UNION AFRICAINE
AFRICAN UNION
UNIAO AFRICANA
African Commission on H11man & Peoples ' Rights
Commission Africaine des Droits de /'Homme & des Paup/es
31 Bijilo Annex Layout, Kombo North District, Western Region, P. 0 . Box 673, Banjul, TheGambia
Tel: (220) 4410505/4410506; Fax: (220) 4410504
E-mail: au-ban iJ africa-union.or, ; Web www.achpr.or,
Communication 524/15
Peter Odiwuor Ngoge & 3 Others
v.
The Republic of Kenya
.Adopted by the
4frlcan Commission on Human and Peoples' Rights
during the 23"'1 Extra-Ordinary Session.from the 13 to 22 February 2018
Banjul, The Gambia
CommissioDm' Soyata Maiga
Chairperson ofthe African Co1mm1SS1Cn)..
on Human and Peoples' Rights
Dr. Mary Maborcke
Secretmy to the Afiican Commission on
Human and Peoples' Rights
Communication 524/15: Peter Odiwuor Ngoge & 3 Others v. The Republic of Kenya
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat), received a complaint on 15 December 2014 from Peter Odiwuor Ngoge
(the Complainant), representing himself and his clients, John Mwangi Muhia, Charles
Muema, and Bronx Estate Limited (the Victims},, against the Republic of Kenya
(Respondent State), a State Party to the African CJiarter on Human and Peoples'
Rights (the African Charter).1
2. The Complainant submits that he is an advocate of the High Court of Kenya, and
practices in the law firm 0. P. Ngoge & Associates.
3. The Complainant submits that on 08 June 2012 the Victims, represented by the
Complainant, filed a constitutional petition (No. 269) seeking th~ intervention of the
High Court of Kenya for enforcement-of their funqamental human rights, which they
claimed to have been violated by the Director of P~blic Prosecutions and four other
Respondents. The alleged viola .•ons include the arr~st and detention of Mr Muhia for
the alleged offence ofbreaking an~enfering and stealing the hotel goods of the fourth
Respondent, as well as setting the bail at an "unconscionable and unreasonable"
amount and the attempt to execute ilie committal orders against both Mr Muhia and
Mr N,leuma, for alleged contempt of the orders of the Business Premises Tribunal
issued o.n::'.02 December 2011 (execution of wbich had been stayed, according to the
Complainant;on 05 January 2012). 2
4. The Complainant alleges that Justice Mumbi Ngugi on 25 September 2012 halted the
hearing of the constihitional petition of 08 June 2012 and postponed it indefinitely to
give the Attorney-General and the Respondents' advocates time to file their responses
belatedly. The petition was listed for mention for further directions on 15 October
2012.
5. The Complainant avers that on 15 October 2012 Justice Ngugi did not sit and instead,
Justice Majanja directed that the case be relisted for mention on 02 November 2012
before Justice Ngugi. However, the Complainant claims that the Respondent's
advocates who were present in court on 15 October 2012 deliberately failed to serve
1 The Republic of Kenya ratified the African Charter on 23 January 1992.
2
Original Complain Annexes, p 11.
1
him with a mention Notice and that the Deputy Registrar also did not issue a mention
Notice for him to attend court on 02 November 2012. However, the mention did not
take place on 02 November 2012, and the Complainant submits that the case was
instead listed on 05 November 2012, again without his knowledge. The Complainant
further submits that upon ex parte hearing of the Respondents on 05 November 2012,
Justice Ngugi issued a further mention date for 19 November 2012 which the
Respondents also failed to serve on the Complainant, again resulting in his absence.
6. The Complainant claims that on 19 November 2012 Justice Ngugi arbitrarily directed
that the Complainant should come to court on 03 D _ember 2012 to explain why the
petition should not be dismissed for want of prosecution. _]'he Justice instructed the
Deputy Registrar to give notice of this to the Com_P.lainant, and while the notice was
issued on 20 November 2012, the Con;tplainant aver-s thatit was not served on him
and that no affidavit of service was filed on record to confi m servi!e of the notice.
