33RD CHRISTOF HEYNS AFRICAN HUMAN RIGHTS MOOT COURT

COMPETITION

UNIVERSITY OF RWANDA
22 – 27 JULY 2024,
KIGALI, RWANDA

THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

IN THE MATTER BETWEEN

HUMAN RIGHTS FIRST

AND

THE STATE OF RANTANIA

MEMORIAL FOR THE RESPONDENT

TEAM NUMBER 24
LIST OF ABBREVIATIONS
1. ACHPR African Commission on Human and People’s Rights.
2. ACtHPR African Court on Human and Peoples’ Rights
3. AC African Charter on Human and Peoples Rights
4. AHRLJ African Human Rights Law Journal
5. AHRLR African Human Rights Law Reports
6. Art. Article
7. Commission African Commission on Human and People’s Rights
8. Doc - Document
9. ECJ - European Court of Justice
10. ECtHR - European Court of Human Rights
11. HRC - Human Rights Commission
12. IACHR -Inter-American Commission on Human Rights
13. ICC - International Criminal Court
14. ICCPR - International Covenant on Civil and Political Rights
15. ICESCR - International Covenant on Economic, Social and Cultural Rights
16. Protocol - African Protocol on the Establishment of the African Court

17. UN - United Nation

18. UNGA - United Nations General Assembly.

19. VCLT - Vienna Convention on the Law of Treaties

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 SUMMARY OF ARGUMENTS (RESPONDENT)

CLAIM A

The Respondent submits that the withdrawal by Rantania of its article 34(6) declaration is

valid, and does not violate the African Charter and other relevant human rights

instruments.

CLAIM B

It is the submission of the Respondent that it does not violate the African Charter and other

relevant human rights instruments since it ensured that the Omia people and child workers

were protected from violations committed by the MD Ltd

CLAIM C

Respondent does not violate the African Charter and other relevant human rights

instruments by overthrowing and subsequently detaining President O’Kello

CLAIM D

The Respondent acted in accordance with the African Charter and other relevant human

rights instruments by accessing Mr Ditan’s data on the social media platform, The Truth,

by arresting him, and by convicting him of and sentencing him for disseminating

information likely to disturb public order.

2
 ISSUES FOR DETERMINATION

a) Whether the withdrawal by Rantania of its article 34(6) declaration is invalid, as it

violates the African Charter and other relevant human rights instruments by undermining

the vested rights of Rantanians.

(b) Whether Rantania violated the African Charter and other relevant human rights

instruments by failing to ensure that the Omia people and child workers are protected from

violations committed by the MD Ltd

C). Whether Rantania violated the African Charter and other relevant human rights

instruments by overthrowing and subsequently detaining President O’Kello.

(d) Whether Rantania violated the African Charter and other relevant human rights

instruments by accessing Mr Ditan’s data on the social media platform, The Truth, by

arresting him, and by convicting him of and sentencing him for disseminating information

likely to disturb public order.

3
ARGUMENTS

PRELIMINARY ISSUES: JURISDICTION AND ADMISSIBILITY

JURISDICTION

The Respondent does not wish to contend the Jurisdiction of this Court to hear and

determine this matter. However, this Court in Lohe Issa Konate v Burkina Faso 1 held that

pursuant to Rule 49(1) of the Rules of this Court, 2 it must first conduct a preliminary

examination of its jurisdiction; regardless of whether the Respondent raises no objections,

this Court must satisfy itself, proprio motu, that it has the material jurisdiction, personal

jurisdiction, temporal jurisdiction and territorial jurisdiction to hear and determine the case.

