Communication
432/12
Peter
Odiwuor Ngoge v Republic of Kenya
Summary of Complainant
1.
The Communication was submitted to the African Commission on Human and
Peoples' Rights (the Commission) by Peter Odiwuor Ngoge (the Complainant)
against the Republic of Kenya (the Respondent State). The Republic of Kenya is
a State Party to the African Charter on HumanandPeoples' Rights (the Charter). 1
2.
The Complainant states that he is a lawyer. He wa,s duly aµmitted to the Kenyan
bar in 2001. He is a member of the Law Society o{ Keny;a -and the East African
Law Society. He practices law privately under the .fir.nr~a~e 1!}0:/S.Q.P. Ngoge
& Associates" in Nairobi, Kenya.
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3.
He avers that in 2003 when the Respondent State's 9th Parliament which had just
been elected and was due to elect its-Speaker, he applied to be elected as Speaker.
the floor of Parliament for
However, his applkation was blocked from reaching
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considerationand another candidate was declared ·speaker of the 9th Parliament
of the Respondent State on 9 January 2003.
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4.
On 23 May 2003 he sought leave of the court in High Court Miscellaneous Civil
Application No. 554/2003 for judiciat;review to issue against the decision of the
Clerk of Parliament declaring+the other candidate as Speaker of the 9th
Parliament of the Republic of Kenya. On 20 June 2003 the High Court declined
jurisdiction and dismissed the application for leave to commence judicial review.
He was not happy with the ruling, and he insinuated that the judge was acting
on instructions to shield the respondent. The judge summarily convicted him of
contempt and sentenced him to imprisonment for one week.
5.
On 12 January 2004, after his release from prison, he commenced fresh court
proceedings by Originating Summons under section 84(1) of the Constitution of
the Respondent State challenging the legality/ constitutionality of the purported
appointment of the then Speaker and allowing the latter to continue serving as
Speaker of the 9th Parliament. The matter was registered as High Court
Miscellaneous Civil Application No. 22 of 2004. The suits was filed against five
respondents: the then Speaker whose election he was challenging; the_~¾t:fJ.fcof.,:~.':
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1 The Republic of Kenya ratified the Charter on 23 January 1992 and the Charter.
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National Assembly who declared the result of the impugned election; the
Electoral Commission of Kenya which conducted the impugned election, The
Attorney General; and the Constitution of Kenya Review Commission which
was later dropped from the suit. On 13 January 2004 the matter was certified for
urgent hearing during court vacation and referred to the Chief Justice for further
directions. The Complainant avers that the Chief Justice deliberately stalled the
hearing of the matter by not giving the necessary directions until 6 June 2007
when the matter was scheduled for hearing on 27 June 2007 before a panel of
three judges. The C<?mplainant asserts that the delay was a deliberate ploy to
allow the elected Speaker to continue serving until almost the end of the term
when the matter was set for hearing in 2007. He states that some of his prayers
had since been overtaken by events with effluxion of time.
6.
Further, when the matter came for hearing on 27 Juµe 2007; a lawyer from private
practice sought to represent ParliaIIl~nt which, as an institution, was not a
respondent to the matter. An in-house advocate of the Electoral Commission
who had signed and filed papers on behalf of .a11d as an offker of the Electoral
Commission also sought to participate in.the hearing. A third advocate who was
an employee of the Respondent State alse> so'ught to represent the Attorney
General. The Complainant challenged- the participation of the lawyer from
private practice as farliament was not a partx;, He also challenged the
participation of the advocate for the Electo:ral Commission because the papers
filed on behalf of the Electoral Commission had not been drawn in the name of
the Electoral Com.mission. Further, he challenged the State advocate on the
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ground that she did not produce evidence of her appointment as advocate for
the Attorney General in the sujt. ' The Court dismissed his challenge and
permitted the advocate from -priv~!e practice to raise preliminary objections to
the originating summons. The other advocates supported the preliminary
objections. The court adjourned hearing of the preliminary objections to 9
October 2007 when the Complainant was supposed to respond to the
preliminary objections.
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7.
On 8 October 2007, a day before the next hearing date, the Complainant made a
chamber application for the court to review its decision granting audience to the
lawyers who he insisted were not properly on record as representing the
respondents. He also alleged that some evidence which would have supported
his challenge but was not available on 27 October 2007 had since come to light.
When the matter came up for the scheduled hearing on 9 October 2007, the
Complainant's chamber application was the first issue to be resolved. The
concerned lawyers for the respondents objected to the chamber applic, 5 1 : ~~-....::
abuse of court process as the court had already granted them righKtjf~~uJY '~f~~ -<1/·~;~
on 27 June 2007 on behalf of the respective respondents to the matt~f . T :e
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of objections to the Complainant's chamber summons was filed and served on
him on the same day it was heard, to wit, 9 October 2007 and he had not been
afforded enough time to prepare his response to the objections.
8.
On the same day, 9 October 2007, the High Court dismissed the Complainant's
chamber application of 8 October 2007 because it was frivolous, vexatious, and
scandalous, and amounted to abuse of court process. The Complainant sought
leave to appeal against the dismissal of the chamber application. The court
refused permission and decided to proceed on 30 October 2007 with further
hearing on the preliminary objections to the substantive matter as raised by the
respondents on 27 Ju:ne 2007.
9.
In view of the High Court's refusal to granthirh leave to appeal the ruling on his
chamber application, the Complainant took two steps: :firstly, he applied by
motion for leave from the Court of Appeal to app~af againstthe High Court's
ruling on his chamber application. The motion was lodged wit}:l the Court of
Appeal on 23 October 2007 and registered as Court of Appeal Civil Application No.
NAI 260 of2007 (UR 160 of200Y).' Secondly, the Complainant'.~a<fe an application
to the Court of Appeal for orders to stay the ruling of 9 October 2007 and thus
restrain the High Co~rt from proce~ding with the further hearing then scheduled
to proceed on 30 October 2007. This,.s~cond application was registered as Court
of Appeal Civil Appli~ation No, NAI 261 of 2007 (UR 161 of 2007).
10.
Following the hearing on 30 October 2007, on 7 December 2007 High Court
dismissed Miscellaneous Civil Application No. 22 of 2004 based on the preliminary
objections raised by the respondents. The Complainant sought, and the High
Court granted, leave to appeal to Court of Appeal against the High Court's
ruling of:7 I)ecerr:i-ber 2007. He states that the Registrar did not provide him with
the certified copies of th~ record of the proceedings and the ruling in question,
and as a result he only managed to lodge the appeal in the Court of Appeal on
18 December 2QO&. The appeal was registered as Court of Appeal Civil Appeal No.
266 of 2008.
11.
Further, on 21 December 2007 he lodged an application before the Court of
Appeal seeking orders staying the execution of the High Court ruling of 7
December 2007 which dismissed Miscellaneous Civil Application No. 22 of 2004.
This application for stay of execution was registered as Court of Appeal Civil
Application No. NAI 320 of2007 (UR 220 of2007).
the Court of Appeal Judges appointed to hear Court of Appeal Civil Appeal No. 266
of 2008 recused themselves and removed the urgency status of the matter. At the
time of submitting tµe present Complaint to the Commission, Court of Appeal
Civil Appeal No. 266 of 2008 had not been listed for any hearing thereby resulting
in more of the reliefs he sought being rendered nugatory with the passage of
time. He feels short-changed.
13.
On the other hand, Court of Appeal Civil Application No. NAI 260 of 2007 (UR 160
of 2007) (application for leave to appeal), came up for hearing on 23 February
2012, 4 years 4 months after it was lodged with the Court of Appeal on 23 October
2007. Following that hearing, on 20 April 2012 the Court of Appeal dismissed the
application thereby refusing permission to appeal. The Complainant states that
the Court of Appeal's decision also effectively dismissed'some of the grounds of
appeal in Court of Appeal Civil Appeal !'JP'. 266 of 2008 and further prejudiced Civil
Application No. NAl 260 of2007 (UR 160of2007) anq CivHApplication No. NAI 320
of2007 (UR 220 of2007 which were sJill pending,_on 20 April 2012.
14.
