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 RESPONDEN

RESPONDENT GENERAL PART

Contents
INDEX OF AUTHORITY.................................................................................................... III

INDEX OF ABBREVIATION .................................................................................................... XII

STATEMENT OF JURISDICTION.......................................................................................... XIV

THE RIGHT TO STANDI......................................................................................................... XIV

ADMISSIBILITY ........................................................................................................................XV

JUSTICIABLITY ...................................................................................................................... XVI

SUMMARY OF ISSUE.................................................................Error! Bookmark not defined.

STATEMENT OF FACTS ........................................................................................................ XIX

SUMMERY OF ARGUMENT................................................................................................XXIII

MERIT ............................................................................................................................................ 1

THERE IS NO VIOLATION OF THE AFRICAN CHARTER AND OTHER RELEVANT

TREATIES WITH RESPECT TO CIRCUMSTANCES LEADING TO THE DETENTION
PERSONS AND THE CONDITIONS UNDER WHICH THEY ARE DETAINED. ................... 1

The arrest and detention of suspected members of young panthers group were not arbitrary and
does not violate African charter and other relevant treaties. ....................................................... 1

Justification for restriction .......................................................................................................... 2

Prescribed by law ................................................................................................................. 2

Necessary ............................................................................................................................. 3

To protect national security and public order ...................................................................... 4

Pre-trial detention and remand of members of young panthers group were justified for a
legitimate purpose, since the likelihood exist that the accused would abscond or non-
cooperation .................................................................................................................................. 6

Kuntakinte has not violated the right of a person to be brought promptly before a court and
tried within a reasonable period .................................................................................................. 7

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RESPONDENT GENERAL PART

Kuntakinte has not violated its duty to respect the right to prohibition against torture and
inhuman or degrading treatment or punishment, ........................................................................ 8

Kuntakinte has not violated OAU refugee convention as the members of young panthers are
not entitled for protection under OAU refugee convention ........................................................ 9

REFUSAL TO REGISTER NUGAL DOES NOT VIOLATE AFRICAN CHARTER AND

OTHER RELEVANT TREATIES ............................................................................................... 10

Justification ............................................................................................................................... 11

Prescribed by law ............................................................................................................... 11

Protection of public moral and order ................................................................................. 11

Necessary in a democratic society ..................................................................................... 13

The objectives of the NUGAL were contrary to section 17(2) (a) of the Societies Act as it is
unlawful and prejudicial to good order or morality .................................................................. 13

The refusal to register NUGAL is justified as the objectives of the association were unlawful
and prejudicial to good order and morality ............................................................................... 14

THERE IS NO VIOLATION OF AFRICAN CHARTER AND OTHER RELEVANT

TREATIES IN RESPECT OF TROKOSI CUSTOM ................................................................... 14

The kuntakinte has taking necessary measures toward abolition of the trosoki custom ........... 14

KUNTAKINTAKINTE HAS NOT VIOLATED ANY OF ITS OBLIGATION IN RESPECT OF

MIGRANTS.................................................................................................................................. 15

Kuntakinte complied with its obligation in respect of migrants ............................................... 15

Kuntakintes obligation for protection of national security ...................................................... 16

PRAYER FOR RELIEF ............................................................................................................... 18

II
 RESPONDENT GENERAL PART

INDEX OF AUTHORITY

SHORT FORM FULL CITATION

UNDER FOOT
NOTES
INTERNATIONAL
TREATIES
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)
African childrens African Charter on the Rights and Welfare of the Child Organization of African Unity
charter (OAU), African Charter on the Rights and Welfare of the Child, 11 July 1990,
CAB/LEG/24.9/49 (1990)
African court Protocol to the African Charter on Human and Peoples Rights on the Establishment of
protocol 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
African Womens Protocol to the African Charter on Human and People's Rights on the Rights of Women
Protocol 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
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
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

III
 RESPONDENT GENERAL PART

December 1990, A/RES/45/158

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
OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU
Convention 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
Vienna Convention Vienna Convention on the Laws of Treaty, Vienna, Austria, 1969.
DOMESTIC LAW
Criminal and Other 1969 Criminal and Other Offences Act of the Republic Kuntakinte
Offences of
Kuntakinte
Kuntakinte The 1984 Republic of Kuntakinte Constitution
constitution
Societies Act The Republic of Kuntakinte Societies Act

BOOKS and
ARTICLES
Aoife Nolan and The Justiciability of Social and Economic Rights: An Updated Appraisal(2009
others
Asbjorn Eide & Asbjorn Eide& Allan Rosas, Economic, Social and Cultural Rights: A Universal
Allan Rosas Challenge
De Zayas De Zayas Human rights and indefinite detention international review of the Red Cross
vol. 87 no_857 March 2005
Handbook of Handbook of international standards on pretrial detention procedure, American Bar
international Association.( 2010)
standards on pretrial
detention procedure

IV
 RESPONDENT GENERAL PART

International International Seminar on Prison Conditions in Africa, Kampala, Uganda (Sept. 19-21,
Seminar on Prison 1996), Kampala Declaration on Prison Conditions in Africa.
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 Koch The Justiciability of Indivisible Rights Nordic Journal of International law
Justiciability of (2003)
Indivisible Rights
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)
M. Craven, M. Craven, The Committee on Economic, Social and Cultural Rights in A. Eide 2nd
ed., (2001), Kluwer Law International, The Netherlands
Marc Henzelin and Marc Henzelin and Heloise Rordorf When Does the Length of Criminal Proceedings
Heloise Rordorf Become Unreasonable According to the ECtHR? 2007
Megan and others Megan A .yasenchak, Jenifer giglio, and Margaret Paxton National Security and Human
Rights June 29 2006 Russian federation
Miriam Gani Miriam Gani, Penelope Mathew: Fresh perspectives on the war on terror (2001)ANU E
Press
Mr. Louis Joine 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 Joine
E/CN.4/Sub.2/1990/29
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).

V
 RESPONDENT GENERAL PART

P Ruddock P Ruddock, A New Framework Counter-Terrorism and the Rule of Law (2005) 16
august
Reid, A Reid, A Practitioners Guide to the European Convention of Human Rights, Sweet and
Maxwell, 1998 1 Oct. 2004
Trestle Trestle, Human Rights in Criminal Proceedings, (Oxford University Press, 2005)
Zimbabwe Youth Zimbabwe Youth Council (2014) Harmful Cultural and Social Practices Affecting
Council Children: Our Collective Responsibility
Resolution
OHCHR Migration and Human Rights Other International Standards; OHCHR; see:
International www2.ohchr.org/english/issues/migration/
Standards Task force/standards.htm.
Principles and Best Inter-American Commission on Human Rights (IACHR), Resolution 1/08, Principles
Practices 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 Rules of Procedure of the African Commission on Human and Peoples' Rights Adopted
ACHPR 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 Resolution of the UN General Assembly on Protection of Migrants (2004).

on Protection of A/RES/59/194.
Migrants
UNGA resolution UNGA Body of Principles for the Protection of All Persons under Any Form of
Principles for Detention or Imprisonment Adopted by General Assembly resolution 43/173 of 9
Protection for December 1988
persons under
detention
GENERAL

VI
 RESPONDENT GENERAL PART

COMMENT
ESCR
General comment Draft general comment no. 9: the domestic application of the covenant substantive
No. 9 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 Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-
No. 20 Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2) U.N. Doc.
E/C.12/GC/20 (2009
HRC
General Comment Human Rights Committee Against Torture, General Comment 2, Implementation of
No 2 article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007). 5 -23
November 2007
General Comment Human Rights Committee, General Comment 4, Article 3 (Thirteenth session, 1981),
No 4 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 General Comment No. 5 Article 4 (Derogation of rights) Adopted at the Thirteenth
No 5 Session of the Human Rights Committee, on 31 July 1981 , HRI/GEN/1/Rev.9 (Vol. I)
General Comment Human Rights Committee, General Comment 7, Article 7 (Sixteenth session, 1982),
No 7 Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 7 (1994).
General Comment Human Rights Committee, General Comment 8, Article 9 Humane Treatment of
No 8 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).
General Comment Human Rights Committee, General Comment 9, Article 10 Humane Treatment of
No 9 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).