A). MATERIAL JURISDICTION

Article 3(2) of the Court’s Protocol grants the Court material jurisdiction in all matters

concerning the application and interpretation of the African Charter, the Protocol and other

relevant human rights instruments ratified by the Respondent State. This was restated in

the case of Kennedy Ivan v Tanzania.3

The Respondent concedes that the Court has material jurisdiction because alleged human

rights violations call for the interpretation and application of the African Charter, the Court’s

Protocol, AUCC, CEDAW and ACRWC ratified by Rantania.4

B). TEMPORAL JURISDICTION

1 App. No 004/2013

2 Rules of the African Court on Human’s and Peoples’ Rights 1 September 2020

3 App. 025/2016

4 Compromis Para.3
4
The Respondent further concedes that this court has temporal jurisdiction, and this is

because the alleged violations occurred in a time after the ratification of The African

Charter on Human and People’s Right. In the AFRICAN COMMISSION V LIBYA 5 it was

held by this court that the dates to be considered are of the entry of the Charter, Protocol

or/and other relevant human right treaties.6

C). TERRITORIAL JURISDICTION

As held in PAULO V TANZANIA 7, this Court has authority to exercise its jurisdiction over

alleged violations that occurred within the territory of a member state.

In this instant case, the alleged violations took place in Rantania, which was a member

state.8 It is on this ground that we concede that this Court has competent jurisdiction to

hear and determine this matter.

PERSONAL JURISDICTION

Concerning personal jurisdiction, Article 5(3) of the Court’s Protocol 9 allows NGOs with

observer status before the Commission to institute actions directly before the Court if the

State against whom the action is brought has made the Optional Declaration under Article

34(6) of the Court’s Protocol.

5 (APPLICATION NO.2 OF (2013) AFCHPR 33; (15 MARCH 2013)

6 Ibid

7 (020/2016) AFCHPR 14; (21 SEPTEMBER 2018)

8 Compromis Paras,3,5,15,17

9 Ibid
5
Since Rantania has ratified the Court’s Protocol, 10 made the Optional Declaration, and

deposited it11, allowing NGOs with observer status before the African Commission such as

HRF12 to sue in the Court. However, since the State of Rantania has withdrawn from the

declaration it made13, it is submitted that the Court does not have personal jurisdiction.

This issue will be dealt with in detail infra on the validity of the withdrawal made by the

Respondent State.

10 Compromis Para.3

11 Compromis Para.3(e)

12 Compromis Para. 5

13 Compromis Para 18
6
ADMISSIBILITY

The Respondent submits that the matters presented before this Court are inadmissible.

Article 56 of the Charter14 read together with Rule 40(2) of the Rules15 impose tripartite

requirements of admissibility to be fulfilled: local remedies should be exhausted; the

application should be filed within a reasonable time from the date local remedies were

exhausted and it should not deal with cases which have been settled or before another

International Tribunals.

The issues concerning the arrest, detention, and overthrowing of O’Kello and omia people,

child workers brought forward are inadmissible pursuant to lack of fulfilment of the

requisite conditions:

A. There has been no attempt to seek recourse in the national courts concerning

the arrest, detention and overthrowing of president O’Okello.

The Applicant failed to seek remedy in the local courts of Rantania hence failing to

exhaust the local remedies rule.16 A local remedy has been defined as “any domestic

legal action that may lead to the resolution of the complaint at the local or

national level.”17

It was noted by the African commission that an international tribunal should only be

available as a court of last resort.18

14 Ibid.

15 Ibid

16 African Charter, Article 56(5).

17 Ceesay v The Gambia, (2000) AHRLR 101 (ACHPR 1995).

18 Anuak Justice Council v Ethiopia (2006) AHRLR 97 (ACHPR 2006) [48]

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This is so as to give a government notice of a human rights violation in order to have the

opportunity to remedy such violations before being called before an international body. 19

It is a mandatory requirement and failure to do so would amount to non-exhaustion of

local remedies and in turn inadmissibility.20

The issue on the detention, arrest and overthrowing of O’Kello is inadmissible for lack of

satisfaction of local remedies. The matter has been scheduled for hearing which makes

it pending. A matter that is pending before national courts is regarded inadmissible

before an international tribunal.21 This is based on the principle that a state should first of

all have the means of rectifying through its own means and within the framework of its

own national legal system.22 Hence there ought to be completion of a case within the

national courts before an appeal can be made to an international tribunal.

