EX.CL/717 (XX)
Page 64
Apart from casting aspersions on the effectiveness of local remedies,
the complainant has not provided concrete evidence or demonstrated
sufficiently that these apprehensions are founded and may constitute
a barrier to it attempting local remedies. In the view of this
Commission, the complainant is simply casting doubts about the
effectiveness of the domestic remedies. This Commission is of the
view that it is incumbent on every complainant to take all necessary
steps to exhaust, or at least attempt the exhaustion of, local remedies.
It is not enough for the complainant to cast aspersion on the ability of
the domestic remedies of the State due to isolated or past incidences.
[…] The African Commission can therefore not declare the
communication admissible based on this argument. If a remedy has
the slightest likelihood to be effective, the applicant must pursue it.
Arguing that local remedies are not likely to be successful, without
trying to avail oneself of them, will simply not sway this Commission.46
66.
In the present Communication, the African Commission is of the opinion that
the Complainant only made generalised statements about the unavailability of local
remedies in the Respondent State, without attempting to exhaust them. Accordingly,
as was the situation in the Anuak Justice Council v Ethiopia case, the African
Commission concludes that the Complainant in the present Communication has not
exhausted local remedies.
67.
A waiver of the requirement of Article 56 (5) of the African Charter according to
the African Commission’s jurisprudence47 is not automatic, except in cases of serious
and massive violations of human rights.
68.
Based on the above analyses, the African Commission is of the view that the
Communication has not fulfilled the requirement set by Article 56 (5) of the African
Charter.
69.
Article 56 (6) of the African Charter stipulates that Communications should be
“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 avers that
the Communication has been submitted in a timely manner, from the date of the
alleged violation, which is not contested by the Respondent State, thus the
requirement under Article 56 (6) of the African Charter has been duly complied with.
70.
Article 56 (7) of the African Charter stipulates that Communications should
“not deal with cases which have been settled by those States involved in accordance
with the principles of the Charter of the United Nations, or the Charter of the
Organisation of African Unity or the provisions of the present Charter.” The
Complainant avers that the Communication is not being considered by another
international or regional mechanism, nor has it been previously settled by one, which
46
47
Anuak Justice Council v Ethiopia para. 58
Also see Communication 201/97 – Egyptian Organisation for Human Rights v Egypt (2000)
ACHPR, Communication 307/05 - Mr. Obert Chinhamo v Zimbabwe (2007) ACHPR, and
Communication 308/05 - Michael Majuru v Zimbabwe (2008) ACHPR.