46. The Court recalls that pursuant to Article 56(5) of the Charter, whose
requirements are mirrored in Rule 50(2)(e) of the Rules, any application filed
before it shall fulfil the requirement of exhaustion of local remedies. As
established in the Court’s jurisprudence, this requirement will only be
dispensed with if it can be demonstrated that the remedies are unavailable,
ineffective, insufficient or that the domestic procedures for pursuing them
are unduly prolonged.15
47. Having perused the record, the Court confirms that section 4(1) of the NEA
was not part of the domestic litigation between the Parties. The Applicant,
however, argues that the preceding notwithstanding the Court should still
admit the Application, inclusive of the allegations in respect of section 4(1)
of the NEA, by using the “bundle of rights and guarantees”. According to the
Respondent State, however, the Applicants’ failure to plead section 4(1) of
the NEA before the domestic courts renders the whole Application
inadmissible since admissibility conditions are cumulative.
48. In resolving the Parties’ contestation on this point, the Court observes that
the Applicants commenced their case before the Respondent State’s High
Court by way of a petition. This petition identified, with precision, the
provisions of the NEA that the Applicants sought to be declared
unconstitutional and these were sections 6(1), 7(1), 7(2) and 7(3). No
mention, in the petition, was made either directly or indirectly to section 4(1)
of the NEA.
49. Given the preceding, this Court finds that the Applicants, by failing to plead
the unconstitutionality of section 4(1) of the NEA, before the Respondent
State’s High Court, did not exhaust domestic remedies to this extent.
50. In respect of the Applicants’ reliance on the “bundle of rights and
guarantees”, the Court concedes that it has, previously, had recourse to this
15
Kijiji Isiaga v. United Republic of Tanzania (merits) (21 March 2018) 2 AfCLR 218, § 44 and African
Commission on Human and Peoples’ Rights (ACHPR) v. Republic of Kenya (merits) (26 May 2017) 2
AfCLR 9, §§ 93-94.
14