Exhaustion of local remedies is still required in spite of perceived lack of independence

by the judiciary. A complainant's apprehension about the perceived lack of

independence of a country's domestic institutions did not absolve an author from

pursuing such remedies.23

The same was reflected in Bakweri Land Claims Committee v Cameroon where it

was held that the fact that the complainant strongly feels that it could not obtain justice

from the local courts does not amount to saying that the case has been tried in

19 Free Legal Assistance Group and others v Zaire, (2000) AHRLR 74 (ACHPR 1995) para.36, and Rencontre
africaine pour la défense des droits de l’Homme v Zambia, (2000) AHRLR 321 (ACHPR 1996) [10].

20 Dumbuya v The Gambia (2000) AHRLR 103 (ACHPR 1995).

21 Association Que Choisir Benin v Benin (2005) AHRLR 43 (ACHPR 2005)

22 Ibid, para 32

23 Kenyan Section of the International Commission of Jurists and Others v Kenya (2004) AHRLR 71 (ACHPR
2004)42.
8
Cameroonian courts.24 The complainant is not absolved of the duty to exhaust the local

courts based on the same.

The applicants failed to fulfil this requirement since the petition on the case of the Omia

people and the civil workers is still pending before the high court and schedule to take

place in February 2024.25

The Applicant cannot rely on the scheduling of the case for nine months as a matter that

has been unduly prolonged. In Louis Emgba Mekongo v Cameroon, 26 where the author’s

case had been pending for twelve years, the African Commission declared the

communication admissible due to the fact that under this instance, the exhaustion of

local remedies was unduly prolonged.27 This is in sharp contrast with the nine month

delay the Applicant experienced before bringing this matter before the African Court.

Accordingly, the Respondent submits that the allegation of unduly prolonged local

remedies cannot be sustained in the present instance, because as held in Zimbabwe

Lawyers for Human Rights and Another v Zimbabwe, 28 the delay was not excessive, or

unjustifiably prolonged.

B.The case concerning the Omia people and Child workers, the Applicant failed

to exhaust local remedies by refusing to Appeal to the Highest Court of the

Land(Supreme Court).

24 (2004) AHRLR 43 (ACHPR 2004) 55

25 Compromis Para.17

26 Communication 59/91

27 As above. Cited in CA Odinkalu & C Christensen ‘The African Commission on Human and Peoples' Rights: The
Development of Its Non State Communication Procedures’ (1998) 20(2)Human Rights Quarterly at 262.

28 (2008) AHRLR (ACHPR 2008) at par 60

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With regards to the case of the Omia people and child workers, the local remedies have

also not been fully exhausted. It was noted in Paul Haye v The Gambia that the exhaustion

of local remedies doesn’t preclude exhaustion of appellate procedures.29

It is not enough for the complainant to cast aspersion on the ability of the domestic

remedies of the State due to isolated or past incidences. 30 Arguing that local remedies are

not likely to be successful without trying to avail oneself of them, will not act as an

exemption to the local remedies rule.31 The Human Rights Committee in A v. Australia

observed that “mere doubts about the effectiveness of local remedies … did not

absolve the author from pursuing such remedies.”32

The applicant in this case therefore has no basis in failing to have appealed to the

supreme court since the court has the jurisdiction to hear the matter. 33 Such assumptions

lack persuasion as noted above and amount to non-exhaustion of local remedies.

29 Paul Haye v The Gambia, (2000) AHRLR 102 (ACHPR 1995) [4].

30 Ibid, para 58.

31 Ibid

32 Communication 560/1993, UN Doc CCPR/C/59/D/560/1993(1997).26 Supra n4, para 58

33 Compromis Para.2
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THE WITHDRAWAL MADE BY RANTANIA OF ITS ARTICLE 34(6) DECLARATION IS

