The views expressed here are the personal views of the writer
No fewer than 25 African countries have been identified where attacks on and killings of persons with albinism have in recent years been perpetrated. These attacks and killings raise multiple human rights questions. The communication of X v United Republic of Tanzania decided by the Committee on the Rights of Persons with Disabilities concerned a complaint by a person with albinism, who was attacked. Issues such as ratione materia; remedies; legal aid; delays in solving cases; being equal before and under the law, and equal and effective legal protection of the law; torture and re-victimisation; as well as protection of the integrity of the person are the thematic issues covered in the article. In conclusion, the implications of the Mr X decision and how it should reverberate beyond the borders of Tanzania are addressed.
Human rights violations perpetrated against persons with albinism have recently received increased attention, among others, in the form of media reports, studies,1 and country visits by human rights mechanisms. The
human rights situation of persons with albinism has also been considered at the United Nations (UN) level. For instance, in 2015 the Human Rights Council appointed an Independent Expert on the Enjoyment of Human Rights by Persons with Albinism (Independent Expert).2
No fewer than 25 African countries have been identified where attacks on and killings of persons with albinism have in recent years been perpetrated.3 In this respect, the United Republic of Tanzania stands out, and it has even been referred to as ‘ground zero’ of the crisis of trafficking in persons with albinism.4 The reasons why Tanzania is distinctive include, first, the relatively high number of persons with albinism in this country5 and, second, the disturbing number of attacks and killings reported here.6 Third, while the government of Tanzania and other stakeholders have undertaken a number of initiatives to prevent and address the violations, the attacks have continued.
Various human rights mechanisms have engaged with the Tanzanian government on the rights of persons with albinism. For instance, after the consideration of its combined third to fifth periodic report under the Convention on the Rights of the Child (CRC) in 2015, the CRC Committee recommended a number of measures aimed at preventing and addressing violations of the rights of children with albinism.7 A similar recommendation is contained in the Concluding Observations issued by the CEDAW Committee in 2016.8
Moreover, the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) as well as the Independent Expert have conducted missions to Tanzania in 2015 and 2017 respectively.9 In 2017 the Committee that monitors the implementation of the Convention on the Rights of Persons with Disabilities (CRPD), the CRPD Committee, in its decision on an
After this introduction, a brief overview of the X v United Republic of Tanzania communication is provided, followed by a discussion of certain of the admissibility considerations. Subsequently, selected elements of the merits of the case are scrutinised. The conclusion highlights the possible implications of the case beyond Tanzania.
The communication of X v United Republic of Tanzania13 concerned a complaint by a person with albinism, Mr X, who was attacked with clubs by two strangers while collecting firewood.14 Once he had been rendered unconscious, the two strangers hacked off half of his left arm. The attack took place on 10 April 2010 and was reported to the police.15 Even though he had been a farmer before the attack, Mr X no longer is self-sufficient.
Mr X argued that his rights under the CRPD, in particular article 5 on equality and non-discrimination, had been violated. He reasoned that he had been discriminated against as a result of his albinism and that ‘the violence and the non-access to justice that he has suffered are generalised practices against people with albinism’.16 He further contended that his rights under article 15 to freedom from torture or cruel, inhuman or degrading treatment or punishment had been violated because the state party failed to take effective measures to protect him from the attacks and physical and mental abuse by non-state actors.17 The author also relied on article 17 on the protection of the integrity of the person ‘since he was exposed to barbaric forms of suffering’.18
Mr X, through his counsel, submitted that the communication should benefit from the exception to the requirement that all available domestic remedies must have been exhausted.19 First, counsel lamented that the relevant authorities had instituted no investigation.20 Second, because a private prosecution is not possible in Tanzania, it was submitted that there was no remedy in the domestic criminal law.21 As far as civil remedies are concerned, the CRPD Committee was informed that such litigation must be initiated through submission of an application to the High Court of the place of residence of the victim.22 In this instance, the High Court closest to Mr X’s place of residence was approximately 300 kilometers away, which had a financially prohibitive effect.23 The author furthermore cited a similar case where a constitutional petition brought by persons with albinism as victims had been unduly prolonged (since 2009) as a result of intermittent changes to the panel of judges.24
The state party marshalled a number of arguments to motivate why the complaint did not comply with the requirement of exhaustion of domestic remedies.25 It provided information that a criminal case had been opened and that the trial of a suspect in the attack on the author had commenced.26 However, the author testified in court that the accused person was not among his attackers and as a result the prosecutor subsequently withdrew the case. The state noted that ‘[t]he investigation of the attack against the applicant is ongoing’.27
The state further averred that the possibility for private prosecutions existed under section 99 of the Criminal Procedure Act, Cap 20.28 Another option available to the author was to submit a human rights application before the courts under the Basic Rights and Duties Enforcement Act (Basic Rights Act).
