ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Communication 515/15 - Peter Odiwuor Ngog
Communication 527/15 - Peter Ng
Ad
mmissi
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o
ic of Kenya and
go
an and Peoples' Rights at its 75 th Ordinary
ay 2023 in Banjul, The Gambia.
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Hon. Commissioner- Remy Ngoy Lum bu
Chairperson,
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A6\ola ld owu-Ojo
Executive S;cret ary (Ag)
African Commission on Human and
African Commission on Human and
Peoples' Right s (ACHPR)
Peoples' Rights (ACHPR)
Joint Decision of the African Commission on Human and Peoples'
Rights on Admissibility
Communication 515/15 -Peter Odiwuor Ngoge v The Republic of Kenya and
Communication 527/15 - Peter Ngoge & Julius Anyango V. The 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, there are currently seven (7) pending before
the African Commission on Human and Peoples' Rights (the Commission). The
present matter is a joinder of two (2) of the 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,
in violation of the Constitution of Kenya and the African Charter.
4. Communication 515/15 was received on 15 December 2014 on behalf of Peter
Odiwuor Ngoge of O.P. Ngoge & Associates Advocates (the Complainant). The
Complainant submits that his Bill of Costs dated 3 August 2007 and 2 May 2007
were taxed by consent of the Parties in the sum of Kenyan Shillings 1,568,479
and Kenya Shillings 1,297,939 in High Court MISC. Civil Application No. 260
of 2007 and High Court MISC. Civil application No. 259 of 2007, respectively.
5. The Complainant alleges that on 15 February 2008, the Hon. Lady Justice
Nambuye declined to adopt the consents as judgment of the Court under
Section 51 [2] of the Advocates Act, consequent upon which the Complainant
filed Civil Application No. NAI 22 and 23 of 2008 and Civil Appeal No 233 of
2010, respectively in the Court of Appeal to challenge the rulin
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6. The Complainant states that on 22 October 2010, Hon. f Jul ticetOkubasu}
Hon. Mr. Justice Waki and Hon. Mr. Justice Nyamu of : e Dourt of Appeal
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The Republic of Kenya ratified the African Charter on 10 February 1992
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dismissed the applications No. NAI 22 and 23 of 2008 and on 20 April 2012, the
Court of Appeal allowed the Complainant's Appeal No. 233 of 2010. He further
states that despite allowing Civil Appeal No. 233 of 2010, the Respondent State
named therein has to date never complied with the aforesaid orders of the
Court of Appeal dated 20 April 2012 i.e. to pay the legal fees as decreed by the
Court of Appeal.
7. The Complainant also alleges that the afore-mentioned Justices of the Appeal
Court deliberately and arbitrarily dismissed the Complainant's Civil
Application No. NAI 22 and 23 of 2008. He further alleges that by deliberately
dismissing the aforesaid Civil Application No. NAI 22 and 23 of 2008, the
Respondent State has permitted the aforementioned Justices to cleverly subvert
his socio-economic rights, and his right to be remunerated adequately with the
aim of crippling or exterminating altogether the Complainant's legal practice.
8. The Complainant further avers that there has been inordinate delay on the part
of the Respondent State in allowing the Complainant to access his valid
remuneration and the deliberate act is intended to create an unfavourable
environment with a view to exterminate his legal practice.
9. Communication 527/15 was also received on 15 December 2014 from Peter
Odiwuor Ngoge of O.P. Ngoge & Associates Advocates (the Complainant),
representing himself and his client Mr. Julius Owino Anyango (the Victim). The
Complainant submits that on or about the 5th January 1999, Onyango Ogada
Abuya [deceased] was lawfully riding a bicycle along Ndorl- Asembo Bay
Road near Ramba Secondary School within Siaya County in the Republic of
Kenya. During the ride, the allegedly authorized driver and/ or servant of one
Mary Nyalwala Oyuga negligently drove vehicle omnibus Registration No.
KAB 035 C, and violently collided with the deceased, causing him fatal injuries
from which he died.
10. The Complainant avers that subsequently, he represented the Victim through
his brother in Kisumu Chief Magistrates Court Civil Case No. 1103 of 2000,
which was lodged on 19th September 2000 (later amended on 22 November
2001 by the then Advocates before the Complaint was allowed to come on
record for the Victim), and subsequently in Kisumu High Court Civil Appeal
No. 6 of 2011. The case was filed under the Law Reform Act and Fatal Accidents
Act of Kenya, claiming general and special damages, interests and costs of the
suit for the dependents of the deceased person upon being issued with letters
of administration.
