92 .
The Applicant contends that the Respondent has been aware of the
alleged violation of the rights of the Ogieks since the 1960s , and despite
the continuing resistance against their eviction from their ancestral
home , the Respondent has failed to address their grievances and rather
chose the use of force to quell their protest and adopted actions to
frustrate the attempts of the Ogieks to seek domestic redress . In this
vein , the Applicant submits that the Og i eks have been repeatedly
arrested and detained on fals ified charges; and political pressure has
been exerted on them by the Office of the President to drop the lega l
cases cha llenging the dispossession of their l and. In spite of all these,
when they get decisions in their favour from domestic courts, the
Respondent failed to comply with such decisions : thus , advancing t he
point that domestic remedies
procedure
would
probably
are
be
in fact
unduly
unavailable , or, their
prolonged.
The
Applicant
maintains that in such cases the requirement of exhaustion of local
remedies must be dispensed with.
The Court's Assessment
93. Any application filed before this Court must comply with the requirement of exhaustion
of local remedies. The rule of exhaustion of domestic remedies reinforces and
maintains the primacy of the domestic system in the protection of human rights vis-avis the Court. The Court notes that Article 56 (5) of the Charter and Rule 40(5) of the
Rules require that for local remedies to be exhausted, they must be available and
should not be unduly prolonged . In its earlier judgments, the Court has decided that
domestic remedies to be exhausted must be available, effective and sufficient and
must not be unduly prolonged. 6
94.The Court also emphasises that the rule of exhaustion of local remedies does not in
principle require that a matter brought before the Court must also have been brought
before the domestic courts by the same Applicant. What must rather be demonstrated
is that, before a matter is filed before an international human rights body, like this
6
See in this regard Lohe /ssa Konate v. Burkina Faso (Judgment on Merits) 5 December 2014 (hereinafter
referred to as /ssa Konate Case) paragraphs 96 to 115; Norbert Zongo Case (Judgment on Merits) 28
March 2014 paragraphs 56 to 106.