Docusign Envelope ID: A39DAFC4-4CAD-8DDA-8188-614FCAF68904
ACHPH
African Commission on
Human and Peoples· Rights
Human Rights our
Collective Responsibility
DECISION OF THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES' RIGHTS ON
ADMISSIBILITY
COMMUNICATION 788/22
TIBEILA INSTITUTE (REPRESENTED BY MR.
SHADRACK TEBEILE)
REPUBLIC OF SOUTH AFRICA
Adopted by the
African Commission on Human and Peoples' Rights
During the 84"' Ordinary Seasion, held virtually from 21 to 30 Jully 2025
Ms. Abli
ExecuUve~•~~~rry
Commission ,i'
Rights
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout. Kombo North District. West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-ban1ul@africanunion.org
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Human Rights our
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Human and Peoples' Ri~hts
DECISION OF THE AFRICAN COMMISSION ON HUMAN
AND PEOPLES' RIGHTS ON ADMISSIBILITY
COMMUNICATION 788/22
TIBEILA INSTITUTE (REPRESENTED BY MR.
SHADRACK TEBEILE) V. REPUBLIC OF
SOUTH AFRICA
SUMMARY OF THE COMPLAINT
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received the Complaint on 16 February 2022 from the Complainant.
2. The Complainant is a non-profit organization based in South Africa that focuses
on educating communities, particularly underprivileged groups, on their
constitutional rights as outlined in the Constitution of the Republic of South
Africa. Additionally, the organization engages in public interest litigation in
constitutional matters.
3. The Complaint arises from a call for submissions made by the Municipality of
Polokwane on 6 September 2021, inviting artists to submit a work of art. Among
the eleven eligibility conditions, one criterion required that applicants hold South
African nationality.
4. On 7 September 2021 , the Complainant filed an urgent application before the
High Court, Limpopo Division, Polokwane, seeking a declaration that the
nationality requirement was inconsistent with Section 16(1 )(c) of the
Constitution of the Respondent State, which guarantees freedom of expression,
including freedom of artistic creativity.
5. On 16 September 2021, the High Court dismissed the application for lack of
urgency. On the same day, the Complainant directly and urgently referred the
matter to the Constitutional Court of South Africa.
6. On 22 September 2021 , the Constitutional Court dismissed the
stating that the Complainant had not established sufficient grou
access.
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The African Commission on Human an
31 Bijilo Annex Layout. Ko
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7. The Complainant submitted the present Communication to the African
Commission on Human and Peoples' Rights on 16 February 2022.
ARTICLES ALLEGED TO BEEN VIOLATED
8. The Complainant alleges the violation of Articles 1, 2, 3, 4, 5, 6, 7(1 ), 9(1) and
19 of the Charter.
PRAYERS
9. The Complainant prays the Commission to: (i) Declare that the Respondent violated the Complainant's rights under Articles
1, 2, 3, 4, 5, 6, 7(1 ), 9(1 ), and 19 of the African Charter;
(ii) Order the Respondent to pay him the amount of R100,000,000.00 to the
Complainant within three (3) months from the date of the order, which
includes the legal costs of the Complainant in the High Court of South Africa;
and
(iii)
Further orders as the Commission deems fit to grant in the circumstances.
PROCEDURE
10. The Secretariat of the African Commission on Human Rights (the Secretariat)
received the Complaint on 16 February 2022 and acknowledged its receipt in a
letter dated 3 March 2022.
11 . The Secretariat considered and seized itself with the Complaint, pursuant to
Rule 115(5) of the Commission's Rules of Procedure. It thereafter informed the
parties by letter dated 13 June 2022 and Note Verbale dated 15 June 2022,
requiring the Complainant to submit on Admissibility and Merits.
12. By the letter dated 1 March 2023, the Secretariat acknowledged receipt of the
Complainant's Submissions on Admissibility and Merits and, in accordance with
Rule 116(2) of the Rules of Procedure, forwarded it to the Respondent State for
observations.
13. By the Note Verbale dated 26 April 2023, the Respondent State requested an
extension of time to submit its reply. The request was granted and confirmed by
a Note Verbale dated the same date. The Complainant was dully informed as
well.
14. By the Note Verbale dated 26 May 2023, the Secretariat info
Respondent State that its submissions on Admissibility did
arguments on Merits. In light of Rule 116( 1) of the Rules of P
Secretariat granted an additional 30 days to submit the missing a
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15. By the Note Verbale dated 16 April 2024, the Secretariat reminded the
Respondent State to rectify the anomaly in its submission and further extended
the deadline.