VALID, AND DOES NOT VIOLATE THE AFRICAN CHARTER AND OTHER

RELEVANT HUMAN RIGHTS INSTRUMENTS BY UNDERMINING THE VESTED

RIGHTS OF RANTANIANs

A. Rantania has given a valid notice of withdrawal from the Protocol.

Rantania is no longer a party to the Protocol hence the court lacks jurisdiction to

adjudicate over the matter. The Protocol lacks a denunciation clause thereby leaving a

lacuna on how a party may withdraw from the same. A treaty lacking a denunciation or

withdrawal clause may permit exit if it is a treaty of arbitration, conciliation or judicial

settlement and a treaty which is the constituent instrument of an international

organization.34

Moreover, the Commission noted in Civil Liberties Organisation v Nigeria that a party

seeking to withdraw from the African Charter only had to give a notice on the same and

the withdrawal would be valid.35

It is the respondents’ submission that the African Protocol is one of a judicial settlement

nature and hence permits for its withdrawal in spite of lacking an express denunciation

clause.

Moreover, the government of Rantania gave a notice of its withdrawal as required. 36 Such

notice amounts to valid withdrawal. This in turn ousts the jurisdiction of the African Court to

determine this matter.

B. Article 56 of the VCLT has not attained the status of customary international law.

34 H Waldock, ‘Second Report on the Law of Treaties’[1963] YBILC, Vol II, 36 draft Art 17 (3) (a) and (b).

35 Civil Liberties Organisation v Nigeria (2000) AHRLR 188 (ACHPR 1995) [12].

36 Compromis Para 18
11
13. Rantania is not bound by the 12 months’ notice requirement for a withdrawal to be

effected under article 56 of the VCLT. This is justified by the fundamental principle of treaty

law that treaties are only binding upon parties. 37 The VCLT only regulates the legal

relations of those states that are parties to it. 38 It partly reflects customary international law

however this reflection only applies to certain provisions such as rules on interpretation, 39

material breach,40 and fundamental change of circumstances.41 Others may not be so

regarded, and constitute principles binding only upon state parties.42

It would be contrary to international law for a treaty to create obligations on a third-party

state without its consent.43 Rantania is thus not bound by the requirements of article 56 of

the VCLT and the withdrawal ought to have taken effect immediately a formal

announcement is made. The court subsequently lacks jurisdiction.

C. Rantania’s unilateral declaration on its withdrawal is legally valid.

The withdrawal of Rantania based on the declaration made by President Magui is legally

valid. A unilateral declaration shall be valid once it is publicly made and manifests the

intention to be bound.44 The effect of a declaration all depends on the intention of the state

37 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951), Advisory
Opinion, ICJ Rep 15, [21].

38 M Dixon, Textbook on International Law (6th edition Oxford University Press 2007), pg 59.

39 Golder v United Kingdom, Application No. 4451/70, Judgement, 21 February 1975 [14]; Lithgow and Others v
United Kingdom, Application No. 9006/80, Judgement, 8 July 1986[114].

40 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep 16, [47].

41 Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland) (1973) ICJ 3
[21].

42 M Shaw, International Law (7th edition Cambridge University Press 2014) pg 655

43 Supra n4

44 Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with
commentaries thereto, Yearbook of the International Law Commission, 2006, vol. II, part two, Principle 1.
12
in question.45 When it is the intention of the state making the declaration that it should

become bound according to its terms, that intention confers on the declaration the

character of a legal undertaking that is binding.46 In such circumstances, no subsequent

acceptance of the declaration nor any reply or reaction from other states is required for the

declaration to take effect.47 The declaration by President Magui clearly expressed the

intention of withdrawal from the Protocol.

Moreover, the declaration was made by the President Magui hence binding the state

internationally. This is buttressed on the requirement that a declaration must be made by

an authority vested with the power to do so. 48 It is a well-established rule of international

law that the Head of Government and the Minister for Foreign Affairs are deemed to

represent the state and unilateral acts by them have the force of international

commitments.49

In the present case, the declaration was made by Magui who is currently the head of

government.50 Based on the foregoing, it is the respondents’ contention that the

declaration on the decision to withdraw from the Protocol was legally binding thereby the

court lacks jurisdiction to adjudicate the matter.

