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AC H p R
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Communications 485/14 -Peter Odiwu
535/15 - Peter Odiw
Adopted by the African Commission on Human and Peoples' Rights during its 74 th Ordinary
Session held virtuallyJ,'om 21 February to 7 March 2023
Chairperson,
African Commission on Human and
Peoples' Rights (ACHPR)
ecretary {A&}
African Comm1ssi en.-on.-HCiman and
Peoples' Rights (ACHPR)
Joint Decision of the African Commission on Human and Peoples'
Rights on Admissibility
Communication 485/14 -Peter Odiwuor Ngoge v Republic of Kenya and
535/15 - Peter Odiwuor Ngoge and Joseph Njau v Republic of Kenya
Summary of the Complaints
1.
The Secretariat of the African Commission on Human and Peoples' Rights
(the Secretariat) received a total of fifty-seven (57) Complaints from Mr.
Peter Odiwuor Ngoge (hereinafter "the Complainant" or "Mr. Ngoge")
between 2012 and 2017, on his behalf and on behalf of his clients. Mr. Ngoge
is a practicing advocate of the High Court of Kenya and O.P Ngoge &
Associates Law Firm. Out of the initial total, twelve (12) are pending before
the African Commission on Human and Peoples' Rights (the Commission).
The present matter is a joinder of two (2) outstanding Complaints.
2.
The Complaints are submitted against the Republic of Kenya1 (Respondent
State), a State Party to the African Charter on Human and Peoples' Rights
(the Charter).
3.
The Complaints reveal a similar pattern of alleged violations, prompted by
overlapping facts and circumstances, which, in totality, allegedly
demonstrate the means and methods by which the Respondent State has
discriminated against the Complainant and his clients and also denied them
access to justice.
4.
Generally, the Complainant contends that the Respondent State, through its
judiciary and other institutions, namely, the Law Society of Kenya, State
Law Office, and Office of the Director of Public Prosecutions, has
systematically discriminated against him and denied him access to justice,
in violation of the Constitution of Kenya and the African Charter. The
Complainant avers that the Respondent State is motivated by the desire to
penalize him for allegedly exposing "wrong doings" by the Respondent
State during elections for the position of Speaker of the National Assembly
in 2003.
5.
In Communication 485/14, the Complainant alleges that the Director of
Public Prosecutions and the Commissioner of Police •
State blocked execution proceedings before Hon.
drawing and filing a false and insufficient affidavit
Nairobi alleging that the Judgment Debtor was very s
avers that no medical report was annexed to support
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The Republic of Kenya ratified the African Charter on 10 February 1992
1
6.
The Complainant also claims that Hon. Mr. Justice Onyacha directed him to
conduct a forced medical examination on the Judgment Debtor in the
presence of the Superintendent of Police and avail the medical report to the
Court. The Complainant alleges that Hon. Mr. Justice Onyacha made these
orders fully aware that the Complainant did not have the means and ability
to implement those directions, thereby effectively blocking execution
proceedings.
7.
The Complainant avers that it is the Director of Public Prosecution and the
Commissioner of Police who bore the burden of availing the Judgment
Debtor's medical report in Court, and not the Decree Holder as ordered by
Hon. Mr. Justice Onyacha. The Complainant further avers that the order of
Hon. Mr. Justice Onyacha was deliberately meant to shield the Judgment
Debtor from meeting his obligation owed to the Complainant, thereby
curtailing the fundamental human rights enshrined by the African Charter
and the United Nations Declarations on the Right to Development.
8.
The Complainant contends that by blocking the Complainant from
accessing his Judgment /Decree, the Respondent State has deliberately
discriminated against the Complainant, subjected him to psychological
torture, and threatened his integrity and right to life. The Complainant
further alleges that by blocking execution proceedings as aforesaid, the
Respondent State has made it practically impossible for him to clear his loan
with the Higher Education Loans Board of the Respondent State. He claims
that without clearing the University loan, he is not allowed to contend for
any political office or access Public Service under Chapter 6 of the
Respondent State's Constitution, making it impossible for him to enjoy the
fundamental human rights enshrined under Article 13 of the African
Charter.
9.
In addition, the Complainant alleges that due to the non-payment of the
aforementioned loan, the Respondent State has permitted the credit
bureaus to blacklist him, meaning that he cannot borrow money from any
local financial institutions until the loan, which continues to attract
penalties and interest is paid in full. The Complainant avers that all of this
undermines his social and economic rights. The Complainant adds that the
deliberate stalling of the execution proceedings has made it practically
impossible for him to expand his law firm and to employ legal assistants to
assist him in offering quality legal services to members of the Public and
thereby curtailing Articles 8, 15, 22, and 24 of the African Char otl 0 " r1uAt4 .., ~
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10.