16. The Secretariat received the Respondent State's letter dated 16 May 2024, in
which it challenged the admissibility of the Communication and requested an
oral hearing to present its complete arguments and evidence regarding
Adm issibility and Merits, in accordance with Rule 102(1) of the Rules of
Procedure of the Commission.
17. By the Note Verba le dated 19 June 2024, the Secretariat acknowledged receipt
of the Respondent State's request. It further advised that the request for an oral
hearing on Admissibility and Merits had been transmitted to the Bureau of the
Commission as per Rule 102(3) of the Commission's Rules of Procedure. At the
same time, it informed the Respondent State that its observations on
Admissibility had been forwarded to the Complainant for a response within thirty
days, following Rule 116(2) of the Rules of Procedure.
18. By letter dated 19 June 2024, the Secretariat transmitted the Respondent
State's observations on Admissibility and Merits to the Complainant, advising it
to submit a rejoinder within 30 days, which it has not done to date.
ADMISSIBILITY OF THE COMMUNICATION
The Complainant's Submissions
19. The Complainant identifies itself as a non-profit organization based in South
Africa. The Complainant states that its objectives include educating
communities, particularly those in marginalized areas, about their constitutional
rights and litigating public-interest matters.1 It added that the Respondent State
is the Republic of South Africa, which ratified the African Charter on Human and
Peoples' Rights on 9 July 1996 and the Protocol to the African Charter on
Human and Peoples' Rights on the Establishment of an African Court on Human
and Peoples' Rights on 3 July 2002.2
20. The Complainant alleges that the Respondent has violated articles 1, 2, 3, 4, 5,
7(1 ), 9(2), and 19 of the African Charter. According to the Complainant, these
violations occurred within the respondent's territorial jurisdiction.3 Furthermore,
the Complainant stated that this communication complies with the constitutive
1
See the Complainant's w ritten submissions o n admissibility and merits, para. 15; also, compl,~
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affidavit submitted for evidence on admissibility and the merits, para. 12
2 Ibid, para. 16; also, ibid, para. 11
3
See the Complainant's written submissions on admissibility and merits, para. 17; also
affidavit submitted for evidence on ad missibility and the meri ts, para. 16
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act of the African Union and the African Charter, as it pertains to alleged human
rights violations that fall within the mandate of the African Commission.4
21. The Complainant also stated that the communication does not contain any
disparaging or insulting language, thereby satisfying the requirements under
Article 56(3) of the African Charter.5 It affirmed that the allegations are not based
exclusively on mass media reports but rather on official decisions by
governmental authorities, institutions, and courts of the respondent state.6
22. The Complainant asserted that it had exhausted local remedies, as required
under Article 56(5) of the Charter, having litigated the matter before the High
Court of South Africa, Limpopo Division, Polokwane, and subsequently before
the Constitutional Court of South Africa.7 The Complainant further submitted
that they filed an urgent application in the High Court of South Africa, Limpopo
Division, Polokwane, on 7 September 2021 , challenging the nationality
requirement imposed by the Polokwane Municipality for participation in an art
competition.8
23. They submitted that on 16 September 2021 , the High Court struck the
application from the roll for lack of urgency.9 The Complainant submits that they
then approached the Constitutional Court of South Africa, seeking direct access
and urgent relief to challenge the High Court's ruling .10 However, on 22
September 2021 , the Constitutional Court dismissed the Complainant's
application, thereby concluding the domestic litigation process.11 The
Complainant submitted that the constitutional court's decision, as it is the
highest judicial authority in South Africa, represented the exhaustion of local
remedies.12
24. It further added that the present communication was submitted to the African
Commission on 16 February 2022, with in six (6) months of the constitutional
court's decision, thereby satisfying the requirement under article 56(6) of the
Charter that it be filed within a reasonable time after the exhaustion of local
remedies.13 The Complainant stated that the issues raised in this
4
See, respectively, ibid para. 18-19, para. 17-18
Ibid, para. 20-21; also, para. 19-20
6 ibid, para. 22-23; also, para, 21-22
7 ibid, para. 24-25; also, para. 23-24
8
ibid, para. 27; also, para. 25
9
ibid, para. 28; also, para. 27
10
ibid, para. 29; also, para. 28.
