Communication 596/16: Romy Goornah (represented by Dev Hurnam) v. The
Republic of Mauritius
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples’ Rights (the
Secretariat), received a Complaint on 26 January 2016 from Mr. Dev Hurnam (the
Complainant), brought on behalf of Mr. Romy Goornah (the Victim). The Complaint
is submitted against the Republic of Mauritius (the Respondent State), a State Party to
the African Charter on Human and Peoples’ Rights (the African Charter).1
2. The Complainant submits that the Victim is a Mauritian national who settled in South
Africa and had business operations in Mauritius and South Africa. The Complainant
further submits that on 24 December 2006, the Victim was arrested at the SSR
International Airport in Mauritius on a charge of wilfully, unlawfully and knowingly
importing 100 grams of cocaine, in a plastic bag wrapped with yellow tape and
concealed in his purse, into Mauritius.
3. The Complainant avers that the Victim was brought before the District Magistrate of
Grand Port, and he was remanded in custody pending completion of the inquiry. The
Complainant further avers that the Victim co-operated fully with the police and gave
his statement in which he denied that the purse was his and knowledge of the
presence of the drugs.
4. The Complainant submits that, on the day of his arrest, the Victim repeatedly
informed the police that the drugs may have been planted in his open and unlocked
trolley bag. The Complainant further submits that the Victim invited the inquiring
officers to view the CCT cameras at the airport, but the request was not attended to
on the alleged ground that the cameras were not functional.
5. The Complainant submits that on 04 March 2007, the Director of Public Prosecutions
preferred an indictment before the Supreme Court of Mauritius against the Victim.
The Complainant further submits that, on 30 June 2008, the trial started in the Court
of Special Assizes sitting with a presiding judge, but without a jury.
6. The Complainant avers that the Victim was brought before the Court of Special
Assizes without a preliminary inquiry having been held. The proceedings were
concluded on 02 July 2008.
7. The Complainant avers that, on 20 August 2008, the Court handed down the
judgement finding the Victim guilty of the charge of wilfully, unlawfully and
knowingly importing 100 grams of cocaine into Mauritius. The Complainant further
avers that, having regard to the quantity of cocaine secured, the manner in which it
1
The Republic of Mauritius ratified the African Charter on 19 June 1992
1
was concealed, the street value which exceeded one million Rupees, and all the
circumstances of the case, the Court found the Victim a drug trafficker, in breach of
the Dangerous Drugs Act.
8. The Complainant submits that the Court sentenced the Victim to 32 years penal
servitude, less the 20 months spent in remand, and concluded that the Victim
embarked on a bold enterprise of importing, by air from another country into
Mauritius, a relatively substantial amount of cocaine.
9. The Complainant submits that the Victim appealed against the judgment in the Court
of Criminal Appeal. On 25 January 2012, the Court of Criminal Appeal dismissed the
appeal and ordered that the period spent by the Victim in custody, pending the
hearing of the appeal, be deemed as served sentence.
10. The Complainant submits that the Victim then applied for special leave to appeal to
the Judicial Committee of the Privy Council. The Complainant submits that the
Judicial Committee of the Privy Council, which decides petitions for special leave,
denied the application on the ground that that there was “no serious risk that a serious
miscarriage of justice had occurred in the case.” The Complainant further submits that
the Judicial Committee of the Privy Council is the final Court of Appeal for the
Republic of Mauritius.
11. The Complainant submits that the Victim’s right to a fair trial by an independent and
impartial tribunal had been breached, as the conduct of the Presiding Judge
throughout the trial process presented “an appearance of pre-judgment and
premature formation of a concluded view adverse to the defence, exhibited by a
perverse instinct of unfairness, bias and an infected mind.”
12. The Complainant further submits that the Victim’s right to a fair trial was also
breached by the repeated judicial interventions of the trial judge, who took over a
substantial part of the examination in chief, the cross-examination and even part of
the re-examination from the Counsel’s hands.
13. The Complainant avers that the breach of the independence and impartiality of the
trial Court, presided over by a biased judge, further jeopardized the right to a fair trial.
Articles alleged to have been violated
14. The Complainant alleges violation of Articles 1, 2, 3, 4, 5, 6, 7 and other relevant
articles of the African Charter.
Prayers
15. The Complainant requests the African Commission on Human and Peoples’ Rights
(the Commission) to direct the Respondent State to immediately release the Victim
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pending determination of the complaint, in accordance with Rule 98 of the
Commission’s Rules of Procedure.
