sentenced to death by a law and tribunal under the scope and competence of which they did not fall.
The Submissions of the Respondent State on Admissibility
31. In its submissions on admissibility, the Respondent State contends for its part that the Communication
should be declared inadmissible on the grounds that it does not refer to actual facts but to a collection of
media reports and that it deals with an issue which has already been settled.
32. The Respondent State is also of the opinion that the Communication contains inaccuracies in that the
Complainants aver that the death sentences were commuted to life imprisonment whereas it was rather
otherwise in view of the implementation of the above-mentioned Decree. Such a situation, according to the
Respondent State, should lead to inadmissibility of the Communication.
33. On the point of exhaustion of local remedies, the Respondent State recognizes that the Orders of the
Military Court cannot be appealed against but submits that a remedy was always available against its
Orders. According to the Respondent State, the provisions of Article 175 of the Executive Decision on the
Organization of the Judicial System establishing the Rules of Courts, Tribunals and Public Prosecutors
Offices 4 provides for compulsory appeal for a pardon by the Officer of the Public Prosecutors Office in
case the death penalty is handed down as a last resort.
34. The Respondent State further contends that it is in pursuance of this provision that the Head of State
issued a Decree on 2 August 2002 in relation to special measures of pardon for child soldiers and other
minors sentenced to the death penalty and other repressive punishments. The Respondent State submits
that Diyavanga Nkuyu and Bosey Jean Louis had their death penalty commuted to release for Government
service while the capital punishment handed down to Mwati Kabwe, Mbumba Ilunga and Banga Djunga
were commuted to imprisonment for 5 years. As for Nanasi Kisala, he is said to have obtained relief from
the provisions of Articles 3 and 4 of the above-mentioned Decree by which the death penalty is commuted
to time in a government reform school until the 21 st birthday or five years in prison.
35. Finally, the Respondent State contends that Complaints for which the Communication was filed had
already been resolved under Decree No. 084/2002 of 2 August 2002 which, as indicated above, had
commuted the death sentences into measures for release for Government service or time-bound
imprisonments. All these, according to the Respondent State should lead to inadmissibility of the
Communication.
The Commissions analysis on Admissibility
36. This Communication was filed in accordance with Article 55 of the African Charter which stipulates that
the Commission may receive and consider Communications other than those of State Parties . Under
Article 56 of the Charter, Communications received pursuant to Article 55 must meet the following
conditions before they can be declared admissible:
1. Indicate the identity of their authors even if the latter request anonymity;
2. Are compatible with the Charter of the Organization of African Unity or with the present Charter;
3. Are not written in a disparaging or insulting language directed against the State concerned and its
institutions or to the organization of African Unity;
4. Are not based exclusively on news disseminated through the mass media;
5. Are sent after exhausting local remedies, if any, unless it is obvious to the Commission that this
procedure for remedies is unduly prolonged;
6. Are submitted within a reasonable period from the time local remedies are exhausted or from the
date the Commission is seized of the matter;
5