By LUKE ANAMI

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The African Court on Human and Peoples’ Rights (the Court) has rejected a bid by a Ghanaian national to have Morocco expelled from the African Union to protect the Sahrawi Arab Democratic Republic whose territory Rabat claims as its own.

The case had been brought before the Court by Mr Bernard Anbataayela Mornah, a Ghanaian national and the National Chairman of the Convention of People's Party a political party in Ghana, who sued eight countries that have ratified the protocol of the Court, and are members of the African Union, arguing they failed to protect Sahrawi after the AU re-admitted Morocco into its fold in 2017.

He accused Benin, Burkina Faso, Cote d’Ivoire, Ghana, Mali, Malawi, Tanzania, and Tunisia for failing to protect the sovereignty, territorial integrity and independence of the Sahrawi Arab Democratic Republic (SADR),

The eight partner states are accused for the violation of human rights and freedoms protected by the Charter on human rights for failing to intervene against Morocco’s occupation of the SADR.

But the Court sitting last Thursday dismissed the matter with costs.

Mr Mornah further alleges that “even if the 8 States did not protest the admission of Morocco to the AU” at the time the Assembly made the admission decision, the Court should still hold them responsible for their failure, individually and/or collectively to defend the sovereignty, territorial integrity and independence of the SADR and the right of its people to dispose of their wealth and natural resources”.

He thus sought orders compelling and mandating the eight states individually and/or collectively to call an emergency session of the Assembly of the AU.

“And to sponsor a resolution for the adoption of legal, political and other measures by the AU; to restrain Morocco from further occupying parts of the territory of Western Sahara in any manner whatsoever and howsoever [as well as]; sponsor a motion for the immediate expulsion of Morocco from the African Union until it is prepared and ready to recognise the right of the Sahrawi people to self-determination,” said Mornah in his application before the African Court.

“The application relates to the rights and freedoms of the people of SADR, which have been violated as a result of the continued occupation of the territory of SADR by the Kingdom of Morocco and the failure of the 8 States to protect the sovereignty, territorial integrity and independence of SADR,” Mornah said in his application.

In 2020, Mauritius also applied to the African court seeking to intervene in the same matter.

Morocco did not request to intervene in the matter in spite of having been served with the notification by the Court.

However, Mali, Burkina Faso, Tunisia, Côte d’Ivoire, Ghana, Tanzania, and Malawi in their submissions called on the Court to dismiss the matter on grounds that the court lacks jurisdiction to hear the matter.

“Declare that the application is inadmissible for the Mr Mornah has not demonstrated that he has locus standi and for failing to meet admissibility conditions specified under the AU Charter,” the seven countries said in their defense.

Benin did not make any submissions or prayers.

The Court sitting on September 22, 2022 in Arusha dismissed the case and ordered that all parties bear their own costs.

“The Court observed that the Respondent States (8 partner states) were in no way alleged to have collectively or individually engaged in actions to conquer or annex the territory of the SADR,” the judgement read in part.

The Court further stressed that the continued occupation of the SADR by Morocco is incompatible with the right to self-determination of the people of SADR as enshrined in the AU charter.

“However, the Court observed that the responsibility of the 8 states in this respect would be engaged only if three cumulative conditions are proven to have existed: an act or omission violating international law, that is, an internationally wrongful act; the act must be attributed to the 8 states (attribution); and the act must cause a damage or loss (causal link).”

The Court accordingly noted that in order to establish the internationally wrongful act of the 8 States, it had to examine the overall context of the decision to admit Morocco as a member to the AU and the role of the 8 states in the process.

“After examining the facts before it, it was the position of the Court that there was no evidence before it showing the manner in which the 8 States voted in this regard,” the Court said in its judgement. 

The Court held that the 8 states did not, individually or collectively, violate the right to self-determination of the people of the SADR guaranteed under African Union charter (Article 20 of the Charter).

With regard to the alleged human rights violations directly ensuing from Morocco’s occupation, the Court found it unnecessary to examine or pronounce itself on them, as Morocco was not a party to this case.

“As far as the responsibility of 8 States’ for these alleged violations are concerned, the Court noted that there was neither evidence to attribute these violations to them nor a causal link between the complained conduct of the 8 States and such violations.”

On reparations, having found no violations by the 8 States, the Court concluded that the issue of reparations did not arise.

On costs, the Court decided that each party shall bear its own costs.

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Brief history of the SADR-Morocco conflict

• The territory known as Western Sahara was colonised by Spain until 1976.
• After Spain’s departure in February 1976, Morocco and Mauritania occupied Western Sahara, which met violent resistance from the Saharawi people.
• Resultantly, Mauritania was forced to relinquish its claim to any part of Western Sahara. Morocco, however, remains in occupation of part of Western Sahara to date.
• In 1984, the SADR was admitted as a member State of the Organization of African Unity, subsequently became a founding member of the African Union. In protest against this, Morocco left the OAU.
• In 1992 an UN-supervised referendum on independence of Western Sahara was promised but when Morocco objected to the proposed electoral register, which it alleged was biased in favour of secession, the referendum was aborted.
• Morocco occupies the part of Western Sahara that harbours one of the world’s richest fisheries stock, abundant phosphate rock mines and oil reserves which it has been exploiting to the detriment of the Sahrawi people.
• In January 2017 Morocco applied for membership of the AU and was admitted.
• However, Morocco’s admission to the AU was not as a result of a unanimous decision. Thirty-nine (39) AU members voted in favour of the readmission and nine (9) against.
• Notwithstanding Morocco’s admission to the AU, it has not, at the same time, shown any intention of giving up its occupation of Western Sahara.
• Although the SADR has been recognised by the AU as the legitimate government in exile and no less than eighty-four (84) countries have accorded it diplomatic recognition, parts of Western Sahara remain occupied by Morocco.