Procedure
16. The Secretariat received the Complaint on 26 January 2016, and acknowledged receipt
on 05 February 2016. The Communication was seized during the 19th Extra-Ordinary
Session of the Commission, which was held from 16 to 25 February 2016, in Banjul,
The Gambia. However, the Commission did not grant the Complainant’s request for
provisional measures because the Complainant did not demonstrate an impending
danger of irreparable harm to the Victim, as required under Rule 98(1) of the
Commission's Rules of Procedure.
17. On 21 March 2016, the Complainant was informed of the Commission’s decision to be
seized of the matter and was requested to present evidence and arguments on
admissibility within two months, while the Respondent State was informed of the
seizure through a Note Verbale dated 21 March 2016.
18. On 06 June 2016 the Secretariat received the Complainant’s submissions on
Admissibility, which were transmitted to the Respondent State on 07 June 2016.
19. On 15 July 2016, the Respondent State’s submissions on Admissibility were received
by the Secretariat, and duly transmitted to the Complainant on 26 July 2016.
20. On 18 August 2016, the Secretariat received the Complainant’s additional
observations on admissibility, submitted in accordance with Rule 105(3) of the
Commission’s Rules of Procedure.
21. Letters were sent to the parties following the 59th and 60th Ordinary Sessions.
Admissibility
The Complainant’s Submissions on Admissibility
22. The Complainant submits that the Complaint fulfils all the requirements of Article 56
of the African Charter.
23. Regarding Articles 56(1), (2) and (3), the Complainant states that these requirements
have been met in the present Communication. Regarding Article 56(4), the
Complainant submits that the Complaint is based on the entire judicial process,
accordingly this criteria of Admissibility has been met.
24. With regard to the exhaustion of local remedies, the Complainant notes that appeals
from the Court of Appeal and the Supreme Court are submitted to the Judicial
Committee of the Privy Council (the Judicial Committee), in any civil or criminal
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proceedings. The Complainant further notes that the Judicial Committee is the highest
and final Court in the Republic of Mauritius. Accordingly having taken the case to the
highest court of the land, the Complainant submits that the requirement in Article
56(5) has been met.
25. The Complainant further avers that the complaint was filed within a reasonable time
after the exhaustion of local remedies.
The Respondent State’s Submissions on Admissibility
26. The Respondent State submits that the Complainant has failed to comply with Articles
56(2) and (5) of the African Charter.
27. Regarding Article 56(2), the Respondent State submits that compatibility with the
African Charter entails that any communication filed should prove prima facie
violation of the specified Articles, failing which there is no Communication before the
Commission.
28. The Respondent State refers to Communication 306/05: Samuel T. Muzerengwa and
110 Others v. Zimbabwe, in which the Commission held that prima facie violation of
the provisions of the Charter is said to have occurred, “when the facts presented in the
complaint show that a human rights violation has likely occurred. The complaint should be one
that compels the conclusion that a human rights violation has occurred is not contradicted or
rebutted by the Respondent State.”
29. The Respondent State submits that the complainant is using the Commission as a
platform to re-litigate the matter which came to a rest following the pronouncement
of the appellate court of the Supreme Court of Mauritius. The Respondent State
further submits that the subject matter of the communication is strikingly similar to
that submitted to the appellate court of the Supreme Court, and in its pronouncement
the Supreme Court held that there was no merit in the application and the appeal was
dismissed. Additionally, the Respondent State notes that the Victim petitioned the
Judicial Committee of the Privy Council, however the appeal was refused.
30. Accordingly the Respondent State submits that the communication has failed to
comply with the requirements of Article 56(2) of the African Charter.
31. With regards to Article 56(5) on the exhaustion of local remedies, the Respondent State
submits that Mauritius enacted the Protection of Human Rights Act in 1998, which
established a National Human Rights Commission.
32. The Respondent State submits that the complainant had an avenue under the Act to
seek redress for the alleged violations of human rights.
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33. The Respondent State further submits that, under section 4A of the Act, the
Complainant may forward his grievances to the Human Rights Division of the
National Human Rights Commission, which would conduct an enquiry as to whether
there exists sufficient fresh and compelling evidence, and if so, the Human Rights
Division will refer the matter to the Court of Criminal Appeal on the issue of
conviction.
34. The Respondent State argues that the Commission assesses compliance with Article
56(5) as laid down in Communication 147/95: Jawara v. The Gambia, in which the
Commission held that the local remedy referred to under Article 56(5) must be
available, effective and sufficient, and further held that “a remedy is available if the
petitioner can pursue it without impediment, deemed effective if it offers a prospect of success
and finally sufficient if it is capable of redressing the complaint.”
