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Official Documents -- International Campaign Justice for SANKARA |
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Author´s Comments on the Observations of State Party, Burkina Faso on the Merits of Communication 1159/2003 (27 September 2004) submitted under the Optional Protocol to the International Covenant on Civil and Political Rights
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United Nations Human Rights Committee Case No. 1159/2003
Mariam Sankara et al.
Author et al.
v.
Burkina Faso
State Party
Author's Comments on the Observations of State Party, Burkina Faso on the Merits of Communication 1159/2003 (27 September 2004) submitted under the Optional Protocol to the International Covenant on Civil and Political Rights
Mariam Sankara et al. are represented by Counsels, forming the
Collectif Juridique International Justice Pour Sankara
Me Jean Abessolo (France)
Me Daouda Ba (Sénégal)
Me Bibi Barnabe (France)
Me Karim Bensakina
Me May Chiu (Canada)
Cabinet Sankara-Diallo (Burkina Faso)
Me Prosper Farama (Burkina Faso)
Me Milton James Fernandes (Canada)
Me Kimon Kling (Canada)
Me Catherine Gauvreau
Me Devotsou Kofimessa (Togo)
Me Sherley Morin (Canada)
Me Dieudonné Nkounkou (France)
Me Ferdinand Djammen Nzeppa (France)
Me John Philpot (Canada)
Me Nicole Bobillot-Prévost (France)
Me Charles Roach (Canada)
Me Aissata Tall Sall (Sénégal)
Me William Sloan (Canada)
Me Vincent Valaï (Canada)
28 rue Notre-Dame Est, suite 201 Montréal, Québec CANADA H2Y 1B9
TABLE OF CONTENTS
(I) PRELIMINARY
NEW INFORMATION FOR CONSIDERATION - 5 Oct. 2004 p 4
IMPACT OF NEW INFORMATION p 4
CHRONOLOGY OF RELEVANT FACTS: p 5
NEW JUDICIAL ADMISSIONS BY THE GOVERNMENT OF BURKINA FASO p6
(II) ARGUMENT p 8
A) RECONSIDERATION OF ARTICLE 6(1) AND RELATED COVENANT VIOLATIONS FOR THOMAS SANKARA BY THE HUMAN RIGHTS COMMITTEE BASED ON NEW EVIDENCE AND OFFICIAL ADOPTION OF PREVIOUS VIOLATIONS BY STATE PARTY, BURKINA FASO
FAILURE TO INITIATE JUDICIAL CRIMINAL PROCEEDINGS TO INVESTIGATE ALL CREDIBLE ALLEGATIONS IN RELATION TO THE DEATH OF THOMAS SANKARA WILL YIELD CONTINUOUS AND FURTHER VIOLATIONS UNDER THE COVENANT
Art. 6(1) imposes an obligation on Burkina Faso to investigate and criminally prosecute those responsible for violations of Thomas Sankara's right to life, and to respect and guarantee the right to life of Thomas Sankara.
The obligation to protect the human dignity of Thomas Sankara extends beyond his death.
Burkina Faso must guarantee and respect the human dignity of Thomas Sankara.
B) RECONSIDERATION OF ARTICLE 16 VIOLATION FOR AUGUSTE SANKARA ARISING FROM DECISION NO. 46 OF THE SUPREME COURT OF BURKINA FASO ON 19 JUNE 2001
C) THE AUTHORS HAVE DEMONSTRATED THAT THE GOVERNMENT OF BURKINA FASO HAS VIOLATED ON ONE HAND THEIR RIGHT NOT TO BE SUBJECTED TO CRUEL, INHUMANE AND DEGRADING TREATMENT OR PUNISHMENT AND ON THE OTHER HAND THEIR RIGHT TO PERSONAL LIBERTY AND SECURITY (ARTS 7, AND 9(1))
D) THE STATE PARTY VIOLATED THE SANKARA FAMILY'S RIGHTS TO OBTAIN GUARANTEE OF EQUALITY BEFORE THE LAW WITHOUT DISCRIMINATION ON THE BASIS OF POLITICAL OPINION (ART 26), AS WELL AS THE GUARANTEE OF IMPARTIALITY OF JUSTICE AS REQUIRED UNDER ARTICLE 14(1) OF THE COVENANT.
Discrimination on the basis of political opinion (art. 26)
Guarantee of impartiality (art 14(1))
Denial of Justice by the Supreme Court of Burkina Faso
III. CONCLUSIONS p 22
Additionnal Exhibits
(I) PRELIMINARY:
NEW INFORMATION FOR CONSIDERATION - 5 October 2004
The United Nations Human Rights Committee and the State Party, Burkina Faso must duly note a new fact which has only recently been revealed on 5 October 2004 and which is germane to the Committee's deliberations, and the State Party's obligations, arising from Communication 1159/2003.
On 5 October 2004 Brigadeer General John Tarnue, former commander of the Armed Forces of Liberia agreed to testify publicly in criminal proceedings before the UN-sponsored Special Court for Sierra Leone, sitting in Freetown, Sierra Leone.
During the course of the examination-in-chief by the prosecution, Brigadeer General Tarnue stated that in 1987, Blaise Compaoré (then minister of justice) informed Charles Taylor and John Tarnue directly of a pending assassination of Thomas Sankara, which was later realized on 15 October 1987
While Blaise Compaoré now holds the office of the President in Burkina Faso, the State Party, Burkina Faso remains empowered to conduct an independent judicial investigation to determine the circumstances of Thomas Sankara's death, and additionally determine whether Blaise Compaoré bears any responsibility for what is only now credibly alleged to be his participation in a conspiracy to assassinate Thomas Sankara.(Exhibit 21)
IMPACT OF NEW INFORMATION
For the surviving members of the Sankara Family, how the State Party, Burkina Faso now addresses this new information is integral to shedding light on the events leading up to 15 October 1987, and providing them with "effective remedies" for the ongoing breaches of their Covenant-protected rights, particularly their rights to know the circumstances of Thomas Sankara's death.
At its 80th session the Working Group established by the Human Rights Committee, pursuant to rule 87, paragraph 2, of the Committee's Rules of Procedure, adopted a decision on the admissibility of certain violations of the Covenant alleged in the present communication.
