Applicant - WS - Team-02

TEAM: II
THE 3RD ANNUAL INTER-BATCH HUMAN RIGHTS MOOT COURT COMPETITION
HARAMAYA UNIVERSITY
IN THE MATTER BEWTEEN
THE AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS
(APPLICANT)
AND
THE REPUBLIC OF KUNTAKINTE
(RESPONDENT)
MAY 2016
ON SUBMISSION TO THE AFRICAN COURT ON HUMAN AND PEOPLES RIGHTS
SUBMISSION FOR THE APPLICANT
1
Contents
INDEX OF AUTHORITY .......................................................................................................................... IV
INDEX OF ABBREVIATION ................................................................................................................ XIII
STATEMENT OF JURISDICTION ......................................................................................................... XV
RIGHT TO STANDING........................................................................................................................... XV
JUSTICIABLITY OF THE CASE .......................................................................................................... XVI
ADMISSIBILITY ...................................................................................................................................XVII
QUESTION PRESENTED ................................................................................................................... XVIII
STATEMENT OF FACT ........................................................................................................................ XIX
SUMMARY OF ARGUMENTS .......................................................................................................... XXIII
MERIT .......................................................................................................................................................... 1
1. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT TREATIES

WITH RESPECT TO CIRCUMSTANCES LEADING TO THE DETENTION THE INMATES OF
PARADISE DETENTION FACILITY (PDF), AND THE CONDITIONS UNDER WHICH THEY ARE
DETAINED .................................................................................................................................................. 1
1.1. Kuntakinte has violated the right to security of the person and freedom from arbitrary detention
under article 9 (1) of ICCPR and article 6 of ACHPR .............................................................................. 1
1.2. Kuntakinte violated the right of a person to be brought promptly before a court and tried within
a reasonable period, or to be released from detention under article 9 (3) (4) of ICCPR and article 7 (1)
(d) of ACHPR ........................................................................................................................................... 3
1.3. Kuntakinte violated its duty to respect the right to a fair trial and due process requirements
under article 9 (2), 14 of ICCPR and article 14 (1) (d) of African charter ............................................... 5
1.4. Kuntakinte violated its duty to respect the right to prohibition against torture and inhuman or
degrading treatment or punishment, and the right which provides for humane treatment during
detention under article 7, 10 (1) of ICCPR and article 5 of ACHPR ........................................................ 7
1.5. Detention of young Malenkese cannot be justified on the ground of National security ............... 8
2. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT TREATIES

BY REFUSING TO REGISTER NATIONAL UNION OF GAY AND LESBIAN (NUGAL). ............... 10
2
2.1. The objectives of the NUGAL were not contrary to section 17(2) (a) of the Societies Act as it is
not unlawful, prejudicial to or incompatible with peace, welfare, good order or morality. .................... 11
2.2. The objectives of the NUGAL were not unlawful ...................................................................... 11
2.3. The decision not to register NUGAL was no immediately informed ......................................... 12
2.4. The objectives of the NUGAL were not prejudicial to or incompatible with peace, welfare, good
order or morality. .................................................................................................................................... 13
2.5. Republic of Kuntakinte violated its obligation to respect the right to liberty, to hold opinion,
privacy and non-discrimination by criminalizing the act and prosecuting adults engaged in act of
consensual same sex relationship............................................................................................................ 13
3. KUNTAKINTE VIOLATED ITS OBLIGATIONS TO RESPECT AND PROTECT HUMAN

RIGHTS OF WOMEN BY NOT PROVIDING FOR THE ABOLITION OF THE TROSOKI CUSTOM
OF BAMILEKE PEOPLE .......................................................................................................................... 15
3.1. Violation of right to be free from all forms of discrimination against women ........................... 16
3.2. Violation of the right to life, health and physical integrity including freedom from violence ... 16
3.3. The trosoki custom of Bamileke people subjects women to be held in servitude and compulsory
labor 17
3.4. The trosoki custom of Bamileke people is against the right of the child .................................... 17
3.5. Kuntakinte violated its duty to protect and ensure women and children right against the
violation of their fundamental rights by not providing the abolition of harmful cultural practices ........ 18
4. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT HUMAN

RIGHT INSTRUMENTS IN RESPECT OF METHODS OF ACQUISATON OF CITIZENSHIP AND
ORDER OF DEPORTATION OF ALL MIGRANTS AND MIGRANT WORKERS, INCLUDING
CHILDREN BORN IN KUNTAKINTE TO MALINKESE PARENTS. .................................................. 20
4.1. Requirements for citizenship is discriminatory among Malinkese and nationals of Kuntakinte 20
4.2. Kuntakinte violated its obligation under African charter and other human right instruments by
deporting Migrants while knowing their rights might be violated .......................................................... 21
4.3. The order of deportation violates the right of child .................................................................... 23
5. PRAYER FOR RELIEF ..................................................................................................................... 25
3
GENERAL APPLICANT
INDEX OF AUTHORITY
SHORT FORM UNDER FULL CITATION
FOOT NOTES
INTERNATIONAL
TREATIES
ICCPR International Covenant on Civil and Political Rights UN General
Assembly, International Covenant on Civil and Political Rights,
16 December 1966, United Nations, Treaty Series, vol. 999, p.
171,
ICESCR International Covenant on Economic, Social and Cultural Rights
UN General Assembly, International Covenant on Economic,
Social and Cultural Rights, 16 December 1966, United Nations,
Treaty Series, vol. 993
ICRMW International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families UN General
Assembly, International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families, 18
December 1990, A/RES/45/158
CRC Convention on the Rights of the Child UN General Assembly,
Convention on the Rights of the Child, 20 November 1989, United
Nations, Treaty Series, vol. 1577
OAU Refugee Convention Convention Governing the Specific Aspects of Refugee Problems
in Africa ("OAU Convention") Organization of African Unity
(OAU), Convention Governing the Specific Aspects of Refugee
Problems in Africa ("OAU Convention"), 10 September 1969,
1001 U.N.T.S. 45
African Charter African Charter on Human and Peoples' Rights ("Banjul Charter")
Organization of African Unity (OAU), African Charter on Human
and Peoples' Rights ("Banjul Charter"), 27 June 1981,
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)
IV
GENERAL APPLICANT
African childrens charter African Charter on the Rights and Welfare of the Child
Organization of African Unity (OAU), African Charter on the
Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49
(1990)
African Womens Protocol Protocol to the African Charter on Human and People's Rights on
the Rights of Women in Africa African Union, Protocol to the
African Charter on Human and People's Rights on the Rights of
Women in Africa, 11 July 2003
IDP Convention African Union Convention for the Protection and Assistance of
Internally Displaced Persons in Africa (Kampala Convention)
African Union, African Union Convention for the Protection and
Assistance of Internally Displaced Persons in Africa (Kampala
Convention), 22 October 2009
African court protocol Protocol to the African Charter on Human and Peoples Rights on
the Establishment of an African Court on Human and People's
Rights Organization of African Unity (OAU), Protocol to the
African Charter on Human and People's Rights on the
Establishment of an African Court on Human and People's Rights,
10 June 1998
DOMESTIC LAW
Kuntakinte constitution The 1984 Republic of Kuntakinte Constitution
Criminal and Other 1969 Criminal and Other Offences Act of the Republic Kuntakinte
Offences of Kuntakinte
Societies Act The Republic of Kuntakinte Societies Act
BOOKS
Aoife Nolan and others The Justiciability of Social and Economic Rights: An Updated
Appraisal(2009
De Zayas De Zayas Human rights and indefinite detention international review of
the Red Cross vol. 87 no_857 March 2005
Handbook of international Handbook of international standards on pretrial detention
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GENERAL APPLICANT
standards on pretrial procedure, American Bar Association.( 2010)

detention procedure
International Seminar on International Seminar on Prison Conditions in Africa, Kampala,
Prison Conditions in Africa Uganda (Sept. 19-21, 1996), Kampala Declaration on Prison
Conditions in Africa.
J.S. Mill J.S. Mill, On Liberty. The chief mischief of the legal penalties is
that they strengthen the social stigma. It is that stigma which is
really effective (it)is as efficacious as law; men might as well be
imprisoned, as excluded from the means of earning their bread.
Koch The Justiciability of Koch The Justiciability of Indivisible Rights Nordic Journal of
Indivisible Rights International law (2003)
M Freeman M Freeman, Order, Rights, and Threats: Terrorism and Global Justice
in R A Wilson (ed), Human Rights in the War on Terror (Cambridge:
Cambridge University Press, 2005)
Megan and others Megan A .yasenchak, Jenifer giglio, and Margaret Paxton National
Security and Human Rights June 29 2006 Russian federation
Mr. Louis Joined United Nations Economic and Social Council, Commission on
Human Rights, Sub Commission on Prevention of Discrimination
and Protection of Minorities, Revised Report on the Practice of
Administrative Detention, submitted by Mr. Louis Joined,
E/CN.4/Sub.2/1990/29.
Nowak, Manfred Nowak, Manfred, UN covenant on civil and political rights: CCPR
commentary 2nd edition 236 (n.p. Engel, 2005).
P Ruddock P Ruddock, A New Framework Counter-Terrorism and the Rule of
Law (2005) 16 The Sydney Papers, 113, 116-17.
Reid, A Reid, A Practitioners Guide to the European Convention of
Human Rights, Sweet and Maxwell, 1998 1 Oct. 2004
Zimbabwe Youth Council Zimbabwe Youth Council (2014) Harmful Cultural and Social Practices
Affecting Children: Our Collective Responsibility
Resolution
OHCHR International Migration and Human Rights Other International Standards;
VI
GENERAL APPLICANT
Standards OHCHR; see: www2.ohchr.org/english/issues/migration/

