BARRISTER PAULETTE OYANE ONDO EXPLAINS THE DECISION OF THE ACHPR. MAÎTRE PAULETTE OYANE ONDO EXPLIQUE LA DÉCISION DE LA CADHP
Paulette Oyane Ondo
This is a translation of an interview from the Gabonese newspaper: “Echos du Nord”
“The recommendations do not mean that the State to which they are made would be entitled to choose to follow them or not. It is not an option left to their discretion...”, says Paulette Oyane-Ondo
Echos du Nord: Barrister Paulette Oyane-Ondo, according to our sources, the Secretariat of the African Commission on Human and Peoples' Rights has recommended to that Commission to ask the Gabonese government to rehabilitate the Union Nationale party, pending a judgment on the legality of the dissolution of the party given by the Minister of Interior. Can you confirm this in your capacity as counsel for that dissolved party?
Barrister Paulette Oyane-Ondo: I must say that I am impressed by the precision and accuracy of your information. It is true that the African Commission on Human and Peoples' Rights (ACHPR) met in special session from 19 to 25 in February to discuss emergency cases placed on its table. And when I contacted them in September 2012 to submit the communication (in international law of human rights complaints are called communications) about Union Nationale, I used the technique called: the urgency of the case. When the Secretariat of the Commission is called through the urgency of the case, the ACHPR may meet in extraordinary session. And this is what happened in the case of the Union Nationale. You should know that the ACHPR meets only twice a year in ordinary session in April and November. It is not in session permanently, which personally I find unfortunate. But it is so. It is however the Secretariat of the Commission which sits permanently in Banjul, analyses records it receives and makes recommendations to the ACHPR. These recommendations are the subject of a decision taken in plenary session. It is what has been done here for the Union Nationale. And it is that Communication adopted by the ACHPR during its extraordinary session of 19 to 25 February 2013 in Banjul which you obtained the summary. And this is exactly what this communication says: "Recommendations of the Secretariat: - The complaint meets the criteria for complaints submission to the Committee under article 55 of the African Charter and rule 93 of the Commission’s internal procedures. - The Secretariat therefore recommends to the Commission to take the complaint. -The Secretariat recommends that the Commission ask the Gabonese government to take interim measures until a decision is made about the fate of the merits before the Commission.
The Commission, if by chance it did not follow the advice of the Secretariat on the need to restore immediately the UN, do you have any arguments that might lead you to believe that you can win this judgment on the merits?
You should know that it is rare that the Secretariat takes negative recommendations on communication and is disowned by the Commission. The Secretariat is the body that examines issues in depth. However, it happens that the Secretariat makes a favorable recommendation on communication and the ACHPR does not follow that. In this case, the Secretariat reported favorable recommendations to my communication. However, regarding the provisional measures that I sought, pending the decision on the merits forcing the ACHPR to adjudicate violations of the provisions of the Charter by the Minister of Interior for iniquitously dissolving the Union Nationale, I am aware that they may be rejected. But such a rejection would not alter the substance of the case. Because it is important to say that a judge is required to decide on everything that is asked and only what is being asked. It is imperative that a fair trial enters the criterion of the truth, and the right to know the truth when you have suffered a loss is a human right. I have solicited these measures because as a defender of human rights, I could not see an injustice being committed before my eyes without reacting. What's happening to the Union Nationale of not being able to participate to the political life of its country is inadmissible. This is what motivated me to use the measure of urgency of the case. So it is quite possible that these interim measures could be rejected. But this refusal would not alter the substance of the matter which is for the ACHPR to say whether the Gabonese Interior Minister, in dissolving the Union Nationale, has violated Articles 7, 11, and 13 the African Charter on Human and Peoples' rights to which Gabon is a state party.
How a decision of the Commission which would be in line with the opinion of the Secretariat could be binding on the State of Gabon?
This is a very very interesting question about which dictatorial states such as Gabon are often mistaken. It is actually said that the decisions of the ACHPR are recommendations. And states such as Gabon do not take them seriously because they think that since they are mere recommendations, there is no reason to comply. Well, they are wrong. Why? You should know that Gabon is State Party to the African Charter on Human and Peoples' Rights, the provisions contained therein constitute a set of commitments made before the solemnly concert of African Nations. And it is natural to think that a person who is freely a party to these commitments, will abide by them. It's a bit like when you sign a contract, your contractor naturally expects that you adhere to the clauses. It is the same when you give your word, the idea that you have of yourself and the importance you place on your person would determine whether you keep your word or not. And the relationships you have with other people will be a reflection of that. Either they will respect you because they see you as a man or a woman of his word, or they despise you because you look like a lawless thug. It is the same for states. This is called "recommendation" because that is the terminology used by the drafters of the status of the ACHPR. This does not mean that the State to which these recommendations are made would be entitled to choose to follow them or not. It is not an option left to its discretion. But this terminology does not take anything away from the strictly legal binding nature of decisions that are taken which, like all judgments have the authority of res judicata. The authority of res judicata on the provisional measures requested naturally applies to member states of the ACHPR.
If Gabon does not comply, what are the consequences for this country?
If your question is whether the CADHEP as other international jurisdictions have legal means other than requiring a State to draw the consequences of a decision of the court that concern that state, the answer is no. Neither African courts or the International Court of Justice, for example, or the Committee of Human Rights of the United Nations have the means to enforce their decisions. But you should know that the decisions of international courts are generally (with few exceptions) implemented by the States in almost all cases. There are very few cases in which a State refuses to comply with a decision that concerns them, as is the case for Israel as an example for more complex reasons, historical, that everyone knows. In any event, the decisions of international courts, moreover on human right have a strong moral authority on the international level so that a State which refuses to implement such a decision faces serious diplomatic sanctions from numbers of other states, including the most important which could on this basis, review their position vis-à-vis such a regime. And to be honest, I cannot imagine the President of the Republic; I understand that his will is to concretely improve the image of Gabon on the issue of human rights, to put himself unnecessarily in a difficult position by refusing to implement the decision taken by the ACHPR. I cannot imagine a member of the Council of Human Rights of the United Nations refusing to enforce the decision of an international court relating specifically to human rights, under penalty of being exposed to permanent stigma and premature exclusion from such a body. To be honest, I firmly believe that the government will draw the consequences of the decision of the ACHPR, maybe not with a good heart, but they will do it dragging their feet a little.
The first regular session of 2013 of the NGO’s Forum and of the ACHPR will be held from April 6...
You are decidedly unbeatable on the activities of the Commission. And what is interesting in this session, is that its agenda focuses particularly on the situation of democracy and violation of human rights in Central Africa. I am already preparing the report on the state of democracy in Gabon and systematic violations that Gabon commits. I will have the honor to present this situation to this forum.