VII
 RESPONDENT GENERAL PART

General comment UN Human Rights Committee (HRC), CCPR General Comment No. 13: Article 14
no. 13 (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 General Comment No. 15; Human Rights Committee; 1986
No 15
General Comment Human Rights Committee, General Comment 17, Article 24 (Thirty-fifth session, 1989),
No 17 Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 23 (1994).
General Comment Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh
No 18 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 Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N.
No 29 Doc. CCPR/C/21/Rev.1/Add.11 (2001).
General Comment General comment no 32 Report of the Special Rapporteur on the rights to freedom of
No 32 peaceful assembly and of association UN general assembly A/HRC/20/27
Cases
Cases from
ACHPR
Alhassan Abubakar ACHPR, Alhassan Abubakar v. Ghana, Communication No. 103/93, and decision
v. Ghana adopted during the 20thsession, October 1996, paras. 9-10

Anuak justice Anuak justice council v. Ethiopia ACHPR (2005) Communication 299/2005
council v. Ethiopia
Article 19 v Eritrea Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007),

Chambala v. Zambia Chambala v. Zambia,CCPR/C/78/D/856/1993

Huri-Laws v. ACHPR, Huri-Laws (on behalf of the Civil Liberties Organization) v. Nigeria,
Nigeria Communication No. 225/98, and decision adopted during the 28th Ordinary Session, 23
October 6 November 2000, paras. 43-44

VIII
 RESPONDENT GENERAL PART

Interights v Eritrea Interights v Eritrea and Ethiopia (2003) AHRLR 74 (ACHPR 2003
and Ethiopia
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 A. and others v. the united kingdom Application no. 3455/05 Judgment Strasbourg 19
United Kingdom February 2009 Human Rights Committee
Breinesberger and Breinesberger and Wenzelhuemer v Austria (decision), No. 46601/07, 27 November
Wenzelhuemer v 2012
Austria

Buldashev v Russia Buldashev v Russia, No. 46793/06, 18 October 2011

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
Hertzberg v. Finland Hertzberg and Others v. Finland, U.N. Doc. CCPR/C/15/D/61/1979 (2 April 1982).
Hill v. Spain Hill v. Spain, Communication No. 526/1993
Kindler v. Canada Kindler v. Canada ICCPR/C/48/D/470/1991, 5 November 1993
McFarlane v Ireland McFarlane v Ireland (Grand Chamber), No. 3133/06, 10 September 2010
McLawrence v. McLawrence v. Jamaica, CCPR/C/60/D/702/1996
Jamaica
Sudrez de Guerrero Sudrez de Guerrero v. Colombia Case No. 45/1979, U.N. Doc. CCPR/C/15/D/45/1979
v. Colombia (1982) Human Rights Committee
Todorov v Ukraine Todorov v Ukraine, No. 16717/05, 12 January 2012
Toonen v. Australia Toonen v. Australia, Communication no. 488/1992, U.N. Doc CCPR/C/50/D/488/1992
(1994) Human Rights Committee
Other Legal

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Document
ACHPR Principles African Commission on Human and Peoples' Rights. 2003. Principles and Guidelines on
and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. Banjul: African Commission on
the Right to a Fair Human and Peoples' Rights.
Trial
Council of Europe Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the
Recommendation Conditions in which it takes
place and the provision of safeguards against abuse
HRC Human Rights Committee, Concluding Observations: Zimbabwe, CCPR/C/79/Add.89
Concluding (1998)
Observations
Principles and Principles and guidelines on the implementation of economic, social and cultural rights
guidelines on the in the African charter on human and peoples rights, African commission on human and
implementation of peoples rights
economic, social and
cultural rights
Report of the Report of the Working Group on Arbitrary Detention, A/HRC/22/44, 24 December
Working Group on
Arbitrary Detention
HRC
Seven reasons why Change of Subject: Seven reasons why homosexuality is immoral, and seven answers
homosexuality is http://blogs.chicagotribune.com/news_columnists_ezorn/2007/03/seven_reasons_w.html
immoral and seven
answers
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 Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United
rules 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

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 RESPONDENT GENERAL PART

on the Prevention of Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September
Crime and the 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990).
Treatment of
Offenders

UN Body of United Nations Body of Principles for the Protection of All Persons under any Form of
Principles for the Detention or Imprisonment 43/173 of 9 December 1988
Protection of Persons
under Detention
UN Congress on the Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Prevention of Crime Offenders, Havana, 27 August September 1990
and the Treatment of
Offenders
UN Special Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of
Rapporteur on the association A/HRC/20/27 21 May 2012
rights to freedom of
peaceful assembly
and of association

XI
RESPONDENT GENERAL PART

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

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RESPONDENT GENERAL PART

RWB Right Without Border

UN United Nation
VCLT Vienna Convention on the Law of Treaty

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RESPONDENT GENERAL PART

STATEMENT OF JURISDICTION
1. The government of Kuntakinte has withdrawn the ratification of African court protocol.
The African court protocol has no any provision with respect to withdrawal of the states from the
ratification of the court protocol. Thus, article 54 of VCLT come into fore.
2. Pursuant to article 56 of Vienna convention on laws of treaties withdrawal of from a
treaty containing no provision regarding withdrawal is possible if it is established that the parties
intended to admit the possibility of denunciation or withdrawal. The respondent submits that at
the time of ratification the parties have intended to admit the possibility of withdrawal and the
nature of the protocol by itself are implies the right of withdrawal or denunciation.1 Thus, the
court has no jurisdiction.
3. However, the respondent also submits that in the event found that the withdrawal was
impossible the court shall rule over its jurisdiction.

THE RIGHT TO STANDI

4. Though the commission has the right to bring the case before the African court pursuant
to article 5 (1) the commission lacks the right to locus standi in respect of this specific case.
5. In the absence of the above procedures the African commission cannot directly refer the
communication made by non-governmental organization. The respondent strongly argue that
referral by commission of a case brought before it against the respondent state without having
followed the procedures required to refer the communication made by non-states is a backfire
against the state which did not made a declaration under article 34(6) of the african court
protocol.
6. Pursuant to rule 118 (1) of rule and procedures of the commission the commission may
refer the case brought before it If the Commission has taken a decision with respect to a
communication submitted under Articles 48, 49 or 55 of the Charter and considers that the State
has not complied or is unwilling to comply with its recommendations in respect of the
communication within the period stated in Rule 112(2).
7. The commission has not taken any decision with respect to communication submitted to
it by RWB and there is no fact which shows Kuntakinte has not complied or unwilling to comply

1
VCLT Article 56 (a)

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with the recommendation of the commission in respect of the communication within a period
provided.
8. Alternatively, unlike the communication made by member states to charter, a
communication made by non-states and non-member state must pass through additional
procedures in order to be considered by the commission. The procedure requires that, the
commission shall transmit the communication to members of the Commission, and then the
members shall indicate which communications should be considered by the Commission. And
finally, communication shall be considered by the Commission if a simple majority of its
members so decide.

