31ST CHRISTOF HEYNS AFRICAN HUMAN RIGHTS MOOT COURT COMPETITION

THE BRITISH UNIVERSITY IN EGYPT

25 – 30 JULY 2022, CAIRO, EGYPT

THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

IN THE MATTER BETWEEN

NGO ASHANTE

AND

THE REPUBLIC OF FOYALAN

MEMORIAL FOR THE APPLICANT

 LIST OF ABBREVIATIONS

ACHPR African Commission on Human and Peoples’ Rights

AfCLR African Court Law Reports

ACERWC African Committee of Experts on the Rights and Welfare of the Child

ACRWC African Charter on the Rights and Welfare of the Child

AHRLJ African Human Rights Law Journal

AHRLR African Human Rights Law Reports

AUCC African Union Convention on Cybersecurity and Personal Data Protection

CAT Committee Against Torture

CEDAW Convention on the Elimination of All Forms of Discrimination Against

Women

cf Compare

ECtHR European Court on Human Rights

GHG Greenhouse Gases

IACtHR Inter–American Court on Human Rights

1
ILC International Law Commission

ILO International Labour Organization

NGO Non–Governmental Organization

NO. Number
PCIJ Permanent Court of International Justice

UN United Nations

UN HCHR Office of the United Nations High Commissioner for Human Rights

INTERPRETATION

1. The African Charter means the African Charter on Human and Peoples’ Rights.

2. The Commission means the African Commission on Human and Peoples’ Rights.

3. The Court means the African Court on Human and Peoples’ Rights.

4. The Court’s Protocol means the Protocol to the African Charter on the Establishment

of the African Court on Human and Peoples’ Rights.

5. The UN Supplemental Protocol on Women and Child Trafficking means the Protocol

to Prevent, Suppress and Punish Trafficking in Persons Especially Women and

Children, Supplementing the United Nations Convention against Transnational

Organized Crimes.

6. The Maputo Protocol means the Protocol to the African Charter on Human and

2
 Peoples’ Rights on the Rights of Women in Africa.

TABLE OF AUTHORITIES

A. INTERNATIONAL TREATIES

1. African Charter on Human and Peoples’ Rights (Adopted 27 June 1981 at Nairobi,

Kenya, entered into force 21 October 1986)

2. African Charter on the Rights and Welfare of the Child (Adopted 11 July 1990 at

Monrovia, Liberia, entered into force 29 November 1999)

3. African Union Convention on Cybersecurity and Personal Data Protection (Adopted

27 June 2014 at Malabo, Equatorial Guinea)

4. ILO Forced Labour Convention (Adopted 28 June 1930 at Geneva, Switzerland,

entered into force 1 May 1932)

5. ILO Labour Inspection Convention (Adopted 11 July 1947 at Geneva, Switzerland,

entered into force 7 April 1950)

6. Protocol to the African Charter on the Establishment of the African Court on Human

and Peoples’ Rights (Adopted in 1998 at Ouagadougou, Burkina Faso, entered into

force 2004)

7. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of

3
 Women in Africa (Adopted 1 July 2003 at Maputo, Mozambique, entered into force

25 November 2005)

8. UN Convention on the Elimination of All Forms of Discrimination Against Women

(Adopted 18 September 1979 at New York City, entered into force 3 September 1981)

9. UN Supplemental Protocol on Women and Child Trafficking means the Protocol to

Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,
Supplementing the United Nations Convention against Transnational Organized

Crimes (Adopted 15 November 2000, entered into force 25 December 2003)

B. INTERNATIONAL DECLARATIONS AND RULES

1. Rules of the African Court on Human and Peoples’ Rights (Adopted 28 September

2020 at Arusha, Tanzania)

C. INTERPRETATIVE GUIDELINES OF TREATY MONITORING BODIES

1. UN HCHR, Fact Sheet No. 36, Human Rights and Human Trafficking, 2014

D. CASES OF THE AFRICAN COURT

1. African Commission v Kenya (Ogiek Case) [2017] 2 AfCLR 9

2. African Commission v Libya [2016] 1 AfCLR 153

3. Josiah v Tanzania [2019] 3 AfCLR 83

4. Kijiji Isiaga v Tanzania [2018] 2 AfCLR 218

5. Lohe Issa Konaté v Burkina Faso [2014] 1 AfCLR 314

6. Mariam Kouma and Another v Mali [2018] 2 AfCLR 237

7. Mtikila v Tanzania (reparations) [2014] 1 AfCLR 72

4
8. Mulindahabi v Rwanda [2019] 3 AfCLR 367

9. Mussa and Mangaya v Tanzania [2019] 3 AfCLR 629

10. Norbert Zongo v Burkina Faso [2014] 1 AfCLR 219

11. Tanganyika Law Society and Others v Tanzania [2013] 1 AfCLR 34

12. Thomas v Tanzania [2015] 1 AfCLR 465

13. Yogogombaye v Senegal [2009] AHRLR 315

E. CASES OF THE AFRICAN COMMISSION

1. Center for Minority Rights Development and Another v Kenya [2009] AHRLR 75

2. Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt II
[2011]

AHRLR 90

3. Jawara v Gambia [2000] AHRLR 10

4. Lawyers for Human Rights v Swaziland [2005] AHRLR 66

5. Majuru v Zimbabwe [2008] AHRLR 146

6. Sangonet v Tanzania [2010] AHRLR 113

7. Zimbabwe Lawyers for Human Rights and Another v Zimbabwe [2008] AHRLR 120

F. OTHER INTERNATIONAL CASES

1. Assanidze v Georgia [2004] Application No 715/03 (ECtHR)

2. Center for Human Rights and RADDHO v Senegal [2015] Application No 001/2012

(ACERWC)

3. Chorz´ow Factory [1928] PCIJ Series A, No. 17 (PCIJ)

4. Guengueng and Others v Senegal [2006] AHRLR 56 (CAT)

5. Gomes Lund v Brazil, 24 November 2010 (IACtHR)

5
G. NATIONAL LEGISLATIONS

1. Namibia Criminal Procedure Act 2004

2. Zimbabwe Criminal Procedure and Evidence Act

3. South African Criminal Procedure Act 1977

4. UK Prosecution of Offences Act 1985

H. NATIONAL COURT DECISIONS

1. Pennsylvania Department of Labour and Industry v Chester No 1583, CD 2019

I. BOOKS AND OTHERS

1. Crawford J, The ILC’s Articles on State Responsibility (Cambridge 2002)

2. Ngalwana V, ‘Commissions of Inquiry: A Positive or Negative

Intervention?’<https://www.anchoredinlaw.net/wpcontent/uploads/2019/02/Commissi

ons-of-Inquiry-1.pdf>accessed 14 May 2022

3. Onoria H, ‘The African Commission on Human and Peoples’ Rights and the

Exhaustion of Local Remedies under the African Charter’ (2003) 3 AHRLJ 1

4. Meta’s Ad Review Process and Policies<https://www.facebook.com/policies/ads/>

accessed 8 June 2022

6
 QUESTIONS PRESENTED

The Court is respectfully invited to adjudge:

1. Whether the Court has jurisdiction and the case is admissible.

2. Whether Foyalan violated the African Charter and other international human rights

law by placing a ban on traditional charcoal.

3. Whether Foyalan violated the African Charter and other international human rights

law by failing to hold Braun Inc. and Ansom accountable for human trafficking.

4. Whether Foyalan violated the African Charter and other international human rights

law by failing to hold Meta the parent company of Facebook and Instagram

accountable for facilitating domestic servitude and sexual enslavement.

SUMMARY OF ARGUMENTS

JURISDICTION AND ADMISSIBILITY

The Applicant submits that the Court has material, personal, temporal and territorial

jurisdiction to hear the matter. Concerning admissibility, the Applicant submits that local

7
remedies were exhausted in the case of the ban on traditional charcoal. Further, the

Applicant contends that in the case of human trafficking, the local remedies rule does

not apply because local remedies in Foyalan are unavailable, ineffective and

insufficient. In the case of the domestic servitude and sexual enslavement, the Applicant

submits that the pursuit of local remedies will be an exercise in futility.

MERIT A

The Applicant submits that Foyalan violated the African Charter and ACRWC because

the ban on traditional charcoal was unjustified and thus breached the right to culture of

the Nolo people and undermined the best interest of the Nolo children.

MERIT B

The Applicant submits that Foyalan violated the African Charter, ACRWC, Maputo

Protocol and the CEDAW by failing to properly investigate and duly prosecute Ansom

and Braun Inc. for human trafficking.

MERIT C

The Applicant submits that Foyalan violated the African Charter, AUCC, ACRWC and

Maputo Protocol by failing to hold Meta, the parent company of Facebook and

Instagram, accountable for facilitating domestic servitude and sexual enslavement.

8
 ARGUMENTS

I. JURISDICTION AND ADMISSIBILITY

A. JURISDICTION OF THE COURT

Rule 49(1) of the African Court Rules mandates the Court to conduct a preliminary

examination of its jurisdiction. In Mariam Kouma and Another v Mali, 1 the Court held

that according to its rules, it must satisfy itself that it has material, personal, temporal

and territorial jurisdiction. The Applicant submits that the Court has jurisdiction on all

four bases of jurisdiction.

(1) Material Jurisdiction

Article 3(2) of the Court’s Protocol grants the Court material jurisdiction in all matters

concerning the application and interpretation of the African Charter, the Protocol and

other relevant human rights instruments ratified by the Respondent State. The Applicant

contends that the Court has material jurisdiction because the ban on traditional

charcoal,2 the failure to hold Braun Inc. and Ansom accountable for human trafficking

and the failure to hold Meta accountable for facilitating domestic servitude and sexual

enslavement,3 call for the interpretation and application of the African Charter, the

Court’s Protocol, AUCC CEDAW, Maputo Protocol and ACRWC ratified by Foyalan. 4

1 [2018] 2 AfCLR 237 [25].