The Complainant appealed as of right to th~,.Supreme Court against the ruling
of the Court of Appeal of 20 April 2012. The appeal was registered as Supreme
Court Petition No 2 of 2012. He framed his appeal to the Supreme Court as a
constitutional petition. In the appeal, .he challertged the Court of Appeal's
decision as a violation of various provisions of the Constitution guaranteeing his
fundamental }:mi;nan rights, including fair trial. The Respondents to the appeal
then included the lawyer from private practice who had previously purported
to represent Parliament (which wa,s not a respondent then), and Parliament as
an institution. The lawyer in questiqn and Parliament respectively became the
5th and 6th respohdents to the appe~l before the Supreme Court.
15.
The respondents to the constitutional petition raised yet another set of
preliminary objections to the effect that the Supreme Court has no jurisdiction to
hear the appeal as the Complainant had not sought leave of the Court of Appeal.
On 4 September 2012 the Supreme Court, constituted of two judges, upheld the
preliminary objection and dismissed Supreme Court Petition No 2 of 2012 because
it lacked jurisdiction. The Complainant states that the Supreme Court bench of
two judges was not quorate in terms of domestic law when it dismissed Petition
No 2 of 2012. He also avers that one of the two judges was a former member of
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the 9th Parliament which was a Respondent and therefore she sat as judge in-;::::
own cause in dismissing his appeal.
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Alleged violations
16.
The Complainant claims that:-
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(a) By blocking his application to be elected as Speaker of the 9th Parliament, the
Respondent State violated his rights under Article 13 (1), (2) and (3) of the
Charter;
(b) By allowing the person elected as Speaker of the 9th Parliament to serve the
entire term in the 9th Parliament without going through proper elections, the
Respondent State degraded and discriminated against him and acted in
contravention of Articles 2, 3, 5, 19 and 27 of the Charter;
(c) The High Court decision dismissing his application for permission to
commence judicial review in High Court Miscellaneous Civil Application No.
554 of 2003 violated his rights under Article 7 of the Charter;
(d) His imprisonment upon convidio,n by the High Court for querying the
court's impartiality in Miscellaneous :Ovil Application No. 554 of 2003 violated
his rights under Article 5, 6, 7 and 9(2) ofthe Charter;
(e) The Chief Justice's inordinate delay in giving directions in Miscellaneous Civil
Application No . 22 of 2004 amounts to violation of his rights under Articles 3
and 7 of the Charter;
(f) The courts decisions permitting a lawyer from private practice to interfere in
his case by raising preliminary objections, and the courts' refusal to grant him
permission to qppeal against that decision violated his rights under Articles
3 and 7 of the Charter.
(g) The courts' refusal to hear his case in Miscellaneous Civil Application No. 22 of
2004 on the merits is in violation of Article 3 and 7 of the Charter;
(h) The Court of Appeal's (i) failure to hear and determine the merits of Civil
Appeal No. 266 of 2008, and (ii) decision of 20 April 2012 effectively dismissing
some of the grounds of appeal in Civil Appeal No. 266 of2008 without hearing
him on the merits thereof are in violation of Article 3 and 7 of the Charter;
(i) The Supreme Court's act of dismissing his Petition No. 2 of 2012 on
preliminary objections and without hearing him on the merits of the petition
amounts to violation of his rights under Article 3 and 7 of the Charter;
17.
In respect of each of the rights allegedly violated, the Complainant also cites the
corresponding provisions of various international human rights treaties to
which the Respondent State is a party.
18.
The Complainant also states that because of the above facts, he has suffered great
loss and damage to his reputation as an advocate, which in turn has resulted in
economic loss and psychological torture for about a decade.
Reliefs sought
19.
Based on the foregoing, the Complainant seek~ against the Respondent State: -
(a) Declarations of violations of his rights as pleade4;
(b) Kenya Shillings 100 billion in general damages Jar blocking t~e fair presentation of
his cases;
(c) Kenya Shillings 100 billion in exemplary damages for violafiotis of his rights as
pleaded;
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(d) Cost of presenting this. Comm.unicalion and any further reliefs the Commission
deems fit and just.
20.
The Complainant also requests th.~ Commission to facilitate him in seeking
asylm;n to a country of his choice beca\!se his life is in danger for presenting the
present Communication.
Procedure
21.
The Communi,c:ation was received at the Secretariat of the Commission (the
Secretariat) in batches on 2 October and 30 November 2012. The Secretariat
acknowledged receipt on 5 November and 10 December 2012 respectively.
22.
In his complaint, the Complainant requested that the case should be referred to
the African Court on Human and Peoples' Rights.
24.
The Complainant submitted his written arguments and evidence on
admissibility on 10 April 2013. The Complainant's submissions were transmitted
to the Respondent State.
25.
The Respondent State submitted its written observations on Admissibility on 2
July 2013 and the same were transmitted to the Complainant who in turn
presented his reply on 20 August 2013.
26. Consideration of the admissibility of the Communication was subsequently
deferred until the present 18 th Extraordinary Session of the Commission.
ADMISSIBILITY
Complainant's submissions
27.
The Complainant contends that this Communfq1tionsatlsfies Article 56(5) of the
Charter because local remedies have been unduly prolongeq., spanning a decade.
He avers that the Respondent State deliberat~ly:: employed delaying tactics to
prevent his grievance from being heard on the merits. In this regard he refers,
first, to High Court Civil Application No 554 ·of 2003 and avers that instead of
granting permission for the judicial review to issue, the judge argued the case
for the state, refused 'to grant to leave, and imprisoned the Complainant for
questioning tl!l-e judge's impartiality.
28.
Secondly, he states that High Court Miscellaneous Civil Application No. 22 of 2004
was filed on 12 January 2004 and c;:ertified as urgent on 13 January 2004 when it
was referred to the ·chief Justice for further directions in terms of domestic
procedure. However, the Chief Justice purposely delayed until 6 June 2007 when
he eventually appointed a bench of three judges to hear the case on 27 June 2007.
By this date the next general elections were due in few months. The Complainant
avers that this was a deliberate ploy to allow the Speaker whose election he was
challenging to serve the entire term.
29.
Thirdly, he states that instead of hearing his originating summons on 27 June
2007, the three judges illegally permitted a private practicing attorney to
intercept his case midway by raising preliminary objections on behalf of the
National Assembly which was not a party to the case. On 7 December 2007 the
preliminary objections were upheld and the case was dismissed without a
hearing on the merits.
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30.
Fourthly, the Complainant states that despite the urgency of Civil A
of 2008, the Chief Ju~tice once again stalled for time until around 5
when he allowed the matter to be set down for hearing on 9 June 2 , ·','
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on 9 June 2009, the three judges of the Court of Appeal who were due to hear the
matter recused themselves and removed the urgency status of the matter.
Furthermore, he states that since then Civil Appeal 266 of 2008 has never been set
down for hearing. Similarly, Court of Appeal Civil Applications Nos. 320 of 2007 and
261 of 2007 have never been heard and determined despite the fact that they were
lodged as urgent matters. On the other hand, Court of Appeal Civil Application No.
NAI 260 of 2007 (UR 160 of 2007), an application for leave to appeal was only
heard on 23 February 2012 and a ruling delivered on 20 March 2012,
approximately five years after it was lodged on 23 October 2007.
31.
The Complainant also states that the Communication must be admitted because
local remedies are not available to him owi_n g to a "serious breakdown of trust
and professional etiquette" between the judiciary and him. He states that this
has been conclusively established by the Vetting of Judges and Magistrates
Board in its decision of 25 April 2012.
32.
Lastly, the Complainant submits that the Supreme Court, which is the apex
court, has already shut its door to him by its decision of 4 September 2012 in his
Supreme Court Appeal No. 2 of 2012.Jn this regard, no more remedy is available
to him. Alternatively, he must be deemed to have exhausted local remedies upon
the decision of.th~ Supreme Court.
Respondent State's Obseryations
33.
The Respondent State contends that this Communication does not comply with
Article 56(5) of the Charter relating to exhaustion of local remedies. It submits
that it is a well-established principle that international law does not replace
municipal law, and that international legal mechanisms are not intended to
replace national .judicial institutions. It cites Communication 306/05 - Samuel T
Muzerengwa and.11O others -(represented by Zimbabwe Lawyers for Human Rights) v
Zimbabive in which this Commission stated that
. . . the purpose of the rule of exhaustion of local remedies is to enable states
address alleged violations of human rights before international bodies. In
assessing whether states have been given this opportunii1J it is of prime
importance to make sure that they have been addressed on all the substantive
issues complained of and that the domestic procedures as provided by the laws of
the countnJ have been properly pursued, unless they are apparently unjust or
prolonged.2
to use was not apposite for the type of grievance he had. The High Court in
declining jurisdiction expressed the view that a constitutional reference or
petition under the Constitution was the appropriate procedure for the type of
remedies the Complainant was seeking.
