Les Témoins de Jehovah v. Zaire
Please note the summary below was made by ESCR-Net and is available on http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=673100&
Name of Case
Free Legal Assistance Group, Lawyers Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v. Zaire
Availability, Right to life, Progressive Realisation, Retrogressive measure, regional law, African Charter on Human and People’s Rights.
African Commission on Human and People's Rights
Communication. No. 25/89, 47/90, 56/91, 100/93; 1 October 2005
There was an alleged gross mismanagement of public finances by the government leading to degrading conditions, shortages of medicine, education and basic services. The government allegedly failed to provide these services, impairing its people from obtaining adequate medical treatment and from accessing basic education. Indeed there was a two year long closure of universities and secondary schools.
The government was accused of torture, arbitrary arrests and arbitrary detentions, extra-judicial executions, unfair trials, placing severe restrictions on the right to association and peaceful assembly, as well as suppression of the freedom of the press.
That the closure of universities and secondary schools violated the right to education (Article 17) of the African Charter on Human and People’s Rights. ‘Every individual shall have the right to education.’
The claim was brought by four NGOs against former Zaire (now Democratic Republic of the Congo).The Commission, considering there to have been a grave and massive violation of human rights, brought the matter to the Organisation of African Union’s Assembly of the Heads of State and requested that Zaire receive a mission of two of its members to discover the extent and cause of the violations. There was no response to this request or to the communications and the Commission found them admissible as the vast and varied scope of the violations alleged and the general situation prevailing in Zaire made it impractical or undesirable for the domestic courts to adjudicate the alleged violations.
The rule of exhaustion of domestic remedies: A crucial rule governing the admissibility of a complaint is that you must, in general, have exhausted all remedies in the state where the violation occurred before bringing a claim to an international body. This usually includes pursuing your claim through the local court system. There are, however, exceptions to this rule. If the exhaustion of remedies is unreasonably prolonged, or plainly ineffective or otherwise unavailable to you (owing, for example, to denial of legal aid in a criminal case), you may not be required to exhaust domestic remedies. NB. See also the case of D.H. and Others v Czech Republic in the Racial Discrimination cases and Dilcia Yean and Violeta Bosica v Dominican Republic in the discrimination on the basis of nationality cases.
The Commission held amongst other things that, in the absence of a substantive response from Zaire, it must decide on the facts provided by the complainants and treat them as given; that the closure of schools and universities also described in that communication was a violation of Article 17.
As well as a breach of the right to education the Commission ruled that the failure of the government to provide basic services such as safe drinking water and electricity and the shortage of medicine constitutes a violation of the right to enjoy the best state of physical and mental health (Article 16). Besides violations of economic and social rights, the Commission found the government of Zaire guilty of violating the right to life (Article 4), the prohibition of torture and inhuman or degrading treatment, the right to liberty and security of person (Article 6), the right to have one's cause heard (Article 7) and the right to freedom of conscience, religion and belief (Article 8).
Zaire (today Democratic Republic of the Congo) has been in a state of war ever since. Despite various peace accords and even though democratic recognized elections took place in 2006, the country has been struck by strife and civil war. On 23 January 2008 a peace deal ending the Kivu conflict was signed. While this formally ended all conflicts in DRC, the effectiveness of the deal and therefore the implementation of the decision remains doubtful.
Through this decision the Commission reinforced the universality and indivisibility of all human rights by treating economic, social and cultural rights, such as the right to education, in the same way as civil and political rights. See the section of cases on right to life and other civil/political rights.
Closing schools is a retrogressive measure which should be seen as the opposite of fulfilling the right to education and will often be perceived as such by courts.