ECOWAS COURT AWARDS 250 MILLION CFA FRANCS TO COUPLE FOR VIOLATION OF THEIR RIGHTS BY THE REPUBLIC OF TOGO

The Community Court of Justice on Thursday, 28th November 2019 ordered the Republic of Togo to pay the sum of two hundred and fifty million (250,000,000) CFA francs as compensation to a Gabonese couple for the violation of their human rights in connection with their July 2014 detention in the premises of the Intelligence and Investigation Service of the National Gendarmerie.

Of the amount, the second Applicant who suffered grievously from separation from her baby was awarded one hundred and fifty million (150,000,000) CFA Francs while the first Applicant was granted the remaining one hundred million (100,000,000) CFA Francs.

In the suit brought by the couple, Moungonga Saturnin and Ontala Ndouma Raisa, the three member panel of the Court found the government in violation of the right of the second Applicant, who was separated from her one-month old baby whom she had to leave in the custody of a helper among other things, to freedom from inhuman treatment and punishment.

The Court relied on the provision of the Principle and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa which provide that ‘expectant mothers and mothers of infants shall not be kept in custody pending their trial, but their release may be subject to certain conditions or guarantees, including the payment of bail.’

The Court therefore held that the treatment meted to the second applicant was ‘inhuman’ as the ‘alleged forceful removal at a critical time in the life of a baby would have inflicted untold mental agony on the mother , while she ‘was in detention and cost the baby the love and care that she needed at that stage.’

In awarding the compensation, the judges held in the judgement delivered by Justice Dupe Atoki that “it is an established principle of international law, which has been affirmed by this Court, that when a State is found in violation of the human rights of a person(s), it shall take measures to give effective remedies to the victim(s) including restitution and compensation.”

It however rejected as ‘excessive,’ the prayer of the Applicants for the award of 500 million CFA each but said it would nonetheless award appropriate damages.

On the allegation of torture and cruel, inhuman and degrading treatment canvased by the applicants, which was denied by the State, the Court noted that while it was mindful that the burden of proof ordinarily rests on the party who asserts a fact or allegation, the burden could shift to the other party if that party is in a better position to provide required evidence in proof or disprove.

Citing a previous decision of the Court in the case filed by Assima Kokou Innocent and six others against the Republic of Togo, the Court noted that the Applicants were still in custody of the Respondent at the time of approaching the Court and could not ‘reasonably be expected to be in a position to provide proof of torture, inhuman and degrading treatment.

‘The Court therefore holds that the burden of proof has shifted to the Respondent State and exonerates the Applicants from proving the allegations,’ the judges said, noting that the shift ‘places a duty on the Respondent to monitor and investigate the complaints of allegation of torture.’

They therefore ordered the State to conduct ‘prompt and impartial investigations into the Applicants allegation of torture, cruel, inhuman and degrading treatment during their detention and prosecute accordingly.’

The Court also held the government in violation of the Applicants’ right to defence as they were denied sufficient time as required by law to prepare their defence while their request for adjournment to prepare their defence was also denied as it was not considered by the Supreme Court for more than one and half years after it was filed.

However, the panel held that the Respondent was not in violation of the Applicants’ rights to presumption of innocence and equality before the law.

On the panel were Justices Dupe Atoki, Presiding, Keikura Bangura and Januaria Tavares Silva Moreira Costa.