Based on information made available by the parties at the time of its deliberations on 9 March 2004, the Working Group decided that communication 1159/2003 had been substantiated for the purposes of admissibility only as regards articles 7, 9, paragraph 1, 14, paragraph 1, and 26 of the Covenant with respect to surviving members of the Sankara family, Mariam Sankara and her children, Auguste and Philippe.
The Working Group however declined to find that the facts alleged gave rise to violations under articles 17 and 23 as regards to members of the Sankara Family, in addition to declining the admissibility of acknowledged serious violations under article 6(1) and other Covenant-protected rights of the de cujus-victim, Thomas Sankara based on ratione temporis objections.
Also, the Working Group further noted that a distinct and separate violation under article 16 for Auguste Sankara (born on 21 September 1982) arising from decision No. 46 of the Supreme Court of Burkina Faso on 19 June 2001 had not been sufficiently substantiated for the purposes of admissibility during its deliberations.
Given additional information since 9 March 2004, including Declarations made by Burkina Faso in its comments of 27 Sept. 2004, the Human Rights Committee now has cause to reconsider serious violations under article 6(1) and other related violations of Covenant-protected rights for Thomas Sankara, as well as the distinct and separate violation under article 16 for Auguste Sankara which arose from Decision No. 46 of the Supreme Court of Burkina Faso, in addition to violations at issue for the surviving members of the Sankara Family under articles 7, 9, paragraph 1, 14, paragraph 1, and 26 of the Covenant which are set out herein.
No further Comments are made in respect of violations previously alleged under articles 17 and 23 of the Covenant.
Neither do the present Comments address every single argument which appears in the State Party's Observations on the Merits (27 Sept. 2004) as many of said arguments are either without legal basis under the Covenant, or simply ignore established Committee jurisprudence and procedure, and which may, in and of themselves, give rise to a failure on the part of Burkina Faso to meet its implicit obligations to furnish information and clarifications to the Committee in good faith in accordance with article 2(4) of the Covenant.
While it is acknowledged that the present communication is indeed the first against State Party, Burkina Faso under the Covenant and Optional Protocol, the Committee has specifically requested "written explanations or statements clarifying the matter and the measures, if any, that it may have taken" by Burkina Faso, and failure to meet this request may give rise to an additional breach of art. 2(4).
CHRONOLOGY OF RELEVANT FACTS
A partial chronology of relevant facts, as submitted by the Author et al. of the communication on 15 October 2002, has been duly summarized as follows:
2.1 On 15 October 1987, Thomas Sankara, President of Burkina Faso, was assassinated during a coup d'état in Ouagadougou.
2.2 From 1987 to 1997, the authorities did not, in the authors' opinion, conduct any inquiry into this assassination. Moreover, on 17 January 1988, a death certificate was issued, falsely stating that Thomas Sankara had died of natural causes.
2.3 On 29 September 1997, within the 10-year period of prescription, Ms. Mariam Sankara, in her capacity as spouse and on behalf of her two minor children, lodged a complaint with the senior examining judge in the Ouagadougou Tribunal de Grande Instance against a person or persons unknown for the assassination of Mr. Thomas Sankara and also for the falsification of administrative documents. On 9 October 1997, the authors paid a deposit of 1 million CFA francs, in accordance with the Code of Criminal Procedure.
2.4 On 25 January 1998, the Procureur Général du Faso issued a direction not to commence a judicial investigation, challenging the jurisdiction of the ordinary courts on the grounds that the alleged events occurred in a military establishment among members of the armed forces and non-combatant personnel and that the death certificate had been issued by the armed forces health service and signed by a physician with the rank of commander, and hence a member of the armed forces.
2.5 On 23 March 1998, in order No. 06/98, the examining judge decided, on the contrary, that the Ouagadougou Tribunal de Grande Instance was the ordinary court competent to examine the case.
2.6 On 2 April 1998, the Procureur du Faso appealed against this decision.
2.7 On 10 December 1999, in the absence of a decision by the Court of Appeal's indictment division, the counsels for the authors formally requested the Minister of Justice and the Supreme Council of Justice to take all necessary measures in order to ensure the impartiality of justice.
2.8 On 26 January 2000, by decision No. 14, the Ouagadougou Court of Appeal overruled order No. 06/98 of 23 March 1998 and declared the ordinary courts incompetent.
2.9 In the authors' opinion, despite Court of Appeal decision No. 14 and their own application of 27 January 2000, the Procureur du Faso refused or omitted to report the case to the Minister of Defence so that the latter could issue a prosecution order.
2.10 On 27 January 2000, the counsels contested the above-mentioned decision No. 14 by lodging an appeal with the judicial division of the Supreme Court.
2.11 On 19 June 2001, by decision No. 46, the Supreme Court declared the appeal inadmissible on the grounds that a deposit had not been paid.
2.12 On the same day, the counsels requested the Prosecutor-General in the Supreme Court to report the case to the Minister of Defence so that he could issue the prosecution order.
2.13 On 19 June 2001, during an interview focusing largely on the Sankara case, the President of Burkina Faso stated on Radio France Internationale that the Minister of Defence should not be dealing with sub judice cases.
2.14 On 25 June 2001, a further application was addressed to the Procureur du Faso. On the same date, the counsels requested the Minister of Defence to issue the prosecution order, anticipating a complaint from the prosecuting authorities.
2.15 On 23 July 2001, the Procureur du Faso replied to the counsels, stating that their request related to acts categorized as offences committed on 15 October 1987, in other words, over 13 years and 8 months previously, and that, in its decision of 26 January 2000, the Court of Appeal had declared itself incompetent and had instructed the parties to take proceedings in the proper court.
2.16 On 25 July 2001, disputing the Procureur du Faso's reply, the counsels once again requested that, in accordance with article 71 (3) of the Code of Military Justice, the case should be brought before the military courts, a remedy that cannot be exercised by the claimant for criminal indemnification. To date, no reply from the prosecutor, and hence no referral to the Minister of Defence, have been reported.
On 31 March 2003, the following information also became available via the Observations on Admissibility of State Party, Burkina Faso in the present communication proceedings:
On 31 March 2003, Burkina Faso officially acknowledged, for the first time that Thomas Sankara did not in fact die of natural causes on 15 October 1987;
On 31 March 2003, Burkina Faso's also acknowledged that certain State officials, as of 15 October 1987, had specific knowledge of the circumstances of Thomas Sankara's death on 15 October 1987.