ADMISSIBILITY
9. Pursuant article 6 of African court protocol the Court shall rule on the admissibility of
cases taking into account the provisions of article 56 of the Charter. Articles provided seven
conditions that, under normal circumstances, must be fulfilled for a communication to be
admissible. These requirements are cumulative. In the case Interights v Eritrea and Ethiopia the
commission also emphasized on the fulfillment of those requirements for the case to admissible
before the court.2 In the case at hand the elements of the case are not admissible since some of
the requirements are still missing.
I.With respect to the conditions under which the persons were detained, the case does not full
fill the requirement for admissibility since it was based exclusively on news discriminated
through the mass media and unfounded reports of NGO. The reports linking the government
of Kuntakinte to various tactics of extracting information from those who capture was
obtained from journalist who overheard the statement of army officer drinking at the bar.3
This kind of claims are rendered inadmissible within the meaning the meaning of article 56
(4) of the charter.

Additionally, local remedy was not exhausted. Right without border approached the high
court to challenge the constitutionality of the treatment of prisoners at PDF other related

2
Interights v Eritrea and Ethiopia para 74.
3
Fact sheet para 17

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RESPONDENT GENERAL PART

issues.4 However, the high court rejected the case for reasons of national security. The court
of appeal also rejected on the same bases. But, still there is chance to appeal before Supreme
Court since the constitution of Kuntakinte clearly provides that the Supreme Court is the final
court on all matters.5 However, RWB did not pursue a further appeal to the Supreme Court.6

II.With respect to the second issue, the local remedies were not exhausted. Clear from the facts
of the case RWB approached the high court the high court to challenge the constitutionality
of refusal to register NUGAL.7 However, the application is pending before high court and
there was no further appeal by RWB. The RWB must exhaust all local remedies.
III.With respect to third issue there was no any local remedy was sought. The court cannot be
used as first instance court and therefore the applicant must seek remedy at the first place
from domestic courts.
10. In Landmark case between Anuak justice council v. Ethiopia8 the commission held that
failure to exhaust local remedies render the Applicant's claim inadmissible. Generally, it is our
submission that the claims of the applicant are not admissible; since there is non-exhaustion of
available, effective and sufficient of local remedies. Therefore, the claim must be rendered in
admissible.

JUSTICIABLITY
11. Some of the elements of the case are not justiciable as they involve socio economic and
cultural rights. Economic, social and cultural rights has observably been due to the general
perception of these rights are programmatic, having to be realized gradually, and of a more
political nature and not capable of judicial enforcement.9 The enforcement of these rights is
programmatic and costly, therefore dependent on the availability of state resources.10

4
Fact sheet para 18
5
Fact sheet para 6
6
Fact sheet para 18
7
Fact sheet para 22
8
Anuak justice council v. Ethiopia Para 58, 62
9
M. Craven, P. 470
10
Sesana and others v. Attorney General Para.138

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12. Although, the preamble to African charter makes clear that this rights are interrelated and
indivisible it is undeniable fact that there are some significant differences of emphasis between
the typical civil rights on the one hand and some of the economic, social and cultural rights on
the other by the states.11 Their implementations are not in line with the very structure and
functional capacity of the courts since it is not possible to give immediate remedy.
13. Moreover, ICESCR does not have any provision which allows the complaints of
violations of socio-economic rights. Although these mechanisms are later included by the
adoption of the optional protocol to the ICESCR Kuntakinte has not accepted any of the
individual complaint mechanisms allowed for under these treaties.12 Thus, the elements of the
case which contains socio economic cultural right are not justiciable and not entitled to judicial
remedy.

11
AsbjornEide& Allan Rosas, P. 5
12
Fact sheet para 9

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QUESTION PRESENTED
The republic of kuntakinte respectfully requests the honorable court to determine:

I. Whether Kuntakinte violated the African charter and other relevant treaties in respect
of the circumstances leading to the detention of Malenkese that believed to have links
with young panthers group, and the conditions under which they are detained.

II. Whether Kuntakinte refusal to register NUGAL violates African charter and other
relevant treaties.

III. Whether Kuntakinte violated African charter and other relevant treaties in respect of
the abolition of the trokosi custom of the Bamileke people.

IV. Whether kuntakinte violated any obligation with respect to migrants.

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STATEMENT OF FACTS
BACKGROUND

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

A developing country in West Africa, Kuntakinte, is located along the Gulf of Guinea and the
Atlantic Ocean. With the area of 250 465 km2, Kuntakinte is bordered by the Republic Malinke
in the west, the Republic of Songhai in the north, the Republic of Dagomba in the east and the
Gulf of Guinea and Atlantic Ocean in the south. A multicultural nation, Kuntakinte has a
population of approximately 70 million, spanning a variety of ethnic, linguistic and religious
groups.
15. The Republic of Kuntakinte is divided into three regions: the Bamileke region in the
west, bordering the Republic of Malinke; the Oyo region in the north, bordering the Republic of
Songhai; and the region of Zinza in the east, on the border with Dagomba. The Bamileke, Oyo
and Zinza tribes inhabit the Republic of Kuntakinte. There are two major religions in Kuntakinte:
Christianity, mainly practiced by the inhabitants of the Zinza region, and Islamic, predominantly
practiced by the inhabitants of the Oyo region. However, the Bamileke region of the country has
remained traditional and has resisted any attempt to inculcate Christianity and Islam into the
region.

THE TROKOSI CUSTOM

16. Trokosi is a ritual culture practiced by Bamilike community. The government trying to
abolish this custom as a result there has been a steady decline in the number of trokosi cases over
the last decade as a result of the governments engagement with the traditional leaders in the
Bamileke region regarding this issue.

LEVEL OF DEVELOPMENT

17. According to the UNDP Development Index Report released in 2014, Kuntakinte is
ranked 110 out of 186 countries.
18. Following alternating military and civilian governments since independence, in June
1985 the Kuntakinte military government gave way to the Fifth Republic of Kuntakinte after
presidential and parliamentary elections were held in late 1984. By Winning elections Professor
Adonai of The Equal Distribution of Economic Resources Alliance come to power.

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THE 1984 CONSTITUTION

19. 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 Supreme Court is the final court
on all matters. The Constitution also provides for military courts. 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. This decision may be appealed to court of
appeal.
20. Section 29 of the Constitution provide for a mechanism of applying before the high court
for individual redress. 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). Section 8 of the Constitution
provides that In addition to this Constitution, the Laws of Kuntakinte consist of Acts of the
National Assembly, any orders, rules, regulations by a person in authority, customary law and
the Shari a.

SECTION 246 OF THE 1969 CRIMINAL AND OTHER OFFENCES ACT

21. Section 246 of the 1969 Criminal and Other Offences Act of Kuntakinte, criminalizes
conducts against the order of nature. There are few prosecution cases based on this section for
same sex relation. No one has been convicted under this section in the last six years (2010-2015).
Public debate on this issue has shown overwhelming support in favour of maintaining this
section. About 93 per cent of Kuntakintes predominantly Christian and Muslim population
support the criminalization of same-sex relations.