11. The Complainant submits that the Respondent State delib ..~'{(el t~~the
Victim of access to Justice contrary to Articles 10, 27 andll,0 ' of ~trstifill ·on
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of Kenya and in violation of various provisions of the:~ fri~ Ch~
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detriment of the Victim and himself, by "permitting the P[i'l;q pal Qgzsb'. te R h
Ezra A wino who was the presiding Magistrate to delay the eiif and fqir conclu~1;Jh
2
of the fairly straight fonvard accident claim with the objective of insulating the
Defendant named therein from accountabilihJ as a tortfeasor or as a person vicariously
liable for the negligence of her driver who was the real tortfeasor."
12. The Complainant submits that aggrieved by the decision of the Hon. Mr. Ezra
Awino given on the 17th January 2011, he lodged Civil Appeal No. 6 of 2011 at
Kisumu High Court on the 8th February 2011 on behalf of the Victim. The
Complainant also submits that he is unable to progress any further with the
hearing of Civil Appeal No. 6 of 2011 because the original Court file being
Kisumu CMCC No. 1103 of 2000, has been supposedly stolen from the Court
Registry and has completely disappeared with no one talking or accepting
responsibility. Hence militating against prosecution of the Civil Appeal
deliberately to impede and block the fair and speedy hearing of the appeal,
whose success would have compelled the Base Commander in charge of Bonda
Police Station to produce the Police file, thereby depriving the appellant of
access to justice in the High Court and the Right to be heard fairly.
13. The Complainant also states that the Respondent State deliberately deprived
the Dependents of the deceased person and the Victim of the protection of the
law and access to justice by unlawfully permitting the Defendant in Kisumu
CMCC No. 1103 of 2000, to operate a risky passenger motor service without a
third-party insurance cover, contrary to the Insurance Act, thereby exposing
the Dependents and the Victim to the risks of not being indemnified or
compensated at all.
14. With respect to the two Complaints, the Complainant submits that he has
lodged them before the Commission because local judicial remedies are not
effectively available to him and to his clients, and that the same cannot be
pursued without hindrances, owing to mistrust and lack of professional respect
between him and the Judiciary of the Respondent State.
15. The Complainant also submits that the Complaints have never been presented
before any other international dispute settlement forum or before any other
treaty body for settlement.
Articles alleged to have been violated:
16. The Complainant alleges violation of Articles 3, 4,5, 7, 8, 14, 15, 19, 22 and 24
of the African Charter.
Prayers:
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(Communication 515/15)
17. The Complainant requests the Commission to reco
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Respondent State pays:
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a. Reparations in the form of general damages , • nxa Shillings
Billion to be assessed and awarded to the Co lainant to -redress
3
violations of his rights as enshrined by the provisions of the African
Charter; and
b. Interest on (a) above and costs of the petition
(Communication 525/15)
18. The Complainant requests the Commission to recommend that the Respondent
State pays:
a. Reparations of Kenya shillings 900 million to be assessed and
awarded to the Victim to redress violations of his rights as enshrined
by the provisions of the African Charter;
b. Reparations of Kenya shillings 300 billion to be assessed and
awarded to the Complainant to redress violations of his rights as
enshrined by the abovementioned provisions of the African Charter;
and
c. Interest on (a) and (b) above and costs of the petition.
Procedure:
19. The two Communications were received on 15 December 2014, and the
Secretariat acknowledged receipt of both by letter dated 17 March 2015.
20. From May - August of 2015, the Commission decided to be seized of the
Communications as follows:
i.
At its 56th Ordinary Session, held from 21 April to 7 May 2015, the
Commission decided to be seized of Communication 515/15 and
both Parties were informed of its decision by Letter and Note
Verbale dated 12 and 13 May 2015 respectively; and
ii.
At its 18th Extra-Ordinary Session held from 29 July to 7 August 2015,
the Commission decided to be seized of Communication 525/15,
and the Parties were informed of its decision by Letter and Note
Verbale dated 25 August 2015.
21. The Secretariat received the Complainant's submissions on Admissibility for
Communication 515/15 on 22 June 2015, acknowledged receipt by Letter of 30
June 2015, and forwarded the submissions to the Respondent State by Note
Verbale dated 30 June 2015, respectively.
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22. By Note Verbale dated 17 December 2015, the Respo .., entl,:tate.acihio
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receipt of the submissions and indicated that thd, ~ha , been fo war
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relevant authorities for action.
