THE 2ND ALL KENYAN MOOT COURT COMPETITION
14 - 15TH FEBRUARY 2014
KENYATTA UNIVERSITY SCHOOL OF LAW (KUSOL)
AND
TRANSPARENCY INTERNATIONAL, KENYA
HYPOTHETICAL CASE
The Case Concerning the Crubar Mountain, between
Rights Shield and the State of Padma
1. Padma is a small state with a population of 25 million. It is a developing nation with 75%
of its population living in the rural flat lands around two mountains that form its
topography. The Cultra Mountain Range lies within Padma’s Western region. Mt Crubar
lies on the eastern-most part of Padma and forms part of the border between Padma
and Zimbodia. Padma’s largest income earners are recreational tourism on the
mountain ranges and agriculture in the flatlands. The capital city - Pultira lies at the foot
of Mt Crubar.
2. Zimbodia lies to the East of Padma. It has a population of 40 million. It is a developing
country but is ranked higher than Padma on the World Bank Group’s Gross National
Income Index. It has a moderately developed manufacturing industry that produces a
special type of automatic gun called the Viras-88, bullets and pharmaceuticals. The guns
and bullets produced are exported and a small percentage retained for domestic
consumption by the Zimbodia Defence Force. Zimbodia’s topography is characterised by
vast plains which are mainly arid. The only viable agricultural land is found at the base of
Mt Crubar. Over-utilisation of the land has led to increasingly low yields in recent years.
In a bid to mitigate food insecurity the government of Zimbodia has increased its
expenditure on the importation of foodstuffs. The result has been a strain on the
national income.
3. Zimbodia and Padma are notorious for grand corruption; both countries are regularly
ranked at the bottom of the Corruption Perception Index. A recent study by the World
Bank revealed that almost half of Padma’s annual budget is lost to corruption, while
Zimbodia loses a third of its budget to corruption annually. Global Integrity ranks the
enforcement of anticorruption laws as “very weak” in both countries. Based largely on
corruption, the Doing Business Report ranks Zimbodia and Padma the most difficult
countries to do business in the world.
4. Both countries are parties to all United Nations human rights treaties, the 1949 Geneva
Conventions and their additional protocols and the UNCAC. In addition, they are parties
to the African Union Convention on Preventing and Combating Corruption. Both
countries are also monist states. The Padmese Constitution and most laws are modelled
after those of its colonial master, Kenya.
5. In 1999 scientists discovered massive deposits of a combustible hydrocarbon ‘Lyrat’
within the caves of Mr Crubar that lie across the Padmese/Zimbodian border When
heated at extremely high temperatures Lyrat melts to produce a combustible liquid with
similar properties to refined petroleum. The discovery of lyrat was deemed a reprieve
for the almost exhausted global oil deposits. The process of extraction of lyrat is highly
technical and requires immense technological expertise. The process is made even more
difficult owing to the rough terrain. Neither Padma nor Zimbodia had the capability to
commercially extract and process lyrat.
6. The government of Padma; through its ambassador, approached the government of
Zimbodia to hold consultative meetings on the possibility of a joint enterprise. A series
of meetings was held which resulted in the signing of a Bilateral Mining Treaty between
both countries in 2001 at a public ceremony. The presidents of both countries issued a
joint statement expressing their commitment to sustaining the agreement in order to
further the economic welfare of their countries.
7. The treaty provides for cross-border exploration and extraction of lyrat deposits and any
other minerals found within Mr Crubar. The Treaty creates the Crubar Joint
Administration Commission (CRUJAC) for the sole purpose of regulating mining activities
within the 200,000 square kilometre mining zone. The mining zone extends 100,000
square kilometres into each country’s territory. The Mining Treaty is complimented by
several other treaties that set out taxation procedures, special tax exemptions, royalty
allocations and measures for the promotion of foreign investment within the mining
zone. The treaty took effect in both countries in 2003 using the Padma Mining Code
(Crubar Regulations) and the Zimbodia Crubar Mining Code.
8. CRUJAC issued its first licence for extraction and processing of lyrat in 2003 to Pandora
Inc. Between 2004 and 2005 Pandora Inc set up the necessary infrastructure for
extraction, transportation and processing. The plant was set up within Padma's section
of the mining zone. Extraction began in earnest in 2006.
9. The mining activities and the processing plant are located an area previously occupied
by the Kiliki tribe who as a consequent were displaced and moved west to the Sutira
plains accessible through the Cultra Pass. The Kiliki community were resettled in a small
piece of land in tented camps where each family was assigned a tent with the promise
to relocate them to more a spacious residential estate said to be under construction for
that purpose. Numerous cases of cholera, diarrhoea and typhoid were constantly
reported in the first nine months of their stay in Sutira. These however were referred to
an outsourced medical service provider and a decline in the cases reported was
recorded.
