On 22 September 2022: The African Court on Human and Peoples’ Rights, delivered a Judgment in the case of Bernard Mornah v. Republic of Benin and 7 Others. The Court had requested PALU to be an amicus curiae in this case. PALU accepted and filed submissions on the case and also took part in the oral hearing.
Mr. Bernard Mornah (the Applicant) is a national of the Republic of Ghana. The Applicant had filed a case against eight (8) State Parties to the Protocol, that is, the Republic of Benin, Burkina Faso, Republic of Cote d’Ivoire, Republic of Ghana, Republic of Mali, Republic of Malawi, Republic of Tanzania, Republic of Tunisia (the Respondent States).
The Applicant had sought to have the Court hold the 8 States to have abdicated their International Obligations as envisioned in the African Charter on Human and peoples’ Rights and the Constitutive Act of the A.U. by admitting Morocco to the AU. The Applicant's argument was that the states admitted Morocco without any conditions requesting it to end its occupation of the SADR’s territory and thus the 8 States had failed to safeguard the sovereignty, independence, and territorial integrity of the Sahrawi Arab Democratic Republic (SADR).
The Court also observed that the right to self-determination is essentially related to peoples’ right to ownership over a particular territory and their political status over that territory. In this regard, the Court indicated that both the UN and the AU recognise the situation of SADR as one of occupation and consider its territory as one of those territories whose decolonisation process is not yet fully complete. As a result, it recalled that both organisations have consistently called for Morocco and SADR to engage in direct negotiations in good faith with a view to conducting a referendum to ensure the right to self-determination of the people of Western Sahara.
The Court also noted that, in view of the fact that part of the SADR’s territory was still under occupation by Morocco, there was no question that State Parties to the Charter have an obligation, individually and collectively, towards the people of SADR to protect their right to self-determination, particularly, by providing assistance in their struggle for freedom and by not recognising Morocco’s occupation and any human rights violation that might have resulted from such occupation.
However there was no evidence as to how the Respondent States had voted during the decision to admit Morocco to the A.U and as such the Court held that the Respondent States did not, individually or collectively, violate the right to self-determination of the people of the SADR guaranteed under Article 20 of the Charter. With regard to the alleged human rights violations directly ensuing from Morocco’s occupation, the Court found it unnecessary to examine or pronounce itself on them, as Morocco was not a party to this case.
In Closing the Court reiterated that the Respondent States, and indeed, all State Parties to the Charter and the Protocol, as well as all Member States of the AU, have the responsibility under international law, to find a permanent solution to the occupation and to ensure the enjoyment of the right to self-determination of the people of Western Sahara and not to do anything that would give recognition to such occupation as lawful or impede their enjoyment of this right.
