36. ln the present communication, the Complainant submits that he has complied with Article 56 of
the African Charter that prescribes conditions dealing with admissibility. The Responding State
however argues that the complaint does not meet two of the conditions set out in Article 56 of the
African Charter, namely: Articles 56(3) and 56(5).
37. Article 56.3 provides that communications relating to human and peoples’ rights referred to
in Article 55 received by the [African] Commission shall be considered if: [
“they not written is disparaging or insulting language directed against the State concerned and its
institutions or to the [African Union]”
38. The author submitted in his complaint that the police and customs officials are corrupt, that they
deal with drug smugglers, that they extort money from motorists and added that the President himself
was corrupt and had been bribed by the drug smugglers. The Respondent State claims such language
is insulting to the institutions of the State including the presidency and provocative, and questions
whether the African Commission would allow itself to be used by authors like this to use “unbecoming
language to unjustly and baselessly vilify leaders”?
39. The operative words in sub paragraph 3 in Article 56 are ‘disparaging’ and ‘insulting’ and these
words must be directed against the State Party concerned or its institutions or the African Union.
According to the Oxford Advanced Dictionary, disparaging means “to speak slightingly of... or to
belittle and insulting means to abuse scornfully or to offend the self respect or modesty of...”. The
language must be aimed at undermining the integrity and status of the institution and bring it into
disrepute.
40. To say an institution or person is corrupt or that he/she has received bribes from drug dealers,
every reasonable person would lose respect for that institution or person. In an open and democratic
society individuals must be allowed to express their views freely. However, in expressing these views
due regard should be taken not to injure the reputation of others or impair the enjoyment of the rights
of others. While the [African] Commission strives to protect the rights of individuals it must strike a
balance to ensure that those institutions established within States Parties to facilitate the enjoyment of
these rights are also respected by the individuals. To expose vital state institutions to insults and
disparaging comments like those expressed in the communication brings the institution to disrepute
and renders its effectiveness wanting. In the light of the above, the African Commission finds that the
language used in the communication as intended to bring the institution of the President into ridicule
and disrepute and thus insulting.
41. The Respondent State also argues that the Complainant has not exhausted local remedies as
required under Article 56.5of the African Charter. The [Respondent] State submits that apart from not
seizing the local courts, the Complainant has not indicated that it brought the complaint to the National
Human Rights Commission or to the Independent Corruption Practices Commission. Article
56.5 provides that communications relating to human and peoples’ rights referred to in Article
55received by the [African] Commission shall be considered if they “... are sent after exhausting local
remedies, if any unless it is obvious that this procedure is unduly prolonged”.
42. The African Commission would like to deal with the submission of communications to bodies
such as a National Human Rights Commission or the Independent Corruption Practices Commission
as indicated by the [Respondent] State. The two institutions mentioned by the Respondent State are
non-judicial institutions even though they can grant remedies. They are not part of the judicial structure
of the Respondent State. While the African Commission would encourage Complainants to seek
redress from non-judicial bodies as well, they are not obliged to do so. The remedies required
under Article 56.5 are legal remedies and not administrative or executive remedies.
43. Regarding the non-exhaustion of legal remedies the Complainant simply states that he has
exhausted “local, legislative and logical remedies” without informing the African Commission how. The
only time he mentioned having gone to court is when he said his wife was killed and the case was
adjourned several times. The Respondent State argues that the matters raised in the communication
have never been brought before the local courts.
44. The principle that a person who has suffered a human rights violation must first exhaust his or her
domestic remedies can be found in most international human rights treaties. International mechanisms
are not substitutes for domestic implementation of human rights, but should be seen as tools to assist