247/02 : Institute for Human Rights and Development in Africa (on
behalf of Jean Simbarkiye) / DRC
Summary of Facts
1. The Complainant, Mr Jean Simbarakiye, is a national of Burundi currently a refugee in Lomé,
Togo.
2. He is assisted by the Institute for Human Rights and Development in Africa, an NGO with observer
status with the African Commission, with its head office at P.O. Box 1896, Banjul, The Gambia, tel.
220 962280/954131, fax: 220 49 41 78, e-mail:info@africaninstitute.org,
Website: www.africaninstitute.org
3. Mr Jean Simbarakiye states that:
4. He arrived in Zaire, now Democratic Republic of Congo (DRC), in 1974 where he obtained the
status of political refugee granted and recognised by the Republic of Zaire and the UN High
Commission[er] for Refugees.
5. He did his university studies there up to 1984 and, in 1989, he was employed as a civil electrical
engineer by Office National[e] des Transports (ONATRA) for and on behalf of the State of Zaire.
6. In 1996, following the war between the DRC and Burundi, Uganda and Rwanda in the east of the
country, the Haut Conseil de la République, i.e. the Transitional Parliament, during its session held on
31st October 1996, adopted Resolution No. 04/HCR6PT/96 by which it was decided to “terminate work
contracts for all Rwandan, Burundian and Ugandan subjects…”.
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7. Pursuant to this decision, Mr Jean Simbarakiye was dismissed on 3 January 1997, without
[neither] prior notice nor compensation, by ONATRA, for the sole reason of being of Burundi origin.
8. He has three children, and his wife is a Congolese (DRC) national.
9. The communication also alleges that from January 1997, when he was dismissed without prior
notice or compensation, to June 1997, when he left DRC, Mr Simbarakiye made numerous but
unsuccessful attempts to obtain justice by approaching the Congolese authorities.
10. Due to moral and material pressure, he was forced to leave DRC in June 1997 and took refuge in
Lomé, Togo, where he continued enjoying the status of refugee, without having exhausted local
remedies.
11. He continued his contacts with the Chargé d’Affaires of DRC in Lomé and, through him, sent a
letter on 21st February 2000 to the Minister of Justice of DRC but, all in all, all his efforts, just like
those of his wife after he left DRC in June 1997 till her own departure for Lomé in 2000, were
[fruitless].
Complaint
12. The communication alleges [that] Resolution No. 4 of the Haut Conseil de la République, the
Transitional Parliament of the DRC violates : Articles 1, 2, 3, 7, 14, 15 and 18 of the African Charter.
Procedure
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13. The communication was received by the Secretariat of the African Commission on 3 April 2002,
which acknowledged receipt of the same to Counsel of the Complainant, the Institute for Human
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Rights and Development on 4 April 2002.
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14. At its 31st Ordinary Session held in Pretoria, South Africa, from 2 to 16 May 2002, the African
Commission decided to be seized of the communication and referred consideration of the admissibility
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of the case to its 32 Ordinary Session.
15. The Secretariat informed the concerned parties through a Note Verbale and a letter dated
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27 June 2002. In response, the Complainant, through his counsel, filed his submissions on the
admissibility of the communication, which were received at the Secretariat of the African Commission
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on 12 of August 2002.
16. The Government of the DRC, through the Minister for Human Rights, acknowledged receipt of
the correspondence from the Secretariat of the African Commission concerning the communication by
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a letter dated 20 July 2002 and referenced 737 and which was received at the Secretariat on
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26 December 2002.
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17. The DRC delegation to the 32 Ordinary Session of the African Commission held in Banjul, The
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Gambia, from 17 to 23 October 2002, handed the submissions of the Government on the
admissibility of communication 247/2002 to the Secretariat of the African Commission.
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18. The African Commission deferred consideration of the communication to its 33 Ordinary
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Session scheduled for Niamey, Niger, from 15 to 29 May 2003.
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19. By Note Verbale and a letter dated 2 December 2002, the Secretariat of the African
Commission informed the parties of the African Commission’s decision and forwarded the documents
submitted by each of the parties.
20. On 31st January 2003, the Complainant sent to the Secretariat written submissions in reply to the
submissions of the Government of DRC.
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21. At its 33 Ordinary Session held from 15 to 29 May 2003 in Niamey, Niger, the African
Commission considered this communication and declared it inadmissible.
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Admissibility
22. The Complainant alleges that he did not exhaust local remedies because he was subjected to
moral and material pressure.
