EX.CL/717 (XX)
Page 165
is that the government should have notice of a human rights violation in order to have
the opportunity to remedy such violation, before being called to account by an
international tribunal’.
48.
The Complainant finally submits that all the above mentioned instances prove the
difficulty and impossibility of the second victim to exhaust local remedies in accordance
with Article 56(5) of the African Charter.
49.
The Complainant submits that the requirements of Article 56(6) of the African
Charter have been fulfilled. The Complainant argues that it is a well-established principle
of international law that a new government inherits the previous government’s
international obligations including responsibility for the previous government’s misdeeds
and mismanagements65.
50.
The Complainant further submits that the African Commission is therefore,
competent ratione temporis to consider events that happened after the coming into force
of the African Charter, or if they happened before, constitutes a continuing violation after
the coming into force of the African Charter66. The Complainant, therefore, submits that
forced disappearance of the first victim and the failure of the Respondent State to
investigate the case constitute a continuous violation of a human right and the
Communication was submitted as soon as it was possible to do so, as the second victim
was unable to submit at an earlier time.
51.
The Complainant states that the Communication has not been submitted to any
other procedure of international investigation or settlement and as such has fulfilled the
requirements under Article 56(7) of the African Charter.
Respondent State’s Submission on Admissibility
a) Incompetent ratione temporis
52.
The Respondent State submits that the African Commission is incompetent
ratione temporis, and therefore should not have even received the Communication in
question. The Respondent State argues that Article 65 of the African Charter provides
that: ‘For each of the States that will ratify or adhere to the present Charter after its
coming into force, the Charter shall take effect three months after the date of the deposit
by that State of the instrument of ratification or adherence’.
53.
The Respondent State argues that the alleged incident happened in April 1977
before Mozambique became party to the African Charter.
Communication 64/92, 68/92 and 78/92 - Khrishna Achutan (on behalf of Aleke Banda), Amnesty
International 9on behalf of Orton and Vera Chirwa), Amnesty International (on behalf of Orton and Vera Chriwa) v
Malawi (1995)
66
Communication 251/02 - Lawyers for Human Rights v Swaziland (2005)
65