45 Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), (1986) ICJ 554, [39]

46 Nuclear Test Cases (Australia v France; New Zealand v France) (1974) ICJ 457 [43].

47 Ibid

48 Supra n11, principle 4.

49 Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
the Congo v. Rwanda), Judgment of 3 February 2006, Jurisdiction of the Court and Admissibility of the Application,
[46]

50 Compromis Para 18
13
RANTANIA DID NOT VIOLATE THE AFRICAN CHARTER AND OTHER RELEVANT

HUMAN RIGHTS INSTRUMENTS SINCE IT ENSURED THAT THE OMIA PEOPLE AND

CHILD WORKERS WERE PROTECTED FROM VIOLATIONS COMMITTED BY THE MD

LTD

THE VIOLATION OF RIGHTS WAS CAUSED BY THE PRIVATE PARTIES AND IS NOT

ATTRIBUTABLE TO THE STATE OF RANTANIA

In Gabzvikovo-Nagymaros Project (Hungary v Slovakia), 51 the International Court of

Justice (ICJ) held that when a state has committed an international wrongful act, its

international responsibility is likely to be invoked regardless of the nature of the obligation

the state failed to respect.52 The rules of international law pertaining to State responsibility

thus also extends to human rights treaties and must be considered in the present matter.

In Corn Products International Inc. v United Mexican States, 53 it was emphasised that the

International Law Commission Articles on State Responsibility (hereafter “ILC Articles”) is

the most authoritative statement on state responsibility. 54 The commission also expressed

the view that it applies to all international legal instruments save to the extent that they are

excluded by the treaties’ provisions as lex specialis.55

In accordance with Article 8 of the ILC Articles, the general rule is that the only conduct

attributable to the State at international level is that of its organs of government or of those

51 ICJ, Gabčikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, (1997).

52 n 24 above par 47.

53 ICSID, Corn Products International Inc., v The United Mexican States, Case No. ARB(AF)/04/01, decision on
responsibility (2008).

54 n 26 above par 76.

55 n 26 above see also De Wolf “Reconciling Privatization with Human Rights” School of Human Rights Research
Series, Volume 49 p 235.
14
who have acted under the instructions, instigation or control of such organs. 56 The

requirements for instruction, instigation or control were set out by the ICJ in the case of

Nicaragua v United States of America.57

The ICJ applied the “strict control test” to equate a group of individuals with an organ of

state. This rule requires a relationship of dependence and control to such a degree that it

can be qualified as “complete dependence on the state.”58 It can therefore be said that the

general rule of attribution entails that the conduct of private actors is not attributable to the

State.59

The ICJ in Bosnia and Herzegovina v Serbia and Montenegro, 60 also warned against:

“broadening the scope of State responsibility well beyond the fundamental principle

governing the law of international responsibility: A State is responsible only for its

own conduct that is to say the conduct of persons acting, on whatever basis, on its

behalf.” 61

The Respondent submits that MD Ltd was not acting under the instructions, instigation or

control of the State when it committed the alleged human rights violations. Wherefore, the

conduct of these parties cannot be attributed to the State unless it failed in its duty to

exercise due diligence to prevent the violation.62

56 United Nations, International Law Commission, Report on the work of its fifty-third session (23 April-1 June and 2
July-10 August 2001), General Assembly.

57 ICJ, Nicaragua v United States of America, Judgment, I.C.J Report (1986)

58 n 57 above.

59 De Wolf “Reconciling Privatization with Human Rights” School of Human Rights Research Series, Volume

60 ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007.

61 n 60 above par 406.

62 ACHPR, Zimbabwe Human Rights NGO Forum v Zimbabwe, Admissibility Decision, Application no. 245/02
(2006) see also IACtHR, Velásquez Rodríguez v Honduras, Judgment, Series C No. 4 (1986).
15
(C) THE STATE DID NOT FAIL IN ITS DUTY OF DUE DILIGENCE TO PREVENT

HUMAN RIGHTS VIOLATIONS.

