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Published online by Cambridge University Press: 27 December 2017
Does human rights law require countries to investigate serious crimes and bring those responsible to justice? And if so, how far must a country go to satisfy this requirement? This case concerns the murder of Norbert Zongo, an investigative journalist and director of the weekly Burkinabe magazine L'Indpéndenant, his younger brother Ernest Zongo, and two work companions. All four were killed in Burkina Faso on December 13, 1998, in suspicious circumstances. The case was brought by the families of Zongo and his colleagues (Individual Applicants) and the NGO Burkinabé Human and Peoples' Rights Movement (NGO Applicant, together the Applicants). The Applicants alleged that the murders of Zongo and his colleagues were not a random act of violence, but were instead related to their investigations into various political scandals, including those operating at the very highest levels of Burkinabe government. The Applicants claimed that Burkina Faso officials had not only failed to properly investigate the case, but also deliberately stymied the investigation, leading to a failure to bring those responsible for the deaths to justice. The judgment, rendered on March 28, 2014, is only the second judgment to be rendered on the merits by the African Court on Human and Peoples' Rights (the Court). The Court ruled unanimously that Burkina Faso had violated Article 1 and Article 7 of the African Charter on Human and Peoples' Rights. By a majority of 5 to 4, the Court also found that Burkina Faso had violated Article 9(2) of the African Charter on Human and Peoples' Rights and Article 66(2)(c) of the Revised Economic Community of West African States (ECOWAS) Treaty. Following the judgment on the merits, the Court rendered its reparations judgment, also included here. This is only the second reparations judgment rendered by the Court, and the first to award reparations to the victims.
1 The Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema alias Abiasse, Ernest Zongo and Blaise Ilboudo and the Burkinabe Movement on Human and Peoples' Rights v. Burkina Faso, No. 013/2011, Judgment, African Court on Human and Peoples' Rights [Afr. Ct. H.P.R.] (Mar. 28, 2014), http://en.african-court.org/images/Cases/Judgment/Nobert%20Zongo%20Judgment-%20English.pdf [hereinafter Afr. Ct. H.P.R. Judgment].
2 Id. ¶¶ 3–6.
3 Id. ¶¶ 12–14.
4 The Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema alias Abiasse, Ernest Zongo and Blaise Ilboudo and the Burkinabe Movement on Human and Peoples' Rights v. Burkina Faso, No. 013/2011, Judgment on Reparations, African Court on Human and Peoples' Rights [Afr. Ct. H.P.R.] (June 5, 2015), http://en.african-court.org/images/Cases/Ruling%20on%20Reparation/Application%20No%20013-2011%20-%20Beneficiaries%20of%20late%20Norbert%20%20Zongo-Ruling%20on%20Reparation.PDF [hereinafter Afr. Ct. H.P.R. Reparations Judgment].
5 Afr. Ct. H.P.R. Judgment, supra note 1, ¶ 32.
6 See Rule 40 of the African Court Rules, available at http://en.african-court.org/images/Protocol-Host%20Agrtmt/Final_Rules_of_Court_for_Publication_after_Harmonization_-_Final__English_7_sept_1_.pdf.
7 In particular, both parties were in agreement that there remained the possibility of the Individual Applicants bringing an appeal before Burkina Faso's Court de Cessation. See Afr. Ct. H.P.R. Judgment, supra note 1, ¶ 62.
8 Id. ¶ 63.
9 Id. ¶ 70.
10 The Court concluded that domestic litigation had taken seven years, eight months, and ten days (from December 13, 1998, to August 21, 2006). See Afr. Ct. H.P.R. Judgment, supra note 1, ¶ 105.
11 Id. ¶¶ 90, 104.
12 Id. ¶¶ 109–12.
13 The Applicants also brought this claim under Article 14 of the International Covenant on Civil and Political Rights and Article 8 of the Universal Declaration on Human Rights. See id. ¶ 114.
14 Id. ¶ 120.
15 Id. ¶ 155.
16 Id. ¶ 157.
17 Id. ¶¶ 187, 203(5). This confusing position is further highlighted by the dissenting opinion of Judge Niyungeko, Judge Ouguergouz, Judge Guisse, and Judge Aba, who dissent from the Court's finding of a violation of the aforementioned instruments. See Dissent ¶ 2, which refers to ¶ 187 of the Afr. Ct. H.P.R. Judgment as finding that “the Respondent State has violated the right to freedom of expression of journalists” whereas ¶ 187 of the Afr. Ct. H.P.R. Judgment actually reads “the Respondent State cannot be accused of directly violating the freedom of expression of journalists.”
18 Afr. Ct. H.P.R. Reparations Judgment, supra note 4, ¶ 1.
19 A corrigendum or explanation from the Court would be most useful.
20 Afr. Ct. H.P.R. Reparations Judgment, supra note 4, ¶ 30.
21 Id. ¶ 20.
22 African Court Protocol, Art. 27(1).
23 The Court took its definition of material damages from the Dictionnaire de Droit International Public as “one that affects economic or material interest, that is, interest which can immediately be assessed in monetary terms.” It took its definition of moral damages from the Inter-American Commission on Human Rights case Cantoral Benavides v. Peru, which defines moral damage as “one that affects the reputation, sentiments or affection of a natural person.” Afr. Ct. H.P.R. Reparations Judgment, supra note 4, ¶ 27.
24 Afr. Ct. H.P.R. Reparations Judgment, supra note 4, ¶ 2.
25 Id. ¶ 45.
26 Id. ¶ 46.
27 Id. ¶ 50.
28 Id. ¶ 62.
29 Id. ¶¶ 65, 66, 67. The Court was less convinced, however, of the NGO Applicant's claims for material damage, finding that there was no basis to grant the claim for reimbursements for organizing demonstrations. See id. ¶ 72.
30 Id. ¶¶ 86, 87, 94.
31 Id. ¶ 109.
32 Id. ¶ 108. A word of caution should be sounded, however. Since there appears to be no new evidence or information available, in order to comply with this order, Burkina Faso may opt simply to reopen the investigation—but this may not necessarily result in real progress being made.