35. The Respondent State submits that the local remedy available under section 4A of the
Act meets all the above mentioned criteria, and given that there is no impediment for
the complainant to apply to the Human Rights Division, which could conduct an
enquiry and if of the view there exists sufficient evidence, the Human Rights
Commission may refer the matter to Court of Criminal Appeal.
36. Accordingly the Respondent State submits that the communication has failed to
satisfy Article 56(5) of the African Charter.
The Complainant’s Additional Submissions on Admissibility
37. The Complainant submits that the communication sufficiently and robustly sets out
the human rights violations which have occurred, and concludes that there has been
complete compliance with Article 56(2).
38. With regards to Article 56(5), the Complainant submits that the relevant section of the
Protection of Human Rights Act provides the following: “Notwithstanding this Act, a
convicted person, or his representative, may apply to the Human Rights Division, in such form
as may be prescribed, for an enquiry to be conducted as to whether there exists sufficient
fresh and compelling evidence that may satisfy the Human Rights Division that a
reference should be made under section 19A(4) of the Criminal Appeal Act.”
39. The Complainant further submits that referral of a case to the National Human Rights
Commission is “akin to that of executive remedies which are discretionary and nonjudicial.”
40. Additionally, the Complainant submits that the Respondent State did not elaborate
on the date when the amended section 4A of the Act came into operation, nor the date
when the Members of the Commission were appointed. The Complainant submits
that the amendment was introduced in the National Assembly in July 2013, and
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“although it obtained Presidential assent in July 2013, it could not be operational as
the other members were not timely appointed save in June 2014. (sic)”
41. The Complainant further submits that Section 4(A) sets out the “procedural” (sic) for
a convicted person to apply to the Human Rights Division for an enquiry to be
conducted as to whether there exists sufficient fresh and compelling evidence that
may satisfy the Human Rights Division that a reference should be made under Section
19A(4) of the Criminal Appel Act.
42. The Complainant submits that the question of “fresh and compelling evidence does
not arise,” and further that all the human rights breaches were properly examined by
the Court during the trial process.
43. The Complainant avers that he has exhausted all local remedies, as set out in earlier
submissions.
The Commission’s Analysis on Admissibility
44. The Commission recalls that Article 56 of the African Charter sets out seven
requirements that a Communication brought under Article 55 of the African Charter
must satisfy in order to be Admissible, which apply conjunctively and cumulatively.2
45. In relation to the requirement in Article 56(1) of the African Charter, which provides
that Communications should indicate their authors even if the latter requests
anonymity, the Commission notes that the identity and the address of the
Complainant has been provided, in addition to the name of the Victim being
represented in the Communication. Accordingly the Commission finds that the
Communication satisfies Article 56(1) of the African Charter.
46. In accordance with Article 56(2) of the African Charter, the Communication must
show a prima facie case3 and must be compatible with both the AU Constitutive Act
and the African Charter.
47. In this regard, the Commission notes that the essence of Article 56(2) is that the
Commission considers communications if they are compatible with the African
Charter. Compatibility requires that the alleged violation should relate to: a right
recognized in the Charter (compatibility ratione materiae); an alleged violation by a State
Party to the Charter (compatibility ratione personae); and events which occurred within
a State Party after the Charter came into force (compatibility ratione temporis).4
2
See Communication 304/2005 - FIDH & Others v Senegal (2006) ACHPR, para 38
See Communication 333/06 - Southern Africa Human Rights NGO Network & Others v. Tanzania (2010)
ACHPR, para 51
4
Solomon T. Ebobrah, ‘The Admissibility of Cases before The African Court on Human and Peoples’ Rights: Who
Should do What?’ (2009) MLJ Vol.3, Issue 1, Pg.94
3
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48. In the present Communication, the Commission notes that it is alleged that Articles 1,
2, 3, 4, 5, 6, 7 and other relevant articles of the African Charter have been violated.
These alleged violations fall within the jurisdiction rationae materiae of the
Commission. Further, the Respondent State is a State Party to the African Charter,
accordingly the Communication falls within the jurisdiction rationae personae of the
Commission.
49. Given that the Communication is not incompatible with either the AU Constitutive
Act or the African Charter, and it indicates a prima facie violation of the African
Charter, the Commission accordingly finds that the Communication satisfies Article
56(2) of the African Charter.
50. With respect to Article 56(3) of the African Charter, which provides that
Communications shall be considered if they are not written in disparaging or
insulting language directed at the State concerned and its institutions or to the
Organization of African Unity, the Commission does not find any insulting or
disparaging language in the Communication, and accordingly the Commission finds
that Article 56(3) of the Charter has been complied with.
