Zongo Ruling on African Court Investigation Duties
The 2013 Zongo ruling is best understood as a gateway decision. It did not decide whether Burkina Faso had violated the victims’ rights by failing to investigate their murders; it decided which parts of that claim the African Court could hear and whether the applicants had come to the Court in time. That distinction matters. The Court rejected the State’s attempt to place the entire dispute beyond its reach, while preserving the difference between a completed killing and later failures in the justice process. The later merits judgment, delivered in 2014, supplied the definitive finding on investigation and fair hearing.
Contents
Why this ruling
still matters
A short account
of the facts
The legal
question before the Court
The decision
and its rule of law
What the
lawyers did with the record
How the case
fits East African law
Practical
lessons for families and advocates
The case’s
limits and continuing value
Why this ruling still matters
The murder of an investigative journalist and three companions can
make a case appear to be only about the right to life. The procedural history
in this case shows why that view can be incomplete. When a State’s own courts
are asked to identify and prosecute those responsible, the quality and pace of
that process can become a separate human-rights question. The Zongo litigation
is particularly useful because the African Court separated two legal clocks:
the date of the fatal attack and the later period during which domestic
authorities were expected to investigate and provide a judicial hearing.
The case must be cited with care. The decision of 21 June 2013,
reported as [2013] AfCHPR 123, ruled on preliminary objections. It was not the
final merits judgment. The Court later decided admissibility and merits on 28
March 2014, and reparations on 5 June 2015. Those later decisions developed the
substantive state-responsibility and remedy analysis. This article focuses on
the 2013 ruling while using the later stages to explain its place in the case’s
legal history. That approach avoids attributing a merits holding to a judgment
that did not make one.
The Court was composed of Sophia A.B. Akuffo, President; Fatsah
Ouguergouz, Vice-President; Bernard M. Ngoepe; Gérard Niyungeko; Augustino S.L.
Ramadhani; Duncan Tambala; Elsie N. Thompson; Sylvain Oré; Ben Kioko; and
Kimelabalou Aba. The ruling states that the Court decided unanimously.
Advocates Ibrahima Kane and Chidi Anselm Odinkalu represented the applicants;
Antoinette Ouédraogo, Anicet Somé, Paulin Bambara and Mathias Niambékoudougou
represented Burkina Faso. Their arguments are relevant because the dispute
turned as much on careful framing of time and procedure as on the tragic
underlying facts.
A short account of the facts
On 13 December 1998, journalist Norbert Zongo, who edited the weekly
magazine L’Indépendant, was found dead in a burned vehicle with Abdoulaye
Nikiema, known as Ablassé, Ernest Zongo and Blaise Ilboudo. The applicants
alleged that the killings were connected to Zongo’s reporting, including
reporting about the death of David Ouédraogo, a driver employed by François
Compaoré, the brother of Burkina Faso’s then President. These allegations
supplied context; the 2013 ruling did not decide who ordered or committed the
murders.
Burkina Faso opened a domestic investigation. An examining
magistrate and an independent commission of inquiry were involved, and a
suspect was arrested. The investigation later stalled around a confrontation
between the suspect and a witness. In August 2006, the Court of Appeal
confirmed an order discontinuing the proceedings. The families and a
human-rights movement then brought the matter to the African Court, complaining
that the State had not secured a proper judicial resolution.
The State relied on the date of the killings and the timing of the
Court’s founding instruments. It argued that the deaths were instantaneous acts
before the Protocol establishing the African Court entered into force for
Burkina Faso. The applicants responded that their case also concerned ongoing
failures to investigate, identify, try and punish those responsible. The State
separately argued that local remedies had not been exhausted and that the
application was filed after an unreasonable delay. The record therefore placed
jurisdiction, admissibility and the character of the alleged wrong at the
centre of the preliminary ruling.
The legal question before the Court
The main jurisdictional issue was whether the Court could examine
allegations arising from a 1998 killing when the African Court Protocol became
applicable later. The applicants also alleged continuing breaches connected
with domestic judicial acts after the Protocol took effect. The Court had to
distinguish the completed act of killing from conduct that might continue
through a deficient investigation or an unresolved judicial process. It also
had to decide whether the applicants had used available local remedies and
whether they had applied within a reasonable time under Article 56 of the
African Charter.
The relevant procedural framework included Article 3 of the
Protocol, which gives the Court jurisdiction over cases and disputes concerning
interpretation and application of the Charter and related human-rights
instruments; Article 34(6) on a State’s declaration accepting individual
applications; and Article 56(5) and (6) of the Charter, concerning exhaustion
of local remedies and reasonable time. The right-to-life claim was tied to
Article 4 of the Charter. The applicants also invoked the right to have their
cause heard under Article 7 and the State’s general duty under Article 1. The
Court had to apply these provisions to the particular timeline rather than
treat all allegations as a single event.