2 Facts, para 9.
3 Facts, paras 12–15, 23, 24.

4 Facts, para 5.

9
10
 (2) Personal Jurisdiction

Concerning personal jurisdiction, Article 5(3) of the Court’s Protocol allows NGOs with

observer status before the Commission to institute actions directly before the Court if

the State against whom the action is brought has made the Optional Declaration under

Article 34(6) of the Court’s Protocol. 5 Since Foyalan has ratified the Court’s Protocol,6

made the Optional Declaration, 7 and deposited it,8 allowing NGOs with observer status

before the African Commission such as NGO Ashante 9 to sue in the Court, it is

submitted that the Court has personal jurisdiction.

(3) Temporal Jurisdiction

Regarding temporal jurisdiction, the rule is that the alleged violations must have

occurred after the dates the African Charter, the Court’s Protocol and the Optional

Declaration under Article 34(6) of the Court’s Protocol, came into force for the

Respondent.10 Concerning the human trafficking11 and Meta’s facilitation of domestic

servitude and sexual enslavement,12 since the events leading to the alleged violations

occurred after
5 See Yogogombaye v Senegal [2009] AHRLR 315 [34].

6 Facts, para 5.

7 ibid.

8 ibid.

9 Facts, para 11.

10 African Commission v Kenya (merits) [2017] 2 AfCLR 9 [64].

11 Facts, paras 12–15, 23.

12 Facts, paras 12–15, 24.

11
Foyalan had ratified the African Charter, the Court’s Protocol and made the Optional

Declaration,13 the Court has temporal jurisdiction. Although Foyalan deposited the

Optional Declaration under Article 34(6) of the Court’s Protocol on 16 June 202014 long

after the ban on traditional charcoal on 1 January 2020, 15 the Applicant contends that

the Court has personal jurisdiction. In Kijiji Isiaga v Tanzania,16 the Court held that

where the alleged violation is continuing, the Court will still have personal jurisdiction

though it may have occurred before the dates that the African Charter, the Court’s

Protocol or the Optional Declaration enters into force for the Respondent. Therefore,

since the ban on traditional charcoal is presently subsisting, the Court has personal

jurisdiction.

(4) Territorial Jurisdiction

On territorial jurisdiction, the Court held in Konaté v Burkina Faso,17 that it would have

territorial jurisdiction over a case if the alleged violations occurred in the territory of the

Respondent State. Since the alleged violations 18 occurred within Foyalan, the Court has

territorial jurisdiction.

13 Facts, para 5.

14 ibid.

15 Facts, para 9.

16 [2018] 2 AfCLR 218 [37].

17 [2014] 1 AfCLR 314 [41].

18 Facts, paras 9, 12–15.

12
Accordingly, the Applicant submits that the Court has jurisdiction to hear the application.

B. ADMISSIBILITY OF THE APPLICATION

Article 6(2) of the Court’s Protocol mandates the Court to rule on the admissibility of

cases, taking into account the provisions of Article 56 of the African Charter. An

application is inadmissible if it does not meet all the requirements in Article 56 of the

African Charter.19 In this case, it is the local remedies requirement, which is in

contention.

(a) Exhaustion of Local Remedies

Article 56(5) of the African Charter and Rule 50(5) of the Court’s Rules provide that for a

communication to be admissible, an Applicant must exhaust all local remedies (ordinary

judicial remedies) in the Respondent State. 20 In African Commission v Libya,21 the Court

held that the Applicant must exhaust local remedies where they are available, effective

and sufficient unless they are unduly prolonged. Local remedies are available if they can

be pursued without impediment; they are effective if they offer a prospect of success;

and they are sufficient if they are capable of redressing the violations. 22 On these bases,

the Applicant submits that (1) local remedies were exhausted in case of the ban on

19 Sangonet v Tanzania [2010] AHRLR 113 [46].

20 Mussa and Mangaya v Tanzania [2019] 3 AfCLR 629 [35].

21 [2016] 1 AfCLR 153 [67].

22 Jawara v Gambia [2000] AHRLR 107 [32].

13
traditional charcoal; and (2) the requirement to exhaust local remedies should be waived

in the cases of the human trafficking, domestic servitude and sexual enslavement.

(1) Local Remedies were Exhausted in case of the Ban on Traditional Charcoal

In Josiah v Tanzania,23 the Court held that an application is admissible if the Applicant

has pursued ordinary judicial remedies to the apex court of the Respondent State. The

facts reveal that NGO Ashante in March 2020 challenged the ban on traditional

charcoal in the High Court and obtained judgment. 24 However, the decision of the High

Court was overturned by the Supreme Court in August 2021 following an appeal by the

government.25 To the extent that Foyalan law does not allow for any further right of

appeal beyond the Supreme Court, 26 the Applicant submits that local remedies were

exhausted in the circumstances.

(2) The Requirement to Exhaust Local Remedies should be waived in the

cases of the Human Trafficking, Domestic Servitude and Sexual Enslavement

Regarding the issue of human trafficking, the Applicant argues that considering the

egregious nature of the violations, only criminal prosecution can adequately remedy the

23 [2019] 3 AfCLR 83 [38].

24 Facts, para 11.

25 ibid.

26 Facts, para 4. See also, Judiciary Act of Foyalan 1999 (Annex I), art 12.

14
violations, which in the instant case, is unattainable. Under Foyalan law the Prosecutor

is the sole person mandated to prosecute offences and to appeal decisions in respect of

such prosecutions.27 The Applicant observes that the Prosecutor charged and

prosecuted

Ansom for human trafficking in the Criminal Division of the Libre Regional Court, 28 a

court known for corruption, bribery and sharp practice. 28 The court inexcusably

dismissed the evidence of the Prosecutor’s witnesses, Mariama and Masa, and

acquitted Ansom.29 After this the Prosecutor, though aware of the court’s error, failed to

appeal the decision.30 Since under Foyalan law, only the Prosecutor can appeal the

decision of a criminal trial,31 the Applicant and the victims of the violations were

incapacitated to commence an appeal. Gleaning from these, it is obvious that local

remedies are unavailable, ineffective and insufficient in the Respondent State. Following

the failed prosecution of Ansom,32 the Applicant instituted a civil action in the High Court

for human trafficking.33 The court dismissed the case holding that the allegations were

27 Facts, para 23.

28 Facts, para 4.

29 Facts, para 23.

30 ibid.

31 ibid.

32 ibid.

33 Facts, para 24.

15
unfounded.34 The Applicant being a diligent entity appealed to the Supreme Court but

the court refused to entertain the matter and recommended the establishment of a

Commission of Inquiry.35 On 1 October 2021, the President set up a Commission of

Inquiry and tasked it to provide recommendations

28
Facts, para 22.

about how to address human trafficking in Foyalan. 36 However, it has been defunct for

eight months since its inception. 37 In Norbert Zongo v Burkina Faso, 38 the Court noted

that an Applicant must not exhaust local remedies if its pursuit will be unduly prolonged.

Local remedies are unduly prolonged if they cannot be pursued within reasonable

time.39 In Majuru v Zimbabwe,40 the Commission held that six months is the standard

threshold in determining the reasonableness of time subject to the peculiar

circumstances of each case.41 Therefore, since the Commission of Inquiry is under

resourced and has been unfunctional for eight months, 42 waiting on its findings if any,

34 ibid.

35 ibid.
36 Facts, para 24.

37 ibid.

38 [2014] 1 AfCLR 219 [106].

39 Mulindahabi v Rwanda [2019] 3 AfCLR 367 [32].

40 [2008] AHRLR 146 [109].

41 cf Mariam Kouma (n 1) [37].

42 Facts, para 24.

16
will be unduly prolonged. Further, the Applicant argues that the Commission of Inquiry

being a creature of the

President is subjected to the exclusive direction, control and whims of the President. In

Lawyers for Human Rights v Swaziland,43 the Commission held that the requirement to

exhaust local remedies will be waived if the body providing the remedy is a creature of

the executive that is allegedly responsible for the violations complained of. On this

premise, assuming, arguendo, that the Commission of Inquiry finalizes its work anytime

soon, there will still be a problem with enforcement as this is at the discretion of the

President. Clearly, this gives the Applicant a slim chance to obtain remedies to redress

the violations. Consequently, it will be an exercise in futility for the Applicant to await the

findings of the Commission of Inquiry. In any event, the Applicant observes that the

Commission of Inquiry can only make recommendations and not afford judicial

remedies.44 In principle, the Applicant has a duty to exhaust only ordinary judicial

remedies in the Respondent State as was held by the Court in African Commission v

Kenya (Ogiek Case).45 To this end, since the Commission of Inquiry can only make

43 [2005] AHRLR 66 [27].

44 See Vuyani Ngalwana, ‘Commissions of Inquiry: A Positive or Negative

Intervention?’<https://www.anchoredinlaw.net/wpcontent/uploads/2019/02/Commissi

ons-of-Inquiry-1.pdf>accessed 14 May 2022.

45 [2017] 2 AfCLR 9 [97].

17
recommendations, the duty to exhaust does not arise. Therefore, the Applicant submits

that the requirement to exhaust local remedies must be waived in this case.

Concerning the issues of domestic servitude and sexual enslavement, the facts show

that the Prosecutor refused to charge Meta, the parent company of Facebook and

Instagram, under Article 67(2) of the Cybercrime Act 2019 on the unjustified grounds

that the ads had been removed from the platforms. 46 Further, the facts reveal that there

is an avenue for private prosecution if the Prosecutor refused to press charges. 47 Be

that as it may, the Applicant contends that the institution of private prosecution would

have been an exercise

in futility. It is trite learning that in common law countries, private prosecutions are

conducted under the fiat of the State Prosecutor who can enter a nolle prosequie to

discontinue the prosecution or withdraw the case from the trial court. 48 In the instant

case, Foyalan is a common law country. 49 Moreso, the Prosecutor is unjustifiably,

disinterested in pressing charges against Meta. Consequently, it is highly probable that

46 Facts, para 22.

47 ibid.
48 See for example, Namibia Criminal Procedure Act 2004, ss 5, 11; Zimbabwe

Criminal Procedure and Evidence Act, ss 13, 16; South Africa Criminal Procedure Act

1977, art

8(2), 13; UK Prosecution of Offences Act 1985, s 6.