51. In relation to Article 56(4) of the African Charter, the Commission notes the
Complainant’s submission that the Communication includes the transcripts of the
judicial process of the Victim’s case in the Respondent State. In light of the fact that
there is no evidence that any of the information provided is based exclusively on news
disseminated through the media, the Commission consequently finds that the
requirement of Article 56(4) has been met.
52. Article 56(5) of the African Charter requires that Communications be submitted after
exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged.
53. In this regard, the Commission notes that it is a generally accepted principle in
international law that before an international body is approached, the applicant must
exhaust all available legal domestic remedies.5 The Commission further notes that in
order to meet the exhaustion requirement, a victim must have obtained a final
decision from the highest court to which recourse is available.6
54. In the present Communication, the Complainant has submitted that having taken the
Victim’s case to the highest court of the land, that is the Judicial Committee of the
Chidi Anselm Odinkalu and Camilla Christensen, ‘The African Commission on Human and Peoples' Rights: The
Development of its Non-State Communication Procedures,’ Volume 20 Human Rights Quarterly 1998, Pg.256. See
also, Communications 54/91 - Malawi African Association v. Mauritania; 61/91 - Amnesty International v.
Mauritania; 98/93 - Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO v. Mauritania;
164/97, 196/97 - Collectif des Veuves et Ayants-droit v. Mauritania; 210/98 Association Mauritanienne des Droits
de l’Homme v. Mauritania
6
Communication Procedure, Information Sheet No.3, pg.6
5
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Privy Council, the requirement to exhaust local remedies has been met. However, the
Respondent State has submitted that the Complainant has not exhausted local
remedies given that the Victim’s case was not referred to the National Human Rights
Commission (NHRC), which could conduct an inquiry and possibly refer the matter
to the Court of Criminal Appeal.
55. Therefore, the issues for determination are: whether the Judicial Committee of the
Privy Council is the highest court of the land; and whether the remedy available
before the NHRC can be considered a judicial remedy?
56. In this regard, the Commission notes that, as provided in Article 81 of the Constitution
of the Republic of Mauritius, appeals of decisions of the Court of Appeal or the
Supreme Court are referred to the Judicial Committee of the Privy Council (the
Judicial Committee).7 The Commission notes that Article 81 of the Constitution does
not include a provision stating that decisions of the Judicial Committee are final.
However the Commission notes that the Complainant submitted that the the Judicial
Committee is the highest and final Court in the Republic of Mauritius, and this
assertion was not contested by the Respondent State in its submissions on the
admissibility of the Communication.
57. From the facts of the case and the information provided, the Commission notes that,
following the decision of the Court of Appeal, the Victim appealed to the Judicial
Committee; however this appeal was rejected. Accordingly, the facts of the case
indicate that the Victim sought remedy from the highest and final Court in the
country.
58. Regarding the Respondent State’s submission that the Victim did not exhaust all
available local remedies because the case was not referred to the NHRC, the
Commission has previously held that human rights commissions do not fall under the
category of judicial remedies which should be sought by Victims of human rights
violations. In Communication 221/98: Alfred Cudjoe v. Ghana, the Commission held
that “the internal remedy to which Article 56(5) refers entails remedy sought from courts of a
judicial nature, which the Ghanaian Human Rights Commission is clearly not. From the
Commission’s point of view, seizing the said Commission can [be] taken as preliminary
amicable settlement and should, in principle, considering the employer’s failure to react, be
followed by an action before the law courts.”8 Therefore local remedies which are
essentially non-judicial, such as National Human Rights Commissions, are not the
kind envisaged in relation to Article 56(5).9
“Judicial Committee” means the Judicial Committee of the Privy Council established by the Judicial Committee
Act 1833 of the United Kingdom as form time to time amended by any Act of Parliament of the United Kingdom;”
Article 111, Constitution of the Republic of Mauritius
8
Communication 221/98: Alfred B. Cudjoe v. Ghana (1999) ACHPR, para 14. See also Communication 313/05:
Kenneth Good v. Botswana (2010) ACHPR, para 88
9
Henry Onoria, “The African Commission on Human and Peoples’ Rights and the exhaustion of exhaustion of local
remedies under the African Charter,” 3 African Human Rights Law Journal, 2003,Pg.19
7
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59. The Commission notes that, as provided in Article 4A(1) of the Protection of Human
Rights Act, “a convicted person, or his representative, may apply to the Human Rights
Division for an enquiry to be conducted as to whether there exists sufficient fresh and
compelling evidence that may satisfy the Human Rights Division that a reference
should be made under section 1 9A(4) of the Criminal Appeal Act.”10 Further, Article
4A(4) provides that, “On completion of the enquiry, the Human Rights Division may
(a) grant the application and refer the conviction to the Court of Criminal Appeal in
accordance with section 1 9A(4) of the Criminal Appeal Act; or (b) reject the
application.”11
60. From the above provisions, the Commission notes that the type of remedy which the
NHRC is empowered to provide, is to conduct an enquiry into the case of a convicted
person, and may decide to refer the case to the Court of Criminal Appeal.