35.
Respondent State further avers that the court dismissed Miscellaneous Civil
Application No. 22 of 2004 because it was scandalous, frivolous, vexatious,
irrelevant, contemptuous, an abuse of court process, and that it did not raise any
violation of the Complainant's rights. According to the Respondent State, the
court also opined that the heart of the application was the right to representation
and found that the Complainant had no right to ,choose counsel for the other
parties.
36.
Furthermore, the Respondent State submits that.in di?1riissing Court of Appeal
Civil Application No 2~0 of2007 (UR 160/200'7) the Cou,rt qf A,ppeal remarked that
instead of pursuing the substantive matter in Misceltanequs Civil Appiication No.
22 of 2004 in which he was challenging the .election qf the Sp'eaker, the
Complainant staged a frivolou:r side show ch,allenging the legal representatives
of the defendants thereby keeping ,the substantive matter pending before the
court. It states that the p:i.ling of tll~ ltigh Court and the Court of Appeal were
upheld by the Supreme Court. .·.·.·
37.
The Respondent State maintaJns that by pursuing challenges to legal
representatives for other parties tp his case, the Complainant ignored the
substantive matter ·which has not been. ~ealt with by any competent forum.
Accordingly, it submits, the Complainant has not exhausted local remedies. In
support of this submission, the Respondent State cites the Muzerengwa Case in
which theCommjssionheld that
... the Courts did not rule art the merits of the case but on both instances dismissed the
case on technzcalities. The reason the courts were not able to deal with the merits is
because the courts were approached to rule on procedural matters and thus Jailed to
raise the substantive issues before the domestic courts. 3
38.
In light of its submissions, the Respondent State prays that this Communication
must be declared inadmissible for failure to comply with Article 56(5) of the
Charter relating to exhaustion of local remedies.
Complainant's supplementary observations
constitutional references or applications in which he pleaded a carbon copy of
substantive issues pleaded in the present Communication. He states that in
moving the courts in Miscellaneous Civil Application No. 22 of 2004, Civil Appeal
No. 266 of 2008, Court of Appeal Civil Application No. NAI 261 of 2007, and Supreme
Court Petition of Appeal No 2 of 2012 among others, he pleaded violations of
provisions of the con,stitution including relating to his fundamental rights under
the then Constitution of the Respondent State. He produces to the Commission
various rulings relating to Miscellaneous Civil Application No . 22 of 2004, and a
decision in High Court Petition 584 of 2006. He states that despite lodging a notice
of appeal in Court of Appeal Petition 584 of 2006, the High Court has to-date
deliberately refused to supply certified copies of proceedings to enable him to
lodge a record of appeal to the Court of Appeal. Accordingly, he submits that
the Respondent State's submission that he did not lodge a constitutional
reference or petition is unsustainable.
40.
The Complainant reiterates his submissions that (a) local remedies are not
available to him because of serious Breakdownpftrust ahd professional etiquette
between him and the judiciary;, and (b) ·domestic;/procedures have been unduly
prolonged. He prays that the Communication should be declared admissible.
The Commission's analysis on admissibility
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41.
A Communication submitted to the Commission under Article 55 of the Charter
must satisfy the seven admissibility conditions stipulated under Article 56 of the
Charter. It is well established that the conditions under Article 56 of the Charter
are cumulative and must all be satisfied for a Communication to be declared
admissible. Consequently, if one of the conditions is not met, the
Communication will be declared inadmissible entirely or in the respects that it
does not satisfy a given condition or condition(s). The Complainant must
accordingly aqdress all the admissibility requirements, and the Respondent State
must address the requirements, as necessary. Where this is not the case, the
Commission still examines the admissibility of a Communication in respect of
each condition based on the available information. 4
42.
The Commission notes that in the present Communication both parties have
advanced submissions on exhaustion of local remedies only. Nevertheless, the
Commission has examined the Communication in respect of the rest of the
conditions. In this regard it notes that the Complainant indicates himself as the
author in compliance with Article 56(1) of the Charter. The alleged violations as
outlined at paragraph 14 above raise prima facie violations of the Charter which
occurred within the Respondent State at a time when it was already a State Party
to the Charter. Article 56(2) of the Charter is satisfied. Neither the Respondent
State nor the Commission has reckoned any disparaging or insulting language
in terms of Article 56(3) of the Charter. The Communication is not exclusively
based on news disseminated through the mass media in compliance with Article
56(4) of the Charter.
43.
Regarding Article 56(5) of the Charter, the requirement is that Communications
must be sent to the Commission after exhausting local remedies, if any, unless it
is obvious that this procedure is unduly prolonged.
44.
The Complainant's first contention is that domestic remedies have been unduly
prolonged spanning a decade. The Commission notes that the Respondent State
does advance direct observations on this point. The closest its submissions come
to this point is that the Complciinant is responsible for the delay in adjudication
of Miscellaneous Civil Application No. 22 of 20V4 on the substance because he
concentrated on "side shows" challenging the legal representation of the
defendants.
45.
The Commission has examined the record of the relevant domestic proceedings
to ascertain the causes of the delay, and whether such delay is attributable to the
Re$pcindent State or the Complainant. In this regard, the Commission notes that
the Complainant's first attempt to have his alleged grievance adjudicated upon
was High Court Civil Application No. 554 of2003 which was filed on 23 May 2003,
about four months since the impugned events occurred on 9 January 2003.
Notably, the case was dismissed because the court considered it to have been
commenced using the wrong procedure and the remedies sought could not issue
against Parliament. The High Court opined that the appropriate procedure was
by way of a constitutional reference or petition. Indeed, despite the
Complainant's suggestion that the judge had an interest in the matter and that
the refusal of jurisdiction was wrong, the Complainant did not seek to appeal
against the decision immediately or after his release from prison. Instead, he
seemed to have agreed with the court's suggestion and eventually filed High
Court Miscellaneous Civil Application No. 22 of 2004 on 12 January 2004 as a way of
instituting a constitutional application under section 84(1) of the Constitution.
46.
of the court, the Complainant was sentenced to one week imprisonment. 5 There
is nothing indicating that this period of imprisonment was extended. After
serving his jail term, the Complainant took about six months until 12 January
2004 when he lodged a constitutional application being High Court Miscellaneous
Civil Application No 22 of 2004. He does not proffer any explanation for taking
that long before commencing the appropriate proceedings. Clearly, the period
up to 12 January 2004 cannot be attributed to the Respondent State.
47.
Concerning Miscellaneous Civil Application No 22 of 2004, the Commission notes
that the matter was referred to the Chief Justice on 13 January 2004 for directions,
which included the constitution of a bench of three judges to sit as a
Constitutional Court. Despite having been certified as ~rgent, the Chief Justice
stalled the matter and only issued the necessary directions on 6 June 2007. The
Respondent State does not offer any explanation for the Chief Justice's delay of
close to three years and five months in issuing the necessary'directions.
48.
Further, after Miscellaneous ,Civil Application No 22 of 2004 was dismissed on 7
December 2007, the Complainant immediately filed a notice of appeal in the
High Court. However, he was on1y able to lodge the actual appeal in the Court
of Appeal on 18 Dec~mber 2008 (Civil Appeal No. 266 of 2008). There is a period
of one year between the date of lodging a notice of appeal in the court a quo and
the date of lodging the actual appeal in the court ad quern. The Complainant has
produced a series of letters spanning the entire one year in which he was
requesting the •Registrar to avail him with certified copies of the record of
proceedings in the High Court to enable him to lodge a record of appeal in the
Court of Appeal. There is no explanation from the Respondent State as to why
the Registrar took so long to provide the record of proceedings.
49.
Furthermore;. the Complainant alleges that after lodging Civil Appeal No 266 of
2008 on 18 December 2008, the Chief Justice once again stalled for time until 5
March 2009 when he permitted the appeal to be set down for hearing on 9 June
2009.
50.