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23. By Letter of 3 March 2016, the Secretariat acknow~~ ii:,d receipt of the Note
Verbale and informed the Complainant on the same date.
4
24. The Secretariat received the Complainant's submissions on Admissibility for
Communication 525/15 on 6 January 2016, acknowledged receipt by Letter
dated 9 March 2016 and forwarded the same to the Respondent State by Note
Verbale of the same date.
25. By Note Verbale dated 22 April 2016, the Secretariat informed the Respondent
State 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 on the basis of available information. The Complainant was informed
by Letter of same date.
26. 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.
27. 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.
28. The Commission observes that the Complainant has made the same
Admissibility submissions in forty-five (45) of his Complaints, including 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.
29. The Commission also joint seven (7) Communicati
534/15, 458/13, 509/15, 514/15, 517/15, 520/15,
Ngoge v Republic of Kenya based on the same A
which were also declared Inadmissible for not mee
Articles 56 (3), 56 (5), and 56 (6); and two (2) joint
Peter Odiwuor N goge v Republic of Kenya and 535/
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1'3/oge
5
and Joseph Njau v Republic of Kenya, declared Inadmissible for the same
reasons.
30. A consideration of the Admissibility of the present Communications was
deferred from the 58th Ordinary Session of the Commission which took place
from 6 to 20 April 2016, to the 74th Ordinary Session of the Commission held
from 21 February to 7 March 2023.
The Law on Admissibility
Complainant's Submission on Admissibility
31. 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 in
compliance with Articles 56(1) (2) (3) (4) (6) and (7) of the African Charter.
32. The Complainant's arguments are mainly centred on Article 56(5) of the
African Charter, 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 ifit is capable of redressing the complaint" 2.
33. The Complainant also submits that the Communications clearly lay 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 appeal to the higher Courts; deliberate disappearance of Court files to
delay the speedy conclusion of his cases before the Court; and taking
unreasonably long period of time to dispose of Appeals filed in the Court of
Appeal, with a view to delaying exhaustion of local remedies.
34. The Complainant contends that local remedies are therefore "unavailable,
insufficient or not effective at all and cannot be accessed freely without corning
•mpeding
into contact with artificial impediments, hindrances and hurd
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tools and roadblocks" .
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35. The Complainant further submits that the ruling of the ,~et • g ~f Judges
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Magistrates Board of Kenya (Vetting Board) of 25
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2 Communication 147/95-149/96 - Sir Dawda K. Jawara v Gambia (2000) A
3
Admissibility Submission, page 2
6
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
36. 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 Democracy and others (Petition
No.13A, 14, 15 (2013), thereby proving the unavailability and ineffectiveness of
local remedies.
•
37. 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.
38. 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
39. Despite the fact that the Commission requested the Respondent State to submit
its arguments and evidence on Admissibility in accordance with Rule 105(2) of
the Rules of Procedure 2010, under which this Communication was instituted,
no response has been received.
40. 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 o Nigeria6
4 As above.
5 Admissibility submission Page 3.
~ for cohomk and Sod
Rights v. Federal Republic of Nigeria. Also see Communication 292/04 - I\l~titu forJ:Iqman Rights
and Development in Africa v. Republic of Angola, para. 34 and Communiq~pon 59/96 Union Inter
Africaine des Droits de !'Homme, Federation Internationale des Ligues 'M Droits de !'Homme,
6 Communication 155/96- Social and Economic Rights Action Center, Cen
1
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
41. 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.
42. In relation to 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.
43. With respect to Article 56(2) of the African Charter which states that
'Communications ...received by · the Commission shall be considered if they are
compatible with the Charter of the 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 3, 4,5, 7, 8, 14, 15, 19, 22 and 24
of the African Charter. Given that the Communications 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.
44. 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 Nigeria7, bears the primary duty to respect,
protect, promote and fulfil the rights enshrined in the African Charter, the
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essence of Article 56 (3) is to discourage use of language that se ... ¥·
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Rencont,-e Africaine des Drnits de !'Homme, o,ganisation Nationale des Drni ,
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and Association Malienne des Droits de l'Homme v. Republic of Angola.
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7 Communication 155/96 - Social and Economic Rights Action Center (S ~AC) and Center for
Economic and Social Rights (CESR) v Nigeria {2001) ACHPR
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8
1
without reasonable grounds, the standing of the State or its institutions as the
first point of call for seeking redress.