49 Facts, para 4.

18
an attempt by the Applicant to undertake private prosecution will rear a swift

discontinuance intervention by the Prosecution. In the Ogiek Case supra, the Court

ruled that where it is obvious that an attempt by the Applicant to exhaust local remedies

will be an exercise in futility, the requirement to exhaust them would be waived. 50

Therefore, the requirement to exhaust local remedies must also be waived in this case.

Accordingly, the Applicant submits that the matter is admissible.

II. SUBMISSIONS ON THE MERITS OF THE CASE

A. THE BAN ON TRADITIONAL CHARCOAL

Article 1 of the African Charter obligates State Parties to protect the rights enshrined

under the Charter.51 Admittedly, in doing so, a State is allowed the discretion to limit the

rights of persons on grounds of ‘collective security, morality and common interest’. 52

50 cf Henry Onoria, ‘The African Commission on Human and Peoples’ Rights and the

Exhaustion of Local Remedies under the African Charter’ (2003) 3 AHRLJ 1, 7.

51 See also, Thomas v Tanzania [2015] 1 AfCLR 465 [135].

52 African Charter, art 27(2).

19
Even so, a limitation is justified if it is necessary and proportional. 53 The Applicant

submits that the ban on traditional charcoal is unjustified because it is unnecessary and

disproportional [1]. Therefore, it violates the right to culture of the Nolo people [2]; and

undermines the best interests of the Nolo children [3].

(1) The Ban on Traditional Charcoal is Unnecessary and Disproportional To

satisfy the bipartite requirements of necessity and proportionality, an action limiting the

rights of persons must be shown to advance public interest, to be the least restrictive

action, and not to destroy the essence of rights guaranteed under the African Charter. 54

These conditionalities are conjunctive in nature. 55 The Applicant contends that though

the ban seeks to obviate the impact of traditional charcoal on the climate, 56 (i) it is not

the

least restrictive measure; and (ii) it destroys the essence of rights guaranteed under the

African Charter.

i. The ban is not the least restrictive measure

The Applicant argues that rather than the abrupt ban on traditional charcoal, the

government could have enrolled a phasal plan to gradually ban the making and use of
53 Tanganyika Law Society and Others v Tanzania [2013] 1 AfCLR 34 [107.1].

54 Konaté (n 17) [149].

55 Zimbabwe Lawyers for Human Rights and Another v Zimbabwe [2008] AHRLR 120

[176] (ACHPR).

56 Facts, paras 8, 9, 10.

20
traditional charcoal. First, since traditional charcoal is made from wood logs and coconut

shells,57 the government could have limited production to only coconut shells. This

would have reduced the ‘carbon–sink’.58 Second, while at this, the government could

have then enrolled a diversion program to create alternative employment for the Nolo

people and afterwards ban the production of traditional charcoal totally. In that case, the

ban would not have impacted the livelihood of the Nolo people. Third, the government

could have then rolled out the use of fuel–efficient stoves for cooking, heating and other

domestic purposes at the household levels. This would have reduced the emission of

GHG and thus preserve the climate. Accordingly, the ban is not the least restrictive

measure. ii. The ban destroys the essence of rights guaranteed under the African

Charter

The traditional charcoal is the sole source of livelihood for the Nolo people and the

health, educational and social needs of their children depend on it. 59 Also, parents pass

on the skills and knowledge to their children. 60 Obviously, the Nolo people have

culturalized the

art of making traditional charcoal. Accordingly, their rights to work, health, education,

culture and cultural development, as guaranteed by the African Charter, 61 stems from

57 Facts, para 7.

58 Facts, para 8.

59 Facts, para 7.

60 ibid.
61 See African Charter, arts 15, 16(1), 17(1)(2), 22(1).

21
the subsistence of the traditional charcoal. Therefore, to ban traditional charcoal is to

eternally impede the enjoyment of these rights. In fact, for 26 months (1 January 2020 –

10 February 2022) since the ban was promulgated, the government has not rolled or

evinced an intention to roll out any diversion program to create alternative sources of

livelihood for the Nolo people.62 Clearly, it follows that the ban destroys the essentials of

the rights of the Nolo people.

Therefore, the Applicant submits that the ban on traditional charcoal is unjustified.

(2) The Violation of the Right to Culture

Article 17(2) of the African Charter guarantees the right to culture. In the Ogiek Case,

the Court explained that the duty to protect the right to culture encompasses the manner

in which a group engages in certain economic activities and produces items for

survival.63 Similarly, in the Endorois Case,64 the Commission noted the right to culture

includes the particular way of life associated with the use of land resources. On this

basis, the Applicant argues that to extent that the ban is unjustified, and also

considering that the

62 Facts, paras 9, 10, 25.

63 Ogiek Case [179].

64 Center for Minority Rights Development and Another v Kenya [2009] AHRLR 75
[243].

22
Nolo people have culturalized the art of making traditional charcoal, 65 Foyalan has

breached the right to culture of the Nolo people.

(3) The Ban undermines the Best Interests of the Nolo Children

Article 4 of the ACRWC provides that the best interests of the child shall be paramount

in all decisions taken by any person or authority. In Center for Human Rights and

RADDHO v Senegal,66 the ACERWC held that the best interests principle requires that

State Parties take measures that safeguard children’s rights and contribute effectively to

the well–being and holistic development of children. In the instant case, since the

proceeds from the traditional charcoal business are used to cater for the educational,

health and social needs of the Nolo children, 67 the ban clearly impedes the children’s

access to these amenities and thus, undermines their best interests.

Accordingly, Foyalan violated the African Charter and ACRWC by banning traditional

charcoal.

65 Facts, para 7.

66 [2015] Application No 001/2012 [34].

67 Facts, para 7.

23
B. THE FAILURE TO HOLD BRAUN INC. AND ANSOM ACCOUNTABLE FOR
HUMAN TRAFFICKING

The Applicant submits that by failing to hold Braun Inc. and Ansom accountable for

human trafficking, Foyalan has failed to protect Bourama, Massa, Alima, Omoma,

Mariama and others against human trafficking [1]. Consequently, Foyalan violated rights

guaranteed under the African Charter [2].

(1) Foyalan has Failed to Protect Bourama, Massa, Alima, Omoma, Mariama

and others against Human Trafficking

Under Article 29 of the ACRWR, State Parties are obligated to protect children from

human trafficking. Similarly, Article 4(2)(g) of the Maputo Protocol and Article 6 of the

CEDAW also guarantee the rights of women to protection against human trafficking.

Human trafficking refers to the recruitment or receipt of persons by means of fraud or

payment of consideration for sexual exploitation, forced labour or slavery. 68

Where there is an allegation of a wrong within the territory of a State, that State must

promptly and diligently conduct an exhaustive investigation into the matter and

prosecute the perpetrators, failing which it will be held responsible. 69 In Egyptian

68 UN Supplemental Protocol on Women and Child Trafficking, art 3(a).

69 Gabriel Shumba v Zimbabwe [2012] Application No 288/04 [153].

24
Initiative for Personal Rights and Interights v Arab Republic of Egypt II ,70 the

Commission held that a mere claim that there is insufficient information on the matter to

warrant investigation and

subsequent prosecution, cannot justify a State’s omission to investigate allegations of

wrongs within its territory. On these bases, the Applicant argues that Foyalan breached

its obligation to protect Bourama, Massa, Alima, Omoma, Mariama and others from

human trafficking because (i) Foyalan failed to conduct effective investigations, and (ii)

Foyalan has failed to duly prosecute Ansom for human trafficking.

i. Foyalan failed to conduct effective investigations

The facts show that after series of pressure from Pastor John, 71 Suame, the Libre Police

Chief under whom the site manager of Braun Inc. works directly, 72 referred the matter to

the labour inspector under the Ministry of Labour. 73 It is a notorious rule that a labour

inspector is only tasked to ensure corporate compliance within a State. 74 Thus, a labour

inspector lacks investigative powers to gather evidence of a wrong within a State. 75

Nonetheless, Suame referred the matter to the inspectorate despite the grievous nature

70 [2011] AHRLR 90 [163].

71 Facts, para 16.

72 ibid.

73 ibid.

74 See ILO Labour Inspection Convention 1947, art 3.

75 Pennsylvania Department of Labour and Industry v Chester, No 1583, CD 2019.

25
of the matter.76 Clearly, this was an incompetent reference. On receiving the matter, the

labour inspector notified Ansom of his visit to the company. 77 This enabled Ansom to put

his affairs in order. The girls were hidden and the boys were sternly threatened to keep

76 Facts, para 16.

77 ibid.

26
mute.79 As a result, the labour inspector found no evidence of wrong at Braun Inc. On

further pressure by Pastor John, 78 Suame tasked unscrupulous officer Bob to do the

investigation.79 Though officer Bob found no traces of wrong at Braun Inc., on leaving,

he received an ‘honorarium’ from Ansom, 80 a man who is a prime suspect. This

‘honorarium’ influenced officer Bob and subsequently, he informed Ansom of the

impending investigations that was to be led by Suame. 81 Consequently, Ansom covered

all his traces by sending all the girls away. 82 But for these lapses the investigations

would have uncovered the atrocities at Braun Inc. Thus, Foyalan failed to conduct

effective investigations into the allegations of human trafficking.

ii. Foyalan failed to duly prosecute Ansom for human trafficking

When Ansom was prosecuted for human trafficking, 83 the Libre Regional Court acquitted

him on the obscure basis that the evidence of the Prosecutor’s witnesses, Mariama and

Massa, were inadmissible.84 Mariama had lived with the boys, 85 witnessed their plight

and

78 Facts, para 20.

79 ibid.

80 ibid.

