Communication. This information was duly acknowledged by the Secretariat and notified to the
Complainant.
33. On 30 June, the Complainant forwarded to the Secretariat for its reference, a judgment handed down
by the Constitutional Court of South Africa against Zimbabwe, on 27 June, 2013.
34. By Note Verbale dated 15 August 2013, which was received by the Secretariat on 19 August 2013,
Lesotho requested the Commission to provide it with information regarding the status of the
Communication, and also requested to know whether it is permissible for the Respondent States to make
submissions regarding the Communication at this stage. On 20 August 2013, the Secretariat informed
Lesotho of the status of the Communication, and also indicated that since the deadline stipulated for
Lesotho to forward its written submissions on Merits to the Secretariat had expired in line with Rule 108 (1),
it could no longer make any submissions.
35. At its 54th Ordinary Session, held in Banjul, The Gambia, 22 October to 5 November, 2013, the
Commission considered the Merits of the Communication.
The Law on Admissibility
Complainant's Submission on Admissibility
36. The Complainant submits that all the criteria for Admissibility enumerated under Article 56 of the African
Charter are satisfied and that therefore, the Communication should be declared Admissible.
37. With respect to Article 56(1) of the African Charter, the Complainant states that in compliance with the
relevant provision, the present Communication clearly indicates the names and identities of the applicants,
as well as that of their authorized legal representative.
38. The Complainant also states that the provision of Article 56(2) of the African Charter has been complied
with as the Communication clearly establishes all four ratione jurisdictionis required for the Commission to
have the competence to consider the complaint, being personal, material, temporal and territorial
jurisdiction.
39. The Complainant also avers that the Communication complies with Article 56(3) of the African Charter,
as it has not been written in a disparaging language aimed at the Respondent States, and the language
used in the same is entirely appropriate, concise, clear and competently sets out the cause of complaint.
40. The Complainant asserts that this Communication complies with Article 56(4) of the African Charter as
it is not based on mass-media reports, but instead, is fully supported by direct evidence, including objective
and reliable official records. He further asserts that the evidence supporting the Communication is reliable,
indisputable, objective and independent.
41. Relying on the previous jurisprudence of the Commission, the Complainant also submits that this
Communication complies with Article 56 (5) of the African Charter, as the applicants have fully satisfied the
requirement to exhaust domestic remedies, seeing that there is no prospect of achieving any domestic
remedy. They compare the facts of the present Communication to those of Sir Dawda K Jawara vs. The
Gambia.9
42. According to the Complainant, because the very complaint in the present Communication is the
suspension of the Tribunal (which means that it cannot be approached to rule on the legality of its own
suspension), in the circumstances of the present complaint, there is no remaining domestic remedy. He
also contends that the applicants' attempt to approach the said Tribunal itself demonstrates beyond any
doubt that there was (and still is) no prospect of achieving any domestic remedy.
43. The Complainant also states that this Communication complies with 56 (6) of the African Charter as the
applicants have lodged this Communication duly, sought to expedite its processing by the Secretariat and
Commission, and complied with every Rule, directive or request by the Commission within the required
time.
44. The Complainant states that this Communication complies with Article 56 (7) because the suspension
of the Tribunal (the ground of the complaint) has still not been lifted, despite the Expert Report's
recommendations and the public outcry by NGOs, SADC lawyers' associations and even the international
community. Furthermore, the Complainant avers that there is no provision under either the African Charter
or the UN Charter which authorises the paralysis of the Tribunal, or the perpetuation of the paralysis, nor is
there any lawful mechanism whereby the complaint can be "settled".
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