24th African Human Rights Moot Court Competition

5 10 October 2015

University of Zambia

THE AFRICAN COURT ON HUMAN AND PEOPLES

RIGHTS

IN THE MATTER BETWEEN

THE GOVERNMENT OF UNITED REPUBLIC OF MONGU

AND

THE AFRICAN COMMISSION ON HUMAN AND PEOPLES

RIGHTS

MEMORIAL FOR THE RESPONDENT

Table of Contents
List of references...................................................................................................................................... iii
List of abbreviations ................................................................................................................................ vi
Statement of facts ...................................................................................................................................... 1
Summary of arguments ............................................................................................................................. 3
Admissibility ............................................................................................................................................. 4
Merits ........................................................................................................................................................ 5
I. Alleged violation of right to health under article 16 of ACHPR ................................................... 5
A. Nature of state obligation in realizing the right to health ....................................................... 5
B. The legality of the medical guideline ..................................................................................... 6
II. Alleged violation of miners right under article 15 of ACHPR .................................................. 8
III. The alleged violation of right to assembly under article 11 of ACHPR .................................. 10
A. Legality of PAA.................................................................................................................... 10
B. Unlawful assembly of UNINOK students ............................................................................ 11
IV. The alleged violations of freedom of expression and academic freedom under art ................. 12
9 of the African Charter and art 19 of ICCPR .................................................................................... 12
Prayers: ................................................................................................................................................... 15

ii
List of references

International treaties

1. African Charter on Human and Peoples Rights, adopted on 27 June 1981& entered into force

on 21 October 1986.

2. African Charter on the Rights and Welfare of the Child, adopted on 11 July 1990 & entered

into force on 29 October 1999.

3. Convention on the Rights of the Child, adopted on 20 November & entered into force on 2

September 1990.

4. Declaration of Principles on Freedom of Expression in Africa, African Commission on Human

and Peoples' Rights, 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia.

5. General Comment 14, UN Committee on Economic, Social and Cultural Rights (2000).

6. General Comment 18, UN Committee on Economic, Social and Cultural Rights (2006).

7. General Comment 20, UN Committee on Economic, Social and Cultural Rights (2009).

8. General Comment 3, UN Committee on Economic, Social and Cultural Rights (1990).

9. General Comment 34, Human Rights Committee (2011)

10. Guidelines on Freedom of Peaceful Assembly, prepared by Office for Democratic Institutions

and Human Rights (ODIHR) (2010).

11. International Covenant on Civil and Political Rights, adopted on 16 December 1966 & entered

into force on 23 March 1976.

12. International Covenant on Economic Social and Cultural Rights, adopted on 16 December

1966 & entered into force on 3 January 1976.

13. Optional Protocol to International Covenant on Economic, Social and Cultural Rights, adopted

on 10 December 2008 & entered into force on 5 May 2013.

14. Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004).
iii
 15. Protocol to the African Charter on Human and Peoples Rights on the Establishment of an

African Court on Human and Peoples Rights, adopted on 10 June 1998 & entered into force

on 25 January 2004.

16. The Declaration on Academic Freedom and Autonomy of Institutions of Higher Education

(adopted in Lima on 10 Septemeber1989).

17. The Kampala Declaration on Intellectual Freedom and Social Responsibility (1990).

18. Universal Declaration of Human Rights, G.A. Res 217A (iii), U.N. Doc. A/811 (1948).

Domestic laws

1. Act of Parliament for the Establishment of University of Nokeyema, 1969.

2. Central Provincial Medical Guidelines.

3. Constitution of United Republic of Mongu of 1990.

4. Disciplinary code of the University of Nokeyema of 1969.

5. Enforcement Rule of Section 77 of Constitution of United Republic of Mongu (2012).

6. Mining Safety Act of 2010.

7. Occupational Safety Act.

8. Peaceful Assembly Act of 2012.

Case law

Case from African Commission

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

2. Civil Liberties Organisation (in respect of Bar Association) v Nigeria (2000) AHRLR 186

(ACHPR 1995)

iv
3. Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999)

4. Haye v The Gambia (2000) AHRLR 102 (ACHPR 1995)

5. Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000)

6. Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008)

7. Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000)

8. Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003)

9. Social and Economic Rights Action Centre (SERAC) and Another V Nigeria (2001) AHRLR 60

(ACHPR 2001).