As far as the author’s limited financial resources were concerned, the state contended that Mr X should have approached a ‘number of legal aid centres and non-governmental organisations assisting indigents’,29 alternatively, the same advocate who brought this communication in Geneva should have assisted him in filing a constitutional case in Tanzania. 30
The Committee, finding in favour of the author and essentially dismissing all the state’s arguments on admissibility, noted two points. First, the primary responsibility to prosecute, investigate and punish is that of the state, and this is a non-delegable duty.31 Second, a civil claim and an award of compensation alone cannot be seen as an effective remedy. Moreover, given the unpredictable duration of similar cases under the Basic Rights Act, the Committee felt that it would be unreasonable to require the author to initiate additional proceedings.32 On the merits, the Committee agreed with the author on the alleged violations of articles 5, 15, and 17 (read with article 4) of the CRPD.
As mentioned above, the state relied on several arguments regarding inadmissibility, but the CRPD Committee was not swayed. This section examines certain of the issues in this matter associated with admissibility.
The question of whether persons with albinism fall within the definition or description of persons with disabilities is not a settled issue. For instance, in South Africa a debate has taken place about the applicability to persons with albinism of the Employment Equity Act of 1998.33 Moreover, there are examples of conflicting statements by individuals with albinism as well as their representative organisations on whether they prefer to be considered a person with a disability.34
While the ratione materiae competence of the CRPD Committee had not been questioned, the Committee nonetheless assigns a full paragraph to clarify why persons with albinism resort under the description of ‘persons with disabilities’ set out in article 1 of the CRPD.35 This deliberative approach taken by the Committee to reflect on why it believes it has such competence is commendable.36
The requirement to exhaust available domestic remedies before approaching an international process is a relatively well-settled rule of international law.37 Other UN treaty bodies as well as regional bodies and courts also require this.38
in addition to ordinary judicial and administrative appeals, authors must also avail themselves of all other judicial remedies, including constitutional complaints, to meet the requirement of exhaustion of all available domestic remedies, insofar as such remedies appear to be effective in the given case and are de facto available to an author. 39
The concept of ‘unreasonable delay’ as a basis for an exception40 to the requirement to exhaust local remedies is open to interpretation. What could be considered as prolonged in one context could be seen as a reasonable delay in another, and different domestic considerations and other possible variations are inevitable.
However, attempts to invoke economic or administrative reasons for the unreasonable delay of a case are often considered to be unconvincing by treaty bodies.41 For instance, in a number of cases, prime among which are Bernard Lubuto v Zambia42 and Lalith Rajapakse v Sri Lanka,43 the Human Rights Committee (HRC) did not accept the economic situation of the state party (being a developing country) or administrative constraints (a heavy work load at the High Court) to be acceptable reasons for the unreasonable delay of cases.
In the present instance, the CRPD Committee gave adequate weight to the fact that other persons with albinism who had been victimised and who had brought a case in March 2009 were still waiting to be heard at the time of the adoption of the decision by the Committee in 2017.44 This constituted a delay of eight years. Moreover, the difficulties faced by the High Court in composing a bench of three judges to decide on the merits of each application submitted under the Basic Rights Act would be difficult to justify. After all, it has been held that it is not merely an overall delay, but also a delay between various stages of the domestic court process45 (for example, from arrest to preliminary investigation, to trial, and to appeal, respectively) that could constitute unreasonable delay. It therefore is not surprising that the Committee concluded that it did not find it reasonable to expect Mr X ‘to initiate additional proceedings of unpredictable duration’ under the Basic Rights Act.46
The second component of the exception to the requirement of exhausting domestic remedies is that the latter is not expected where the domestic remedies are unlikely to bring effective relief.47 An appraisal of the effectiveness and availability of domestic remedies should not be done solely by looking into the formal remedies available in the domestic legal system. The CRPD Committee also has to take realistic account of the general legal, political, as well as social context in which these remedies may operate. For instance, the Tanzanian government has mostly been uncooperative towards calls by the Universal Periodic Review to address the challenges faced by persons with albinism in Tanzania.48 It may be argued that the recommendations of treaty bodies regarding the shortcomings in the investigation and prosecution of perpetrators of attacks, as outlined above,49 have similarly had limited effect. It then begs the question whether the recurrence of rights violations committed against persons with albinism in Tanzania has risen to a threshold where one may conclude that there is official tolerance by the state authorities which is of such a nature as to make domestic proceedings futile or ineffective.50
