such awareness in and by itself does not automatically dispense with the
exhaustion requirement, the fact that States have been given ample notice
indicates that the object and purpose of the principle of exhaustion of local
remedies has been substantially fulfilled. Considering that the exemption of
exhausting local remedies is assessed based on the facts of the case, the
Committee proceeds to examine the elements of the present Communication.
22. The Complaints argue that they should not be required to exhaust local remedies
as the nature of the violation is a massive violation that affects large numbers of
children. Referring to its previous decision on the impractical aspect of exhausting
local remedies in cases of massive violations7, the Committee finds it necessary to
analyse when a violation is deemed massive to determine its applicability in the
present case. The Committee draws inspiration from the African Commission on
Human and Peoples’ Rights, which held that a massive violation affects a large
number of persons, either in a specific region or all over the territory of a State
Party.8 Concerning the nature of the violation, the Commission further held that ‘the
violation must be the consequence of continual and pre-determined actions having
an impact on a right or a group of rights under the African Charter’.9 Considering
that a large number of children are affected by witchcraft accusations and that the
nature of the violation they are facing is a result of pre-determined and continuous
action, the Committee considers that the massive nature of the violations is
established. However, the Committee notes that the main issue is how the massive
nature of the violation relates to the exhaustion of local remedies.
23. The Committee reiterates, according to Section IX (1) (d) of the Communications
Guidelines, that exceptions to the exhaustion of local remedies apply where such
remedies are unavailable, ineffective, or unduly prolonged. Furthermore, the
Committee reiterates that local remedies need not be exhausted if they are not
available, ineffective, and insufficient.10 Therefore, the Committee further needs to
assess how the massive nature of the violation relates to the unavailability,
ineffectiveness, or insufficiency of the local remedies to grant the exemption to the
Complainants. In this regard, the Committee refers to its decision in the Michelo
Hunsungule and Others (on behalf of children in Northern Uganda) v. Uganda
case, where it held that massive and large-scale violations render local remedies
unavailable and impractical to be pursued.11 Moreover, the Committee held that
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ACERWC, Communication no 001/Com.001/2005, Michelo Hunsungule and others (on behalf
of children in northern Uganda) v. Uganda, Decision No. No. 001/Com/001/2005, Para 24, 27
and 28; ACERWC, Communication no 003/Com/003/2012, The Centre for Human Rights
(University of Pretoria) and la Rencontre Africaine pour la défense des droits de l’homme (on
behalf of Talibes children) v Senegal, Decision No 003/ Com/001/2012 , Para 15 and 21.
ACHPR, Communication No 318/06, Open Society Justice Initiative v Cote D’ivoire, (2006),
para 46-49
As above.
ACERWC, Communication no 002/2009, Institute for Human Rights and Development in Africa
(IHRDA) and other (on behalf of children of Nubian Descents in Kenya) v Kenya, Decision no
002/2011, para 28; ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The
Gambia (2000) AHRLR 107 (ACHPR 2000) para 31.
ACERWC, Communication no 001/Com.001/2005, Michelo Hunsungule and others (on behalf
of children in northern Uganda) v. Uganda, Decision No. No. 001/Com/001/2005, para. 27.
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