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Bernard Anbataayela Mornah vs Republic of Benin et al.

On October 31st, 2018, Mr Bernard Anbataayela Mornah (the applicant) filed an application instituting proceedings against the States of Benin, Burkina Faso, Côte d’Ivoire, Ghana, Mali, Malawi, Tanzania and Tunisia (together the defendant States) before the African Court on Human and Peoples’ Rights (the Court or the ACHPR) for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its articles 1, 2, 7, 13, 19 to 24 as well as other international instruments.

The applicant alleges violations of the human rights of the Saharawi people as a result of the failure of the defendant States to safeguard the territorial integrity and independence of the Sahrawi Arab Democratic Republic (SADR) as a result of the territorial occupation of Western Sahara, a member of the African Union (AU), by Morocco. After voluntarily leaving the organisation in the 80s, the Sharifian kingdom reapplied for AU membership in 2017 and was admitted despite the fact that it has not produced any evidence of its intention to renounce its occupation of Western Sahara.

The Republics of Benin, Côte d’Ivoire and Tanzania deposited the instruments of withdrawal of the Court’s declaration of jurisdiction to receive applications from individuals and non-governmental organizations. However, in issuing its decision on September 22nd, 2022, the Court reaffirmed its consistent jurisprudence of ruling on all cases enrolled at the Registry prior to the date of entry into force of the withdrawal of the declaration.

The Republic of Mauritius and the Sahrawi Arab Democratic Republic (SADR) filed applications to intervene in the case and by two orders dated September 25th 2020, the Court granted these requests.

Order of 25-09-2020.pdf

Order of 25-09-2020.pdf

As a preliminary point, the defendant States raised objections regarding the jurisdiction of the case  and the admissibility of the application. After examining the pleas in law, the Court concluded that the case was admissible and held that it had jurisdiction to hear it. It then turned to the merits of the case.

The applicant maintains that Morocco’s entry into the AU was made in disregard of the individual and collective obligation of these States to defend the sovereignty, territorial integrity and independence of Western Sahara, which was already a member of the African Union. It states more specifically that this accession violates the rights of the people of Western Sahara to self-determination, to be free from discrimination, to a fair trial, to participate in political activities; the equality of all peoples, peace, a satisfactory environment, the disposal of its natural wealth and resources, and the economic, social and cultural development of the people of Western Sahara. The applicant asserts that the respondent States have an obligation to be their “brother’s keeper”.

Burkina Faso, Côte d’Ivoire, Mali, Tunisia and Tanzania countered that they are not responsible for a decision taken by the AU nor do they have the power to interfere in matters between sovereign states. According to them, these alleged violations do not fall within their own jurisdiction. The intervening States concluded that the right to self-determination is a fundamental human right and a mandatory norm of international law that creates an erga omnes obligation on all States to ensure its respect.

After considering the submissions of all parties, the Court concluded that the fundamental legal issue in the present case relates essentially to the right to self-determination, in particular the right of the Saharan people to obtain assistance in their struggle to free themselves from foreign occupation. The ACHPR recalled that the notion of self-determination has a strong resonance in Africa and has a special and profound meaning for its people. Self-determination includes a positive obligation to protect, promote and create conditions for the enjoyment of the right, as well as a negative obligation to respect the law, i.e. to refrain from committing acts or taking measures that prevent individuals from fully enjoying their right to self-determination. In international law, the right to self-determination had acquired the status of jus cogens or mandatory norm, thus generating a corollary obligation erga omnes for all States. No derogation is applicable to this law and “all States have an interest to protect this right”.

The Court notes that both the United Nations and the AU recognise the situation of SADR as a situation of occupation and regard the territory of SADR as one of the territories whose decolonisation process has not yet been fully completed. The ACHPR notes that the International Court of Justice has also concluded in an advisory opinion that there is no evidence to establish any link of territorial sovereignty between the territory of Western Sahara and Morocco. Consequently, SADR’s sovereignty over the occupied territory is an established fact which the Court must take into account in its assessment of the present Application. The Court emphasises that Morocco’s continued occupation of SADR is incompatible with the right to self-determination of the people of SADR, as enshrined in Article 20 of the Charter, and constitutes a violation of that right, but that the respondent States have not, individually or collectively, violated the right to self-determination of the people of SADR guaranteed by Article 20 of the Charter. However, the Court reaffirms the need for all AU Member States, under international law, to find a permanent solution to the occupation, to ensure the enjoyment of the inalienable right of the Saharawi people to self-determination and not to do anything that could recognize this occupation as legal or hinder the process.

Judgment of 22-09-2022.pdf

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.

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