The ECOWAS Court has dismissed a suit brought by a retired Togolese military officer, Mr. Fidegnon Frederic Mado, who alleged the violation of his right to work by the Republic of Togo, on the ground that the alleged violation took place before the adoption of the 2005 Supplementary Protocol that granted the Court its human rights jurisdiction.
In the judgment delivered Wednesday 30th March 2022 during its ongoing external session in Accra, Ghana, the Court noted that in granting its human rights jurisdiction, there was no specification in the Supplementary Protocol of 19th January 2005 allowing the Court to act retroactively in cases where the alleged human rights violation took place before the 19th January 2005 provisional entry into force of the Protocol.
In the decision, which was read by Justice Januaria Silva Moreira Costa, the Court noted that the facts alleged by the applicant occurred between April 1993, December 1994 and March 1996, a period before the legal attribution of human rights jurisdiction to the Court.
The Court relied on Article 28 of the Vienna Convention of Law of Treaties where the principle of non-retroactivity determining jurisdiction ratione temporis is enshrined. It added that the relevant date for the purpose of establishing jurisdiction by reason of time is, in principle, the date of entry into force of the Convention and its protocols for the respective contracting parties.
While the Court acknowledged that although the matter falls within its jurisdiction, it ‘considers that it does not have jurisdiction rationale temporis to hear the instant case and must therefore dismiss it.”
The Court therefore ordered both parties to bear their costs.
In the suit, the Applicant through his Counsel, Mr. Claude Kokou Amegan, alleged the violation of his human rights by agents of the State in April 1993 when he was arrested, beaten and handcuffed in order to obtain information about his alleged involvement in the attempted coup of March 1993.
The applicant claimed to have been detained and tortured between April 1993 and December 1994 and that in March 1996, he was notified of his retirement from the Army based on a disciplinary procedure held in March 1993.
The Applicant relied on the provisions of Article 21 paragraphs 1 and 2 of the Togolese Constitution, the stipulations of Articles 4 and 5 of the African Charter on Human and Peoples’ Rights, Article 5 of the Universal Declaration of Human Rights, Articles 7 of the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
He therefore asked the Court to order the State of Togo, to inter alia, make reparation for the damage suffered; rehabilitate the Applicant by paying his salary for the period of his detention and order the Togolese Republic to pay him the sum of one hundred million (100,000,000) CFA as damages.
In response, the Respondent State invoked the lack of jurisdiction of the court to hear the case, arguing that the issue concerns the legality of administrative acts citing Decision No. 96-097/ MIN.DEF.NAT of 24th February 1996 on retirement for disciplinary reasons as proof of Applicant’s guilt.
The Respondent through its Counsel, Mr Bawa Tazo, contended that the decision of the Minister of Defence is an administrative act according to its Law No. 81-10 of 23 June 1981 and that the procedure before the Chamber of administration of the Court of Appeal of Togo, provides for an appeal against any administrative decision.
He added that only the chamber has the jurisdiction to decide on the legality of an administrative act.
He noted that the Applicant did not appeal to the administrative Chamber, which has responsibility within a time frame to decide on the legality of decisions taken by the Minister and only doing so 20 years later. In conclusion, the Respondent argued that the Applicant cannot directly appeal to the ECOWAS Court of Justice for violation of his rights.
Also on the panel of the Court for the case were Justices Edward Amoako Asante, (presiding) and Gberi-be Ouattara, Member.
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