7. The Complainant submits that Justice Ngugi onJ 03 Decemoe 2012 proceeded to
dismiss the case with costs to the 'R espondents ~ ithout delving into the merits of the
constitutional petition, and without first satisfying herself that the notice to show case
dated 20 November 2012 had been properly serve'd on the Complainant.
8. The Complainant submits that, agg;ieved by this decis).on, he filed the Notice of
Motion dated 29 July 2013 seeking the intervention-of the High Court to set aside the
ex parte orders of 03 December 2012 and re-admit the constitutional petition. This
Notice of Motion was dismissed on 17 October 2013. Thereupon the Complainant
lodged civil appeal No. 337 of 2013, civil appeal No. 339 of 2013 and civil application
No. NAI 307 of 2013 in the.Kenyan Court of Appeal in November 2013 with the aim
of overturning the dismissal orcters of 03 December 2012 and 17 October 2013,
restoring the original 08 June 2012 constitutional petition to a hearing on merits and
staying the criminal proceedings emanating from the decision of the Business
Premises Tribunal. These civil appeals and application were still pending
undetermined by the Court of Appeal at the time of the submission of this Complaint
to the African Commission on Human and Peoples' Rights (the Commission).
9. The Complainant avers that the Respondent State curtailed the provisions of the
African Charter by permitting Justice Ngugi to dismiss the aforesaid constitutional
petition, thereby exposing the Victims to unlawful arrest, criminal prosecution and
loss of business arising out of the orders of the Business Premises Rent Tribunal in
case No. 806 of 2011. The Complainant further avers that these violations are
exacerbated by the undue delay of the Court of Appeal to set-down the above
mentioned civil appeals for urgent hearings and disposal.
2
10. The Complainant further alleges that the Respondent State permitted Justice Ngugi
to allow advocates of the Respondents to fix ex parte hearing or mention dates of the
constitutional petition without the Complainant's involvement and to also dismiss the
aforesaid constitutional petition in violation of various provisions of the rules
published by the Chief Justice of Kenya,3 the Civil Procedure Rules of 2010, and the
Constitution of Kenya, thereby subjecting the Complainant and the Victims to unfair
and unlawful treatment, discrimination and condemnation contrary to the provisions
of the African Charter.
11. Through the unlawful dismissal of the constitutional petition, the Complainant
alleges, Justice Ngugi deliberately created a rift of misunderstanding between the
Complainant and his clients (the Victims) which could trigger a complaint against
him, and which the Law Society of Kenya would use to disbar him from legal practice
in violation of his socio-economic rights.
12. The Complainant avers that the deliberate dismissal of the petition was part of the
widespread unlawful treatment, intimidation, harassment, and economic sanctions
his firm is being subjected to by the Respondent State with the aim of crippling his
legal practice as a punishment in retribution following previous exposure by him of
official wrongdoings in his capacity as a human rights defender.
13. The Complainant submits that he has lodged the Complaint with the Commission
because local judicial remedies are not effectively available to him and to his clients
and that such local remedies cannot be pursued without hindrances, owing to
mistrust and lack of professional respect between him and the Judiciary of the
Respondent State.
14. The Complainant also indicates that the petition has never been presented before any
other international dispute settlement forum or before any other treaty body for
settlement or adjudication.
Articles alleged to have been violated:
15. The Complainant alleges violation of Articles 2, 3, 4, 5, 6, 7, 8, 12, 15, 19, 22, and 24 of
the African Charter.
Prayers:
16. The Complainant requests the Commission to:
3
Rules published by the Chief Justice under Article 22 of the Constitution.
3
a. Request reparations in the form of general damages of Kenya shillings 10
billion to be assessed and awarded to the Victims to redress violations of their
fundamental human rights;
b. Request that the Respondent be blocked or restrained from pursuing the
criminal prosecutions against the Victim arising from the orders of the Business
Premises Rent Tribunal case;
c. Request that general damages of Kenya shillings 300 billion be assessed and
awarded to the Complainant for the deprivation of effective local judicial
,.
remedies; and
d. Request payment of interest on (a) and (c)1abov'e al;ld costs of the petition.