45. 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 neocolonial 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 digniti;,
reputation or integrity 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".
46. 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 facto render a
Communication contrary to Article 56 (3). The Commission has held in
Zimbabwe Lawyers for Human Rights and the Institute for 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.
47. 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 allega • t' l'lll ~ .-,'v(1"
· fleet
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s Communication 268/ 03 - Ilesanmi v Nigeria (2005) ACHPR, para 40; Co
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Camerounaise des Droits de !'Homme v Cameroon (1997) ACHPR, para 13
9 Communication 293/04- Zimbabwe Lawyers for Human Rights and the ln5µ tut for Human Rights
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and Development in Africa v Zimbabwe
10 Communication 435/12 - Eyob B. Asemie v the Kingdom of Lesotho (2015)
ara 58.
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).
48. 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), in Apinis v Latvia11 , stated that language
is considered as insulting when it reaches a 'level which exceeds the bounds of
normal criticism'. In such drcums~ances, the European Court may deem a
complaint inadmissible for abuse of !the right to application. The Commission
is further of the view that while Cotb.plainants may express their emotions on
their circumstances or in regard to the specific actions of the respective State,
this should not transform into ad ham ·nem attacks on the State or its institutions,
thereby exceeding the bounds of normal criticism or reasonable expressions of
strong emotions.
49. In this particular instance, the Complainant accuses the Respondent State of
"exposing your humble petitioner [~e 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 efforLlto punish him, the Respondent State
"enlisted the services of the Kenya judicianj' . In another instance, the
Complainant states that his compI • ts have been treated with "disdain,
suspicion and contempt" and that the ~espondent State is "cleverly insulating or
shielding recalcitrant judicial officers". He also uses the phrase "damning evidence"
to describe his submissions to the Vetting Board.
50. The Complainant certainly uses strohg language and the Commission notes
that allegations of corruption woul~ 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 thel:1efore 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?
51. Regarding the specific language used1 due considera •
the ordinary meaning of the words usj d. The use of wo
"revenge" or "retribution" are not words that would or
insulting, even more so within the context of these C~1n,...,...,.,
of the word" damning evidence" seems to be the strong
11 App 46549/ 06-
ed to
c ~on"
idered as
. The use
ut this1is
I
Gundis Apinis v Latvia (2011) ECHR, para 16.
10
however largely an expression of opinion about the weight of the particular
evidence.
52. 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". The Meriam-Webster Dictionary defines this term as "having an
obstinately uncooperative attitude towards authority 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.
53. 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 judiciary. The
Commission is also of the view that the expressions used by the Complainant
are not within the bounds of normal criticism or reasonable expression of one's
sense of being wronged.
54. For the foregoing reasons, the Commission therefore finds that the conditions
of Article 56 (3) have not been satisfied.
55. 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.
56. Article 56(5) of the African Charter, stipulates that 'Communications should be
'sent after exhausting local remedies, if any, unless it is obvious tha ..~~e is
unduly prolonged. This condition ensures that States have t } 'i~ :txJpporful;t~,
to remedy any human rights violations and furthz t .,;eirs .r~ th t th\ ,
Commission does not serve as a court of first instfill g or ast a· :QJe
of\
circumventing local institutions, which are not only du ~ bound but are aiso
better placed to remedy human rights violations. The Coinnussion recalls in
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Association Mauritanienne des droits de l'Homme v Mauritania 12that local
II
remedies are the ordinary remedies of common law that exist in jurisdictions and
normally accessible to people seeking justice". In Cudjoe v Ghana13, the
Commission stated that local remedies applied to II courts of a judicial nature".
57. 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 II 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.
58. 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 II mistrust and lack of professional respect" between the judiciary
and himself. The second he mentioned is a decision by the Supreme Court
(Petition No.13A, 14, 15 (2013)) which he believes has confirmed the finality of
the Vetting Board's conclusions.
59. 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 judicianJ, with
negative results all round. The situation calls for intervention by the Law SociehJ of
Kenya with a view to achieving an appropriate remedy" 15.
t7 ~
60. In another part of its report, the Vetting and Magistrates ~
ound that:
"Complaints were received from an Advocate that the judge / ~ff;fiffffrf:t!_~inatonJ
way against the complainant... the board found that althou
•ulr!!f<stly
Interights, Institute for Human Rights ~ d D welopment in Africa and
Association mauritanienne des droits de !'Homme v Mauritania (2004) A'CFIPR para 27.