Task force/standards.htm.
Principles and Best Inter-American Commission on Human Rights (IACHR),
Practices Resolution 1/08, Principles and Best Practices on the Protection of
Persons Deprived of Liberty in the Americas, 13 March 2008, No.
1/08, available at: http://www.refworld.org/docid/48732afa2.html
[accessed 5 May 2016]
Rules of Procedure ACHPR Rules of Procedure of the African Commission on Human and
Peoples' Rights Adopted on 6 October 1995, banjul gambia
(Document made available through the Danish Centre for Human
Rights)
UN CHR resolution Resolution of the UN Commission on Human Rights on the
Human Rights of Migrants (2005) E/CN.4/RES/2005/47.
UNGA Resolution on Resolution of the UN General Assembly on Protection of Migrants

Protection of Migrants (2004). A/RES/59/194.
UNGA resolution UNGA Body of Principles for the Protection of All Persons under
Principles for Protection for Any Form of Detention or Imprisonment Adopted by General
persons under detention Assembly resolution 43/173 of 9 December 1988
GENERAL COMMENT
ESCR
General comment No. 9 Draft general comment no. 9: the domestic application of the
covenant substantive issues arising in the implementation of the
international covenant on economic, social and cultural rights;
committee on economic, social and cultural rights e/c.12/1998/24
geneva, 16 november-4 december 1998
General Comment No. 20 Committee on Economic, Social and Cultural Rights, General
Comment No. 20, Non-Discrimination in Economic, Social and
VII
GENERAL APPLICANT
Cultural Rights (art. 2, para. 2) U.N. Doc. E/C.12/GC/20 (2009

HRC
General Comment No 2 Human Rights Committee Against Torture, General Comment 2,
Implementation of article 2 by States Parties, U.N. Doc.
CAT/C/GC/2/CRP. 1/Rev.4 (2007). 5 -23 November 2007
General Comment No 4 Human Rights Committee, General Comment 4, Article 3
(Thirteenth session, 1981), Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 4 (1994
General Comment No 5 General Comment No. 5 Article 4 (Derogation of rights) Adopted
at the Thirteenth Session of the Human Rights Committee, on 31
July 1981 , HRI/GEN/1/Rev.9 (Vol. I)
(Sixteenth session, 1982), Compilation of General Comments and
Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994).

(Sixteenth session, 1982), Compilation of General Comments and
Humane Treatment of Persons Deprived (Sixteenth session,
1982), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N.
Doc. HRI/GEN/1/Rev.1 at 8 (1994).
Humane Treatment of Persons Deprived (Sixteenth session,
1982), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N.
Doc. HRI/GEN/1/Rev.1 at 9 (1994).
VIII
GENERAL APPLICANT
General comment no. 13 UN Human Rights Committee (HRC), CCPR General Comment
No. 13: Article 14 (Administration of Justice), Equality before the
Courts and the Right to a Fair and Public Hearing by an
Independent Court Established by Law, 13 April 1984, available
at: http://www.refworld.org/docid/453883f90.html [accessed 5
May 2016]
General Comment No 15 General Comment No. 15; Human Rights Committee; 1986
(Thirty-fifth session, 1989), Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty
General Comment No 18 Human Rights Committee, General Comment 18, Non-
discrimination (Thirty-seventh session, 1989), Compilation of
General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26
(1994).
General Comment No 29 Human Rights Committee, General Comment 29, States of
Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11
(2001).
Cases
Cases from ACHPR
Alhassan Abubakar v. ACHPR, Alhassan Abubakar v. Ghana, Communication No.
Ghana 103/93, and decision adopted during the 20thsession, October
1996, paras. 9-10
Article 19 v Eritrea Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007),
Huri-Laws v. Nigeria ACHPR, Huri-Laws (on behalf of the Civil Liberties

Organization) v. Nigeria, Communication No. 225/98, and
decision adopted during the 28th Ordinary Session, 23 October 6
IX
GENERAL APPLICANT
November 2000, paras. 43-44
Interights v Eritrea and Interights v Eritrea and Ethiopia (2003) AHRLR 74 (ACHPR
Ethiopia 2003
Jawara vs. The Gambia Jawara vs. The Gambia (2000) AHRLR (ACHPR 2000)
SERAC vs Nigeria The Social and Economic Rights Action Centre and the Centre for
Economic and Social Rights v. Nigeria, African Commission on
Human and Peoples' Rights, Comm. No. 155/96 (2001) AHRLR
60 (ACHPR 2001)
International cases
A. and others v. the United A. and others v. the united kingdom Application no. 3455/05
Kingdom Judgment Strasbourg 19 February 2009 Human Rights
Committee
Carballal v. Uruguay ,L. B. Carballal v. Uruguay Communication No. R.8/33 ( adopted
on 27 March 1981), in UN doc.GAOR, A/36/40 Human Rights
Committee
Grant v. Jamaica Peter Grant v. Jamaica, Communication No. 597/1994, U.N. Doc.
CCPR/C/56/D/597/1994 (1996). Human Rights Committee
Kindler v. Canada Kindler v. Canada ICCPR/C/48/D/470/1991, 5 November 1993
Sudrez de Guerrero v. Sudrez de Guerrero v. Colombia Case No. 45/1979, U.N. Doc.
Colombia CCPR/C/15/D/45/1979 (1982) Human Rights Committee
Toonen v. Australia Toonen v. Australia, Communication no. 488/1992, U.N. Doc
CCPR/C/50/D/488/1992 (1994) Human Rights Committee
Van Alphen v Netherlands van Alphen v. the Netherlands (Communication No. 305/1988),
CCPR/C/39/D/305/1988, UN Human Rights Committee (HRC),
23 July 1990
Other Legal Document

ACHPR Principles and African Commission on Human and Peoples' Rights. 2003.
Guidelines on the Right to a Principles and Guidelines on the Right to a Fair Trial and Legal
X
GENERAL APPLICANT
Fair Trial Assistance in Africa. Banjul: African Commission on Human and

Peoples' Rights.
Council of Europe Council of Europe, Recommendation (2006)13 on the Use of
Recommendation Remand in Custody, the Conditions in which it takes
place and the provision of safeguards against abuse
HRC Human Rights Committee, Concluding Observations: Zimbabwe,
Concluding Observations CCPR/C/79/Add.89 (1998)
Principles and guidelines on Principles and guidelines on the implementation of economic,
the implementation of social and cultural rights in the African charter on human and
economic, social and peoples rights, African commission on human and peoples rights
cultural rights
Report of the Working Report of the Working Group on Arbitrary Detention,
Group on Arbitrary A/HRC/22/44, 24 December
Detention HRC
Siracusa Principles Siracusa Principles on the Limitation and Derogation of Provisions
in the International Covenant on Civil and Political Rights, Annex,
UN Doc E/CN.4/1984/4 (1984)
Standard minimum rules Standard Minimum Rules for the Treatment of Prisoners. Adopted
by the First United Nations Congress on the Prevention of Crime
and the Treatment of Offenders on 31 July 1957
UN Basic Principle Basic Principles on the Role of Lawyers, Eighth United Nations
Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, 27 August to 7 September 1990, U.N. Doc.
A/CONF.144/28/Rev.1 at 118 (1990).
UN Body of Principles for United Nations Body of Principles for the Protection of All
the Protection of Persons Persons under any Form of Detention or Imprisonment 43/173 of
under Detention 9 December 1988
UN Special Rapporteur on Report of the Special Rapporteur on the rights to freedom of
the rights to freedom of peaceful assembly and of association A/HRC/20/27 21 May 2012
XI
GENERAL APPLICANT
peaceful assembly and of

association
XII
GENERAL APPLICANT
INDEX OF ABBREVIATION
ACHPR African Commission on Human and Peoples Rights
AU African Union
CESCR UN Committee on Economic, Social and Cultural Rights
Committee
CRC Child Right Convention
CRC UN Committee on the Rights of the Child
Committee
ECOSOC UN Economic and Social Council
ECtHR European Court of Human Rights

FGM Female Genital Mutilation
HRC Human Right Commission
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICRMW International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families
LGBTI Lesbian, Gay, Bisexual, Transgender/Transsexual and Intersexed.
MAF Malinke Armed Force
NGO Non-Governmental Organization
NUGAL National Union of Gays, Lesbians and Bisexuals
OAU Organization of African Unity
p. page
Para. Paragraph
Paras. Paragraphs
PDF Paradise Detention facility
PIU Police Intelligent Unit
RWB Right Without Border
XIII
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UN United Nation
UNGA United Nation General Assembly
XIV
GENERAL APPLICANT
STATEMENT OF JURISDICTION
1. Pursuant to article 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 Court
is established within the organization of African unity and the organization, jurisdiction and
functioning of the court is as provided under the Protocol.
2. Pursuant to article 3 (1) of the protocol the jurisdiction of the Court shall extend to all
cases and disputes submitted to it concerning the interpretation and application of the Charter,
African court protocol and any other relevant Human Rights instrument ratified by the States
concerned.
3. The Republic of Kuntakinte (RoK) ratified African Charter on Human and Peoples rights,
African court protocol and human right instruments which the Commission is alleging violation.
The present case concerns the interpretation of and application of the Charter, this Protocol as
well as other Human Rights instrument ratified by the States concerned. Therefore, the court has
irrefutable jurisdiction over the case.
4. In the alternative, if the respondent fails to accept the jurisdiction of the court and a
dispute arises as to whether the Court has jurisdiction, as per article 3 (1) of the protocol the
Court shall decide on its jurisdiction.
RIGHT TO STANDING
5. As per article 3 (1) (a) of the protocol the Commission is entitled to submit cases to the
Court. Needless to mention, submission of the cases by commission does not require declaration
by state to this effect. Because, declaration by state in accordance of article 34 (6) is required
only in cases where court is to entitle relevant Non-Governmental Organizations (NGOs) with
observer status before the Commission, and individuals to institute cases directly before it. Thus
the commission has right to standing without any further declaration.
6. Additionally, pursuant to Rule 84(2) of rules of procedure of the commission the
Commission may submit a communication before the Court against a State Party if a situation
that, in its view, constitutes one of serious or massive violations of human rights as provided for
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GENERAL APPLICANT
under Article 58 of the African Charter, has come to its attention.1 The communications relate to
human right violation and therefore the commission has the right to submit before the court.
JUSTICIABLITY OF THE CASE

