Emile and Others v Côte d'Ivoire (Application 44 of 2019) [2019] AfCHPR 48 (28 November 2019)

AFRICAN UNION		UNION AFRICAINE
		UNIÃO AFRICANA
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES

MATTER OF

SUY BI GOHORE EMILE AND OTHERS

V.

REPUBLIC OF CÔTE D’IVOIRE

APPLICATION No. 044/2019

ORDER OF PROVISIONAL MEASURES

28 NOVEMBER 2019

The Court composed of: Ben KIOKO, Vice-President; Rafaâ BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, M-Thérèse MUKAMULISA, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella I. ANUKAM, Imani D. ABOUD – Judges; and Robert ENO, Registrar,

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 Rules of Court (hereinafter referred to as "the Rules"), Judge Sylvain ORÉ, member of the Court and national of Côte d’Ivoire did not hear the case.

In the matter of:

SUY BI GOHORE EMILE AND 7 OTHERS

represented by: Jean-Chrysostome BLESSEY , Advocate

versus

REPUBLIC OF CÔTE D’IVOIRE

represented by:

1. Mr. Delbe ZIRIGNON CONSTANT, Magistrate, Technical Adviser to the Keeper of the Seals, Minister of Justice and Human Rights; and

2. Mr. Abdoulaye MEITE, Advocate, Member of the Bar of Côte d’Ivoire;

After deliberation,

makes the following Order:

I. THE PARTIES

1. Suy Bi Gohoré Emile, Kakou Guikahué Maurice, Kouassi Kouamé Patrice, Kouadjo François, Yao N’guessan Justin Innocent, Gnokonte Gnessoa Désiré, Djedje Mady Alphonse, Soro Kigbafori Guillaume, (hereinafter referred to as "the Applicants") are professionals of Ivorian origin .

2. The Application was filed against the Republic of Côte d'Ivoire (hereinafter referred to as "the Respondent State") which became a party to the African Charter on Human and Peoples' Rights (hereinafter referred to as "the Charter) on 31 March 1992 and to the Protocol on 25 January 2004. The Respondent State also filed the Declaration prescribed under Article 34(6) of the Protocol by which it accepts the jurisdiction of the Court to receive applications from individuals and Non-Governmental Organizations.

II. SUBJECT OF THE APPLICATION

3. The present Application filed on 10 September 2019 is in respect of requests for provisional measures. The substantive matter concerns a new law adopted by the National Assembly of the Respondent State in the context of the reform of the Independent Electoral Commission Law. Moreover, this Court on 18 November 2016 already delivered on the merits of this matter a judgment on Application No. 001/2014 - Action for the Protection of Human Rights (APDH) v. Republic of Côte d'Ivoire concerning the composition of the Respondent State’s Independent Electoral Commission. The Court found that the composition of the Ivorian electoral body was imbalanced and that this affected its independence and impartiality. The Court also held that Law No. 2014-335 of 18 June 2014 violated Articles 10(3) and 17(1) of the Charter and Article 3 of ECOWAS Democracy Protocol. The Court consequently ordered the Respondent State to amend Law No. 2014-335 of 18 June 2014 on the Independent Electoral Commission to make it compliant with the afore-mentioned instruments.

4. On 04 May 2017, the Respondent State requested interpretation of the judgment of 18 November 2016. On 28 November 2017, the Court declared this request inadmissible.

5. In 2019, the Respondent State decided to reform the Independent Electoral Commission (IEC). The opposition refused to participate in the reform process on the grounds of lack of clear terms of reference to serve as basis for discussion.

6. Faced with the opposition parties’ refusal to participate in the process, the Respondent State pursued the exercise. It introduced Bill No. 2019-708 of 05 August 2019 before the two houses of Parliament - the National Assembly and the Senate, both of which are controlled by the ruling political coalition, according to the Applicants. On Tuesday 30 July 2019, the Bill was adopted by the National Assembly; and on Friday 2 August 2019, by the Senate.

7. On 02 August 2019, sixty-six (66) members of the National Assembly brought the matter before the Constitutional Council requesting the latter to determine, adjudge and declare that Articles 5, 6 and 17 of Law No. 2014-135 of 18 June 2014 are at variance with Articles 4 and 53 of the Ivorian Constitution.

