41. Article 56(4) of the African Charter states that “Communications relating to human
and Peoples’ Rights… shall be considered if they are not based exclusively on
news disseminated through the mass media”. In shedding more light to this
provision, the Commission averred that “the issue therefore should not be
whether the information was gotten from the media, but whether the information
is correct’ and whether the complainant tried to verify the truth” 14 This
interpretation from Jawara was adopted with approval in Ahmed Ismael and 528
Others v. the Arab Republic of Egypt.15 In the present Communication, the
Complainants have presented substantial volumes of evidence in the form of
witness statements and various contemporaneous documents. The Commission is
of the opinion that the Complainant has not relied exclusively on news
disseminated through the mass media and thus adheres to Article 56(4) of the
Charter.
Article 56[5]
42. Article 56(5) of the African Charter states that “Communications relating to human
and Peoples’ Rights… shall be considered if they are sent after exhausting local
remedies, if any, unless it is obvious that this procedure is unduly prolonged.” The
Commission requires exhaustion of local remedies where they are ‘available,
effective and sufficient to redress the alleged violation.’16 An available remedy is
one where ‘the petitioner can pursue it without impediment’.17 An effective
remedy will be one that ‘offers a prospect of success.’18A remedy will be sufficient
‘if it is capable of redressing the complaint.’19
43. The Complainants argue that they exhausted local remedies by their civil claim to
the High Court in Kenya for which they received judgement in 2020 despite not
pursuing an appeal as allowed by Kenyan Law. The Complainants contend that
“there was no realistic prospect of having access to an effective remedy by
appealing the judgment in the Kenyan Civil Claim and the deadline for filing
grounds of appeal elapsed on 10 September 2021. As a matter of Kenyan law, the
Kenyan Civil Claim is now closed, and it is not possible to appeal that judgment.”
14
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 25 and 26.
Communication 467/14, 27 May 2016.
16
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31.
17
Communication 317 / 2006 – The Nubian Community in Kenya vs The Republic of Kenya, 30 May 2016, para 55.
18
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31.
19
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31.
15
12