Procedure:
17. The Secretariat received the Complaint on 15 December 2014 and- acknowledged
receipt of the same on 17 March 2015.
18. The Commission considered the Complaintia_urh;g its 18th Extra~<9rdinary Session
held from 29 July to 07 August 2015 and decided to be seized of the matter.
19. By correspondences of 12 Au~st 2015 the Secretariat transmitted the seizure decision
to the parties and requested the Complainant to submit on admissibility within sixty
(60) days.
*
20. On 02 December 2015 the Complainant's submissions on admissibility were received
at the Secretariat, whicli were subsequently forwarded to the Respondent State on 08
December 201,5 requesting the latter to submit their written submissions on
admissibility within sixty (60) days. :rhe Complainant submitted his admissibility
submissions together with the admissibility submissions for three other
Communications pending before the Commission,4 from which is it possible to
ascertain that he submitted tl1e same submissions on all four Communications.
21. On 17 December 2015 the Ministry of Foreign Affairs of the Respondent State
acknowledged receipt of the Complainant's submissions on admissibility.
Communication 516/15 - Peter Odiwuor Ngoge and Everlyene Iburata Ek.ea v. The Republic of Kenya;
Communication 525/15 - Peter Odiwuor Ngoge and 105 Others v. The Republic of Kenya; and
Communication 535/15 - Peter Ngoge and Joseph Njau v. The Republic of Kenya, the facts of which differ
. and therefore they cannot be joined.
4
4
22. On 06 January 2016 a second copy of the same submissions by the Complainant on
admissibility reached the Commission, of which the Secretariat acknowledged receipt
on 8 March 2016.
23. On 08 March 2016 by Ref: ACHPR/COM/524/15/KEN/387/16 the Secretariat
transmitted the Complainant's submissions on admissibility to the Respondent State
for the second time. The submissions were received by the Respondent State on 21
March 2016 according to DHL tracking records.
24. On 18 May 2016 by Note Verbale Ref: ACHPR/COM/524/15/KEN/1007/16 and
letter Ref: ACHPR/COM/524/15/KEN/1006/16 the Secretariat informed the Parties
that the Communication was deferred during the 58th Ordinary Session of the
Commission .
25. On 21 July 2016 by letter Ref: ACHPR/COM/524/15/KEN/1386/16 and Note
Verbale Ref: ACHPR/COM/524/15/KEN/1385/16 the Secretariat informed the
Parties that the Respondent State would be granted an extension of thirty (30) days
within which to submit their overdue submissions on admissibility.
26. On 22 November 2016 by letter Ref: ACHPR/COM/524/15/KEN/1836/16 and Note
Verbale Ref: ACHPR/COM/524/15/KEN/1837/16 the Secretariat informed the
Parties that the deadline for submissions by the Respondent State was 25 August 2016
and that the Commission will proceed to decide on admissibility based on
information received within the timelines stipulated.
27. Consideration of the admissibility of the Communication was subsequently deferred
until the present 23rd Extra-Ordinary Session of the Commission.
Admissibility
The Complainant's Submissions on Admissibility
28. The Complainant submits that in Jawara vs. The Gambia, the Commission
formulated three major criteria for admission of Communications for hearing on
merit; that is the local remedy must be available, effective and sufficient. The
Complainant further submits that a remedy is considered available if the petitioner
can pursue it without impediment and is sufficient if it is capable of redressing the
complaint.
5
29. Furthermore, the Complainant submits that if the applicant cannot turn to the
Judiciary in his country because of a generalized fear for his life, local remedies would
be considered to be unavailable to him.
30. The Complainant avers that local remedies are either unavailable, insufficient or not
effective at all and cannot therefore be accessed freely by him without coming into
contact with artificial impediments, hindrances and hurdles placed on the
Complainant's way, which barriers are utilized by agents of the Respondent State to
impede the Complainant as a legal practitioner and to the detriment of his clientele.
...