The main contention of the complainant, Mr X, was that he had been denied a remedy as the relevant authorities had not exercised due diligence in investigating and prosecuting the alleged perpetrators. In such a situation, the remedy being sought can only provide redress in respect of the applicant’s complaints and offer a reasonable prospect of success through the criminal justice process. As a result, the argument on the part of the state that the complainant should pursue civil proceedings or additional proceedings before the High Court under the Basic Rights Act could not stand.51
The availability as well as effectiveness of legal aid and the link to the exhaustion of local remedies are significant.52 In the case of Mr X, the state party challenged the assertion that the complainant did not have the financial resources to institute a civil case. It contended that there were a number of legal aid service providers, including non-governmental organisations (NGOs), that assist indigent persons to bring cases to court in Tanzania.53
This argument potentially raises a number of issues. First, the extent to which there is an obligation54 in international human rights law to provide legal aid to victims or witnesses, especially in civil cases, needs to be clarified.55 Second, it is not only the availability of a legal aid scheme that could be the subject of an inquiry, but also its accessibility and efficiency.56
An additional consideration requiring reflection in the provision of legal aid to persons in marginalised positions, including persons with albinism, is the manner in which a means test for legal aid is applied. For instance, it is argued that where family members may be complicit in attacks (or have another conflict of interest), a means test based on the total household income should not be applicable.57 Rather, the criteria should focus only on the income of the person applying for legal aid.
The challenges that Tanzania faces in providing legal aid and legal assistance have been brought into the spotlight in a recent case decided by the African Court on Human and Peoples’ Rights (African Court). The African Court’s sixth merits judgment involved 10 Kenyans who underwent an extra-legal rendition from Mozambique to Tanzania, allegedly for having been involved in robbing a bank in Tanzania. The African Court weighed, along with the seriousness of the offence the accused were charged with, Tanzania’s obligations under the African Charter on Human and Peoples’ Rights (African Charter), but also other instruments such as the International Covenant on Civil and Political Rights (ICCPR). It found a violation of article 7(1)(c) of the African Charter as ‘the applicants were entitled to legal aid at all stages of the proceedings’ and such assistance was not provided. 58
It is not clear why the CRPD Committee did not reflect on the state’s arguments regarding legal aid. This omission means that the opportunity to interrogate and clarify some of the issues raised above unfortunately has been missed for now.
Article 5(1) of the CRPD emphasises that all persons are equal before and under the law. They are also entitled, without any discrimination, to the equal protection and benefit of the law. Article 5(2) imposes far-reaching positive obligations on the state to prohibit disability-based discrimination and to guarantee to persons with disabilities equal and effective legal protection against discrimination. The main elements tying Mr X’s case to article 5 are the following: attacks for body parts exceptionally affecting persons with albinism; the absence of the effective investigation and prosecution of Mr X’s attackers; and the impunity that prevails more than eight years after the criminal attack.59 The CRPD Committee found a violation of article 5 of CRPD and concluded that the author had been a victim of direct discrimination based on his disability. Since direct discrimination includes ‘detrimental acts or omissions based on prohibited grounds’,60 the characterisation of Mr X’s treatment as ‘direct discrimination’ is appropriate.
The Committee further observed that the dereliction of duty on the part of the state to prevent and punish such acts put the victim and other persons with albinism ‘in a situation of particular vulnerability’61 which prevents them from living in society on an equal basis with others.62
Mr X argued that the attack against him constituted torture. However, the CRPD Committee, referring to the definition of torture in article 1 of the Convention against Torture (CAT), expressed the view that since the violence against the author was perpetrated by private individuals, these acts did not amount to ‘acts of torture’.63
However, this is not where the matter ends. The Committee underscored, with reference to ICCPR,64 the principle that the state obligation65 to prevent and punish the acts in article 15 of the CRPD applies to acts committed by both state and non-state actors.66
Furthermore, the Committee viewed the personal toll exacted on the author by the state party’s failure to ensure the speedy and effective prosecution of the suspected perpetrators as re-victimisation, which amounts to psychological torture and/or ill-treatment of Mr X. Based on these reasons, a violation of article 15 of the CRPD therefore was still found.67 It may be posited that the CRPD Committee should have paid closer attention to the link between the psychological torture and/or ill-treatment experienced by the author and the failure on the part of the state to provide him with information on the status of the investigation.
