EX.CL/717 (XX)
Page 177
107. The African Commission has thus allowed many Communications from authors
acting on behalf of victims of human rights violations. Thus, having decided to act on
behalf of the victims, it is incumbent on the author of a Communication to take concrete
steps to comply with the provisions of Article 56 (5) or to show cause why it is
impracticable to do so’. This was reiterated in Article 19 v the State of Eritea82, where
the African Commission made it clear that ‘it is incumbent on the Complainant to take all
necessary steps to exhaust, or at least attempt the exhaustion of local remedies. It is not
enough for the Complainant to cast aspersion on the ability of the domestic remedies of
the State due to isolated incidences’.83
108. 108.Therefore, local remedies could have been exhausted by the victim, the
Complainant or any other person. The African Commission is thus not convinced that
the Complainant or the victim in the present Communication attempted, to exhaust local
remedies, and was unable to exhaust those remedies because they were not available,
effective or sufficient. The African Commission is of the view that the measures taken by
the second victim as stated above in paragraph 102, to deal with the matter, do not fall
within the purview of the African Commission’s meaning of domestic remedies. The
African Commission, therefore, is of the opinion that local remedies were not attempted.
109. 109. For the above reasons, the African Commission holds that the requirement
of Article 56(5) of the African Charter has not been complied with.
110. Article 56(6) of the African Charter states that ‘Communications relating to human
and Peoples’ Rights… shall be considered if they: are submitted within a reasonable
period from the time local remedies are exhausted, or from the date the Commission is
seized with the matter’. The Complainants argue that because of fear of persecution,
the second victim fled to France in 1983, and lived there until 1994. He later moved to
the Netherlands in 1995, where he currently lives and works.
111. The African Commission notes the Complainant’s arguments that while applying
for refugee status in France, the second victim made a commitment not to undertake
any legal action against Mozambique while living in France and due to lack of resources
it was impossible to undertake legal action from France. The Complainant further states
that when the second victim moved to the Netherlands in 1995, and obtained work, he
was able to fund the resources in order to undertake legal action. He however made his
first visit to Mozambique in 1995 and a second visit in 2007. This according to the
Complainant explains why the matter was submitted to the African Commission only in
2008.
112. While noting the difficulties encountered by the second victim, the African
Commission is of the view that, the second victim or the Complainant could have seized
the African Commission as soon as the second victim or the Complainant was
convinced that local remedies could not be exhausted. The Complainant submits that
82
83
Id, para 63
Id. para 65.