Case from Inter-American Court of Human Rights

Kimel v. Argentina, Inter-American Court of Human Rights, May 2, 2008. Series C No. 177.

Case from domestic court

1. R v Cambridge Health Authority, ex p B [1995] 1 WLR 898 (CA)

2. Thiagraj Soobramoney v minster of health (kwazulu-natal) (1997)

Books and articles

1. Currie, I & Waal, JD The Bill of Right Hand Book (6th ed) (2005).

1. Keller, H; Ulfstein, G & Grover, L Human Rights Treaty Bodies: and Law and Legitimacy,

(Cambridge university press: 2012)

2. Human Right Watch: Academic Freedom and Human Rights Abuses in Africa (1990).

3. Langford, M Social Rights Jurisprudence: Emerging Trends in International and Comparative

law (Cambridge University Press: 2009).

4. Viljoen, F International Human Rights Law in Africa (Oxford University Press: 2012).

v
List of abbreviations

1. ACC African charter on the Right and welfare of the child.

2. ACHPR African Charter on Human and Peoples Rights.

3. AU African Union.

4. CRC Convention on the Rights of the Child.

5. ECHR European Court of Human Rights.

6. ESCRs Economic, social and cultural rights.

7. GC General Comment.

8. HRC Human Rights Committee.

9. ICCPR International Covenant on Civil and Political Rights.

10. ICESCR International Covenant on Economic, Social and Cultural Rights.

11. MSA Mining Safety Act.

12. ODIHR Office for Democratic Institution and Human Rights.

13. PAA Peaceful Assemblies Act.

14. SML Standard Minerals Limited.

15. UN United Nations.

16. UNESCO United Nations Educational, Scientific and Cultural Organization

17. UNINOK University of Nokeyema.

18. URM United Republic of Mongu.

vi
Statement of facts

1. The United Republic of Mongu (URM) is a developing country, which relies heavily on

international aid. The national budgetary allocation dedicated to education and health has

increased from 20% in 2000 to 28% in 2013. As at 2012, URM had ratified all the human

rights treaties of United Nations (UN) and African Union (AU), except the Protocol to the

African Charter on Human and Peoples Rights on the Establishment of an African Court on

Human and Peoples Rights (the Court Protocol), which was ratified on 10 October 2013.

2. Mining contributes more than 78% of the URMs GDP. In 2010, the government of URM

passed the Mining Safety Act (MSA) to monitor mining companies. Accordingly, from 2010

to 2014, the Department of Mines visited more than half of the mines in the country.

3. In May 2012, Likando Moremi was diagnosed with advanced lung cancer. He was admitted

to the Kankoyi Private Hospital, because there was no room in any of the state-run hospitals

for anyone suffering from terminal cancer. The Central Provincial medical guideline provides

that, in providing hospital space, hospitals are to be guided by the prognosis of patients. As

a result, Likando failed to qualify to get room in state-run hospitals but he was provided with

basic palliative care.

4. In the Goldbelt Province, the SML runs a major gold mine. In 2014, a mining accident

occurred and resulted in the loss of the lives of over 200 miners. The families of each

deceased miner received compensation in accordance with the MSA.

5. Since 2012, there have been sporadic protests in URM, of which 75% turned violent. To

prevent chaos and catastrophes, URM Parliament passed the Peaceful Assemblies Act

(PAA), requiring anyone who engages in any form of public assembly that may reasonably

lead to an act or acts of public violence to request prior permission from the District Prefect.

