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on 9 June 2009, the three judges of the Court of Appeal who were due to hear the matter recused themselves and removed the urgency status of the matter. Furthermore, he states that since then Ch1il Appeal 266 of 2008 has never been set down for hearing. Similarly, Court of Appeal Civil Applications Nos. 320 of 2007 and 261 of 2007 have never been heard and determined despite the fact that they were lodged as urgent matters. On the other hand, Court of Appeal Civil Application No. NAI 260 of 2007 (UR 160 of 2007), an application for leave to appeal was only heard on 23 February 2012 and a ruling delivered on 20 March 2012, approximately five years after it was lodged on 23 October 2007. 31. The Complainant also states that the Communication must be admitted because local remedies are not available to him owi_n g to a "serious breakdown of trust and professional etiquette" between the judiciary and him. He states that this has been conclusively established by the Vetting of Judges and Magistrates Board in its decision of 25 April 2012. 32. Lastly, the Complainant submits that the Supreme Court, which is the apex court, has already shut its door to him by its decision of 4 September 2012 in his Supreme Court Appeal No. 2 of 2012.In this regard, no more remedy is available to him. Alternatively, he must be deemed to have exhausted local remedies upon the decision of the Supreme Court. · Respondent State's obseryations 33. The Respondent Stafe contends that this Communication does not comply with Article 56(5) of the Charter relating to exhaustion of local remedies. It submits that it is a wdl-established principle that international law does not replace municipal law, and that international legal mechanisms are not intended to replace na:tional .judicial institutions. It cites Communication 306/05 - Samuel T Muzerengwa and 110 others .(represented by Zimbabwe Lawyers for Human Rights) v Zimbabive in which this Commission stated that . . . the purpose of the rule of exhaustion of local remedies is to enable states address alleged violations of human rights before international bodies. In assessing whether states have been given this opportunitiJ it is of prime importance to make sure that they have been addressed on all the substantive issues complained pf and that the domestic procedures as provided by the laws of the countnJ have been properly pursued, unless they are apparently unjust or prolonged.2

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Communication 432/12 – Peter Odiwuor Ngoge v Republic of Kenya

ACHPR Decision

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Type of Document

Decision

Keywords

Elections / Referendums
Equality
Equality Before the Law
Participation in Government
Personal Liberty
Right to be Heard before a Competent Court
Right to Fair Trial

Case Head Notes: The Complainant states that, in 2003, he applied to be elected as Speaker of Parliament. However, his application was blocked, and another candidate was declared speaker. The Complainant sought leave for judicial review and, after the application was dismissed, the Complainant insinuated that the judge was acting on instruction to shield the Respondent. Consequently, the judge convicted him of contempt and sentenced him to one week imprisonment. In 2004 the Complainant commenced new proceedings and the matter was certified for urgent hearing. However, the Complainant states that the Chief Justice deliberately stalled the hearing of the matter. The Complainant also, in ensuing litigation attempts, brought up concerns regarding the participation of various members of the Respondents, and, in 2012, he states that one of the two judges of the Supreme Court, who dismissed his application, was a member of Parliament, when he applied to be elected Speaker, and that, therefore, she sat as a judge in her own cause in dismissing the appeal. The Commission found no violation of Article 3 because they state that, at all times, the Complainant enjoyed unfettered access to the law and courts and that his personal dissatisfaction cannot amount to legal grounds to conclude that his right to equality before the law was violated. The Commission found no violation of Article 5 because they could not find any evidence that state officials intentionally inflicted psychological pain or suffering on the Complainant, and they did not consider the facts relied on by the Complainant to be an attack on his inherent dignity. The Commission found no violation of Article 6 because there was no breach of Article 6 identified, and the Commission cannot find a violation for perceived future conduct. The Commission found no violation of Article 7 because they state that the Complainant did not suffer any substantial prejudice that could support a claim, and that the allegations of procedural irregularity in prosecuting his appeal do not amount to a denial of access to justice. Noting that the Complainant freely participated in the elections for Speaker of Parliament, the Commission found no violation of Article 13. The Commission stated that the contention that the Complainant was entitled to a fresh election was without merit, and that, allowing the Complainant to appoint his own date to contest in the election would amount to nullifying the will expressed by the people of the Respondent State. The Commission found no violation of Articles 19, 22, and 24 because the facts on which those allegations are based were outside the scope of issues on which the original complaint was based.

Country

Kenya

Outcome: Decided on Merits

Year Decided: Jun 3, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 13: Right to Participate in Government
ACHPR 13.1: Right to participate freely in government
ACHPR 13.2: Right of equal access to the public service of the country
ACHPR 13.3: Right of access to public property and services
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 2: Freedom from Discrimination
ACHPR 27.1: Duties towards family and society, the State and other legally recognized communities
ACHPR 27.2: Obligations of individuals when exercising rights and freedoms
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

Rights Not Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 13: Right to Participate in Government
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 2: Freedom from Discrimination
ACHPR 22: Peoples' Right to Economic, Social and Cultural Development
ACHPR 24: Right to a General Satisfactory Environment
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Procedure

Oct 2, 2012 ~ Jun 3, 2024

Country Geolocation

Latitude: -0.023559

Longitude: 37.906193

Country Geolocation (linked ACHPR Decision): Kenya

Primary Documents

(432-12) Peter Odiwuor Ngoge v Kenya.pdf
English
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African Human Rights CLA 2.0

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Communication 432/12 – Peter Odiwuor Ngoge v Republic of Kenya

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