40"
In Communication 535/15, the Complainant submits the V ..,.,pr ~ ~ 0-0
behalf and on behalf of Mr. Joseph Ndungu Njau, whom
ref;:~"ented ir\ ·,;,.
Civil Suit No. 1032 of 2005 before the High Court of Ken ~-~ in Appeal ~
No. 69 of 2009 before the Court of Appeal. The Complain "t avers' that the t
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Respondent State deliberately permitted Justice Mary Angawa of the
Nairobi High Court to strike-out or dismiss Mr. Njau's suit suo-moto
contrary to the rules of justice and without a hearing on the merit of the land
dispute. He alleges that this subjected Mr. Njau to discrimination and
differential application of the law, deprived him of access to justice, fair
trial, and protection of the law, and exposed his land to illegal interference.
11.
The Complainant contends that Justice Angawa' s views on the suit were
incorrect, including her views that Civil Suit No. 1032 of 2005 filed by Mr.
Njau was a continuation of Milimani CMCC No. 4404/2005, that there was
an injunction issued against Mr. Njau in Milimani CMCC No. 4404/2005 on
22 April 2005, and that Mr. Njau was a party in Milimani CMCC No.
4404/2005. The Complainant argues that the referenced views of Justice
Angawa were not based on evidence or facts. Therefore the dismissal of Mr.
Njau' s suit - Civil Suit No. 1032 of 2005, without according the same a fair
hearing on merit was baseless.
12.
The Complainant submits that despite lodging Nairobi Court of Appeal Civil Appeal No. 69 of 2009 on 20 April 2009, to-date the Court of Appeal
of Kenya has refused to hear and determine the appeal, thereby exposing
Mr. Njau's land to illegal deprivation and interferences. The Complainant
also avers that the Respondent State ultimately seeks to put his law firm out
of business and that it is on a "deliberate retaliatory mission to extinguish
his legal career."
13.
In both Communications, the Complainant states that this Complaint was
lodged because local remedies have been unduly prolonged by the
Respondent State. The Complainant also avers that the local remedies are
not practically or effectively available to him, owing to mistrust and lack of
professional respect that exists between the Judiciary of the Respondent
State and him as was held by the Vetting of Judges and Magistrates Board
of The Respondent State on 25 April 2012, for which the Respondent State
is solely to blame.
14.
The Complainant also states that the Complaint has not been referred to any
other international settlement body.
Articles alleged to have been violated
15.
The Complainant alleges violation of Articles 2
18, 19, 22 and 24 of the African Charter.
,
, 17,
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3
Prayers:
(Communication 485/14):
16.
The Complainant requests the Commission to recommend that the
Respondent State:
Assesses and awards general damages of Kenya Shillings 300 Billion to
the Complainant to redress the violations of the fundamental human
rights alleged therein, and as proven on the preponderance of evidence
presented before the Commission; and
Pays interest on[a]and cost of the petition.
1.
ii.
(Communication 535/15):
Declares null and void the ruling and orders of Justice Angawa given on
22 March 2007 in Nairobi High Court Civil Suit No. 1032 of 2005;
Pays reparations in the form of general damages in the amount of 10
Billion Kenyan Shillings be paid to Mr. Njau for the violation of his rights
in the African Charter;
Pays reparations in the form of general damages in the amount of 900
Billion Kenyan Shillings be paid to the Complainant for conspiracy by
the Respondent State to deprive him of the right to access effective local
judicial remedies and to carry an effective legal practice; and
Pays interest on [b] and [c] above and costs of the petition.
i.
ii.
iii.
iv.
Procedure:
17.
The Secretariat received Communication 485/14 on 16 September 2014 and
acknowledged receipt of the same on 15 October 2014, and Communication
535/15 was received on 6 March 2015 and acknowledged receipt on 17
March 2015.
18.
From February - August of 2015, the Commission decided to be seized of
the Communications as follows:
1.
ii.
19.
By letter dated 22 June 2015, the Secretariat received the Complainant's
submissions on Admissibility regarding Communication 485/14 and
transmitted the same to the Respondent State by Note Verbale dated 5
January 2016.
20.
By Note Verbale dated 22 April 2016, the Secretariat informed the
Respondent States that the Commission had granted an additional period
of 30 Calendar days within which to file submissions on Admissibility,
failure which the Commission will proceed with a determination on the
Admissibility of the matter based on available information. The
Complainant was informed by a letter dated the same day.
21.
By letter dated 2 December 2015, the Secretariat received the Complainant's
submissions on Admissibility regarding Communication 535/15 and
transmitted the same to the Respondent State by Note Verbale dated 8
December 2015.
