Benin taken to task by African Court for Charter failures – not even constitutional court escapes censure

Seldom does Africa’s premier regional court find that laws or practices relating to a state’s court violate rights enshrined in the African Charter. But in a new decision, delivered by the African Court on Human and Peoples’ Rights, the judges declared that Benin violated its obligation to guarantee the independence of the country’s constitutional court. The judges were equally clear that recent changes to the constitution should have involved far more consultation with the people. Among other decisions they declared that the state of Benin had violated the Charter right to information, as well as the right to economic, social and cultural development.

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How much should you be compensated if your government made it impossible for you to stand as a candidate in elections? In one of its most recent decision, the African Court on Human and Peoples’ Rights decided to award XYZ, a man from Benin who was prevented from standing as an election candidate, the token amount of one franc.

But though XYZ, whose name was withheld by agreement with the African Court, was awarded a merely nominal sum for the ‘moral damages’ he suffered through Benin’s defective laws and changes to the constitution, he had the satisfaction of persuading the Africa Court to agree with most of the complaints he argued before the judges.

XYZ had challenged a law promulgated a year ago, revising previous legislation on the country’s constitution.

‘Close associate’

The contested law was declared constitutionally sound by the country’s constitutional court in November 2019. But XYZ was not convinced. He approached the African Court, claiming that the constitutional court was itself biased among other reasons because the president of the court was a ‘close associate’ of Benin’s president. The court president had also, in his previous capacity as minister of justice, defended earlier drafts of constitutional revision that the constitutional court had declared to be unconstitutional.

XYZ complained that the disputed law was ‘adopted in secret’, without involving all sections of society – this despite the fact that Benin has signed international instruments obliging it to ensure that constitutional revisions were based on ‘national consensus’. He was also of the view that the process of constitutional revision was ‘adopted outside the rules of democracy, the rule of law and respect for human rights, and it was thus ‘a threat to the peace and security of the people of Benin’.

Such serious and wide-ranging complaints often fail at the court, but this time XYZ was remarkably successful. Faced with his claims, Benin asked the court to throw the case out, find the constitutional revision was correctly undertaken, ‘establish the impartiality of the constitutional court of Benin’ – and order that XYZ pay to Benin one billion (1,000,000,000) FCFA ‘for all damages suffered and incurred’.

Supreme

The judges said that the amendment of laws ‘such as the constitution, which is the supreme law of land’, held particular interest for all citizens because it had ‘a direct or indirect bearing on their individual rights and the security and well-being of their society and country.’ Thus, despite claims to the contrary by Benin, since XYZ was a citizen, he had a direct interest in the matter and had the right to bring the action.

Had the independence of the constitutional court been violated? XYZ said it had, since the mandate of the judges was renewable and they did not have financial autonomy.

The African Court bench went into considerable detail (paragraphs 60 – 87) on the nature of judicial independence, what it required and how independence could be infringed. Its most impressive finding was that a judge’s term of office was of a ‘renewable nature’. Renewal depended on the discretion of the President of Benin and on the Bureau of the National Assembly. This indicated that judicial independence was not guaranteed, ‘especially as the President is empowered by law to refer cases to the constitutional court.’

Compromised

Judicial independence was compromised and the article of the African Charter requiring states to guarantee the independence of the courts was thus violated.

However, the claim that the court was not impartial because of the track record of its president, was not upheld by the African Court.

A second major finding by the court related to the claim that the law revising the constitution was not supported by a significant number of Beninese and it was thus ‘not consensual’. XYZ said while the people had a constitutional right to expect that they would be involved in changes, ‘a proposal to revise the constitution by 10 deputies was presented to parliament under emergency procedure and adopted clandestinely … by a National Assembly composed solely of deputies from the President’s party.’

Revision

Benin, for its part, said constitutional revision was the prerogative of the President and the national assembly. A referendum was ‘only one means of revision’.

The African Court judges, however, said that Benin had established ‘national consensus’ as a principle constitutional value through a decision of the constitutional court, whose members even defined ‘consensus’. Weighing that principle with what had actually happened, the African Court held that the constitutional revision was adopted ‘in violation of the principle of national consensus’, as well as violating the Charter on Democracy, Elections and Governance.

Moreover, the court was also asked to find that Benin had infringed the right to information. It had done to, in particular, by not disclosing the law that amended the constitution before it was adopted by the national assembly. Even days after promulgation it was not on the government website, meaning that people could not appeal against the new law. In this, said XYZ, the right to information was violated.

Information

In the light of all this evidence, the court found that Benin had indeed violated XYZ’s right to information. Further, it had infringed the right to economic, social and cultural development of the people of the state, as well as the right to peace and security, all rights protected by the Charter.

On the question of reparations, the court ordered that XYZ should be awarded ‘a token amount of one CFA franc’ and that its other findings on violations by the state were ‘already a form of reparation for the non-pecuniary damage’ he suffered.

However, the court ordered Benin to do everything necessary to guarantee the independence of the constitutional court in the light of the African Court’s comments. It also ordered Benin to repeal the disputed new law ‘and all subsequent laws’ including a later law on the Electoral Code, to comply with the principle of national consensus.

Just as significant, all these changes had to be complete before any election. Benin was further ordered by the court to present to it, within three months, a report on its implementation of the changes ordered by the court.