30. We shall spend little time with this question because it is not in
doubt that there is no express provision barring this Court from
determining any matter that is otherwise properly before it,
merely because the Applicant has not exhausted Local
remedies. It has been agreed by the parties that upon the
Reference being filed, the Republic of Rwanda produced the
Subject before the Military High Court of that Country. Can that
action be said to be sufficient for this Court to tell the
Applicant to go to Rwanda and exhaust whatever remedies
are available there?
We must answer the question in the
negative.
31. We say because it has been admitted by the 2nd Respondent
that from 20th August 2010 until 28th January 2011, the Subject
was held in detention without lawful authority. The Military
High Court in Rwanda found that action to be a contravention
of Articles 90 – 100 of the Rwandan Code of Criminal Procedure.
Thereafter, the Subject was placed in Preventive Detention as is
the Law in Rwanda.
This Court was already seized of the
Reference now under consideration when the Rwandan Military
High Court made its order for Preventive Detention and
whereas the Applicant may well have a remedy in the Rwandan
Justice System, this Court cannot abdicate its mandate under
the Treaty to apply, interpret and ensure compliance therewith.
REFERENCE NO.8 OF 2010
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