Talk:African Court on Human and Peoples' Rights

message: I am a Law student at the North West Uniersity of South Africa. We were given this case to 'solve'. I am the applicant in this case. Any form of help would be appreciated.
My e-mail 12998508@puk.ac.za
HYPOTHETICAL CASE 
17th AFRICAN HUMAN RIGHTS MOOT COURT COMPETITION 
2008 
1 
Zanola is an African country and member of the African Union (AU). Since its 
independence from the United Kingdom in 1960, it has been governed by the 
same political party, the Zanola Independence Party (ZIP). Multi-party elections 
were first held in 1996. Amid unconfirmed speculation about electoral 
manipulation, ZIP remained in power, and has retained power in subsequent 
elections. ZIP holds just over two-thirds of the seats in the lower house. Popular 
participation in national elections has dwindled, with only 27% of registered voters 
casting a ballot in the most recent elections, held in 2004. 
2 
Zanola is landlocked and covers a vast land mass. Administratively, it is divided 
into three provinces. According to the 2005 census, its total population is 22 
million, up 9 million from the previous census, which had been conducted in 
1991. In 2007, the World Bank recorded a GDP of US$ 2 400 per capita. 
Approximately 45% of the population lives on less than US $1 per day. Zanola 
falls in the category of “least developed countries”. In 2006, the inflation rate was 
10%, and in 2007, it increased to 14%. The Zanola budget is tabled in parliament 
on 1 March annually. According to the UNDP Human Development Index for 
2007, Zanola’s budgetary allocation to health made up 3% of the national GDP in 
2006. (In 1995, the corresponding figure stood at 2,8%.) The allocation to 
education stood at 4,8% of GDP (up from 2,9% in 1995). After the discovery of oil 
in Zanola in 2005, the bulk of the national budget (25% in the 2005, and 26% in 
the 2006 budgets) went towards the development of drilling and pipeline facilities. 
Allocation towards the military in 2005 and 2006 made up 8% and 7% of the 
budget, respectively. In his budget speech of 2006, the Minister of Finance 
observed as follows: “Although Zanola faces no immediate military threat, we 
have to secure our strategic interests, which will in the long run be to the benefit 
of all our people.” 
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3 
The Zanola independence Constitution contained a Bill of Rights, which was an 
exact copy of the 1950 European Convention for the Protection of Human Rights 
and Fundamental Freedoms (European Convention). After the wave of 
democracy of the 1990s, the Constitution was amended in a number of respects, 
but the Bill of Rights was retained in its original form. (None of the Protocols to 
the European Convention were made part of Zanola law.) According to article 300 
of the Constitution, “international treaties duly ratified become part of domestic 
law once national law to such effect has been adopted”. There is no general “antidiscrimination” legislation in Zanola. No social security system has been put in 
place, although the government has engaged consultants to investigate the 
feasibility of such a system early in 2008. Neither the National Education Act nor 
any other legislation regulate the establishment or running of private schools. The 
Zanola parliament has not adopted any law dealing specifically with HIV or AIDS. 
4 
Zanola is a state party to the African Charter on Human and Peoples’ Rights 
(African Charter), which it had ratified in 1991. It also ratified the Protocol 
Establishing the African Human Rights Court in 2003, without making a 
declaration in terms of article 34(6) of the Protocol, the African Charter on the 
Rights and Welfare of the Child (African Children’s Charter) on 1 August 2005 
and the Protocol to the African Charter on the Rights of Women in Africa (African 
Women’s Rights Protocol) on 24 January 2006. Zanola is a member of the United 
Nations (UN). It is a state party to the International Covenant on Civil and Political 
Rights (ICCPR), the International Covenant on Economic, Social and Cultural 
Rights (ICESCR) and the Convention on the Rights of the Child (CRC), which 
were all ratified in 1992. It has not ratified any other relevant human rights 
instruments. In 2005, Zanola became a member of the World Trade Organization 
(WTO) and of the WTO Agreement on the Trade Related Aspects of Intellectual 
Property Rights (TRIPS). 
5 
According to the most recent national statistics (2005), the infant mortality rate in 
Zanola stood at 140 per 1 000 live births. (In 1970, this figure stood at 100, and in 
1985 at 128.) According to national statistics, the maternal mortality ratio in 2005 
was 540 per 100 000 women giving birth. (UNICEF and the WHO adapted this 
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ratio to 700 per 100 000 women, due to underreporting and misclassification.) (In 
1970, the corresponding national statistics stood at 700, and in 1985, at 600.) 
Based on occasional sero-prevalence studies at antenatal clinics, the HIV 
prevalence in Zanola is estimated at 18% of the population between 16 and 49. 