31. The Complainant further avers that the ruling of the Vetti.t\g of Judges & Magistrates
Board of Kenya, delivered on 25th April 2012, constimtes ru;r express and unequivocal
official public admission on the part oi the.Res_Rondent State to th effect that local
remedies are either unavailable, insufficient or are not effectively accessiqle at all by
the Complainant and his clientele, without coming face to face with artificial
impediments unlawfully erectea on the way by 'agents of the Respondent State to
impede or delay access to justice. The Complamant avers that tHis is because the
Vetting Board did not utilise the information supplied to it by the Complainant in
"
order to remove or vet oub.reciilcitt;.ant
judicial officers, thereby exposing the
Complainant and. his clients tQ revenge, retribution ' and retaliation by the said
judicial officers as well as retribution from their fri~ds, sympathizers and colleagues
in the Governmentof the Respondent State, the Bar and the Bench.
32. The Complainant submits that he submitted complaints to the Judicial Service
Commission of Kenya, the Office of the Chief Justice, the Vetting of Judges and
Magistrates Board of J<enya, the Office of the former Prime Minister, the Minister of
Justice and C0nstituti_pnal Affairs, the Office of the Attorney General, the Office of
the Government Ombudsman, the Kenya National Commission on Human Rights
and to the Law Society of Kenya.
33. However, the Complainant submits that the complaints were treated with disdain,
suspicion and contempt, deliberately prejudiced, trivialized and either filed away,
deflected or dismissed or refused without conducting thorough investigations or
inquiries into the serious allegations.
34. The Complainant argues that he and his clients were denied access to effective local
remedies through, inter alia, the following actions by the judiciary: disqualifying
themselves from hearing the Complainant's cases deliberately to prolong or delay
conclusion of the cases; subjecting the Complainant to "massive deliberate s~
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or differential application of the Rule of Law"; taking an unreasonably long time to
dispose of Appeals filed in the Court of Appeal to delay exhaustion of local remedies;
dismissing cases without delving into the merits and thereby depriving the
Complainant and his clients of access to justice and triggering a continuous wave of
appeals, which appeals are expensive and time consuming in view of the case backlog
of about eight (8) years in the Court of Appeal; unreasonably delaying delivery of
Judgment and Rulings to disorient the Complainant and his clients and to keep them
anxiously waiting sometimes for years without knowing the outcome of litigation;
threatening and intimidating the Complainant [withou~any lawful basis] with arrest
and imprisonment; and ensuring that nearly all the Complainant's cases are delayed
or defeated by using all tricks or means available, regardless of their merit, with the
objective of ultimately crippling or grounding the Complainant's legal practice.s
35. Furthermore, the Complainant submits that by dismissing his complaints or
altogether refusing to act on them, the concerned agencies of the Respondent State
reduced the noble constitutional process of vetting of Judicial officers into a gimmick
or a mere public relations exercise and thereby hoodwinked on judicial reforms.
The Commission's Analysis on Admissibility
36. The Commission recalls that Article 56 of the African Charter sets out seven
requirements that a Communication brought under Article 55 of the African Charter
mustsatisfy in order to be Admissible; which apply conjunctively and curnulatively. 6
37. Despite the fact that the Commission requested the Respondent State to submit its
arguments and evidence on admissibility in accordance with Rule 105(2), no response
has been received. In such cases the Commission has held that in the absence of a
response from the Respondent State, it must decide on the facts provided by the
Complainant.7 However, the Commission also notes that the Complainant only
submitted arguments on the admissibility of the Communication with regards to
Article 56(5) of the African Charter. The Commission in its jurisprudence has held that
in such cases it will still examine the admissibility of a Communication in respect of
5
The Complainant gives twenty-seven examples of how the Kenyan judiciary has denied him access to effective local
remedies, which are not reproduced here in full .
•
6
See Communication 304/2005 - FIDH & Others v. Senegal (2006) ACHPR, para 38.
7
See Communication 25/89, 47/90, 56/91 , 100/93 (1995) ACHPR, para 40. See also Communication 60/91 ,
Communication 159/1996, Communication 276/03 and Communication 292/04.
7
each condition based on the available information. 8 Accordingly, the Commission
undertakes the following analysis on admissibility on the basis of the Complainant's
submissions on Article 56(5), in addition to information provided in the original
Complaint.