NEW JUDICIAL ADMISSIONS BY THE GOVERNMENT OF BURKINA FASO
The government of Burkina Faso continues to make other judicial admissions in its commentaries of 27 September 2004. In the annexes to its Commentaries, Burkina Faso includes a list of "Victims of October 15, 1987." Victim number 10 is Thomas Sankara. The only paragraph contained in the document signed by the representative of the State Party, Madame Haby Djiga, is written:
"Except for the families of Thomas Sankara and Kiende Frédéric who did not appear, all representatives of the other victims have been indemnified… [emphasis added]"
We also wish to emphasize that Madame Haby Djiga is the Director of the Indemnity Fund for Victims of Political Violence.
The act of listing the name of Thomas Sankara as a victim, i.e. a person killed or hurt as a result of political violence, allows the Committee to infer that that the government of Burkina Faso has made another judicial admission recognizing Thomas Sankara as a victim of assassination a fortiori.
The term "victim of political violence" is equally repeated in pages 7 (last paragraph) and 8 (first paragraph) in the commentaries of the State Party27 Sept. 2004 with respect to Captain Thomas Sankara. Although the government of Burkina Faso does not confirm that President Sankara was assassinated, it makes another judicial admission in the first paragraph of page 8:
"Only the families of Thomas Sankara and Frédéric Kiende have not presented a request to the Indemnity Fund." [translation ours]
The Indemnity Fund is the indemnification fund for persons who are victims of political violence. The State again recognizes Thomas Sankara as a victim.
Elsewhere we recall that in paragraph 1.1.3 entitled "The events of October 15, 1987 and the death of Thomas Sankara" from the "Observations of the Government of Burkina Faso on the Admissibility of Communication no. 1159/2003" on page 5, Burkina Faso officially recognizes that Thomas Sankara did not die of natural causes on 15 October 1987. We should also keep in mind that in the same paragraph, Burkina Faso leads us to understand that certain state agents had knowledge of the identity of the people responsible for the death of Thomas Sankara and of the circumstances of the events surrounding 15 October 1987.
At paragraph 6.3 of the Admissibility Decision (9 March 2004), the Committee noted that the death certificate is contrary to facts which are public knowledge and attested by the State Party...
Consequently, in virtue of its obligations under the Covenant and the unanimous observations by the Committee in the case Vicente v. Colombia, supra, Burkina Faso has defaulted on its obligations, by refusing to investigate and not prosecuting and punishing those, who, with the knowledge of Burkina Faso, could be responsible for the death of Thomas Sankara.
These admissions contradict the conclusions requested by the State Party.
(II) ARGUMENT
A) RECONSIDERATION OF ARTICLE 6(1) AND RELATED COVENANT VIOLATIONS FOR THOMAS SANKARA BY THE HUMAN RIGHTS COMMITTEE BASED ON NEW EVIDENCE AND OFFICIAL ADOPTION OF PREVIOUS VIOLATIONS BY STATE PARTY, BURKINA FASO
On 9 March 2004, the Working Group of the Human Rights Committee, based on available information determined any alleged violation of Thomas Sankara's Covenant-protected right to life was inadmissible on ratione temporis grounds. The Working Group thus stated:
In this context, in conformity with its jurisprudence, the Committee is of the view that it cannot consider violations which occurred before the entry into force of the Optional Protocol for the State party unless those violations continue after the Protocol's entry into force. A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations of the State party. The Committee has taken note of the authors' arguments concerning, first, the absence of an inquiry by the authorities into the death (which was public knowledge) of Thomas Sankara and of proceedings against the guilty parties - allegations which are not in fact challenged by the State party. These constitute violations of their rights and of the obligations of States under the Covenant. Secondly, in order to remedy this situation, the authors initiated judicial proceedings on 29 September 1997, i.e. within the limits of the 10-year period of prescription, and these proceedings continued after the entry into force of the Covenant and the Optional Protocol for Burkina Faso. Contrary to the arguments of the State party, the Committee considers that the proceedings have been prolonged, not because of a procedural error on the part of the authors, but because of a conflict of competence between authorities. Given that, according to the information provided by the authors, the alleged violations resulting from the failure to conduct an inquiry and initiate proceedings against the guilty parties have affected them since the entry into force of the Covenant and the Optional Protocol because of the failure of the proceedings to date, the Committee considers that this part of the communication is admissible ratione temporis. [emphasis added].
On 27 September 2004, Burkina Faso clearly and unequivocally proffered its official reasons to justify the continuing refusals by its authorities to initiate or continue a judicial criminal investigation before either a military or civil tribunal in relation to the acknowledged unlawful death of Thomas Sankara. Burkina Faso's reason was presented in the following manner:
…au moment de l'entrée en vigueur du Pacte et du Protocole facultative à l'égard du Burkina Faso en avril 1999, L'Etat ne pouvait plus légalement engager une enquête sur la mort de Thomas Sankara. Toute action judiciaire au sujet de cette affaire étant prescrite depuis le 15 octobre 1997….[emphasis added]
This precise citation of 'prescription' as an obstacle to prosecution, adopts the identical rationale cited by the Procureur du Faso who refused to act on 23 July 2001, despite his clear and defined authority to do so, which had previously been exercised in respect of the violation of the right to life of one David OUEDRAOGO.
The Working Group had previously noted this so-called 'prescription' obstacle cited by the Procureur du Faso and altogether rejected such reasoning in no uncertain terms:
the Committee finds that the grounds for refusal adduced by the prosecutor on 23 July 2001 are manifestly unfounded since (a), as set forth above, prescription could not be applied (and had not in fact been applied by the various authorities throughout the proceedings), and (b) the authors could not themselves bring the case before the military courts…" [emphasis added]
This Declaration, which is binding on the State Party, Burkina Faso is not without consequence.
In fact and in law, the official adoption of this deemed "manifestly unfounded" ground for refusing to act, by the State Party, Burkina Faso as of 27 September 2004 must be now construed as a clear and unequivocal Act and Affirmation in which Burkina Faso affirms its previous violations as a State Party to the Covenant.
