given procedure before it does not qualify as a remedy for purposes of Article 56(5) of
the Charter. This was the case in Echaria v Kenya28 in which the Commission rejected the
Supreme Court’s discretionary review of its own decision as a remedy which the
complainant had an obligation to pursue.
61. The Commission is inspired in this regard by the jurisprudence of the European
Court of Human rights which has held that the “national authority” before which a
remedy must be pursued does not necessarily have to be a “judicial authority”, but if it
is not, its powers and the guarantees which it affords are relevant in determining
whether the mechanism of the national organ is an effective remedy to be pursued.29
The seminal proposition in Cudjoe v Ghana must thus not be treated as a fixed rule
limiting domestic space for vindication of rights to procedures before domestic organs
termed “courts of law”, regardless of the nature of the alleged violations and
arrangements in the domestic legal system for dealing with such violations. Indeed an
inflexible proposition limiting remedies strictly to courts of law cannot justifiably be
drawn from the language of Article 56(5) of the Charter.
62. To the extent that the nature of a given “national organ” is only but an aspect of
effectiveness of a given remedy, the Complainants’ second and third arguments stated
in paragraph 41 will be considered together. The mechanism of the House of Federation
as assisted by the Council of Constitutional Inquiry will thus be assessed in light of the
foregoing considerations. For this purpose the Commission will consider the
Respondent State’s constitutional arrangement and how a constitutional review is
carried out by this mechanism.
63. The Respondent State is constituted as a federal State30 with executive, legislative
and judicial powers.31 As a federal Republic it is comprised of regional States.32 At the
federal level, it has a Federal Government which is the executive branch; a Federal
House which is its parliament comprised of the House of the Peoples’ Representatives,
and the House of Federation;33 and a federal judiciary vested with judicial functions and
Above, n 24
Kudła v. Poland (2000) ECHR (App. No. 30210/96) para. 157; M.S.S. v. Belgium and Greece (2011)
ECHR (Application no. 30696/09) para. 289.
30 FDRE Constitution, Art. 1.
31 Id, Art. 50(2)
32 Id, Art. 46
33 Id, Art.. 53
28
29
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