10. In 2006, the UN released its Millennium Development Goal Watch which ranked
countries according to progress achieved towards meeting the MDGs. The report ranked
Zimbodia and Padma at 155 and 167 out of 193 respectively. Zimbodia scored poorly on
more than half of the 60 performance indicators most notably due to food insecurity,
high infant and maternal mortality rates and high levels of poverty. Padma scored
poorly on approximately three quarters of the indicators. Contributory factors included
high infant and maternal mortality rates, low enrolment rates for primary education as a
result of inconsistent subsidies and high poverty levels among others.
11. A study done by the United Nations Economic and Social Council in the same year noted
that the proceeds from taxes and royalties from the mining of lyrat if put to good use
could translate to improved standards of living citizens of both countries. The report
proposed that both countries channel at least 15% of the royalties towards improving
public health services. The effect over a period of three years would be lowering infant
and maternal mortality rates by half. The report further proposed that a dedication of
5% of the royalties for five years could stabilise the food crisis in Zimbodia. The report
also suggested that Padma dedicates at least 20% of the royalties received each year to
a subsidy program to ensure free primary education and subsidised secondary
education. It was also anticipated that unemployment rates would reduce as the
industry was expected to employ at least 2000 people each year in each country. The
total operation period for the mines was capped at 17 years. The OECD opened
accession negotiations with Padma and Zimbodia in 2006 and admitted both countries
to full membership in early 2007.
12. In 2006 and 2007, Padma reported 100 separate accidents in the mining caves and on
the slopes of Mt Crubar which resulted in the death of about 230 people, including
miners, tourists as well as residents and left scores nursing injuries. This was attributed
to the sporadic landslides caused by aftershocks by explosions in the mines that had
rendered the slopes of Mt Crubar dangerous. Resorts in that area closed resulting in
massive unemployment. By mid 2008, Padma had recorded a 60% decline in tourist
revenue. International experts issued statements stating that the effect of the
aftershocks could be decreased by 75% if the mines were lined by an inflatable
polycarbon known as yuria. They further stated that this need should have been
identified by mine inspectors and government geologists prior to mining and during the
routine inspections on the mines. The loss of income was felt in all sectors of public
service.
13. Government spending on public education and health was slashed by 40% and 35%
respectively. Subsidies for the National Drug Procurement Programme were stopped
entirely. The National Drug Procurement Agency reported a growing deficit of
medication in all health facilities countrywide. Numerous base level health centres1
were closed indefinitely. Hundreds of patients were turned away at the larger Mid-Level
and National hospitals due to a lack of capacity and lack of the required treatment fee.
The World Health Organisation attributed the death of over 100 Padmese due to the
lack of access to health facilities and medicines and projected a possible further 100
deaths each month until the centres were re-opened. Additionally, the closure of the
facilities resulted in the cessation of the GRV- Grass Root Vaccination campaign which
was intended to vaccinate babies and children under 5years against common and fatal
childhood diseases such as Riqot. WHO estimated that over 200,000 children were at
risk of contraction and subsequent death unless immediate action was taken. Experts
termed the health situation in Padma similar to the mass extermination of children
witnessed during civil strife.
14. In order to fund the recurrent expenditure and to meet international debt obligations,
the government of Padma begun to consult on the possibility of increasing taxes.
Economists warned that an increase in tax would make life unbearable for the Padmese.
An opinion poll conducted by Seteris International found that a large percentage of
respondents blamed the mining activities for the economic downturn. In response to
the growing frustration with the Crubar project by the public and international criticism,
1
Base level health centres are found at the lowest administrative unit and reach the largest number of patients
due to the affordability of the services offered.
the Padmese president in a public address beseeched the public to be patient and
pledged to roll-out social welfare and restart the provision of essential services.
15. In the last quarter of 2008, Pandora Inc reported a loss attributable to high operational
costs. Pandora executives announced plans to close shafts on the Padmese zone. This
was met by mass protests outside the Pandora representative offices at Pultira.
Protestors were contained by the national police service.
16. Several Padmese media outlets jointly aired an investigative documentary dubbed
‘Saving Crubar’ in late December 2008. The documentary alleged the existence of
collusion between Pandora Inc and Padmese government officials. The report revealed
that Pandora Inc had been using shell companies owned by various high ranking
members of the Padmese government for supplies. These companies hiked the prices of
commodities by more than 100% market value. This was part of a major kickback
programme that was aimed at concealing financial reporting irregularities in an attempt
to conceal profits. The report alleged that the collusion between Pandora Inc and the
Padmese government began at the point of granting the licence. The documentary
featured several hidden camera footages of Padmese members of CRUJAC receiving
what appeared to be cash. The documentary also featured a confidential interview with
an ‘insider’ who alleged that several highly placed government officials including the
president’s key advisor Mr Zana Tito were aware of and supported the kickback program
as it brought wealth back to the Padmese community.
17. The UN MDG Watch 2008 released on the eve of 2009 placed Padma 175 th on the
Performance Index while Zimbodia was ranked 130. Padmese poverty levels were
reported to have increased to 64%.