Moreover, the preliminary determination of the Working Group deeming the refusal based on 'prescription' adduced by the Procureur du Faso on 23 July 2001 has been vindicated given the availability of the text of article 7 of the Code de Procédure Pénale which states:
En matière de crime, l'action publique se prescrit par dix années révolues à compter du jour où le crime a été commis, si dans cet intervalle il n'a été fait aucun acte d'instruction ou de poursuite.
S'il en a été effectué dans cet intervalle, elle ne se prescrit qu'après dix années révolues à du dernier acte. Il en est ainsi même à compter de dernier acte. Il en est ainsi même à l'égard des personnes qui n'étaient pas visées par cet acte d'instruction ou de poursuite.
The last "acte d'instruction" in relation to the death of Thomas Sankara (and the falsification of his death certificate) was on 29 September 1997; by the very terms of article 7 of the Code de Procédure Pénale, prescription has not elapsed and Burkina Faso's authorities remain empowered to either continue or initiate judicial criminal proceedings accordingly
Given the failure all relevant Burkina Faso authorities to initiate any judicial proceedings in relation to the unlawful death of Thomas Sankara, and false or manifestly unfounded statements made by Burkina Faso's President , Minister of Defence , Supreme Court , and Prosecutor about their jurisdiction to do so, the Committee may now conclude that the State Party, Burkina Faso has now unequivocally affirmed, by cumulative acts and by clear implication, the previous violations of Thomas Sankara's art 6(1) and related rights under the Covenant.
FAILURE TO INITIATE JUDICIAL CRIMINAL PROCEEDINGS TO INVESIGATE ALL CREDIBLE ALLEGATIONS IN RELATION TO THE DEATH OF THOMAS SANKARA WILL YIELD CONTINUOUS AND FURTHER VIOLATIONS UNDER THE COVENANT
Art. 6(1) imposes an obligation on Burkina Faso to investigate and criminally prosecute those responsible for violations of Thomas Sankara's right to life, and to respect and guarantee the right to life of Thomas Sankara.
Article 6(1) imposes the obligation to prevent arbitrary loss of life. States are also under a duty to thoroughly investigate known and suspected violations of the right to life and to prosecute such violations. The Committee has affirmed this duty for attempted assassinations and also in cases where there is suspected state involvement in extra-judicial killings.
The protection of the victim's interests in enforcing the duty to investigate is exemplified by the remedies offered by the Human Rights Committee for victims of extra-judicial killings:
Victims of extrajudicial, summary or arbitrary executions should receive an adequate compensation from the State when the violation of the right to life was committed by a public official or other agents acting in an official or quasi-official capacity. The right of victims or their families to receive adequate compensation is both a recognition of the State's responsibility for the acts committed by its personnel and an expression of respect for the human being. [emphasis added]
Moreover, In Coronel et al v. Colombia, the Committee acknowledges that this duty to investigate and prosecute is owed to the deceased victim out of the State's obligation to respect and guarantee the life of its citizens.
[I]n its decision of 27 February 1998…the Human Rights Division of the Attorney General's Office acknowledged that State security forces had detained and killed the victims. Considering, furthermore, that the State party has not refuted these facts and that it has not taken the necessary measures against the persons responsible for the murder of the victims, the Committee concludes that the State did not respect or guarantee the right to life...[on behalf of the 7 deceased victims] in violation of article 6, paragraph 1, of the Covenant.
The obligation to protect the human dignity of Thomas Sankara extends beyond his death.
As with extra-patrimonial rights recognized in civilian jurisdictions, human dignity is a non-corporeal, inalienable human right. Generally, extra-patrimonial rights include such things as personality rights, the right to privacy, the right to one's image, and can include, inter alia, the right to respect for a person's name and reputation. Many of these rights persist beyond the death of a person and in some circumstances, may be inheritable.
The Constitution of Germany (like Burkina Faso, a civil law jurisdiction) has the most explicit declaration of the connection between human dignity and the deceased.
It would be incompatible with the constitutional command of the inviolability of human dignity [the right] which is the foundation of all other basic rights, if the human being, who conceives dignity by virtue of his personhood, could be degraded or humiliated in his right to respect even after his death. Accordingly, the obligation imposed on all state authority by Article 1 of the Basic Law to protect the individual from attacks on his dignity does not end with his death….
The issue of human dignity in relation to article 6 has been specifically addressed by Human Rights Committee in Sanlés Sanlés v Spain , where the heir of Ramón Sampedro Cameán, who was severely disabled, brought a complaint under the Covenant claiming that in preventing Mr. Sampedro's assisted suicide by threatening prosecution of anyone who assisted such a death, Spain had caused,
a violation of article 6 of the Covenant, arguing that life as protected by the Covenant refers not only to biological life, under any circumstances, but to a life of dignity, in contrast to the humiliating situation Mr. Sampedro suffered for over 29 years.
The Committee reasoned that insofar as the claim was brought on behalf of Mr. Sampedro, and insofar as he had in fact committed suicide prior to the complaint having been brought to the Committee, and insofar as the Spanish authorities had not pursued proceedings against those involved, the claim had become moot. In essence, there had not been a violation of Mr. Sampedro's right to die with dignity, yet the right itself was not challenged.
The circumstances of Thomas Sankara's death are markedly different. Unlike Mr. Sampedro who voluntarily committed suicide, Thomas Sankara was assassinated, and had no agency in the matter. Further, in Mr. Sampedro's case, Spain was held not to have violated his right to die with dignity as they were unable to prevent his suicide and did not pursue actions against those who assisted him. At the time the complaint was brought before the Human Rights Committee therefore, no violation could be found to exist. In contrast, the violation alleged with respect the Thomas Sankara is an on-going affront to his dignity resulting from a failure to investigate the circumstances of his death which persists until the present time.
