Alfred Agbesi Woyome

The African Court on Human and People’s Rights on Friday dismissed the case filed by Alfred Agbesi Woyome, a businessman, against Ghana.

Mr Woyome had applied to the Continental Court arguing that his human rights were being trampled upon by Ghana in relation to the case in which he sued Ghana for abrogating a financial engineering services contract and was paid GH¢51.2 million.

On the specific issue of reparations, the African Court held that, since no violation has been established, the issue of reparation does not arise. Consequently, the Applicant’s prayers for reparation was dismissed.

African Court ruling made available to the Ghana News Agency in Accra by a majority of Seven- for and Two- against, Justices Gérard Niyungeko and Rafaâ Ben Achour dissenting, rejected the reliefs sought by the applicant.

In the area of jurisdiction, the African Court unanimously declared that it has jurisdiction. As regards the admissibility of the application, the Court examined two objections raised by the Respondent State and on the objection of failure to exhaust local remedies.

The African Court in dealing with the objection to admissibility, relied on its case-law, held that the requirement set out in Article 56(5) of the Charter was that an applicant should exhaust remedies that exist and which were available and could be accessed without impediment.

The Continental Court found that, in the circumstances of this case, it would have been unreasonable to require the Applicant to file a claim at Ghana’s High Court to call into question, a decision of the Supreme Court, whose decisions were binding on subordinate courts.

The African Court said in pursuing such a claim, the High Court would not have been capable of addressing the Applicant’s grievances and would have therefore been an ineffective remedy.

It found that although local remedies were available, they would not have been effective to address the Applicant’s grievances.

The African Court consequently dismissed Ghana’s objection relating to the exhaustion of local remedies.

The African Court said Ghana also raised an objection on the failure of Mr Woyome to file the case within a reasonable time from the exhaustion of local remedies.

In dealing with this objection, the African Court noted that the time Mr Woyome spent awaiting the determination of criminal proceedings instituted against him by Ghana as well as the case at the Court of Appeal challenging the findings of the Commission of Inquiry, was sufficient justification for filing the Application two years, five months and seventeen days after local remedies were exhausted.

The African Court concluded that in the circumstances of this case, the Application has been filed within a reasonable time as envisaged under Article 56(6) of the Charter and Rule 40(6) of the Rules.

The Continental Court, therefore, dismissed the objection on admissibility on the ground of failure to file the Application within a reasonable time.

On admissibility, by a majority of eight-for and one-against, Judge Suzanne Mengue dissenting, the African Court declared the Application admissible.

Having found that it had jurisdiction and that the Application was admissible, the African Court examined the violations alleged by the Applicant.

On whether there was a violation of the right to non-discrimination and the right to equality before the law and equal protection of the law, the African Court held that the Applicant has not demonstrated or substantiated how he has been discriminated against, treated differently or unequally, resulting in discrimination or unequal treatment based on the criteria laid out under Articles 2 and 3 of the Charter.

The African Court found that the Respondent State has not violated these provisions.

The African Court also noted that the key issue was whether the Applicant’s right to be heard by a competent tribunal was violated as a result of the decision of the Review Bench of the Supreme Court hearing the matter rather than referring it to the High Court.

Considering the margin of discretion domestic courts enjoy in interpreting their own jurisdiction, the African Court holds that, there was nothing erroneous or arbitrary in the Supreme Court Review Bench’s interpretation of its own jurisdiction, to question its competence.

The African Court said this was significant given that the Supreme Court was the highest court in Ghana.

Accordingly, the African Court holds that the Applicant’s right to be heard by a competent tribunal, guaranteed under Article 7(1) (a) of the Charter has not been violated by Ghana.

With respect to the right to be tried by an impartial court, participation of eight judges at both the Ordinary and Review Benches casts doubt on the impartiality of the Supreme Court and that the remarks made by Justice Cecil Jones Dotse calls into question the impartiality of the Review Bench of the Supreme Court.

The Court noted that it was not in dispute between the parties that eight of the judges of the Ordinary Bench also sat in the Review Bench and participated in the consideration of the same matter in question.

The point of disagreement between the parties and the main issue for determination by the African Court was whether the composition of the Review Bench, the majority members, who were also part of the Ordinary Bench, casts doubt on the impartiality of the tribunal to the extent that one could not reasonably expect a fair decision.

Therefore, the Applicant’s contention that the Review Bench was partial was based on a misapprehension that was neither justified nor objective.

In view of the above, the African Court concluded that the composition of the Review Bench of the Supreme Court by Judges, who had participated in the Ordinary Bench does not call into question the impartiality of the Review Bench.

The African Court also examined whether the remarks of Justice Dotse disclosed a perception of bias and in light of the circumstances and calls into question the impartiality of the Review Bench of the Supreme Court as a whole.

The African Court observed that the impartiality of a judge was presumed and undisputable evidence was required to rebut this presumption.

In the instant case, the Court noted that Justice Dotse’s statements did not give an impression of preconceived opinions and did not reveal bias.

The Court therefore concluded that the Respondent State has not violated the Applicant’s right to be heard before an impartial tribunal guaranteed under Article 7 (1) (d) the Charter.

On merits, the Court unanimously found that the Respondent State has not violated Article 2 of the Charter on the right to non-discrimination.

The Court said that the Respondent State has not violated Article 3 of the Charter on equality before the law and equal protection of the law and has not violated Article 7 (1) (a) of the Charter on the right to have one’s cause heard by a competent tribunal.

It said by a majority of Seven- for and Two- against, Justices Gérard Niyungeko and Rafaâ Ben Achour dissenting, that the Respondent State has not violated the right to be tried by an impartial tribunal in respect of the composition of the Review Bench of the Supreme Court.

The African Court also finds that Ghana has not violated Article 7 (1) (d) of the Charter in respect of the remarks made by Justice Dotse, which allegedly call into question the impartiality of the Review Bench of the Supreme Court.

On costs, the Continental Court unanimously decided that each Party should bear its own costs.

Source: GNA