On 9 June 2009, the judges who were empanelled to hear the appeal recused
themselves. Since then, Civil Appeal No 266 of 2008 has never been set down for
hearing. At the time of submitting this Communication, Civil Appeal No. 266 of
2008 had been pending for almost five years. The Complainant would have all
this delay attributed to the Respondent State. On its part, in arguing that the
5 After the ruling dismissing Civil Application No. 554 of 2003 was read out on 2
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Complainant is on record to have said the following to the judge: "I am not happy. T
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weeks to 7:1rite aruling. It was ~o consult and must have been directed to ~;lp these people. Wl'll_
I am saying you are ven; unfaLY to me and you can cite me for contempt , upon which the J _
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Ngoge is obviously in contempt of court. He is ordered to be imprisoned for one week."
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Complainant has not exhausted local remedies as the substantive matter is still
pending before the domestic courts, the Respondent State suggests that the
Complainant is responsible for delaying the disposal of the substantive matter
as he abandoned it for a side show. The side show in question is his application
challenging the legal representatives of the respondents to his case.
51.
From the facts outlined at paragraphs 6 - 12 above, the Commission notes that
the Complainant indeed took quite some measures that could have had the effect
of stalling the progress on (1) Miscellaneous Civil Application No. 22 of 2004 when
it was revived with the issuance of directions by the Chief Justice on 5 March
2007; and (2) Civil Appeal No 266 of 2008.
52.
However, upon a dose examination, the Commission is not convinced that the
Complainant's so called "side show" is responsible for the relevant delays. Even
though the chamber summons filed on 8 October 2007 frustrated the hearing
scheduled for 9 October 2007 (hearing of his response to the preliminary
objections to the substantive matter), the High ~ourt dismissed the chamber
summons the same day and rescheduled hearing of his response to the
preliminary objections on 30 October 2007, ju.st about 21 days afterwards. Thus
despite the chamber application of 8 October 2007, the court was able to dispose
of the application and proceed with reasonable expedition. Further, the
injunction he \sought by Civil Application No NAI 261 of 2007 (UR 161 of 2007) to
stop the High Court from proceeding with the hearing on 30 October 2007 was
not granted. The_apP,lication has never been heard and determined to date. The
High Court was thus not barred from proceeding. Indeed it was able to proceed
with the hearing scheduled on 30 October 2007. Furthermore, Court of Appeal
Civil Application No. 320 of 2007 (UR, 221 of 2007) in which he sought to stay the
ruling of the High Court dismissing the substantive matter, was and has never
been heard. The respondent State does not offer any explanation for the courts'
failure to determine this application despite its supposed urgency. As a result,
the High Court's ruling dismissing Miscellaneous Civil Application 22 of 2004
remains in force. It is not suggested that the application for stay in any way
impacted determination of Civil Appeal No. 266 of 2008 which was an appeal
against the dismissal of Miscellaneous Civil Application No. 22 of 2004.
53.
Moreover, whereas the Complainant pursued his challenge to opposing counsel
by applying for leave to appeal on 23 October 2007 (Court of Appeal Civil Appeal
No. NAI 260 of 2007), this application only came up for hearing on 23 February
2012, four years and four months after it was lodged with the Court of Appeal.
There is no indication that hearing of Civil Appeal No. 266 of 2008 wa~.ffij;[·"' ~
pending determination of Civil Appeal No. NAI 260 of 2007. In this ; .f;c¢'/ E'illl1b;"'i'l~
Appeal No. NAI 260 of 2007, termed a "side show" by the domestic jlrts c~!;;P·P~ '(li1\
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also be cited as the reason for the undue delay in disposing of Civil Appeal No.
266 of 2008.
54.
Thus in summary, it is the Commission's findings that: (a) Miscellaneous Civil
Application No. 22 of 2004 was initially delayed by the Chief Justice; (b) the
Complainant's challenge to opposing counsel (the so called side show) did not
delay Miscellaneous Civil Application No 22 of 2004 as (i) the High Court dismissed
the challenge and proceeded to deal with the preliminary objections to
substantive matter, and (ii) the challenge did not prevent the courts from
proceedings with Miscellaneous Civil Application No 22 of 2004, including when it
became Civil Appeal No. 266 of 2008; (c) in the circumstances the delays are
attributable to the Respondent State which (d) does not offer a convincing or any
justification for the delays. Consequently, the procedures for local remedies are
unduly prolonged. This applies to clai1n_s "(a), "(b)", "(c)", "(e)", "(g)", and "(h)"
as enumerated at paragraph 16 above,Jn respect of which he sought to present
his grievances for adjudication.
55.
The undue prolongation does not apply to c;:laim " (d)" pertaining to the
imprisonment for contempt of court. The C_o mplainant does not state that he
made any attempt to challenge the imprisonment by way of appeal, or in
separate subsequenfproceedings, or, indeed in Miscellaneous Civil Application No
22 of 2004- as a violation of his rights. The Complaina~t does not suggest that it
was impossible to do so. Accordingly, the Complainant did not exhaust, let alone
attempt, local remedies regarding his imprisonment for contempt of court. This
admitted
pal'ticular claim cannot be
.
. cm. .the pretext that procedure for local
remedies .was unduly prolonged, for no procedure was engaged.
56.
On the other hand, the complaints about the High Court's decision permitting a
private lawyer to intervene and raise preliminary objections to his substantive
case, and the Court's refusal to grant him leave to appeal against that decision
(claim "(f)" at para. 16 above), are admissible because the Complainant
ultimately exhausted local remedies. Notably the High Court's refusal of leave
to appeal gave rise to Court ofAppeal Civil Application No. NAI 260 of2007 in which
sought the leave from the Court of Appeal. This application stalled for 4 years
and 4 months before it was heard on 23 February 2012 and a decision rendered
on 20 April 2012. Had the Complainant submitted the present Communication
in the intervening period, a case could probably have been made about the
procedure being unduly prolonged. He did not. He waited. More importantly,
when the Court of Appeal rendered its ruling on 20 April 2012, he pursued the
-----=---issue further by lodging Petition No. 2 of 2012 in the Supreme Court,
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judicial body for the Respondent State. The Supreme Court dismisse •
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No. 2 of 2012 on 4 September 2012. There was no further remedy to be pursued
and he exhausted local remedies in this regard.
57.
Similarly, claims "(i)" and "Q)" impleads the composition of the Supreme Court
and the way it disposed of Petition No. 2 of 2012. Neither the Respondent State,
nor the Complainanthas indicated that there is a procedure for a remedy against
these claims before the Supreme Court itself or courts subordinate to it. The
Commission concludes that there is no remedy to be exhausted and Article 56(5)
is accordingly satisfied in respect of these two claims.
58.
In light of the foregoing, the Respondent State's contention that the Complainant
wasted time pursuing a side show and thus neglected to exhaust local remedies
in respect of the substantive matter; and the implicit suggestion that the
prolongation of domestic procedures is attributable to the Complainant cannot
be sustained. Moreover, the respondents to the domestic proceedings raised
preliminary objections which preoccupied the courts-and led to the dismissal of
the substantive matters. As the Commission has found, 'with the exclusion of the
claim relating to imprisonment for contempt of court, domestic procedures were
unduly prolonged in respect of some of the claims, while domestic remedies
were exhausted or notavailable in ,respect of the remainder of the claims.
59.
In the circumstances, the Commission does not find it necessary to consider the
Complainant's conte,n tion that domestic remedies are not available owing to a
"serious breakdown of trust and professional etiquette."
60.
Lastly, the Commission notes that both Parties do not raise issues with respect
to the requirements of Article 56(6) and (7) of the Charter. For its part, the
Commission notes that the Supreme Court rendered its decision in Petition No. 2
of 2012 on 4 September 2012. The present Communication was submitted in
October and November 2012, utmost about three months after the decision of the
final court of the Respondent State. The Commission considers that the
Communicatio~·satisfies Article 56(6) of the Charter.
•
61.
Similarly, the Commission has neither been drawn to, nor of its own motion
come across any indication that the subject matter of the present Communication
has been settled in , terms of Article 56(7) of the Charter. Accordingly, the
Communication meets the requirement of Article 56(7) of the Charter.
Decision of the Commission on Admissibility
62.
Article 56 of the Charter except the complaint relating to imprisonment for
contempt of court.
MERITS
Argument of the Complainant
63. The Complainant alleges that:
A. By refusing to place his application to be elected speaker on the 18 th of
February 2003, at what he alleges to have been the first time the parliament
was lawfully constituted, the Respondent State:
i.
