104. The Commission notes that the implication of a rigid application of Article 56(5) to the present
Communication would be the same as that which the Commission sought to avoid in the referenced past
decisions. In this regard, the Commission takes cognizance of the fact that the present Communication has
been filed against fourteen different States, who are alleged to have collectively taken a decision which
violates the rights of the Victims as protected under the African Charter (the merits of which is yet to be
examined by the Commission) and that each State has its unique legal jurisdiction and court systems. On
this basis, the Commission considers that a rigid application of Article 56(5) to the present Communication
by requiring the Victims/Complainant to exhaust domestic remedies in all of the fourteen (14) Respondent
States by filing court applications against each State60 would, as argued by the Complainant, occasion a
paralysing delay and costs to the Complainant/Victims.
105. On the basis of the foregoing, the Commission is persuaded to conclude that exhaustion of local
remedies, even if available, is neither practicable nor desirable in the present case, especially as it would
be unduly prolonged, and therefore holds that the Complainant is dispensed from the requirement under
Article 56(5) of the African Charter.
106. With respect to Article 56(6) of the African Charter, the Commission notes that the African Charter
does not specifically state what it means by "reasonable time", as opposed to Article 46
× Article 46 1. Admission by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
b. that the petition or communication is lodged within a period of six months from the date on which the
party alleging violation of his rights was notified of the final judgment;
of the American Convention on Human Rights and Article 35
× Admissibility criteria Article 35 1.The Court may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of international law, and within a period
of six months from the date on which the final decision was taken.
of the European Convention on Human Rights which provide for a six months period. In the absence of this
specification, the Commission has always ruled based on the contexts and characteristics of each case.61
107. Furthermore, the requirement under Article 56(6) provides for two events from which the timeline
within which a Communication has been submitted may be computed, being: (i) "from the time local
remedies are exhausted"; or (ii) "from the date the Commission is seized with the matter". From the
Commission's analysis on Article 56(5) in the preceding paragraphs, domestic remedies were not (required
to be) exhausted in the present case, consequent to which the timeline for the submission of the
Communication may not be computed "from the time local remedies are exhausted". This leaves us with
the second limb of the provision, that is, "from the date the Commission is seized with the matter". Notably,
this second limb of Article 56(6) has not been pronounced upon in the Commission's jurisprudence.
108. In this regard, the Commission notes that while the term "seized" or "seizure" has acquired a technical
meaning in its Communications handling procedure, meaning "the decision by the Commission to consider
a Communication"62 , this technical meaning of seizure is clearly not what is contemplated under the
second limb of Article 56(6). This is because, for a seizure to technically occur, the Communication must
have first been submitted to the Commission, while on the other hand Article 56(6) contemplates that a
Communication must be submitted "after" and within a timeline "from the date the Commission is seized
with the matter".
109. In the Commission's view, the jurisdiction of the Commission began in relation to the facts of the
present Communication on the date on which the alleged cause of action under the African Charter arose.
In this regard, the Commission observes from the appendices to the Communication that while the First
Decision of the SADC Summit of August 2010 allowed members of the Tribunal to remain in office but
imposed a moratorium on the receipt of new cases by the Tribunal, pending the decision of the
Extra-Ordinary Summit on the status, roles and responsibilities of the Tribunal,63 the Second Decision of 20
May, 201164 reaffirmed the moratorium65 and set out the resolution of the Summit not to reappoint
members of the Tribunal whose terms of office had expired.66
110. Taking all the facts into account, the Commission notes that the Tribunal could not convene, as a
result of the Second Decision of May 2011 not to reappoint the Tribunal judges whose terms had expired. It
is therefore clear that it was this latter decision that foreclosed the chances of the Victims approaching the
Tribunal. Consequently, this date, would therefore, in the view of the Commission, be the date on which the
alleged cause of action under the African Charter arose and the time period of the jurisdiction of the
Commission began, in relation to the facts of the present Communication. Accordingly, the Commission
finds that this Communication was submitted within at least, two (2) months from the date in which the time
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