61.
In Nixon Nyikadzino v Zimbabtoeu, the Commission asked itself whether
"the allegation that Zimbabwean courts are not independent or impartial and are
subject to political pressure warrants the conclusion that oictoru before such courts
is unlikely, and thus makes the remedies ineffective".
Even though the
Complainant had relied on a report of the Commission taking cognizance
of the judiciary's susceptibility to political pressure, the Commission
nevertheless maintained that the Complaint should have attempted to
exhaust the local remedies.
62.
In this particular instance, the Commission maintains its position that a
general statement as to the non-independence
of the judiciary does not
relieve Complainants of their obligation to exhaust local remedies. The
submissions of the Complainant as to his attempts to approach several
institutions such as the Judicial Service Commission, Office of the Chief
Justice, Kenya National Commission on Human Rights and Law Society of
Kenya, following his case being heard at the High Court in both
Communications respectively, are not tenable as none of these institutions
are judicial remedies within the meaning of Article 56 (5). The
Complainant's failure to receive the desired remedy upon approaching the
aforementioned institutions does not exempt him from his obligation to
exhaust judicial remedies, and neither does it prove that these remedies
would be unavailable or ineffective should they have been pursued to their
logical conclusion.
63.
In relation to the second reason, the Commission turns to examining the
decision of the Supreme Court in Judges & Magistrates Vetting Board & 2
others v Centre for Human Rights & Democracy & 11 others [2014]
(Petition No.13A, 14, 15) (2013)18, and whether this renders domestic
remedies unavailable or ineffective. As the Commission had earlier noted,
the Complainant was not a party to this case, and states that the decision of
the Supreme Court applies to him as this Court is able to set precedents. In
such instances, the Inter-American Commission on Human Rights for
example has held that Complainants will not be expected to exhaust local
remedies where it is obvious from the jurisprudence of the highest courts
that there is little prospect of success. The Commission is however of the
view that this situation is not applicable to the present Communications.
64.
The Supreme Court described the nature of the Vetting Board as a sui generis
quasi-judicial body, which is neither a subordinate nor a superior Court. It
further stated that the Vetting Board "can conduct an investigation, and can act
as an adjudicator" but "does not act as a Court of law"19. The Commission