The Human Rights Committee has also clearly acknowledged that obligations under the Covenant may be owed to persons after death. In Communication 717/1996 a member of the Committee stated,
With regard to the author's claim under article 16 of the Covenant, the Committee notes that the communication concerns the violation of the author's right to recognition everywhere as a person before the law, as a consequence of the lack of investigation of his whereabouts or location of the body. The committee considers this a fundamental right to which everyone is entitled, even after his death, and one that should be protected whenever its recognition is sought. [emphasis added]
In addition, there is some evidence to suggest that where the circumstances of death are surrounded by uncertainty, the right to recognition before the law may survive natural death:
While [the right to recognition as a person before the law] is extinguished on the death of the individual, it has effects which last beyond his or her death; this applies in particular to wills, or the thorny issue of organ donation;
This right survives a fortiori when the absence of the person is surrounded by uncertainty; he or she may reappear, and even if not present, does not cease to exist under the law; it is not possible to substitute civil death for confirmed natural death;
Burkina Faso must guarantee and respect the human dignity of Thomas Sankara.
It is an affront to human dignity to fail to establish the circumstances of an individual's death in the case of acknowledged extra-judicial killings. In light of evidence to suggest that Thomas Sankara may not have died of natural causes as maintained on his death certificate, but rather that he may have been assassinated in the course of a political coup, it is necessary to protect his dignity by establishing the truth of his death before proceeding to rectify his death certificate. The failure to launch an investigation as a precursor to rectifying his death certificate would represent a failure by the State Party to administer its appropriate functions.
That Thomas Sankara's death may be attributed to false causes diminishes Thomas Sankara's reputation and undermines his life's meaning. As such, Burkina Faso has an obligation to investigate and resolve the circumstances of his death, rather than simply altering his death certificate. To fail to do so is a failure to guarantee and respect the dignity of Thomas Sankara.
B) RECONSIDERATION OF ARTICLE 16 VIOLATION FOR AUGUSTE SANKARA ARISING FROM DECISION NO. 46 OF THE SUPREME COURT OF BURKINA FASO ON 19 JUNE 2001
The Committee may duly note that the State Party has continued in its refusal to proffer a copy of Decision No. 46 Supreme Court of Burkina Faso 19 June 2001, or to recognize the veracity of the copy provided by the Author et al.
It is clear that documents relevant to the Court's deliberation indicated that the rights of one minor child's rights were at stake
On 27 January 2000, Ms. Sankara and family lodged an appeal of the decision with the judicial division of the Supreme Court. When the notice was submitted to the head registrar at the Office, he neglected to read to them provisions of article 110 of order No. 91-0051/PRES of 26 August 1991, which states:
The claimant is required, on pain of inadmissibility, to pay a sum of 5,000 francs as a penalty deposit before the end of the month following his or her notice of intent to appeal .
The requirement to read out the provisions of article 110 is itself part of the provisions of article 110, which states:
The registrar receiving the notice of intent shall read out to the claimants the provisions of the foregoing two paragraphs and mention this formally in the record .
In addition, the registrar neglected to determine the age of Auguste Sankara, who, at the time the appeal was lodged, was 17-years-old (born 21 September 1982). As specified in article 111 of order No. 91-0051/PRES of 26 August 1991, minors under the age of 18 years are exempt from paying the 5,000 franc cfa penalty deposit .
On 19 June 2001, the Supreme Court declared the family's appeal inadmissible due to the non-payment of the 5,000 franc penalty deposit. The Court refused to accept the family's argument that they had never been told about the need to pay 5,000 francs cfa as deposit and ruled that the omission of the registrar to read the relevant provisions could have no legal consequence in relation to the family's claim. The Court additionally refused to determine the age of Auguste Sankara so that the family could request an exemption based on article 111 .
Had the Supreme Court of Burkina Faso examined all documents in the court file, before hearing any objections, including the civil complaint lodged on 29 Sept. 1997 which was at the very root of the appeal, then the Supreme Court would have read the birthday of the minor child, Auguste Sankara, born on 21 September 1982.
Counsels hereby provide proof that the minority of Auguste Sankara was also raised before the Supreme Court, but the Supreme Court simply ignored this fact.
Article 16 is an over-reaching provision; along with article 6 (right to life) it constitutes the foundation upon which all other rights are built. Like article 6 of the UDHR, article 16 is predicated upon the protection of inherent human dignity through the device of legal personality. Thus, it is non-derogable. Upon violation of a person's right to recognition before the law article 14, which protects equal access to the courts, is necessarily violated:
If one's humanity is not legally recognized, one will lose legal recognition of, and therefore be effectively denied, one's other human rights .
Recognition of legal personality is thus a necessary - and, in most basic and human rights catalogues, implicitly understood - prerequisite to all other rights of the individual… It means that the individual is a person (and not a thing) and furthermore is endowed with the capacity to be a person before the law. The latter means that the individual is bearer of rights and duties .
The 1991 Burkinabè Constitution recognizes and gives effect to the 1948 Universal Declaration of Human Rights, and the Covenant. Burkina Faso has acknowledged its responsibilities and obligations before this document within the preamble to the Constitution:
CONSCIENT de nos responsabilités et de nos devoirs devant l'histoire et devant l'humanité… SOUSCRIVANT à la déclaration universelle des Droits de l'Homme de 1948 et aux instruments internationaux traitant…
The proceeding before the Supreme Court of Burkina Faso was rejected on the basis of non-payment of a court fee under article 110 of regulation no.91-0051/PRES of August 26th, 1991. The fee of 5,000 francs is of public order, but article 111 of the same regulation contains exceptions as regards minors, prisoners and those who cannot afford legal counsel. Burkina Faso submits that:
De fait, l'omission de vérification de l'âge d'Auguste Sankara... ne saurait être regardée comme une violation de sa personnalité juridique, car une telle négation supposerait un refus exprès de lui reconnaître la qualité d'être humain, ce qui n'est nullement le cas en l'espèce. Du reste, la minorité est un statut juridique et son constat ou non ne porte en rien atteinte à la personnalité juridique de l'intéressé… l'exonération du dépôt de consignation prévue par l'article 111… au profit des mineurs ne peut être regardée comme étant d'ordre public. Il ne revenait donc pas à la Cour Suprême de relever d'office la qualité de mineur d'Auguste Sankara.
Quoi qu'il en soit, la requête d'Auguste Sankara n'est pas isolée de celle des autres membres de la famille et ne peut être appréciée en conséquence de façon séparée .
These assertions are manifestly unfounded for several reasons.
