By Stephen V. Lansana
The ECOWAS Court of Justice has ordered the Republic of Togo to pay 15 million CFA as general damages to Mr. Al-Hassan Dibasi Fadia, a former pilot with the Pan African airline, the Lomé-based Asky airlines, who was sacked by the airline in 2021 based on a retroactive ministerial order after he was deemed to have fraudulently obtained a flying licence by falsifying his flight logbooks.
In the judgment of the Court delivered on Thursday, 6th June 2024 by the presiding judge, Justice Edward Amoako Asante, the court agreed with the former pilot that by relying on the retroactive ministerial order of July 29, 2021 as the basis for the dismissal, the government of Togo violated Article 7 (2) of the African Charter on Human and People’s Rights.
The Article provides that “No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed”, and “No penalty may be inflicted for an offence for which no provision was made at the time it was committed”.
The Court therefore held that the disciplinary actions taken against the Applicant, including the charges brought against him and the sanctions imposed, under Ministerial Order No. 033/2021/MTRAF of 29 July 2021, which was enacted after accusations had been levelled against the applicants and disciplinary proceedings commenced, was a violation of his rights.
The Republic of Togo had argued that the Ministerial Order was simply a procedural law passed to implement existing provisions of the Togo Civil Aviation Code 2016 and the National Aeronautic Regulations of Togo. Furthermore, it said that as a procedural law, the Ministerial Order was immediately applicable, including to the disciplinary proceedings of the applicant.
But the Court held that the Order was not simply a procedural law passed to regulate the procedure of the Disciplinary Board of ANAC-Togo as it contained substantive provisions defining offences and punishment, bringing it within the scope of the presumption against retroactive application of laws.
Citing a decision of the European Court of Human Rights, the Court agreed that the “protection against retroactive application of laws applies to “provisions defining offenses and the penalties for them” and does not, in principle, affect the immediate application of procedural rules, including to pending cases.
Moreover, it noted that “merely labelling a law as procedural does not mean that it should be accepted at face value, as procedural laws may sometimes contain provisions related to definition of offenses or punishments or have effects that enhance the severity of penalties imposed.
“What is critical here is that the offences were enacted after accusations had been levelled against the Applicant and disciplinary proceedings had been announced. Those offences, including the specific charge of falsifying a flight logbook, which the Applicant had been accused of, did not exist in any provisions of the relevant laws, including the Togolese Civil Aviation Code, which the Respondent heavily relied on,” the Court added.
It also ordered the Republic of Togo to take steps, by means of its own choosing and not later than four months from the date of the judgment, to reverse and expunge from its official records the disciplinary measures taken against the applicant in violation of his rights under Article 7 (2) of the African Charter.
The Court also dismissed other grounds of the suit in which the Applicant asserted that the disciplinary proceedings to which he was subjected, and the sanctions imposed, violated his right to equality and equal protection of the law, contrary to Article 3 of the African Charter; his right to work, contrary to Article 15 of the African Charter; as well as his right to a fair hearing, contrary to Article 7 of the African Charter.
The Applicant, who is from Guinea Bissau but resides in Abidjan, Cote d’Ivoire, had contended that the disciplinary measures taken against him and which caused ASKY Airlines to ground him for about 21 months and ultimately terminate his employment as a pilot, violated his right to work.
In its defence, the Respondent stated that, in compliance with its international obligations, it has taken legislative and other measures to ensure satisfactory working conditions in Togo. This has enabled individuals, including the applicant, a foreign national, to work in Togo. Furthermore, that the sanctions imposed on the Applicant following the disciplinary proceedings were temporary, allowing him to reapply for his license if he meets the conditions imposed. For these reasons, the Respondent submits that it has not violated the applicant’s right to work.
In dismissing this ground, the Court observed that given the sensitivity of the aviation sector in terms of security risks and the high standards of safety required, any responsible civil aviation authority would take seriously an incident suggesting misconduct or wrongdoing by key aeronautical personnel such as a pilot. Therefore, given the responsibility of ANAC-Togo to ensure aviation safety, the Court considers that it must accord some deference to its decision to conduct investigations and institute disciplinary proceedings.
“In view of this and considering the substantial public interest in ensuring aviation safety, the Court considers that ANAC-Togo’s decision not to renew the Applicant’s validation certificate until the disciplinary proceedings announced against him had been concluded was reasonable,” the Court said.
Furthermore, it observed that although the disciplinary measures, including the sanctions imposed, were not taken in conformity with Article 7(2) of the African Charter, the sanctions did not include a directive to ASKY to fire the Applicant nor was it shown that the company was acting under the direction or control of ANAC-Togo when it decided that there was no longer a position for the Applicant in the company.
The Court therefore held that the Applicant has not been able to ‘convincingly” establish the link between his dismissal from the company and the alleged breach of his right to work by the Respondent state and concluded that the Respondent did not violate the Applicant’s right to work contrary to Article 15 of the African Charter or Article 6(1) of the ICESCR.
“At best, the Applicant could rather sue his employer, Asky Airlines before the municipal court,” Justice Asante said.
The three member panel on the suit, which also includes Justices Gberi be Ouattara and Sengu Mohamed Koroma, decided that parties should bear their respective costs.