22.
By Note Verbale dated 17 December 2015 and received by the Secretariat on
1 March 2016, the Respondent State acknowledged receipt of the
submissions and indicated that they had been forwarded to relevant
authorities for action. By letter of 3 March 2016, the Secretariat
acknowledged receipt of the Note Verbale and informed the Complainant
on the same date.
23.
Before the finalization of the decisions on Admissibility, the Commission at
its 25th Extra-Ordinary Session, held from 19 February to 5 March 2019,
observed that a majority of the then fifty-one (51) pending Communications
by Mr. Ngoge revealed similar fact patterns within the meaning of Rule 96
(1) of the Rules of Procedures on joinder of Communications. Consequently,
at its 64th Ordinary Session, held from 24 April to 14 May 2019, the
Commission adopted a paper on the joinder of the respective Ngoge
Communications based on the domestic cases that form the basis for the
Communications. In this regard, Communications based on the same
domestic cases were recommended for joinder.
24.
The above joinder notwithstanding, the Commission further observed that
even Communications based on different domestic cases filed at various
local courts demonstrated overlapping trends and revealed a similar
pattern of alleged violations. Consequently, at its 65th Ordinary Session,
held from 21 October to 10 November 2019, the Commission considered
Communications 518/15 and 521/15 and declared them Inadmissible, with
fting of
the intention that they may serve as points of reference for the
other similar Complaints from Mr. Ngoge.
25.
The Commission observes that the Complainant
Admissibility submissions in forty-five (45) of his
thirty (30) Joint Communications 481-484/14, 486-488/14, 490-498/14,
504/14, 513/15, 523/15, 525/15, 526/15, 528/15, 530/15 - 533/15, 536/15 538/15, 570/15: Peter Odiwuor Ngoge v Republic of Kenya, which were
declared inadmissible for failure to satisfy the requirements of Article 56 (3)
on the use of disparaging and insulting language, Article 56 (5) on
exhaustion of local remedies, and Article 56 (6) on submission within a
reasonable time from the exhaustion of local remedies.
26.
The Commission also joint seven (7) Communications: 438/12 - 519/15 534/15, 458/13, 509/15, 514/15, 517/15, 520/15, 522/15 - Peter Odiwuor
Ngoge v Republic of Kenya based on same Admissibility submissions
which were also declared inadmissible for not meeting requirements under
Articles 56 (3), 56 (5), and 56 (6).
27.
A consideration of the Admissibility of the present Communications was
deferred from the 58th to the 73rd Ordinary Session of the Commission.
The Law on Admissibility
Complainant's Submission on Admissibility
28.
The Complainant submits that the conditions for Admissibility of the
Communications, under Article 56 of the African Charter have been
satisfied. The Complainant does not make submissions on the
Communications compliance with Articles 56(1) (2) (3) (4) (6) and (7) of the
African Charter.
29.
The Complainant's arguments are mainly centered on Article 56(5) of the
African Charter, in which he submits that he is unable to exhaust local
remedies as they are unavailable, ineffective, and insufficient. He refers to
Jawara v Gambia, in which the Commission elaborated on the
aforementioned elements by holding that "a remedy is considered available if
the petitioner can pursue it without impediment, it is deemed effective if it offers a
prospect of success, and it is found sufficient if it is capable of redressing the
complaint. "2.
30.
The Complainant also submits that the Communications clearly lays down
the predicaments he had been through in the process of exhausting local
remedies, but failed to obtain them, due to being blocked by Respondent
State's agents in the judiciary from accessing effective local judicial
remedies by certain actions. These actions allegedly include, unreasonably
long period of time to supply certified copies of proceedings and
Rulings/Judgment that could enable him make an aP,
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courts; deliberate d1Sappearance of Court files t ~ ela tne.ci spe
conclusion of his cases before the Court; and t • g~ easona ~ Ion
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Communication 147/95-149/96- Sir Dawda K. Jawara v Gambia (2000) A~~~
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period of time to dispose of Appeals filed in the Court of Appeal, with a
view to delaying exhaustion of local remedies.
31.
The Complainant contends that local remedies are therefore "unavailable,
insufficient or not effective at all and cannot be accessed freely without
coming into contact with artificial impediments, hindrances and
hurdles ... impeding tools and roadblocks"3.
32.
The Complainant further submits that the ruling of the Vetting of Judges
and Magistrates Board of Kenya (Vetting Board) of 25 April
2012:" constitutes an express and unequivocal official public admission on the part
of the Respondent State herein to the effect that local judicial remedies are either
unavailable, insufficient or are not effectively accessible at all to your humble
petitioner and his clientele without coming face to face with artificial impediments
unlawfully erected on the way by agents of the Respondent State to impede or delay
access to justice" 4
33.
