40. The issue arising for determination regarding admissibility in the present
case is whether the Applicant ought to have instituted a constitutional
petition before the High Court for the alleged violation of his fundamental
rights.
41. Pursuant to Article 56(5) of the Charter, whose provisions are restated in
Rule 50(2)(e) of the Rules, any application filed before this Court shall fulfil
the requirement of exhaustion of local remedies. Regarding the remedies
which have to be exhausted, the Court has previously held that such
remedies should be ordinary.11 In respect of the Respondent State, the
Court has also held on numerous occasions that applicants are not required
to exhaust the remedy of the constitutional petition before the High Court for
breach of fundamental rights because such remedy is extraordinary.12 As
the Court has determined, in instances where the Applicant has gone
through the judicial system up to the Court of Appeal, which is the highest
court of the land, he is considered to have
exhausted the required
remedies.13
42. The Court notes that in the present Application, the Applicant’s appeal was
determined through a judgment rendered on 11 March 2013 by the Court of
Appeal, which is the highest judicial authority of the Respondent State.
Given that the constitutional petition is not a remedy that the Applicant ought
to have used, it must therefore be considered that domestic remedies were
exhausted in the present matter.
11
Laurent Munyandilikirwa v. Republic of Rwanda, ACtHPR, Application No. 023/2015, Ruling of 2
December 2021, § 74; Alex Thomas v. Tanzania (merits), § 64.
12 Gozbert Henerico v. United Republic of Tanzania, ACtHPR, Application No. 056/2016, Judgment of
10 January 2022, § 61; Mgosi Mwita Makungu v. United Republic of Tanzania (merits) (7 December
2018) 2 AfCLR 550, § 46; Mohamed Abubakari v. United Republic of Tanzania (merits) (3 June 2016)
1 AfCLR 599, §§ 66-70; Alex Thomas v. Tanzania (merits), §§ 63, 65.
13 Hamis Shaban alias Hamis Ustadh v. United Republic of Tanzania, ACtHPR, Application No.
026/2015, Judgment of 2 December 2021, § 51; Mohamed Abubakari v. United Republic of Tanzania
(merits) (3 June 2016) 1 AfCLR 599, § 76.
11