8. By two decisions (No. CI-2019-005/DCC/05-08/CC/SG of 05 August 2019 and No. CI-2019-006/DCC/13-08/CC/SG of 13 August 2019) the Constitutional Council declared inadmissible the Applicants’ petition regarding the constitutionality of the new law on the composition of the Independent National Electoral Commission, citing various "shortcomings” of form and on the grounds that the impugned law had already been promulgated by the President of the Republic on the night of 05 August 2019.

III. ALLEGED VIOLATIONS

9. The Applicants allege that the Respondent State has violated the following:

“i. its commitment to comply with the Court’s decisions to which it was a party and ensure their full implementation within a specified period, pursuant to Article 30 of the Protocol;

ii. its obligation to create an impartial and independent National Electoral Commission within the meaning of Article 17 of the African Charter on Democracy, Elections and Governance (ACDEG) and Article 3 of ECOWAS Democracy Protocol;

iii. its obligation to protect the right of citizens to participate freely in the government of their country, as provided under Article 13(1) and (2) of the Charter;

iv. its obligation to protect the right to equality before the law and equal protection of the law, pursuant to Article 10(3) of ACDEG, Article 3 (2) of the Charter and Article 26 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

v. its obligation to comply with Article 17 of ACDEG, Article 3 of Protocol A/SPI/12/01 on Democracy and Good Governance and Articles 4 and 53 of the Respondent State’s 8 November 2016 Constitution”.

IV. SUMMARY OF THE PROCEDURE BEFORE THE COURT

10. On 17 September 2019, the Registry acknowledged receipt of the Application, registered and served it on the Respondent State on 19 September 2019, and granted the latter sixty (60) days to file a Response. A deadline of seven (7) days was granted to the Respondent State to file its Response to the request for provisional measures.

11. On 25 September 2019, the Registry acknowledged receipt of a new version of the Application which the Applicants sent in replacement of the first version. By notice of the same date, the said Application was forwarded to the Respondent State which was given fifteen (15) days to submit its Response in respect of provisional measures.

12. On 01 October 2019, the Registry received from the Respondent State a Response to the first version of the application for provisional measures and acknowledged receipt thereof. By notice of the same date, the Registry served this Response on the Applicants for a reply thereto within fifteen (15) days.

13. On 03 October 2019, the Registry acknowledged receipt of the list of the Respondent State’s representatives. On the same day, the names of the representatives were duly transmitted to the Applicants.

14. On 15 October 2019, the Registry received a second Response from the Respondent State as regards provisional measures.

15. On 21 October 2019, the Registry received the Applicants’ rejoinder as regards the provisional measures. On 23 October 2019, the Registry acknowledged receipt of the Applicants’ rejoinder on the Respondent State's first Response to the request for provisional measures as well as the Respondent State's second Response. The said briefs were served on both parties for response within fifteen (15) days.

16. On 15 November 2019, the Registry acknowledged receipt of a second rejoinder from the Respondent State in respect of the provisional measures. On the same day, the said Response was forwarded to the Applicants for a reply within seven (7) days of the notification.

V. JURISDICTION OF THE COURT

17. In considering an application, the Court must ensure that it has jurisdiction to hear the case, pursuant to Articles 3, 5(3) and 34(6) of the Protocol and Rules 39 and 40 of the Rules.

18. However, with regard to provisional measures, the Court need not satisfy itself that it has jurisdiction on the merits of the case, but simply that it has prima facie¹ jurisdiction.

19. In terms of Article 5(3) of the Protocol, "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.”

20. As mentioned in paragraph 2 of this Order, the Respondent State is a party to the Charter and the Protocol and has also made the declaration accepting the jurisdiction of the Court to receive applications from individuals and Non-Governmental Organizations in accordance with Article 34(6) of the Protocol read in conjunction with Article 5(3) thereof.

21. In the instant case, the rights claimed by the Applicant as having been violated are protected by the Charter, ICESCR and ECOWAS Protocol - instruments that the Court is empowered to interpret and apply under Article 3(1) of the Protocol.