MEMBERSHIP TO INTERNATIONAL ORGANIZATION AND HUMAN RIGHT

TREATIES

22. The Republic of Kuntakinte is a member of the United Nations (UN) and the African
Union (AU). It is also a party to the certain human rights treaties. Kuntakinte also ratified the
Protocol to the African Charter on the Establishment of an African Court on Human and
Peoples Rights (African Court Protocol) on 1 August 2010. Kuntakinte did not make a
declaration under article 34(6) of the African Court Protocol.

XX
RESPONDENT GENERAL PART

WITHDRAWAL FROM AFRICAN COURT PROTOCOL

23. After parliamentary debate on rifting president Adonais decision to withdraw

Kuntakintes ratification of African court protocol the parliament enacted African court protocol
renunciation act. A formal communication in this regard was sent to the African union
commission

THE YOUNG PANTHERS

24. The young panthers are a local youth group in Malinke which rise up and demand change
and an end to Bobos government. The leaders of the Young Panthers together with hundreds of
young people stormed the local government office in the region, burnt it down and beheaded five
senior employees. This group has been branded as a terrorist organization by Malinke
government.

APPROACH OF KUNTAKINTE TOWARD MIGRANTS FROM ITS NEIGHBOURS

25. Since the early 1990s, the Republic of Kuntakinte has adopted an open-arms approach
towards migrants from its neighboring countries. It has relaxed the enforcement of its
immigration laws to absorb the influx of migrants in order to complement its weakening
workforce. Most migrants have settled in well.

THE DIRECTIVE OF PRESIDENT ADONAI

26. On 24 December 2014, president Adonai made a directive requiring All Malinkese
residing in Kuntakinte without valid legal status to legalize their stay by obtaining work and
residence permits until April 1 2015. The directive was publicized both television and radio
stations and published in all major newspapers.

THE ARREST OF SUSPECTED MEMBERS OF YOUNG PANTHERS GROUP

27. In support of the global fight against terrorism and in solidarity with the government of
Malinke to fight terrorism, the government of Kuntakinte arrested people believed to have links
with the Young Panthers group.

XXI
RESPONDENT GENERAL PART

RIGHTS WITHOUT BORDER

28. A local NGO, Rights without Borders (RWB), approached the High Court and court of
appeal in Kuntakinte on 5 June 2015 to challenge the constitutionality of the treatment of
prisoners at PDF and to petition the Court to close PDF. Both Courts rejected the claim for
reasons of national security. RWB did not pursue a further appeal to the Supreme Court.

THE NUGAL

29. National union of gay and lesbians of kuntakinte is an association aimed at struggle for
the rights of gay and lesbian. In February 2012 they applied to and in July 2012, the Companies
and Societies Registry rejected their application on the basis that the Constitution of Kuntakinte
did not recognize homosexuals and that the objectives of the organization were contrary to
section 17(2)(a) of the Societies Act.
30. 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.

XXII
RESPONDENT GENERAL PART

SUMMERY OF ARGUMENT
The republic of Kuntakinte submits that:

A. THERE IS NO VIOLATION OF THE AFRICAN CHARTER AND OTHER

RELEVANT TREATIES WITH RESPECT TO CIRCUMSTANCES LEADING TO THE
DETENTION PERSONS AND THE CONDITIONS UNDER WHICH THEY ARE
DETAINED.
31. ICCPR and African charter permits state parties under closely stated conditions to restrict
or condition to varying degrees the exercise of the rights enshrined in the covenant. It recognizes
the power of State Parties to limit, in exceptional circumstances, certain rights otherwise
protected.
32. The arrest and detention of suspected members of young panthers group were not
arbitrary and does not violate African charter and other relevant treaties. Since the arrest and
detention were made according to the order of the government of Kuntakinte it is provided by
domestic law and justified within the exception of article 9 of ICCP and article 6 of African
charter
33. With respect to condition under which the persons were detained there is no any evidence
which demonstrate human right violation. The reports linking the government of Kuntakinte to
various tactics to extract information were unfounded and groundless. Allegation based on
unfounded and information discriminated on media rendered in admissible by AU charter as
well.
B. REFUSAL TO REGISTER NUGAL DOES NOT VIOLATE AFRICAN
CHARTER AND OTHER RELEVANT TREATIES
34. Right to association is not absolute right. It can be limited under certain circumstances.
Under ICCPR the right to association can be subject to certain restrictions, which are prescribed
by law and which are necessary in a democratic society in the interests of national security or
public safety, public order. In addition, according to UN special reporteur this right can be
restricted when a pressing social need arises that justifies states right for the interference.
35. About 93 percent of Kuntakintes Christian and Muslim population against the act of the
same sex relation. NUGAL is the association aimed at promotion of same sex relation. Thus, the
refusal to register was according to the law and aimed at protecting public order and moral. It
does not violate African charter and ICCPR as it justified within the exception.

XXIII
RESPONDENT GENERAL PART

C. THERE IS NO VIOLATION OF AFRICAN CHARTER AND OTHER

RELEVANT TREATIES IN RESPECT OF TROKOSI CUSTOM
36. The trokosi custom is the practice that a community inherited from their ancestors and
deep rooted culture. It takes time, effort and resource to change long standing attitude in the
minds of society. While the ratification of treaties and the adoption of laws make available a
sound legal basis, it is not always the only, best, or most effective way to address situations of
cultural diversity specially those harmful ones.
37. The government is working toward the abolition of this culture and there has been a
steady decline in the number of trokosi cases over the last decade as a result of the governments
engagement with the traditional leaders in the Bamileke region regarding this issue.
D. KUNTAKINTAKINTE HAS NOT VIOLATED ANY OF ITS OBLIGATION IN
RESPECT OF MIGRANTS
38. Kuntakinte has adopted an open-arms approach towards migrants from its neighboring
countries. It has relaxed the enforcement of its immigration laws to absorb the influx of migrants.
Most migrants have settled in well. Thus, the respondent submits it used best endeavors to
receive refugees and secure their settlement. Kuntakinte has also granted sufficient time for the
refugees to legalize their stay and comply with rules. Thus, Kuntakinte complied with its
obligation under OAU refugee convention.

XXIV
 RESPONDENT SUBSTANTIVE PART

MERIT

1. THERE IS NO VIOLATION OF THE AFRICAN CHARTER AND OTHER

RELEVANT TREATIES WITH RESPECT TO CIRCUMSTANCES LEADING TO THE
DETENTION PERSONS AND THE CONDITIONS UNDER WHICH THEY ARE
DETAINED.
1. The ICCPR, African charter and other international human right instruments and
internationally accepted principles contains various requirement norms that compel the State to
refrain from or to take positive action in order to guarantee the enjoyment of the rights. However,
also, in all catalogs of basic rights, these instruments provides the possibility of restricting rights
for reasons of overriding general public interest or overriding interests of others, thereby
circumscribing the legal ambit of individual right and freedom.

1.1. The arrest and detention of suspected members of young panthers group were not
arbitrary and does not violate African charter and other relevant treaties.
2. Each article of the ICCPR starts with a general statement of the right concerned.
However, these statements cannot be claimed in general and at any time as they followed by
limitations or restrictions where applicable. In addition, article 4 of ICCPR allows for derogation
or the temporary and limited suspension of rights in time of public emergency which threatens
the life of the nation, provided that those rights are not abridged on a discriminatory basis. In
addition to this, Article 12(3) has a limitation clause allowing for restrictions on the right to
liberty of movement and the freedom to choose a residence when it is necessary to protect
national security, public order, public health or morals, and the rights and freedoms of others.
Pursuant to article 9 of ICCPR a person may be deprived of his liberty on such grounds and in
accordance with such procedure as are established by law. In the same token African charter
under article 6 a person may be deprived of his freedom for reasons and conditions previously
laid down by law.

