Mouvement Burkinabé des Droits de l'Homme et des Peuples v. Burkina Faso, African Commission on Human and Peoples' Rights, Comm. No. 204/97 (2001).
204/97 - Mouvement Burkinabé des Droits de l’Homme et des Peuples / Burkina Faso
23rd Session: Commissioner Ben Salem
24th Session: Commissioner Ben Salem
25th Session: Commissioner Ben Salem
26th Session: Commissioner Ben Salem
27th Session: Commissioner Ben Salem
28th Session: Commissioner Ben Salem
29th Session: Commissioner Ben Salem
Summary of Facts
· competent jurisdictions;
· the Ministries concerned (Justice, Interior and Defence);
· the Prime Minister; and
· the President of the Republic of Burkina Faso.
· explain the fate of the student Dabo Boukary;
· disclose the conclusions of the inquiry on the assassination of Mr. Clement Oumarou Ouedraogo;
· take measures that can help find a legal solution to all these human rights violation cases; and
· compensate the victims of such violations.
21. At its 23rd Session, the Commission decided to be seized of the communication and deferred examination of the issue of admissibility to the 24th Session.
22. On 1st June 1998, a Note Verbale was sent to the Burkinabe Government informing it of this decision and calling for its reaction as to the admissibility of the communication was sent. A similar letter was also addressed to the Complainant.
23. On 13th July the Secretariat received a fax from the Burkinabé Minister of Justice and Guardian of the Seals stating that the Ministry of Foreign Affairs had informed him of a complaint submitted against Burkina Faso by Mouvement Burkinabé des Droits de l’Homme. He stated that the complaint was written in English and requested that the Secretariat provide him with the French version of the complaint since the working language of the country is French.
24. On the same day, the Secretariat reacted to the above-mentioned fax. The Minister was informed that the Commission had been seized of the communication and that the Respondent State was required to forward its submissions on the issue of admissibility for examination at the 24th Session scheduled to be held in October 1998.
25. At its 24th Ordinary Session, the Commission heard the parties. Both parties expressed the desire to settle the dispute amicably and requested the Commission’s assistance to that effect.
26. The Commission declared the communication admissible. However, in view of the desire of the parties to settle the dispute amicably, it offered its good services for that purpose.
27. On 10th November 1998, the parties were informed by the Secretariat of the Commission’s decision.
28. At its 25th Session, the Commission requested for information on the progress of the settlement between the parties.
29. During the 26th Session, the Commission learnt that there had been no reaction from the parties with regard to the progress of the settlement. The Commission therefore decided to defer examination on the merits of the communication to the 29th Session.
30. On 10th December 1999, the Secretariat informed the parties of the Commission's decision.
31. At the 27th Ordinary Session held in Algiers, Algeria, the Commission heard parties to the complaint and decided that the Respondent State should take the initiative in inviting the Complainant for an amicable settlement of the case, failing which, the Commission would proceed to consider the case on its merits.
32. On 20th July 2000, the Secretariat of the Commission conveyed the above decision to the parties.
33. On 17th August 2000, the Secretariat of the Commission received a Note Verbale from the Respondent State informing the Commission that they had complied with its decision and invited the Complainant for a meeting on 14th August 2000.
34. At the 28th Ordinary Session, the Commission heard both parties. The Respondent State informed the Commission that the case of the victims of massacres committed by police officers had been settled but that the other cases were pending. The Complainant confirmed that a meeting had been held but that there had been no progress in so far as settling the matter was concerned.
35. Article 56(5) of the African Charter on Human and Peoples’ rights requires, prior to any recourse being addressed to the Commission that communications received in accordance with article 55, should be “…sent after exhausting local remedies, if any unless it is obvious that this procedure is unduly prolonged”.
36. In this particular case, the Complainant had approached the competent national authorities with a view to obtaining redress for the alleged violations and to clarify the cases of disappearances and assassinations that had remained unpunished. At its 24th Ordinary Session, the Commission heard both parties. They expressed their desire to reach an amicable solution and requested its assistance to this end. The Commission informed the parties that it was at their disposal for purposes of reaching an amicable settlement but the parties did not utilise this avenue. The communication was declared admissible.
37. Article 3 of the Charter, stipulates that:
(1) Every individual shall be equal before the law.
(2) Every individual shall be entitled to equal protection of the law.
38. In order to redress the effects of the suspensions, dismissals and retirements of magistrates which took place on 10th June 1987, the Burkinabé State introduced an amnesty, aimed at rehabilitating workers abusively removed under the so-called “Conseil National de la Révolution” regime, which ruled over Burkina Faso from 1983 to 1987. As part of the said measure, many workers were restored to their posts, while many others, according to information available to the Commission, remained unaffected by the measure. The Complainant, Mr. Halidou Ouédraogo and Mr. Compaoré Christophe, both magistrates, fall in the latter category. They both demanded to be compensated in kind. The request made by Mr. Compaore has not been met to date. The Supreme Court, before which the case was filed over fifteen years ago has passed no verdict on it. The Commission further notes that no reason with a basis in law was given to justify this delay in considering the case. Nor does the Respondent State give any legal reasons to justify the retention of the punishment meted out to these two magistrates. The Commission considers therefore that this is a violation of Articles 18 and 19 of the Fundamental Principles on the Independence of the Judiciary, adopted by the seventh United Nations Congress on Crime Prevention and the Treatment of Offenders, held from 26th August to 6th September 1985, and confirmed by the General Assembly in its Resolutions 40/32 of 29 November 1985 and 40/146 of 13th December 1985.
