CASE COMMENT

BY:HADJI KUMBI

BULE HORA UNIVERITY,SCHOOL OF LAW

MARCH ,2021
 HOUNGUE ERIC NOUDEHOUENOU
V
THE REPUBLIC OF BENIN

INTRODUCTION
This is a Case Comment.It is a review on the merit of the case.It argues whether the judgment
given by the African Court of Human and People’s Rights,in the case between Houngue Eric
Noudehouenou,the applicant,and the Republic of Benin,the respondent,on application
no.003/2020,on the 4th of December20201,is correct/just or not.

This Case Comment has five parts.Accordingly,part-one is devoted to the background of the
case.Part-two is where I discuss the facts of the case.As such,the material facts of the case are
described here.Part-three is about the holding of the court on the merit of the case.As such,I
explain about the judgment delivered by the court on the merit of the case.Part-four is about
analysis of the case.Part-five is where I put my conclusion.

Background Of The Case

The background of this case is the amendment of the constitution and the promulgation of new
electoral code.Accordingly,the respondent has revised its constitution of 1990 through Law
No.2019-40 of 7 November 2019.2 Again,the respondent promulgated Law No.2019-43 of 15
November 2019,which is the electoral code. 3 Moreover,the Constitutional Court of the
respondent confirmed that the revision of the constitution and promulgation of the electoral
code is constitutional.4
The applicant challenged this action of the respondent,which is a party to the African Charter
on Human and Peoples’ Rights,ACHPR,the Protocol to ACHPR on the establishment of the
African Court of Human and Peoples’Rights,ACHPR,and the African Charter on
Democracy,Election and Governance,ACDEG.It also deposited the declaration required by
Art(34(6)) of the protocol thereby accepting the jurisdiction of the court to receive cases from
individuals and Non-Governmental Organizations.The applicant filed a case against the
respondent to the ACHPRs.
Material Facts Of The Case
The applicant alleges that the new laws infringe his fundamental rights guaranteed by
international and regional Human Right instruments ratified by the respondent.Because the
electoral code allows only candidates of two political parties which are close to the government
to run for election and be elected.Again,he submits that the National Assembly that emerged
from the said election promulgated the revised constitution and the electoral code in secret
and without national consensus.5
As a result,he alleges the violation of :
i)The right to freely participate in the government of his country(Art(13(1)) of the ACHPR,
ii)The right to freedom of association(Art(13) of the ACHPR and Art(20) of the Universal
Declaration of Human Rights,the UDHR.
iii)The right to equal protection of the law(Art(3) of the ACHPR and Art(7) of the the UDHR and
Art(26) of the International Covenant on Civil and Political Rights,the ICCPR),
iv) The right to an effective remedy(Art(7 and 13) of the ACHPR,Art(7 and 8) of the the UDHR
and Art(2(3)) of the ICCPR),
v) The right to freedom of expression(Art(19 and 21(3)) of the the UDHR,Art(19 and 25(b)) the
ICCPR and Art(4 and 6) of the ACDEG),
vi)The right to non-discimination(Art(21) of the the UDHR,Art(2,25 and 26) the ICCPR and
Art(13) of the ACHPR),
vii) The Principle of Democratic Change(Art(23(5)) of the ACDEG),
viii)The right to be presumed innocent(Art(11) of the the UDHR and
ix)The right to free practice of religion(Art(18) the ICCPR and Art(8) of the ACHPR) 6
Then,he asked the court to:
i)Find that the respondent has violated the applicants Human Rights,
ii)Order the respondent to take all necessary constitutional,legislative and other measures,
iii)Order the respondent to take all measures to guarantee the right to participate freely and
directly,without any political,administrative or judicial obstacles, in the forthcoming
presidential,local and legislative elections free of the violations established by the court and
under conditions respecting the principle of presumption of innocence as well as the right to
freedom from persecution,
iv)Order the respondent to take all necessary measures to put an end to all the effects of the
violation of which it has been found guilty as per United Nations Resolution No.60/147 of
December,2005 and.7
The respondent,in his reply to the application,asked the court to declare and rule that the
respondent has not violated any of the applicant’s rights.8
Judgment Of The Court
After deliberation,the court,unanimously,finds that the respondent has violated the Principle of
National Consensus.Again,it finds that the alleged violations,due to the constitutional revision,
of the right to participate in public affairs,the right to equality,the right to freedom of
association,the right to freedom of religion and the right to freedom of expression is
moot.Moreover,it finds that the respondent has not violated the right to an effective
remedy.Further,it finds that the respondent has violated the right to be presumed
innocent.Furthermore,it finds that the allegation of breach of the right to peace and security
has not been established.9
To remedy this,it has ordered the respondent to take all measures to repeal the new laws,the
decree and all subsequent laws related to the election in order to guarantee that its citizens will
participate freely and directly,without political,administrative or judicial obstacles,in the
forthcoming presidential election without repetition of the violations found by the court and
under conditions respecting the Principle of Presumption of Innocence,to comply with the
Principle of National Consensus,to guarantee the Human Rights of its citizens and to take all
necessary measures to ensure cessation of all effects of the constitutional revision and the
violations which the court has found.10
Analysis Of The Findings Of The Court
I agree with the findings of the court.Because,its first finding is in line with Art(10(2)) of the
ACDEG,which provides that state parties shall ensure that the process of amendment or
revision of their constitution reposes on National Consensus,obtained if need be,through
referendum.However,the constitutional revision by the respondent is inconsistent with this
principle.Because,it was approved by the members of the parliament who are only from the
ruling party.As such,different forces or sections of the society has not made to take part in the
revision and promulgation of the new laws.Consultation with all stake holders in the country
and people of various opinion in order to reach a National Consensus is absent.This,in turn,has
violated its own constitutional court’s decision which established the Principle of National
Consensus as a Principle with constitutional value.11
Again,the second finding of the court is also correct.Because,this allegation is part of the first
one.It has been covered in the first finding of the court.Again,it has little or no practical