7. Kuntakinte violated civil and political; socio economic and cultural rights provided in
different human right instruments in which it is party. Civil and political rights cannot be
dissociated from economic, social and cultural rights in their conception as well as universality
and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment
of civil and political rights.2 On the bases of the preamble of African charter and other relevant
human right instruments substantiating the Justiciablity of all fundamental human rights, the
Commission submits that all the elements of this case are justiciable.
8. Moreover, the adoption of rigid classification of economic, social and cultural rights
which puts them, by definition beyond, the reach of the courts would thus be arbitrary and
incompatible with the principle that the two sets of human right are indivisible and
interdependent.3 It would also curtail the capacity of the courts to protect the rights of the most
vulnerable and disadvantageous groups in society.4 The justiciablity of two sets of rights is also
reaffirmed in Ogoni land case before ACHPR.5 Thus, all elements of this case can be
appropriately resolved by the courts and judicial remedy for the violation is essential.
9. Additionally, Chapter 2 of the 1984 Constitution of kuntakinte provides all human rights
that are contained in the International Covenant on Civil and Political Rights (ICCPR) and
International Covenant on Economic, Social and Cultural Rights (ICESCR) are justiciable.6
Thus, the elements of the case are justiciable.
1
Rule 118 (4) of rule of procedure of african commission
2
The preamble of African charter
3
ESCR General Comment 9 Para 10
4
Ibid
5
ACHPR, SERAC v. Nigeria, para.68
6
Fact sheet Para.7
XVI
GENERAL APPLICANT
ADMISSIBILITY
10. Pursuant to article 6 (2) of the court protocol the Court shall rule on the admissibility of
cases taking into account the provisions of article 56 of the Charter. The provision provides for
seven procedural requirements that must be adhered for the cases to be admissible. The applicant
argues all the requirements are fulfilled.
The case has been sent after exhausting local remedies and in some cases it is
obvious that the procedure is unduly prolonged.
In respect of the circumstances leading to the detention of the inmates of PDF,
and the conditions under which they are detained Rights Without Borders (RWB),
approached the High Court in Kuntakinte on 5 June 2015 to challenge the
constitutionality of treatment of prisoners, for the closure of PDF, investigation of
human right violation in PDF and constitutionality of the order of deportation of all
migrants. The High Court dismissed the case, on the bases of national security. The
Court of Appeal rejected an appeal, ruling that matters of national security are the
exclusive preserve of the executive arm of government. RWB did not pursue a further
appeal to the Supreme Court since there is no prospect of success before Supreme Court
as Supreme Court has subsequent to that ruling rejected several applications, brought on
behalf of detainees at PDF, based on the governments reliance on national security.
With respect to NUGAL on 1 September 201 2, RWB approached the High
Court, on behalf of the members of NUGAL, to challenge the constitutionality of the
refusal to register NUGAL. The application is pending before the High Court, with no
trial date yet set until 7 January 2016. Moreover, the Chief Justice of Kuntakinte, His
Lordship Kwame Tshepo, called a press conference attended by all judges of the High
Court, Court of Appeal and Supreme Court and declared that the judiciary resolved not
to see the claim by RWB and NUGAL. Thus since the procedure is unduly prolonged for
more than three years and six months and its clear from the statement of the chief
justice that the judiciary have no remedy for their claim, there is no need for RWB
appeal further.
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QUESTION PRESENTED
I. Whether the African court has jurisdiction over the case and the elements of the case
are admissible.
II. Whether Kuntakinte violated the African charter and other relevant treaties in respect
of the circumstances leading to the detention of the inmates of PDF, and the condition
under which they are detained.
III. Whether Kuntakinte violated the African charter and other relevant treaties by
refusing to register NUGAL.
IV. Whether Kuntakinte violated the African charter and other relevant treaties by not
providing for the abolition of the trosoki custom of the Bamileke people.
V. Whether Kuntakinte violated African charter and other relevant treaties by ordering
the deportation of migrants from the state of Malinke.
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STATEMENT OF FACT
BACKGROUND
11. The Republic of Kuntakinte is a sovereign unitary presidential constitutional democracy

in West Africa with a total area of 250 465 km2. Kuntakinte is bordered by the Republic of
Malinke in the west, Songhai in the north, Dagomba in the east and the Gulf of Guinea and
Atlantic Ocean in the south.
12. The Republic of Kuntakinte is divided into three regions: the Bamileke region in the
west, the Oyo region in the north and the region of Zinza in the east each bordering the Republic
of Malinke, Songhai and Dagomba respectively.
13. Christianity and Islamic are two major religions in Kuntakinte, predominantly practiced
by the inhabitants of the Zinza and Oyo regions. However, the Bamileke region of the country
has remained traditional and has resisted any attempt to inculcate Christianity and Islam into the
region. A proud traditional people, the Bamileke have continued with their traditional ancestral
worship.
THE TROKOSI CUSTOM
14. The practice of trokosi is a kind of ritual servitude custom followed by Bamileke tribe.
The practice dictates that where the Fetish Priest of a community determines that a crime has been
committed within the community that angers the gods, a virgin girl within the family of the offender must
be pledged in life-long servitude to the gods and must serve the Fetish Priest and answer to all his desires.
A 2014 study by the Kuntakinte Human Rights Observatory (KHRO), a local NGO, estimates that there
are about 7 000 women and girls pledged as trokosi in the Bamileke region.
THE CONSTITUTION
15. Section 80 of the Constitution provides for four levels of courts: the district courts; the
High Courts; the Court of Appeal; and the Supreme Court. The Constitution also provides for
military courts, with the General Court Martial as the highest military court of the country. If in
any proceedings before the High Court any constitutional issue arises, the Court may, and shall,
if any party so requests, refer the question to the Supreme Court. Section 29 of the Constitution
provides for a mechanism to applying to High Court for individual redress for allegation of the
provisions of chapter 2.
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16. Chapter 2 of the 1984 Constitution provides for all human rights that are contained in the
International Covenant on Civil and Political Rights (ICCPR) and International Covenant on
Economic, Social and Cultural Rights (ICESCR), all of which are rendered justiciable under
various provisions of the Constitution.
MEMBERSHIP TO INTERNATIONAL ORGANIZATIONS
17. The Republic of Kuntakinte is a member of the United Nations (UN) and the African
Union (AU). It is a party to ICCPR, ICESCR, CRC, ICRMW OAU, Refugee Convention,
African Womens Protocol and IDP Convention. It also ratified African Court Protocol.
KUNTAKINTES APPROACH TOWARD MIGRANTS UP ON THEIR ENTRY
18. Since the early 1990s, the Republic of Kuntakinte has adopted an open-arms approach
towards migrants from its neighboring countries. Ratif emigrated in 1995 from the eastern region
of Malinke in search of work in the Bamileke region of Kuntakinte. He lives in the Bamileke city
of Abebe with his wife, Adama, and two daughters, Salema (aged 21) and Marema (aged 15).
Although the children are born in Kuntakinte; they are not recognized as citizens of Kuntakinte
and currently do not possess any form of identification. .
THE DIRECTIVE FOR DEPORTATION
19. A Presidential Directive by President Adonai states that all Malinkese residing in
Kuntakinte without valid legal status after 1 April 2015 will lose their right to remain in
Kuntakinte if they do not legalese their stay by obtaining work and residence permits.
DETENTION OF YOUNG MALINKESE
20. The government of Kuntakinte in February 2015 began arresting a number of young
people believed to have links with the Young Panthers group. The government of Kuntakinte
claims that those captured have links with a terrorist organization, based on President Bobos
declaration of the Young Panthers as a terrorist group. The government will, however, not
provide any evidence to support this claim. Many of the prisoners have not been charged with a
specific crime but were arraigned before a High Court after six months of detention and were all
remanded into prison custody pending investigations. The warrant for their remand has been
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renewed by the High Court every three months since then at the request of the Attorney-General
of Kunkakinte. About 700 suspected members of the Young Panthers are currently detained at
PDF. Some of the prisoners have been in detention for more than 15 months, with no indication
of when they might be tried or set free. About 150 of the detainees have, however, been tried and
convicted by the General Court Martial, the highest military court of Kuntakinte.
THE TACTICS TO EXTRACT INFORMATION FROM THOSE CAPTURED
21. There have been reports linking the government of Kuntakinte to various tactics to
extract information from those captured. At a bar in the city of Abebe, an undercover journalist
overheard a senior army officer who claimed that Malinkese are wimps, just strap them to a
board with their feet raised above the head, add water and cloth and they will confess all their
sins to you. An international NGO, Detention Watch, issued a report, based on sources kept
confidential, confirming these allegations.
ARREST, DETENTION AND DEPORTING OF MALINKESE BY POLICE
22. After 1 April 2015, a large number of Malinkese returned to Malinke in fear of reprisals
from the police and the public. However, a substantial number of Malinkese, mostly from the
eastern region, including Ratif and his daughters, remained because of the economic and political
instability in Malinke. In the early hours of 2 April 2015, the Kuntakinte Police Intelligent Unit
(PIU) embarked on a nationwide crackdown, arresting, detaining and deporting Malinkese who
could not provide legal identification documents.
ABIBA
23. Abiba is a well-known human rights advocate of Kuntakinte nationality. She was arrested
for failure to provide her identification documents. The police seized her phone and read her
messages. After her release on bail the police informed the chief of the community of the reason
for her arrest, and the matter was referred to the Fetish Priest. The Fetish Priest determined that
the youngest daughter of Ratif, Marena, must be pledged as a trokosi before the familys
deportation.
THE NUGAL
XXI
GENERAL APPLICANT
24. Abiba and 14 of her colleagues had in February 2012 applied to register the National
Union of Gay and Lesbians of Kuntakinte (NUGAL). NUGAL aims to provide gays, lesbians
and bisexuals in Kuntakinte with information on human rights, and to advocate for their rights to
non-discrimination. In July 2012, the Companies and Societies Registry rejected their application
on the basis that the Constitution and that the objectives of the organization were contrary to
section 17(2) (a) of the Societies Act. Which provide Registrar shall refuse to register if objects
of the Society is or is likely to be used for any unlawful purpose or any purpose prejudicial to or
incompatible with peace, welfare, good order or morality in Kuntakinte.
RIGHTS WITHOUT BORDER
25. Rights without borders (RWB) is a local NGO in Kuntakinte. On 1 September 201 2,
RWB approached the High Court, on behalf of the members of NUGAL, to challenge the
constitutionality of the refusal to register NUGAL. The application is pending before the High
Court, with no trial date yet set. On 17 January 2016, His Lordship Kwame Tshepo, called a
press conference attended by all judges of the all levels of Courts, at which he declared that the
judiciary had resolved not to allow itself to be used in the immoral pursuit of RWB and NUGAL.
XXII
GENERAL APPLICANT
SUMMARY OF ARGUMENTS
The African commission submits that:
A. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER

RELEVANT TREATIES WITH RESPECT TO CIRCUMSTANCES LEADING TO THE
DETENTION THE INMATES OF PARADISE DETENTION FACILITY (PDF), AND
THE CONDITIONS UNDER WHICH THEY ARE DETAINED.
26. The arbitrary detention of a number of young Malenkese violates the right to security of
the person and freedom from arbitrary detention contained in ICCPR, African charter and other
international principles.
27. Kuntakinte has violated the right to be brought promptly before a court and tried within a
reasonable period, or to be released from detention. The detainees remained in custody without
sufficient bases for their arrest; the detainees did not brought before the court neither the court
reviewed their case. This resulted in lack of safeguard against abuses of power and arbitrary
arrest.
28. Kuntakinte violated its duty to respect the Right to a Fair Trial and due process
requirements stipulated under all international and regional human rights instruments. It also
violated the right of persons accused of crimes to consult with and be represented by legal
counsel.
29. The method of extracting information from those captured and the condition under which
they detained violates the right of a person to protection against torture and inhuman treatment.
Additionally, arbitrary detention of Malenkese cannot be justified based on the ground of
national security.
B. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER
RELEVANT TREATIES BY REFUSING TO REGISTER NUGAL.
30. Refusal by companies and societies registry to register NUGAL violates the rights of all
individuals to assemble peacefully and associate freely. The objectives of the NUGAL were not
contrary to section 17(2) (a) of the Societies Act as it is not unlawful, prejudicial to or
incompatible with peace, welfare, good order or morality.
31. Republic of Kuntakinte violated its obligation to respect the right to liberty, to hold
opinion, privacy and non-discrimination by criminalizing the act and prosecuting adults engaged
in act of consensual same sex relationship.
XXIII
GENERAL APPLICANT
C. KUNTAKINTE VIOLATED ITS OBLIGATIONS TO RESPECT AND PROTECT

HUMAN RIGHTS OF WOMEN BY NOT PROVIDING FOR THE ABOLITION OF THE
TROSOKI CUSTOM OF BAMILEKE PEOPLE AND OTHER HARMFUL CULTURAL
PRACTICES.
32. The practice of FGM, breast ironing and trosoki custom of Bamileke people is
discrimination against women as set forth in various human rights instruments as a practice
exclusively directed towards women and girls with the effect of interfering with their enjoyment
of their fundamental rights. FGM, breast ironing and trosoki custom caused great short-term and
long-term physical and mental harm to its victims.
33. Kuntakinte violated its duty to protect women and children against the violation of their
fundamental rights by failing to abolish harmful traditional practices.
D. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER
RELEVANT HUMAN RIGHT INSTRUMENTS IN RESPECT OF METHODS OF
ACQUISATON OF CITIZENSHIP AND ORDER OF DEPORTATION OF ALL
MIGRANTS AND MIGRANT WORKERS, INCLUDING CHILDREN BORN IN
KUNTAKINTE TO MALINKESE PARENTS.
34. In granting citizenship the government of republic of kuntakinte discriminated on the bases
of prohibited grounds such as, cultural and ethnic background, language and social background.
Thus, it violated the principle of non-discrimination.
35. By deporting Malenkese to their country while knowing that they might be subject to
violation of their right, Kuntakinte violated its obligation enshrined under African charter and other
relevant human right instrument and norms which achieved customary law status non refoulement.
The order of deportation also violates the right of child and migrant workers.
XXIV
APPLICANT SUBSTANTIVE PART
MERIT
1. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER

RELEVANT TREATIES WITH RESPECT TO CIRCUMSTANCES LEADING
TO THE DETENTION THE INMATES OF PARADISE DETENTION FACILITY
(PDF), AND THE CONDITIONS UNDER WHICH THEY ARE DETAINED
2. African charter and other international human right instruments provide certain
substantive and procedural requirements with regard to circumstances under which a person may
be detained as well as the conditions under which a person may be detained. These provisions
guarantee the right to security of the person and freedom from arbitrary detention, right to be
brought promptly before a court and tried within a reasonable period; or to be released from
detention; fair trial and due process requirements and right to prohibition against torture;
inhuman or degrading treatment or punishment; and the right which provides for humane
treatment during detention.
3. These rights are enshrined under African charter on peoples and human right,
international convention on civil and political right which Kuntakinte has ratified and other
norms attained ergaomnes status as well as international standards and principles with respect to
the right of persons deprived their liberty.
1.1.Kuntakinte has violated the right to security of the person and freedom from arbitrary
detention under article 9 (1) of ICCPR and article 6 of ACHPR
4. The right to security of the person and freedom from arbitrary detention is contained in
article 9 of the International Covenant on Civil and Political Rights (ICCPR). As per this article
everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention and also no one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.7 In the same manner article 6 of
African charter stipulates that every individual shall have the right to liberty and to the security
7
ICCPR article 9 (1)
1
of his person except for reasons and condition previously laid down by law.8 Pursuant to article 6
of the charter particularly, no one may be arbitrarily arrested or detained.
5. In the case at hand, in solidarity with the government of Malinke, the government of
Kuntakinte in February 2015 began arbitrarily arresting a number of young people believed to
have links with the Young Panthers group.9 The government arrested these individuals merely
based on the President Bobos declaration of the Young Panthers as a terrorist group.10
Moreover, the government has no evidence as to whether or not the specific individual belongs
to the allegedly terrorist group. The government also is not able to justify the arrest based on the
previously existing law to that effect.
6. The right to personal liberty necessitates that persons not to be subject to arrest and
detention except on condition that the law provides; and provided that the law itself and the
manner of its execution are not arbitrary. Domestic law should prescribe the grounds and
procedures for arrest and detention. An arrest or detention provided by domestic law may still be
contrary to article 9 if it is arbitrary. There is no law in Kuntakinte which claimed by the
government and which justify the arrest. No procedures were provided to arrest individuals under
that circumstance as well. Deprivation of liberty is arbitrary under customary international law in
cases where it is clearly impossible to invoke any legal basis justifying the deprivation of
liberty.11
7. Moreover, even though the government claimed that the arrest is lawful and cannot
disclose its ground for arrest due to the reason of national security. Arbitrariness may also result
from a law which is vague or allows for the exercise of powers in broad circumstances that are
not sufficiently defined. Furthermore, an arrest or detention may be arbitrary if it is
unreasonable, inappropriate, injustice and unnecessary in all circumstances, for example, to
prevent flight, interference with evidence or the recurrence of crime.12
8. Likewise, in arresting these individuals the government is claiming national security
which is very vague and not sufficiently defined. The governments reason of national security
8
African charter article 6
9
Fact sheet para 16
10
Fact sheet Para 16
11
Report of the Working Group on Arbitrary Detention, Para 38
12
Van Alphen v Netherlands Para 5.8
2
allows it to exercise its power in broad circumstances. The African commission on human and
peoples rights has confirmed that the failure or negligence on the part of the security agents of a
State party scrupulously to comply with the requirement to submit reasons for arrest and to
inform the persons arrested promptly of any charges against them is a violation of the right to a
fair trial as guaranteed by the African Charter.13 Article 6 of the African Charter was violated
where the complainant was arrested in the interest of national security under the Preventive
Custody.14
9. Furthermore, it is not sufficient for the purposes of the covenant, including article 9(2)
thereof, to arrest and detain a person on grounds of presumed connection with subversive
activities; the arrested and detained person must be given explanations as to the scope and
meaning of subversive activities, which constitute a criminal offence under the relevant
legislation.15 In the case at hand detainees at PDF had given none of the explanation to with
regard to their detention. Thus, the detention is arbitrary. For the above stated reasons the
government of Kuntakinte violated its duty to respect the right to security of the person and
freedom from arbitrary detention which sanctioned under African charter and other relevant
instrument to which it ratified.
1.2.Kuntakinte violated the right of a person to be brought promptly before a court and
tried within a reasonable period, or to be released from detention under article 9 (3) (4)
of ICCPR and article 7 (1) (d) of ACHPR
10. Anyone arrested or detained on a criminal charge shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to release.16 It shall not be the general rule that persons awaiting trial
shall be detained in custody.17 Furthermore, anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court, in order that the court may decide
without delay on the lawfulness of his detention and order his release if the detention is not
13
ACHPR, Huri-Laws v. Nigeria, paras. 43-44
14
ACHPR, Alhassan Abubakar v. Ghana, paras. 9-10
15
L. B. Carballal v. Uruguay, paras. 12-13
16
ICCPR article 9 (3)
17
Ibid
3
lawful.18 In addition to this African charter also stipulates that every individual shall have the
right to be tried within a reasonable time.19 Furthermore, body of principles adopted by general
assembly under principle 38 states that a person detained shall be entitled to trial within the
reasonable time or to release pending trial.20
11. In the case at hand, many of the prisoners have not been charged with a specific crime but
were arraigned before a High Court after six months of detention and were all remanded into
prison custody pending investigations. The warrant for their remand has been renewed by the
High Court every three months on the request of the Attorney-General of Kuntakinte. In
Kuntakinte it can be clearly understood from the circumstances surrounding the case that the
persons waiting for trial shall be detained in custody. There is no prospect of release on bail as
well. Moreover, some of the prisoners have been in detention for more than 15 months, with no
indication of when they might be tried or set free.
12. The primary mechanism for oversight of pretrial detention is the right of anyone arrested
or detained to be brought promptly before a judicial authority. This review provides a
fundamental safeguard against abuses of power and arbitrary arrest, allowing a court to
determine whether initial detention was justified, and whether or not the accused shall be
remanded in custody pending trial.21 It also prevents and uncovers violations of the detainees
fundamental rights, and allows the detainee to be released if the arrest or detention violates his
rights.22 While their rights has been massively violated and remained in custody without
sufficient bases for their arrest, the detainees have not been brought before the court; neither the
court reviewed their cases. This resulted in lack of safeguard against abuses of power and
arbitrary arrest.
13. With regard to the term promptly, this term is not defined under any of the human
rights instruments, but the jurisprudence provides some guidance with respect to this. The HRC
has indicated that detention prior to judicial review must not exceed a few days, 23 and ideally
18
ICCPR article 9 (4)
19
African charter article 7 (1) (d)
20
ACHPR Principles and guidelines on the right to a fair trial Principle 38
21
Council of Europe, Recommendation .Para 14.
22
AHCPR Principles and Guidelines on the Right to a Fair Trial para. M (3) (b).
23
HRC, General Comment 8, para. 2., Grant v. Jamaica, para. 8.1
4
should be made available with 48 hours.24 The European Court of Human Rights has been held
that the degree of flexibility attaching to the notion is limited. While individual circumstances
can be taken into account in determining promptness, the essence of the right should not be
impaired.25 According to HRC four days may be acceptable in exceptional circumstances, (e.g.,
terrorist investigations), but longer than four days is unacceptable, as it would impair the essence
of the right.26 Even in case of an emergency threatening the life of a nation, which can permit
27
states to derogate from certain obligations under the ECHR, there should not be an interval
greater than seven days between detention and appearance before a judicial authority unless it is
absolutely impossible to hold a hearing.28
14. Surprisingly, in our case many of the prisoners have not been charged with a specific
crime but were arraigned before a high court after six months of detention.29 The six months
delay of the government without bringing them before the court would not be justified in any
ground. All in all, by failing to bring the arrested persons in due time before the court Kuntakinte
violated the right to be brought promptly before a court and tried within a reasonable period, or
to be released from detention.
1.3.Kuntakinte violated its duty to respect the right to a fair trial and due process
requirements under article 9 (2), 14 of ICCPR and article 14 (1) (d) of African charter
15. Anyone who is arrested shall be informed, at the time of arrest the reasons for his arrest
and shall be promptly informed of any charges against him.30 All international and regional
human rights instruments stipulate that persons accused of crimes have the right to consult with
and be represented by legal counsel. This right applies during all stages of the criminal process,
from the moment of detention, through trial, sentence, and appeal.31 These rights are protected
24
HRC, Concluding Observations: para. 17
25
Reid. A P. 305
26
Ibid
27
ICCPR Article 15
28
Reid. A P. 310.
29
Fact sheet para 16
30
ICCPR article 9 (2)
31
UN Basic Principles para. 1, ACHPR, Principles and Guidelines para. N (2) (c), IACHR, Principles and Best
Practices Principle V.
5
under article 14 of ICCPR. African charter under article 7 (1) (d) also states that every person
shall have the right to be tried within a reasonable time by an impartial court or tribunal.
16. In the case at hand many of the prisoners have not been charged with a specific crime, no
evidence brought against them, all remanded into prison custody pending investigations some of
them have been in detention for more than 15 months, with no indication of when they might be
tried or set free.32 Additionally, about 150 of the detainees have been tried and convicted by the
general court martial which results in violation of their right to fair trial and due process of law.33
Moreover, what makes situations more sever is that the warrant for their remand has been
renewed by the high court every three months at request of attorney general.
17. There are at least three procedural safeguards that must be observed at all stages of
detention. The facts of our case reveal the government of Kuntakinte fulfilled none of them.
These are review by a competent tribunal, the right to counsel, and the right to effective
participation. All detainees are entitled to equal treatment before courts and tribunals. Persons
accused of crimes also have the right to consult with and be represented by legal counsel.
Furthermore, it is an essential element of due process that a detained person and/or his legal
counsel are able to effectively participate in proceedings, beginning with pretrial detention.34
18. Though Criminal Procedure Code of Kuntakinte allowed for remand on the request of
attorney general, continued remand of prisoners may violate basic right enshrined under the
human right instruments. With respect to this the UN Human Rights Committee, in the case of A.
v. Australia, defined lawfulness as not only including compliance with domestic law, but also
compliance with the ICCPR.35 The UN body of principles for the protection of all persons under
any form of detention or imprisonment reiterates that a person shall not be kept in detention
without having an effective opportunity to be heard promptly by a judicial or other authority. 36
Additionally, persons convicted of a crime have the right to have the conviction reviewed by a
higher court established by law.37
32
Fact sheet para 16
33
Ibid
34
Handbook of international standards on pretrial detention procedure 16
35
Nowak, Manfred P.236 (N.P. Engel, 2005).
36
UN Body of Principles for the Protection of Persons under Detention, principles 11, 32.
37
ICCPR Article. 14(5)
6
19. Moreover, the trial of civilians by military courts could present serious problems on the
protection of the rights of prisoners as far as equitable, impartial and independent administration
of justice concerned.38 Therefore, in respect of the conditions under which suspected members of
the Young Panthers are currently detained at PDF and also have been convicted by court martial
Kuntakinte has violated their right to fair trial and due process of law.
1.4. Kuntakinte violated its duty to respect the right to prohibition against torture and
inhuman or degrading treatment or punishment, and the right which provides for
humane treatment during detention under article 7, 10 (1) of ICCPR and article 5 of
ACHPR
20. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.39 Pursuant to article 10 (1) of ICCPR all persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person. African
charter also stipulates that every individual shall have the right to the respect of the dignity
inherent in a human being and all forms of exploitation and degradation of man particularly
torture and inhuman or degrading punishment and treatment shall be prohibited.40 Moreover,
prohibition of torture achieved the status of erga omnes norm in which derogation is impossible
under any circumstances.
21. In the case at hand about 700 suspected members of the Young Panthers had been
subjected to prolonged periods. Many of the arrested persons had not been brought before the
court up to six months and some of them have been in detention for more than 15 months, with
no indication of when they might be tried or set free.41 The prolonged period of detention and the
circumstances under which they detained resulted in stress, anxiety and depression among those
captured within the detention facility hell on earth.42
22. Furthermore, indefinite detention may raise issues under the peremptory international law
and human right instruments rule against torture. Detention of young Malinkese violates Article
7, which prohibits torture and inhuman or degrading treatment or punishment, and Article 10,
38
HRC General comment no. 13 para 17
39
ICCPR article 7
40
African charter article 5
41
Fact sheet para 16
42
Fact sheet para 17
7
which provides for humane treatment during detention. There can be little doubt that indefinite
detention entails inhuman treatment and that in certain circumstances it may even constitute a
form of torture.43 Because of the psychological effects that indefinite detention may have on
individuals, it entails violations of the provisions of human right instruments against torture and
other cruel, inhuman or degrading treatment or punishment.44
23. According to the facts of the case there have been reports linking the government of
Kuntakinte to various tactics to extract information from those captured.45 Not only this it can be
clearly understood from the statement of a senior army officer who claimed that Malinkese are
wimps, just strap them to a board with their feet raised above the head, add water and cloth and
they will confess all their sins to you.46 Subsequent suspension of a senior army officer also
shows that he disclosed secret information. Moreover, a report issued an international NGO,
Detention Watch based on sources kept confidential confirms this allegations.47
24. Therefore, kuntakinte violated its duty to respect right of persons against torture, inhuman
and degrading treatment by using various tactics to extract information from those captured as
well as treating them in humanly in Hell on earth detention facility.
1.5. Detention of young Malenkese cannot be justified on the ground of National security
25. Regarding the implementation of Articles 4, 12, 18, and 19 the HRC has generated a
body of authoritative interpretation of the provisions. The Committee holds the view that
measures taken under Article 4 are of an exceptional and temporary nature and may only last as
long as the life of the nation concerned is threatened and that, in times of emergency, the
protection of human rights becomes all the more important, particularly those rights from which
no derogations can be made. The Committee also considers that it is equally important for State
Parties, in time of public emergency, to inform the other State Parties of the nature and extent of
the derogations they have made and of the reasons thereof.48
43
De Zayas P.19
44
De Zayas P.20
45
Fact sheet para 17
46
Fact sheet para 17
47
Fact sheet para 17
48
HRC General Comment 5, Para 3
8
26. Moreover, Article 4(2) of the ICCPR explicitly outlines the set of rights that cannot be
derogated from, even in times of emergency. It the right not to be subjected to torture or to cruel,
inhuman or degrading treatment or punishment further procedural rights such as the right to fair
trial and due process of law cannot be derogated based on the ground of emergency.49
27. In the case at hand despite the absence of explicit situation which threatens the life of
nation which justifies the derogation of these fundamental rights, the government of Kuntakinte
is derogating the fundamental rights from which derogation is not allowed. The government used
deferent moods of extracting information from those who captured by violating their right not to
be subjected to torture. The condition under which the persons are detained also violates this
right. Moreover, government violated procedural rights of persons by denying them their right to
fair trial and due process of law requirements.
28. In the case at hand the government of Kuntakinte arrested a number of young people
believed to have links with the Young Panthers group.50 The government of Kuntakinte claims
that those captured have links with a terrorist organization, merely based on President Bobos
declaration of the Young Panthers as a terrorist group.51 There is no internal law which enables
the government to do so.
29. It should not be enough that a state is acting in the generalized notions of national
security are being invoked; the proportionality and necessity of each and every instance of
detention should be scrutinized. Nevertheless, Kuntakinte continue to detain migrants without
regard to proportionality and necessity. It was agreed that must not treat all groups that adopt the
tactic of terror as if they belonged in the same category.52
30. Therefore, the arbitrary detention of young Malenkese cannot be justified on the bases of
national security as there are no situations which justify the threat to national security. Moreover,
the violation of the right would not be subjected to torture and inhuman and degrading treatment
and procedural right to fair trial and due process of law.
49
HRC General comment 29, para 2
50
Fact sheet par 16
51
Fact sheet para 16
52
Megan and others P. 10
9
2. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT

TREATIES BY REFUSING TO REGISTER NATIONAL UNION OF GAY AND
LESBIAN (NUGAL).
31. Article 22 of the International Covenant on Civil and Political Rights (ICCPR) recognizes
that the right to freedom of association should be enjoyed by everyone, as provided for by of the
Covenant itself. In the same manner African charter under article 10 also stipulates the same
right. Pursuant to this provision every individual shall have the right to free association provided
that he abides by the law.53
32. An association refers to any groups of individuals or any legal entities brought
together in order to collectively act, express, promote, pursue or defend a field of common
interests.54 The word association refers, inter alia, to civil society organizations, clubs,
cooperatives, NGOs, religious associations, political parties55
33. Abiba and 14 of her colleagues from the law school of one of the leading universities of
Kuntakinte, the University of Kuntakinte, had in February 2012 applied to register the National
Union of Gay and Lesbians of Kuntakinte (NUGAL).56 However, the Companies and Societies
Registry rejected their application on the basis that the Constitution of Kuntakinte did not
recognize homosexuals.57
34. The provision of article 22 must be read jointly with article 2 of the International
Covenant on Civil and Political Rights, which stipulates that each State Party undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the Covenant, without distinction of any kind, such as race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status58.,
and article 26 thereof, which guarantees to all individuals equal and effective protection against
discrimination on grounds identified in article 2. This applies inter alia to minors, indigenous
peoples, and those victims of discrimination because of their sexual orientation and gender
53
African charter Article 10
54
UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, para. 46
55
Ibid
56
Fact sheet para 21
57
Fact sheet para 21
58
ICCPR Article 2
10
identity.59 The companies and societies registry discriminates the right of young students to
freely form association merely based on the sexual orientation of its members.
35. Therefore, obligation to respect and protect the rights of all individuals to assemble
peacefully and associate freely includes persons espousing minority or dissenting views or
beliefs seeking to exercise or to promote those rights.60 Thus, kuntakinte violated its obligation to
protect and respect the right of individuals to freely form any association.
2.1.The objectives of the NUGAL were not contrary to section 17(2) (a) of the Societies Act
as it is not unlawful, prejudicial to or incompatible with peace, welfare, good order or
morality.
36. Section 17(2) (a) of the Societies Act provides as follows:
The Registrar shall refuse to register a local society where it appears to him, after
consultation with members of affected stakeholders that any of the objects of the
Society is or is likely to be used for any unlawful purpose or any purpose prejudicial
to or incompatible with peace, welfare, good order or morality in Kuntakinte.61
37. Pursuant to this section the registrar shall refuse to register if and only if the
objective of the society is likely to be used for purpose prescribed under the same section.
In the case at hand there is no any legal ground for the registry to refuse to request register
NUGAL as none of its objects contrary to section 17(2)(a). The refusal to register
NUGAL cannot be justified based on the ground stated under the section since the
objectives of NUGAL were not unlawful, prejudicial to or incompatible with peace,
welfare, good order or morality.
2.2.The objectives of the NUGAL were not unlawful

38. For the act to be considered as unlawful it must be prohibited by law. In the case at hand
there is any law which criminalizes the act of homosexuality under Kuntakinteans legal order.
59
UN Special Rapporteur on the rights to freedom of peaceful assembly and of association para 13
60
Ibid p 9, para 22).
61
Fact sheet para 21
11
39. Section 246 of the 1969 Criminal and Other Offences Act of Kuntakinte, criminalizes
conducts against the order of nature.62 Under this provision there is no any ground to prohibit
homosexuals since the section criminalizes the acts if those acts are against the order of nature.
However, despite the ambiguousness of the term there is any persuasive ground to say
homosexuality is against the order of nature.
40. The UN Special Rapporteur also warns against arbitrary interpretations of such
ambiguous grounds for restriction.63 Legislation should not set any specific limitation on
individuals, including children, foreign nationals; ethnic or linguistic minorities, LGBTI
individuals, and women64 Therefore, the refusal to register NUGAL cannot be justified on the
ground of unlawfulness.
2.3.The decision not to register NUGAL was no immediately informed

41. Registration bodies must be bound to act immediately and laws should set short time
limits to respond to submissions. During this period associations should be presumed to be
operating legally until it is proven otherwise. Failure to provide a response within a clear and
short time limit should result in a presumption that associations are operating legally.65 Any
decision rejecting the submission or application must be clearly motivated and duly
communicated in writing to the applicant. Associations whose submissions have been rejected
should have the opportunity to challenge the decision before an independent and impartial
court.66
42. In the case at hand the application for registration was made on February 2012 and the
registry informed refusal to register after more five months on July 2012.67 Moreover, there is no
mechanism to challenge the decision of refusal to register as the judiciary resolved not to see the claims
by RWB and NUGAL.68
62
Fact sheet para 8
63
UN Special Rapporteur on the rights to freedom of peaceful assembly and of association para 20
64
Ibid p 14, para 54 and p 6-7, para 18.
65
Ibid p 15, para 60
66
Ibid p 15, para 61
67
Fact sheet Para 21
68
Ibid
12
2.4.The objectives of the NUGAL were not prejudicial to or incompatible with peace,
welfare, good order or morality.
43. The major aim of NUGAL is to provide gays, lesbians and bisexuals in Kuntakinte with
information on human rights, and to advocate for their rights to non-discrimination, especially
the right to access health care without impediment based on sexual orientation.69 As it can be
clearly understood from this fact NUGALs aim concerns and involves only specific individuals
and nothing to do with the general public. Moreover, providing individuals with information
about their right, and to advocate for their right does not in any way affects public morality.
44. Moreover, the objective of NUGAL were not prejudicial to or incompatible with peace,
welfare, good order as it does not involve or result in any act of violence. Therefore,
Kuntakintes companies and society registry cannot justify refusal to register NUGAL based on
the above grounds.
2.5.Republic of Kuntakinte violated its obligation to respect the right to liberty, to hold
opinion, privacy and non-discrimination by criminalizing the act and prosecuting
adults engaged in act of consensual same sex relationship
45. Articles 2(1) and 26 of the ICCPR stipulate the principle of non-discrimination that must
be respected and ensured by states ratified the covenant. Article 2(1) of the covenant guarantees
to all the citizens of each member state the protection of fundamental right under the covenant,
without distinction of any kind, such as race, color, sex Article 26 guarantees the right of all
people to equality before the law and equal protection of the laws. Furthermore, Article 17 of the
ICCPR establishes that no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence. ICESCR guarantees the same right under article 2
(2).
46. The African charter also enshrined this right under its preamble and article 2. Article to of
the charter stipulates that, every individual shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the present Charter without distinction of any kind such
as race, ethnic group, color, sex, language, religion, political or any other opinion, national and
69
Fact sheet para 21
13
social origin, fortune, birth or other status.70 Moreover, according to article 9 (2) of the charter
every individual shall have the right to express and disseminate his opinions within the law.
47. According to Article 25 (c) of ICCPR every citizen shall have the right and the
opportunity, without any of the distinctions mentioned in article 2 and without unreasonable
restrictions to have access, on general terms of equality, to public service in his country.
Additionally, as per article 16 of African charter and article 12 (1) ICESCR every individual
shall have the right to enjoy the best attainable state of physical and mental health. The charter
also recognizes that every citizen shall have the right of equal access to the public service of his
country.71
48. In the case at hand the government has violated the rights to non-discrimination of gays,
lesbians and bisexuals in Kuntakinte, especially the right to access health care without
impediment based on sexual orientation.72
49. The notion of sex in Articles 2(1) and 26 as well as article 2 of African charter must be
interpreted as including sexual orientation.73 The Human Rights Committee held in Toonen that
the term sex is to be read to include sexual orientation, meaning that persons regardless of their
sexual orientation are entitled to all of the rights guaranteed by the convention and are to be free
from discrimination and guaranteed the equal protection of the law.74 The Toonen decision has
been referenced many times by the Committee, by other treaty bodies, and by the UN Special
Procedures when affirming that articles 2(1) and 26 of the Covenant prohibit discrimination
based on sexual orientation.
50. The government prosecuted adults engaged in consensual same-sex relations based on
Section 246 of the 1969 Criminal by claiming the provision which criminalize conducts against
the order of nature.75 The government successfully prosecuted about 20 individuals for same-sex
relations.76 Moreover, Abiba, a well-known human rights advocate of Kuntakinte nationality was
70
African charter Article 2
71
African charter Article 13 (2)
72
Fact sheet para 21
73
Toonen v. Australia, para 29
74
75
Fact sheet para 8
76
Fact sheet para 8
14
charged with conduct against the order of nature under the same section of criminal act. 77
Criminalizing the private sexual conduct between consenting adult violates human right of
persons.
51. In land mark case between Toonen v Australia,78 the Human Rights Committee
considered the criminalization of private sexual activity between consenting same-sex adults and
found that such laws violated Articles 2(1), 17, and 26 of the Covenant.
52. Though, no one has been convicted under this section in the last six years from 2010 to
2015. The fact that the government prosecuted individuals and criminalize the act can result in
violation of fundament rights. The effect of having legal penalties for same sex sexual conduct is
that, even when they are not enforced, these laws strengthen and reinforce social stigma and
homophobia against sexual and gender non-normative behavior, whether perceived or real, that
may easily cause discrimination or more serious forms of human rights abuses. That stigma, in
turn, can be even more effective than legal penalties in stripping individuals of the economic,
social, and political rights guaranteed to them under the ICCPR.79
53. Therefore, kuntakinte violated its duty to respect and ensure right to liberty, to hold
opinion, privacy and non-discrimination by criminalizing the act and prosecuting adults engaged
in act of consensual same sex relationship. This act is in violation of several rights in the ICCPR
with reference to its citizen because of their sexual orientation or gender identity and expression.
3. KUNTAKINTE VIOLATED ITS OBLIGATIONS TO RESPECT AND PROTECT