38. In relation to the requirement in Article 56(1) of the African Charter, which provides
that Communications should indicate their authors even if the latter requests
anonymity, the Commission notes that the identity and the address of the
Complainant is indicated in the Communication, and accordingly finds that the
Communication satisfies Article 56(1) of the African Charter.
39. In accordance with Article 56(2) of the African Charter, thJ Communication must
show a prirna fade case9 and must be compatible with theAtr Constitutive Act and
er'
the African Charter. In relation to the present Communication, the Con:-unission notes
that it is alleged that Articles 2, ~, 4, 5, 6, 7, 8, 12,-,'!"15, 19, 22, and 24 of the African
Charter have been violated. These alleged violations fall within the rationae materiae
jurisdiction of the Commission. Further., the Respondent State is a' State Party to the
African Charter, accordingly the Communicatio :falls within the rationae personae
jurisdiction of the Commission. The Gommission 1:fas rationae temporis jurisdiction,
since the alleged violations took place in the period from 2012 to 2014, which is well
after the ratification of the Charter by the Respo~dent State in 1992. Given that the
Communication is not incompatible with either the AU Constitutive Act or the
Africap Charter, a11d it indicates a prima,facie violation of the African Charter, the
Commission finds that• the Communication satisfies Article 56(2) of the African
Charter.
~
40. Article 56(3) of the .African Charter provides that Communications shall be considered
if they are not written in disparaging or insulting language directed at the State
concerned and its institutions or to the Organization of African Unity [now African
Union]. In Ilesanmi ,,v Nigeria the Commission defined disparaging as "to speak
slightingly of... or to belittle" and insulting as "to abuse scornfully or to offend the self
8
Communication 304/05 - FIDH and others v Senegal (2006) ACHPR para 38; Communication 338/07 - SocioEconomic Rights and Accountability Project (SERAP) v Nigeria (20 I 0) ACHPR para 43; and Communication 284/03
- Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe (2009) ACHPR para
81 ; and Communication 299/05 - Anuak Justice Council v Ethiopia (2006) ACHPR para. 44; Communication 328/06
- Front for the Liberation of the State ofCabinda v Republic of Angola (2013) ACHPR para. 38.
9 See Communication 333/06 - Southern Africa Human Rights NGO Network & Others v. Tanzania (2010) ACJ,£~===::,.....
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respect or modesty of [someone or an institution]" .10 In Zimbabwe Lawyers for Human
Right v Zimbabwe the Commission stated that "[i]n determining whether a certain
remark is disparaging or insulting and whether it has dampened the integrity of the
judiciary, or any other state institution, the Commission has to satisfy itself whether
the said remark or language is aimed at unlawfully and intentionally violating the
dignity, reputation or integrity of a judicial officer or body and whether it is used in a
manner calculated to pollute the minds of the public or any reasonable man to cast
aspersions on and weaken public confidence in the institution. The language must be
aimed at undermining the integrity and status of the institution and bring it into
disrepute." 11 In Eyob B. Asemie v the Kingdom of Lesotho, the Commission indicated that
it must further "make sure that the ordinary meaning of the words used are not in
themselves disparaging."12
41. As an example of insulting language, the Commission can rely on its decision in Ligue
Camerounaise des Droits de ['Homme v Cameroon,13 where it declared that the use of
words such as "Paul Biya must respond [sic] to crimes against humanity"; "30 years
of the criminal neo-colonial regime incarnated by the duo Ahidjio/Biya"; "regime of
torturers"; and "government barbarisms", does amount to insulting language.14In the
present case, the admissibility submissions of the Complainant refer to 'recalcitrant'
judicial officers, as those who had been protected during the vetting process in which
he, the Complainant, had submitted 'damning evidence' and who together with their
'friends, sympathizers, and colleagues' are now seeking 'revenge' and 'retribution'
against the Complainant. According to the Oxford dictionary, 'recalcitrant' entails
"having an obstinately uncooperative attitude towards authority or discipline". By
calling the judges recalcitrant, the Complainant is thus implying that the judges were
somehow unreasonably and self-interestedly trying to prevent justice from being
done. In the use of the words 'revenge' and ' retribution', the Complainant makes the
entire judiciary of Kenya out to be pernicious, spiteful, hostile and malevolent.
