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93.
Another issue that must be taken into account is the doctrine of instantaneous
act, which should be distinguished from continuous violations. In case of a continuing
act, the violation occurs and continues over a period of time until the violation ceases. In
case of an instantaneous act, the violation itself does not continue over time, although
the completion of such an act might take some time. This definition of continuous
violations can be applied to acts of disappearances, which can be qualified as a violation
that occurs and continues over time, until it ceases, that is, until the missing person is no
longer disappeared. Nigel Rodley, the United Nations Special Rapporteur on Torture at
the time until 2001, pointed out that: "[…] the idea of 'disappearances' constituting a
continuing offence is logical, since non-acknowledgement of the detention and nondisclosure of the fate or whereabouts of detained persons are key elements in the
offence itself."79
94.
In the present Communication, the Respondent State has not proved the
whereabouts of first victim and neither has it demonstrated efforts made to investigate
his whereabouts. The African Commission is of the view that the forced disappearance
of the first victim constitutes a continuing violation of his human rights and for these
reasons holds that it is competent ratione temporis to examine the matter.
The African Commission’s Analysis on Admissibility
95.
Having established that the African Commission is competent ratione temporis to
entertain the Communication before it, the African Commission will now proceed to
analyze Admissibility of the Communication.
96.
The Admissibility of Communications within the African Commission is governed
by the requirements of Article 56 of the African Charter. This Article provides seven
requirements that must be met before the African Commission can declare a
Communication Admissible. If one of the conditions/requirements is not met, the African
Commission will declare the Communication Inadmissible, unless the Complainant
provides sufficient justifications why any of the requirements could not be met.
97.
Article 56(1) of the African Charter states that ‘Communications relating to Human
and Peoples’ Rights…received by the Commission shall be considered if they indicate
their authors even if the latter request anonymity…’ The Communication indicates the
author as well as the victims of the alleged violations, and the African Commission
therefore holds that the requirement under Article 56(1) of the African Charter is fulfilled.
98.
Article 56(2) of the African Charter states that ‘Communications…received by the
Commission shall be considered if they are compatible with the Charter of the
Organisation of African Unity or with the present Charter.’ The Communication is
brought against the Republic of Mozambique which became a party to the African
Charter on 22 February 1989 and the Communication alleges violations of the rights
79
"An Analysis of International Instruments on 'Disappearance", Nunca Más, in Human Rights
Quarterly, vol.19, 1997, p. 389.