The Complainant avers that the decision of the Vetting Board has been
rendered final by a decision of the Supreme Court in Judges & Magistrates
Vetting Board and others v Centre for Human Rights and DemocractJ and others
(Petition No.13A, 14, 15 (2013), thereby proving the unavailability and
ineffectiveness of local remedies.
34.
The Complainant contends that in many of his cases, judges have recused
themselves deliberately to prolong and delay the process or dismissed his
cases without delving into the merits. He submits that judges have failed to
guarantee his right to fair trial, and that this has led to a breakdown in
respect and trust between the judiciary and himself. The Complainant
further contends that complaints against the judiciary, which he has
submitted on several occasions to bodies such as the Judicial Service
Commission, Office of the Chief Justice, Kenya National Commission on
Human Rights and Law Society of Kenya have been treated with "disdain,
suspicion and contempt...dismissed or refused without conducting
thorough investigations or inquiries" 5 •
35.
Accordingly, the Complainant submits that local remedies have been
exhausted as per Article 56(5) of the African Charter.
Respondent State's Submission on Admissibility
36.
3
Despite the fact that the Commission requested th
submit its arguments and evidence on admissibili
Admissibility Submission, page 2
4 As above.
s Admissibility submission Page 3.
7
Rule 105(2) of the Rules of Procedure 2010, under which this
Communication was instituted, no response has been received.
37.
In such cases, the Commission has held that in the absence of a substantive
response from the Respondent State, it must decide on the facts provided
by the Complainant. This is in accordance with the practice of the
Commission as articulated in Institute for Human Rights and Development
in Africa v. Republic of Angola, Communication 155/96- Social and
Economic Rights Action Center for Economic and Social Rights v. Federal
Republic of Nigeria 6 and several other communications , where the
Commission re-affirmed its position by holding that " ... it would proceed
to consider Communications on the basis of the submission of the
Complainants and information at its disposal, even if the Respondent State
fails to submit." Accordingly, the Commission undertakes the following
analysis on admissibility, on the basis of the available arguments and facts
of the Complainant's submission on admissibility.
Analysis of the Commission on Admissibility
38.
The Commission recalls that Article 56 of the African Charter governs the
admissibility of Communications and sets out seven (7) requirements based
on which the Commission assesses the admissibility of Communications
submitted before it. For a Communication to be deemed admissible by the
Commission, it must meet the (7) requirements which apply conjunctively
and cumulatively.
39.
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 anonymitt/, the Commission notes that the Communications
identify the author and address of the Complainant. Accordingly, the
Commission finds that the Communication satisfies Article 56(1) of the
African Charter.
40.
With respect to Article 56(2) of the African Charter which states that
'Communications ... received by the Commission shall be considered if they nre
compatible with the Charter of tire Organisation of African UnittJ or with the
present Charter', the Communications are brought against the Republic of
Kenya, a State Party which ratified the African Charter on 23 January 1992.
The Communications allege violations of the rights contained in the African
Charter, in particular, rights guaranteed under 2, 3, 4, 5, 7, 8, 13, 14, 15, 16,
·cations
17, 18, 19, 22 and 24 of the African Charter. Given that the Co
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Communication 155/96- Social and Economic Rights Action Center, Center fo
ononuc ana Soct,
Rights v. Federal Republic of Nigeria. Also see Communication 292/04 forr~ ~
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and Development in Africa v. Republic of Angola, para. 34 and Com.muruci,~n 1 9/9'6 tlrupnToter
Africaine des Droits de !'Homme, Federation Internationale des Ligues d~ Dr its ~e1-•~omme, J}
Rencontre Africaine des Droits de l'Homme, Organisation Nationale des Droits ~d ef mme au ~n~gal
and Association Malienne des Droits de !'Homme v. Republic of Angola.
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are compatible with the AU Constitutive Act and the African Charter, the
Commission therefore holds that the requirements under Article 56(2) of the
African Charter has been fulfilled.
41.
In accordance with Article 56 (3) of the African Charter, 'Communications
.. .received by the Commission shall be considered if they are not written in
disparaging or insulting language directed against the State concerned and its
institutions or to the Organisation of African Unity now African Union (AU)'.
Considering that the State, as elaborated in SERAC v Nigeria 7, bears the
primary duty to respect, protect, promote and fulfil the rights enshrined in
the African Charter, the essence of Article 56 (3) is to discourage use of
language that severely damages, without reasonable grounds, the standing
of the State or its institutions as the first point of call for seeking redress.
42.