42. Clearly the above characterizations of the judiciary are disparaging and undermine
the dignity, reputation and integrity of the judicial officers as well as the judiciary as
an institution. In addition, the assertions that his complaints were treated with disdain
° Communication 268/03 - Uesanmi vs. Nigeria (2005) ACHPR paras 37-40.
1
11 Communication 293/04 -
Zimbabwe Lawyers for Human Rights v Zimbabwe (2008) AHRLJ 120 (ACHPR 2008)
para 51.
12 Communication 435/ 12 Eyob B. Asemie v the Kingdom of Lesotho para 59.
13 Communications 65/92 - Ligue Camerounaise des Droits de I'Homme vs. Cameroon ( 1997) ACHPR.
14 As above, para 13.
9
and deliberately prejudiced are not substantiated at all while being serious allegations
which cast aspersions on and would result in a weakening of public confidence in the
judicial institution. Consequently, the Commission finds that Article 56(3) of the
Charter is not satisfied.
43. In relation to Article 56(4) of the African Charter, the Commission takes note of the
fact that the Communication includes documents filed by the Complainant in the
High Court and the Court of Appeal of Kenya, the Business Premises Rent Tribunal,
among others. In light of the fact that there is no evidence that any of the information
provided is based exclusively on news disse~ ated through the media, the
Commission consequently finds that the requirement of Article 56(4) has been met.
44. Article 56(5) requires that Communicati ns be"'11 submitted after exhausting local
remedies, if any, unless it is obvious that this~rocedure is,unduJ.y R.f?longed.
\
45. In its jurisprudence, the African ~ommisston has held that for the domestic remedies
referred to in Article 56(5) of ilie f rican Chatter to be exhausted, they must be
available, effective and sufficient, stipulating 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."15 Ifthe domestic remedies do not meet these criteria, a Victim may not
have to exhaust them before complaining to an~international body. However, the
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•
Complainant needs to be able to show that the remedies do not fulfil these criteria in
practice, not merely in the opinion of the Victim or that of his or her legal
representative.16
46. The Complainant argues that despite not having exhausted local remedies, he does
not have to do.so since local remedies are unavailable, insufficient or not effective at
all. He bases this on the assertion that his relationship with the Kenyan judiciary is
one of 'mistrust 'apd lack of professional respect', and he argues that local remedies
are unavailable, insufficient or not effective because of artificial impediments,
hindrances and hurdles placed on his way.
47. The first argument of the Complainant to this end is that the ruling of the Vetting of
Judges & Magistrates Board of Kenya constitutes an express and unequivocal official
public admission on the part of the Respondent State to the effect that local remedies
are either unavailable, insufficient or are not effectively accessible at all by the
15 Communication 147/95-149/96 - Sir Dawda K. Jawara v. The Gambia (2000) ACHPR, para 32.
16 Communication 284/03 - Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe
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Complainant and his clientele. However, the complainant does not refer to the content
of this ruling in making his argument, merely referring the Commission to the
relevant pages of the annexes. Unfortunately, the referenced pages of the evidence
submitted do not contain the referenced matter, and the Commission was thus not
able to review the Vetting Board ruling. The Complainant further argues that the
failure of the Vetting board to remove 'recalcitrant judges' whom he had named,
exposes him " to revenge, retribution and retaliation" by judicial officers and their
friends for having exposed their "official wrongdoings." This is a very strong
assertion, which is not backed up by arguments or evidence, and the Commission
thus cannot make a finding of unavailability, insufficiency or effectiveness of local
remedies based on this statement.