11 Ibid, para. 30; also, para. 29.
12 ibid, para. 31; also para. 30
13 ibid, para. 32-33; also, para. 32-33
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communication have not been previously settled by the parties under any
international or regional legal mechanism.14
25. The Complainant concluded that the communication satisfies all admissibility
requirements under Article 56 of the African Charter and should be declared
admissible by the African Commission on Human and Peoples' Rights. 15
The Respondent State's Submission
26. The Respondent State submitted that the communication does not meet the
admissibility requirements under Article 56 of the African Charter.16 It never
contested the Complainant's identity and acknowledges that the Complainant
has been disclosed in accordance with Article 56(1) of the African Charter.17
27. The Respondent State submitted that the communication is incompatible with
the African Charter and, therefore, fails to satisfy the requirement under Article
56(2). It argued that the issues raised in the communication fall outside the
scope of the African Charter as they pertain to domestic administrative
requirements rather than fundamental rights violations.18 The Respondent State
asserted that the communication contains unsubstantiated claims and political
overtones, which , in its view, render it incompatible with the objectives of the
African Charter and further challenge the requirement under Article 56(2) of the
African Charter. 19
28. The Respondent State contended that the Complainant used disparaging and
insulting language in its submissions, violating Article 56(3) of the Charter. It
argues that the Complainant's allegations against state institutions and the
judiciary amount to an unsubstantiated attack on South Africa's legal framework
and are therefore disparaging in terms of Article 56(3) of the African Charter.20
29. It further submitted that the Complainant's allegations are based on media
reports and opinionated narratives rather than factual evidence, failing to meet
the requirement under article 56(4) that communications must not be based
exclusively on news disseminated through mass media.21
30. The Respondent State argued that the Complainant had not exhausted local
remedies, as required under Article 56(5) of the Charter. It notably submitted
that the Complainant's case was struck off the roll by the High Court for lack of
urgency, meaning the merits were never considered further, th-..:;~=~
Complainant failed to pursue alternative remedies such as re-filing
on a non-urgent basis before the High Court or seeking redres
14
Ibid, para. 34-35; also, para. 34-35
ibid,
16
See respondent States' Submission on ad missibility, para. 1
17 Ibid, para. 3
18 ibid,para. 5
19 ibid, para. 6
20 ibid, para. 8
21 ibid, para. 10
15
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The African Commission on Human and Peoples' Rights
31 BiJ1lo Annex Layout. Kombo North District,
West Coast Region Gambia
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South African Human Rights Commission. The Respondent stated that the
Constitutional Court's decision was based on procedural grounds rather than
substantive legal claims, and therefore, local remedies were not exhausted. 22
31 . The Respondent State contended that the communication was not submitted
within a reasonable time, as required by Article 56(6) of the African Charter. It
argued that the Constitutional Court issued its decision on 22 September 2021,
and the communication was submitted to the African Commission on 16
February 2022, six months later. Furthermore, the respondent reiterated its
submission regarding the exhaustion of local remedies above. 23
32. The Respondent State argued that the communication raises issues that have
already been settled by domestic courts, in violation of Article 56(7) of the
African Charter. It, in particular, submitted that the South African courts have
already ruled on the matter, and the Complainant has not demonstrated why
the Commission should re-examine an issue that has been addressed under
domestic law. It further argued that the nationality requirement in the art
competition is an administrative decision that falls within South Africa's legal
framework, and the Complainant failed to challenge it adequately through the
available domestic remedies. 24 The Respondent State concluded that the
communication fails to meet several admissibility criteria under Article 56 of the
African Charter, particularly regarding compatibility, exhaustion of local
remedies, reasonable time, and prior settlement of the matter. It requests the
Commission to declare it inadmissible. 25
THE COMMISSION'S ANALYSIS ON ADMISSIBILITY
33. The Commission notes that this Communication is submitted in terms of Article
55 of the African Charter on Human and Peoples' Rights (the African Charter.
Accordingly, it must satisfy the seven requirements outlined in Article 56 of the
Charter to be declared admissible.
34. The Commission further recalls that the conditions outlined in Article 56 of the
Charter are cumulative and all should be adequately fulfilled for a
communication submitted in conformity with the terms of Article 55 to be
admissible. It explicitly recalls its position in F/DH & Others v SenegaP.6 that,
essentially, non-fulfilment of any one of these conditions is liable t:o~r
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communication inadmissible.
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35. The Commission will thus consider the parties' submission
requirements seriatim.
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23 Ibid, paras. 13-14
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Communication 304/ 2005 para 38
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26
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout. Kombo North District,
West Coast Region Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
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Article 56(1): Identity of the Complainant
36. Article 56(1) of the charter requires that a Communication indicate its author's
identity, even if anonymity is requested.
37. The Commission recalls that the rationale behind this requirement is to ensure
that the Commission can establish contact with the complainant and verify their
ongoing interest in the matter. The Commission has affirmed this position in
Michael Majuru v. Zimbabwe27and lbrahima Diuresis and Others v. Guinea,28
where it held that complainants must disclose their identities to enable the
Commission to process communications adequately.