In Ilesanmi v Nigeria and Ligue Camerounaise des Droits de l'Homme v
Cameroon, the Commission analysed the language used by the
Complainants and considered them to be insulting and disparaging
language. In the above Communications, the Complainant alleged that the
Respondent State had 'received bribes from drug dealers. Although the
Commission acknowledged that 'in an open and democratic society
individual must be allowed to express their views freely', it nevertheless
found that the characterization of the State by the Complainant would lead
any reasonable person to lose respect for its institutions and that language
must not be used to injure the reputation of others. In the latter, the
Complainant described the State as a 'criminal neo-colonial regime' and its
actions as 'government barbarism', which the Commission found insulting.
In Zimbabwe Lawyers for Human Rights & Associated
Newspapers v Zimbabwe8, the Commission stated that in
determining whether language used is disparaging or insulting:
"The Commission has to satisfi; itself that the said remark or language
is aimed at unlawfully and intentionally violating the dignihJ,
reputation or integrihJ ofa judicial officer or body and whether it is used
in a manner calculated to ... cast aspersions on and weaken public
confidence on the administration ofjustice".
43.
The Commission notes that in light of the circumstances of Complainants
and the nature of allegations put forward, the use of strong language or
expression of emotions would not be misplaced, and as such, would not ipso
fiacto render a Communication contrary to Article 56 (3). 't' ,. ..... 411, • sion
has held in Zimbabwe Lawyers for Human Rights/ja ,t,"' 1,<!e>tlristi:tuf ,., r
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7 Communication 155/96 - Social and Economic Rights Action Center (SERAC) and Ce~! ef'f
E~ow mic ano Socia~
Rights (CESR) v Nigeria (2001) ACHPR
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8 Communication 268/03 - llesanmi v Nigeria (2005) ACHPR, para 40; Com unication 65/92 - Ligue
Camerounaise des Droits de l'Homme v Cameroon (1997) ACHPR, para 13
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9
Human Rights and Development in Africa v Zimbabwe9 that Article 56 (3)
must be interpreted in light of Article 9(2) of the African Charter, which
guarantees the right to freedom of expression. A determination of
compatibility with Article 56 (3) therefore rests on the balancing of two
interests, namely allowing Complainants to present their case as freely as
possible and ensuring that Communications do not unnecessarily and
without reasonable ground use language that puts into question the
standing of a State or its institutions.
44.
In Eyob B. Asemie v the Kingdom of Lesotho10, the Commission held that
"It is also important to note that a Communication alleging human rights
violations by its very nature should be expected to contain allegations that
reflect negatively on the State and its institutions". Accordingly, allegations
that reflect negatively on the State or its institutions, such as allegations of
corruption would not by themselves be deemed to constitute disparaging
or insulting language, within the meaning of Article 56 (3).
45.
The Commission also notes that Article 56(3) has the additional purpose of
safeguarding the integrity of the Communications Procedure by ensuring a
minimum standard that should be observed in the nature of language used.
The Commission thus considers it important that parties are also expected
to respect a minimum level of civil discourse. In this regard, the European
Court of Human Rights (European Court), inApinis v Latvia11, stated that
language is considered as insulting when it reaches a 'level which exceeds
the bounds of normal criticism'. In such circumstances, the European Court
may deem a complaint inadmissible for abuse of the right to application.
The Commission is further of the view that while Complainants may
express their emotions on their circumstances or in regard to the specific
actions of the respective State, this should not transform into ad hominem
attacks on the State or its institutions, thereby exceeding the bounds of
normal criticism or reasonable expressions of strong emotions.
46.
In this particular instance, the Complainant accuses the Respondent State
of "exposing your humble petitioner [the Complainant] and his clients to
revenge, retribution and retaliation" for allegedly exposing "wrong doings"
during elections for the position of Speaker of the National Assembly in
2003. The Complainant states that in its efforts to punish him, the
Respondent State "enlisted the services of the Kenyan judicianj'. In another
instance, the Complainant states that his complaints have been treated with
"disdain, suspicion and contempt" and that the Respondent
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insulating or shielding recalcitrant judicial officers". He a ,W~s_e~tfl\~"'f' er·
"damning evidence" to describe his submissions to the ~ "Jttin( "~oar
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Communication 293/04- Zimbabwe Lawyers for Human Rights and the lnstit f e 'f9 Human Rights and
Development in Africa v Zimbabwe
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1 Communication 435/12 - Eyob B. Asemie v the Kingdom of Lesotho (2015) CHPR, para 58.
11 App 46549/06 - Gundis Apinis v Latvia (2011) ECHR, para 16.
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47.