48. The second argument made by the Complainant in order to support his allegation that
there is general mistrust and lack of professional respect between himself and the
judiciary and that there are artificial impediments being placed on his way, is through
listing examples of ways in which he alleges that the Kenyan judiciary has, through
various interactions that he had with them, denied him effective local judicial
remedies. The Commission has held in its jurisprudence that " it is incumbent on every
complainant to take all~necessary steps to exhaust, or at least attempt the exhaustion
of, local remedies. It is not enough for the complainant to cast aspersion on the ability
of the domestic remedies of the State due to isolated or past incidences" .17 For
nineteen (19) of the twenty-seven (27) allegations of ways in which the State structures
attempt to deny him remedies, there is no evidence whatsoever provided to support
the assertions. These allegations are also phrased in a very general mrumer, such as
the claim that the Complainant is subjected to " massive deliberate selective or
differential ·application of the Rule of Law". Such assertions do not meet the
Commission's specificity requirements and thus do not allow the Commission to
investigate the claims.1s
49. With regard to another of the twenty-seven (27) allegations, namely the reference to
' threatening and intimidating your humble petitioner [without any lawful basis] with
arrest and imprisonment', the judge who ordered this is named, thereby giving a clear
indication that this was an isolated incident before a specific judge. For a further five
allegations the Complainant refers the Commission to specific pages of the annexes,
which references do not correlate with the annexes, and thus the Commission is not
able to rely on any evidence in this regard in coming to its finding.
17
Anuak Justice Council v Ethiopia para 58.
126/94 Center for the Independence of Judges and La
and Others, paras 5-6.
18 See Communication I04/94, I09/94 and
11
50. In addition, for four of the allegations the Complainant makes cross-references to
other Communications currently before the Commission. In this regard, the only
Communication which can be considered is Communication 432/12 Peter Odiwuor
Ngoge v Republic of Kenya, being the only cited case which has been declared
admissible before the Commission. In this Communication the Commission declined
to engage with the argument that domestic remedies are not available owing to a
"serious breakdown of trust and professional etiquette," 19 since it had already found
that there had been undue prolongation of the domestic processes which were
attributable to the Respondent State. The fact that in this one case there was evidence
of a prolongation of the processes by the State is thus not enough to establish a general
trend of prejudice. The Commission in its jurispruden,ce.;.fia,s held that a remedy is
effective if it offers a prospect of success. Based on the lack of evideI\~e produced by
;,,
the Complainant, the allegations about the ways in wpich the State and its subsidiaries
have denied him effective local remedies amount to no more than,,,allegations lacking
material basis.
51. A third argument which the Complairtant submits as part of the allegation that the
Respondent State is denying him focal remedies, is the allegation that when he
attempted to submit complaints~about the prejudjces which he allegedly suffered at
the hands of the-judiciary to tl1e Judicial Service Commission, the Office of the Chief
Justice, the Office of the Attorney General and others, his complaints were dismissed
with\mt inquiry into the serious allegations that they raise. The State was given an
opportunity, t0 respond to this and fhey have not produced any evidence to the
contrary. However, while this may have been relevant on the merits to reach a
finding on prejudice against the Complainant on the side of state institutions, it is not
relevant in the context of exhaustion of local remedies as part of an admissibility
analysis. This is because the local remedies that have to be exhausted are judicial
remedies20 and these actions were extra-judicial and thus cannot serve as justification
for why local judicial remedies do not have to be exhausted.
52. The Complainant, in providing evidence about the present case focuses mainly on the
process before the High Court. One of the Complainant's allegations against the
judiciary is that his cases are dismissed without delving into the merits. In the current
case the constitutional petition was dismissed after a decision of lack of due diligence
and without delving into the merits, and the Notice of Motion to set aside this
19 See para 59 of Communication 432/12 Peter Odiwuor Ngoge v Republic of Kenya.
°Cudjoe v Ghana (2000) AHRLR 127 (ACHPR 1999) para 13.
2
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dismissal was also dismissed. However, since the Complainant was thereafter able to
appeal to the Court of Appeal, which he had in fact done, this by itself is not sufficient
reason to apply the exception to the exhaustion of local remedies requirement.