38. In the Communication at hand, while no victim is indicated expressly of the
alleged violation of human rights arising from the Respondent State's acts, the
Commission notes that the Complainant, Tebeila Institute, as represented by
Mr Shedrak Tebaile,29 has clearly identified itself as a non-profit organization
based in South Africa, dedicated to public interest litigation and the promotion
of constitutional rights. 30The Respondent State does not dispute the
Complainant's identity and acknowledges that the requirement under Article
56( 1) has been met.31
39. The Commission agrees with the parties' submission and, therefore, finds that
the requirement under Article 56(1) has been satisfied.
Article 56(2): Compatibility with the Charter
40. Article 56(2) of the Charter requires that communications be compatible with the
Charter of the African Union or the African Charter itself. The Commission
interprets this condition as encompassing compatibility with the objectives of the
African Charter and the Constitutive Act of the African Union and compliance
with the four aspects of the Commission's jurisdiction, namely ratione personae,
ratione materiae, ratione temporis and ratione loci. 32
41. As regards compatibility with the Constitutive Act and the Charter, the
Commission observes that the complainant seeks the protection of rights
guaranteed under the African Charter, specifically articles 1, 2, 3, 4, 5, 7(1 ),
9(2), and 19. The communication thus falls within the scope of arti
Constitutive Act, which affirms the objective of promoting and pro
and peoples' rights.
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29
See the Complainant's written submissions on admissibility and merits, para. 19
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30 ibid
31
See Respondent's State Reply Submission on Admissibility and Merit, para. 25
32
This position was clarified in Senator Jean-Pierre Bemba Combo v. Democmtic Republic Of Congo
(communication 709/19, para 26-28
71 Page
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The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout. Kombo North District,
West Coast Region Gambia
Phone: (220} 230 4361 Fax: (220) 441 05 04
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Human and Peoples' Rights
42. The communication is brought against the Republic of South Africa, a state party
to the African Charter, thus fulfilling the requirement of ratione personae. It
alleges violations of provisions protected by the Charter, notably nondiscrimination, freedom of expression, and equality before the law, thereby
satisfying ratione materiae. The alleged violations occurred between 6 and 22
September 2021 , well after the respondent State ratified the Charter on 9 July
1996 and thus fall within the temporal jurisdiction of the Commission (ratione
temporis). Finally, the acts complained about took place within the territory of
the respondent State, specifically within the Polokwane Municipality, fulfilling
the requirement of ratione loci.
43. The respondent State challenges compatibility, arguing that the impugned acts
amount to internal administrative decisions and do not engage human rights
protections under the Charter. 33 However, the Commission has consistently
held that administrative decisions affecting the enjoyment of Charter rights ,
particularly those concerning access to expression, participation, or nondiscrimination, may be subject to review under the Charter.34
44. The Commission finds that the nationality requirement in a publicly sponsored
art competition, which restricts eligibility on grounds of citizenship, prima facie
implicates the right to equal protection, non-discrimination and freedom of
artistic expression under Articles 2, 9(2), and 19 of the African Charter.
Consequently, the communication is not incompatible with the African Charter.
45. The Commission, therefore, concludes that the communication satisfies the
requirements of Article 56(2) of the Charter.
Article 56(3): Disparaging or Insulting Language
46.Article 56(3) stipulates that a Communication must not contain disparaging or
insulting language directed at the state concerned. The Commission recalls its
position in Zimbabwe Lawyers for Human Rights & Associated Newspapers of
Zimbabwe v. Zimbabwe,35 that determining whether a remark is disparaging
depends on whether it unlawfully impairs the dignity or reputation of the state.
33
sub adrn state reply comm 788-22, para. 26
Pura/zit and Moore v. Tlze Gnmbin, Communication 241/01, Para. 32; Serac And
Communica tion 155/96, Para. 50
34
35 Communication 284/03, para. 88
36
Complainant's w ritten submissions cite above, para. 21
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West Coast Region Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
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Africa's legal framework and therefore disparaging in terms of Article 56(3) of
the African Charter. 37
48. Upon reviewing the Communication, the Commission does not find that it
contains any language that qualifies as insulting or disparaging. The
Commission finds that the requirement under Article 56(3) has been satisfied.
Article 56(4): Based on Evidence and Not Solely on Media Reports
49. Article 56(4) provides that communication should not be based exclusively on
news disseminated by the media. In Sir Dawda K. Jawara v. The Gambia,38 the
Commission clarified this provision, stating that the key issue is whether
information is verified and credible.