Firstly, Burkina Faso misinterprets the application and import of its own law in asserting that article 111 is not of public order, and hence derogable. If this assertion were maintained the motivation behind the provision would be frustrated. The exceptions to the procedural requirement afforded to minors are generally based on a consensus that minors are more vulnerable before the legal system. It is well established in international law that the rights of children deserve special protection. This special protection is enumerated within the preamble of the UN Convention on the Rights of the Child and arises from the particular vulnerability of children due to their acknowledged mental and physical immaturity. This vulnerability has been recognized by multiple Declarations and Conventions and has been addressed through protective legislation throughout the world, including in Burkina Faso .
Furthermore the obligations under article 110, which are conceded to be of public order, were not properly dispensed of by the court. The clerk was required to read out the provision requiring the payment of the fee, but at no point did he do so.
Also, it is illogical to claim that article 111, which serves to protect especially vulnerable individuals, is not of public order whilst the provision requiring that all parties to a proceeding be aware of the fee is of public order. If such a claim were admitted, it would follow that under one article the right to be fully informed is protected, while under the next those individuals who are particularly in danger of harm are rendered even more vulnerable. Such a conclusion is untenable. Former Magistrate of Burkina Faso Mr. Halidou OUEDRAOGO pronounced on the legal absurdity of such a situation in his legal opinion:
… la Cour aurait dû aller jusqu'au bout de son analyse et tirer toutes les conséquences qui s'y imposent puisqu'il existe des mineurs dans la procédure a elle déférée. Par ailleurs une consignation n'est autre chose que les frais du procès. D'abord les mineurs dans le cas d'espèce sont dispenses et ensuite, il a fallu une consignation pour la mise en mouvement de l'action publique dont la finalité vise l'application de la loi et du droit. Veuve SANKARA s'en passerait si la justice fonctionnait normalement .
The Supreme Court was under a positive obligation to make enquiries as to the age of Auguste Sankara in order that the suit could proceed. The right to recognition as a person before the law enshrines "one of the individual's rights of existence" . Nowak states that:
… the individual in a State governed by the rule of law also requires the recognition of his or her existence before the law, his or her legal subjectivity. Without this right, the individual could be degraded to a mere legal object… .
The refusal to take account of Auguste's individual particular status as a minor has the result of denying him access to the court. However, the root of the violation is deeper than article 14, para. 1 of the Covenant, as Auguste was not merely discriminated against on the basis that he was a minor. Rather, recognition and estimation of his legal personality were wholesale ignored. In effect, he was treated as an object capable of being dismissed by the legal system. This treatment squarely violates the crux of article 16, as is evidenced by the travaux préparatoires to the Covenant:
There was a general agreement that article 16 was intended to ensure that every person would be a subject, and not an object, of the law… .
F. Volio writes that:
'Legal personality' means an individual's 'personhood' in society. The law gives life to an individual, for practical purposes of living in society… Legal personality is bestowed by the legal order. It is not a gracious concession by political authority, but a necessary concomitant of being a human person which enables him to live in daily life, giving reality to the 'personhood' and protecting it against actions which would negate it. Without it, there would be no effective barriers to the exercise of arbitrary power and the never-ending efforts to conceal violations of fundamental freedoms under color of legitimacy… One may not say to any human being 'you are nothing' as a matter of law.
Burkina Faso claims that article 111 is not of public order. Rather, it is merely procedural; therefore the Supreme Court did not need to ascertain the age of Auguste Sankara. This reasoning leads to the conclusion that this specific provision is arbitrary and that its application is not uniform. Such reasoning goes directly against the need for the provision itself - to help give equal access to all individuals, especially those who could not normally afford such deposits. The non-uniform application of the law and arbitrary distinction as to whom it applies support the view that the Supreme Court exercised its power arbitrarily in an effort to "conceal violations of fundamental freedoms under color of legitimacy" .
These submissions are compatible with Committee jurisprudence. For example, the case of Avellanal v. Peru was found admissible under article 16. In that case the author was not recognized as a person capable of bringing suit on the procedural ground that only her husband could represent matrimonial property before the Courts. Thus her individual identity as a person holding juridical personality separate from her husband was not recognized before the court.
The Committee similarly rejected the validity of treating detainees as negotiation 'bargaining chips' in Concluding Comments on Israel . These two cases are clear examples of instances where persons have been regarded by the legal system as purely instrumental. Their legal personhood and individuality were judicially disregarded.
A corollary to legal subjectivity as guaranteed under article 16 is that recognition as a person requires the express individualization of people. A child's right to a name and nationality evidence this point:
A child must be distinguished with a name because a name 'individualizes' a person, differentiating him from others .
It follows that when a person is considered before the law he must be accorded appreciation and evaluation as a function of who s/he is as an individual person.
The above observations were at issue in Toala et al. v. New Zealand where the Committee stated:
They could also raise issues under article 16 of the Covenant in respect of Mrs. Toala and her son, Eka Toala since they were not treated as persons in their own right but rather as addenda to Mr. Toala who was considered a prohibited migrant… .
This reinforces the requirement under article 16 that an individual's personal attributes, rights and obligations be given due regard at law. Burkina Faso's assertion that Auguste's request could not be considered separately from his family and that therefore the Court was not obliged to determine his minority is in direct contradiction with the foregoing interpretation of article 16. The result is that his particular rights and needs as a minor were ignored and subsumed under the identity of his family members. He was effectively treated as an addendum to his family.
In terms of Burkina Faso's direct obligations under the Covenant, it is noted that "[A] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty" . Thus even the absurd characterization of article 111 as being derogable is not a valid defense to violations under the Covenant.
The evidence shows that the actions of the Supreme Court of Burkina Faso amounted to a denial of Auguste Sankara's right to recognition as a person before the law. The fact that his age was never determined by the Court, as is required by law, indicates that the Court treated him as an addendum to his mother and brother and effectively ignored his rights as an individual. The need to recognize these rights is not only provided for under Burkina Faso's own Constitution in article 4, but also under article 16 of the Covenant.
