331/06[R] Kamanakao Association, Reteng & Minority Rights Group v Botswana Summary of the Application for Review 1. On 18 February 2013, the Secretariat of the African Commission on Human and Peoples' Rights (the Commission) received a request for reconsideration of the decision of the African Commission on Human and Peoples' Rights (the Commission), on Communication 331/06 - Kamanakao Association, Reteng & Minority Rights Group v. The Republic of Botswana. 2. The request is submitted by Kamanakao Association, Reteng and Minority Rights Group International (the Complainants), on behalf of the non-Setswana minorities in Botswana, including the Wayeyi tribe (the Victims). 3. The request is submitted in accordance with Rule 107(4) of the Commission's Rules of Procedure. 4. It should be recalled that Communication 331/06 was declared inadmissible by the Commission during its 10th Extra-Ordinary Session, held from 12 - 16 December 2011, on grounds of non-exhaustion of local remedies and the timeliness of submission of the Communication to the Commission following the exhaustion of local remedies. 5. The Complainants base their request for review on the fact that the requirement to exhaust available, effective and suffcient domestic remedies has been met in the present Communication, as confrmed in a recent decision of the Court of Appeal of Kgosikgolo Kgafela II Kgafela and Dithshwanelo (The Botswana Centre for Human Rights) v. Attorney General of Botswana and Others (2012) (the Kgosikgolo case), which endorses the Complainants submissions on admissibility. 6. The Complainants note that the principal reason given for declaring the communication inadmissible was the failure to exhaust domestic remedies by not appealing the domestic decision of the High Court to the Court of Appeal. 7. The Complainants submit that the Commission has previously held, in Communication 147/95-149/96 Sir Dawda K. Jawara v. The Gambia, that the underlying rationale of the local remedies rule was to ensure that the State concerned had the opportunity to remedy the matter through its own local system before proceedings were brought before an international body, and these remedies must be available, effective and suffcient.1 8. The Complainants submit that in the domestic case fled before the High Court, the Court made it clear that it did not consider that it had the power to declare on the constitutionality of provisions of the Constitution. The Complainants aver that no appeal was brought against the domestic case on the basis of a previous Court of Appeal decision in which it held that any such case was bound to fail. The Complainants further submit that in a subsequent domestic case, the Court of Appeal unanimously endorsed the views expressed by the High Court in Kamanakao and Others v. the Attorney General and Others. 9. The Complainants submit that in the Kgosikgolo case, the Court of Appeal held that: "... to strike out one section of the Constitution as offending another is to rewrite the Constitution ... to be able to do so ... Court would need to have express powers derived from the body of the Constitution itself, enabling the revisionary instrument for the alteration of the Constitution ... That is not the normal function of a Court. That function is usually left, as has been done in the Botswana Constitution, to representatives of the electorate who can, through discussions and consultation among themselves and with their constituents, agree new provisions to right what is wrong or lacking ... We do not think that such awesome powers as to rewrite the Constitution can be assumed to exist unless they are clearly and expressly granted by unambiguous language." The Complainants assert that this ruling of the Court of Appeal is further evidence that any appeal brought directly against the High Court decision regarding the discriminatory nature of the Constitutional provisions, would have been bound to fail. 10. The Complainants therefore submit that the above constitutes new evidence which establishes that Article 56(5), on the exhaustion of local remedies, has been met in the present Communication. 1

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