81 Facts, para 22.

82 ibid.

83 ibid.
84 Facts, para 23.

85 paras 14, 15, 16.

Facts,

27
79
Facts, para 16.

had even been a victim of the sexual wrath of some of the boys. 86 Though this could

have been corroborated by the paternity test she requested, the test was never

conducted.87 Despite these weighty facts, the court casted aspersion on her moral

character and dismissed her evidence.88 Aside Mariama’s evidence, the court also

dismissed the evidence of Massa on the unfounded excuse ‘he was a minor and was

suffering from an acute trauma of unknown origin’. 89 This conclusion was not based on

any certified medical evidence. Granted that Massa, a minor, suffered from acute

trauma, his evidence was admissible under Article 12(2) of Foyalan’s Evidence Act

1981 since he told the court the same facts as he had earlier proffered to Mariama. 90

Clearly, the court erred in dismissing the evidence of Mariama and Massa and although

this warranted an appeal, the

Prosecutor (with the sole authority to appeal) failed to appeal the decision. 91

Therefore, the Applicant submits that Foyalan has failed to protect Bourama, Massa,

Alima, Omoma, Mariama and others from human trafficking.

86 Facts, para 15.

87 Facts para 21.

88 Facts, para 23.

89 ibid.

90 Facts, paras 19, 23.

91 para 23.
Facts,

28
 (2) Foyalan Violated Rights under the African Charter

The UN HCHR has opined that human trafficking entails the violation of a bundle of

rights such as the rights to dignity, liberty and freedom of movement. 92 On this basis, the

Applicant argues that by failing to hold Braun Inc. and Ansom accountable for human

trafficking in the face of repeated sexual assault, rape, forced labour and restricted

movement,93 Foyalan has breached the rights to dignity, liberty and freedom of

movement guaranteed by the African Charter under Articles 5, 6 and 12(1) respectively.

Accordingly, Foyalan violated the African Charter, ACWRC, Maputo Protocol and

CEDAW by failing to hold Ansom and Braun Inc accountable for human trafficking.

92 UN HCHR, Human Rights and Human Trafficking (Fact Sheet No 36) 2014, p 4.

93 paras 13, 15.

Facts,

29
Facts,

30
C. THE FAILURE TO HOLD META THE PARENT COMPANY OF FACEBOOK AND

INSTAGRAM ACCOUNTABLE FOR DOMESTIC SERVITUDE AND SEXUAL

ENSLAVEMENT

The Applicant submits that by failing to hold Meta accountable, Foyalan has breached

its duty to protect Alima, Omoma, Mariama and the recruited young men against

domestic servitude and sexual enslavement [1]. Therefore, Foyalan violated their right

to dignity guaranteed by the African Charter [2].

(1) Foyalan Breached its Duty to Protect Alima, Omoma, Mariama and the

Recruited young men against Domestic Servitude and Sexual Enslavement Article

18(3) of the African Charter obligates State Parties to protect the rights of women and

children guaranteed in international conventions. Article 4(1) of the Maputo Protocol and

Articles 15 and 27 of the ACRWC obligate State Parties to protect women and children

from forced labour and sexual exploitation including domestic servitude 94 and sexual

enslavement respectively.95 In cybersecurity context, Article 25(1) of the AUCC requires

State Parties to legislate against cybercrimes such as child pornography and unsolicited

online nudities.96 More importantly, State Parties are duty–bound to prosecute juridical

persons who facilitate cybercrimes.97 On these bases, the Applicant argues that Foyalan

failed to protect the girls and the recruited young men from domestic servitude

94 ILO Forced Labour Convention 1930 (No 29), art 2(1).

95 See text to note 69.

96 AUCC, art 29(3)(a).

97 AUCC, art 30(2).

31
and sexual enslavement because despite Meta’s facilitation, Foyalan failed to charge

and prosecute Meta.

From the facts Ansom fraudulently advertised on Facebook for the employment of live–

in maids with a monthly salary of 10,000 Foyas. 98 This was intended to solicit young

girls to gratify the sexual escapades of the young boys already recruited. 99 Admittedly,

the contents of the ad were unsuggestive of any malice or probable exploitation. 100

Nonetheless, the Applicant contends that in accordance with Meta’s ad review policy, 101

Meta should have checked the facts undergirding Ansom’s ad before allowing same to

feature on its Facebook platform. It could be gleaned that Meta did not do that. Had it

done that, it would have discovered that Ansom’s ad was a façade to perpetrate sexual

exploitation on the young girls being recruited. Consequently, given that Alima, Omoma

and Mariama, aged 15, 17 and 18 respectively, were recruited through the ad on

Facebook,102 Meta facilitated the subsequent sexual enslavement that they suffered.

98 Facts, para 14.

99 Facts, para 13.

100 Facts, para14.

101 Meta’s Ad Review Process and Policies<https://www.facebook.com/policies/ads/>

accessed 5 June 2022.

102 Facts, para 14.

32
Digressing from this, when Ansom recruited Alima, Omoma and Mariama, he forcibly

took nude pictures of them and advertised them on Facebook and Instagram for seven

months

with the aim of recruiting more young men for forcible and payless work at Braun Inc. 103

Again, it appears that Meta did not observe its review policy on nudity. 104 Had it

reviewed the contents of the ad, it would have discovered its vulgarity and prevented its

publication.

As a result of the publication, more young men were recruited by Ansom through

Facebook and Instagram over the seven-month period during which the ad subsisted. 105

These events warranted the prosecution of Meta for facilitating cybercrimes. Yet,

Foyalan refused to charge Meta on the phony excuse that the ad had been removed by

Meta and as such could not be charged under Article 67(2) of its Cybercrime Act 2019.

The Applicant contends that while general international law allows states a margin of

appreciation in respect of matters within their territories, a state cannot invoke its

internal laws as a justification for not observing international obligations. 106 On this

premise, even though the removal of the ad may seemingly justify the non–prosecution

103 Facts, para 15.

104 See text to note 103.

105 Facts, para 15.

106 See Guengueng and Others v Senegal [2006] AHRLR 56 [5.6] (CAT).

33
of Meta under Foyalan law, given that the effects of the two ads have already been

actualized, prosecution was ripe in the circumstances.

Therefore, for failing to prosecute Meta, Foyalan has breached its duty to protect Alima,

Omoma and Mariama and the recruited young men against sexual enslavement and

domestic servitude.

(2) The Violation of the Right to Dignity

Article 5 of the African Charter guarantees the right to dignity. By this, State Parties are

obligated to protect persons from all forms of exploitation, degrading and inhumane

treatment such as sexual assault, rape, forced labour and torture. 107 The Applicant

argues that since Foyalan failed to prosecute Meta, it violated the right to dignity of

Alima,

Omoma, Mariama and the recruited young men.

Accordingly, Foyalan violated the African Charter, AUCC, ACRWC and Maputo Protocol

by failing to hold Meta accountable for facilitating domestic servitude and sexual

enslavement.

107 Egyptian Initiative for Personal Rights and Interights (n 71) [201], [202].

34
 III. SUBMISSIONS ON REPARATIONS

Under international law, ‘any breach of an engagement involves an obligation to make

reparation’.110 Thus, by Article 27(1) of Court’s Protocol, where a violation of human or

peoples’ rights is established, the Court shall make orders to remedy the violation,

including the payment of fair compensation, restitution, rehabilitation or guarantees of

non–repetition.108

Compensation lies to address pecuniary losses like loss of profit and employment

opportunities,109 and moral injuries like loss of dignity, psychological harm and

inconvenience,110 occasioned by the violation. Regarding restitution, it seeks to restore

108 See Mtikila v Tanzania (reparations) [2014] 1 AfCLR 72 [27].

109 Gomes Lund v Brazil, 24 November 2010 [287] (IACtHR).

110 Mtikila (n 111) [33]– [36].

35
the victims to their pre–violation status. 111 Concerning rehabilitation, it lies to provide

medical and psychological care and education to victims of the violation. 112 Finally, an

order of guarantees of non–repetition may lie to compel a Respondent State to properly

investigate and prosecute the perpetrators of the violations. 113

110
Chorz´ow Factory [1928] PCIJ Series A, No. 17 p. 29; James Crawford, The ILC’s

Articles on State Responsibility (Cambridge 2002) 147.

To this end, regarding the ban on traditional charcoal, the Applicant requests the Court

to (a) order Foyalan to compensate the Nolos for the loss of livelihood, profits and

inconvenience; (b) restore the Nolos to gainful employment by lifting the ban on

traditional charcoal.

Concerning the human trafficking, domestic servitude and sexual enslavement, the

Applicant requests the Court to order Foyalan to (a) rehabilitate the boys and girls for

the physical, mental and social trauma suffered from the forced labour, sexual assault

and rape; (b) investigate and prosecute Ansom and Braun Inc. and Meta for human

trafficking and for facilitating domestic servitude and sexual enslavement respectively;

(c) compensate the victims for distress and psychological harm.

111 Assanidze v Georgia [2004] Application No 715/03 [198].

112 Center for Human Rights (n 67) [48], [82].

113 Norbert Zongo v Burkina Faso (reparations) [2015] 1 AfCLR 258 [101]– [111].

36
 CONCLUSION AND PRAYERS

In light of the foregoing submissions, the Applicant respectfully prays the Court
to find, adjudge and declare:

1. That the Court has jurisdiction and the case is admissible.

2. That the ban on traditional charcoal by Foyalan violates the African Charter and

other international human rights law.

3. That Foyalan violated the African Charter and other international human rights law

by failing to hold Braun Inc. and Ansom accountable for human trafficking.

37
4. That Foyalan violated the African Charter and other international human rights law

by failing to hold Meta accountable for facilitating domestic servitude and sexual

enslavement.

Respectfully submitted,

Counsel for the Applicant.