Discriminated against him contrary to the\African Charter;
11.
Subjected him to psychological torture and degrading treatment not
befitting his status as an· ~dvocate and· contrary to Article 5 of the
Charter as read with Article of the UN Basic Principles on the Role
of Lawyers;
iii.
Curtailed his civil and political rights enshrined in Articles 13(1), (2)
and (3) of the Charter and;
1v. Subverting h~s social-economic rights and right to development
co;11trary to Articles 22 and 24 of the African Charter
,
,
B. By declaring Mr: Francis Kaparo as the Speaker of the 9th National Assembly
on the 9th of January 2003, without going through elections before a fully
composed and-f_ully constituted National Assembly, the Respondent State
discriminated against him co11.tr~ry to Article 3 of the African Charter;
C. By systematically and meth9dologically blocking valid presentation of his
application seeking to be elected as speaker before a properly composed
and constituted 9th parliament on the 18 th of February 2003, the Respondent
State discriminated against him contrary to Article 3 of the Charter and
subjected him to unlawful treatment and mental torture within the meaning
of Article l of the Convention Against Torture;
D. The conduct of the national courts was incompatible with the charter. He
raises issue with the different proceedings and judgments in the domestic
courts of the Respondent States which are all detailed below:
i.
Nairobi HC Misc Application No.554 of 2003- His rights under
Articles 3, 5 and 7 of the Charter were violated in the court held brief
for the Respondnent State by finding that the Parliamentary
proceedings of the 9th of January 2003 were constitutional. The
Complainant
alleges that the court's decision on the merits a ,~tl ()::.:r-rnt:--.
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on the plausibility of his case was contrary to the rul
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justice. He further alleges that the Court did not
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contrary to the court's findings, it did have jurisdiction to grant his
leave to review Parliament's conduct and that if the court did not
have the jurisdiction, it should not have proceeded to decide the
11.
iii.
1v.
v.
issues on the merits, as alleged.
Nairobi HIGH Court Miscellaneous Civil Application No.22 of 2004The Complainant alleges that his rights under Articles 3, 5 and 7 were
violated by the Chief Justice not appointing a judge to hear his urgent
application to challenge the election of Mr. Francis Kaparo as the
Speaker until 6 months prior to the next election, rendering his
matter academic and overtaken by events. He further alleges that
these same rights were violated when the court allowed Mr. George
Oraro to represent the National Assembly and present preliminary
objectives despite not being named in the suit.
Nairobi Court of Appeal Civil Appeal No.266 of 2008, Nairobi Court
of Appeal Civil Application No. NAI 261 of 2007 [UR 161 of 2007]
and Nairobi Court of Appeal Civil Application No. NAI 320 of 2007
[UR220 of 2007]-The Complainant alleges that the Registrar of the
High Court intention.ally delayed supplying him with a record for
HC Application No.22 C>r 2004 for a year in order to delay his appeal
in violation of his rights under Article 3 and 5 of the Charter. He
further alleges violatiol)/ Of Articles 3 and 5 in the delay in the
appointment of a bench to hear his appeal by the Chief Justice and
the subsequent de-rolling of the app~al after the judges disqualified
themselves from hea:ring it. The Complainant contends that
--~
Applications 261 Of 2007 and 320 of 2007 were both dismissed
without merit.
Nairobi Court of Appeal Civil Application No. NAI 260 of 2007
[UR160 of 2007]- The Complainant alleges a violation of his rights
under ,Article 3,5, and 7 in that the court did not hear this case for
over four years, refused to certify it as urgent and ultimately,
erroneously as he alleges ruled on the merits instead of only on his
application for leave. He further alleges that Judge Bosire who was
part of the bench that disqualified themselves from hearing Appeal
266 of 2008 was also on the bench for this case, which he alleges to be
contrary to the rules of natural justice.
Supreme Court Petition of Appeal No.2 of 2012- The Complainant
alleges that his rights under Article 3, 5 and 7 of the Charter were
violated when the Supreme Court held in this case that they did not
possess the jurisdiction to hear his appeal. He further contends that
it was contrary to the rules of natural justice to have ~
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Njoki Ndungu preside over this petition when shew ,, fie
MPs nominated by the President in the disputed 9th p
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E. Mr. Ngoge Contends that the Respondent State violated his rights contrary
to Articles 3, 5, 8, 15, 19, 22 and 24 of the Charter in that he was barred from
practicing law and his law firm wound up, which he alleges to be a reprisal
for exposing wrongdoings in the election of Mr. Francis Kaparo as Speaker
of Parliament. He alleges that he was also arrested as punishment for the
same.
F. Finally, the Complainant contends his rights to liberty and socio-economic
rights have been violated in that he is in fear of being under surveillance
and forcibly disappeared by the Security agents of the Respondent State. He
also alleges that he is being deprived of public service work and presidential
appointments as a reprisal for the exposure o~ wrongdoings in the election
of Mr. Francis Kaparo as Speaker of Parliament.
64. The Respondent State did not submit its observation; on the merits of this
communication, accordingly, the Commission willip thi,s regard adopt a default
decision utilising the information before it.
'
-'·
THE COMMISSION'S FINDINGS ON THE ALt EGATIONS .
The matter of the election of the Speaker of Parliament-on the 9th oflanuary 2003
65. The Complaint submits in the main that his application is primarily based on the
Constitutionofthe
Respondent State.
interpretation of the then
I
•
/
66. The analysis on these issues will be limited
to whether the alleged acts or omissions
..
of the Respondent State breach the pro:visions of the Charter. The Complainant
alleged that it was mandatory and urgent under Sections 31,33, 37, 58(3) and 82 of
the Kenyan Constitution for the then President, H.E Mwayi Kibaki to gazette the
nominated MPs immediately after the General Election of 2002 and prior to calling
for the sitting of the:n.e:w parliament. As a consequence, he submits that the session
of Parliament that.the; President convened, and the election of the Speaker in the
absence of the nominated MPs was ab initio a nullity for want of constitutionality.
•
.
67. The Commission notes that despite the Complainant's charge against the
proceedings of the 9th of January 2003, he as a matter of fact participated in those
elections which he now disputes. 6 According to the Parliamentary Hansard of the
contested Parliamentary Proceedings, the Complainant earned 2 votes in the
election that was won by Mr. Francis Kaparo.7 It is clear from this record that Mr.
Ngoge did not in fact have any issues with contesting at the election but seems to
have realised its alleged illegality after he had been unsuccessful in his bid. This is
further buttressed by the fact that despite basing his entire Complaint on the
alleged disenfranchisement of Nominated MPs, he himself was not one and as
such did not have a reql and substantial interest in that.
68. The Commission notes that the Complainant also alleges that his application to be
speaker was blocked on the 18 th of February 2003, the date he considered to be the
legitimate first session of Parliament. It must be understood that there was no
election for the Speaker of Parliament on the 18 th of February 2003. The
Complainant unilaterally appointed this to be the date he would have liked the
Speaker to be elected, this is of no legal consequence.
69. What remains to be determined is whether the Complainant's argument on the
exclusion of the Nominated MPs obtains, despite having no apparent interest and
despite participating in the proceedings,. The Commission notes that the question
of the legality of the January 9 Parlia1ftentary prcKeedings was decided in the
domestic Courts of the Respondent State,8 which, decisions the Commission find
to be plausible. In Miscellaneous Application No.554 of 2003, the High Court in
Nairobi heard the Complainanfs Application9 £01: leave to judicially review the
business conducted by the parliament on the ,9th ofJanuary 2003. The Complainant
also prayed for declarljltions for the issue of orders. of certiorari, mandamus and
prohibition. 10 The Cou,rt while deciding cm the pfausi~ility of the application for
leave, clarified the· meaning of !he term "prorogue" ln its obiter dictum, a term
whose meaning the Applicant's contention relies majorly on. The Court mentioned
that Prorogation did not mean dissolution but rather adjournment. 11
70. The Commission notes _that the effect of this decision is to clarify one of the
confusions regarding the legaLity ofJ he 9th of January proceedings, specifically
whether Legal Notice 112 proroguirig Parliament had the effect of nullifying the
proceedings as argued 13 by the Complainant. The Complainant had argued that
Legal Notice 1. The Commission considers this reasoning to be succinct.
