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Glimmer of hope for Gbagbo as appeal judges order review of his detention

Susan Kendi / 21 July 2017

 By Susan Kendi

Five years after former Ivorian President Laurent Gbagbo first sought to be released from detention, a glimmer of hope for freedom appeared this week.

Judges in the appeals chamber of the International Criminal Court this week overturned Trial Chamber I’s March 2017 decision to continue holding Gbagbo in detention. Presiding Judge Piotr Hofmański, who read the appeal chamber’s decision, said that Trial Chamber I was found to have made a number of mistakes in determining Gbagbo’s continued detention, and ordered it to review whether or not he should continue to live in lock-up or be released – with or without conditions.

Although Gbagbo, who is facing four counts of crimes against humanity, will continue to remain in detention, the rebuke to Trial Chamber I will give him some comfort. Gbagbo was president of Cote d’Ivoire from 2000 until his arrest and surrender to the ICC on November 30, 2011.

The appeal judges, in their Wednesday decision, said that Trial Chamber I failed to consider Gbagbo’s advanced age, his health condition, the time period he spent in pre-trial detention and relied on the fact that Gbagbo denied responsibility for the crimes with which he is charged despite the presumption of innocence.

 Before the appeal chamber’s decision, the prosecution and victims’ lawyers had argued that Gbagbo’s detention was necessary to ensure that he appears in court for the trial proceedings and that he does not obstruct or jeopardize the court’s proceedings.

The Appeals chamber has held that its decision is corrective and did not look into facts and evidence afresh. It added that it will not tamper with the review unless it is clear that the Pre-trial and Trial chambers have failed to appreciate the facts, taken into account irrelevant facts, or failed to take into account significant facts.

On March 10, 2017 the Trial Chamber I of the ICC decided that Gbagbo would remain in detention. The chamber argued that having reviewed the submissions made by the prosecution and defence and the evidence before it, no circumstances had changed to a scale that could amount to Gbagbo’s release. It added that there is no realistic proposal that would allow the release of the former president.

The defence appealed the decision of Trial Chamber I of the ICC on March 20, 2017.

Laurent Gbagbo is the first former head of state to be tried before the ICC.

On November 23, 2011, Pre-trial Chamber III of the ICC issued an arrest warrant for Gbagbo, who was surrendered on November 30, 2011 and made his first appearance in court on December 5, 2011. He has been at the ICC detention unit since.

In April 2012, the 72-year-old Gbagbo filed an application for bail which was rejected by Pre-Trial Chamber I on July 13, 2012. His lawyers appealed the decision but their application was dismissed the Appeals Chamber dismissed it.

On November 2012, the Pre-Trial chamber delivered its decision that Gbagbo would remain in detention. On June 12, 2014 a decision was delivered confirming the charges against Gbagbo. Subsequently, all the decisions made by Gbagbo on his detention maintained that he remains in custody.

The “Tenth decision” on Gbagbo’s detention was issued on November 2, 2015 and at the end of the same month the Trial Chamber resolved that he was fit to stand trial and appear for the trial proceedings. The trial began on January 28, 2016.

Gbagbo is accused of four counts of crimes against humanity including murder, rape and other forms of sexual violence, as well as other inhumane acts and persecution, allegedly committed between December 16, 2010 and April 12, 2011 after Côte d’Ivoire’s November 2010 presidential elections which left about 3,000 people dead.

 

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By Terry Jeff Odhiambo

Gambia stands as a testament to the glacial progress Africa is making in the sphere of human rights. With the country on the mend and efforts under way to bring former President Yahya Jammeh to justice, the African Commission on Human and People’s Rights could scarcely have found a better host country to hold its 30th anniversary.

The celebrations in Banjul, between November 1 and 4, 2017, come at a time of hope and restoration for the Gambia after the end of Jammeh’s 22-year dictatorial regime. Jammeh’s government was notorious for its disregard of international human rights norms despite ironically hosting the ACHPR. Arbitrary arrests, threats, enforced disappearances and torture were commonplace. There is still plenty of room for improvement. Attorney General Abubacarr Tambadou, who is also Justice Minister, told the opening of the 35th Forum on the Participation of NGOs in the 61st Ordinary Session of the ACHPR that notwithstanding the various strides made by nations in the application of human rights instruments, the full enjoyment of basic rights and freedoms since the adoption of the African Charter, continues to face challenges. The Justice minister reiterated that the new government of Gambia had reaffirmed its commitment to protecting human rights and to living up to its position as the human rights capital of Africa. As recently as September 2017 the Gambia, signed five international treaties on the margins of the United Nations General Assembly, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish abolition the death penalty. In the coming months, Gambia is committed to ratifying more human rights treaties, including the Convention against Torture, and adopting a new republican constitution within the shortest time possible and developing a system of justice that can look into past atrocities and sustain its democracy. The NGOs Forum, which is usually held on the margins of the ACHPR Ordinary Sessions, is a platform for fostering collaboration between civil society organisations on the one hand and the ACHPR on the other, with the aim of promoting and protecting human rights in Africa.

Human rights abuses in Africa are a sad reality. The tableau of human suffering on the continent is scar on humanity’s conscience. From South Sudan[1], to the Central African Republic[2] to Egypt[3] and Ethiopia[4], abuses are increasingly being witnessed more than ever before. As one of the bulwarks against this depressing trend, the work of the ACHPR since its inception calls for evaluation. The promise by states and governments to guarantee human dignity and rights – through almost universal endorsement of the Universal Declaration of Human Rights and ever-increasing ratification of international human rights treaties – seems to have had little impact on the daily lives of millions of people in the region.

The sad reality is that the human rights situation in various African countries continues to deteriorate on the ACHPR’s watch. There has been an escalation of threats to the enjoyment of human rights on the continent, ranging from arbitrary arrests, infringement of freedom of association and assembly, police brutality and threats to human rights defenders. 

Since the inception of the ACHPR, seven states have never reported on the situation of human rights to the commission. The states -- Comoros, Equatorial Guinea, Eritrea, Guinea Bissau, Sao Tome and Principe, Somalia and South Sudan -- continue to witness some of gravest human rights violations on the continent. Twenty other states have three or more pending state reports -- including Gambia, while 16 other states have one or two pending state reports. Only nine states, namely Kenya, Algeria, Burkina Faso, Cote d’Ivoire, Mali, Mauritius, Namibia, Niger and South Africa are up to date with their state reporting obligations. The Democratic Republic of Congo[5], Rwanda[6] and Niger[7] are set to report during the 61st Ordinary Session of the ACHPR. State reporting procedure is a stock taking that serves as a forum for constructive dialogue and enables the Commission to monitor implementation of the African Charter and identify challenges impeding the realisation of the objects of the African Charter.

Some of the critiques that the Commission has received over time include the failure to implement its findings, such as decisions on: individual communications, concluding observations on State reports, country and thematic resolutions, and recommendations made in relation to missions to countries. 

The 61st Ordinary Session of the ACHPR will see the swearing in of new commissioners and the exit of those whose terms have ended. The ACHPR is composed of 11 Commissioners, who are “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience” (African Charter, Article 31).[8] They are elected by the African Union Assembly from experts nominated by States parties to the Charter. The Commissioners serve in their personal capacity and are elected for a six-year renewable term.

The upcoming 30th Anniversary celebrations are an opportunity to reaffirm the values and enduring principles enshrined in the African Charter mobilize people around the continent, and take stock of human rights today in Africa. 

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