53. The remaining argument which the Complainant raises in the original Complaint is
that there is an undue prolongation of the processing of his cases in this matter before
the Courts, and in this regard he specifically avers that there was an undue delay on
the part of the Court of Appeal to set down civil Appeal No. 337 of 2013, civil Appeal
No. 339 of 2013 and civil Application No. NAI 307 of 2013 for hearings and disposal,
in view of the urgent circumstances of the constitutional petition dated 08 June 2012.
However, this allegation was not repeated nor substantiated in the Admissibility
submissions. In the Admissibility submissions the Complainant only made a general
allegation that the Court of Appeal takes an unreasonably longperiod to dispose of
appeals brought by him.
54. In its jurisprudence, the Commission has held that, if the domestic remedies are
prolonged, this may amount to an exception to the exhaustion of domestic remedies
requirement in the event that the process has not only been prolonged but that this
has been done so "unduly." Whereas there are no standard criteria used by the
Commission to determine if a process has been unduly prolonged, the Commission
has tended to treat each Communication on its own merits. The Commission held
that in interpreting the rule, it takes into consideration "the circumstances of each
case, including the general context in which the formal remedies operate and the
personal circumstances of the applicant". The Commission's jurisprudence further
makes it clear that the burden of proof is on the Complainant to provide evidence as
to why they could not exhaust local remedies.21
55. From the evidences provided by the Complainant, the Commission was able to
ascertain that civil Appea I No. 337 of 2013 had been submitted to the Court of Appeal
on 29 November 2013, and that the other two cases were also submitted around the
same time. This Complaint was received at the Commission on 15 December 2014,
approximately one year after the lodgement of the three cases with the Court of
Appeal. Due to the absence of any explanation by the Complainant as to what
transpired during that year, it is extremely difficult to assess whether this could
constitute an undue delay. It is the view of the Commission that the Complainant has
thus not satisfied the burden of proof in indicating that the cases pending before the
21 Anuak Justice Council v Ethiopia para 50.
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Court of Appeal had been unduly prolonged. However, the Commission also has to
take into account the circumstances of the case, including the general context in
which the formal remedies operate. The Complainant in his Admissibility
submissions notes the eight year backlog in the Kenyan Court of Appeal, which could
be an indication that within that system it would not be unusual for a case to be
pending for one year. In light of these considerations the Commission finds that the
exception to the exhaustion of local remedies because the remedy has been unduly
prolonged does not apply in the current case.
56. For these reasons, the Commission holds that none of the exceptions to the
requirement of exhaustion of local remedies apP,ly and accordingly finds that Article
56(5) of the African Charter has not been met.
57. Article 56(6) of the African Charter pz:ovides that the Commission shall consider
Communications which "are submitte~within a reason';i,le'P.eriod frotn the time
domestic remedies are exhausted, or from'-tli'e date the Comrrussion is seized of the
matter." In its jurisprudence the Commission hasneld that where a matter has not
been concluded, time has not begun ~to run such ~s to afford the Complainant the
opportunity to bring this comglaint. 22 For ':his reason, given the finding above that
there was no exhilustion of local remedies, the Cppunission finds that Article 56(6) of
the African Charter is not met.
58. In relation to Artic1e i6(7) of the Charter, the Commission does not find evidence
whicn indicates that the issues and claims in the Communication have been brought
before, or settled by any othe,r international forum. Accordingly, the Commission
finds that Article 56('7) ,of the ·'.A.fricap Charter has been satisfied.
59. For the reasons set out above, the Commission finds that Article 56 (1), (2), (4) and
(7) have been met, but that the Complainant has failed to meet the criteria for Article
56 (3), (5) and (6).
Decision of the African Commission on Admissibility
60. In view of the above, the African Commission on Human and Peoples' Rights:
22
Communication 322/2006 - Tsatsu Tsikata v Republic of Ghana, para 53.
14
i.
Declares the Commurucation inadmissible for failure to comply with Articles
56(3), 56(5) and 56(6) of the African Charter;
ii.
Notifies its decision to the parties in accordance with Rule 107(3) of its Rules of
Procedure.
Done in Banjul, The Gambia, during the 23rd Extra Ordinary Session of the African
Commission on Human and Peoples' Rights, from 13 to 22 February 2018.
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