Application for Intervention by Kipsang Kilel and Others

Application No. 001/2019

In the matter of African Commission on Human and Peoples’ Rights v Republic of Kenya Application No. 006/2012

(Reparations)

African Court on Human and Peoples’ Rights

S Ore, P; RB Achour, AV Matusse, M Mukamulisa, S Mengue, TR Chizumila, C Bensaoula, SI Anukam, B Tchikaya and lD Aboud, JJ

November 28, 2019

Reported by Faith Wanjiku

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International law– law of treaty – Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights- dimensions of jurisdiction of the African Court on Human and Peoples’ Rights – permitted applicants before the African Court – access to the court through applications for intervention – under what circumstances could individuals of a state party to the African Charter file applications before the African Court directly – Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, articles 5(3) and 34(6)

Brief facts:

On May 26, 2017, the African Court delivered its judgment on the merits in an application filed by the African Commission on Human and Peoples ‘ Rights (the Commission) against the Republic of Kenya (the respondent State). In its judgment, the African Court found that the respondent State had violated articles 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the African Charter on Human and Peoples’ Rights (the Charter) in its relations with the Ogiek Community of the greater Mau Forest. The court reserved its determination of the claims for reparation and that aspect of the proceedings was still pending. The applicants averred that the Tinet Settlement Scheme was established by the respondent state for purposes of settling members of the Ogiek Community and that in 2005 the Ogiek of Tinet Settlement Scheme were given title deeds to their parcels of land by the respondent state.

The applicants further averred that the commencement of Application No. 006/2012 before the African Court had prejudiced them since one of the interim reliefs granted by the court was to order the respondent state to freeze any further transactions involving land in the Mau Forest. According to the applicants, due to the interim relief ordered by the court on March 15, 2013, they had been constrained since they could not charge their land to lending institutions in order to obtain finances to support their economic activities as well as their livelihood.

The applicants also alleged that they were contented with their parcels of land whose title deeds were lawfully issued to them by the government of Kenya in year 2005 and had absolutely no desire to convert the same to community land. They thus filed before the African Court an application to intervene at the reparations stage.

 

Issue:

Under what circumstances could individuals of a state party to the African Charter file applications before the African Court directly?

 

Relevant provisions of the law

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 5 – Access to the Court

(3)The Court may entitle relevant Non-Governmental Organisations with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol.

Article 34- Ratification

(6)At the time of the 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.

Rules of Court

Rule 53 –Intervention

1. An application for leave to intervene, in accordance with article 5 (2) of the Protocol shall be filed as soon as possible, and, in any case, before the closure of the written proceedings.

2. The application shall state the names of the Applicant’s representatives. It shall specify the case to which it relates, and shall set out:

a) the legal interest which, in the view of the State applying to intervene, has been affected;

b) the precise object of the intervention; and

c) the basis of the jurisdiction which, in the view of the State applying to intervene, exists between it and the parties to the case.

3. The application shall be accompanied by a list of the supporting documents attached thereto and shall be duly reasoned.

4. Certified copies of the application for leave to intervene shall be communicated forthwith to the parties to the case, who shall be entitled to submit their written observations within a time-limit to be fixed by the Court, or by the President if the Court is not in session. The Registrar shall also transmit copies of the application to any other concerned entity mentioned in Rule 35 of these Rules.

5. If the Court rules that the application is admissible, it shall fix a time limit within which the intervening State shall submit its written observations. Such observations shall be forwarded by the Registrar to the parties to the case, who shall be entitled to file written observations in reply within the timeframe fixed by the Court.

6. The intervening State shall be entitled, in the course of the oral proceedings, if any, to present its submissions in respect of the subject of the intervention.

 

Held by majority (with Bensaoula, J dissenting)

1. Pursuant to article 3(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Protocol), the jurisdiction of the court extended to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant human rights instrument ratified by the states concerned. Further, in terms of rule 39 of the Rules of Court, the court would conduct preliminary examination of its jurisdiction.

2. A combined reading of articles 5(3) and 34(6) of the Protocol required the court to assess personal jurisdiction from at least two perspectives which were; firstly from the angle of the respondent, that was, against what entities did the Protocol permit applications to be lodged; and, secondly, from the perspective of the applicant, that was to say, who was permitted to be an applicant before the court.

3. In terms of personal jurisdiction from the perspective of the respondent, generally, applications could only be filed against states that were parties to the Protocol. In the present case, the court noted that the respondent state was a party to the Protocol and that as a result of that the first perspective of its personal jurisdiction was established.

4. In terms of the second perspective to the court’s personal jurisdiction, the application had been filed by individuals in a matter that involved a state that had not deposited the declaration under article 34(6) of the Protocol. While that would ordinarily have deprived the court of its jurisdiction, the present application was not the genesis of the proceedings before it. The original action before the court was commenced by the African Commission on Human and Peoples’ Rights, which was permitted under article 5(1)(a) of the Protocol, to bring cases against states that had ratified the Protocol even where such states had not deposited the declaration under article 34(6) of the Protocol. The respondent state was properly before the court.

5. The instant application was one for intervention. It was important to look beyond article 5(1) of the Protocol in order to determine whether the applicants were properly before the court. There were several provisions in the Protocol that dealt with the question of intervention. Firstly, article 5(2) of the Protocol provided that when a state party had an interest in a case, it could submit a request to the court to be permitted to join. Rule 33(2) of the Rules reiterated the same by providing that in accordance with article 5(2) of the Protocol, a state party which had an interest in a case could submit a request to the court to be permitted to join in accordance with the procedure established in rule 53 of the Rules.

6. The provisions cited above; articles 5 (1), (2) (3) and 34(6) of the Protocol, rule 33(2) of the Rules were the only provisions dealing with intervention both in the Protocol and the Rules. They did not permit an individual(s) to intervene in on-going proceedings before the court. The applicants, being individuals seeking to intervene in ongoing proceedings were, therefore, not permitted by the Rules to intervene. For the preceding reason, the court lacked personal jurisdiction to deal with the application. Since the court lacked personal jurisdiction to entertain the application, it did not consider it necessary to examine the other dimensions of jurisdiction.

Application dismissed; each party was to bear its own costs.

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