83. The Respondent submits in conclusion that from the foregoing , the Applicants are
yet to exhaust the available local remedies , adding that as the exhaustion of local
remedies Is a fundamental principle prior to filing a matter before the Court, "the
Application has not passed the test of admissibility, as it has not met the
requirements of Rule 40 (5) of the Rules of Court". The Respondent cites the African
Commission's Communication 333/2006 Sharingo and Others vs. Tanzania and
Communication No 27512003, Article 19 vs Eritrea, to support its argument.
84. In their Reply to the Respondent's argument of failure to exhaust local remedies , the
Applicants state that "we, the applicants in the application have not exhausted the
local remedies as alleged by the Respondent. Our complaint in the matter Is about
the unduly prolonged period that has takeh us to be in prison from 2006 up to date".
They add that they "let go of the chance for review as this was the second time the
Court of Appeal was remitting back the application to the High Court, so our defence
counsels advised us against going for a review so that we can on the onset shed
more light into the application".
85. The Court first notes that the Applicants themselves have conceded that they have
not exhausted local remedies. This position is stated in their reply to this preliminary
objection, and reiterated during their oral submissions at the public hearings, in
which they stressed that their contention "is not about having to exhaust local legal
remedies at their disposal but rather that the matter has been unduly prolonged since
2006 when they were Incarcerated to date".
86. The question for the Court is to determine whether the reasons given by the
Applicants for not exhausting local remedies fall within the permissible scope of the
exception as ehvisaged under Article 56 (5) of the Charter and reflected under Rule
40 (5) of the Rules of Court.
87 . Rule 40 (5) which is drawn from Article 56 (5) of the Charter, provides that
applications to the Court shall, inter alia "be filed after exhausting local remedies, if
26