relevance.Because it is too uncertain to allow a decision.

Moreover,the third finding of the court is also convincing.Because,Art(117) of the 1990
constitution states that the constitutional court shall rule on the constitutionality of laws and
regulatory acts that may infringe Fundamental Human Rights and Freedoms,and violate Human
Rights in general.Again,Art(122) of the same constitution provides that any citizen may
complain to this court about the constitutionality of laws whether directly or by the produre of
the exception of unconstitutionality invoked in a matter which concerns him/her before a court
of law.Further,Arts(20,22 and 24) of the organic law on the constitutional court provide that
this court may be seized by…….. any citizen …….regarding all laws and regulatory acts deemed
to violate Fundamental Human Rights and Freedoms,and Human Rights of citizens in general.
From this,we see that the constitutional court of the respondent can hear,as first and last,an
action for violation of Human Rights.Thus,the right to access to justice is available to all citizens
of the respondent.They have a remedy to protect/defend their Human Rights at National
level.12
Further,the fourth finding of the court is also right.Because,everyone has the right to be
presumed innocent until proved guilty according to law in a public trial at which he/she has had
all the guarantees necessary for his/her defence(Art(11(1)) of the UDHR and Art(7(2)) of the
ACHPR.Again,everyone has the right to access to public property and services in strict equality
of all persons before the law(Art(13(3))) of the ACHPR.
The Inter-Ministerial Decree,however,has violated this right of the accused person.Because,it
prohibits the issuance of official papers to persons wanted by the courts of the
respondent.Again,it prohibits the establishment and issuance of such papers on their behalf. 13
Furthermore,the fifth finding of the court is also persuasive.Because,the allegation of the
applicant is not substantiated by the relevant evidence.Again,the facts are not specific enough
to enable the court to make a finding in this regard.He,merely,refers to deaths,without any
further details on the circumstances,the names and numbers of people who were
died.Additionally,the disturbance was temporary and localized.Thus,it does not constitute the
breach of peace and public security.This shows that the respondent has not violated Art(23(1))
of the ACHPR.14
Lastly,I also agree with the non-pecuniary reparation of the court.Because,it is in line with
Art(27(1)) of the protocol.Again,it is an appropriate order to remedy the violations by the
respondent.
CONCLUSION
From the above analysis of the case,we see that the judgment of the court is correct.It’s
just,too.Because,it is delivered in line with the regional and international instruments ratified
by the respondent.Again,It has a positive spillover effect on the jurisprudence of the court
thereby building the public confidence in it.
 ENDNOTES
1.Houngue Eric Noudehouenou V The Republic of Benin,African Court
of Human and Peoples’ Rights,ApplicationNo.003/2020, 4th of
December,2020,p.1-2
2.Ibid,p.1
3.Ibid
4.Ibid,p.2-3
5.Ibid,p.3
6.Ibid
7.Ibid,p.5
8.Ibid,p.5-6
9. Ibid,p.15-24
10.Ibid,p.27-28
11.Ibid,p.15-17
12.Ibid,p.19-21
13.Ibid,p.22
14.Ibid,p.23-24