The African Commission in Zimbabwe Human Rights NGO Forum v Zimbabwe (hereafter

the “Zimbabwe” case) held that:

“A state can be held complicit where it fails systematically to provide protection of

violations from private actors who deprive any person of his/her human rights.

However, unlike for direct state action, the standard for establishing state

responsibility in violations committed by private actors is more relative.

Responsibility must be demonstrated by establishing that the state condones a

pattern of abuse through pervasive non-action.” 63

The complainant must also establish that the State was afforded adequate opportunity to

address widespread complaints of human rights violations, within the processes of its

domestic legal order, and systemically failed to do so by “routinely disregarding

evidence”.64

The African Commission further emphasised that “individual cases of policy failure or

sporadic incidents of non-punishment” would not give rise to the states international

responsibility under the due-diligence doctrine.65

However, Respondent submits that it did not fail in its duty to exercise due diligence as it

took effective measures investigating the matter, and provided remedy for the victims. The

Respondent State carried out investigations, but its report dismissed the allegations as

63 n 62 above

64 n 62 above par 160

65 n 64 above par 159 see also Commission on Human Rights, Fifty-second session, February 1996, Report of the
Special Rapporteur on violence against women, its causes and consequences, “Further Promotion and
Encouragement of Human Rights and Fundamental Freedoms” (1996).
16
unfounded.66 It also compensated the victims in kind,67 albeit the fact that the High Court

and Court of Appeal ruled that there were no violations.68

Considering the foregoing analyses, the application of all the above-cited international

jurisprudence of this court and other Courts, the Respondent submits that the State of

Rantania did not violate the African Charter and other relevant International Instruments

since it ensured that the omia people and child workers were protected from violations

committed by the MD Ltd.

C) . RANTANIA DID NOT VIOLATE THE AFRICAN CHARTER AND OTHER

RELEVANT HUMAN RIGHTS INSTRUMENTS BY OVERTHROWING AND

SUBSEQUENTLY DETAINING PRESIDENT O’KELLO.

THE LAWFUL DETENTION OF PRESIDENT O’KELLO

The Respondent recognizes that ‘Every individual has the right to liberty and to the

security of his person’.69 In this regard, only an arbitrary arrest and detention of persons is

prohibited.70

In this instant case, President O’Kello was under house arrest with access to legal

representation and medical care71. His detention is based on ongoing investigations into

alleged corruption, conducted in accordance with national law.

66 Compromis Para.7

67 Compromis Para 8

68 Ibid

69 African Charter, Article 6

70 Ibid

71 Compromis Para.17
17
 THE OVERTHROWING OF PRESIDENT O’KELLO WAS LAWFUL

The Respondent further contends that the act of Magui in ovethrowing President O’Kello

was not unconstitutional and does not violate the Africa Charter on Democracy,

Elections,and Governance (ACDEG).

Article 21(3) of the UDHR, whiles not explicitly talk about the overthrowing of a

government, states that, "the will of the people shall be the basis of the authority of

government,"72 implying that a government that does not represent the will of the people

lacks legitimacy.

Additionally, John Locke argues that if a government fails to protect the natural rights of

life, liberty, and property, the people have the right73 to overthrow it. He emphasizes that

government authority is derived from the consent of the governed. Rousseau states that

sovereignty belongs to the people. If a government acts against the general will, it loses

legitimacy and can be replaced by the people.74

The removal of President O’Kello was a necessary measure to ensure national security

and stability amid economic crisis and public unrest. O’Kello made reforms that increased

the cost of living, as some multinationals began to relocate to other countries and many

employees lost their Jobs. The people were unhappy with his policies which was why

around three thousand people took to the streets of the Capitak, Benta. 75 However,O’Kello

72 UDHR,Article 21(3)

73 John Locke's Second Treatise of Government (1690):*

74 *Jean-Jacques Rousseau's The Social Contract (1762):*

75 Compromis Para. 13
18
failed to address these issues. To this end,the Applicant submits that the actions were

taken in the best interest of the nation.