Prorogation as the Court pronounced does not dissolve Parliament, it simply
adjourns it.
71. The Applicant then subsequently filed another petition to the High Court under a
Constitutional reference in Miscellaneous Application 22 of 2004, seeking
declarations to the effect that the 9th January proceedings were null and void, inter
alia. The Court in that matter found merit in the preliminary objectives raised by
the Clerk of the National Assembly who was named as the second respondent in
that matter. The Court •decided that:
A. At the time of the election of the speaker, parliament was lawfully
constituted as S56(2) of the constitution empowers the National
assembly to act notwithstanding a vacancy (including a vacancy not
filled when the assembly first meets after a general election);14
B. The President has discretion to appoint the date for the first sitting of
Parliament;15
C. Having participated in the elections <;m the 9th of January 2003, the
Complainant's suit was a frivolous .a:b4.se of the c,o urt process;16
D. Parliamentary process is governed 'by' the sJa:ih.ding
Orders and an
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intervention by the courts would contravenerh~.,sepairation of powers;17
E. The Complainant's case had been overtaken by events as the Parliament
had been dissolved _on the 22nd of October 2002;'18
F. The Complainant had not deqionstrated any violation of his
fundamental rights specif.ically the allegation of discrimination as he
participated in the election. 19
~,
.;.
72. The Commission associates with. th~se findings whose fundamental effect is to put
to rest the matter of the legality o~. the January ? proceedings. The Commission
notes with approval the court's finding that the absence of the nominated MPs did
not preclude Parliament from acting as th~y were expressly empowered by the
Constitution to do so and that in any event, the timing of the obligation to
nominate the Nominated MPs was subject to the President's discretion. The
Commission is convinced that the proceedings of the 9th of January were not
unconstitutional, as. alleged by the Complainant. Being the sole basis of the
Complainant's allegations ofviolations of his rights under the Charter, there is no
reason to proceed; However, the Commission finds it prudent to clarify the
meaning and scope of the provisions alleged to have been violated by the
Complainant.
•
!.
·,_,
Alleged violation of Article 3 of the Charter
14 Page 22,(Complainant's submissions, Vol.4 Civil Appeal No. 266 of 2008, page 1823)
15 Page 23 (Complainant's submissions, Vol.4 Civil Appeal No, 266 of 2008, page 1823)
16 Page 24 (Complainant's submissions, Vol.4 Civil Appeal No. 266 of 2008, page 1823)
17
Page 27 (Complainant's submissions, Vol.4 Civil Appeal No. 266 of 2008, page 1823)
18 Page 29 (Complainant's submissions, Vol.4 Civil Appeal No. 266 of 2008, page 1823)
19 Page 38(Complainant's submissions, Vol.4 Civil Appeal No. 266 of 2008, page 1823)
73. The Complainant alleges that his rights under Article 3 have been violated. The
provision states that
1. EvenJ individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.
74. In Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and
Development (on behalf of Andrew Barclay Meldrum) v Republic of Zimbabwe,
the Commission held that: 2D
Article 3 guarantees fair and just treatment of individuals within the legal system of a given
countn1, whereby even; individual is equal before the law and guaranteed equal protection of
the law.21
75. The Commission has interpreted Article 3(1) as follows:
The right to equalihJ before the law means that individuals legally within the jurisdiction of a
State should expect to be treated fairly and justly within the. legal system and be assured of
equal treatment before the law and equal enjoyment of the rights q_vailable to all other citizens.
Its meaning is the right to have .Jhe. same procefi.ures and principle5:qpplied under the same
conditions. The principle that all pefson_s are equal before the law mea~) that existing laws
must be applied in the same manner to those subject to them. The right to equalihJ before the
law does not refer to the content of legislation, but rather exclusively to its enforcement. It
means that judges and administration officials may not act arbitrarily in enforcing laws.
76. With regards to Article 3 (2), the'Commission held that:
"Equal protection of the law means that rio person or class of persons shall be denied the same
pro.tection of the laws which is enjoyed by other persons or class of persons in like circumstances
in their livesi liberhJ, properhJ and in their pursuit of happiness"22
77. The Commission quoted its findings in Communication 293/04, reiterating that:
" .. .equal protection of the lqw refers to the right of all persons to have the same access to the
law and courts and to be treated equally by the law and courts, both in procedures and in the
substance of the law. It is akin to the right to due process of law, but in particular applies to
equal treatment as an element offundamental fairness ."23
78. In Meldrum, the Commission established a general test for assessing whether a
violation of Article 3(2) has occurred. In evaluating whether the Complainant's
deportation violated his rights, the Commission asked "Given the treatment Mr
Meldrum was expose~ to, would it be argued as the Respondent State does, that
1/.0'~~iA:;,----20 Egyptian Initiative (2006) para 173
1~,1..''°'"'~cR.ET AR,,1;"'o "'<"
Communication 294/2004 para 95
(/4/
ZLHR & IHRDA v Zimbabwe para 99
ff
23 Meldrum (2004) para 100; Zimbabwe Lawyers for Human Rights and the Institute fo~
Rights and Development in Africa v. Republic of Zimbabwe
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he was able to access the courts and therefore was given equal protection of the
law?" 24
79. In Meldrum the Commission also reiterated the burden incumbent on
Complainants in alleging violations of Article 3:
In order for a parhJ therefore to establish a successful claim under Article 3 (2) of the Charter,
it should show that the Respondent State had not given the Complainant the same treatment it
accorded to the others. Or that, the Respondent State had accorded favourable treatment to
others in the same position as the Complainant. 25
80. The Commission notes that the Complainant made factual assertions to the effect
that his right to equality before the law and equal protection of the law were
violated without demonstrating tangible grounds for that conclusion. The
Commission thus recalls the judgements of the African Court in Kemboge v
Tanzania 26 and Evarist v Tanzania 27 reiterating the trite principle that allegations
of the violation of the right to equal protection,of the law require substantiation.
81. The Commission notes that whilst ' the Complainant .alleges that . there was
differential treatment in the way the law was applied, this simply was not the case.
Firstly, the Complainant did in fact contest in the election to be the Speaker of
Parliament on the 9th of January 2003 as has already been established above. His
claims of unequal application of the law in the decl_a ration of Mr. Francis Kaparo
as Speaker of Parliame!lt are unfounded. Secondly, the alleged refusal or blockade
of his bid to be the Speaker of Parliaqent did not violate his rights under Article 3
because there was simply no election of a Speaker of Parliament on the 18 th of
February 2003, no other person contested to be the Speaker on that date. The
Complainant was therefore not prejudiced by the general application of the law,
in fact admitting his bid to cont~st,as ,S peaker on that date would have accorded
him preferential treatment by the law and render him unequal to others.
82. The Complainant contends that the Courts applied the law selectively to deny him
its protections. The Commission notes that the High Court in Nairobi HC Misc
Application No.554 of 2003, did not decide on the merits as alleged but simply
decided on the Application for leave to judicially review, finding that it had no
jurisdiction to order judicial review against parliament. The Commission notes
that the Court did not declare the 9th of January Proceedings constitutional on the
merits but simply clarified, as obiter, that prorogation did not amount to permanent
dissolution of the house and nullification of its proceedings as alleged but simply
adjournment. The Commission is not convinced that the Nairobi HIGH Court in
Miscellaneous Civil Application No.22 of 2004 violated the Complainant's ri ts
24 Meldrum (2004) para 95
25
Meldrum (2004) para 101
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under Article 3 by allowing the Clerk of Parliament to be represented by their
Counsel of Choice. The Commission is also of the opinion that the Complainant
has not proven that the delay in this case, as well as in Nairobi Court of Appeal
Civil Appeal No.266 of 2008 and Civil Application No. NAI 260 of 2007 [UR160 of
2007] was specific to him as would be required to establish differential treatment
by the Courts.
83. The Commission also notes that the Complainant at all times enjoyed unfettered
access to the law and courts and that his personal dissatisfaction cannot amount to
legal grounds to conclude that his right to equality before the law was violated,
especially without evidence of unequal treatment. The Commission considers that
the Complainant was neither the victim of unequal application of the law nor
denied its equal protection. Accordingly, the Commission finds no violation.
84. The Commission further notes that although Mr. Ng<?ge d?es ,n ot ~llege a violation
of Article 2 of the Cha!ter in the mc;1in, he does make ccn1stant reference to being
discriminated against. The Coinmission takes not that in the absence of compelling
evidence of differential treatment, a finding of discriminatioh under Article 2
cannot be made.