1
 On the early evening of 21 January 2015, some of UNINOK students started conducting

protest without permission around the national presidents residence. Despite repeated

instructions to leave the premises and to disband the protest, they kept chanting, loudly

singing war-song and hitting hard at the fenced premises of the national Presidents residence

throughout the night. Members of the Presidential Guard dispersed the assembly.

6. The public University of Nokeyema (UNINOK) has Disciplinary Code which prohibits staff

members and students from engaging in conduct, which is likely to disrepute the University.

On 19 January 2015, Mr Kozo, a lecturer of Business and Human Rights in the University,

has described the URM Government as shameless and genocidal in a public lecture he

delivered to over 200 students of the university. The Disciplinary Panel of UNINOK found

that Mr Kozos act disrepute the University and dismissed him.

2
Summary of arguments

7. The URM Government is realizing the right to health progressively within maximum of its

available resource by increasing budget allocated to the health sector. The Medical

Guidelines was established to assist the persons working in State-run hospitals to make the

agonising choices, to decide who should receive treatment and who not based on the limited

available equipments and prognosis of the patients with the aim of providing the maximum

healthcare services to the maximum section of the society.

8. The URM Government passed the MSA to monitor the operations of mining companies

through reporting procedure and field inspection. The MSA is reasonable law applicable

uniformly to all mining centers with the aim of protecting miners rights and ensures

payment of effective compensation for mining accidents.

9. Right to assembly is not absolute right. PAA is a necessary law enacted to regulate the right

to freedom of assembly and to protect public order in the country. The UNINOK students

protest was unlawful and violent which necessitated dispersal to protect public order.

10. Freedom of expression and academic freedom has restrictions. Mr Kozo abused those rights

by disseminating his research finding with insulting and inciting words. The UNINOK

Disciplinary Panel took justifiable measures for his misconduct.

3
Admissibility

11. Pursuant to article 6(2) of the Court Protocol, the Court rules on admissibility issues taking

into account conditions set out under Art 56 of African Charter on Human and Peoples'

Rights (ACHPR). Accordingly, only communications that are sent after exhaustion of local

remedies are considered.1 The rationale for this requirement is to give the accused State an

opportunity to remedy matters through its own domestic system and save its reputation.2

12. The 1990 Constitution of URM provides for two levels of courts, High Court and Supreme

Court, dealing with human rights issues. In addition, the 2012 Enforcement Rules, made

pursuant to Section 77 of the 1990 Constitution, allows public interest litigation in all human

rights field and struck out the requirement of locus standi for same.3 By this Rule, economic,

social and cultural rights (ESCRs) have equal constitutional and judicial protection with civil

and political rights. This implies that, in URM, local remedies are available, effective and

sufficient as stated by the African Commission on Human and Peoples Rights (African

Commission).4

13. Nevertheless, in the instant communication, the allegations concerning Likandos health right

and the miners right were submitted without exhausting the available local remedies.

Likandos health issue was not appealed to the Appeal Court. Also, in the miners issue, the

trade union had failed to approach the Supreme Court as constitutional matter. Legally

speaking, the Supreme Court is not bound by its previous decisions or precedents. In hearing

appeal or considering Constitutional issues, it can generously interpret human rights

provisions and set new precedent in accordance with the current pro-human rights approach.

1
ACHPR, Art 56(5).
2
Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000), Para 80.
3
Hypothetical case, Para 6.
4
Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) (Jawara Case), Para 31.

4
 In Haye v The Gambia case, the African Commission has declared a communication

inadmissible due to the complainants default and negligence to seek appeal to the Court of

Appeal.5 Further, no local courts were approached on the protesters issue to seek judicial

remedy. In this regard, in Ceesay v The Gambia case, the African Commission declared the

communication inadmissible due to the complainants failure to recourse to local remedies.6

14. Requiring exhaustion of local remedies ensures that international forums do not become a

tribunal of first instance for cases for which an effective domestic remedy exists.7 Therefore,

the URM Government submits that the communications is inadmissible as the applicant did

not exhaust the available, effective and sufficient local remedies pursuant to article 56(5) of

ACHPR.

