AFRICAN UNION UNION AFRICAINE
UNIÃO AFRICANA
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES
P.O Box 6274 Arusha, Tanzania Telephone: +255 27 205 0111 Fax. +255 27 205 0112
IN THE MATTER OF
MICHELOT YOGOGOMBAYE
versus
THE REPUBLIC OF SENEGAL
APPLICATION No. 001/2008
JUDGMENT
The Court composed of: Mr. MUTSINZI, President; Ms.
AKUFFO, Vice-President; Ms. MAFOSO-GUNI, Messrs NGOEPE,
FANNOUSH, GUINDO, NIYUNGEKO, OUGUERGOUZ and
MULENGA - Judges; and Mr. DIAKITÉ - Registrar
In the matter of:
Mr. Michelot Yogogombaye,
representing himself
versus
the Republic of Senegal,
represented by:
- Mr. Abdoulaye Dianko, State Legal Officer,
- Mr. Mafall Fall, State Legal Department, Ministry of Economy
and Finance,
- His Excellency Mr. Cheikh Tidiane Thiam, Ambassador,
- Mr. Mamadou Mbodj, Legal and Consular Affairs Department,
Ministry of Foreign Affairs,
- Mr. Moustapha Kâ, Criminal and Mercy Affairs Department,
Ministry of Justice,
After deliberation on the matter,
makes the following ruling:
1. By an application dated 11th August 2008, Mr. Michelot
Yogogombaye (hereinafter referred to as “the Applicant”), a
Chadian national, born in 1959 and currently residing in
Bienne, Switzerland, brought before the Court a case against the
Republic of Senegal (hereinafter referred to as “Senegal”), “with a
view to obtaining suspension of the ongoing proceedings
instituted by the Republic and State of Senegal with the objective
to charge, try and sentence Mr. Hissein Habré, former Head of
State of Chad, presently asylumed in Dakar, Senegal”.
2
2. In accordance with Article 22 of the Protocol to the African
Charter on Human and Peoples’ Rights on the Establishment of
an African Court on Human and Peoples’ Rights (hereinafter
referred to as “the Protocol”), and Rule 8 (2) of the Interim Rules
of Court (hereinafter referred to as “the Rules”), Judge El Hadj
Guissé, Member of the Court, and a national of Senegal, recused
himself.
3. The Applicant sent his application to the Chairperson of the
African Union Commission by electronic mail dated 19th August
2008. This application was received in the Court Registry on 29th
December 2008, with a covering correspondence from the Legal
Counsel of the African Union Commission dated 21st November
2008.
4. The Registry acknowledged receipt of the application, and
notified the Applicant by letter dated 2nd January 2009, that all
communications meant for the Court must be addressed directly
to it, at its Seat in Arusha, Tanzania.
5. In accordance with Rule 34 (6) of the Rules, the Registry
served a copy of the application on Senegal by registered post on
5th January 2009; also in accordance with Rule 35 (4) (a) of the
Rules, the Registry invited Senegal to communicate to it, within
30 days, the names and addresses of its representatives.
6. Pursuant to Rule 35 (3) of the Rules, the Registry also
informed the Chairperson of the African Union Commission about
the application by letter of that same date.
7. The Applicant informed the Registry, by letter dated 30th
January 2009 received at the Registry on 5th February 2009, that
he would represent himself in the matter that he had brought
before the Court.
8. Senegal acknowledged receipt of the application and
transmitted to the Court, the names of its representatives
mandated to represent it before the Court, by letter of 10th
February 2009 received by the Registry on the same day, by fax.
3
9. By another faxed letter dated 17th February 2009 received in
the Registry on the same day, Senegal requested the Court to
extend the time limit “to enable it to better prepare a reply to the
application”.
10. By an order dated 6th March 2009, the Court granted the
request of Senegal and extended, up to 14th April 2009, the period
within which to submit its reply to the application.
11. A copy of the order was served on the Applicant, and on
Senegal, by facsimile transmission dated 7th March 2009.
12. Senegal submitted its statement of defence within the time
limit indicated in the aforesaid order, in which it raised
preliminary objections regarding the jurisdiction of the Court and
admissibility of the application, and also addressed substantive
issues.