61. Accordingly, the Commission observes that recourse to the NHRC would not provide
a judicial remedy to the Victim. Rather, the National Human Rights Commission
would be an avenue to refer a case to the Court of Criminal Appeal. In this regard, the
Commission notes that the Victim had already appealed his case to a court of higher
jurisdiction; that is the Judicial Committee.
62. In light of the above, the Commission finds that, by seeking an appeal in the Judicial
Committee, which is referred to as the highest and final court in the Respondent State,
the Victim fulfilled the requirement of exhausting local remedies, and therefore the
criterion under Article 56(5) has been met.
63. Article 56(6) of the African Charter provides that the Commission shall consider
Communications which “are submitted within a reasonable period from the time
domestic remedies are exhausted or from the date the Commission is seized of the
matter.” The Commission has previously noted that the requirement of timeliness in
Article 56(6) of the Charter is dependent on the exhaustion of domestic remedies
envisaged in Article 56(5) of the African Charter.12
64. From the documents submitted by the Complainant, the Commission notes that the
Judicial Committee rendered its judgment on 19 November 2012, whereas the
Complainant transmitted the complaint to the Commission on 03 January 2016; that
is three years, one month and fifteen days later.
65. To determine whether the criterion under Article 56(6) has been met, the Commission
needs to determine whether the period of ‘three years, one month and fifteen days’
10
The Protection of Human Rights Act, 1998, Act 19/1998, Proclaimed by [Proclamation No. 2 of 1999] 23rd February
1999
11
Id
12
Communication 322/2006 - Tsikata v Ghana (2006) ACHPR, para 37
9
between the exhaustion of local remedies and submission of the Complaint to the
Commission qualifies as a reasonable time period.
66. In this regard, the Commission notes that the African Charter does not provide for
what constitutes a reasonable period. In its jurisprudence, the Commission has held
that; “Going by the practice of similar regional human rights instruments, such as the
Inter-American Commission and Court and the European Court, six months seem to
be the usual standard. This notwithstanding, each case must be treated on its own
merit.”13
67. In Communication 310/05: Darfur Relief and Documentation Centre v. Sudan, which
was submitted to the Commission 2 years and 5 months after exhausting local
remedies, the Commission reasoned that “there is no sufficient reason given as to why
the Communication could not be submitted within a reasonable period, and therefore
declared the Communication inadmissible.”14
68. In the present Communication, the Complainant stated that Article 56(6) had been
complied with, as noted in Paragraph 25 above, however did not provide any
substantiating evidence for this assertion.
69. Relying on the above jurisprudence, the Commission holds that the period of ‘three
years, one month and fifteen days‘ of delay in the present Communication cannot be
considered as a reasonable time period, in light of the fact that no explanation has
been given by the Complainant justifying the delay. Accordingly, the Commission
finds that the Communication does not fulfill Article 56(6) of the African Charter.
70. In relation to Article 56(7) of the African Charter, neither the Complainant nor the
Respondent State provided submissions or evidence on whether the issues and claims
in the Communication have been brought before, or settled by another international
forum. However, in light of the fact that the Commission does not find evidence which
indicates that the issues and claims have been brought before, or settled, by any other
international forum. Accordingly, the Commission finds that Article 56(7) of the
African Charter has been satisfied.
Decision of the African Commission on Admissibility
71. In view of the above, the African Commission on Human and Peoples’ Rights decides:
i.
13
14
To declare the Communication inadmissible for failure to comply with
Article 56(6) of the African Charter;
Communication 308/05 Michael Majuru v. Zimbabwe (2008) ACHPR, para.109
Communication 310/05: Darfur Relief and Documentation Centre v. Sudan (2009) ACHPR, para.76
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ii.
To notify its decision to the parties in accordance with Rule 107(3) of its Rules
of Procedure.
Done in Dakar, Senegal, during the 22nd Extra-Ordinary Session of the African
Commission on Human and Peoples’ Rights, from 29 July to 07 August 2017
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