The decision and its rule of law
The Court upheld the objection to its temporal jurisdiction over the
alleged violation of the right to life. The killings were completed in 1998,
before the Protocol gave the Court jurisdiction over Burkina Faso. The
continuing grief and consequences of a death did not turn the physical killing
into a continuing act for jurisdictional purposes. In reaching this conclusion,
the Court drew on the distinction in Article 14 of the International Law
Commission’s Articles on State Responsibility: an act does not become
continuing merely because its effects last; the wrongful conduct itself must
continue.
The Court did not, however, accept that the date of death removed
every issue from its jurisdiction. It found that it had temporal jurisdiction
to consider allegations concerning the applicants’ right to be heard by
competent national courts, insofar as those allegations arose from judicial
acts and procedures occurring after the relevant instruments became applicable.
It also rejected the State’s broad temporal objection to the related
allegations arising from the later handling of the case. The judgment therefore
treated the investigation and judicial process as analytically distinct from
the earlier killing.
On exhaustion, the Court examined whether domestic remedies were
available, effective and sufficient in practice. A remedy is not effective
simply because it exists in a code or because a case formally remains open. The
Court treated the long and interrupted domestic process as relevant to whether
the applicants could reasonably be expected to continue waiting. It also
rejected the idea that a case pending indefinitely in national courts
automatically prevents the reasonable-time period from beginning. A person
cannot argue both that there is nothing useful left to expect from the domestic
system and that the international filing clock has therefore never started.
The rule emerging from the 2013 ruling is narrow but important:
where an alleged violation is complete before the Court’s temporal jurisdiction
begins, the Court cannot retrospectively adjudicate that completed act. But
subsequent judicial acts, delays or omissions may constitute separately
reviewable conduct if they occur within the Court’s jurisdiction and are
properly pleaded. For admissibility, applicants must show why domestic remedies
were unavailable, ineffective, insufficient or unduly prolonged, and must still
approach the Court within a reasonable time. The Court’s analysis is therefore
a discipline of legal characterization and procedural proof, rather than a
blanket licence to bypass national courts.
What the lawyers did with the record
The applicants’ strongest forensic choice was to keep the
investigation claim visible even while the timing of the deaths threatened the
right-to-life claim. Kane and Odinkalu relied on the domestic procedural
chronology, the inquiry commission’s work, the suspension of key investigative
steps and the appeal court’s 2006 confirmation of the discontinuance. This
allowed them to argue that the State’s relevant conduct did not end on the day
the car was found. The case demonstrates how counsel can turn a long,
documented chronology into a legally meaningful distinction between a past
event and later state action.
The Court’s post-hearing request for corroborating material also
shows why documentary advocacy mattered. The applicants produced a prosecutor’s
decision dated 13 July 2006 and a summons for a witness, while the State
supplied an inventory of investigative acts, reports and hearing records. That
exchange placed the quality and continuity of the investigation before the
judges in a concrete way. For practitioners, the lesson is to plead dates,
procedural acts and periods of inactivity precisely, and to support each claim
with the underlying record rather than an impression that the process was “too
slow.”
The State’s team was entitled to raise non-retroactivity and
exhaustion; those are serious legal objections. The limit of the temporal
argument was that it treated the entire dispute as if it were identical to the
killings. Once applicants identified post-Protocol investigative and judicial
acts, the Court could consider those acts separately. In later litigation, an
applicant should not overstate a continuing violation merely because the
consequences of an earlier event persist. Conversely, a respondent should not
assume that characterising the original harm as completed also immunises later
conduct from scrutiny.
How the case fits East African law
Burkina Faso is not an East African State, and the African Court’s
ruling is not an EACJ judgment. Its comparative usefulness lies in the common
legal foundations shared by East African States: the African Charter, national
constitutional guarantees of life and fair hearing, and the broader principle
that remedies must work in fact. Uganda, Kenya, Tanzania and Rwanda each have
their own rules on investigation, prosecution, constitutional petitions and
judicial review. The Zongo ruling cannot replace those rules, but it helps
lawyers identify when a domestic investigation itself has become a rights
issue.
For a Ugandan comparison, Article 28 of the Constitution protects a
fair hearing before an independent and impartial court, while Article 22
protects life. The Human Rights (Enforcement) Act 2019 provides a national
avenue for enforcing constitutional rights. In Kenya, Articles 26 and 50 of the
Constitution protect life and fair hearing, and Article 48 protects access to
justice. Rwanda’s Constitution protects fair-trial guarantees in Article 29 and
life in Article 12. These provisions are not identical, and procedural
deadlines, standing rules and remedies differ. The comparative point is that a
claimant may have to separate the allegation that the original harm violated a
right from the claim that later proceedings denied access to justice.
The East African Court of Justice has also treated the rule of law
and treaty commitments as capable of judicial scrutiny. In Attorney General of
Uganda v East African Law Society, Reference No. 2 of 2007, the EACJ addressed
the legality of national action through the EAC Treaty framework. In James
Katabazi and 21 Others v Secretary General of the East African Community,
Reference No. 1 of 2007, it held that the Court could examine whether Partner
State conduct breached Treaty principles even though the matter arose from
national proceedings. These cases are not authority on African Court temporal
jurisdiction, but they show that regional oversight can coexist with national
process when the claim is pleaded within the relevant regional instrument.
