102. If a Complainant wishes to argue that a particular remedy does not have to be exhausted because it is unavailable, ineffective or insufficient, the procedure is as follows: • • • the Complainant states that the remedy did not have to be exhausted because it is ineffective (or unavailable or insufficient) - this does not yet have to be proven; the Respondent State must then show that the remedy is available, effective and sufficient; and if the Respondent State is able to establish this, then the Complainant must either demonstrate that he or she did exhaust the remedy, or that it could not have been effective in the specific case, even if it may be effective in general. 103. In the present communication, the Complainants and the Respondent State seem to have reached what the Commission would call a “legal impasse”. The Complainants argue that the domestic remedy provided by the Respondent State is ineffective and cannot remedy their grievance, while the State contends that the remedy is available and effective but the Complainants’ defiance of the law has prevented them from using it. Usually, when there is a legal disagreement between two parties, the appropriate national institution to resolve that disagreement is the domestic courts. In the present communication, the Complainants have been to the highest court of the country and the latter refused to hear and determine [the] Complainants’ grievance on the merits claiming [the] Complainants have approached it with dirty hands. Complainants argue that on matters of fundamental human rights, as is the case with the present communication, the dirty hands doctrine invoked by the Supreme Court cannot be used as it would be undermining the supremacy of the Constitution. According to the Complainants therefore, the domestic remedy available is not effective because it is incapable of redressing the grievance and that is why the matter has been referred to the Commission. 104. A brief account of the circumstances of the case would be helpful to determine whether Complainants’ argument that there is no effective remedy or the State’s contention that the Complainants have not exhausted domestic remedies is correct. 105. On 15 March 2002, the Respondent State enacted a law, the Access to Information and Protection of Privacy Act which required media practitioners to register their businesses before operating in the country. In terms of Section 93 of the Act, any person who immediately the Act became law was publishing a newspaper was deemed to be lawfully registered for a period of three months, that is, up to 15 June 2002. It was envisaged that those who were required to register would apply and be registered within the three months period. However, the Regulations to the Act prescribing the various forms that had to be used for registration were published only on the date the three months was due to expire, 15 June 2002. This means that no application for registration could be made before 15 June 2002. To cater for this delay, section 8(2) of the Regulations provides that once a person has submitted an application for registration, then that person is permitted to carry on mass media activities while the application is being considered. 106. Meantime, the Complainants sought to challenge the constitutionality of the Act claiming the Act was unconstitutional and thus null and void ab initio. The Complainants applied to the Supreme Court for an order declaring certain provisions of the Act a nullity. The application was heard on 3 June 2003. On 11 September 2003, the Supreme Court handed down a ruling that it was not prepared to hear and determine the merits of the case until the applicant (the Complainants) had registered, that is, compl[ied] with the Act. A day after the ruling, that is, 12 September 2003, Complainants published an edition of their newspaper, the Daily News. That same day, police visited the premises of the Complainants and evicted all employees there from. 107. After discussions with the police on 13 September 2003, Complainants were given permission to enter the premises with a few staff to prepare documents to apply for registration. On 15 September 2003, Complainants submitted application for registration to the Media and Information Commission and the application was duly acknowledged on the same day. On 16 September 2003, Respondent’s agents, the police, raided the premises of Complainants seizing equipment – computers, printers and other office accessories belonging to Complainants. On 17 September, [the] Complainants went to the