38
31ST CHRISTOF HEYNS AFRICAN HUMAN RIGHTS MOOT COURT COMPETITION

THE BRITISH UNIVERSITY IN EGYPT

22 – 29 JULY 2022, CAIRO, EGYPT

THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

IN THE MATTER BETWEEN

NGO ASHANTE

AND

THE REPUBLIC OF FOYALAN

MEMORIAL FOR THE RESPONDENT

 LIST OF ABBREVIATIONS

ACHPR African Commission on Human and Peoples’ Rights

AfCLR African Court Law Reports

ACERWC African Committee of Experts on the Rights and Welfare of the Child

ACRWC African Charter on the Rights and Welfare of the Child

AHRLJ African Human Rights Law Journal

AHRLR African Human Rights Law Reports

AUCC African Union Convention on Cybersecurity and Personal Data Protection

AUILR American University International Law Review

CEDAW Convention on the Elimination of All Forms of Discrimination Against

Women cf Compare

FIDH International Federation for Human Rights

GHASC Ghana Supreme Court

GHG Greenhouse Gases

1
IACtHR Inter–American Court on Human Rights

ILC International Law Commission

ILO International Labour Organization

IPCC Intergovernmental Panel on Climate Change

NGO Non–Governmental Organization

NO. Number

PCIJ Permanent Court of International Justice

UN United Nations

UN HCHR Office of the United Nations High Commissioner for Human Rights

WHO World Health Organization

ZHR Zimbabwe Human Rights

2
 INTERPRETATION

1. The African Charter means the African Charter on Human and Peoples’ Rights.

2. The Commission means the African Commission on Human and Peoples’ Rights.

3. The Court means the African Court on Human and Peoples’ Rights.

4. The Court’s Protocol means the Protocol to the African Charter on the Establishment

of the African Court on Human and Peoples’ Rights.

5. The UN Supplemental Protocol on Women and Child Trafficking means the Protocol

to Prevent, Suppress and Punish Trafficking in Persons Especially Women and

Children, Supplementing the United Nations Convention against Transnational

Organized Crimes.

6. The Maputo Protocol means the Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Women in Africa.

TABLE OF AUTHORITIES

A. INTERNATIONAL TREATIES

1. African Charter on Human and Peoples’ Rights (Adopted 27 June 1981 at Nairobi,

Kenya, entered into force 21 October 1986)

3
2. African Charter on the Rights and Welfare of the Child (Adopted 11 July 1990 at

Monrovia, Liberia, entered into force 29 November 1999)

3. African Union Convention on Cybersecurity and Personal Data Protection (Adopted

27 June 2014 at Malabo, Equatorial Guinea)

4. ILO Forced Labour Convention (Adopted 28 June 1930 at Geneva, Switzerland,

entered into force 1 May 1932)

5. Protocol to the African Charter on the Establishment of the African Court on Human

and Peoples’ Rights (Adopted in 1998 at Ouagadougou, Burkina Faso, entered into

force 2004)

6. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of

Women in Africa (Adopted 1 July 2003 at Maputo, Mozambique, entered into force

25 November 2005)

7. UN Convention on the Elimination of All Forms of Discrimination Against Women

(Adoption 18 September 1979 at New York City, entered into force 3 September 1981)

1. UN Supplemental Protocol on Women and Child Trafficking means the Protocol to

Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children,
Supplementing the United Nations Convention against Transnational Organized Crimes
(Adopted 15 November 2000, entered into force 25 December 2003)

B. INTERNATIONAL DECLARATIONS AND RULES

1. Rules of the African Court on Human and Peoples’ Rights (Adopted 28 September

2020 at Arusha, Tanzania)

4
C. INTERPRETATIVE GUIDELINES OF TREATY MONITORING BODIES

1. UN HCHR, Fact Sheet No. 36, Human Rights and Human Trafficking, 2014

D. CASES OF THE AFRICAN COURT

1. African Commission v Kenya (Ogiek Case) [2017] 2 AfCLR 9

2. African Commission v Libya [2016] 1 AfCLR 153

3. Diakité Couple v Mali [2017] 2 AfCLR 118

4. Forum of Conscience v Sierra Leone [1998]

5. Jonas v Tanzania [2017] 2 AfCLR 101

6. Josiah v Tanzania [2019] 3 AfCLR 83

7. Kijiji Isiaga v Tanzania [2018] 2 AfCLR 218

8. Laurent Metongnon and Others v Benin [2022] Application No. 031/ 2018

9. Lohe Issa Konaté v Burkina Faso [2014] 1 AfCLR 314 10. Mariam Kouma and

Another v Mali [2018] 2 AfCLR 237

11. Mtikila v Tanzania (reparations) [2014] 1 AfCLR 72.

12. Mulindahabi v Rwanda [2019] 3 AfCLR 367

13. Norbert Zongo v Burkina Faso [2014] 1 AfCLR 219

14. Tanganyika Law Society and Others v Tanzania [2013] 1 AfCLR 34

15. Yacouba Traoré v Mali [2020] Application No. 010/ 2018

16. Yogogombaye v Senegal [2009] AHRLR 315

E. CASES OF THE AFRICAN COMMISSION

1. FIDH and Others v Senegal [2006] AHRLR 119

5
2. Gunme and Others v Cameroon [2009] AHRLR 9

3. Jawara v Gambia [2000] AHRLR 107

4. Prince v South Africa [2004] AHRLR 105

5. Tsatsu Tsikata v Ghana [2006] AHRLR 112

6. ZHR NGO Forum v Zimbabwe [2006] AHRLR 128

F. OTHER INTERNATIONAL CASES

1. Chorz´ow Factory [1928] PCIJ Series A, No. 17 (PCIJ)

2. Ricardo Canese v Paraguay [2004] (IACtHR)

3. Rodriguez v Honduras [1988] Series C No. 4 (IACtHR)

4. Silvia Arche and Others v Mexico [2005] Application No. 1176/ 03 (IACtHR)

G. NATIONAL COURT DECISIONS

5. Claude Oppong v Attorney General and Another [2017] GHASC 9

6. Doe v GTE Corporation 347 F 3d 055 (7th Circuit, 199)

H. REPORTS AND OTHERS

1. IPCC, ‘Climate Change 2022: Mitigation of Climate Change’ (Working Group III

contribution to the Sixth Assessment Report of the IPCC)

2. Meta’s Ad Review Process and Policies<https://www.facebook.com/policies/ads/>

accessed 8 June 2022

3. Shelton Dinah, ‘The Jurisprudence of the Inter–American Court of Human Rights’

(1994) 10 AUILR 333

6
4. UN, ‘Climate Action Fast

Facts’<https://www.un.org/en/climatechange/science/keyfindings>accessed 8 June

2022

5. WHO, ‘Climate Change and Health’, 30 October

2021<https://www.who.int/newsroom/fact-sheets/detail/climate-change-and-

health>accessed 8 June 2022

6. WHO, ‘Household Air Pollution and Health 2021’,

<https://www.who.int/newsroom/fact-sheets/detail/household-air-pollution-and-

health>accessed 8 June 2022

7
 QUESTIONS PRESENTED

The Court is respectfully invited to adjudge:

1. Whether the Court has jurisdiction and the case is admissible.

2. Whether Foyalan violated the African Charter and other international human rights

law by placing a ban on traditional charcoal.

3. Whether Foyalan violated the African Charter and other international human rights

law by failing to hold Braun Inc. and Ansom accountable for human trafficking.

4. Whether Foyalan violated the African Charter and other international human rights

law by failing to hold Meta, the parent company of Facebook and Instagram,

accountable for facilitating domestic servitude and sexual enslavement.

SUMMARY OF ARGUMENTS

JURISDICTION AND ADMISSIBILITY

The Respondent concedes that the Court has material, personal, temporal and territorial

jurisdiction to hear the matter. Concerning admissibility, the Respondent submits that

8
the matter is inadmissible because the local remedies available, effective and sufficient

in Foyalan were not exhausted.

MERIT A

Foyalan did not violate the African Charter because the ban on traditional charcoal was

justified and thus did not breach the right to culture of the Nolo people nor undermine

the best interests of the Nolo children.

MERIT B

It is submitted that Foyalan properly investigated and duly prosecuted Ansom and Braun

Inc. for human trafficking, hence has not violated the African Charter, ACRWC, Maputo

Protocol and the CEDAW.

MERIT C

The Respondent submits that it did not violate the African Charter, AUCC, ACRWC and

Maputo Protocol by refusing to hold Meta, the parent company of Facebook and

Instagram, accountable for facilitating domestic servitude and sexual enslavement.

ARGUMENTS

I. JURISDICTION AND ADMISSIBILITY

Facts,

9
A. JURISDICTION OF THE COURT

Rule 49(1) of the African Court Rules mandates the Court to conduct a preliminary

examination of its jurisdiction. In Mariam Kouma and Another v Mali, 114 the Court held

that according to its rules, it must satisfy itself that it has material, personal, temporal

and territorial jurisdiction. The Respondent concedes that the Court has jurisdiction on

all four heads.

(1) Material Jurisdiction

Article 3(2) of the Court’s Protocol grants the Court material jurisdiction in all matters

concerning the application and interpretation of the African Charter, the Protocol and

any other relevant human rights instruments ratified by the Respondent State. The

Respondent concedes that the Court has material jurisdiction because the treatment of

children’s and 20 senior staff of GoHRA, 115 the alleged failures to hold Mr. Putin Ageudo

accountable for illegal mining and Mr. Nsana accountable for corruption 116 call for the

interpretation and application of the African Charter, the Court’s Protocol, AUCC,

CEDAW, Maputo Protocol and ACRWC ratified by Foyalan. 117

(2) Personal Jurisdiction

Concerning personal jurisdiction, Article 5(3) of the Court’s Protocol allows NGOs with

observer status before the Commission to institute actions directly before the Court if

the State against whom the action is brought has made the Optional Declaration under

114 [2018] 2 AfCLR 237 [25].

