Human rights lawyer Femi Falana has dragged 8 African Union member states to the African Court on Human and Peoples’ Rights over “the failure of the countries to discharge their legal duty to defend the sovereignty, territorial, integrity and independence of Western Sahara.”

The case brought on behalf of Bernard Anbataayela Mornah, a Ghanaian citizen and the National Chairman of the Convention of People’s Party, a political party in Ghana against Burkina Faso; Cote D’ivore; Ghana; Mali; Malawi; and Tanzania relates “to the legal duty on the defendants to defend the sovereignty, territorial, integrity and independence of Western Sahara.”

The suit with application number 028/2018, read in part: “The territory known as Western Sahara in North Africa was forcefully and illegally colonized by Spain for several years until it pulled out and relinquished its claim as a colonial power over the territory in February 1976 as a result of the violent resistance of the Saharawi people.

“The defendants are members of the African Union which have accepted the competence of the Protocol of the African Court on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights.”

“Despite the illegal occupation of Western Sahara by Morocco not less than 84 countries have accorded diplomatic recognition to the Saharawi Arab Democratic Republic, a member state of the African Union. In Liberia, Sierra Leone and The Gambia the Economic Community of West African States (ECOWAS) intervened militarily to restore democratic governments with the support of the African Union.”

“In line with the provisions of its Constitutive Act, the African Union suspended Niger, Burkina Faso and other member states of the African following unconstitutional change of governments.”

“From the facts in support of this application it is indisputable that the defendants are members of the African Union which are bound to comply with its Constitutive Act as well as the African Charter on Human and Peoples Rights (African Charter) the Protocol on Democracy, Good Governance and Elections of the African Union as well as the International Covenant on Civil and Political Rights (ICCPR).”

“The gravamen of the complaint of the Applicant is that the Defendants took part in the decision of African Union to admit Morocco to the African Union when it has not ceased to occupy parts of the territory of Western Sahara, a member state of the African Union.”

“It is the submission of the Applicant that by supporting the admission of Morocco to the African Union the defendants deliberately violated articles 3(b), (g), (f) and (g) of the African Union which require them to defend the sovereignty, territory, integrity and independence of the members states of the African Union including Western Sahara.”

“The defendants have colluded with Morocco in the subversion of the basic principles of the African Union to respect the borders existing on achievement of independence.”

“To the knowledge of the defendants, Morocco has refused to recognize the border existing between it and Western Sahara when Spain and much later Mauritania pulled out of the colonial territory of Western Sahara in 1976 and 1979 respectively. By occupying parts of the territory of Western Sahara abandoned by Spain, Morocco deliberately refused to respect the borders existing on achievement of her independence.”

“The defendants are aware that the illegal occupation of the parts of the territory of Western Sahara by Morocco has deprived the Saharawi people the opportunity to live in peace, participate in their own government, exploit their wealth and national resources and development in contravention of the provisions of the Article 4 of the Constitutive Act and Articles 13, 20, 21 and 23 of the African Charter and Articles 1 and 2 of the ICCPR which are binding on the defendants.”

“As soon as Spain was forced to pull out of Western Sahara in February 1976, Morocco and Mauritania embarked on the illegal occupation of the territory. But due to the violent resistance of the Saharawi people against the new local colonialists, Mauritania was forced to relinquish the area of the territory occupied by it in 1979.”

“Unlike Spain and Mauritania, Morocco has continued to occupy parts of Western Sahara on the fraudulent grounds that it constitutes an integral part of its own territory. The people of Western Sahara who successfully fought Spanish and Mauritanian colonial oppression were forced to fight Moroccan occupation. In 1991, after 16 years of armed struggle the United Nations brokered a truce and set up a Mission to conduct a referendum for Western Sahara.” 

“The Sahrawi Arab Democratic Republic (SADR), under the leadership of the Polisario Front was admitted as a member state of the Organisation of African Unity (OAU) in 1984 and subsequently, a founding member of its successor, the African Union.”