85. In view of the foregoing, the Commission, notes that ·no violation of Article 3(1)
occurred.
Alleged violation of Article 5 of the Charter
86. The Complainant alleges that the Respor1dent State has violated his rights under
Articles oftlieCharter in that they have subjected him to psychological torture by
denying him his r.ight to contest to be the Speaker of Parliament of the Republic of
Kenya and by declaring Mr. Kaparo to be the Speaker of Parliament, as it were. 28
He also allegesthat all the subsequent Court findings making the Conclusion that
Mr. Kaparo was indeed lawfully elected also psychologically tortured him.
87. Article 5 of the Charter provides that:
Every individual shall have the right to the respect of the dignihJ inherent in a human being
and to the recognition of his legal status. All forms of exploitation and degradation of man
particularly slavery, slave trade, torture, cruet inhuman or degrading punishment and
treatment shall be proh'i.bited.
88. The Commission has reiterated in Sudanese Civilians in South Kordofan and Blue
Nile (represented Sudan Democracy First Group, REDRESS, Human Rights
Watch, INTERIGHTS and Enough Project) v Sudan that Article 5, a co ~ ..
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non-derogable right, 29 guarantees respect for the dignity inherent in ·.,, '11uma,n,;""o~
28
29
Complainant's submission in general
Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007) para 98
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person and the recognition of his or her legal status, and further prohibits all forms
of exploitation and degradation of man or woman, including slavery, slave trade
and torture, cruel, inhuman or degrading punishment and treatment. 30
89. It is prudent under these circumstances to revisit the definition of torture. The
definition provided by the CAT which the Commission has endorsed and adopted
reads as follows:
For the purposes of this Convention, the term "torture" means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession, punishing him for an act
he or a third person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on di_scrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or withfhe consent or acquiescence
of a public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions. 31
90. The essential elements of torture, which must be proven by ,a Complainant are
a) severe pain or suffering has to have been inflicted;
b) the severe pain or suffering must have been inflicted intentionally;
c) this must have been inflicted for a specific purpose, su~h as to obtain information, as
punishment or to intimidate, or for any.reason ba~ed on discrimination; and
d) this must have been inflicted by or at the instigation of or with the consent or acquiescence
of state authorities.32
91. Psychological torture, which is alleged by the Complainant has not been strictly
defined under the Charter but the Commission notes that its definition of torture
refers to the infliction of pain or suffering, whether physical or mental. The InterAmerican Court in Urrutia v. Guatemala, discussed psychological torture:
91. The Court also underscores that, the elements of the concept of torture established in Article
2 of the Inter-American Convention against Torture include methods to obliterate the
personalihJ of the victim in order to attain certain objectives, such as obtaining information
from a person; or intimi,dation or punishment, which may be inflicted through physical violence
or through acts that produce severe mental or moral suffering in the victim.
92. An international juridical regime of absolute prohibition of all forms of torture, both
physical and psychological, has been developed and, with regard to the latter, it has been
recognized that the threat or real danger of subjecting a person to physical harm produces,
under determined circumstances, such a degree of moral anguish that it may be considered
"psychological torture." The absolute prohibition of torture, in all its forms, is now part of
international jus cogens.
93. Likewise, the Court considers that, according to the circumstances of each particular case,
some acts of aggression inflicted on a person may be classified as mental torture, particularly
acts that have been prepared and carried out deliberately against the victim to eliminate his
mental resistance and force him to accuse himself of or confess to certain criminal conducts, or
to subject him to other punishments, in addition to the deprivation offreedom itself
94. In the case sub judice, it has been proved that Maritza Urrutia was subjected to acts of
mental violence by being exposed intentionally to a context of intense suffering and anguish,
according to the practice that prevailed at that time,33
92. The Commission turns to consider whether the facts presented by the Complainant
establish a situation of psychological. torture. The Commission has held that
complainants before it bear the initial onus qf laying a fact~al foundation in
support of their allegations especially, allegations ~f torture under Article 5, which
it has found must be substantiated by the persons makingthem. 34
93. The Commission notes that the Complainant has not presented a factual pattern
corroborated by cogent evidence which demonstrate torture with the meaning of
Article 5 of the Charter as read with Article 1 of the CAT. The Commission enjoins
complainants to "make precise allegations of facts by attaching relevant
documents, if possible, and avoid making allegations in general terms." 35 Despite
the Commission's decip.edly lower threshold in which torture is defined as widely
as possible, the complainant's case stiU fails.
94. In the present case, the Complainant has only claimed experiencing "psychological
torture" arising from the election of Mr. Francis Kaparo as Speaker of Parliament
on the 9th of January 2003 and the subsequent confirmations made by the Courts
to this effect. From a reading of the Complainant's arguments on the merits, the
Commission cannot pick out any evidence of the Complainant's psychological
pain or suffering intentionally inflicted by the State or its officials. Moreover, the
Commission does not consider the facts relied on by the Complainant to amount
to an attack on his inherent human dignity and the recognition of his status as a
person. Accordingly, the Commission is not convinced that the Complainant's
right to freedom from torture was violated.
~gations on the violation of Article 6 of the Charter
95. The Complainant alleges that the Respondent State violated Article 6 of the Charter
because he had a reasonable fear that he was being pursued by State Security and
would be forcibly disappeared as a reprisal for exposing the wrongdoings of senior
Government officials. 36 Article 6 of the Charter reads:
Even; individual shall have the right to liberty and to the security of his person. No one may
be deprived of his freedom except for reasons and conditions previously laid down by law. In
particular, no one may be arbitrarily arrested or detained
96. The Commission notes that the Complainant's allegation is not based on any
conduct or omission of the Respondent State as it where but rather on a fear he
harbourers. The Commission recalls the age-observed principles of International
Law on State Responsibility that a State Party'may only he :responsible for breach
of an International duty for specific conduct or omission thcit is attributable to it.37
For responsibility to be attributed, there must be condu.~t or absence thereof (in
breach of an international obligation to be spoke11- qf. Furthermore, the
Commission may not find a violation of the Charter for perce1v:~d future conduct.
97. In the absence of any allegation of an acJ or omission that breaches Article 6 of the
that the Respondent State has not committed a
Charter, the Commission finds
·.
violation.
-.,
Alleged violations of Article 7 of the Charter
98. Article Z,of the Charter provides:
1. EvenJindividual shall have the right to have his cause heard. This comprises:
a. the rig/it to an appeal to competent national organs against acts of violating his fundamental
rights as reccwnized and gua!anteed by conventions, laws, regulations and customs in force;
b. the right to be presumed innocent until proved guilhJ by a competent court or tribunal;
c. the right to defence, including the right to be defended by counsel of his choice;
d. the right to be tried within a reasonable time by an impartial court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally
punishable offence at the time it was committed. No penalhj may be inflicted for an offence for
which no provision was made at the time it was committed. Punishment is personal and can be
imposed only on the offender.
99. The Complainant alleges a violation of Article 7, he claims in Nairobi HC Misc
Application No.554 of, 2003, the Court "was holding brief for the [Respondent]
State" in deciding on the merits as opposed to on the plausibility for leave to
review, and further that the Court did not consider his submissions in their ruling.
The Commission has determined in its analysis above, that the Court's ruling was
limited to the Leave for Judicial Review and that the mere definition of the word
"prorogue" as obiter may not be considered a substantive finding on the Merits.
The Commission notes that the finding of the Nairobi High Court in Misc
Application No.554 of 2003 that it did not have jurisdiction to issue either Leave
for review against Parliament38 and or the declarations sought by the Complainant,
39 was reaffirmed by the Nairobi Court of appeal in Civil Application No. NAI. 260
of 2007. The Communication is not persuaded by the:Complainant' s contention.
100. It is alleged by the Complainant that the allocation of Judge Bosire to the bench
of Nairobi Court of Appeal Civil Application No. NAI 260 of 2007 [UR160 of 2007]
when he had disqualified himself from hearing Nairobi . Court of Appeal Civil
Appeal No.266 of 2008 contravened the rules of Natural justice. The Complainant
does not specify what he means by said disqualification, what its. implications are
or what the legal grounds for it are. Nonetheless, the Commission recalls the
contents of its Fair Trial guidelines which provide that:
d) The impartialihJ,of a-judicial body would be undermined when:
(iv) a judicial official sits as member of an appeal tribunal in a case which he or she decided or
participated in a lower judicial body.
