Dissenting Opinion of Justices Ben KIOKO, Angelo V. MATUSSE, Tujilane R.
CHIZUMILA and Stella l. ANUKAM
1.
We agree substantially with the findings of the majority on the merits of this
Application but there is one particular issue relating to costs under paragraph 89 of the
judgment where we differ in our position from the majority. ln the said paragraph, on
the issue of costs, the majority has decided that "the Respondent State shall bear the
costs".
ln our considered
opinion, this decision
of the majority requiring the
Respondent State to bear all the costs in the instant case is not correct for the reasons
we outline below.
2.
At the outset, we wish to point out that international human rights litigation is
mostly but not exclusively between an individual and a State and due to the nature of
the proceedings and the unequal capacity of the Parties, it is not always the rule that
the loser party bears costs, which may be the norm in other forms of litigation. ln
particular, in circumstances where the loser party is the individual, he or she shall not
in principle be penalized for exercising his/her right to be heard by being required to
bear the entire costs of the litigation.
3.
The only exception to this principle would be
if the State sufficiently
demonstrates that the individual abused his/her rights or acted in bad faith by filing
frivolous claims while having been fully aware/ knowing that he was not entitled to
make such claims. Even when the bad faith of the individual is sufficiently vindicated,
the financial capacity of the individual and the amount of costs that the State incurred
should guide the determination of whether the former shall bear the costs. lt therefore
rests on the discretion of a Court to assess and identify, having regard to the specific
contexts of each case, the party which shall incur the costs.
4.
ln the instant case, it is evident from the facts on record that the Respondent
State has prayed the Court to order that the Applicant shall bear the costs. However,
the Applicant has neither prayed for costs nor did he provide any supporting
documents showing expenses in relation to his Application, if any.
5.
On the other hand, the Court has, in our view rightly, found that the Respondent
State has violated the right to defence of the Applicant by failing to provide him legal
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