Merits

I. Alleged violation of right to health under article 16 of ACHPR

A. Nature of state obligation in realizing the right to health.

15. Everyone has the right to enjoy the best attainable standard of physical and mental health.8

Since the right to health requires huge resources for its realization, the URM Government is

duty bound to realize it progressively within the available resources.9 Nevertheless, the

Government is mindful of its obligation to take 'concrete and targeted' steps as stated by the

African Commission and the UN Committee on CESCR.10

5
Haye v The Gambia (2000) AHRLR 102 (ACHPR 1995), Para 4.
6
Ceesay v The Gambia (2000) AHRLR 101 (ACHPR 1995), Para 4.
7
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (Ogoniland
case), Para 39.
8
ACHPR, Art 16(1); ACC, Art 14; CESCR, Art 12 & CRC, Art 24.
9
CESCR, Art 2(1).
10
Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003), Para 84 & General Comment 14 of UN Committee on
CESCR (GC 14, CESCR), Para 30.

5
16. Consistent with this duty, the URM Government has been taking concrete and targeted steps

by increasing the national budgetary allocation to the health and education sector from 20%

in 2000 to 28% in 2013, despite being a developing country having only 3.5% of annual

growth.11 Furthermore, as suggested by the Committee on CESCR, the government is taking

joint action, through receiving aid, to achieve the full realization of the right to health.12

17. Despite all these efforts, the URM Government is still unable to provide full healthcare

services to all due to critical resource constraints. State-run hospitals are overstretched by

patients having cases of severe conditions.13 Thus, adopting guideline that requires medical

personnel to provide medical treatment according to the prognosis of patients has become

necessary.14 Accordingly, patients who stood a good chance of recovery from their

conditions would be given hospital space and the necessary medical treatment.

B. The legality of the medical guideline

18. The right to health is not an absolute right. The phrases like best attainable state ofhealth

and within available resources sufficiently indicates that the right to health is not unfettered

right.15 Therefore, the State Parties can adopt proportional limitation that is least restrictive

alternative if the situation requires.16 The socio-economic context of URM forced the

Government to adopt the guideline that proportionally limits health right.

19. The medical guideline was not meant to discriminate among patients. It rather strives to

provide satisfactory healthcare service to the majority of patients who have good chance of

recovering than maintaining a patient in chronically ill condition. This qualifies the URM

11
Hypothetical case, Para 4.
12
Hypothetical case, Para 1 & GC 14, CESCR, Para 38.
13
Hypothetical case, Para 10.
14
As above.
15
ACHPR, Arts 1 & 16 & CESCR, Art 12.
16
CESCR, Art 4 & GC 14, CESCR, Para 29.

6
 Governments obligation under article 1 and 2 of the ACHPR and ICESCR respectively. In

Soobramoney case, the Constitutional Court of South Africa has upheld the issuance of

medical guidelines to make the agonising decisions in deciding who should receive

treatment, and who not.17 The Court further held that:

The state has to manage its limited resources in order to address all claims. There will be times

when this requires it to adopt a holistic approach to the larger needs of society rather than to focus

on the specific needs of particular individuals within society. 18

20. Further, in R v Cambridge Health Authority case, the Court of Appeal held that:

It is common knowledge that health authorities cannot provide all the treatments they would

like and purchase all the extremely expensive medical equipment they would like. Difficult and

agonising judgments have to be made as to how a limited budget is best allocated to the maximum
19
advantage of the maximum number of patients.

In instant case, Likando Moremi did not comply with this guideline to be admitted for

healthcare services as he was suffering from terminal lung cancer. He had no chance of

recovering and the State lacked the required resources to provide him the necessary

treatment. The painful decision of excluding him from costly medical treatment was

unavoidable in the socio-economic context of URM. The limitation provided by the guideline

is proportional and consistent with the States international obligation. Thus, the URM

Government submits that it is taking all the necessary efforts to provide healthcare services to

the maximum advantage of the maximum number of patients and that it did not violate

Likandos health right guaranteed under articles 16 and 12 of ACHPR and ICESCR

respectively.