13. The Registry served on the Applicant, under covering letter of
14th April 2009, a copy of the statement of defence by Senegal.
14. The Applicant having failed to respond to the said statement,
the Registry by another letter dated 19th June 2009, notified the
Applicant that if he failed to respond within 30 days, the Court
would assume that he did not want to present any submission in
reply to the statement of defence, in accordance with Rule 52 (5) of
the Rules.
15. On 29th July 2009, the Applicant acknowledged receipt of the
statement of defence and submitted that: “the afore-mentioned
reply did not introduce any new element likely to significantly
modify the views I expressed in my initial application. I therefore
maintain the said views in their entirety, and resubmit myself to
the authority of the Court.”
16. In view of the facts, the Court did not deem it necessary to
hold a public hearing and, consequently, decided to close the case
for deliberation.
4
17. In his application, the Applicant averred, among other things,
that “the Republic and State of Senegal and the Republic and State
of Chad, members of the African Union, are parties to the Protocol
[establishing the African Court on Human and Peoples’ Rights] and
have, respectively, made the declaration prescribed in Article 34 (6)
accepting the competence of the Court to receive applications
submitted by individuals”.
18. With regard to the facts, the Applicant submitted that Hissein
Habré, former President of Chad, is a political refugee in Senegal
since December 1990, and that in 2000, he was suspected of
complicity in crimes against humanity, war crimes and acts of
torture in the exercise of his duties as Head of State, an allegation
based on the complaints by the presumed victims of Chadian
origin.
19. The Applicant further averred that, by decision of July 2006,
the African Union had mandated Senegal to “consider all aspects
and implications of the Hissein Habré case and take all
appropriate steps to find a solution; or that failing, come up with
an African option to the problem posed by the criminal prosecution
of the former Head of State of Chad, Mr. Hissein Habré…”
20. He also submitted that, on 23rd July 2008, the two chambers
of the Parliament of Senegal adopted a law amending the
Constitution and “authorizing retroactive application of its criminal
laws, with a view to trying exclusively and solely Mr. Hissein
Habré”.
21. He alleged that by so doing, Senegal violated the “sacrosanct
principle of non-retroactivity of criminal law, a principle enshrined
not only in the Senegalese Constitution but also in Article 7 (2) of
the African Charter on Human and Peoples’ Rights” to which
Senegal is a party.
22. According to the Applicant, the action of Senegal also
portrayed that country’s intention “to use in abusive manner, for
political and pecuniary ends, the mandate conferred on it by the
African Union in July 2006”. Further, according to the Applicant,
in opting for a judicial solution rather than an African solution
inspired by African tradition, such as the use of the “Ubuntu”
institution (reconciliation through dialogue, truth and reparations),
Senegal sought to use its services as legal agent of the African
Union for financial gain.
5
23. In conclusion, the Applicant prayed the Court to:
“ 1) Rule that the application is admissible;
2) Declare that the application has the effect of
suspending the ongoing execution of the July
2006 African Union’s mandate to the Republic
and State of Senegal, until such time that an
African solution is found to the case of the
former Chadian Head of State, Hissein Habré,
currently a statutory political refugee in Dakar
in the Republic and State of Senegal;
3) Rule that the Republic and State of Senegal
has violated several clauses of the Preamble
and the Articles of the African Charter on
Human and Peoples’ Rights;
4) Rule that the Republic and State of Senegal
has violated the African Charter on Human
and Peoples’ Rights and, in particular, the 10
September 1969 OAU[AU] Convention
Governing the Specific Aspects of Refugee
Problems in Africa, which came into force on
26 June 1974;
5) Rule that the case is politically motivated and
that the Republic and State of Senegal violated
the principle of universal jurisdiction in the
ongoing proceedings instituted with a view to
indicting and trying Mr. Hissein Habré;
6) Rule that, in the said procedure instituted
with a view to indicting and trying Mr. Hissein
Habré, there is political motivation, pecuniary
motivation and the abuse of the said principle
of universal jurisdiction, application of which
will become, de facto, lucrative for the
respondent (estimated to cost 40 billion CFA
Francs). This cannot but create precedents in
6
other African countries in which former Heads
of State would possibly take refuge;
7) Rule that the charges brought against Mr.