HUMAN RIGHTS OF WOMEN BY NOT PROVIDING FOR THE ABOLITION OF
THE TROSOKI CUSTOM OF BAMILEKE PEOPLE
54. FGM, breast ironing and trosoki custom of Bamilike people violates the right of women
to be free from all forms of discrimination, right to life and physical integrity, including freedom
from violence
77
Fact sheet para 2
78
79
J.S. Mill, On Liberty. P.58
15
3.1.Violation of right to be free from all forms of discrimination against women

55. Article 2 of the ICCPR, ICESCR and African charter states: Everyone is entitled to all
the rights and freedoms set forth in this Declaration, without distinction of any kind, such as
race, color, and sex. African womens protocol also provides the right elimination of
discrimination against women.80 Additionally, Article 2 of CRC stipulates that states Parties
shall respect and ensure the rights without discrimination of any kind.
56. The practice of FGM, breast ironing and trosoki custom fits within the definition of
discrimination against women as set forth in various human rights instruments as a practice
exclusively directed towards women and girls with the effect of interfering with their enjoyment
of their fundamental rights. Furthermore, FGM perpetuates the fundamental discriminatory belief
of the subordinate role of women and girls. Trosoki custom discriminates among women since it
is only a virgin girl within the family of the offender that must be pledged.81 According to this
custom, even the crime was committed by the men those who punished for that crime are
womens. Thus, the customs violate right to be free from all forms of discrimination against
women.
3.2.Violation of the right to life, health and physical integrity including freedom from
violence
57. The right to physical integrity includes the right to freedom from torture, inherent dignity
of the person, the right to liberty and security of the person, and the right to privacy. This
category of rights is protected by various human rights instruments including: International
Covenant on Economic, Social and Cultural Rights, Preamble; International Covenant on Civil
and Political Rights (ICCPR), Preamble and Article 9 (1); and The Convention on the Rights of
the Child (CRC), (Article 19). FGM causes severe physical and mental damage, sometimes
resulting in death. Article 3 of African womens protocol also guarantees the right of physical
and mental integrity, dignity and freedom from violence.
58. The International Covenant on Economic, Social and Cultural Rights recognizes the right
of all human beings to the highest attainable standard of physical and mental health.82
80
African womens protocol Article 2
81
Fact sheet para 5
82
ICESCR Article 12
16
59. FGM, breast ironing and trosoki custom causes great short-term and long-term physical
and mental harm to its victims and perpetuates the fundamental discriminatory belief of the
subordinate role of women and girls. The practice of FGM, breast ironing and trosoki interferes
with a womans right to physical integrity, privacy, and freedom from violence. Additionally,
since the girls must serve the Fetish Priest and answer to all his desires they may be subjected to
sexual exploitation and violence. Moreover, these customary practices have long lasting
psychological implication on the mind of the victims. Thus, the harmful cultural practices of
Bamileke people violates right to life and physical integrity, including freedom from violence.
3.3.The trosoki custom of Bamileke people subjects women to be held in servitude and
compulsory labor
60. Pursuant to article 8 (2) and 3 (a) of ICCPR no one shall be held in servitude and required
to perform forced or compulsory labor. African charter under article 5 provides for prohibition of
all forms of exploitation and degradation of man particularly slavery. The African womens
protocol also guarantees the right to protection against all forms of exploitation.83
61. In our case the practice of trosoki dictates that where the Fetish Priest of a community
determines that a crime has been committed within the community that angers the gods, a virgin
girl within the family of the offender must be pledged in life-long servitude to the gods and must
serve the Fetish Priest and answer to all his desires.84 It is clear from the above fact that the
womens are held in servitude and subjected to compulsory labor fulfilling the desires of fetish
priest. Thus, trosoki custom of violates the right to protection against servitude and compulsory
labor by pledging womens in life-long servitude to the gods and compelling to answer to the
entire desires fetish priest.
3.4.The trosoki custom of Bamileke people is against the right of the child
62. The child, by reason of his physical and mental immaturity, needs special safeguards and
care, including appropriate legal protection, before as well as after birth"85 African charter and
other international human right instruments provide the right of children. Under article 16 and 21
of the African child charter and the provision of convention on the right of child article 32, 34,
83
African womens protocol Article 4 (1)
84
Fact sheet para 5
85
The preamble of CRC
17
35 and 36 protection for child from all forms of torture, inhuman or degrading treatment and
especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse,
while in the care of the child also to eliminate harmful social and cultural practices affecting the
welfare, dignity, normal growth and development of them.86
63. African child charter and convention on the right of child article 19 and 9 respectively
stipulates for protection of the child not be separated from his or her parents against their will
and every child shall be entitled to the enjoyment of parental care and protection.
64. The republic of Kuntakinte violated African charter and other international human right
instruments which provide the right of children. From the given case girls were pledged as
trokosis or a ritual servitude in the Bamileke region in this kind of act the girls were given as
pledge in life-long servitude and must serve the Fetish Priest and answer to all his desires 87. It
can be clearly understood from the above facts that those girls are subject to exploitation,
compulsory labor and more badly sexual harassment and exploitation.
65. Moreover, under African charter and other international human right instruments states
have a duty to ensure that a child shall not be separated from his or her parents against his/her
consent. In the case at hand the practice of trokosi is separates the child from their parents.
According to the reports provided by Kuntakinte Human Rights Observatory and a local NGO
there are about 7000 the girls pledged as trokosi in the Bamileke region88. Moreover, Marena
was pledged as ritual servitude at the age of 15. And state failed to protect the child best
interests. Marena was given away to the fetish priest without her consent.89
3.5.Kuntakinte violated its duty to protect and ensure women and children right against
the violation of their fundamental rights by not providing the abolition of harmful
cultural practices
66. All human rights, including economic, social and cultural rights, impose a combination of
negative and positive duties on States. A useful framework for understanding the nature of the
86
African Child Charter Article 16 ,Child Right Convention Article 9 sub 1, Article 32,34, 35 and 36
87
Fact sheet para 5
88
Fact sheet para 5
89
Fact sheet para 20
18
duties imposed by economic, social and cultural rights is the duty to respect, protect, promote
and fulfill these rights.90
67. The ICCPR,' and other general as well as special international human right instruments,
enumerates rights expressed in prohibition norms. However, these instruments also contain
various requirement norms that compel the State to take positive action in order to guarantee the
enjoyment of the rights.
68. Article 1 of the Charter requires State Parties to recognize the rights, duties and
freedoms enshrined in the Charter, and to adopt legislative or other measures to give effect to
them. Such measures include providing for the protection and realization of economic, social
and cultural rights through constitutional rights and institutions, legislative, policy and budgetary
measures, educational and public awareness measures and administrative action as well as
ensuring appropriate administrative and judicial remedies for the violation of these rights.
69. African charter and other international human right instruments provide for protection of
the right of children. Article 16 and 21 of the African child charter and the provision of
convention on the right of child article 32, 34, 35 and 36 impose positive obligation on the
government to protection of child from all forms of torture, inhuman or degrading treatment and
especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse,
while in the care of the child also to eliminate harmful social and cultural practices affecting the
welfare, dignity, normal growth and development of them.91 Article 5 of Maputo protocol also
impose obligation on state to prohibit and condemn all forms of harmful practices which
negatively affect the human rights of women and which are contrary to recognised international
standards. States Parties shall take all necessary legislative and other measures to eliminate such
practices.92
70. In the case at hand the government of the republic of Kuntakinte has not taken any
measure to protect a women as well as childs best interest principle. More badly it was the
90
Principles and guidelines on the implementation of economic, social and cultural rights in the African charter on
human and peoples rights, African commission on human and peoples rights
91
African Child Charter article 16 CRC article 9 sub 1, article 32,34, 35 and 36
92
Maputo protocol article 5
19
government which was feeding those girls to the fetish priest93 which is irrefutably the violation
of its obligation.
71. States failed to take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, abuse, maltreatment
or exploitation, including sexual exploitation. Clear from the facts of the case the police even
assisting the practice by referring cases to cultural leaders.94.
72. All in all government has the duty to modify customs that discriminate against women
the duty to abolish practices that are harmful to children; and the duty to ensure a social order in
which rights can be realized. This duty is fulfilled by enacting legislation and implementing
other methods of social and cultural education. Legislation should be enacted that encompasses
these fundamental rights and governmental duties related to the practice of FGM, breast ironing
and trosoki custom.
73. Therefore, Kuntakinte violated its obligation to protect, ensure and respect which
sanctioned under African charter and other relevant treaties by failing to take necessary steps to
abolish the practice of trosoki.
4. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT

HUMAN RIGHT INSTRUMENTS IN RESPECT OF METHODS OF ACQUISATON
OF CITIZENSHIP AND ORDER OF DEPORTATION OF ALL MIGRANTS AND
MIGRANT WORKERS, INCLUDING CHILDREN BORN IN KUNTAKINTE TO
MALINKESE PARENTS.
4.1.Requirements for citizenship is discriminatory among Malinkese and nationals of