23. The Government of DRC submitted that he did not provide proof of the impracticability to exhaust
local remedies while he was in the DRC and in Lomé, Togo, in June 1997.
24. In fact, the Government of DRC explains that local remedies exist and are available and that
even in Togo, the Complainant had the possibility of taking legal action before bringing the matter
before the African Commission.
25. Article 56.5 of the African Charter requires that communications sent to the African Commission
shall be considered if they “ ... are sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged.”
26. Article 56 aims thus at enabling, among others, the Respondent Government to be aware of the
harmful effects of its actions on human rights and look into the possibility of taking corrective
measures before being sued to an international court.
27. As far as the African Commission is concerned, the existence of a local remedy should be both
theoretical and practical, a condition without which the local remedy in question would be neither
available nor effective.
28. Such is the case when, for objective reasons, the Complainant cannot take his case to the courts
of the Respondent State in conditions that guarantee him a fair trial.
29. The African Commission has indeed never admitted that the condition of exhaustion of local
remedies apply ipso facto for receiving a communication, when it finds it illogical to require the
exhaustion of local remedies.
30. To support his allegations relating to the impossibility for him to exhaust local remedies, the
Complainant exhaustively referred to the African Commission’s previous decisions through the
following communications:
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Communication 39/90 Annette Pagnoule on behalf of Abdoulaye Mazou/Cameroon ;
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Communication 103/93 Alhassan Abubakar/Ghana
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Communications No. 147/95 and 149/96 ;
Communications (consolidated) 25/89, 47/90, 56/91, 100/93 Free Legal Assistance Group,
Lawyers’ Committee for Human Rights, Union internationale des droits de l’Homme, Les
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témoins de Jéhovah/Zaire ;
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Communication 71/92 Rencontre africaine pour la défense des droits de l’Homme/Zambia ;
and
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Communication 74/92 Commission nationale des droits de l’Homme et des libertés/Chad .
31. The African Commission feels that none of these communications are identical with the
communication brought by the Complainant who, moreover did not attempt to exhaust local remedies
prior to bringing the matter before the African Commission in 2002.
32. Considering that he left DRC in June 1997, there is no indication that he attempted to exhaust
local remedies whilst in Togo nor did his wife (who remained in DRC until November 2002) attempt to
take any action to exhaust local remedies.
33. Furthermore, the Complainant does not provide evidence showing the moral and material
constraints alleged to have prevented him from exhausting local remedies available under the laws of
DRC.
Holding
For these reasons, and in accordance with Article 56(5) of the African Charter, the African
Commission,
Declares this communication inadmissible for non-exhaustion of local remedies.
Footnotes
1. Communication 39/90 Annette Pagnoule on behalf of Abdoulaye Mazou/Cameroon . The Complainant had
taken numerous legal actions both non-contentious and contentious without any success. The [African]
Commission felt then that local remedies had been exhausted.
2. Communication 103/93 Alhassane Aboubacar/Ghana : the Complainant was sentenced and sent to prison.
Following his escape from prison, he took refuge abroad and seized the African Commission. The African
Commission felt that it was not logical to ask him to return and exhaust local remedies in Ghana.
3. Communication 147/95 and 149/96 Dawda Jawara/The Gambia . The Complainant was a Head of State who
had been toppled and sentenced in absentia. The African Commission felt that local remedies were not available
and that in such conditions, it was not logical to ask him to return to The Gambia to exhaust local remedies.
4. Communications (consolidated) 25/89, 47/90, 56/91, 100/93 Free Legal Assistance Group, Lawyers’
Committee for Human Rights, Union internationale des droits de l’Homme, Les témoins de Jéhovah/Zaire .
Considering that the condition of exhaustion of local remedies was not applicable to the letter when it is neither
practical nor desirable that the Complainant seizes the courts for each violation, the African Commission declared
the consolidated communications admissible due to the nature of the violations which were serious and massive
violations of human rights.
5. Communication 71/92 Rencontre africaine pour la défense des droits de l’Homme/Zambia . The [African]
Commission felt that the condition of exhaustion of local remedies does not mean that Complainants must
exhaust local remedies when, in practical terms, these are neither available nor practical.
6. Communication 74/92 Commission nationale des droits de l’Homme et des libertés/Chad. The African
Commission felt that it could not be asked of the Complainant to exhaust local remedies when he would not be in
a position to seize the national courts.