17
Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC) (Soobramoney case), Para 24.
18
Soobramoney case, Para 31.
19
R v Cambridge Health Authority, ex parte B, 8.

7
 II. Alleged violation of miners right under article 15 of ACHPR

21. The right to just and favorable conditions of work is part of the right to work as set out under

article 15 of ACHPR and article 7 of CESCR. In addition, the Pretoria Declaration provides

that the right to work includes the right to effective and accessible remedies for work place-

related accidents.20 In URM, mining contributes about 78% of GDP.21 This qualifies States

obligation to exploit its natural resource for the effective realization of ESCRs in the

country.22 Yet, the Government is aware that mining should be conducted in satisfactory

working conditions.

22. In light with this obligation, the URM Government has passed MSA and the Occupational

(other than mines) Safety Act (OSA). This qualifies the requirement of articles 1 and 15 of

ACHPR and articles 2(1) and 7 of ICESCR. Among other things, the MSA requires mining

companies to provide annual report on working conditions in their mines.23 Failing to comply

to this requirement entails in deregistration and fine equivalent to 5% of the defaulting

mining companys profits in the previous year.24

23. Furthermore, the Department of Mines has been tirelessly conducting inspection on mines

that had been in the news for bad conditions.25 The Government is diligently discharging its

monitoring duty by giving priorities to inspect defaulting companies. For instance, from

2010 to 2014, it inspected more than half of the mining companies in the country except

SML gold mine as there was no negative news about its operations.26 Further, the report

submitted by SML gold mine to the Department of Mines for the year 2010 to 2013 indicates

20
Pretoria Declaration on Economic, Social and Cultural rights in Africa (2004) (Pretoria Declaration), Para 6.
21
Hypothetical case, Para 7.
22
Ogoniland case, Para 54.
23
Hypothetical case, Para 7.
24
As above.
25
As above.
26
Hypothetical case, Para 7.

8
 the working conditions in the mine comply with all national and international labor laws.27

Though the URM Government has shown a manifest commitment in this regard, it could not

inspect all mining centers in the country due to the critical resource constraints.

24. In addition, the MSA also provides for adequate compensation scheme for mining accidents

as required by international law.28 The compensation schemes provided by the MSA is

equally and uniformly applicable to all mining activities in the country and subjects all

miners to same treatment. Its margin was determined based on the prevailing socio-economic

situations in a country. Further, this compensation scheme should not be compared with that

of completely different sectors. It is not mandatory to make all sector legislations identical,

since each of them are drafted to give effect to respective policy aims.29

25. Though some mining accident is predictable and avoidable, it is hardly possible to

completely avoid it. The accident that occurred in SML gold mine, despite the companys

compliance with all labor standards and safety measures, is not an exception to this general

truth. Nevertheless, in light with the MSA and its international obligations, the URM

Government has compensated the families of the deceased miners.30 Therefore, the URM

Government submits that it acted within its international obligations and the MSA is

consistent with articles 15 of ACHPR and 7 of CESCR.

27
Hypothetical case, Para 12.
28
Pretoria Declaration, Para 6; CESC, Art 7(b), & hypothetical case, Para 7.
29
S Stephen 'Giving effect to policy in legislation' 2 (2011).
30
Hypothetical case, Para 12.

9
 III. The alleged violation of right to assembly under article 11 of ACHPR

A. Legality of PAA

26. The right to assembly is recognized under international and regional human rights

instruments.31 However, it is not an absolute right and its exercise is subject to restrictions.32

As the Government has duty to respect the right to assembly, it has also corollary obligation

to protect public order through legislative measures. It was meant to provide legal framework

for the effective and peaceful enjoyment of the right to assembly. This qualifies the URM

Governments obligation under articles 1 and 11 of the ACHPR and articles 2(1) and 21 of

ICCPR.