115 Facts, para.

116 Facts, paras 12–15, 23, 24.

117 Facts, para 5.

10
Article 34(6) of the Court’s Protocol. 118
Since Sentsifia has ratified the Court’s

Protocol,119 made the Optional Declaration, 120 and deposited it,121 allowing NGOs with

observer status before the African Commission such as GoHRA 122 to sue in the Court,

the Court has personal jurisdiction.

(3) Temporal Jurisdiction

Regarding temporal jurisdiction, the rule is that the alleged violations must have

occurred after the dates the African Charter, the Court’s Protocol and the Optional

Declaration under Article 34(6) of the Court’s Protocol, came into force for the

Respondent State.123 Since the events leading to the alleged human trafficking, 124

domestic servitude and sexual enslavement, 125 occurred after Foyalan had ratified the

African Charter, the Court’s Protocol and made the Optional Declaration, 126 the Court

has temporal jurisdiction. Although Foyalan deposited the Optional Declaration on 16

118 See Yogogombaye v Senegal [2009] AHRLR 315 [34].

119 Facts, para 5.

120 ibid.

121 ibid.

122 Facts, para 11.

123 African Commission v Kenya (merits) [2017] 2 AfCLR 9 [64].

124 Facts, paras 12–15, 23.

125 Facts, paras 12–15, 24.

126 Facts, para 5.
Facts,

11
June 2020,127 long after the ban on traditional charcoal on 1 January 2020, 128 the

Respondent concedes that the Court has personal jurisdiction. In Kijiji Isiaga v

Tanzania,129 the Court held that where the alleged violation is continuing, the Court will

still have personal jurisdiction though it may have occurred before the dates that the

African Charter, the Court’s Protocol or the Optional Declaration enters into force for the

Respondent. Therefore, since the ban on traditional charcoal is subsisting, the Court

has personal jurisdiction.

(4) Territorial Jurisdiction

On territorial jurisdiction, the Court held in Konaté v Burkina Faso,130 that it would have

territorial jurisdiction over a case if the alleged violations occurred in the territory of the

Respondent State. Since the alleged violations 131 occurred within Foyalan, the Court

has territorial jurisdiction.

Accordingly, the Respondent concedes that the Court has jurisdiction to hear the

application.

B. ADMISSIBILITY OF THE APPLICATION

127 ibid.

128 Facts, para 9.

129 [2018] 2 AfCLR 218 [37].

130 [2014] 1 AfCLR 314 [41].

131 paras 9, 12–15.

12
Article 6(2) of the Protocol mandates the Court to rule on the admissibility of cases, taking into
account the provisions of Article 56 of the Charter. In Beneficiaries of Norbert Zongo et al v
Burkina Faso,132 the Court held that an application is inadmissible if it does not meet all the
requirements in Article 56 of the African Charter. The contentious one in this case is the
requirement to exhaust local remedies.

Article 56(5) of the African Charter and Rule 50(5) of the Court’s Rules provide that a
communication is admissible if the Applicant exhaust all local remedies in the Respondent State.
The purpose of exhausting local remedies is to afford the Respondent State an opportunity to
redress the alleged violations and to prevent the Court from being a court of first instance. 133
Based on these, the Respondent concedes that local remedies were exhausted in the case of the
ban on traditional charcoal [1] but contends that despite local remedies being available, effective
and sufficient in Foyalan [2], the Applicant failed to exhaust them in the cases of the alleged
human trafficking, domestic servitude and sexual enslavement [3].

(1) Local Remedies were Exhausted in the case of the Ban on

Traditional Charcoal

An application is admissible if the Applicant has pursued local remedies to the apex

court of the Respondent State. 134 In Jonas v Tanzania, the Court held that the

application was admissible because the Applicant had appealed against his conviction

in the Court of

132 [2013] 1 AfCLR 197 [84].

133 African Commission v Kenya (merits) [2017] 2 AfCLR 9 [94].

134 Josiah v Tanzania [2019] AfCLR 83 [38].

Facts,

13
Appeal, which was the highest court in Tanzania. 135 In the instant case, NGO Ashante

challenged the ban on traditional charcoal in the High Court and obtained judgment in

March 2020.136 However, in August 2021, the Supreme Court, Foyalan’s apex court,

overturned the decision of the High Court following an appeal by the government. 137

Accordingly, local remedies in Foyalan were pursued and exhausted by the Applicant.

(2) Local Remedies are Available, Effective and Sufficient in Foyalan In

Jawara v Gambia,138 the Commission noted that for local remedies to be exhausted,

they must be available, effective and sufficient. Local remedies are available if the

complainant can pursue them without impediments; they are effective if they offer a

prospect of success; and are sufficient if they are capable of redressing the complaint. 139

The test of availability is fulfilled in that local remedies in Foyalan are readily accessible.

Foyalan has a well–organized and effectively functioning five–tier court system with the

Supreme Court being the highest court of appeal in all matters. 140 The High Court

adjudicates on the bill of rights and is the court of first instance for all human right

matters with the right of further appeal to the Court of Appeal and to the Supreme

Court.141 There are no burdening conditions that one must fulfil before granted access to
135 [2017] 2 AfCLR 101 [44].

136 Facts, para 11.

137 ibid.

138 [2000] AHRLR 107 [31].

139 African Commission v Libya [2016] 1 AfCLR 153 [67].

140 para 4.
141 Facts, para 4.
14
any of the courts in Foyalan. All persons, natural and legal, can readily access the High

Court in any of the six regions in Foyalan to seek redress for any human right

violation.142 This is evident from the suit that NGO Ashante brought in the High Court to

challenge the ban on traditional charcoal.143

Regarding effectiveness, bringing claims before the local courts offered a prospect of

success. There are equal chances of either succeeding or losing in a suit. For instance,

the High Court in June 2020 expeditiously heard and ruled in favour of NGO Ashante

regarding the suit challenging the ban on traditional charcoal. 144 Although Ansom was

not found guilty for human trafficking by Libre Regional Court, the Respondent observes

that this was due to the lack of credible evidence to incriminate Ansom. 145 Accordingly,

this one incident cannot muddle the effectiveness of local remedies in Foyalan. 146

142 ibid.

143 Facts, para 11.

144 ibid.

145 Facts, para 23.

146 See Shelton Dinah, ‘The Jurisprudence of the Inter–American Court of Human
Rights’

(1994) 10 AUILR 333, 345.

Facts,

15
Regarding sufficiency, the local remedies in Foyalan were capable of redressing the

alleged violations. Under Foyalan law, both civil and penal remedies exist. On civil

remedies, this is seen from the decision of the High Court in favour of NGO Ashante on

the legality of the ban on traditional charcoal. 147 Though on appeal, the Supreme Court

ruled against NGO Ashante,148 which does not automatically imply that civil remedies

are insufficient in Foyalan.149 Ansom was prosecuted for human trafficking, 150 depicting

evidence of penal remedies in Foyalan. The fact that Ansom was not convicted does not

imply that penal remedies are insufficient in Foyalan. Assuming, arguendo, if there was

enough evidence to corroborate the Prosecutor’s evidence, Ansom would have been

convicted, imprisoned and fined. Thus, ending the ordeal of the victims of the alleged

violations. Pro tanto, local remedies are sufficient in Foyalan. Consequently, local

remedies in Foyalan are available, effective and sufficient.

(3) The Applicant failed to Exhaust Local Remedies in the cases of the Human

Trafficking, Domestic Servitude and Sexual Enslavement.

In the case of the human trafficking, the Respondent notes that Ansom was prosecuted

for human trafficking in the Libre Regional Court. 151 However, because no credible and

147 Facts, para 11.

148 ibid.

149 cf Shelton (n 33).

150 Facts, para 22.

151 ibid.
16
admissible evidence was adduced, the court found him not guilty. 152 Subsequently, the

Applicant instituted a civil claim in the High Court alleging various breaches of the bill of

rights.40 Again, for the lack of evidence, the High Court dismissed the suit. 41 On further

appeal, the Supreme Court being committed to unravelling the root cause of the matter

recommended that the President set up a Commission of Inquiry to gather more

credible evidence on the matter. 42 Acting in haste in accordance with the court’s

recommendation, the President set up a commission. 43 While the Commission of Inquiry

eagerly began investigations and even subpoenaed witnesses and documents, 153 the

Applicant impetuously brought the instant application. 154 In principle, local remedies

encapsulate not only judicial remedies but also, administrative remedies. 155 In Tsatsu

Tsikata v Ghana,156 the Commission held that a matter is inadmissible if it is pending

before an authorized body in the Respondent State. Likewise, in Laurent Metongnon

and Others v Benin157 and Yacouba Traoré v Mali,49 the Court established that

‘exhaustion of local remedies implies not only that the Applicant utilizes local remedies,

but also that the Applicant awaits the outcome thereof’. Accordingly, to the extent that

the matter is still pending before the

152 para 23.

153 ibid.

154 Facts, para 25.

155 FIDH and Others v Senegal [2006] AHRLR 119 [44].

156 [2006] AHRLR 112 [39].

157 [2022] Application No 031/2018 [51].

49
[2020] Application No 010/2018 [41].
Facts,

17
40
Facts, para 24.
41
ibid.
42
ibid.
43
ibid.

18
Commission of Inquiry,158 which is an authorized administrative body, 159 the present

application is inadmissible. The Respondent admits that the Commission of Inquiry has

been defunct for some time. Nonetheless, the Applicant is not exonerated of its duty to

exhaust local remedies in Foyalan. In Silvia Arche and Others v Mexico,160 the IACtHR

held that where the factors accounting for the prolongation of local remedies are not

directly attributable to the Respondent State, the requirement to exhaust them would not

be waived.161 Since the defunctness of the commission is due to the dire consequences

of COVID–19 on Foyalan’s economy, 162 the requirement to exhaust cannot be waived in

that the delay is unimputable to Foyalan. Therefore, local remedies were not exhausted.