The Complainant certainly uses strong language and the Commission notes
that allegations of corruption would necessarily reflect negatively on the
institution in question, and the Commission would be amiss if it were to
dismiss the Communication merely on account of its negative portrayal of
the judicial institutions. The question therefore is not the allegations of
corruption, but on whether there are expressions or language used by the
Complainant that by virtue of their nature or on account of their effect,
amount to insulting or disparaging language?
48.
In relation to the specific language used, due consideration must be
accorded to the ordinary meaning of the words used. The use of words such
as "persecution" "revenge" or "retribution" are not words that would
ordinarily be considered as insulting, even more so within the context of
these Communications. The use of the word "damning evidence" seems to
be the strongest description but this is however largely an expression of
opinion about the weight of the particular evidence.
49.
In relation to the manner in which the language is used however, the
Commission is of the view that the Complainant makes ad hominem attacks
against the State and its judiciary, which he has furthermore not sufficiently
substantiated. In this regard, the Complainant submitted that the State had
enlisted the services of the judiciary and that his complaints were treated
with "disdain, suspicion and contempt" by the judiciary, which he also refers
to as "recalcitrant".
50.
The Meriam-Webster Dictionary defines this term as "having an obstinately
uncooperative attitude towards authorihJ or discipline". The Complainant makes
general allegations that there is a concerted effort led by the Respondent
State and its judiciary to deny him access to justice and ultimately run his
law firm out of business. In this regard, the Complainant has submitted that
the judiciary and its "friends, sympathizers, and colleagues" are seeking
revenge against him. The Commission is therefore of the view that the
Complainant could have utilized language which is not disparaging or
insulting to make the same submissions without losing their substance.
51.
The Commission is further of the view that the Complainant does not only
describe his emotions towards the alleged specific actions of the
Respondent State but seems to take aim at the Respondent State and its
institutions in general, casting aspersions on the integrity of the entire
ed by
judiciary. The Commission is also of the view that the expre •
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the Complainant are not within the bounds of n ,,,~ alct'
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52.
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For the foregoing reasons, the Commission there!ore fin'ds •tha
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conditions of Article 56 (3) have not been satisfied.
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53.
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'. Based on the evidence
submitted in these Communications, which are mainly Court documents
and Judicial records, the Commission finds that the present
Communications are not based exclusively on news disseminated through
the mass media and thus complies with Article 56(4) of the African Charter.
54.
Article 56(5) of the African Charter, stipulates that 'Communications should
be 'sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged. This condition ensures that States have the first
opportunity to remedy any human rights violations and further ensures
that the Commission does not serve as a court of first instance or as a means
of circumventing local institutions, which are not only duty bound but are
also better placed to remedy human rights violations. The Commission
recalls in Association Mauri.tanienne des droits de l'Homme v Mauritania
12that local remedies are " the ordinan; remedies of common law that exist in
jurisdictions and normally accessible to people seeking justice" . In Cudjoe v
Ghana 13, the Commission stated that local remedies applied to "courts of a
judicial nature".
55.
As correctly indicated by the Complainant, in Jawara v Gambia, the
Commission recognized a certain level of flexibility to the application of the
rule, and held that Complainants are expected to exhaust local remedies
only in so far as these remedies are available, effective and sufficient. The
Commission further expounded on this by stating that "a remedy is
considered available if the petitioner can pursue it without impediment, it
is deemed effective if it offers a prospect of success, and it is found sufficient
if it is capable of redressing the complaint'' 14.
56.
The Commission notes the two reasons argued by the Complainant as to
why he believes domestic remedies are unavailable and ineffective. The first
he mentioned is the widespread corruption in the judiciary and its lack of
independence. The Complainant submits that the judiciary is being used as
a tool by the Respondent State to discriminate against him, and that the
decision of the Vetting Board confirms these allegations. The Complainant
claims that this has led to "mistrust and lack of professional respect"
,, •4 • ion
between the judiciary and himself. The second he mentio
by the Supreme Court (Petition No.13A, 14, 15 (2013)) w .F1'$ e<15eliey~
confirmed the finality of the Vetting Board's conclusi ,s: ~
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12 Communication 242/ 01 -
Interights, Institute for Human Rights and De lopment in Africa and
Association mauritanienne des droits de l'Homme v Mauritania (2004) ACHP ai:a 27.
13 Communication 221/98 - Alfred B. Cudjoe v Ghana (1999) ACHPR, para 14
~ /
14 Ibid 2
12
57.
