respect of the applicant's complaints and offered reasonable prospects of success.9 Only once this burden of proof has been met does the petitioners have to establish that the local remedy {quote]was in fact exhausted or for some reason inadequate or ineffective in the particular circumstances.[/quote]10 49. Similarly, the Inter-American Commission on Human Rights has expressly stated that the burden of proving that effective local remedies exist and that they have not been exhausted falls upon the Government making such a claim.11 In 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: a. that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law; 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; c. that the subject of the petition or communication is not pending in another international proceeding for settlement; and d. that, in the case of Article 44, the petition contains the name, nationality, profession, domicile, and signature of the person or persons or of the legal representative of the entity lodging the petition. and 46(2) [sic! × 46(2)(a)] 2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when: a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated and 46 (2b) × the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them of the American Convention on Human Rights it is stated that the State has duties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of judicially ensuring the free and full enjoyment of human rights.12 In the Loayza Tamayo Case, the Court held that the State claiming non-exhaustion of domestic remedies has an obligation to prove that the domestic remedies remain to be exhausted and that they are effective.13 50. A similar view regarding the burden of proof has been taken by the United Nations Human Rights Committee which draws attention to the fact, among others, that the Government had failed to provide...sufficient information on effective remedies.14 Equally, the European Court and Commission of Human Rights have held that the Government shoulders the burden of proving that there are effective remedies. 51.The African Commission has also held in several of its decisions that the rationale of the rule to exhaust local remedies is to allow the State concerned an opportunity to remedy a grievance through its own domestic legal system.15 However, the African Commission has gone ahead to state that it will not hold this requirement to apply literally in cases where it is impracticable or undesirable for the Complainant to seize the domestic courts.16 Accordingly, the African Commission, in Dawda Jawara v The Gambia,17 states that for a Complainant to be able to exhaust local remedies, such remedies must meet three basic criteria - they must be available, effective and sufficient.18 The African Commission went on to state with respect to that case that, if the availability of a remedy is not evident, it cannot be invoked by the State to the detriment of the Complainant.19 The burden of proof thus falls on the State of Kenya to prove that effective local remedies exist and that they are reasonably accessible, available, effective and sufficient. 52. The African Commission having looked at all the issues arising from this matter and taking into consideration the desperate situation of the Nubians is of the opinion that the Government of Kenya has not met this burden of proof because it has not shown that Complainants have any adequate and effective remedies. The African Commission is of the view that the Complainants in the particular circumstances are unable to utilize local remedies mainly because of many procedural and administrative bottlenecks put in their path. 53. For example, the African Commission notes that since CEMIRIDE filed an application on 17 March 2003, seeking leave of the High Court to file a Representational Constitutional Application on behalf of the Nubians, no Bench has been constituted to hear the case despite many attempts by Legal Counsel of the 6