13 Communication 221/98 - Alfred B. Cudjoe v Ghana (1999) ACHPR, p~
14
~
14 Ib'd 2
/_
1
il'M·· ••l S_-./4
15 The Vetting of Judges & Magistrates Board, page 2.
~
12 Communication 242/01 -
12
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 of Appeal, all basically to the effect that they were unfairly hostile to
him and discriminated against him ..."
61. 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.
62. In Anuak Justice Council v Ethiopia16, 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 Ethiopia
required "significant strengthening to obtain _tnie independence". In its decision
however, the Commission reasoned that "it is not enough for the complainant to
cast aspersion on the ability of the domestic i·emedies of the State due to isolated or past
incidences" and that it was·notsufficient for a complainant to merely argue that
domestic remedies are unJ..U<ely to succeed·without having made an attempt to
pursue them.
63. 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.
64. 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 Cour_t in both Communications res M: N "'~
~ot
0
tenable as none of these institutions are judicial remedies itwnrthe ~ ~ g
of Article 56 (5). The Complainant's failure to receive th "'l sif'~ c"I"emedy up9p
approaching the aforementioned institutions does no f xe pt llitn from his
0
v
•
71
,~ /
16 Communication 299/05- Anuak Justice Council v Ethiopia (2006) ACHPR; para 36. t,,
17 Communication 340/ 07 - Nixon Nyikadzino (represented by Zimbabwe Hu'man 'Rights NGO Forum)
v Zimbabwe (2014) ACHPR, para 85.
13
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.
65. 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.
66. 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
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.
67. 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.
68. 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 make the entire
judiciary unfit for adjudicating the Complainant's case fairly. Interpreting this
finding of the Supreme Court as amounting to suggesting that the entire
judiciary is unfit amounts to stretching the language of the Supreme Court to
absurdity. The Commission accordingly declines to cone ude from the
particular finding of the Supreme Court in the particula , ,>t~~ • • 'ty and
failure of the entire Kenyan judiciary to provide effe½e ~:sr~tt!"iiiecfi fo1-;, nyan
','1:
/ 0
-
v
• ~
\'
1s Judges & Magistrates Vetting Board & 2 others v Centre for Human Rit h_t.s
De'mocracy & 11 o1thers
O
•
[2014] (Petition No.13A, 14, 15) (2013) available at http://kenyalaw.or~tcp sela~ cases/view /10r;!263/
19 Suprem e Court (Petition No.13A, 14, 15 (2013)
~
20 As above, See also Constitution of Kenya, Sixth Schedule, Article 23 (2
't ~"1F11:c\1H~:~..,:~
~
14
citizens, including the current applicant, that file cases alleging violations of
their rights by the Respondent State.
69. 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
Society 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".
70. 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 of this Constitution;
and in any other case in which the Supreme Court, or the Court ofAppeal, certifies that
a matter of general public importance". Mr. N goge' s domestic cases, which form
the basis for the present Communications, are therefore entirely separate and
distinct from the decision of the Vetting Board, at least in so far as exhaustion
of domestic remedies are concerned.
71. In light of the above observations and analysis, the Commission finds that the
conditions of Article 56 (5) have not been satisfied
72. 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'.
73. As discussed in the paragraphs above, the Commission has determined that
the Complainant failed to exhaust local remedies. In circumstances where local
¥~·. • bmit to the
remedies have not been exhausted, Complainant
Commission within a reasonable time from w , • '·'"4hey ealiie that local
ance owever,
remedies were unavailable or ineffective. In • ;p; r~
1
the Commission has also held that the Compla ..,a nt pas fail:E!d t9 de~ onstrate
the unavailability or ineffectiveness of local re 1 ~q_iJ.s. As was the P?,Sition of
the Commission in Givemore Chari (represe ·ted b('Gil.briel Shi mba) v
~
15
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.
74. 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
75. In view of the above, the African Commission on Human and Peoples' Rights:
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 wit u\~r::10~ (~f"0 -<- • s
Rules of Procedure 2010.
§ ~
· ·o.a_ ~
-' V""HtJI~
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-"
.:
11
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,-.
•
- I
Done this 75th Ordinary Session held from 3 to 23 May 2023j~ Banj~l~•The
Gambia
~ -. . .
<If
:
~/
/I
~,1/
~r
2'1 Communication 351/ 07 -
Givemore Chari (represented by Gabriel Shumba) v Republic of
Zimbabwe (2013) ACHPR.
16
I