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Experience of submitting a communication relating to child soldiers before the African Committee of Experts on the Rights and Welfare of the Child. Details of the parties involved will remain confidential until the communication has been examined by the Committee during its 14th session in November 2009. The communication alleges the violation of a number of provisions in the African Children’s Charter, including the right to protection from abduction, physical and mental abuse, the right to survival and development, education, health, and to protection from participation in hostilities. The remedies sought include the demobilisation of child soldiers, provision of facilities to improve rehabilitation of former abductees as well as health and education facilities and declarations of violations on certain issues where explicit relief is not possible to construct in legal terms. Challenges The fact that Case 242 was the first ever complaint to be filed before the Committee of Experts (now there are at least five cases and periodic state reports awaiting consideration) presented unprecedented opportunities as well as challenges in the litigation of the case. Time frame Unlike national litigation where lawyers sometimes persuade the registrar to set a matter down for hearing, rules of procedure in international litigation do not provide for timelines within which certain aspects of a lawsuit should be completed. Generally speaking, the secretariat has no obligation whatsoever to seek to settle the case unless the Committee itself decides to do so. Unfortunately, the recently-adopted rules of procedure of the African Committee do not provide for such deadlines in case administration. We have been pushing for a hearing date since the day the case was submitted, and we are still looking forward to being invited for a hearing. This is an issue lawyers should keep lobbying for whenever rules of procedure of international treaty-bodies or tribunals are up for review. Lack of rules of procedure Perhaps this compounded the problem of a time frame. In 2002, the Committee adopted Rules of Procedure that govern administration of its business such as composition of the Committee, tenure of office members and so on. Not one sentence was adopted that dealt with the consideration of periodic reports and communications. In fact, through a fax communication dated the 5th of May 2006, the Committee took a decision during its 7th Session in December 2005 to suspend the consideration of the case because of lack of rules of procedure. These rules of procedure were only adopted in May 2007 after two years of pushing for their adoption. The time lapse The case was lodged in May 2005 and has yet to be heard. The time delay has an impact on the outcome of the case as the nature of evidence is such that it changes and loses its persuasiveness over time. The nature of the remedy being sought also changes with the passage of time. This meant that we had to revise and update the case. The nature of violations/ conflict The nature of the violations alleged in the case is directly linked to the conflict in the country concerned. Consequently, the case has to follow the direction taken by the conflict. For instance, cases of abductions peaked when the rebels needed to rebuild their ranks. This almost always took place after the failure of peace talks and threats of force by the government of the respondent state. The peace talks played, and continue to play, a major part in the litigation of this case. Logically, a dispute arising out of an armed conflict would certainly take a new twist if actors make efforts to settle their differences. For the past 18 months, there has been relative peace in the respondent state, such that abductions have almost ceased to occur even though quite a lot of children are still with the rebels in the bush. Furthermore, internally displaced people who have been kept in camps are slowly returning home. Formerly abducted children are also trickling back to Reception Centres established and operated by civil society for counselling and psycho-socio support. When taken holistically, one may easily conclude that the situation has changed so much that there is no need to continue with the case. In fact, such were the thoughts of some applicants that the case has to be withdrawn. For the reason that the communication is not client-driven but lawyer-driven, it was easy to arrive at that decision notwithstanding the negligible information that was available. In July 2007, the applicants (lawyers prosecuting the case) carried out a fact-finding mission to the respondent state during which the facts of the case were confirmed. However, after a motion was initiated by some applicants to withdraw the case, a decision was taken to send one applicant one more time to respondent state to confirm the indispensability of the case before a final decision could be taken. This was done in October 2007. The applicant found that most organisations and persons they met confirmed that despite the significant changes that have occurred, the case is still, if not more, relevant and should be concluded. On the basis of these findings, the case has not been withdrawn. Lack of national lawyer At the time when the case was submitted, one of the applicants was resident in the respondent state and was the national lawyer for purposes of the case. Being a citizen of the respondent state she was familiar with the legal and political system, around which the communication revolves. However, she then transferred to another African country to assume an occupation with the Special Court for Sierra Leone. The transfer had immediate financial implications in the sense that applicants had to send someone to the respondent state whenever a task had to be done there. That scenario had the effect of excessively drawing from the case allocation. What remains outstanding now is the hearing of the case. No more research is required although the communication has to be updated from time to time. Lack of partner organisation based in respondent state The absence of a national lawyer based in the respondent state made it mandatory for us to find a partner organisation based in the respondent state whose work is centred on child rights. There are many of these. However, none of them were willing to partner with us in this case. We followed up every connection available to us. We eventually found out that the reluctance to partner with us was mainly caused by the political sensitivity of the case. No one would dare question the government about the use of children in armed conflicts in the war in the respondent state. Had we found a partner organisation, there would have been no need for lawyers to travel to the respondent state for research purposes as we did in this case. We are happy that during the 11th ICJ-Kenya International Litigation Workshop in Accra, Ghana, the local law society of the respondent state, through its director accepted to be our partner organisation in the respondent state. However, this relationship is still to be furthered in order to draw the modalities of how to bring in this new partner. So far it is a resounding development as this will cut significantly on expenditure in this case. Getting victims or witnesses The communication was authored by individual lawyers without express consent from victims of the war in the north of respondent state. The argument we relied on was based on the jurisprudence of the African Commission on Human and Peoples’ Rights, that where there is a massive and serious violation, such consent becomes unnecessary. This principle is in fact at the heart of public interest litigation. We contacted many organisations that are responsible for receiving returnees if we could get victims as witnesses, but with little success. The reasons proffered were quite legitimate. One of them was the extent of the trauma those children went through in captivity such that most of them did not even want to talk about it. One of these organisations astounded us by telling us it was not possible to sue the government on the basis of the war because the government had done all it could to alleviate the plight of the children. We were open to such comments as they informed us on the need to proceed or abandon the case. However, we managed to get assistance in getting a victim. The source was someone who once did a research in the north of the respondent state who was able to put us in touch with some participants in that research. Should witnesses be necessary, we are now able to bring them forward for the hearing. Achievements Some of the keynote achievements have been summarised below. First case before the Committee The communication was the first case ever to be submitted before the African Committee of Experts on the Rights and Welfare of the Child. The main objective of the case was to get the Committee to work. Scholars had already prophesied that like many African Union babies, the Committee of Experts was going to start at a very slow pace unless galvanised through strategic litigation. We believe, and it has been confirmed from unofficial sources, that since the submission of the case, the Committee of Experts has been on its feet. Other persons and organisations have since submitted cases as well. Calling for a fact-finding mission to the north of the respondent state In the communication, we exhorted the Committee of Experts to resort to carry out a fact-finding mission in part of the respondent state in the shortest possible time in order for the members to acquaint themselves with what is happening on the ground as far as violations of child rights were concerned. The Committee undertook a fact-finding mission in December 2005. They made recommendations which were largely a reflection of their findings on the issues we raised in the communication. It was partly on this basis that attempts to withdraw the case were founded. One of our achievements was the adoption of the rules of procedure on considering communications and state reports, developed in May 2007. This was not an isolated event, but a culmination of formal and informal efforts to have them adopted and more importantly, to have the case considered. We have just sent out an e-mail asking about the progress of the case. Set-down date The Committee of Experts had indicated that the communication would be considered in April 2009 and was in fact partly considered during the 13th Meeting in Addis Ababa. A decision was taken to postpone the consideration of the communication to the 14th Meeting to allow for the updating and translation of the communication into French.
Adoption of Rules of Procedure