Communication 341 /07 - Equality Now v Ethiopia
73.
The Complainants submit that all of the requirements of Article 56 have been met,
while the Respondent State on the other hand, contests the Admissibility of the
Communication on the basis that it does not meet the requirement of Articles 56 (5).
74.
Upon careful examination of the facts and submissions by the Parties, the
Commission considers that other than the contested Article 56 (5), the other
requirements for Admissibility set out in Article 56 of the African Charter have
been adequately substantiated, raise no potentially contentious issues and require
no further examination. Accordingly, the Commission's analysis will focus on the
examination of only that contentious provision.
75.
Articles 56 (5) provides that Communications should be 'sent after exhausting local
remedies, if any, unless it is obvious that this procedure is unduly prolonged'.
76.
This requirement is premised on the principle that "the respondent state must first
have an opportunity to redress by its own means within the framework of its own
domestic legal system, the wrong alleged to have been done to the individual" ,
before the matter is brought before an international treaty body. This provision also
enables the Commission to avoid playing the role of a court of first instance, a role
that it cannot under any circumstances arrogate to itself.
77.
In its jurisprudence, the African Commission has articulated a framework for
allocating the burden of proof between Complainants and Respondent States, by
holding that, the initial burden to prove the availability of effective and sufficient
remedies within its legal system rests on the Respondent State. Only once this
burden of proof has been met does the petitioner have to establish that the local
remedy "was in fact exhausted or for some reason inadequate or ineffective in the
particular circumstances."
78.
Furthermore, in its jurisprudence, the Commission has held that where a State
Party fails to submit its observations in accordance with the Rules of Procedure, the
Commission has no option but to proceed to consider Communications on the basis
of the submission of the complainant(s) and the information at its disposal. In this
regard, the Commission notes that the Respondent State has not reacted to the new
Admissibility submission of the Complainants , and would therefore, with respect
to the Respondent State, rely only on its October 2007 Admissibility brief and its
oral submission to the 43rd Ordinary Session of the Commission.
79.
The Commission recalls that it has expounded on the principle of exhaustion of
domestic remedies in its jurisprudence and has held that "the generally accepted
meaning of local remedies, which must be exhausted prior U