Article 17 captioned ‘Protecting the integrity of the person’ states that ‘[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’. Its drafting history suggests that it is intimately associated with article 12 (legal capacity) and article 15 (torture), and issues such as forced interventions and consent, forced sterilisations, corrective surgeries and harmful practices.68
Among others, the CRPD Committee found the failure by the state to prevent acts of violence suffered by the complainant as a violation of article 17 read together with article 4. While article 4 on ‘General obligations’ is the second-longest provision in the CRPD, the obligation to take ‘other measures for the implementation of the rights recognised in the present
Convention’,69 to address discrimination,70 and the obligation ‘to ensure that public authorities and institutions act in conformity with the present Convention’71 seem more suited to the case at hand. The application of article 17 to the case of Mr X outside of the usual general issues (consent, forced sterilisation, and so forth) that have in the past been applied by the CRPD Committee is also a welcome move which protects the physical and mental integrity of persons with albinism.
A number of issues emanating from the case of Mr X may be the subject of debate. These include the Committee’s statement that ‘generally speaking, the state party has not adopted any measures to prevent this form of violence against persons with albinism and to protect them therefrom’.72 For instance, the government has established the National Committee on Violence against Women, Children and People with Albinism. 73
On a positive note, the time it took to deal with the communication from the time of submission to the decision is commendable. The communication was submitted on 23 June 2014 (initial submission) and the decision is dated 18 August 2017, a little over three years. Maintaining this level of relative efficiency in the future may be a challenge, especially with the growing number of pending communications before the CRPD Committee.74
The government of Tanzania has in recent years displayed an increased willingness to cooperate with international and regional mechanisms on the issue of the rights of persons with albinism. For example, the African Children’s Committee’s mission in 2015 was facilitated by the government, and the 2017 visit of the Independent Expert took place at the invitation of the government.75 Part of the litmus test for this improved commitment on the part of the government will be the extent and urgency of its implementation of the CRPD Committee’s recommendations76 in the communication of Mr X.
The implications of the Mr X decision should reverberate beyond the borders of Tanzania. In particular, the African state parties to the CRPD should draw from the jurisprudence in the case of Mr X to ensure that they adopt all appropriate legislative, administrative and other measures for the promotion and protection of the rights of persons with albinism. After all, success in part depends on the extent to and urgency with which the world manages to bring the no fewer than 25 African countries where attacks on persons with albinism have in recent years been perpetrated to zero.
1. See eg International Bar Association Waiting to disappear”: International and regional standards for the protection and promotion of the human rights of persons with albinism (2017); ‘Report of the Human Rights Council Advisory Committee on the study on the situation of human rights of persons living [sic] with albinism’, 10 February 2015, UN Doc A/HRC/28/75.
7. The state party was urged inter alia to expedite the investigation and prosecution of all cases of violence involving children with albinism so that no perpetrator can escape with impunity, and to provide the victims with rehabilitation and redress; ‘Concluding Observations Tanzania’ (2015) UN Doc CRC/C/TZA/CO/3-5 para 3.
9. See African Children’s Committee ‘Report on investigative mission on the situation of children with albinism in temporary holding shelters - Tanzania’ (2016); Report of the Independent Expert (n 5).
19. According to art 2(d) of the Optional Protocol, instances where the application of domestic remedies is unreasonably prolonged or unlikely to bring effective relief constitute an exception to the exhaustion of local remedies rule.
33. See CG Ngwena & JL Pretorius ‘Conceiving disability, and applying the constitutional test for fairness and justifiability: A commentary on IMATU v City of Cape Town’ (2007) 28 Industrial Law Journal 747.
34. See eg M Mswela ‘Does albinism fit within the legal definition of disability in the employment context: A comparative analysis of the judicial interpretation of disability under the SA and the US non-discrimination laws’ (2017) 21 Potchefstroom Electronic Law Journal 1 at 3.
38. See eg art 41(1)(c) of ICCPR and arts 2 & 5(2)(b) of the First Optional Protocol; arts 50 & 56(5) of the African Charter on Human and Peoples’ Rights; art 46 of the American Convention on Human Rights.
55. According to the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principle G (Legal Aid and Legal Assistance), an accused person or a party to a civil case has the right to have free legal assistance where the interests of justice so require and the person lacks the means to pay for it.
68. M Keys ‘Article 17: Protecting the integrity of the person’ in VD Fina, R Cera & G Palmisano (eds) The United Nations Convention on the Rights of Persons with Disabilities: A commentary (2017) 327-330.