Concerning the domestic servitude and sexual enslavement case, the facts reveal that

under Foyalan law, if the Prosecutor refuses to press charges, a private prosecution can

be instituted.163 The rule is that where local remedies are available, an Applicant must at

least attempt to exhaust them.164 In this case, despite the fact that Foyalan law allowed

for private prosecution, the Applicant did not even endeavor to explore it. In Mulindahabi

158 Facts, para 24.

159 See generally, Claude Oppong v Attorney–General and Another [2017] GHASC 9.

160 [2005] Application No 1176/03 [26]– [28].

161 FIDH, ‘Admissibility of Complaints before the African Court: Practical Guide’ (2016)
56.

162 Facts, para 24.

163 Facts, para 22.

164 Diakité Couple v Mali [2017] 2 AfCLR 118 [53].

19
Rwanda,165 an application was declared inadmissible because the Applicant did not

attempt to exhaust local remedies available in Rwanda. To this end, the Respondent

argues that the instant case is inadmissible.

Accordingly, the Respondent submits that the application is admissible in respect of the

ban on traditional charcoal but inadmissible in the cases of the human trafficking,

domestic servitude and sexual enslavement.

165 [2019] 3 AfCLR 367 [30]– [36].

20
 II. SUBMISSIONS ON THE MERITS OF THE CASE

A. THE BAN ON TRADITIONAL CHARCOAL

Admittedly, under Article 1 of the African Charter, State Parties have the duty to protect

the rights guaranteed by the Charter. However, provided it is necessary and

proportional,166 a State may limit the rights of persons on grounds of ‘collective security,

morality and common interest’.167 Moreso, State Parties have a greater duty to preserve

the right of persons to life, health and satisfactory environment. 168 Based on these, the

Respondent submits that the ban on traditional charcoal is necessary and proportional

because it preserves the essentials of the right to life, 169 health and satisfactory

environment of Foyalans [1]. Therefore, it does not violate the right to culture of the

Nolos [2] nor undermines the best interests of the Nolo children [3].

(1) The Ban on Traditional Charcoal is Necessary and Proportional The test

of necessity is fulfilled if the limitation is compelled by public interest, social importance

and outweighs the need for the enjoyment of the right restricted. 170 On the other hand,

166 Tanganyika Law Society and Others v Tanzania [2013] 1 AfCLR 34 [107.1].

167 African Charter, art 27(2).

168 African Charter, arts 4, 16(1), 24.

169 The fulcrum of all other rights: Forum of Conscience v Sierra Leone (1998) [19].

170 Ricardo Canese v Paraguay, 31 August 2004 [96] (IACtHR).

21
the test of proportionality is satisfied if there is a fair balance between the protection of

the rights of persons and the wholistic interest of the society. 171 The Applicant

contends that the tests of necessity and proportionality have been meet in the

circumstances.

i. The ban satisfies the test of necessity

In its recent report on climate change, the IPCC observed that the rise in climate

temperature is as a result of the increased emissions of the GHG which is caused inter

alia, by deforestation resulting from agriculture and charcoal production. 172 Also, the

WHO has reported that climate change poses a greater risk to human health, livelihood

and the economy of countries.173 It causes respiratory and cardiovascular diseases,

heat related illnesses resulting in death, poverty, increased hunger, drought, forced

displacement and loss of species. 174 Indeed, over 930 million (constituting 12% of the

world’s population) expend at least 10% of their household income on health care

171 Konaté (n 17) [149].

172 IPCC, ‘Climate Change 2022: Mitigation of Climate Change’ (Working Group III

contribution to the Sixth Assessment Report of the IPCC) 790.

173 WHO, ‘Climate Change and Health’, 30 October

2021<https://www.who.int/newsroom/fact-sheets/detail/climate-change-and-

health>accessed 8 June 2022.

174 UN, ‘Climate Action Fast

Facts’<https://www.un.org/en/climatechange/science/keyfindings>accessed 8 June

2022.
22
because of worsening climate conditions. 175 Even more disturbing is the catastrophic

impact of climate change on the economy of countries. It is estimated that Africa lost

$1.4 billion in revenue in 2018 because of climate change, and this heightened poverty

in Africa.176 With specific

reference to the production and use of charcoal, each year, close to four million people

die prematurely from illness attributable to household air pollution from inefficient

cooking practices including charcoal.177 Taking these into account, the Respondent

argues that the ban on traditional charcoal is necessary to safeguard the environment,

climate system and the lives, health and well–being of the Nolo people and Foyalans at

large.

ii. The ban meets the test of proportionality

As argued above, the ban is necessary to safeguard the right to life, health and

satisfactory environment of Foyalans. Considering this fact and also that currently,

Foyalan’s economy is impoverished owing to the dire consequences of the COVID–

19,178 to allow the continuous production and use of traditional charcoal in Foyalan will

175 See text note 65.

176 IPCC, ‘Climate Change 2022: Mitigation of Climate Change’ 2583.

177 WHO, ‘Household Air Pollution and Health 2021’,

<https://www.who.int/newsroom/fact-sheets/detail/household-air-pollution-and-

health>accessed 8 June 2022.

178 Facts, para 2.

23
occasion greater destitution to Foyalan’s economy, environment, and the health and life

of its people. Thus, the ban obviates Foyalan of greater hardship that could result from

worsening climate conditions. Clearly, on a scale, the benefits of the ban substantially

outstrip its effect on the Nolo people. Though since the institution of the ban, Foyalan

has not rolled out any diversion programme to create alternative employment for the

Nolo people, it is submitted that since the duty to create employment is an incident of

economic rights, its realization is subject to the economic situation in Foyalan. 179 In

Prince v South

Africa,180 the Commission noted that by the doctrine of margin of appreciation, a state, in

protecting the rights of its citizens, may do so having regard to its peculiar social,

economic and political situation. As such, given the present sickened economy of

Foyalan, the lack of a diversion programme does not make the ban disproportional.

Therefore, the Applicant submits that the ban on traditional charcoal is justified.

(2) The Alleged Violation of the Right to Culture

The Respondent acknowledges its obligation to refrain from taking any action that

interferes with people’s right to culture contrary to Article 17(2) of the African Charter.

The Respondent however contends that the ban on traditional charcoal is justified and

therefore does not violate the right to culture of the Nolo people.

179 cf Gunme and Others v Cameroon [2009] AHRLR 9 [206].

180 [2004] AHRLR 105 [51].

24
 (3) The Ban advances the Best Interests of the Nolo Children

Article 4 of the ACRWC provides that the best interests of the child shall be paramount

in all decisions taken by any person or authority. Children are the most vulnerable

victims of climate change and its impact. 181 Therefore, since the Nolo children provide

direct labour to their parents in producing the traditional charcoal, 182 the Respondent

argues that the ban advances the best interest of the Nolo children. This is because it

saves them from dire consequences of poor health and substandard quality of life

resulting from the making and use of traditional charcoal and worsened climate

temperature.

Accordingly, Foyalan has not violated the African Charter and ACRWC by banning

traditional charcoal.

B. THE FAILURE TO HOLD BRAUN INC. AND ANSOM ACCOUNTABLE FOR

HUMAN TRAFFICKING

The Respondent submits that Foyalan has not failed to protect Bourama, Massa, Alima,

Omoma, Mariama and others against human trafficking [1]. Consequently, Foyalan has

not violated rights guaranteed under the African Charter [2].

(1) Foyalan has not failed to Protect Bourama, Massa, Alima, Omoma, Mariama
and others against Human Trafficking

181 Climate Change and Health supra.

182 Facts, para 7.

25
The Respondent acknowledges its duty under Article 29 of the ACRWC and Articles

4(2)(g) and 6 of the Maputo Protocol and CEDAW respectively to protect children and

women from human trafficking. Indeed, forming part of the duty to protect is the

obligation to conduct investigations into allegations of human trafficking and make

reparations. However, a state is only responsible for wrongs committed by private

citizens if the state fails to conduct diligent and effective investigations. 183 In Rodriguez v

Honduras,184 the IACtHR ruled that in determining whether a state has discharged its

due diligence obligations in respect of private violations, consideration must be given to

the efforts that the State has exerted in conducting the investigations and holding the

perpetrators accountable. Based on these, the Respondent argues that Foyalan has not

failed to protect Bourama, Massa, Alima, Omoma, Mariama and others from human

trafficking because (i) it has conducted and is still conducting effective investigations,

and (ii) it duly prosecuted Ansom for human trafficking.

i. Foyalan has conducted and is still conducting effective investigations Foyalan

has conducted three different investigations into the allegations of human trafficking

levelled against Ansom and Braun Inc. First, the Labour Inspector conducted an

inspection on the premises of Braun Inc. but found no evidence of sex work, hazardous

work or anything immoral as alleged. 185 Admittedly, the labour inspector put Ansom on

notice before conducting the inspection. 186 However, this was in compliance with his

183 See ZHR NGO Forum v Zimbabwe [2006] AHRLR 128 [145].

184 [1988] Series C No 4.

185 Facts, para 16.

186 ibid.
26
duty to notify an employer or his representative before an inspection visit as dictated by

international labour standards.187 Second, a night raid conducted by the Department of

Labour’s Anti-Slavery Unit at Braun Inc.’s fishery was fruitless as no incriminating

evidence was found as alleged.188 Third, the Police Chief, Suame conducted

investigations at Braun Inc.’s shed where the girls were allegedly held. 189 Again, no

evidence was found to corroborate the allegations. 190 In his bid to get to the root of the

alleged human trafficking, Suame sent out missing alerts to find the missing girls but

without success.191 Though Officer Bob, regrettably, informed Ansom of Suame’s visit to

Braun Inc.,192 the Respondent argues that that in itself should not singularly overshadow

the diligent, prompt and serious posture of Foyalan in investigating the allegations of

human trafficking. In ZHR NGO Forum v Zimbabwe,193 the Commission noted that the

mere fact that an investigation yielded an ineffective result or no result does not

establish lack of due diligence by a state. Thus, despite the slight lapses in the

investigative process, Foyalan has diligently and effectively conducted investigations

into the allegations of human trafficking.