C) THE AUTHORS HAVE DEMONSTRATED THAT THE GOVERNMENT OF BURKINA FASO HAS VIOLATED ON ONE HAND THEIR RIGHT NOT TO BE SUBJECTED TO CRUEL, INHUMANE AND DEGRADING TREATMENT AND ON THE OTHER HAND THEIR RIGHT TO PERSONAL LIBERTY AND SECURITY ARTS 7, AND 9(1))
As per the initial communication of October 15, 2002, the authors have clearly expressed that the absence of a public inquiry and legal proceedings to determine the identity and civil and criminal responsibilities of Thomas Sankara's assassins constitute a serious denial of justice. As per the commentaries of August 30, 2003 to the State party's observations, the authors have reiterated this argument and emphasized that the authority of Burkina Faso have always failed to conduct a serious and exhaustive inquiry to establish the facts surrounding the death of Thomas Sankara. By acting in this manner, the government of Burkina Faso has prevented the family from finding the circumstances of the victim's death and the precise place where his remains were officially buried. Lastly, the unlawful conduct of the State has had the effect of intimidating and punishing the Sankara family, who have been unjustly left in a state of uncertainty and mental distress. The Committee may regard, from the standpoint of article 7 of the Covenant, the refusal to conduct a proper inquiry as cruel, inhumane and degrading treatment for the surviving members of the Sankara family, citing the communication No. 886/1999 (April 3, 2003) par. 10.2 (Schedko et al. v. Belarus)
In its decision of March 4, 2004, the Committee considered the authors' observations regarding the effects caused by the absence of a public inquiry to determine the identity of Thomas Sankara's assassins and it has determined that the communication is admissible under articles 7 and 9, paragraph 1 of the Covenant.
In its observations on the merit of the communication of September 24, 2004, the government of Burkina Faso did not contest the authors' allegations, therefore admitting the absence of a public inquiry to determine the identity of Thomas Sankara's assassins. The honourable members of the Committee should be able to conclude that the absence of a public inquiry to determine the identity of Thomas Sankara's assassins constitute a serious violation under articles 7, 9, paragraph 1 of the Covenant.
In a series of decisions, the Human Rights Committee has narrowed the scope of what may qualify as "effective remedies" within the scope of the Covenant for a de cujus whose right has been acknowledged as having been unlawfully infringed.
The State Party, Burkina Faso has acknowledged the right to life of Thomas Sankara was indeed unlawfully infringed.
It now remains for the Committee to qualify whether a "judicial investigation" is indeed the only remedy that a State Party can provide given the revelation of a credible allegation that a persons in place of high political office may bear some responsibility for a section 6(1) Covenant violation.
While that Author et al. acknowledge Committee jurisprudence that maintains that surviving family members have no rights to demand prosecution of any particular individual, the question of whether an independent judicial investigation is the only effective remedy available to stop an ongoing breach of their rights under section 7 remains to be resolved.
For the surviving members of the Sankara Family, how the State Party, Burkina Faso now addresses new information arising on 5 October 2004 in relation to Blaise Compaore's alleged role in the death of Thomas Sankara is integral to shedding light on the events leading up to 15 October 1987, and ensuring that their right to know the circumstances of Thomas Sankara's death is preserved.
D) THE STATE PARTY VIOLATED THE SANKARA FAMILY'S RIGHTS TO OBTAIN GUARANTEE OF EQUALITY BEFORE THE LAW WITHOUT DISCRIMINATION ON THE BASIS OF POLITICAL OPINION (ART 26), AS WELL AS THE GUARANTEE OF IMPARTIALITY OF JUSTICE AS REQUIRED UNDER ARTICLE 14(1) OF THE COVENANT.
As per their communication of 15 October 2002, the Authors et al. have underlined the State party's inability to ensure all guarantees of equality before the law. The Authors et al. have already stated that the government of Burkina Faso has not fulfilled its obligations by not permitting the members of the Sankara family to fully exercise their rights without suffering from discrimination based on their political opinion.
Discrimination on the basis of political opinion (art. 26)
In its observation of September 27, 2004, the State party attempts to refute the authors' allegations by stating at page 4, paragraph 2: Mrs. Sankara and her children cannot invoke that they have suffered from discrimination based on their political opinion since Mrs. Sankara has not lived in Burkina Faso since the death of her husband and that she and her children were never involved in politics. With this allegation, Burkina Faso is tactlessly attempting to refute the violations under articles 14, paragraph 1 and article 26 of the Covenant. A person can still have a political opinion, even if that person has not lived in Burkina Faso since 1987 and has not been involved in politics. The State party cannot claim to be exonerated of guaranteeing these rights without any serious motives and legal grounds. By adhering to the Covenant, the State party has committed itself to respect the equality of every individual before the law and must provide protection without discrimination, particularly discrimination based on a political opinion. In its observations, the State party did not submit any sufficient legal argument permitting to refute the authors' detailed allegations.
By its very own acknowledgment, the State Party has noted that surviving members of the Sankara family have been recognized as political refugees by authorities outside of Burkina Faso.
The attribution of international recognition as a political refugee by a foreign country entails a prima facie inference that discrimination on the basis of political opinion is, in fact, at issue in the country from which the refugee is fleeing. The risk of adverse differential treatment on the basis of actual or perceived political opinion is established.
Burkina Faso's allegations that the Sankara family has somehow sought "special treatment" before the Courts of Burkina Faso fails to comprehend the nature of discrimination which seeks to explain the adverse, unexplained and differential treatment experienced by members of the Sankara family at the hands of various authorities in Burkina Faso.
Guarantee of impartiality (art 14(1))
Denial of Justice by the Supreme Court of Burkina Faso
The jurisprudence of the Human Rights Committee itself confirms that a decision of a State Party's highest court can itself be the source of a denial of justice claim. The author realizes that the Committee has no independent fact finding ability and that it is generally not in its purview to review the evidence and facts as evaluated by domestic courts. However, the exception to this rule is enunciated in Griffin v. Spain:
… unless it can be ascertained that the proceedings were manifestly arbitrary, that there were procedural irregularities amounting to a denial of justice, or that the judge manifestly violated his obligation of impartiality .
In the present communication the Working Group has explicitly reserved jurisdiction of the Committee to address and evaluate a denial of justice claim by the Supreme Court of Burkina Faso itself in the following manner: at para. 6.6:
With particular regard to the application for recusation in respect of the President of the Supreme Court, the Committee considers that the authors could not know the Court's decision in advance, and that it will be for the Committee to determine, in the examination of the merits, whether the President's decision was arbitrary or constituted a denial of justice.