18. Following the airing of the documentary, a radical group dubbed ‘Take Crubar Back –
(TCB)’ initiated a campaign on the social networking site; Palspot, rallying the Padmese
people to join in a nationwide protest against the Mining Treaty and to demand action
by the Padmese Anti-Corruption Agency and the Padmese Prosecution Service. The
leader of TCB created an event on the TCB ‘planboard’ on Palspot inviting “True
Padmese loyalists to the closing of Pandora’s box at noon tomorrow”. The invitation
went viral and unprecedented crowds gathered in town squares nationally, outside
government offices outside the Pandora office at Pultira and at the mining shaft on the
border of Padma and Zimbodia. Demonstrators at the mining shaft were fired upon by
Padmese Security forces deployed to protect the mine killing 20 demonstrators and
critically injuring 10 others. News of the attack on Padmese citizens at the mining shaft
spread throughout Padma turning crowds violent in several locations across Padma.
Protestors outside the Pandora office in Pultira vandalised the office and set the
building ablaze. Anti-riot police were dispatched to quell the violence. Opposition
leaders addressing the nation castigated the Padmese government for perpetuating the
murder of loyal Padmese citizens fighting for their rights and called for continued mass
protests until the corrupt public officers and the ‘killer police’ were prosecuted. Small
groups continued to assemble outside government offices countrywide. Numerous
protestors were arrested that week.
19. The Padmese Anti-Corruption Agency (PACA) issued a press statement assuring the
public that investigations were on-going and that files for several high ranking
government officials had been forwarded to the Chief State Prosecutor (CSP) for
prosecution. The Padmese government spokesperson held a press conference on the
same day asking the people of Padma to be patient and to let the justice system do its
work. The government further issued a warning that any protests would be met by the
full force of the law.
20. The Zimbodian president, Ms Kilu Bupati sent a formal diplomatic note to Padma’s
president Mr Braga Tunai demanding for the immediate sharing of any evidence held by
Padmese authorities relating to the allegations of corruption in relation to the Joint
Crubar Mining Zone in compliance with the obligation to cooperate and assist in
corruption investigations enshrined in UNCAC and various OECD regulations.
21. Mr Braga responded stating that the allegations were an entirely domestic matter and
no obligations were owed to Zimbodia under any international instrument in relation to
the investigation. Mr Braga further pointed out that Padma had a very adept
prosecution service which would deal with the matter at its discretion.
22. The CSP initiated prosecutions against several government officials. However, he later
withdrew the case against Mr Zana Tito. Communication between the CSP and PACA
was leaked and shared on various websites including TCB’s page on Palspot. The leaked
documents detailed an alleged exchange between the CSP and PACA in which the latter
expressed anger at the manner in which the former handled the files sent to him
particularly the file on Zana Tito. The CSP responded stating that his hands were tied by
bigger forces. The document went viral eliciting angry reactions from the public. PACA
issued a press statement distancing itself from the actions of the CSP and stating that its
constituting act empowered it only to investigate and recommend cases to the CSP for
prosecution
23. Following the press statement, the opposition held a press conference stating that the
need for PACA to prosecute through the CSP was an infringement of PACA’s
independence as required by the Constitution which reads at article 249, “The
commissions, agencies and the holders of independent offices are subject only to this
Constitution and the law; and are independent and not subject to direction or control by
any person or authority" The press conference was followed by a march to the CSP’s
office in the capital city Pultira. The opposition was joined by members of TCB and other
supporters who had been mobilized using Palspot. The Padmese police were deployed
to curtail the protest. Police attempted to disperse the protestors using tear gas which
resulted in the eruption of violence. 10 people among them two Padmese policemen
were killed in the violence. The Inspector General of the Police declared a dusk to dawn
curfew.
24. TCB posted videos of the violence on Palspot which also went viral and drew criticism to
the government of Pultira from thousands on social media and from the international
community. The OECD suspended Padma’s membership.
25. On 15th January, 2013, the civil society organisation, Rights Shield, filed a suit in the
Padmese High Court seeking reparations for those killed and injured both through the
accidents in the mines as well as in the protests between December and January by
policemen and seeking a declaration that the unwillingness and inability to prosecute
perpetrators of corruption was contrary to Padma’s obligation to prosecute corruption
and was a derogation of the socio-economic rights of the Padmese people enshrined in
various international conventions and the Constitution of Padma which was indeed a
crime against humanity. Rights Shield also sought a declaration that Padma violated the
rights of the Kiliki people to accessible and adequate housing as well as to reasonable
standards of sanitation as provided in the Constitution of Padma. The High Court
declined to issue the declarations sought. Rights Shield sought leave to file a direct
appeal under section 17 of the Supreme Court Act. Leave to file the appeal has since
been granted.
26. Prepare written submissions to be argued in the Supreme Court for both the Attorney
General of Padma and Rights Shield on the following grounds:
1. Standing and admissibility of the issues before the Court
2. The right to assemble, demonstrate and picket
3. The obligation under both local
and international law to prosecute
corruption
4. The derogation of obligations owed to Padmese citizens arising from the
socio-economic rights which amount to a crime against humanity.