Charter".
38. The [African] Commission recalls that the conditions outlined in Article 56 are cumulative and should all
be adequately fulfilled for a communication submitted in conformity with the terms of Article 55 to be
admissible. Consequently, non-respect of any one of these conditions is liable to render a communication
inadmissible.
39. In this particular case, most of the conditions laid down by Article 56 appear, prima facie to have been
respected by the authors of communication 304/05:
• the communication is not anonymous; it pleads the violation of a provision of the Charter;
• it is not exclusively based on information broadcast by the mass media;
• it is not the object of any international proceedings before another judicial or quasi-judicial body;
• it was submitted within a reasonable time frame, and the [African] Commission did not find any
abusive or insulting language in it.
The only condition which really poses a problem for both parties is Article 56(5) of the Charter which is the
question of exhaustion of local remedies.
40. Before considering the condition relating to the exhaustion of local remedies, the [African] Commission
would like to address the matter of the identity of victims raised by the Respondent State in its argument.
The [African] Commission recalls, in this context, that the African Charter does not call for the identification
of the victims of a communication. According to the terms of Article 56(1), only the identification of the
author or authors of the communication is required. Besides it is not necessary for the author or authors to
be present or the victims even where some link between the author and the victim exists. That had in fact
been confirmed by the practice of the African Commission2 The flexibility of Article 56 of the African
Charter, which differs in this from the other international human rights protection instruments, is fully
justified in the African context and "reflects sensitivity of the practical difficulties which individuals can be
faced with in the countries where human rights are violated".3
41. Concerning the exhaustion of local remedies, according to the provisions of Article 56(5), the
communications referred to in Article 55 received by the [African] Commission and relative to human and
peoples' rights should, necessarily, to be considered, fulfill the following conditions: "....be sent after
exhausting local remedies, if any, unless it is obvious to the [African] Commission that the procedure of
these remedies is unduly prolonged."
42. It does not at all show from the facts at the disposal of the [African] Commission that efforts had been
made by the authors of the communication to exhaust the local remedies available against Law No.
2005-05 of 17th February 2005. The remedy used by some Members of the National Assembly cannot
constitute, in the view of the [African] Commission, an attempt to exhaust local remedies for two main
reasons: First of all, this had been initiated on the 12th and 13th January 2005 and the ruling of the
Constitutional Council had been made on the 12th February 2005, that is to say before the entry into force
of Law No. 2005-05 of 17th February 2005. The [African] Commission is of the view that a law which has
not yet entered into force cannot violate any right which is protected by the [African] Charter.
43. Then, it would appear from the facts as presented by the two parties, from the appeal by the
parliamentarians and from the ruling of the Constitutional Council which sanctioned it, that the victims had
the opportunity to seize the competent Senegalese courts or even the Constitutional Council through the
method of challenge of constitutionality. The [African] Commission observes that instead of following this
procedure, the Complainants approached it (the [African] Commission) directly.
44. If the parties agree to recognise that the decisions of the Constitutional Council cannot be appealed,
there is no evidence to show that where the Constitutional Council declares itself incompetent to deal with a
given issue (here it relates to the verification of the conformity of a law with a Convention, in this case the
African Charter), no other legal body in Senegal is competent on the matter. The [African] Commission is of
the view that the local remedies to which Article 56(5) makes reference, cannot be limited to penal
remedies. They include all the legal remedies, whether civil, penal or administrative.
45. On the basis of all of the above arguments, the [African] Commission concludes that the Complainants
did not exhaust all the local remedies.
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