50. In this regard, the Complainant submitted that its allegations are based on
official decisions from South African courts and administrative bodies rather
than media reports. 39 The Respondent State countered that the Complainant
relies on media narratives rather than substantive evidence. 40
51 . The Commission reviewed the submitted documents, including judicial
decisions and administrative records, and found that legal documents rather
than journalistic reports primarily support the allegations presented. It, in
particular, refers to the decision in Sir Dawda K. Jawara v. The Gambia, 41 that
communication must be supported by official documentation and not rely solely
on media sources.
52. That the Complainant has provided court rulings and official correspondence
from authorities, in support of the communication filled with the Commission,
which the Respondent State never contested; therefore, the Commission finds
that the Communication satisfies Article 56(4 ).
Article 56(5): Exhaustion of Local Remedies
53.Article 56(5) requires that communications be considered only after exhausting
local remedies unless such remedies are unduly prolonged.
37
Respondent's State Reply Submission on Admissibility and Merit, para. 27
38 Communication 147/ 95, para. 34
The Complainant's written submissions on admissibility and merits, para. 22
Respondent's State Reply Submission, para. 28
41 Communication 147 /95, para. 34
39
40
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the application.42 The Respondent state argues that the Complainant failed to
re-enroll the case on the ordinary roll after it was struck off for lack of urgency
and that alternative remedies, including administrative complaint mechanisms,
remained available. 43
55. The Commission reiterates and remains guided by its position that remedies
must be available, effective, and sufficient. 44 Reading the submissions, it is
noted that the Constitutional Court's dismissal of the Complainant's case was
procedural rather than substantive. Additionally, the Complainant had failed to
pursue normal proceedings that might have provided an effective remedy. The
Complainants have not addressed this argument, and in the absence of any
submission, the Commission remains guided by its previous holding in Human
Rights Council and Others v. Ethiopia, which holds4 5 that failure to exhaust
available remedies , particularly where a communication is dismissed on
procedural grounds, renders a communication inadmissible. Based on the
foregoing , the Commission finds that the Complainant has not exhausted all
available local remedies.
56. Consequently, the communication does not meet the requirement under Article
56(5) of the Charter.
Article 56(6): Reasonable Timeframe
57.Article 56(6) requires that a Communication be submitted within a reasonable
time after the exhaustion of local remedies.
58. Given that Article 56(6) speaks of 'after the exhaustion of local remedies' and is
accordingly predicated on exhaustion of local remedies, the finding of the
Commission in respect of Article 56(5) that local remedies are not exhausted
makes consideration or analysis of whether the communication was submitted
within a reasonable time unnecessary. If local remedies have not been
exhausted, there is no basis for determining a reasonable period under Article
56(6) of the African Charter. In the present Communication, the Commission
has established in the foregoing part that local remedies were not exhausted,
thereby rendering it unnecessary to consider Article 56(6), which is co~ ~-se-=t::~
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43
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Article 56(7): Matters Previously Settled
59.Article 56(7) of the Charter requires that a Communication must not deal with
cases that have been settled in accordance with the principles of the United
Nations, the African Union, or the African Charter.
60. The Complainant asserts that the present matter has not been submitted or
adjudicated by any other international human rights body.46 The Respondent's
state does not contest this assertion but argues that the matter was settled
domestically, which should preclude further review.47
61 . The Commission recalls its positions in Jean-Claude Roger Gbago v. Cote
d'lvoire,48 where it held that a case is considered settled if another international
tribunal has rendered a final decision on the merits, and in its clarification in
Amnesty International V. Sudan49 that national judicial determinations do not
qualify as prior settlements envisaged under Article 56(7) of the African Charter.
62. Since the Respondent State has not provided evidence that this case has been
decided by an international or regional human rights mechanism, the
Commission finds that the requirement under Article 56(7) of the African Charter
has been satisfied.
DECISION
63. The Commission finds that the communication satisfies the requirements under
Articles 56(1), (2), (3), (4), and (7) of the African Charter but fails to satisfy the
requirements under Article 56(5) and (6) of the same.
64. Consequently: (i) The African Commission declares the communication inadmissible under
Article 56 of the African Charter.
(ii) Decided to notify the Parties of this decision in accordance with Rule
118(4) of its .2020 Rules of Procedure.
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Done at the 84th Ordinary Session of the Commission
from the 21st Day of July to the 30th Day of Jul
46
See, the Complainant's written submissions cited above, para. 24
47
Respondent State Submission, cited above, para. 31
48
Communication 397/10, para. 78
49
Commun ication 48/90, para. 19
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The African Commission on Human and Peoples' Rights
31 Bij1lo Annex Layout. Kombo North District.
West Coast Region Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
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