22. In light of the foregoing, the Court notes that it has prima facie jurisdiction to hear the Application.

VI. MEASURES REQUESTED

23. The Applicants pray the Court to:

“i. order the Republic of Côte d'Ivoire, before any election whatsoever, to amend Law No. 2019-708 of 5 August 2019 on the reconstitution of the Independent Electoral Commission (IEC) to make that law compliant with the instruments to which Côte d'Ivoire is a party;

ii. order a provisional measure requiring the State of Côte d'Ivoire to temporarily stay implementation of the Independent Electoral Commission decisions stemming from the impugned law, for whatsoever election, until the Court renders its decision on the merits of the matter;

iii. not set up the Independent Electoral Commission on the basis of Law No. 2019-708 of 05 August 2019 titled Reconstitution of the Independent Electoral Commission;

iv. enjoin the various organs of the State of Côte d'Ivoire targeted by Law No. 2019-708 of 05 August 2019, including the Presidency of the Republic and the Ministry of Territorial Administration not to proceed with the appointment of members of the Independent Electoral Commission;

vi. enjoin the various organs of the State of Côte d'Ivoire, including the Presidency of the Republic and the Ministry of Territorial Administration, not to take their seat in the Independent Electoral Commission;

(…) and this, until the Court has rendered its decision on the merits”.

***

24. The Court notes that Article 27(2) of the Protocol provides that: “in cases of extreme gravity or urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary”.

25. Furthermore, Rule 51(1) of the Rules provides that: “pursuant to Article 27(2) of the Protocol, the Court may, at the request of a party, the Commission, or on its own accord, prescribe to the parties any interim measure which it deems necessary to adopt in the interest of the parties or of justice”.

26. The Court notes that it has the duty to decide in each case whether in light of the particular circumstances of a case, it has to exercise the jurisdiction conferred on it by the above-mentioned provisions.

27. The Court takes into consideration the applicable law with regard to provisional measures which are specific. The Court cannot issue an Order pendente lite except the basic requisite conditions have been met, i.e. extreme gravity, urgency and prevention of irreparable harm to persons.

28. In the instant case, the Court notes that the Applicants made several requests in the Application for provisional measures.

29. As the Court has already ruled that it has prima facie jurisdiction, it will proceed to examine the provisional measures requested.

30. The Court notes that the Applicants in the present case are requesting the Court, pursuant to Article 27 of the Protocol and Rule 51 of the Rules, to order the following provisional measures: - the various organs of the State of Côte d'Ivoire, including the Presidency of the Republic and the Ministry of Territorial Administration, not to take their seat in the IEC.

31. The Applicants argue that such measures are imperative in as much as the Electoral Commission does not meet the requirements of independence and impartiality. Furthermore, in their view, it is necessary to bear in mind that this reform is supposed to respond to the Court’s injunction to the Republic of Côte d'Ivoire to reform its law to make it compliant with the international legal instruments to which the country is a party. It is noteworthy that, in 2010, the IEC was at the center of the electoral dispute that culminated in a civil war which, according to official figures, claimed the lives of over 3,248 people. Moreover, Côte d'Ivoire will in October 2020 have its high stake first election since that unfortunate post-electoral crisis of 2010/2011.

32. The Court notes that the Respondent State seeks a ruling that the Application for provisional measures is in respect of a law already enacted, that the members of the Electoral Commission have been sworn in before the Constitutional Council, and that the Bureau of the Electoral Commission was established on Monday 30 September 2019. The Court also notes that the Respondent State has contended that the provisional measures requested do not meet the requirements set forth in Article 27 of the Protocol, that the Applicants' pleas and arguments are based solely on fears without any real direct relationship with the impugned situation, and that the Applicants have not been able to sufficiently demonstrate that the conditions set forth by Article 27 of the Protocol have been met.

33. The Court notes that the Application for provisional measures seeking to prevent the application of the said law has become irrelevant following the establishment of the Independent Electoral Commission as well as the appointment of its members and the personalities proposed by the different organs of the Respondent State.

34. The Court holds that in view of the facts of this case as reported by the Applicants and the Respondent State, the circumstances do not reveal a situation of which the gravity and urgency would pose a risk of irreparable harm to the Applicants or trigger an immediate social disorder. The Court also holds that since the Applicants have not provided evidence as to the extreme gravity of the situation and given the circumstances of this case, the request for measures to be ordered prior to consideration of the merits is not justified. The Application is consequently dismissed.

35. This Order of provisional measures remains provisional in nature and in no way prejudges the Court's decisions on the merits of the case.

IV. OPERATIVE PART

36. For these reasons,

THE COURT,

unanimously,

Rejects the provisional measures requested;

Signed:

Ben KIOKO, Vice President;

and Robert ENO, Registrar.

Done at Zanzibar, this …..Day of November 2019 in English and French, the French text being authoritative.