body of Principles for the Protection of
All Persons under Any Form of Detention of Imprisonment (adopted by
UN General Assembly in Resolution 43/173 of 9 December 1988) cum
art 14 of ICCPR.

56
Facts, para 22.

35
The detention of the child in the Villa, a former battalion

barracks that used to house retired military commanders57

violated Article 40(1) of CRC because this place will not

promote the child’s sense of dignity and worth and it will not

reinforces the child’s respect for the human rights and

freedoms of others. For the Villa is surrounded with very high

walls and armed guards at placed at the entrance gate58,

these will increase a sense of fear and being a criminal. For

that was a former battalion barracks that used to house

retired military commanders, the children are prone to hear

and visualize the brutality of the retired military commanders

that will later made them to consider the death of human

being as a normal and simple.

Concerning the 20 senior staff member of GoHRA, the

Respondent violated the right to health information privacy

which is stipulated under Article 17(1) of ICCPR.

57
Facts, para 19.
58
Ibid.

36
Regarding with African Jehovah peoples’ rights, the

Respondent violated the right to pursue one’s own religion

principles. The right to freedom of religion can be limited only

if it was prescribed by law and necessary to protect public

safety, order, health, or morals or the fundamental rights and

freedoms of others.59

European Convention on Human Rights recognized that acts

of conscientious objection and refusal are protected

manifestation (at least of religious).60 Hence, an Applicant

submits that the Respondent violated the right to pursue

one’s own religion principle.

59
ICCPR, art 18(3).
60
Eweida v United Kingdom [2013] ECHR 37, (2013) 57 EHRR 8, Para
103 (treating the refusal of a marriage registrar to officiate at civil
partnership ceremonies as ‘directly motivated’ by her religious beliefs);
Bayatyan v Armenia App no 23459/03(Grand Chamber, 7 July 2011,
para 110-112 (failure to report for military service treated as
‘manifestation’ of the applicant’s religious believes. Vaccination,
Conscientious objection and human rights, Ian Leigh, Durham University
Durhan, UK Available at: https://doi.org/10.1017/1st.2022.27.
www.cambridge.org. (Accessed 18 March 2023).

37
Accordingly, the Respondent violated African charter, CRC,

ICCPR and ACRWC by ill-treatment of the detained children

and 20 senior staff members.

C. The Limitation of FSHS Policy Only to 150 Less

Endowed Schools was Discriminatory .

The limitation of FSHS policy violates the right of other

schools to be non-discriminated. Under international law

discrimination is allowed only in the case of affirmative

action/positive discrimination.61

(I) FSHS Policy is Discriminatory

The FSHS Policy violated Article 21(2) of UDHR which

states that everyone has the right to equal access to public

service in his country.

61
See CEDAW art 4(1) cum International Convention on the Elimination
of All Forms of Racial Discrimination arts 1(4). 2 (2).

38
Article 13 (2) (b) of ICESCR states that Secondary education

shall be made generally available and accessible to all.

Secondary education shall be made ‘generally available’

means that it should be distributed throughout the State in

such a way that it is available on the same basis to all.62

FSHS policy was carried out as part of secondary education.

Hence it should be on the same basis to all schools.

The prohibition against discrimination enshrined in Article

2(2) of ICESCR is subject to neither progressive realization

nor the availability of resource.63 Hence, implementation of

FSHS policy only in 150 schools for lack of financial

resource cannot be an excuse for the Respondents’

discriminatory policy.

(II) FSHS Policy is not an affirmative action

62
CESCR General Comment No 13 Para 13 (E/C.12/1999/10).
63
CESCR General Comment No 13 Para 31 (E/C.12/1999/10).

39
The FSHS Policy was not designed as an affirmative action

solely for less endowed schools. In the beginning, the

Respondent has a plan to extend the coverage of this policy

also to all schools when the Government gets the financial

capacity to cover its costs.64 If the FSHS was an affirmative

action, it does not need to have a plan to extend this policy

to well-to-do schools.

D. The Refusal to Register CSMR Space under NGO

Registration Act

Pursuing different sexual orientation is privacy matter. An

interference with privacy is allowed only when that

interference is proportional and necessary in any case.65

(I) the refusal to register CSMR is unnecessary and

disproportional
64
Facts, para 5 see line 12-15. It says ‘’ all students’’ with no indication
of schools types in which they have been learning.
65
Toonen v Australia (31 March. 1994) Human Rights Committee
Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994)
para 8.3.

40
The limitation of the rights of CSMR Space is neither

proportional nor necessary in the protection of public health,

public order, moral and security which are stipulated under

Article 11 of African Charter. Accepting who you are is not

subject to an issue of necessity and proportionality. Hence,

refusal to register CSMR Space is thoroughly unnecessary

and disproportional at all.