Lawyers should therefore avoid transplanting the Zongo result
mechanically into an East African filing. They should identify which treaty or
constitutional text applies, which national steps were available, who may bring
them, and whether those avenues can provide the result sought. A petition that
says only “justice was delayed” may fail without dates, reasons for delay,
specific investigative omissions and proof that the claimant invoked relevant
procedures. On the other hand, insisting on exhaustion when a remedy cannot
compel an effective investigation or has been stalled for years may turn a
formal domestic remedy into an illusory one.
Practical lessons for families and advocates
First, separate the alleged wrongs. A killing, an ineffective
investigation, an unfair discontinuance and a delayed trial are related, but
they are not automatically one legal event. The date of each act or omission
can determine whether a regional court has temporal jurisdiction. Plead each
act, the instrument in force at the time, and the remedy that could address it.
The duty to investigate is also different from a promise that a
particular suspect will be convicted. The State must take reasonable, serious
steps capable of identifying what happened and bringing any properly supported
charge before an independent court. It must not predetermine guilt to satisfy
public pressure, because a fair trial protects the accused as well as the
public’s interest in accountability. This distinction is especially important
in politically sensitive killings: families need a credible inquiry, while
suspects retain the presumption of innocence and the right to answer evidence.
A remedy can therefore direct investigators to pursue outstanding lines of
inquiry or require a reasoned review without instructing a judge to convict
anyone. Advocates should frame their requests around steps that can lawfully
repair the process, and courts should avoid substituting their own factual
conclusions for a criminal trial.
Second, build the record while domestic proceedings are happening.
Keep filed complaints, court directions, police correspondence, expert reports,
hearing notices, adjournments and decisions. A chronology should show who was
responsible for the next step, what the step was, when it should have occurred
and what actually happened. These materials can help a court test whether delay
is attributable to complexity, necessary process, inactivity or obstruction.
Third, make exhaustion an evidence-based argument. If a remedy was
pursued to its endpoint, attach the final decision. If it was not pursued,
explain in practical terms why it was unavailable or could not deliver the
required result. A delay claim should show the period of inactivity and its
effect. Applicants must also be candid about the date they learned that
domestic action had effectively ended; inconsistent positions on that point can
weaken credibility.
Fourth, seek a remedy that matches the proved violation. The 2013
decision did not award compensation or order new prosecutions. Those
substantive questions were addressed later. For a current claimant, possible
relief might include a declaration, a direction to take specified investigative
steps, access to a file, compensation, or a guarantee against repetition,
depending on the court’s powers. A court should not be asked for a remedy it
lacks jurisdiction to grant.
The case’s limits and continuing value
There was no dissenting opinion in the 21 June 2013 ruling; the
Court states that it ruled unanimously. Its interpretation should therefore be
read as the Court’s collective reasoning, not as a divided test with separate
competing approaches. The subsequent merits judgment of 28 March 2014 found
Burkina Faso responsible for violations concerning the right to be heard within
a reasonable time and the duty to guarantee rights, based on serious delay and
shortcomings in the investigation. The reparations judgment of 5 June 2015
addressed compensation and other remedies. Those later holdings, rather than
the 2013 preliminary ruling alone, are the direct authorities for the merits of
state responsibility and redress.
The 2013 ruling remains valuable because it explains how a regional court can reach the procedural dimension of an old and grave human-rights complaint without pretending that it has retrospective jurisdiction over every underlying event. Its practical message is modest and durable: characterize the State’s conduct accurately, prove the domestic process from the record, and distinguish a remedy that exists on paper from one capable of resolving the complaint. For ordinary people, this means that a family’s right to justice is not exhausted by the opening of a file; for counsel, it means that careful procedure can preserve a claim even where one part of the case falls outside the Court’s temporal reach.
Sources mentioned in this article
The 2013 preliminary-objections ruling in
Beneficiaries of Late Norbert Zongo and Others v Burkina Faso; the African
Court’s 28 March 2014 admissibility and merits judgment and 5 June 2015
reparations judgment in Application No. 013/2011; African Charter on Human and
Peoples’ Rights, Articles 1, 4, 7 and 56; Protocol to the African Charter on
the Establishment of the African Court on Human and Peoples’ Rights, Articles 3
and 34(6); International Law Commission Articles on Responsibility of States
for Internationally Wrongful Acts, Article 14; Constitution of Uganda, Articles
22, 28 and 50; Uganda Human Rights (Enforcement) Act 2019; Constitution of
Kenya, Articles 26, 48 and 50; Constitution of Rwanda, Articles 12 and 29;
Attorney General of Uganda v East African Law Society, Reference No. 2 of 2007;
James Katabazi and 21 Others v Secretary General of the EAC, Reference No. 1 of
2007.
Suggested citation
Ronald Serwanga, “Zongo Ruling on African Court Investigation Duties” East Africa Legal Insight (21 October 2026).