According to the National HIV/AIDS Strategic Plan 2004-2009, the government is 
“working towards ensuring” that all people living with HIV with a CD4 count of less 
than 200 should have access to a first-line regimen of anti-retroviral medication, 
consisting of Stavudine (commercially known as Zerit), Lamivudine (3TC) and 
Nevirapine (Viramune). All these medications have been patented under Zanola’s 
Patent Law. No second-line regimen is in place for anyone who may show 
adverse effects to the first-line regimen, or who have built up resistance against 
that regime. According to the same Plan, a national Prevention-of-HIV-
Transmission-of-Mother-to-Child (PMTCT) programme “must be in place in all 
government health care facilities”. The PMTCT regime consists of a prescribed 
dose of Nevirapine to both HIV mothers and their newborn children. In practice, 
the first-line regimen is available to about 6 000 people living with HIV, mainly in 
Zanola City. It is estimated that about 120 000 people may be in need of ARVs. 
These estimates are, however, unreliable, due to the small number of people who 
present themselves for HIV testing. There is a small number of voluntary 
counseling and testing clinics in the biggest cities of Zanola. There are only four 
testing laboratories, two in Zanola City, and two in provincial capitals. The 
government’s application in 2006 to the Global Fund was unsuccessful, due to 
technical imperfections in the application. No application was made in 2007. 
According to a statement by the Minister of Health, treatment access is hampered 
by the high prices of medications, despite efforts by the government to negotiate 
price reductions with an international pharmaceutical company, BigPharma. The 
cost of a course of PMTCT (for three days of drugs to the mother and the 
prescribed dosage to the newly born infant), which was US $500 in 2005, has 
been negotiated down to US $100 per course of treatment in 2007. 
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7 
Section 48 of Zanola’s Patents Act states the following: 
In order to carry out any service for public consumption or which is of vital 
importance to the defense of the country or for the preservation or realization of 
natural resources or the environment or to prevent or relieve a severe shortage of 
food, drugs or other consumable items or for any other public service, the 
Commissioner of Patents may grant a compulsory licence on any patented 
product, while stipulating that an adequate royalty shall be paid to the patentee or 
his exclusive licensee and that the patentee or his exclusive licensee shall without 
delay be notified in writing. 
8 
In June 2005, a local private pharmaceutical company, ZaPha, requested that the 
Commissioner of Patents grant it a compulsory licence to manufacture generic 
versions of the three first-line drugs under the Zanola Patents Act. The basis for 
the approval, as stated in the request, is to increase competition and drive down 
prices for anti-retrovirals in Zanola, where the majority of HIV-infected persons do 
not have access to these medicines. In January 2006, a hearing was held, at 
which BigPharma raised the objection that ZaPha would not be able to produce 
the drugs on a sustained basis. In the same month, the Commissioner of Patents 
ordered that a government task team be instituted to investigate the capacity of 
ZaPha to manufacture the drugs on a sustainable basis. The government 
established a task team in November 2006. In January 2008, the task team 
reported that, given the present investment climate, the granting of a compulsory 
licence would be prejudicial to Zanola’s economy, as it would threaten the loss of 
investment and may lead to trade sanctions. Applying his discretion, the 
Commissioner of Patents decided not to grant ZaPha a compulsory licence. 
9 
Linda Didiza was born in the capital city of Zanola, Zanola City. Her mother 
passed away when she was only eight years old, and she never knew her father. 
She grew up with her grandmother, Mrs Gugu Didiza, who lived in a small 
apartment in Zanola City, and earned a living as a municipal cleaner. 
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10 
Linda excelled in her studies, and obtained a government bursary to study 
towards a teacher’s diploma. As prescribed by the terms of the bursary, upon 
completion of her studies, she was required to relocate to a remote rural area and 
work there for four years in a government-funded school. Her annual 
remuneration was set at an equivalent of US $55 per month, to be adjusted with 
inflation. She was allocated to the only school in the provincial town of Dola. 
Linda settled in Dola and started teaching in 2005. Due to severe financial 
problems, this school has for some time been on the verge of disintegration and 
faced closure. Matters reached a crisis level when the salaries for the seven 
teachers employed at the school were not paid in 2006. Efforts to address the 
issue with the provincial and national government did not succeed. A group of 
businesspeople in Dola came together, and started a private foundation. They 
collected contributions and established a private school. The school made use of 
the government buildings, but, in terms of salaries and equipment, was run 
entirely by the private foundation. Linda was kept on as one of the seven 
teachers. Linda wrote to the Department of Education in Zanola City, informing it 
of the situation and requesting permission to stay on at the school. She received 
the following reply: “Thank you for informing us of the changing circumstances. 
We regret the non-payment, which is due to financial constraints. However, we 
will attend to the matter. You are free to continue at the privately funded school, 
but note that any service rendered there will not be considered as part of your 
remaining three-year obligation to the state of Zanola.” 
