56. Therefore, it is the Commission's view that, the application for leave to appeal
having been dismissed by all the Courts in the Respondent State, the Complainant
should allow the Courts in the Respondent State to hear the matter on its merits,
by going back to the High Court, where the main review application under case
number: 2172/2019 is still pending for hearing.
57. The Commission has held in several communications such as in Tsatsu Tsikata v.
Ghana; Kenyan Section of the International Commission of Jurists, Law Society or Kenya
and in Kituo Cha Sheria v. Kenya and Interights (on behalf of Jose Domingos Sikunda) v.
Namibia, that the Complainants brought the matter before it prior to exhausting
domestic remedies, indeed while the matter was still pending before the High
Courts of the Respondent States and as such, domestic remedies were not
exhausted.
58. In line with the above reasoning, the Commission finds thatthe Complainant has
not exhausted local remedies ·in accordance with Article 56(~) of the African
Charter.
59. Article 56(6) of the African Charter states that Communications relating to human and
Peoples' Rights ... shall be considered if they: are submitted within a reasonable period from
the time local remedies are exhausted, or from the date the Commission is seized with the
matter". The Complainant submits that the Communication was filed within a
reasonable time from the date of exhaustion of local remedies. The highest court
of the Respondent State, i.e. the Constitutional Court, handed down its Order on
03 May 2021 and this Communication was,filed before the Commission before the
end of June 2021, which is two (2) months from the date of the Court Order handed
down by the Constitutional Court. The Commission in Promoting Justice for
Women and Children (PROJUST NGO) V. DRC 6 held that, where article 56(5) has
not been compiled with, there is no reason to proceed to consider article 56(6) as it
will conclude that the latter . is not compiled with. With the same reasoning
therefore, the Commission having decided above that local remedies were not
exhausted, conclude that Article 56 (6) of the African Charter has not been not
complied with.
60. Article 56(7) of the African Charter states that "Communications relating to human
and
Peoples'
Rights...
shall
be
considered
if
they:
do
not
deal with cases which have been settled by these states involved in accordance with the
principles of the Cllarter of the United Nations, or the Charter of the Organisation of
African Unity or the provisions of the present Charter." 'The Complainant states that
this Communication has not been settled by any international body and as such