3. ICCPR and African charter permits state parties under closely stated conditions to restrict
or condition to varying degrees the exercise of the rights enshrined in the covenant. It recognizes
the power of State Parties to limit, in exceptional circumstances, certain rights otherwise

1
RESPONDENT SUBSTANTIVE PART

protected. Thus, interference with a right is justified when the relevant domestic law provides for
such restriction.

4. In the case at hand Section 8 of the Constitution clearly provides that in addition to the
Constitution, the Laws of Kuntakinte consist of any orders, rules, regulations or other subsidiary
legislation made by a person or authority under a power conferred by this Constitution or any
other law.13 In support of the global fight against terrorism and in solidarity with the
government of Malinke, the government of Kuntakinte in February 2015 ordered the arrest of
members of young panthers group.14 The order of government is a law according to the section 8
of the constitution.
5. Therefore, since the arrest and detention were made according to the order of the
government of Kuntakinte it is provided by domestic law and justified within the exception of
article 9 of ICCP and article 6 of African charter. Thus, the arrest and detention were not
arbitrary. Thus, the limitation was based on the law.

1.2.Justification for restriction

1.2.1 Prescribed by law

6. Pursuant to article 9 (1) of ICCPR states that no one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established by law. African
charter under article 6 also provides that limitation is permissible if established by law.

7. Moreover, in General Comment 22 the HRC states limitations are permissible if they are
prescribed by law and are necessary to protect public safety, order, health, morals or the
fundamental rights and freedoms of others15 and justified as being necessary for that State
party for one of those purposes. Principle one to siracusa principle on limitation of rights also
allows restriction on the human right of a person if those limitations are provided for by national

13
Fact sheet para 7
14
Fact sheet para 16
15
HRC General comment no 22 para 36,

2
RESPONDENT SUBSTANTIVE PART

law of general application which is consistent with the Covenant and is in force at the time, the
limitation is applied.16

8. The third sentence of paragraph 1 of article 9 provides that no one shall be deprived of
his liberty, except on such grounds and in accordance with such procedure as are established by
law.17 Pursuant to this provision substantive grounds for arrest or detention must be prescribed
by law. Deprivation of liberty is unlawful if it is without such legal authorization. In
McLawrence v. Jamaica HC stated the principle of legality is violated if an individual is arrested
or detained on grounds which are not clearly established in domestic legislation.18 In the same
manner in the Chambala v. Zambia HC holds the opinion that continued detentions if it is
without an operative judicial order it is also unlawful.19

9. In the case hand the detention of the suspected members of young panthers was
committed according to the order of the government. Pursuant to section 8 of the constitution of
Kuntakinte in addition to this Constitution, the Laws of Kuntakinte consist of any orders, rules,
regulations or other subsidiary legislation made by a person or authority under a power conferred
by this Constitution.20 Thus, the grounds for detention were clearly established in the domestic
law.

1.2.2. Necessary
10. Pursuant to article 12 (3) of ICCPR right to liberty of a person may be subject to restrictions
except if they are provided by law, are necessary to protect national security, public order
(ordre public), public health or morals or the rights and freedoms of others.
11. According to principle two of siracusa principles on limitation of rights whenever a
limitation is required in the terms of the Covenant to be necessary, this term implies that the
limitation: (a) is based on one of the grounds justifying limitations recognized by the relevant

16
Siracusa principle 1 para 15
17
ICCPR article 9 (1)
18
McLawrence v. Jamaica, para. 5.5
19
Chambala v. Zambia, para. 7.3
20
Fact sheet para 7

3
RESPONDENT SUBSTANTIVE PART

article of the Covenant; (b) responds to a pressing public or social need; (c) pursues a legitimate
aim; and (d) is proportionate to that aim.21
12. In the matter at hand the respondent argue that the restriction on the right to liberty is
necessary within the meaning of article 12 (3) since it is based on the grounds justifying the
limitation recognized by the relevant article of the covenant i.e., article 12 (3); it responds to
pressing public need as it was in response to massive migration of people including those who
are suspected with terrorism and organized crime; pursues a legitimate aim of protecting a
citizens from actual or potential attack of terrorism, national security and public order; and
proportionate to pursues the objective it aimed as it was targeted only toward those group of
people which suspected to have link with the terrorist organization.
13. Therefore, arrest and detention of the suspected members of young panthers group was
necessary within the meaning of article 12 (3) of ICCPR and siracusa principle on limitation of
right and therefore based on justified ground to restrict the right of individuals.

1.2.3. To protect national security and public order

2. Since human rights are not absolute, is to view national security as a competing public
interest that may place some necessary and proportionate restriction on the exercise of a
particular human right.22
3. In international human-rights instruments, national security is an accepted reason to limit
some human rights. States have a responsibility to address terrorism, the legitimate combat
against terrorism, and other security considerations thus justifies derogation from the human
rights that provided under international instruments.

4. Detention occurs without charge or trial. As detention is preventive in that no

criminal offence has actually been committed, the detainee is not subjected to a charge, nor
afforded the opportunity of trial before a competent court.23 Detention is not banned
on principle under international rules.24 Preventive detention is not explicitly prohibited by the

21
Siracusa principle para 10
22
Miriam Gani, P. 70 P. 69
23
Mack on detention page 3
24
Mr. Louis Joined P. 29.

4
RESPONDENT SUBSTANTIVE PART

ICCPR. Whether preventive detention is a permissible deprivation of liberty depends on whether

it falls within the prohibition on arbitrary arrest and detention under Article 9(1) of the ICCPR.25

5. There is no universally accepted definition of international terrorism. Terrorism is

broadly defined as politically motivated violence perpetrated against noncombatant targets by
subnational groups or clandestine agents. A terrorist group is defined as a group which practices
or which has significant subgroups which practice terrorism.26 The compulsions of national
security create what is called Lincoln's Dilemma-should a government violate human rights to
preserve a nation's integrity or sacrifice integrity to protect human rights. Human rights are
violated in the process of fighting terrorism.27 An appropriate balance must be struck between,
on the one hand, the need to protect the community from terrorist activity, and on the other hand,
the maintenance of fundamental human rights and freedoms.

6. In the balance between liberty and security, security is invariably viewed as paramount. 28
According to literatures, security looms larger in this equation for a number of reasons. First,
security threats are not confined to national borders or interests, but have a global reach which is
acute in the context of terrorism law. Second, our capacity to enjoy freedom rests on security.
Security measures uphold the right to human security, which is the paramount human right.29 A
further objection to balancing relates to the assumption that higher levels of human rights
protection or due process necessarily will impede the effectiveness of law enforcement. To
promote maximum collective security we must sacrifice our civil liberties.30

7. In our case the leaders of the Young Panthers together with hundreds of young people
stormed the local government office in the region, burnt it down and beheaded five senior
employees.31 These facts make clear that the members of young panther group are terrorists. The

25
ICCPR Article 9(1)
26
https://www.fas.org/sgp/crs/terror/IB10119.pdf
27
Ibid
28
M Freeman, P. 48.
29
P Ruddock, P. , 113, 116-17.
30
Miriam Gani, P 70
31
Fact sheet para 12

5
RESPONDENT SUBSTANTIVE PART

arrest and detention of the members of terrorist group was is a measure of the government to
global fight against terrorism.