(D) WHETHER RANTANIA VIOLATED THE AFRICAN CHARTER AND OTHER

RELEVANT HUMAN RIGHTS INSTRUMENTS BY ACCESSING MR DITAN’S DATA ON

THE SOCIAL MEDIA PLATFORM, THE TRUTH, BY ARRESTING HIM, AND BY

CONVICTING HIM OF AND SENTENCING HIM FOR DISSEMINATING INFORMATION

LIKELY TO DISTURB PUBLIC ORDER.

The Respondent therefore submits that the State of Rantania did not unlawfully infringe

upon Mr Ditan’s right to freedom of expression. The respondent recognizes the Right to

Freedom of Expression in Article 9 of the African Charter provides that “every individual

shall have the right to express and disseminate his opinions within the law.”76 While

76 African Charter, Art.9

19
freedom of expression is as important as all other rights for the self- development of

individuals within a democratic society, it is not a right to be enjoyed without limits.

ln the case of Issa Konate V Burkina Faso 77, this Court emphasised that freedom of

expression is not an absolute right and under some circumstances, it may be subject to

some restrictions.

ln that judgment, this Court held that the terms 'within the law' in Article 9 (2) of the

Charter envisage the possibility where restrictions may be put in place on the exercise of

freedom of expression provided that such restrictions are prescribed by law, serve a

legitimate purpose and are necessary and proportional as may be expected in a

democratic society.

The restriction was provided for by Law.

78
Article 30 of the Rantanian Criminal Act , states that: “Any person who disseminate

information that is likely to disturb public order commits an offence and is liable to

imprisonment for a term of no less than three (3) years and not more than five (5)

years”.

It was based on the violation of the above-mentioned provision that the High Court and

Court of Appeal convicted Mr.Ditan for disseminating information that is likely to disturb

public order.79

The restriction was necessary and proportionate

77 Lohé Issa Konaté Burkina Faso Application No. 004/2013

78 Rantanian Criminal Act (2010), Article 30

79 Compromis Para.18
20
A restriction is necessary and proportionate if it protects the rights of others, collective

security, morality and common interest or public interest or national interest.80

In this instant case, the arrest and conviction of Mr. Ditan were necessary to maintain

public order and national security. His actions constituted a clear violation of national law

(Article 30 of the Criminal Act).81

ACCESSING MR DITAN’S DATA ON THE SOCIAL MEDIA PLATFORM WAS

PROVIDED FOR BY LAW.

Article 13 of the AU Convention on Cyber Security and Personal Data Protection 82

provides that Processing of personal data shall be deemed to be legitimate where the data

subject has given his/her consent. This requirement of consent may however be waived

where the processing is necessary for the performance of a task carried out in the public

interest or in the exercise of official authority vested in the controller or in a third party to

whom the data are disclosed.

In this instant case, albeit the fact that Mr. Ditan did not give consent to the processing of

his date,this could be waved here because the access of his Date was necessary for the

performance of a task carried out in the public interest since his account was used to incite

violence which was a threat to national security.83

80 African Charter, Article 27(2)

81 Compromis Para.15

82 African Union Convention on Cyber Security and Personal Data Protection, Article 13

83 Compromis Para.15
21
 RELIEFS SOUGHT

For the foregoing reasons, The State of Rantania, as the Respondent, respectfully

requests the Court to adjudge and declare that:

• It lacks personal jurisdiction to hear this matter and the matter concerning the

overthrowing, arrest and detention of O’Kello, the Omia people and the child workers, are

inadmissible for failure to exhaust local remedies.

• Rantania has the sovereign right to withdraw its Article 34(6) declaration and its efforts to

address human rights concerns through national mechanisms.

• The overthrowing of O’Kello was done in the interest of the Public and it is therefore not a

violation of the African Charter and other relevant international instruments

• The arrest, conviction and Sentencing of Mr.Ditan is not a violation of the African Charter

and other relevant International Instruments.

22
Counsel for the Respondent

30th June, 2024.

23