As previously mentioned, the Committee should note that Burkina Faso has failed again failed to provide a copy of the Supreme Court Decision No. 46 as an Annex at the Merits stage, as it had failed to do at the admissibility stage. The copy provided by the Author et al. must then be examined in light of all of the more detailed submissions in the Author et al.'s comments at the Admissibility stage which set out the absurd logic by which the Supreme Court used (the supposed payment due of a mere 5000 CFA fee) to refuse to decide the case on its merits.
Further details about the whole of the proceedings before the Supreme Court are more amply detailed in the first hand account of a witness to those proceedings, Me Dieudonné Nkounkou. NKOUNKOU, annexed hereto as an Exhibit.
The rights and freedoms enunciated in Burkina Faso's Constitution reflect the values of the Covenant, specifically the right to recognition before the law and equal protection before an independent and impartial judiciary:
Tous les Burkinabè et toute personne vivant au Burkina Faso bénéficient d'une égale protection de la loi. Tous ont droit à ce que leur cause soit entendue par une juridiction indépendante et impartiale .
While Burkina's Constitution may state that tribunals in Burkina Faso must be independent and impartial, it remains for the Committee to determine if the conduct of the Supreme Court the circumstances of the Sankara family's appeal are consistent with the guarantees of impartiality under the Covenant.
CONCLUSIONS:
The Author et al. respectfully request that the Human Rights Committee:
RECONSIDER violations alleged in respect of victims Auguste Sankara under article 16, and Thomas Sankara under article 6(1), and DECLARE that such violations are now substantiated for the purposes of admissibility based on new evidence and the explicit adoption of previous violations and illicit conduct by State Party since first consideration of said violations by the Committee's Working Group during its 80th session on 9 March 2004;
CONCLUDE that the whole of the facts before the Committee discloses distinct and continuing violations of articles 6(1), 7, 9(1), 14 (1), 16, and 26 of the Covenant;
REMIND the State Party that no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility;
ASK the State Party to provide and implement immediate measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations, including:
Providing for the immediate initiation, or continuation of, judicial proceeding to investigate and establish the whole of the circumstances surrounding the death of Thomas Sankara; including identification of the perpetrators of the killing, performing an autopsy and forensic scientific analysis, to locate where his body is buried and to provide such information to surviving family members;
Providing for the possibility of criminal prosecutions, where appropriate, and compensation for surviving family members;
RESERVE the rights of the Author et al. to make further submissions to the Committee, or to the designated Special Rapporteur for Follow Up on Views to ascertain that measures taken by the States Party implement effective remedies which fully address all violations arising in the present communication.
Submitted by the Collectif Juridique International Justice Pour Sankara
On November 12 , 2004
___________________ _________________________ _______________
Me Vincent Valaï Me Milton James Fernandes Me May Chiu
United Nations Human Rights Committee Case No. 1159/2003
Mariam Sankara et al.
Author et al.
v.
Burkina Faso
State Party
LIST OF ADDITIONAL EXHIBITS
EXHIBITS: (P-17, P-19 to P-XX)
P-17 (* Correspondence No. 744/99 not made available by Burkina Faso to date);
Correspondence No. 744/99 from the Procureur de Faso to the Minister of Defense of Burkina Faso to initiate criminal proceedings under article 71, par. 3 of the Code de Justice Militaire du Burkina Faso in relation to the violation of the right to life of one David OUEDRAOGO
P- 17.1 Request by Author's Counsels to Burkina Faso for communication of Correspondence No. 744/99 from Procureur de Faso to the Minister of Defense of Burkina Faso;
P-18 Texte of Article 7, Code de Procédure Pénale Burkinabé (Omitted from ANNEX 10, BF Observations on Admissibility)
En matière de crime, l'action publique se prescrit par dix années révolues à compter du jour où le crime a été commis, si dans cet intervalle il n'a été fait aucun acte d'instruction ou de poursuite.
S'il en a été effectué dans cet intervalle, elle ne se prescrit qu'après dix années révolues à du dernier acte. Il en est ainsi même à compter de dernier acte. Il en est ainsi même à l'égard des personnes qui n'étaient pas visées par cet acte d'instruction ou de poursuite
P-19 Affidavit of Dieudonné Nkounkou
P-20 AVIS JURIDIQUE SUPPLEMENTAIRE (Communication 1159/2003)
concernant le caractère d'ordre public des articles 110 et 111 de
Ordonnance No. 91-0051/PRES du 26 août 1991 portant composition, organisation et fonctionnement de la Cour Suprême (Burkina Faso). Halidou OUEDRAOGO, avocat et ancien magistrat
P-21 Videotape of television interview with Blais CAMPAORE, quasi interim President of Burkina Faso, Antenne 2, 25 October 1987
10 jours après l'assassinat de Thomas Sankara et de sa dizaine de camarades, enterrés à la sauvette dans des fosses anonymes, Blaise Compaoré ministre de la justice aux moments de l'évènement et auteur du coup d'Etat, répond désormais comme président aux questions de Martine Laroche Joubert et A. Saingt de la chaîne française Antenne 2 dans une entrevue exclusive
(Transcription fidèle et textuelle) :
"Nous pensons que c'est un devoir pour nous d'arranger sa tombe, de respecter sa mémoire"
-Vous avez des regrets?
"Oui, d'avoir perdu un ami bien sûr, et des regrets aussi qu'à un moment de sa vie il ait pensé à nous liquider, c'est dommage, hmmm, oui, hmmm..."
-[A la question de savoir ce qui c'est passé ce jour là, le président bredouille]:
"Non..j'ai dit que j'étais pas, que j'étais chez moi, j'étais même malade, et lorsque ça tirait.. heuu..ou je.. des camarades.. heuu un camarade ..enfin qui était chez moi peut le confirmer..je pensais même que c'était ma maison que l'on attaquait, je suis sorti même de ma maison avec mon arme pour me défendre, donc..."
P-22 "Transcripts" of the The Special Court for Sierra Leone, http://www.sc-sl.org/RUF-transcripts.html (5 October 2004: John Tarnue is identified as "Witness TF1-139") Forthcoming
Submitted by the Collectif Juridique International Justice Pour Sankara
On November 12, 2004
___________________ _________________________ _______________
Me Vincent Valaï Me Milton James Fernandes Me May Chiu
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