1.3. Pre-trial detention and remand of members of young panthers group were justified
for a legitimate purpose, since the likelihood exist that the accused would abscond or non-
cooperation

8. Remand may be granted under certain circumstances and release of person on bail is not
a principle under international law. Article 9 (3) of ICCPR stipulates that release may be subject
to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should
occasion arise, for execution of the judgment. Similarly, the contrary reading of the guidelines of
the African Commission on Human and Peoples Rights states that there is sufficient evidence
that deems it necessary to prevent a person arrested on a criminal charge from fleeing.32
9. Pre-trial detention may be ordered if there are reasonable grounds to believe that the
accused has been involved in the commission of the alleged offence, and there is a danger of
flight, commission of further serious offences, or that the course of justice will be seriously
interfered with if they are freed.33 The HRC has stated that, bail should be granted, except in
situations where the likelihood exists that the accused would abscond or destroy evidence,
influence witnesses or flee from the jurisdiction of the state party.34
10. In the case at hand the arrested persons were believed to have links with the Young
Panthers group. From the very beginning these people were fled into the Kuntakinte by
absconding from the government of Malinke. Therefore there is reason to believe that these
persons may abscond if they released on bail. Thus, since likelihood exist that the accused would
abscond the pre-trial and remand into the custody is justifiable.

32
ACHPR Principles and Guidelines on the Right to a Fair Trial, para. M (1) (e).
33
UN Basic Principle on the Prevention of Crime and the Treatment of Offenders, P.7 chapter 1, section C,
paragraph 2(b).
34
Hill v. Spain, para. 12.3.

6
RESPONDENT SUBSTANTIVE PART

1.4. Kuntakinte has not violated the right of a person to be brought promptly before a
court and tried within a reasonable period
11. The right of a suspect or an accused in criminal proceedings to be tried within a
reasonable time is guaranteed by the main international human rights conventions. Specifically,
the International Covenant on Civil and Political Rights10 (ICCPR) provides in Article 14(3)
(c) that, in the determination of any criminal charge against him, everyone shall be entitled to
the following minimum guarantees, in full equality: (c) To be tried without undue delay.
Similar provisions are provided by the African Charter on Human and Peoples Rights.35 Whilst
the formulation differs between the latters and the ICCPR, the meaning is the same: the length of
the proceedings is considered reasonable as long as there has been no undue delay.36
12. In the event of pre-trial detention, the above provisions state that a person arrested and
detained on a criminal charge is to be tried within a reasonable time. The criteria to assess the
reasonable time requirement in Article are associated with the length of investigation and trial.37
Moreover, the length of the proceedings must be assessed in the light of the circumstances of the
case and with reference to the complexity of the case.38 As a matter of principle, the more
complex the case is, the more latitude the State is granted at the outer limit of reasonable
duration for the proceedings.39
13. With regard to this, ECtHR dealt in a number of cases that the complexity of the case
may be assessed with reference to a number of factors such as: the number of accused or victims,
the number of counts/charges or the nature of the charges (seriousness) laid against the accused,
the volume of the case file and the number of documents, experts or witnesses to be examined,
the number of hearings held, the need for cooperation from the authorities of a third State and
even the number of pages of a judgment rendered.40

35
African Charter Article 7(1)(d)
36
Trestle, P. 135.
37
Marc Henzelin and Heloise Rordorf P. 80
38
McFarlane v Ireland para 140.
39
Marc Henzelin and Heloise Rordorf P.85
40
Kowalenko v Poland, para 77; Buldashev v Russia, para 109; Todorov v Ukraine, , at para 91 (referring in
particular to 160 hearings and a 200 pages long judgment);

7
RESPONDENT SUBSTANTIVE PART

14. Surprisingly, in Breinesberger and Wenzelhuemer the ECtHR found the length of the
proceedings for 7 years and 5 months across three levels of jurisdiction was reasonable,
principally on the basis of the complexity of the case.41
15. In similar manner in the case at hand the detainees are suspected for crime of terrorism
which manifestly complex. There is a huge number of accused from which 700 of them is now
detained in PDF.42 Moreover, as the crime initially was not committed in Kuntakinte there is a
need for cooperation of Malenkese authorities. Additionally, according to the facts of the case
some of the detainees were tried before six months.43 The proper appreciation of this fact reveals
that there is special reason for those who have tried after six months. In addition to this six
month time is very short time compared to the number of the accused persons. Thus, the period
was reasonable.

1.5. Kuntakinte has not violated its duty to respect the right to prohibition against
torture and inhuman or degrading treatment or punishment,

16. 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.
17. The reports linking the government of Kuntakinte to various tactics to extract information
were unfounded and groundless. The statement of the senior army officer who was drinking an
alcohol cannot be sufficient base to conclude that the government was employing such tactics.
Additionally, the government indefinitely suspended the officer who believed to have committed
those offences and the case is on pending trial.44 Thus, the government has taken necessary
measures by investigating and there is prospect of punishment if found the officer guilty.
18. Moreover, an allegation cannot be made merely based on the reporter of a single NGO
without having additional supportive evidences which prove the existence of such violation.
Therefore, the government of Kuntakinte has not violated the right to protection against torture
and inhuman and degrading treatment.

41
Breinesberger and Wenzelhuemer v Austria paras 3033.
42
Fact sheet para 16
43
Fact sheet para 16
44
Fact sheet para 17

8
RESPONDENT SUBSTANTIVE PART

1.6. Kuntakinte has not violated OAU refugee convention as the members of young
panthers are not entitled for protection under OAU refugee convention
19. Though the migrants fall could be defined as refugee within the meaning of article 1 of
the convention they are not entitled for the protection therein. As per article 1 (5) of the OAU
refugee convention The provisions of this Convention shall not apply to any person with respect
to whom the country of asylum has serious reasons for considering that: he has committed a
crime against peace, a war crime, or a crime against humanity as defined in the international
instruments drawn up to make provision in respect of such crimes;45 he committed a serious non-
political crime outside the country of refuge prior to his admission to that country as a refugee;46
he has been guilty of acts contrary to the purposes and principles of the Organization of African
Unity;47 he has been guilty of acts contrary to the purposes and principles of the United
Nations.48
20. As it can be clearly understood from the given facts there are more than 100,000
Malenkese who had fled into Kuntakinte as a result of the economic and political instability.49
Additionally, since the early 1990s, the Republic of Kuntakinte has adopted an open-arms
approach towards migrants from its neighboring countries. It has relaxed the enforcement of its
immigration laws to absorb the influx of migrants in order to complement its weakening
workforce.50 These facts show that Kuntakinte has good approach toward migrants. From
100,000 Malenkese who fled into the territory the government arrested 700 persons.51 i.e., only
those peoples which have believed to links terrorist group.
21. According to the facts of the case the member of young panthers group stormed the local
government office, burnt it down and beheaded five senior employees.52 Though they have
sufficient reason to believe that these individuals committed such offence, they would not take

45
Article 1 sub 5 (a)
46
Ibid sub 5(b)
47
Ibid sub 5 (c)
48
Ibid sub 5 (d)
49
Fact sheet para 12
50
Fact sheet para 13
51
Fact sheet para 16
52
Fact sheet para 12

9
RESPONDENT SUBSTANTIVE PART

the law into their hand; destroy public property and kill the officials. Their act is, an act of crime
against peace and humanity.
22. The acts of this group were crime against peace, crime against humanity, non-political,
contrary to the principles of AU as it condemns and rejects unconstitutional change of
government. Thus according to article 1 (5) of the convention the suspected and arrested
members of young panther group are not entitled to the protection of the OAU refugee
convention.