“In protest against the admission of the Sahrawi Arab Democratic Republic as a member state of the Organisation of African Unity, Morocco left the continental body in 1984 and as such it is not a founding member of the African Union.”

“For several decades thereafter, Morocco made futile effort attempts to delegitimize Sahrawi Arab Democratic Republic (SADR) and Polisario Front.  When it did not succeed it decided to apply to join the Defendants without precondition.”

“The application of Morocco to join the Defendants was granted in January 2017 without its acceptance of the 1960 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples, which states that, ‘All peoples have the right to self-determination; and by virtue of that right they freely determine their political status.”

“The African Charter on Human and Peoples’ Rights which provides that: ‘’Nothing shall justify the domination of a people by another. All peoples shall have the unquestionable and inalienable rights to self-determination. They shall freely determine their political status.”

“Notwithstanding its illegal occupation of the territory of Western Sahara, Morocco was admitted as a member state of the Defendants in defiance of articles 3 and 4 of the Constitutive Act of the Defendants. Since it became a member of the Defendants Morocco has shown no intention to give in on its occupation of Western Sahara. Its return to the union is intended to eventually push for the removal of Western Sahara out of the African Union, thus silencing the voice of the Sahrawi people.”

“Morocco has begun to threaten the unity and solidarity of member states of the Defendants by promoting divisive politics. It has disrupted some meetings of the organs of the Defendants by demanding for the expulsion of the accredited representatives of Western Sahara.”

“Morocco has continued to defy and disregard the several AU and the UN declarations on the inalienable right of the people of Western Sahara to independence and self-determination. Morocco has defied more than 100 resolutions of the United Nations and the African Union calling for self-determination for the people of Western Sahara. In March 2016, the then UN Secretary General Ban Ki-moon described the situation in Western Sahara as an ‘occupation’.”

“The Sahrawi Arab Democratic Republic (SADR), under the leadership of the Polisario Front has been recognized by the AU as the legitimate government in exile. Not less than 84 countries have accorded diplomatic recognition to the SADR.”

“Morocco has refused to respect the colonial boundaries and continued to interfere in the internal affairs of Sahrawi Arab Democratic Republic (SADR). Hundreds of thousands of Saharawi people are disenfranchised. It is estimated that up to 200,000 have fled to refugee camps in the neighbouring Algeria and Mauritania.”

“Morocco has forced many Saharawi activists to serve long prison terms after unfair trials for demanding for the right of the Saharawi people to independence and self-determination. Morocco is currently occupying the part of Western Sahara that harbors one of the world’s richest fisheries stock, abundant phosphate rock mines and oil reserves. The resources of Western Sahara are mined and sold illegally by Morocco to third parties.”

The suit is seeking the following reliefs:

1.       A DECLARATION that the failure of the Defendants individually and/or collectively to defend the sovereignty, territorial integrity and independence of Western Sahara is illegal as it directly violates Articles 3 and 4 of the Constitutive Act of the African Union; Articles 1, 13 and 20 of the African Charter on Human and Peoples Rights; Articles 1, 2 of the International Covenant on Civil and Political Rights and Articles 1, 2 of the International Covenant on Economic, Social and Cultural Rights.

2.       A DECLARATION that the failure of the Defendants individually and/or collectively to prevent Morocco from violating the human rights of the people of Western Sahara to dispose of their wealth and natural resources, to their economic, social and cultural development and peace guaranteed by Articles 19, 21, 22, 23 and 24 of the African Charter on Human and Peoples Rights, and similar provisions in common Article 1 of both the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights

3.       AN ORDER of this Honourable Court compelling and mandating the Defendants individually and/or collectively to call an emergency session of the Assembly of the African Union and to sponsor a resolution for the adoption of legal, political and other measures by the African Union to restrain Morocco from further occupying parts of the territory of Western Sahara in any manner whatsoever and howsoever.

By Falana and Falana Chambers

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