Human Rights our
Collective Responsibility
44. It was submitted according to the Commission's jurisprudence, that the generally
accepted meaning of local remedies, which must be exhausted before any
Communication/ Complaint procedure before the Commission, is the ordinary
remedies of common law that exist in jurisdictions and are normally accessible to people
seeking justice."
45. As outlined above, it is apparent that the ordinary remedies that were available to the
First Victim were duly exhausted by the legislation, which barred the victim from
accessing any other remedies that were ordinarily available. Without any argument
from the Respondent State to the contrary, the Commission considers that the First
victim duly exhausted local remedies.
46. Regarding the Second Victim, the Complainants have pointed out that the outcome of
the First Complainants case, declaring the accused innocent of all the charges directly
affects the ability of the Second Victim to exhaust local remedies because this has
rendered the remedies unavailable or ineffective on the one hand and unduly prolonged
on the other.
47. The Commission notes that the Second Victim brought a complaint before the ordinary
prosecutor on 4 July 2011, describing the abuses to which she was subjected while in
detention. The Commission notes further that this complaint was brought less than one
month after the First Victim initiated proceedings against Dr EI Mogy. However, while
the trial of the accused in the First Complainants case commenced on 20 December 2011
and was concluded on 11 March 2012, the case of the Second Victim saw no further
progress following the transfer of the case from the ordinary prosecutor to the military
prosecutor.
48. It is evident from the above that the State had ample notice of the violation but failed to
take any measures to remedy same. While the case of the First Victim was expeditiously
dealt with, not even an investigation was initiated following the Second Victim's
complaint despite the seriousness of the allegations. The Commission observes that
where allegations of serious wrongdoing, such as the infliction of torture or cruel,
inhuman or degrading treatment or punishment have been brought to the attention of
the State, it is under an obligation to initiate a prompt, impartial and effective
investigation to establish responsibility for the wrongdoing.
The African Commission