Oumar Mariko vs Republic of Mali
On November 17th, 2018, Mr. Oumar Mariko, applicant, filed an application instituting proceedings before the African Court on Human and Peoples’ Rights (ACHPR) against the Republic of Mali for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its Articles 3, 7 and 26, as well as other regional and international instruments.
Indeed, Mr. Mariko, unsuccessful candidate for the 2018 Presidential election in his country, claims that the election was fraudulent and the judicial decisions rendered afterwards were in violation of his rights, the lack of independence and impartiality of the electoral bodies as well as the predominance of the Ministry of Territorial Administration (hereinafter referred to as “MTA”) in the electoral process contributed to his elimination in the first round of the election.
The ACHPR rendered its judgment in this case on March 24th, 2022. It first ascertained its jurisdiction and the admissibility of the application before turning to its merits.
As regards, first of all, to the alleged violation of the right to a fair hearing (s. 7(1) of the Charter), the applicant submits that:
- The application for interim measures lodged with the Supreme Court following the results of the presidential election was not dealt with within the legal time limits, thus constituting a violation of the right to have his case heard within a reasonable time (Art. 7(1)(d) of the Charter): the respondent State replied that the appeal had been lodged with the Supreme Court, whereas the electoral dispute was the responsibility of the Constitutional Court. After examination, the African Court on Human and Peoples’ Rights replied that the Organic Law on the Constitutional Court provides that applications for interim relief must be dealt with within 72 hours of the filing of the application. However, in the present case, the applicant had filed his appeal on July 25th, 2018 and that a decision had been issued on August 09th, 2018, i.e. 15 days later, without any justification being given as to the non-compliance with the 72-hour deadline. Accordingly, the Court concluded that the Malian court had indeed violated Article 7(1)(d) of the Charter;
- The procedure for lodging a complaint against the results of the presidential election did not respect the principle of adversarial proceedings: the applicant claims that one of the documents was not communicated to him and therefore could not be debated. Mali disputes this fact. The African Court concludes that the respondent State has not demonstrated that the principle of adversarial proceedings has been respected in the present case;
- The plea relating to the recusal of certain members of the Constitutional Court could not succeed in part because of the absence of regulations on the matter constituted a violation of his right to exercise an effective remedy (Art. 7(1)(a) of the Charter): after examining the positions of both parties, the Court concluded that the failure to regulate the procedure for challenging the members of the Constitutional Court constituted an obstacle to the effective exercise of the Applicant’s right of individual petition, thus proving the applicant right.
- His right to be tried by an impartial tribunal (Arts. 7(1)(c) and 26 of the Charter) has been violated as 6 of the 9 members of the Constitutional Court of the Court are appointed respectively by the President of the Republic and the President of the National Assembly. The respondent State replies that the judgment of the Constitutional Court was delivered in accordance with the applicable standards and testifies to the independence and the impartiality of that Court. After examining the pleas presented, the African Court concluded that albeit the institutional independence of the Court was guaranteed, the same was not true for the members of that Court whose mandate may be renewed on a discretionary basis. There is therefore a violation of section 26 of the Charter.
Next, with regard to the alleged violation of the obligation to create an independent and impartial electoral body, in accordance with Article 3 of the ECOWAS Protocol, the applicant claims that the Independent National Electoral Commission (INEC) was gutted in favour of the Directorate General for Elections (DGE) and the Ministry of Territorial Administration (MTA). These allegations are strongly denied by the Malian authorities. In its judgment of March 24th, 2022, the Court concluded that the entanglement of competences of the various bodies provided for by the electoral law and the opacity that characterizes their relations have a negative impact on the independence and impartiality of the INEC. Accordingly, the Court considers that the respondent State has breached its obligation to establish and strengthen electoral bodies, provided for in Articles 17(1) of the CADEG and 3 of the ECOWAS Protocol.
Finally, with regard to the alleged violation of the rights to equality before the law and equal protection of the law (article 3 of the Charter), the applicant asserted that both the composition and method of appointment of the members of the Constitutional Court and the fact that the late payment of parliamentary allowances to opposition MPs and his party’s annual subsidy constituted an obstacle to his rights. However, the Court did not agree with him.
The ACHPR subsequently rejected the applicant’s other pleas in law. On the question of reparations, the Court ordered Mali to pay one million FCFA to the applicant in compensation for the non-pecuniary damage suffered and to introduce measures to ensure the adversarial principle and to guarantee respect for the Court’s independence.
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.