Hissein Habré have been abused and
abusively used by the Republic and State of
Senegal, the French Republic and State and
the humanitarian organization, Human Rights
Watch (HRW), particularly in view of the media
publicity given to, and the media hype into
which they turned, the said allegations;
8) Rule that the said abuse of the principle of
universal jurisdiction has destabilizing effect
for Africa, that it could impact negatively on
the political, economic, social and cultural
development of not only the State of Chad but
also all other African States, and on the
capacity of these States to maintain normal
international relations;
9) Suspend the July 2006 African Union
mandate to Senegal and hence the current
proceedings instituted by the Republic and
State of Senegal with a view to indicting and
eventually trying Mr. Hissein Habré;
10) Order the Republic and State of Chad and
the Republic and State of Senegal to establish
a national “Truth, Justice, Reparations and
Reconciliation” Commission for Chad, on the
South African model derived from the
philosophical concept of “Ubuntu” for all the
crimes committed in Chad between 1962 and
2008; and in so doing, resolve in African
manner the problematic case of the former
Chadian Head of State, Hissein Habré;
11) Recommend that other Member States of
the African Union assist Chad and Senegal in
establishing and putting into operation the
said “Truth, Justice, Reparations and
Reconciliation” Commission;
7
12) With regard to costs and expenses, grant
the Applicant the benefit of free proceedings.”
24. In its statement of defence, Senegal for its part submitted,
inter alia, that for the Court to be able to deal with applications
brought by individuals, “the respondent State must first have
recognized the jurisdiction of the Court to receive such
applications in accordance with Article 34 (6) of the Protocol
establishing the Court”.
25. In this regard, Senegal “strongly asserted that it did not make
any such declaration accepting the jurisdiction of the African
Court on Human and Peoples’ Rights to deal with applications
brought by individuals”.
26. Alternatively, Senegal averred that the Applicant “was wrong to
meddle in a matter that is the exclusive concern of Senegal,
Hissein Habré and the victims” as per the obligations arising from
the Convention against Torture; and that it does not see any
“justification for legitimate interest on the part of the Applicant to
bring the case against the Republic of Senegal”.
27. In addition, Senegal denied the allegations made by the
Applicant in regard to the “purported violation [by it] of the
principle of non-retroactivity of criminal law”, and the “purported
violation of African Union mandate” of July 2006.
28. In conclusion, Senegal prayed the Court to:
“On matters of procedure:
Rule that Senegal has not made a declaration
accepting the jurisdiction of the Court to hear
applications submitted by individuals;
Rule that the Applicant has no interest to
institute the application;
Therefore, declare that the application is
inadmissible.
8
On the merits:
Declare and decide that the evidence adduced
by Mr. Michelot Yogogombaye is baseless and
incompetent;
Therefore, strike out the pleas submitted by the
Applicant as baseless;
Rule that Mr. Michelot Yogogombaye should
bear the costs incurred by the State of Senegal
in regard to the application”.
29. In accordance with Rules 39 (1) and 52 (7) of the Rules, the
Court has at this stage, to first consider the preliminary objections
raised by Senegal, starting with the objection to the Court’s
jurisdiction.
30. Article 3 (2) of the Protocol and Rule 26 (2) of the Rules provide
that “in the event of a dispute as to whether the Court has
jurisdiction, the Court shall decide”.
31. To resolve this issue, it should be noted that, for the Court to
hear a case brought directly by an individual against a State Party,
there must be compliance with, inter alia, Article 5 (3) and Article
34 (6) of the Protocol.
32. Article 5 (3) provides that:
“The Court may entitle relevant Non-
Governmental Organizations (NGOs) with
observer status before the Commission and
individuals to institute cases directly before it,
in accordance with Article 34 (6) of this
Protocol”.
9
33. For its part, Article 34 (6) of the Protocol provides that:
“At the time of ratification of this Protocol or
any time thereafter, the State shall make a
declaration accepting the competence of the
Court to receive cases under Article 5 (3) of
this Protocol. The Court shall not receive any
petition under Article 5 (3) involving a State
Party which has not made such a declaration”.
34. The effect of the foregoing two provisions, read together, is
that direct access to the Court by an individual is subject to the
deposit by the respondent State of a special declaration
authorizing such a case to be brought before the Court.