(II) The violation of freedom of association and

assembly

The Applicant submits that the refusal of the Respondent

State to register CSMR violate their right to free association,

assembly66, non-discrimination67 and equal protection of the

law.68 African Commission Resolution 275 condemned

66
African Charter, art 10. ICCPR, art 22.
67
African Charter, art 2. ICCPR, arts 2, 26.
68
African Charter, art 3(1). ICCPR, art 26.

41
violence and discrimination on the basis of sexual orientation

and gender identity.69

Freedom of association is enunciated as an individual right

and is first and foremost a duty for the State to abstain from

interfering with the free formation of associations.70The HC

and SC affirmed the DSWD’s decision with same

reasoning.71 The refusal to register CSMR prevents the

association to get the status of a legal entity and resulted in

absence of equal protection of the law and non

discrimination. This act of the Respondent violated Article

22(1) (2) of ICCPR, Article 20(1) of UDHR, Article 10 and 28

of ACHPR which recognized freedom of association for all

human being. The State party should provide effective

protection against violence and discrimination based on

69
African Commission, Resolution 275: on Protection against Violence
and other Human Rights Violation against Persons on the basis of their
real or imputed Sexual Orientation or Gender Identity ( Resolution 275)
ACHPR/Res.275(LV)2014.
70
Civil Liberties Organization v Nigeria, [15] Communication No 101/93.
71
Facts, para 26.

42
sexual orientation.72 Hence, there is no ground for

discriminating those minorities on the basis of their sexual

orientations. Contrary to this, the Respondent violates these

obligations.

The objective of equal protection of the law under Article 3(2)

of the African Charter becomes meaningless if the people

are denied their right for mere they pursue different sexual

orientation. The term ‘’other status’’ under Article 2 of African

Charter includes ‘sexual orientation’ and ‘gender identity’.73

The Human Right Committee has clearly stipulates that ‘sex’

for the purpose of Article 2(1) and 26 of ICCPR includes

‘sexual orientation’.74 And also the term ‘’other status’’ under

72
See Concluding Observation of the Human Rights Committee on El
Salvador (CCPR /CO/78/SLV) at para 16.
73
Zimbabwe Human Rights NGO Forum v. Zimbabwe (2006) AHRLR
th
128 (ACHPR 2006) Communication 245/2002 Decided at the 34
st
ordinary session, May 2006, 21 Activity Report.
74
Toonen v Australia, UN Human Rights Committee, Communication No
488/1992, UN Doc CCPR/C/50/D/488/1992 (4 April 1994).

43
Article 2 of both ICESCR and CEDAW includes ‘sexual

orientation’.75

Therefore, the Applicant submits that the refusal to register

CSMR space is unjustified.

III. SUBMISSIONS ON REPARATIONS

If the Court finds that there is violation of human or peoples’

rights, the Court shall make orders to remedy the violation,

including the payment of fair compensation, restitution,

rehabilitation or guarantees of non-repetition.76 The

jurisdiction of the Court extends to the reparations part of the

Application if it involves the same parties and same facts.77

To this end, regarding the failure of the State to hold

accountable those suspected of illegal mining and

75
CESCR General Comment No 20 (2 July 2009) (E/C.12/GC/20) and
CEDAW General Recommendation No 28 (CEDAW/C/GC/28), 16 Dec
2010, para 18.
76
Mtikila v Tanzania ( reparations) [2014] 1 AfCLR 72 [27].
77
Abubakari v Tanzania (reparations) (2019) 3 AfCLR 334 [16].

44
corruption, the Applicant requests the Court to (a) order the

Respondent to make effective investigation and prosecution

(b) to take a measure of compensation, restitution and

rehabilitation of the victims of illegal mining activities and

corruption.

Regarding with the ill-treated of the detained children and

senior staff members, the Applicant requests the Court to

compensate the harm occasioned at the Villa.

Concerning FSHS Policy, the Applicant requests the Court to

order the Respondent either to stop this policy at all or

extend this policy to all schools.

Regarding with the issue of CSMR Space, the Applicant

requests the Court to order the Respondent repeal Unnatural

Offence Act, Proper Sexual Identity Bill and other such

instruments and adopt the positive law that prevented

discrimination on the basis of sexual orientation or such

related grounds.

45
 CONCLUSION AND PRAYERS

The Applicant humbly prays the Court to declare that the

submitted suits are admissible. Besides, the Applicant prays

the Court to find, adjudge and declare that:

1. The failure of the Respondent to hold those accountable for

illegal mining and corruption violated the African Charter and

other human rights norms.

2. The Respondent shall establish independent anti corruption

institution and initiate effective investigation and prosecution

3. The Respondent shall either to cancel or extend the FSHS

policy in all schools.

4. The Respondent shall take constitutional, legislative and

other necessary measures within a reasonable time besides

repealing Unnatural Offence Act and other discriminatory

laws.

46
5. The Respondent shall guarantee non repetition and,

compensate and rehabilitate the victim of illegal mining and

corruptions.

Respectfully submitted

Counsel for Applicant

47