39. In communication 39/90, A. Pagnoule (for A. Mazou) /Cameroon, para. 17, the Commission stated:
“Considering that the case under examination concerns the possibility of Mr. Mazou exercising his profession and that there are undoubtedly some people who depend on him for their survival, two years without any action on a case… constitutes a violation… of the Charter”.
40. It is abundantly clear, as the Commission has already noted that the Respondent State has shown reasons as to why the rehabilitation measure was applied in a selective manner. The Commission also wonders at the reasons behind the Supreme Court’s failure to proceed with the case. Fifteen years without any action being taken on the case, or any decision being made either on the fate of the concerned persons or on the relief sought, constitutes a denial of justice and a violation of the equality of all citizens before the law. It is also a violation of Article 7(1)(d) of the African Charter, which proclaims the right to be tried within a reasonable time by an impartial court or tribunal.
41. Article 4 of the Charter states that:
“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right”.
42. The communication contains the names of various people who were victims of assassinations, forced disappearances, attacks or attempted attacks against their physical integrity, and acts of intimidation. The Respondent State did not deny these facts. Also, the State has never published the results of the commission of enquiry set up following the assassination of Mr. Clement Oumarou Ouédraogo, nor did it identify the perpetrators of the offences or take any measures against them. In conformity with its own jurisprudence which states that “whenever allegations of human rights abuses are not contested by the accused State, … the Commission shall decide on the basis of the facts provided by the plaintiff and treat such facts as they are presented to it” (See communications 25/89, 47/90, 56/93 and 100/93, para. 49). The Commission therefore applies the same reasoning to the facts related in the present communication. The Commission would also like to reiterate a fundamental principle proclaimed in Article 1 of the Charter that not only do the States Parties recognise the rights, duties and freedoms enshrined in the Charter, they also commit themselves to respect them and to take measures to give effect to them. In other words, if a State Party fails to ensure respect of the rights contained in the African Charter, this constitutes a violation of the Charter. Even if the State or its agents were not the perpetrators of the violation. (See communication 74/92, para. 35).
43. The communication points to a series of human rights violations linked to certain events that occurred in Burkina Faso in 1995 and additional elements attached to the dossier describe the human rights violations perpetrated at Garango, Kaya Navio, as well as the murder of a young peasant at Réo. The communication also mentions the deaths of citizens who were shot or tortured to death, as well as the deaths of two young students who had gone onto the streets with their colleagues to express certain demands and to support those of the secondary school and higher institution teachers. The Commission deplores the abusive use of means of State violence against demonstrators even when the demonstrations are not authorised by the competent administrative authorities. It believes that the public authorities possess adequate means to disperse crowds, and that those responsible for public order must make an effort in these types of operations to cause only the barest minimum of damage and violation of physical integrity, to respect and preserve human life.
44. Article 5 of the Charter guarantees respect for the dignity inherent in the human person and the recognition of his legal status. This text further prohibits all forms of exploitation and degradation of man, particularly slavery, slave trade, torture cruel, inhuman or degrading punishment and treatment. The guarantee of the physical integrity and security of the person is also enshrined in Article 6 of the African Charter, as well as in the Declaration on the Protection of all Persons against Forced Disappearances, adopted by the General Assembly of the United Nations in Resolution 47/133 of 18th December 1992, which stipulates in article 1(2) that “any act leading to forced disappearance excludes the victim from the protection of the law and causes grave suffering to the victim and his family. It constitutes a violation of the rules of international law, especially those that guarantee to all the right to the recognition of their legal status, the right to freedom and security of their person and the right not be subjected to torture or any other inhuman or degrading punishment or treatment. It also violates the right to life or seriously imperils it”. The disappearances of persons suspected or accused of plotting against the instituted authorities, including Mr. Guillaume Sessouma and a medical student, Dabo Boukary, arrested in May 1990 by the presidential guard and who have not been seen since then constitute a violation of the above-cited texts and principles. In this last case, the Commission notes the submission of a complaint on 16th October 2000.
45. Article 8 of the Charter provides for the guarantee of the freedom of conscience, the profession and the free practice of religion. While the Complainant claims violation of these treaty provisions, the communication does not contain any elements that could reasonably lead to such a conclusion. Information before the Commission provides no indication that the Complainant or that any other person cited in the communication had tried to express or exercise their freedom of conscience or to profess their faith. The Commission is of the view, therefore, that violation Article 8 has not been established. It adopts the same position as regards the allegations of violation of Articles 9(2), 10 and 11 of the Charter.
46. Article 12(2) stipulates that:
“Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality”.
47. The communication alleges that on 6th August 1995, Mr. Nongma Ernest Ouédraogo, Secretary General of the political party known as “Bloc Socialiste Burkinabé” was prevented from leaving the national territory, following the publication by the said party of a statement on the situation in the country. Information available to the Commission does not point to any threat to public security or morality that either the journey or even the person of the said Mr. Ouédraogo could have represented. Therefore, it agrees that there was violation of Article 12(2).
48. The Complainant claims that there was dismissal of many workers at Poura on account of a strike. Unfortunately, the information provided to the Commission do not allow it to establish in any certain manner that there was violation of article 13(2).
For these reasons:
The Commission finds the Republic of Burkina Faso in violation of Articles 3, 4, 5, 6, 7(1)(d) and 12(2) of the African Charter.
Recommends that the Republic of Burkina Faso draws all the legal consequences of this decision, in particular by:
· Identifying and taking to court those responsible for the human rights violations cited above;
· Accelerating the judicial process of the cases pending before the courts;
· Compensating the victims of the human rights violations stated in the complaint.
Done at the 29th Ordinary Session held in Tripoli, Libya
from 23rd April to 7th May 2001