2. REFUSAL TO REGISTER NUGAL DOES NOT VIOLATE AFRICAN CHARTER

AND OTHER RELEVANT TREATIES
23. Pursuant to article 22 of ICCPR restrictions may be placed on the exercise of right to
association if prescribed by law and which are necessary in a democratic society and in the
interests of national security, public safety or public order (ordre public), the protection of public
health or morals; the protection of the rights and freedoms of others. In the same manner this
right is not without limitation also under African charter. Pursuant to article 10 (1) have the right
to free association provided that he abides by the law.53
24. According to article 4 of the International Covenant on Civil and Political Rights, the
right of peaceful assembly and the right to freedom of association are not absolute rights. It
makes clear that they can be subject to certain restrictions, which are prescribed by law and
which are necessary in a democratic society in the interests of national security, public safety or
public order (ordre public) and for the protection of public health or morals or for the protection
of the rights and freedoms of others.54 Moreover, according to UN special reporteur this right
can be restricted when a pressing social need arises and that justifies states right for the
interference.55
25. Therefore, since the right to association is not absolute international human rights law
allows restrictions to be imposed on rights, including the rights to freedom to form association.

53
African charter Article 10 (1)
54
HRC General comment no 32 para16
55
Ibid

10
RESPONDENT SUBSTANTIVE PART

2.1. Justification

2.1.1. Prescribed by law

26. Article 22 (2) of ICCPR permits restrictions which are prescribed by law and which are
necessary in a democratic society in the interests of national security, public safety or public
order (ordre public), the protection of public health or morals or the protection of the rights and
freedoms of others.
27. Interference with a right is justified when the relevant domestic law provides for such
limitation and when such law satisfies the requirement of the convention. Principle 1 of siracusa
principles on limitation of rights also provides that no limitation on the exercise of human rights
shall be made unless provided for by national law. 56 Thus, from the above provision and
principle it is clear that as long as the restrictions are provided in previous national or domestic
law and these restrictions are compatible with the requirements of the convention i.e., protection
of morals of others it is permissible some of the rights of individuals.
28. In the case at a hand section 17 (2) (a) of the societies act of the republic of Kuntakinte
imposes a restriction on the right to association of the individuals. The section provides 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 Kuntakintes society particularly Bamlike society.57
29. The objectives of the NUGAL were contrary to good order and morality in Kuntakinte Commented [A1]: Object

therefore they are contrary to section 17 (2) (a) of the societies act. Commented [A2]: Another mechanism of conjunction

30. Therefore the restriction is provided for by relevant national law i.e., section 17 (2) (a) of Commented [A3]: To sum up

the societies act, which aimed at protecting the morals of others recognized under the covenant.
Thus, the restriction was based on the justifying grounds and therefore there is no violation of the
right to association.

2.1.2. Protection of public moral and order Commented [A4]: Title to be added

31. Article 22 of ICCPR and article 10 African charter though provide for protection of the Commented [A5]: Changed

right to association it also provides for limitation on this right. Accordingly, the accepted Commented [A6]: They
Commented [A7]: Comma
56
Siracusa principle 1
57
Fact sheet para 21

11
RESPONDENT SUBSTANTIVE PART

principle on derogation of rights siracusa principle also states that, since public morality varies
over time and from one culture to another, provided that these limitations are essential to the Commented [A8]: Dot

58 Commented [A9]: This principle

maintenance of respect for fundamental values of the community. Additionally, the limitation
may be imposed based on the grounds of public order to ensure the functioning of society or
protect a set of fundamental principles on which society is founded.59
32. In Hertzberg and Others v. Finland, the HRC considered that it has to be noted, first, that Commented [A10]: Commas

public morals differ widely. There is no universally applicable common standard. Consequently,
in this respect, a certain margin of discretion must be accorded to the responsible national
authorities.60
33. In our case public debate on the issue of same sex relation has shown overwhelming Commented [A11]: Comma there was
Commented [A12]: And
support in favour of maintaining the section which criminalizes the same sex relation. Opinion
polls conducted in 2002 by the Kuntakinte Broadcasting Corporation (KBC) showed that about
93 per cent of Kuntakintes predominantly Christian and Muslim population support the
criminalization of same-sex relations.61
34. One of the cornerstones of moral thought is that it differentiates between popular opinion
and behavior, and what is the right thing to do. Same sex relation is immoral because it is Commented [A13]: Also as option

unnatural.

35. It can be clearly understood from these facts that the act of same sex relation is immoral
in Kuntakintes community and widely condemned by the vast majority of the society.
Moreover, since these acts are opposed by general public it is clear that allowing this act is
prejudicial to preserve public order. It degrades the set of fundamental principles on which the Commented [A14]: It also

society founded.

58
Siracusa Principle 6
59
siracusa Principle 3
60
Hertzberg v. Finland Paras 10.3-10.4
61
Fact sheet para. 8

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RESPONDENT SUBSTANTIVE PART

36. Thus, since the act of same sex relation is immoral and prejudicial to preserve public
order in Kuntakinte, the refusal to register NUGAL is to protect public moral and order and Commented [A15]: Dote and delete (and)

therefore lawful under ICCPR, African charter and other internationally accepted principles. Commented [A16]: The act of refusing is

2.1.3. Necessary in a democratic society Commented [A17]: Title entrance

37. As per article 22 (2) of ICCPR restrictions may be placed on the exercise of this right to Commented [A18]: Exclamation ,mark

association if it is prescribed by law and which are necessary in a democratic society in the Commented [A19]: Which refers to the

interests of national security, public safety or public order (ordre public), the protection of public Commented [A20]: And for

health or morals or the protection of the rights and freedoms of others. Commented [A21]: Or. Repetition

38. According to principle two of siracusa principles on limitation of rights the limitations Commented [A22]: Exclamation mark

are necessary in a democratic society if the limitations do not impair the democratic functioning
of the society.62 Moreover pursuant to para 10 of this principle a restriction is necessary
whenever it (a) is based on one of the grounds justifying limitations recognized by the relevant Commented [A23]: Change place

article of the Covenant; (b) responds to a pressing public or social need; (c) pursues a legitimate
aim; and (d) is proportionate to that aim.
39. The respondent argue that the limitation based on the grounds justifying the limitation
under article 22 (2) of the covenant; respondents to pressing public need as the majority of
Kuntakintes population is against the act of same sex relation; pursues a legitimate aim in that it Commented [A24]: Any conjunction which make the statement
to be meaning full
aimed to protect public order and moral; and is proportionate to that aim as it only impose
restriction with respect to that specific situation. Thus, the restriction is necessary in a democratic
society within the meaning of article 22 (2) of ICCPR.