11 
After initially being viewed as an “outsider”, Linda integrated well into the 
community and decided to stay on. She befriended Jacob, a 35 year-old 
unemployed man. On several occasions, they had unprotected sex. In December 
2006, Linda realised that she was pregnant. She attended a nearby clinic, where 
she was advised to undergo an HIV test. To access the test, she had to go to a 
provincial hospital in the provincial capital, Munseville. She did so, and tested 
positive for the presence of the virus. Linda was extremely distressed, and during 
the post-test counselling session, she was advised to confide in a close friend. 
Upon her return, she waited a few days and then told a colleague about the test 
result. The colleague did not keep this information confidential, and soon news 
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spread like a wild fire in the school and surrounding village. Within a week, the 
board of the school’s foundation informed her of its decision to release her of her 
duties. Linda’s protest that she had a government bursary fell on deaf ears. She 
subsequently wrote to the Department of Education, but received no response. 
Since she felt ashamed about falling pregnant and blamed herself for becoming 
HIV positive, she did not want to go back to her grandmother. She therefore 
decided to stay on in Dola, at least until the birth of her child. 
12 
Increasingly, the community shunned and isolated Linda. The little money she 
had saved up soon ran out, and she could not afford to pay rent to the family she 
lived with. After she had been told to leave the house, she lived in a shack she 
had built herself, without any access to electricity, running water or sanitation 
facilities. She had to get water from a river, about 10 minutes’ walk from her 
shack. She also realised that she would not be able to go to the hospital in 
Munseville, due to a lack of money for transport. Three weeks before the birth 
was due, she enquired from the local clinic whether she could give birth there, 
and whether the clinic has any PMTCT treatment programme in place. She was 
told that there was no problem with her giving birth there, and that the clinic was, 
in principle, part of the nationwide PMTCT programme, but that there was no 
medication at present. However, the hope was expressed that the clinic would 
receive medication within “a week or so”. Linda accepted that she had to give 
birth at the clinic, and hoped that PMTCT medication would be available. 
13 
On 1 July 2007, when Linda arrived at the clinic, she was told that no PMTCT 
medicines were available. She was very upset. Later the same day, she went into 
labour. Complications arose, leading to intense bleeding. No emergency obstetric 
care was available at the clinic. Although the baby was saved, Linda died. The 
baby was later tested as being HIV positive. 
14 
When Linda’s grandmother received news of these circumstances, she arranged 
to undertake a visit to Dola. She used her last savings to undertake the visit, and 
returned with the baby to Zanola City. Upon her return, she would not let the 
matter rest. She approached the Zanola Bar Council. Under its limited legal aid 
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programme, the Bar Council assigned a lawyer to the case, who investigated the 
matter. A twofold case was brought in the Zanola High Court, aimed at a finding 
(a) that Linda’s dismissal was illegal and unconstitutional under the National 
Education Act and the Constitution, and (b) that her death was a violation of the 
National Health Act. 
15 
The provincial High Court rejected these claims, on the grounds that (a) the 
conduct of a private school is not regulated under the National Education Act, and 
(b) the personnel of the clinic were not negligent and complied with the 
requirements of the National Health Act. 
16 
In order to appeal the judgment, it is a legal requirement that leave to appeal 
must be obtained from the High Court. The High Court refused leave, without 
stating any reasons. Under the Judicature Act, the Chief Justice may “under 
exceptional circumstances” overrule a finding of a High Court to refuse leave. 
This procedure is by way of a petition, which is decided by the Chief Justice, 
without any further hearing on the matter. The Zanola Bar Council did not bring 
such an application. 
17 
The Zanola Bar Council then approached the African Commission on Human and 
Peoples’ Rights on behalf of Mrs Gugu Didiza, claiming the following: 
(a) 
Linda Didiza’s dismissal violated the African Charter on Human and 
Peoples’ Rights; 
(b) 
Linda Didiza’s death constituted a violation of articles 4 and 16 of the 
African Charter, read with article 10(3) of the African Women’s Rights 
Protocol; 
(c) 
the lack of PMTCT medication in the Dola clinic, and in Zanola generally, 
constituted a violation of article 16 of the African Charter, in that the state 
had not made use of the flexibilities allowed for under TRIPS to ensure 
accessible anti-retroviral medication in Zanola. 
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18 
In a brief finding, the African Commission found violations on each of the issues 
above, and referred the matter to the Court. In its arguments before the Court, the 
African Commission, preparing heads of argument with the assistance of the 
Zanola Bar Council, raised the same three matters above, and added the 
following: 
(d) 
Linda Didiza’s “right not to be poor”, as derived from the totality of the 
provisions of ICESCR, had been violated. 
19 
Prepare arguments on behalf of both the applicant (the African Commission, 
assisted by the Zanola Bar Council) and the respondent (the state of Zanola). 
Deal with admissibility, merits and the appropriate remedy pertaining to each of 
the four issues. 
8
�  —Preceding unsigned comment added by 143.160.124.40 (talk) 14:19, 29 April 2008 (UTC)
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