27. In URM, the enactment of PAA was urgently required to break the trend of violence in the

country that was associated with the exercise of public gathering for protest. Facts show

that 75% of previous protests turned violent. 33 Furthermore, report indicates that countries

that experience violence and conflict are slow to develop. 34 The URM is a developing

country heavily relying on foreign aid and having only 3.5 annual growth rate. 35 This

persistent violence cannot be averted by the mere notification of intention to gather.

28. Thus, PAA provides for the requirement of prior-permission for assemblies that may

reasonably lead to acts of public violence. This requirement is consistent with articles 11 and

21 of the ACHPR and ICCPR respectively, which permit imposing limitations that are

31
ACHPR, Art 11 & ICCPR, Art 21.
32
ACHPR, Art 11 & ICCPR, Art 21
33
Hypothetical case, Para 2.
34
Hypothetical case, Para 3.
35
Hypothetical case, Para 1 & 4.

10
 necessary in the interest of protecting public order. In addition, there should be space in

which such restriction may be justified when there are likelihoods of violence. 36

29. The prior permission requirement provided in PAA is necessary in that it is justifiable;

responding to pressing social need, pursue legitimate aim of achieving public order and its

proportional.37 Further, it has no effect of making the enjoyment of the right illusory. 38

B. Unlawful assembly of UNINOK students

30. Any assembly that does not comply with the requisite preconditions established by domestic

law is unlawful.39 Firstly, the protesters did not get the necessary permission to hold the

assembly. By the time the application for permission was lodged by the organisers, the URM

Government was holding an official reception ceremony for 10 African Heads of States who

had come for Pan-African Economic Development Forum.40 The URM Government has an

international obligation to provide high security for this heads of State.

31. Secondly, the assembly took place in the midnight and was violent in that they were hitting

hard at the fenced premises of the national Presidents residence, which, by necessity,

demands high level of security.41 Moreover, the protesters were singing war-song that

constitutes incitement to public violence which is prohibited under articles 9(2) and 20 of

ACHPR and ICCPR respectively. Indisputably, such assemblies are unlawful.

32. Using loudhailers, repeated instructions were given to the protesters to leave the premise and

disband the protest. Up on their refusal, the presidential guards used proportional force to

36
Office for Democratic Institutions and Human Rights (ODIHR): Guidelines on Freedom of Peaceful Assembly, Section B,
Para 64.
37
Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR, Para 10 & 11.
38
Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999), Para 42.
39
Guidelines on Peaceful Assembly, Section B, Para 23.
40
Hypothetical case, Para 16.
41
Hypothetical case, Para 17.

11
 disperse the unlawful assembly.42 Thus, their dispersal was to protect public order, and

provide the necessary protection to the national president and the Heads of States who come

to Mongu for meeting. Therefore, the URM Government submits that it has acted within its

international obligation and has not violated the protesters right as guaranteed under articles

11 and 21 of ACHPR and ICCPR respectively.

IV. The alleged violations of freedom of expression and academic freedom under

article 9 of the African Charter and art 19 of ICCPR

33. The right to freedom of expression is guaranteed under article 9 of the ACHPR and articles

19 of both the UDHR and ICCPR. However, academic freedom is nowhere explicitly set out

as binding international norm. Nonetheless, according to the Human Rights Committee

(HRC), freedom of expression encompasses the rights to hold opinions, disseminate and

receive information, inter alia, through teaching and researching.43

34. The right to freedom of expression is not an absolute right.44 Thus, the State Parties can put

reasonable and proportional restrictions to serve a legitimate interest. 45 Those restrictions

become applicable and get effect by imposing subsequent liability for abuse of this right.46

The act of teaching is among the means of exercising the right to freedom of expression and

it is exercised in an atmosphere of academic freedom.47

42
Guidelines on Peaceful Assembly, Section B, Para 144.
43
General Comment 34, Human Rights Committee (GC 34, HRC), Para 11.
44
ACHPR, Art 9(2) & ICCPR, Art 19(3).
45
Declaration of Principles on Freedom of Expression in Africa (2002), Art 2(2).
46
Kimel v Argentina, 2008, Series c No.177, Para 54.
47
United Nations Educational, Scientific and Cultural Organization (UNESCO): Recommendation concerning the Status of
Higher-Education Teaching Personnel (UNESCO Recommendation), Preamble, Para 10.