187 See ILO Inspection Convention, 1947 (No 81), art 12(2).

188 Facts, para 17.

189 Facts, para 22.

190 ibid.

191 ibid.

192 ibid.
193 [2006] AHRLR 128 [158] (emphasis added).
27
Aside the series of investigations already undertaken, Foyalan, as an assiduous state,

has currently, set up a Commission of Inquiry to investigate and provide

recommendations on how to deal with human trafficking in Foyalan if any. 194 The

Commission has begun subpoenaing witnesses and documents. 195 This clearly proves

Foyalan’s unwavering commitment towards protecting persons from human trafficking if

any exist in Foyalan.

ii. Foyalan duly Prosecuted Ansom for human trafficking

The facts show that the Prosecutor prosecuted Ansom for human trafficking relying on

the testimonies of Mariama and Masa.196 Mariama and Masa’s evidence were dismissed

for lack of credibility.89 Mariama’s evidence consisted partly of a series of hearsay in that

she was not a first–hand witness of the alleged drowning of Kofi. 197 All she proffered

were told to her by Masa, a minor who suffers from acute trauma, 198 that impairs his

mental faculties and his ability to recollect past events. Even the evidence of her

194 Facts, para 24.

195 ibid.

196 Facts, para 22.

89
Facts, para 23.

197 Facts, para 19.

198 Facts, para 23.

28
pregnancy was not corroborated. Truthfully, Mariama requested for a paternity test. 199

Nonetheless, the paternity test would have only proved the father of her baby and would

not have established any direct nexus to the circumstances under which she became

pregnant except obscure conjectures. If Mariama’s story was true, she could have

requested the court to subpoena Mukwe, the supposed employee of Braun Inc. who

took her to the hospital,200 to corroborate her testimony. Although, unintelligently, the

trial judge condescended on Mariama’s moral character, 94 that did not in any way form

the basis for rejecting her testimony as clearly Mariama’s testimony was

uncorroborated. Consequently, the Libre Regional Court was justified in dismissing

Mariama and Masa’s testimonies and thus, Ansom was duly prosecuted.

Therefore, the Respondent submits that Foyalan has not failed to protect Bourama,

Massa, Alima, Omoma, Mariama and others from human trafficking.

(2) The Alleged Violations of Rights under the African Charter

Foyalan acknowledges that human trafficking entails the violation of a bundle of rights

such as the rights to dignity, liberty and freedom of movement. 201 However, since

Foyalan has not failed to protect Bourama, Massa, Alima, Omoma, Mariama and others

199 Facts, para 21.

200 Facts, para 19.

94
Facts, para 23.

201 UN HCHR, Human Rights and Human Trafficking (Fact Sheet No 36) 2014, p 4.
29
from human trafficking, it has not breached the rights to dignity, liberty and freedom of

movement guaranteed by the African Charter under Articles 5, 6 and 12(1) respectively.

Accordingly, Foyalan has not violated the African Charter, ACWRC, Maputo Protocol

and CEDAW by failing to hold Ansom and Braun Inc. accountable for human trafficking.

C. THE FAILURE TO HOLD META, THE PARENT COMPANY OF FACEBOOK AND

INSTAGRAM, ACCOUNTABLE FOR DOMESTIC SERVITUDE AND SEXUAL

ENSLAVEMENT

The Respondent argues that Foyalan was justified in refusing to hold Meta accountable

because Meta did not facilitate the alleged domestic servitude and sexual enslavement
30
[1] and thus, is immune under Foyalan law [2]. Consequently, Foyalan has not failed to

protect Alima, Mariama, Omoma and the supposed recruited young men from domestic

servitude and sexual enslavement [3].

(1) Meta did not Facilitate the Domestic Servitude and Sexual Enslavement A

State has the discretion to prescribe laws in fulfilment of its human rights obligations,

taking into account its social, economic, and political situation. 202 In compliance with its

international obligations,203 Foyalan has enacted the Cybercrime Act 2019 that defines

the conditions under which an internet intermediary such as Meta will be held liable for

cybercrimes like publishing online, nudities of persons without consent. 204 By Article

67(2) of the Act, an internet intermediary commits an offence if it knowingly holds,

publishes or caches an illegal material. Thus, in the instant case, Meta would have

committed an offence if it knowingly allowed Ansom or other persons to use its

platforms to perpetrate domestic servitude and sexual enslavement. Ansom’s first ad

was a call for applications

for live–in maids.205 This was posted in English Language and there was nothing

suggestive of any possible exploitation to warrant Meta to prevent its publication. 206 The

202 Prince (n 72).

203 Article 25(1) of the AUCC require that States legislate on cybersecurity.

204 Cybersecurity Act 2019 of Foyalan (Annex I), art 67.

205 Facts, para 14.

206 Facts, para 14.

31
second ad was done in the native Foyalani language and could not be detected by

Meta’s algorithms.207 208

Clearly, Meta did not knowingly allow Ansom to use its platforms

to publish the ‘illegal ads’. In Doe v GTE Corporation,102 it was noted being just a carrier

of information, an internet intermediary must not be held liable for unknowingly

transporting illegal information. Accordingly, since Meta did not know of the illegality in

Ansom’s ads, it did not facilitate the domestic servitude and sexual enslavement.

(2) Meta is Immune under Foyalan Law

The AU Cybersecurity Convention requires that States legislate and enforce laws

against cybercrimes such as child pornography and unsolicited online nudity. 103 Even

so, while observing human rights, States enjoy the discretion to define the conditions

under which legal persons such as Meta will be charged and prosecuted for

cybercrimes.209 Consequently, in determining whether Foyalan should have charged and

prosecuted Meta, a cursory analysis of Foyalan’s Cybersecurity Act is apposite. Under

Article 67(2) of the Act, an internet intermediary is immune for holding or caching an

illegal material if

207 Facts, para 15.

208 F 3d 055 (7th Circuit, 1999) 103

AUCC, art 29(3)(a).

209 AUCC, art 25(1)(3).

32
(a) it has a robust prohibitive privacy policy; (b) it does not receive any financial benefits

directly attributable to the illegal material; (c) it lacks knowledge on the illegal nature of

the material; and (d) it swiftly removes the material on being aware of its illegal nature.

The Respondent contends that all these conditions were met under Foyalan law. First,

Meta prohibits the nonconsensual sharing of intimate images. 210 Second, Meta obtains

direct financial benefits from only paid ads on its platforms. 211 Ansom’s ads even if they

generated any revenue to Meta, are indirect as they were not arranged “paid–for

advertisements” between Meta and Ansom. Third, Ansom’s first ad was unsuggestive of

any illegality. His second ad which was in the native Foyalani language was undetected

by Meta’s algorithms.212 Thus, Meta had no knowledge of the illegal character of the two

ads. Fourth, Meta swiftly removed the ads on realizing their illegal objectives. 213 Based

on these, any purported prosecution would have undermined Meta’s right to fair trial

contrary to Article 7 of the African Charter. Bearing in mind the duty to uphold the right

to trial in fighting cybercrimes, 214 must Foyalan prosecute Meta though it is immune?

Certainly not. Thus, Foyalan holds the view that by observing the right to fair trial,

210 Meta’s Ad Review Process and Policies<https://www.facebook.com/policies/ads/>

accessed 5 June 2022.

211 ibid.

212 Facts, para 18.

213 ibid.

214 See AUCC, art 25(3).

33
prosecution must be based on founded liability. Therefore, Meta is immune under
Foyalan

law.

(3) Foyalan has not Failed to Protect Alima, Mariama, Omoma and other young
men from Domestic Servitude and Sexual Enslavement

Article 18(3) of the African Charter obligates State Parties to protect the rights of women

and children guaranteed in international conventions. Article 4(1) of the Maputo Protocol

and Articles 15 and 27 of the ACRWC require that States protect women and children

against forced labour and sexual exploitation including domestic servitude 215 and sexual

enslavement respectively.216 To the extent that Meta did not facilitate the alleged

domestic servitude and sexual enslavement and thus, was immune, the Respondent

submits that it has not failed to protect the girls and young men against domestic

servitude and sexual enslavement.

Accordingly, Foyalan has not violated the African Charter, AUCC, ACRWC and Maputo

Protocol by refusing to hold Meta accountable for facilitating domestic servitude and

sexual enslavement.

215 ILO Forced Labour Convention 1930 (No 29), art 2(1).

216 UN Supplemental Protocol on Women and Child Trafficking, art 3(a).

34
 III. SUBMISSIONS ON REPARATIONS

Admittedly, ‘any breach of an engagement involves an obligation to make reparation’. 217

Thus, by Article 27(1) of Court’s Protocol, where a violation of human or peoples’ rights

is established, the Court shall make orders to remedy the violation, including the

payment of fair compensation, restitution, rehabilitation or guarantees of non–

repetition.218

However, since in this matter, there is no violation of any obligation under the treaties

Foyalan has ratified, the Respondent requests that (a) the Court declines the Applicant’s

prayer for reparation and (b) the Court orders the Applicant to bear all the cost incurred

by the Respondent in this matter.

217 Chorz´ow Factory [1928] PCIJ Series A, No. 17 p. 29; James Crawford, The ILC’s

Articles on State Responsibility (Cambridge 2002) 147.

218 See Mtikila v Tanzania (reparations) [2014] 1 AfCLR 72 [27].

35
 CONCLUSION AND PRAYERS

In light of the foregoing submissions, the Respondent respectfully prays the

Court to find, adjudge and declare:

1. That the Court has jurisdiction and the case is inadmissible.

2. That the ban on traditional charcoal by Foyalan does not violate the African Charter

and other international human rights law.

3. That Foyalan has not violated the African Charter and other international human

rights law by failing to hold Braun Inc. and Ansom accountable for human trafficking.

4. That Foyalan has not violated the African Charter and other international human

rights law by failing to hold Meta accountable for facilitating domestic servitude and

sexual enslavement.

Respectfully submitted,

Counsel for the Respondent.

36
37