Kuntakinte
74. Accordingly, article 2(1) of the International Covenant on Civil and Political Rights provides
that States must respect and ensure civil and political rights without discrimination on any grounds.
The Human Rights Committee has further confirmed that the guarantee of non-discrimination
applies to nationals and non-nationals alike.95 Article 2(2) and 2 of the International Covenant on
93
Fact sheet para 21
94
Fact sheet para 5
95
HRC General Comment No. 15 para 13; and General Comment No. 18 para 8
20
Economic, Social and Cultural Rights and African charter respectively prohibits discrimination of
any kind, including on the grounds of race, color, sex, age, language, religion, political or other
opinion, national or social origin, property, birth or other status.
75. The principle of non-discrimination is central to the enjoyment of human rights and applies
to everyone, regardless of their status. According to the Human Rights Committee, discrimination
under the International Covenant on Civil and Political Rights involves:
...any distinction, exclusion, restriction or preference which is based on any ground such as race,
color, sex, language, religion, political or other opinion, national or social origin, property, birth or
other status, and which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.96
76. In the case at hand it is difficult for most of migrant workers to become citizens of the
Kuntakinte because they do not have the cultural or ethnic background of the majority of the
countrys citizens as required for citizenship.97 Moreover, The Citizenship Act of Kuntakinte, for
instance, requires an applicant for naturalization to speak at least one indigenous language and to be
assimilated into the customs and traditions of one of the ethnic groups of Kuntakinte.98 Moreover,
the deportation order is discriminatory as it is only directed against the nationality of Malinkese.
77. Therefore, in granting citizenship the government of republic of kuntakinte discriminated on
the bases of prohibited grounds such as, cultural and ethnic background, language and social
background.
4.2.Kuntakinte violated its obligation under African charter and other human right
instruments by deporting Migrants while knowing their rights might be violated
78. Unlike ICCPR African charter under article 12 provides that a non-national legally
admitted in a territory of a State Party to the present Charter, may only be expelled from it by
virtue of a decision taken in accordance with the law.99 The mass expulsion of non-nationals
shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or
96
HRC General Comment No. 18 para. 7.
97
Fact sheet para 13
98
Fact sheet para 13
99
African charter article 12(4)
21
religious groups.100 With regard to this Human Rights Committee stated in certain circumstances
an alien may enjoy the protection of the Covenant even in relation to entry and residence, for
example, when considerations of non-discrimination, prohibition of inhuman treatment and
respect for family life arise101 Moreover, HRC also interpreted article 7 of the ICCPR as
including a prohibition of expulsion if there is a risk of torture. Indeed, when commenting on
article 7 of the Covenant, the Human Rights Committee stated that States parties must not
expose individuals to the danger of torture or cruel, inhuman or degrading treatment or
punishment upon return to another country by way of their extradition, expulsion or
refoulement.102
79. In the case at a hand due to their political opinion President Bobo publicly branded the
Young Panthers as a terrorist organization and vowed to hunt them down wherever they may be
in the world.103 Subsequent political upheaval and widespread killings by the Malinke Armed
Forces (MAF) further unsettled the region. The authorities arrested hundreds of suspected
opponents, in many cases arbitrarily. As a result of the economic and recent political instability
in the region, more than 100 000 young people have fled the region into the neighboring
Kuntakinte.104 It can be clearly understood from the above facts that upon on their return to
Malinke the government of Bobo will not accept opponents deported to from Kuntakinte with
welcoming hands. It is clear that they might be subjected to arbitrary arrest, killing, torture and
violation of other fundamental right.
80. In indler v. Canada HRC stated that if a State party removes a person within its
jurisdiction, and the necessary and foreseeable consequence is a violation of that persons rights
under the Covenant in another jurisdiction, the State party itself may be in violation of the
Covenant.105
100
African charter article 12(5)
101
HRC General Comment no_15/27 para.5.
102
General Comment no_20/44 para.9.
103
Fact sheet para 12
104
Fact sheet para 12
105
Kindler v. Canada para.13.2.
22
81. Therefore, by deporting Malenkese to their country while knowing that they might be
subject to violation of their right, Kuntakinte violated its obligation enshrined under African
charter and other relevant human right instrument and norms which achieved customary law
status non refoulement. No respect for family life of migrants as well.
4.3.The order of deportation violates the right of child
82. Pursuant to article to article 7 of African charter every child shall be registered
immediately after birth and shall have the right from birth to a name, the right to acquire a
nationality. Furthermore, states Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant international
instruments in this field, in particular where the child would otherwise be stateless.106 Article 24
(3) of ICCPR also stipulates that every child has the right to acquire a nationality.
83. While the Convention on the Rights of the Child does not contain any specific provisions
on expulsions, the Committee on the Rights of the Child has adopted a detailed General
Comment on the treatment of unaccompanied and separated children outside their country of
origin which addresses the subject. In that General Comment, the Committee stated that States
parties should not return a child to a country where there are substantial grounds for believing
that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those
contemplated under articles 6 and 37 of the Convention.107 Moreover, pursuant to article 29 of
international Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families (ICRMW) each child of a migrant worker shall have the right to a name, to
registration of birth and to a nationality.
84. The government ordered deportation of all migrants including children born in
Kuntakinte to Malinkese parents.108 Children of Ratif, a migrant worker, Salema and Marema
were born in Kuntakinte, but they are not recognized as citizens of Kuntakinte and currently do
not possess any form of identification. They have never visited Malinke and are not aware of the
106
African charter article 7 (2)
107
HRC General Comment no.6 para.27.
108
Fact sheet para 18
23
existence of any relatives in Malinke.109 It can be understood from these facts that up on their
return children may face violation of right. Moreover, Marema and Salema would be stateless
because they are not recognized as a citizen of Kunkakinte and they are not a citizen of Malinke
as well.
85. Thus, the government violated its obligation to ensure that children would not be left
without state and as well as protection of child against violation of their human right. Thus, it
violates the right of child to registration of birth and to a nationality and protection of best
interest of child sanctioned under CRC, ICCPR, ICRMW and other international instruments
related to child right.
109
Fact sheet para 14
24
5. PRAYER FOR RELIEF

For the foregoing reasons the Commission respectfully requests this Honorable Court to adjudge
and declare that:
I. Since Kuntakinte is party to African court protocol, the Court may exercise
jurisdiction over all claims in this case.
II. The circumstances leading to the detention of the inmates of PDF, and the condition
under which they are detained violates African charter and international treaties to
which the respondent is party.
III. Refusal to register NUGAL is against the right to association of persons, and thus
violates African charter and other relevant treaties.
IV. Kuntakinte violated the African charter and other relevant treaties by no providing for
the abolition of the trokosi culture of the Bamilike people.
And thus to order:
Compensation for the victims of unlawful arrest or detention and any other remedy and/or relief
the honorable Court will deem equitable to grant.
Respectfully Submitted on behalf of the African Commission
Commissioners for African commission
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TEAM: II

THE 3RD ANNUAL INTER-BATCH HUMAN RIGHTS MOOT COURT COMPETITION

IN THE MATTER BEWTEEN

THE AFRICAN COMMISSION ON HUMAN AND PEOPLES RIGHTS

THE REPUBLIC OF KUNTAKINTE

ON SUBMISSION TO THE AFRICAN COURT ON HUMAN AND PEOPLES RIGHTS

SUBMISSION FOR THE APPLICANT

INDEX OF ABBREVIATION ................................................................................................................ XIII

STATEMENT OF JURISDICTION ......................................................................................................... XV

JUSTICIABLITY OF THE CASE .......................................................................................................... XVI

QUESTION PRESENTED ................................................................................................................... XVIII

STATEMENT OF FACT ........................................................................................................................ XIX

SUMMARY OF ARGUMENTS .......................................................................................................... XXIII

1. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT TREATIES

2. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT TREATIES

2.2. The objectives of the NUGAL were not unlawful ...................................................................... 11

3. KUNTAKINTE VIOLATED ITS OBLIGATIONS TO RESPECT AND PROTECT HUMAN

4. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT HUMAN

4.3. The order of deportation violates the right of child .................................................................... 23

5. PRAYER FOR RELIEF ..................................................................................................................... 25

standards on pretrial procedure, American Bar Association.( 2010)

Standards OHCHR; see: www2.ohchr.org/english/issues/migration/

UNGA Resolution on Resolution of the UN General Assembly on Protection of Migrants

Cultural Rights (art. 2, para. 2) U.N. Doc. E/C.12/GC/20 (2009

General Comment No 7 Human Rights Committee, General Comment 7, Article 7

Article 19 v Eritrea Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007),

Huri-Laws v. Nigeria ACHPR, Huri-Laws (on behalf of the Civil Liberties

November 2000, paras. 43-44

Other Legal Document

Fair Trial Assistance in Africa. Banjul: African Commission on Human and

peaceful assembly and of

ECtHR European Court of Human Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICRMW International Convention on the Protection of the Rights of All Migrant

JUSTICIABLITY OF THE CASE

11. The Republic of Kuntakinte is a sovereign unitary presidential constitutional democracy

THE TROKOSI CUSTOM

MEMBERSHIP TO INTERNATIONAL ORGANIZATIONS

KUNTAKINTES APPROACH TOWARD MIGRANTS UP ON THEIR ENTRY

THE DIRECTIVE FOR DEPORTATION

DETENTION OF YOUNG MALINKESE

THE TACTICS TO EXTRACT INFORMATION FROM THOSE CAPTURED

ARREST, DETENTION AND DEPORTING OF MALINKESE BY POLICE

RIGHTS WITHOUT BORDER

A. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER

C. KUNTAKINTE VIOLATED ITS OBLIGATIONS TO RESPECT AND PROTECT

1. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER

2. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT

2.2.The objectives of the NUGAL were not unlawful

2.3.The decision not to register NUGAL was no immediately informed

3. KUNTAKINTE VIOLATED ITS OBLIGATIONS TO RESPECT AND PROTECT

3.1.Violation of right to be free from all forms of discrimination against women

4. KUNTAKINTE VIOLATED THE AFRICAN CHARTER AND OTHER RELEVANT

4.1.Requirements for citizenship is discriminatory among Malinkese and nationals of

4.3.The order of deportation violates the right of child

5. PRAYER FOR RELIEF

And thus to order:

Respectfully Submitted on behalf of the African Commission

Commissioners for African commission

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