12
35. Like any other institutions, the UNINOK has adopted its own Disciplinary Code to regulate

the behavior of its staffs. This constitutes institutional practice of academic freedom which

provides for internal self-government.48 States are under an obligation to respect the

autonomy of institutions of higher education which is reflected through decisional

independence in internal matters and administrative issues.49 However, autonomy must be

consistent with systems of public accountability, which includes involvement of government

in funding, designing institutional arrangements and supervision.50 Thus, the appointment of

UNINOK principal by Minster of Higher Education serves these purposes and should not be

taken as interference in the autonomy of the institution.

36. The enjoyment of academic freedom, as integral part of free speech, carries with it special

duties and responsibilities and may be subject to certain restrictions necessary for the

protection of the rights of others.51 The higher education teaching personnel, like Mr Kozo,

should be conscious of a responsibility, when speaking or writing, to avoid misleading the

public on the nature of their professional expertise in exercising their academic freedom.52

Acts of Mr Kozo should be seen in light of the above yardsticks.

37. Mr Kozo has used inciting and insulting words in his study. The phrases dictatorship,

shameless and genocidal that he has used to describe Government is unprofessional and

unethical. He incited public unrest which was manifested following his public lecture. Such

48
General Comment 13, Committee on CESCR (GC 13, CESCR), Para 40.
49
Declaration on Academic Freedom and Autonomy of Institutions of Higher Education (Lima Declaration), Para 1(c) and 18.
50
GC 134, CESCR, Para 40.
51
GC 34, HRC, Para 21 & Lima Declaration, Para 13.
52
UNESCO Recommendation, Para 34(k).

13
 incitement to public violence must be prohibited.53 Kozos act was, undoubtedly, beyond

criticizing the Government. An illegitimate criticism through using insulting and inciting

words is not a proper way of exercising academic freedom or free speech.

38. It is established that dismissal as a disciplinary measure can be taken against teaching

personnel for just and sufficient cause related to professional conduct. 54 States shall have

flexibility in deciding whether or not, and if so, how to restrict freedom of expression to

protect legitimate aims.55 Such restrictions should be justified by the very different factual

situations the states faces.56 The URM Government contends that the dismissal measure

taken against Mr Kozo was based on sufficient cause, proportional and serves legitimate

interest of protecting public order since the country is facing persistent violence. Therefore, it

submits that it has not violated the right to freedom of expression and academic freedom of

Mr Kozo.

53
ACHPR, Art 9(2) & ICCPR, Arts 19(3) (b) & 20(2).
54
UNESCO Recommendation, Para 50.
55
Joint Declaration on Universality and the Right to Freedom of Expression (2014), Para 1(d).
56
As above

14
Prayers:

The URM Government respectfully requests this honorable Court for declarations that the URM

Government has:

1. acted in accordance with article 1 and 16 of the ACHPR in that it fulfilled its

obligation to enact legislation in order to ensure the right to health and that it did not

violate Likandos health right under ACHPR or any other international law;

2. acted in accordance with article 1 and 15 of the ACHPR in that it fulfilled its

obligation by enacting MSA to ensure the right to satisfactory working conditions and

that it did not violate the miners right under ACHPR or any other international law;

3. acted in accordance with article 1 and 11 of the ACHPR in that it fulfilled its

obligation by enacting PAA in order to ensure the right to assembly and protect public

order and that it did not violate the protesters right under ACHPR or any other

international law, and

4. reasonably restricted the right to freedom of expression and academic freedom of Mr

Kozo and that it has not violated articles 9 and 19 of the ACHPR and ICCPR

respectively.

Respectfully submitted,

Agents for the URM Government (Respondent)

15