2.2. The objectives of the NUGAL were contrary to section 17(2) (a) of the Societies Act
as it is unlawful and prejudicial to good order or morality
40. 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.63

62
Siracusa Principle 2
63
Fact sheet para 21

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RESPONDENT SUBSTANTIVE PART

2.3. The refusal to register NUGAL is justified as the objectives of the association were
unlawful and prejudicial to good order and morality
41. The fact that the objectives of the association are immoral is established in the previous
sub issue. In addition to this the objectives of the society is unlawful as Section 246 of the 1969
Criminal and Other Offences Act of Kuntakinte, criminalizes conducts against the order of
nature.64
42. Same sex relations (LGBTI) since, these acts involves using body parts in ways that
nature clearly didnt intend.65 Furthermore, scholars intuitively recognized that theres far more
to sex, love and marriage than attempting to satisfy natures biological imperative. These things
have a very, very important social purpose that involves intimacy, companionship, security and
other forms of happiness that nearly everyone strives for.66 For instance, if everyone were Commented [A25]: Conjunction

homosexual, the human race would die out. These are unnatural because human being destined
to continue. This is threat to Kuntakinte since its population is highly decreasing and its work
force is weakening.67
43. Therefore, since the same sex relation is conducts against the order of nature it is criminal
act pursuant to section 246 of the 1969 Criminal and Other Offences Act of Kuntakinte. Thus,
the refusal to register NUGAL is justified as the objectives of the association were unlawful and
section 17(2) (a) of the societies prohibits the registration of associations with unlawful
objectives.

3. THERE IS NO VIOLATION OF AFRICAN CHARTER AND OTHER

RELEVANT TREATIES IN RESPECT OF TROKOSI CUSTOM

3.1.The kuntakinte has taking necessary measures toward abolition of the trosoki custom
44. The nature of ESC rights is fundamentally different to that of the civil and political rights
as these are merely positive rights. Also the ESC rights are oriented towards freedom, are aimed

64
Fact sheet para 8
65
Seven reasons why homosexuality is immoral and seven answers P. 12
66
Seven reasons why homosexuality is immoral and seven answers P.15
67
fact sheet para 3 and 13

14
RESPONDENT SUBSTANTIVE PART

at the autonomous self-fulfillment of the person, and work towards the realization of a social
order in which together with others the individual persons can develop themselves freely with
self-determination. On the one hand the ESC rights create a social freedom for a self-determined
way of life for the people, which neither the state nor third parties may restrict.
45. The government cannot intervene into the community and command them to abolish their
cultures which inherited from their ancestors within a night.
46. The respondent argues that the breadth, complexity and sensitivity of cultural diversity
are serious challenges to the integration of this concept into human rights law. It takes time,
effort and resource to change long standing attitude in the minds of society. While the ratification
of treaties and the adoption of laws make available a sound legal basis, it is not always the only,
best, or most effective way to address situations of cultural diversity specially those harmful
ones.68 Education, raising awareness and social development, which are also part of the broader
advancement of human rights, are also important to address such cultural diversity situations.
Economic, social and cultural rights are political targets without clear legal obligations and
without the possibility of individual judicial enforcement.
47. The republic Kuntakinte accepts that the trosoki custom is harmful cultural practice
which prejudial to women. However the government is working toward its abolition and as
clearly can be understood from the facts of the case the study revealed that there has been a
steady decline in the number of trokosi cases over the last decade as a result of the governments
engagement with the traditional leaders in the Bamileke region regarding this issue. Thus there is
no violation of African charter and other relevant treaties.

4. KUNTAKINTAKINTE HAS NOT VIOLATED ANY OF ITS OBLIGATION IN

RESPECT OF MIGRANTS

4.1.Kuntakinte complied with its obligation in respect of migrants

48. Pursuant to article 2 of OAU refugee convention member States of the OAU shall use
their best endeavors consistent with their respective legislations to receive refugees and to secure
the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return

68

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RESPONDENT SUBSTANTIVE PART

to their country of origin or nationality.69 Sub article 5 of the same convention states that where a
refugee has not received the right to reside in any country of asylum, he may be
granted temporary residence in any country of asylum in which he first presented himself
as a refugee pending arrangement for his resettlement in accordance with the preceding
paragraph.70
49. Likewise since the early 1990s, the Republic of Kuntakinte has adopted an open-arms
approach towards migrants from its neighboring countries. It has relaxed the enforcement of its
immigration laws to absorb the influx of migrants.71 Most migrants have settled in well.72 Thus,
the respondent submits it used best endeavors to receive refugees and secure their settlement.
Moreover, those refugees who have not received the right to reside in Kuntakinte have granted
temporary residence within which they have to legalize their stay by getting work and residence
permit. This can be clearly understood from the fact that the directive was adopted on 24
December 2014 and refugees have given a time to legalize their stay up to 1 April 2015. The
refugees have about four months of temporary residence. Thus, kuntakinte has fulfilled its
obligation toward migrants.
50. Moreover, pursuant to article 3 (1) of OAU refugee convention every refugee has duties
to the country in which he finds himself, which require in particular that he conforms with its
laws and regulations as well as with measures taken for the maintenance of public order.73 The
directive was measure taken for the maintenance of public order. The refugees failed to conform.
Generally, kuntakinte has fulfilled its obligation toward refugees.

4.2.Kuntakintes obligation for protection of national security

51. The measure of deportation was for the protection and promotion of the well-being of the
citizens and legal residents of the State and its territory. Migration from neighbors becomes a
threat to national security due to the rapid rise in the number of migrants especially of irregular
or illegal migrants. According to the facts of the case more than 100,000 people were crossed

69
OAU refugee convention article 2(1)
70
OAU refugee convention article 2 (5)
71
Fact sheet para 13
72
Ibid
73
OAU refugee convention article 3 (1)

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RESPONDENT SUBSTANTIVE PART

the border of kuntakinte.74 Moreover, these migrants have real or imagined links to terrorism or
organized crime as some of them were burning public properties and killing peoples.75 This
poses serious danger on the national security of Kuntakinte and the government has obligation to
protect this interest.
52. The respondent argues that surely security concerns of this kind must be taken seriously
and migration management and border management policies designed to respond are needed.
Thus, as far as the refugees have granted enough time and temporary residence to legalize their
stay the deportation was in accordance with procedures provided by law and justified on the
bases of national security. In addition the respondent argues that the detention of refugees is also
merely to facilitate their deportation.

74
Fact sheet para 12
75
Fact sheet para 12

17
RESPONDENT SUBSTANTIVE PART

5. PRAYER FOR RELIEF

For the foregoing reasons the republic of Kuntakinte respectfully requests this Honorable Court
to adjudge and declare that:

I. The republic of Kuntakinte withdrawn its ratification of African court protocol, and
thus the Court has no jurisdiction over the Applicants claims.
II. The arrest and detention of the suspected members of the young panthers group does
not violate African charter and other relevant treaties.
III. There is no violation of African charter and other relevant treaties in respect of the
condition under which the suspected members of the young panther group are
detained.
IV. Since the right to association is not absolute right, refusal to register NUGAL is based
on the justifying ground to restrict the right association.
V. Since the government is taking necessary steps to abolish the custom of trosoki and
this can be understood from rapid reduction of trosoki cases over the last decade,
there is violation of African charter and other relevant treaties in respect of abolition
of trosoki culture.
VI. Kuntakinte has not violated international law in its treatment of the migrants from
Malinke region.

And to declare that Kuntakintes conduct in respect of all claims are consistent with African
charter and other international law

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RESPONDENT SUBSTANTIVE PART

Respectfully Submitted on behalf of the Respondent,

Agents for the Respondent

19