34.
The Complainants contend that the Respondent State has been given numerous
opportunities to remedy the violations of the Charter, as required by the Commission
in Amnesty International and Others v. Sudan,3 and claim that the State has chosen to
ignore the decisions of the constitutional judicial authorities by implementing the
decisions of the Executive.
35.
The Complainants further contend that the Respondent State’s appeal against the
decision of the Constitutional Court over the declarations and orders affecting the
Victims and the other accused, does not affect the bail release orders since the State
has not complied with them. In support of this, the Complainants cite Assanidze v.
Georgia, a case from the European Court of Human Rights, which concerned the
detention of a person whose final release had been ordered by a competent court.
The Complainants aver that the European Court, in finding that domestic remedies
had been exhausted, noted that where a final release order was made, the principle
of legal certainty (one of the fundamental aspects of the rule of law) preclude any
attempt by a non-judicial authority to call that judgment into question, or to prevent
its execution.4
36.
The Complainants submit that in the instant case, the Executive working with other
institutions of the State, such as the military and the police, blatantly ignored the
pronouncements and orders of the Court, and even questioned the said
pronouncements.
37.
The Complainants conclude by noting that in spite of all the efforts of the Victims
and their counsel, the Respondent State has not obliged or respected the Court’s
release orders.
38.
For the above reasons, the Complainants submit that this Communication satisfies
the admissibility requirements of Article 56 of the Charter.
The Respondent State’s Submissions on Admissibility
39.
The Respondent State contends that the Communication is inadmissible under the
African Charter, submitting that the Communication was filed with the Commission
before the exhaustion of local remedies, and therefore offends the provisions of
Article 56(5).
40.
The Respondent State avers that promotion and upholding human rights is one of
the national objectives and directive principles of state policy, thus the Constitution
enjoins the State to guarantee and respect institutions charged with the responsibility
for protecting and promoting human rights. The Respondent State submits that one
3
Communication 48/90, 50/91, 52/91, 89/93: Amnesty International, Comité Loosli Bachelard, Lawyers' Committee
for Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan (1999) ACHPR para
32
4
Assanidze v. Georgia (2004) ECHR (Application No.71503/01) para 131
6