In relation to the first reason, the Complainant refers to the "Judges and
Magistrates Vetting Board Determinations Concerning the Judges of the
Court of Appeal" submitted as an annex to his submissions. In this
document, the Vetting Board recognized that "corruption remains one of
the greatest challenges to the judiciary" and also stated that: "a series of
complaints in this regard were made by an Advocate - whom I shall not name for
reasons of confidentialihJ. The judges' response though dealt adequately with the
complaints. Some of the complaints were even sent to the United Nations, the
International Criminal Court and other bodies. Clearly there has been a complete
breakdown of trust and professional respect between the Advocate concerned and
the judician;, with negative results all round. The situation calls for intervention
by the Law SociehJ of Kenya with a view to achieving an appropriate remedy"1s.
58.
In another part of its report, the Vetting and Magistrates Board found that:
"Complaints were received from an Advocate that the judge acted in a
discriminaton; way against the complainant ... the board found that although the
situation is manifestly unsatisfacton;, for the purposes of the Vetting process the
judge's responses were adequate. The Board noted that the same Advocate had laid
complaints against even; judge in the Court ofAppeal, all basically to the effect that
they were unfairly hostile to him and discriminated against him ..."
59.
From the evidence presented, the Commission is able to make two
observations, the first of which is that corruption was indeed recognized as
a challenge to the integrity of the judiciary, and the second of which is that
the evidence provided does not however lead to a conclusion that the
decision of the Vetting Board is ''an express and unequivocal official public
admission ... that local judicial remedies are either unavailable, insufficient or are
not effectively accessible" as put forward by the Complainant.
60.
In Anuak Justice Council v Ethiopia 16, the Complainant in that case argued
that domestic remedies were unavailable and ineffective due to the lack of
independence of the judiciary, which is often subject to unlawful
interference from the State. The Complainant supported this argument by
referencing a report from the World Bank, which stated that the judiciary of
". In
Ethiopia required "significant strengthening to obtain true inde
its decision however, the Commission reasoned that "it is , ~~~1~ • •
complainant to cast aspersion on the abilihJ of the domestic _v2edfi s if.-tJJ 'Sta .,
due to isolated or past incidences" and that it was ~ J s fficient f r a:..
complainant to merely argue that domestic remedies arJ ~
ely•t0 sf.tcceed )\
without having made an attempt to pursue them.
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16 Communication 299/05 - Anuak Justice Council v Ethiopia (2006) ACl-IPR, para 36.
13
61.
In Nixon Nyikadzino v Zimbabwe17, the Commission asked itself whether
"the allegation that Zimbabwean courts are not independent or impartial and are
subject to political pressure warrants the conclusion that victon; before such courts
is unlikely, and thus makes the remedies ineffective". Even though the
Complainant had relied on a report of the Commission taking cognizance
of the judiciary's susceptibility to political pressure, the Commission
nevertheless maintained that the Complaint should have attempted to
exhaust the local remedies.
62.
In this particular instance, the Commission maintains its position that a
general statement as to the non-independence of the judiciary does not
relieve Complainants of their obligation to exhaust local remedies. The
submissions of the Complainant as to his attempts to approach several
institutions such as the Judicial Service Commission, Office of the Chief
Justice, Kenya National Commission on Human Rights and Law Society of
Kenya, following his case being heard at the High Court in both
Communications respectively, are not tenable as none of these institutions
are judicial remedies within the meaning of Article 56 (5). The
Complainant's failure to receive the desired remedy upon approaching the
aforementioned institutions does not exempt him from his obligation to
exhaust judicial remedies, and neither does it prove that these remedies
would be unavailable or ineffective should they have been pursued to their
logical conclusion.
63.
In relation to the second reason, the Commission turns to examining the
decision of the Supreme Court in Judges & Magistrates Vetting Board & 2
others v Centre for Human Rights & Democracy & 11 others [2014]
(Petition No.13A, 14, 15) (2013)18, and whether this renders domestic
remedies unavailable or ineffective. As the Commission had earlier noted,
the Complainant was not a party to this case, and states that the decision of
the Supreme Court applies to him as this Court is able to set precedents. In
such instances, the Inter-American Commission on Human Rights for
example has held that Complainants will not be expected to exhaust local
remedies where it is obvious from the jurisprudence of the highest courts
that there is little prospect of success. The Commission is however of the
view that this situation is not applicable to the present Communications.
64.
The Supreme Court described the nature of the Vetting Board as a sui generis
quasi-judicial body, which is neither a subordinate nor a superior Court. It
further stated that the Vetting Board "can conduct an investigation, and can act
as an adjudicator'' but "does not act as a Court of law"19• The Commission
17 Communication 340/07 - Nixon Nyikadzino (represented by Zimbabw
v Zimbabwe (2014) ACHPR, para 85.