35. As mentioned earlier, the Applicant in his submission averred
that “the Republic and State of Senegal and the Republic and State
of Chad, both members of the African Union, are Parties to the
Protocol and have, respectively, made the declaration as per Article
34 (6) of the Protocol accepting the competence of the Court to
receive cases from individuals”. For its part, Senegal in its
statement of defence “strongly asserted that it did not make any
such declaration accepting the jurisdiction of the African Court on
Human and Peoples’ Rights to hear applications brought by
individuals”.
36. In order to resolve this issue, the Court requested the
Chairperson of the African Union Commission, depository of the
Protocol, to forward to it a copy of the list of the States Parties to
the Protocol that have made the declaration prescribed by the said
Article 34 (6). Under covering letter dated 29 June 2009, the Legal
Counsel of the African Union Commission transmitted the list in
question, and the Court found that Senegal was not on the list of
the countries that have made the said declaration.
37. Consequently, the Court concludes that Senegal has not
accepted the jurisdiction of the Court to hear cases instituted
directly against the country by individuals or non-governmental
organizations. In the circumstances, the Court holds that,
pursuant to Article 34 (6) of the Protocol, it does not have
jurisdiction to hear the application.
10
38. The Court notes, in this respect, that although presented by
Senegal in its written statement of defence as an objection on the
ground of “inadmissibility”, its first preliminary objection pertains,
in reality, to lack of jurisdiction by the Court.
39. The Court further notes that the second sentence of Article 34
(6) of the Protocol provides that “it shall not receive any petition
under Article 5 (3) involving a State Party which has not made
such a declaration” (emphasis added). The word “receive” should
not however be understood in its literal meaning as referring to
“physically receiving” nor in its technical sense as referring to
“admissibility”. It should instead be interpreted in light of the letter
and spirit of Rule 34 (6) in its entirety and, in particular, in
relation to the expression “declaration accepting the competence of
the Court to receive applications [emanating from individuals or
NGOs]” contained in the first sentence of this provision. It is
evident from this reading that the objective of the aforementioned
Rule 34 (6) is to prescribe the conditions under which the Court
could hear such cases; that is to say, the requirement that a
special declaration should be deposited by the concerned State
Party, and to set forth the consequences of the absence of such a
deposit by the State concerned.
40. Since the Court has concluded that it does not have
jurisdiction to hear the case, it does not deem it necessary to
examine the question of admissibility.
41. Each of the parties having made submissions regarding costs,
the Court will now pronounce on this issue.
42. In his pleadings, the Applicant prayed the Court, “with respect
to the costs and expenses of the case”, to grant him “the benefit of
free proceedings”.
43. In its statement of defence, Senegal, on the other hand, prayed
the Court to “order Mr. Michelot Yogogombaye to bear the cost
incurred by the State of Senegal in this case”.
44. The Court notes that Rule 30 of the Rules states that “Unless
otherwise decided by the Court, each party shall bear its own
costs”.
11
45. Taking into account all the circumstances of this case, the
Court is of the view that there is no reason for it to depart from the
provisions of Rule 30 of its Rules.
46. In view of the foregoing,
THE COURT, unanimously:
1) Holds that, in terms of Article 34 (6) of the Protocol,
it has no jurisdiction to hear the case instituted by
Mr. Yogogombaye against Senegal;
2) Orders that each party shall bear its own costs.
Done at Arusha, this fifteenth day of December in the year Two
Thousand and Nine in French and English, the French text being
authentic.
Signed:
- Jean MUTSINZI, President
- Sophia A.B. AKUFFO, Vice-President
- Justina K. MAFOSO-GUNI, Judge
- Bernard M. NGOEPE, Judge
- Hamdi Faraj FANNOUSH, Judge
- Modibo Tounty GUINDO, Judge
12
- Gérard NIYUNGEKO, Judge
- Fatsah OUGUERGOUZ, Judge
- Joseph N. MULENGA, Judge
- and Aboubakar DIAKITE, Registrar
In accordance with Article 28 (7) of the Protocol and Rule 60 (5) of
the Rules of Court, the separate opinion of Judge Fatsah
OUGUERGOUZ is appended to this Judgment.
13