18 Judges & Magistrates Vetting Board & 2 others v Centre for Human •
[2014] (Petition No.13A, 14, 15) (2013) available at:o.:.ht=:.l..J-'k,,,.,ee::..n~al=aw.:..:.=.o~--==;==""""'-==~"""""=--''--'=='f"'19 Supreme Court (Petition No.13A, 14, 15 (2013)
14
understands that the Vetting Board is a body constituted by the Parliament
of Kenya through the Vetting of Judges and Magistrates Act (Act No. 2 2011)
to review, within a certain time period, the suitability of judges and
magistrates in office from the effective date of the Act. The Vetting Board
subsequently produced its report on 25 April 2012.
65.
As accurately indicated by the Complainant, the Supreme Court did indeed
confirm the finality of the Vetting Board's conclusions by affirming that "a
removal, or a process leading to the removal, of a judge, from office by virtue of the
operation of legislation ... shall not be subject to question in, or review by, any
court" 20.
66.
The Commission is of the view that while the decision of the Supreme Court
may preclude a Judge or a Magistrate who has been found unsuitable to
serve from appealing the Vetting Board's decision, it does not render the
same true in regard to the domestic cases that the Complainant is pursuing
in local courts. The aforementioned domestic cases are separate and distinct
from the decision of the Vetting Board as to the suitability or unsuitability
of judges to serve. As held by the Supreme Court, the Vetting Board is not
a court of law, and accordingly, it did not make any determinations as to
whether the rights of the Complainant were violated in any of the specific
complaints that were brought before it by the Complainant alleging that
certain Judges had discriminated against him. As earlier indicated, during
the vetting process, the Complainant had allegedly submitted complaints
to the Vetting Board claiming corruption amongst Judges of the Court of
Appeal. The Vetting Board merely acknowledged the complaints and stated
that it "will contact the LSK [Law SocietrJ of Kenya] in this respect [and that] ... It
is not in a position to make a finding against the Judge in respect of these
complaints".
67.
The findings of the Vetting Board as to the existence of corruption in the
judiciary does not prevent the Complainant from appealing the final
decisions of the domestic cases he is involved in to the Court of Appeal in
some cases and to the Supreme Court in others, as the majority of these cases
are at the High Court. As per sections 163 - 165 of the Constitution of the
Republic of Kenya (2010), decisions of the High Court may be appealed to
the Court of Appeal, whereas cases at the Court of Appeal may be appealed
to the Supreme Court "as of right in any case involving the interpretation or
application oif this Constitution; and in any other case in which th r' O HUM..,
• Court,
or the Court of Appeal, certifies that a matter of general put.blJ ."'ffli:v<>rta~ ' ->o - r.
Ngoge's domestic cases, which form the bas· ~ fo1." -the r es"' .J,
Communications, are therefore entirely separate ~ d d)stinct ffom
decision of the Vetting Board, at least in so far as e,d,.
\ ~al}J~tiition\ of•dom~stidf
.1
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remedies are concerned.
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As above, See also Constitution of Kenya, Sixth Schedule, Article 23 (2)
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68.
In light of the above observations and analysis, the Commission finds that
the conditions of Article 56 (5) have not been satisfied
69.
Article 56(6) of the African Charter, provides that Communications should
be ' submitted within a reasonable period from the time local remedies are exhausted
or from the date the Commission is seized with the matter'.
70.
As discussed in the paragraphs above, the Commission has determined that
the Complainant failed to exhaust local remedies. In circumstances where
local remedies have not been exhausted, Complainants may yet submit to
the Commission within a reasonable time from when they realized that
local remedies were unavailable or ineffective. In this particular instance
however, the Commission has also held that the Complainant has failed to
demonstrate the unavailability or ineffectiveness of local remedies. As was
the position of the Commission in Givemore Chari (represented by Gabriel
Shumba) v Zimbabwe21 and other decisions, where a Complainant has
failed to exhaust domestic remedies, it follows that the Communication will
also be considered as not having satisfied the conditions of Article 56 (6) for
having been submitted prematurely.
71.
With regards to Article 56 (7) of the African Charter, the Commission has
not come across any indication or evidence that the present Communication
has been settled before any other international forum. Accordingly, the
Commission finds that the requirement of Article 56 (7) of the African
Charter has been satisfied.
Decision of the Commission on Admissibility
In view of the above, the African Commission on Human and Peoples'
Rights:
72.
i.
Declares this Communication Inadmissible for failure to comply with
Article 56 (3), (5) and (6) of the African Charter;
ii.
Notifies its decision to the Parties in accordance with Rule 107 (3) of its
Rules of Procedure 2010.
Done Virtually, this 74th Ordinary Session held from 21 Februa .:,.°' 0'1M44tc
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Communication 351/ 07 - Givemore Chari (represented by Gabriel Shumba) v fepublic of ~,
Zimbabwe (2013) ACHPR.
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