101. The Commission considers that the Complainant has not proven how the act of
"disqualifying" himself rendered Judge Bosire not impartial. The Commission is
also not convinced that Judge Bosir'e can be said to have participated in the
proceedings in Appeal 266. It is the view of the Commission that the Complainant
has not pleaded a factual pattern that merits a conclusion on the substance of these
allegations. Accordingly, the Commission does not consider itself to have enough
information to decide on this allegation.
102. Similarly, the Complainant also considers that the allocation of Lady Justice
Njoki Ndungu to preside over Supreme Court Petition of Appeal No.2 of 2012
when she was one of the Nominated MPs appointed by the President subject to
S31 of the Kenyan Constitution was contrary to the rules of natural justice. The
Commission recalls its Fair trial guidelines which provide that:
d) The impartialihJ of a judicial body would be undermined when:
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(iii) a judicial official has some connection with the case or a parhJ to the case;
103. The Commission considers that the circumstances referred to above may be
argued to establish a presumption of partiality of the Court. It must also be noted
however, that the Commission has found no indication that the Complainant
objected to the judge presiding on the appeal through a Petition for recusal as is
the normal practice. The record demonstrates however, that the Complainant
objected to the Presiding judge after the fact by writing the Commission on
administration of justice on the 27 th and 31 st of July, 3 and 7 days after the hearing,
respectively. The Commission notes that this ex post facto protest places the
converts the Commission into a court of first instance on this specific allegation, an
allegation which the Complainant could have diligently pursued in a petition for
recusal. The Commission declines to find a violation in this regard.
104. The Complainant also alleges delays in the appointment of benches by the
Chief Justice in Nairobi HIGH Court Miscallaneous Civil Application No.22 of
2004 and Nairobi Court of Appeal Civil Appeal No.266 of 2008, Nairobi Court of
Appeal Civil Application No. NAI 261 of 2007 [UR ~61 of 2007] and Nairobi Court
of Appeal Civil Application No. NAI 320 of 200.7 [UR220 of 2007] . He also alleges
delay by the Registrar in supplying him with the record in order to mount his
appeal against Nairobi Court of Appeal Civil Appeal No.266 of 2008, Nairobi
Court of Appeal Civil Application No. NAI 261 of, 2007 [UR 161 of 2007] and
Nairobi Court of Appeal Civil Application No. NAI 320 of 2007 [UR220 of 2007].
These allegations concern Article 7(1)(a) of the Charter on the right to an appeal.
The Commission also .refers to the Judgement of the African Court in Makungu v
Tanzania which interpreted Article 7(1)(a) as follows:
"This right to appeal requires that ·individuals are provided with an opportunihJ to access
competent organs, to appeal decisions or acts violating their rights. It entails that States should
establish mechanisms for such appeals and take necessan; action that facilitates the exercise of
this right by individuals, including providing them with the judgments or decisions that they
wish to appeal from. "40
The Commission indeed notes that there was a passage of time prior to the
issuance of the Complainant with a record as well as with the appointment of
benches to hear his appeals. However, the Commission is not persuaded that these
delays were inordinate. Furthermore, the Commission takes the view that the
nature of the allegations made, and the judicial process followed afforded the
complainant access to justice and satisfied the minimum requirements of Article 7
of the African Charter. The fact that the Complainant's appeals were delayed and
unsuccessful does not on its own contravene Article 7 of the Charter. For the
Commission to find a violation of Article 7, It would have to satisfy its
Complainant suffered substantial prejudice and denied access to j~ _.,.:
105.
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case, the Commission would need to align with the allegation that the
Complainant had a right to be heard in Nairobi HC Misc Civil Application No.22
of 2004 and an appeal to prosecute in Nairobi Court of Appeal Civil Appeal No.266
of 2008, Nairobi Court of Appeal Civil Application No. NAI 261 of 2007 [UR 161 of
2007] and Nairobi Court of Appeal Civil Application No. NAI 320 of 2007 [UR220
of 2007]- which the Respondent State delayed. Fundamentally, the Commission
would have to find that the election of Francis Kaparo as the Speaker on the 9th of
January 2003 violated the rights of or created a claim for rights for the
Complainant. The Commission's findings on that question of the January 9th
elections, that it was de jure correct, as extensively analyzed above demonstrate
that the Complainant did not in fact suffer any substantial prejudice for which a
claim of the right to be heard arises, and to an appeal arises. The allegations of
procedural irregularity in prosecuting his appeal do not amount to a denial of
access to justice to establish a violation of Article 7 of the Charter.
106. The Commission finds that the Respondent State has o:ot contravened Article
7(1)(a).
.
.
·.
Alleged violation of Article 13 of the Charter
107. The Complainant contends that his rights under Article 13 have been violated
by the election of Mr. Francis Kaparo as Speake of Parliament on the 9th of January
2003 and the blockade ,of his bid to be,elected as such on the 18 th of February 2003.
108.
Article 13 of the Charter reads:
1. Even; citizen shall have the right to participate. freely in the government ofhis countn;, either
directly or through freely chosen representatives in accordance with the provisions of the law.
2. Even; citizen shall have the right of equal access to the public service of his countn;.
3. Even; individual shall have the right of access to public propertt; and services in strict
equalihJ of al-l persons before .the law.
109. The Commission has stated in Constitutional Rights Project and Another v
Nigeria that "To participate freely in government entails, among other things, the
right to vote for the representative of one's choice." 41
110. In its decision on Civil Liberties Organisation (in respect of Bar Association)
v Nigeria, 42 the Commission stated a general principle on this right, to the effect
that:
41 (2000) AHRLR 191 (ACHPR 1998)para 50
42 Communication 101/93, para 15
Competent authorities should not enact provisions which would limit the exercise of this
freedom. The competent authorities should not override constitutional provisions or undermine
fundamental rights gu~ranteed by the constitution and international human rights standards.
111. The Commission notes that the Complainant's allegations primarily concern
the interpretation of sub-article 1 of the right to participate freely in the
government of his choice. Accordingly, the Commission recalls that the
Complainant indeed freely participated in the elections of a Speaker of Parliament
conducted on the 9th of January 2003. The Commission has demonstrated above
that the Complainant's contention that he was entitled to a fresh election for
Speaker on the 18 th of February 2003 is without merit. A corollary of this is that no
violation of Article 13 arises from there not being an election for Speaker on that
date. To allow the Complainant to appoint his 03/n da~e to contest in the election
of the Speaker of Parliament would have amounted to millifying the will of this
fellow Kenyans expressed on the 9th of January. To quote the Commission's
decision in Constitutional Rights Project and Another v Nigeria that:
"To participate freely in government entails, among other things, the right to vote for the
representative of one's choice. An inevitable corollan; of this right is that the results of the free
expression of the will of the voters are respected; otherwise, the right to vote freely is
meaningless. "43
112. The Commission therefore finds that Mr. Ngoge enjoyed the right to participate
freely in the government of his country. The Commission does not find a violation
of Article 13 of the Charter.
Alleged violations of Article 19, 22 and 24 of the Charter
113. The Complainant· alleges that the Respondent has violated his rights under
Article 19,22 and 24 of the Charter inby barring him from practicing law, winding
up his Law firm and auctioning it off. 44 He alleges that the Respondent State has
blocked him from practicing his trade in violation of his socio-economic rights.
114. At the outset, the Commission should point out that the facts upon which these
allegations are based are outside of the scope of issues on which the original
complaint was based. The Commission notes that the Complainant may not enlist
new matters at such a late stage of the proceedings especially given the specific
procedural requirements an allegation ought to meet prior to being considered on
the merits. Specifically, the Commission notes that this allegation, being adopted
at this stage would have skipped admissibility examinations, chief amongst them
Article 56(5) on the exhaustion of local remedies. In addition, the Commission
notes further that the facts giving rise to this allegation form part of a diff.:;;
e _______
Communication, being Case number 458 of 2013 as the Complainant all , ~ ~9-Tft /\, --,,\,
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his Merits submissions. 45 Accordingly, to proceed any further would be prejudicial
to the Complainant's claims in that matter. The Commission therefore cannot
examine this matter, it therefore cannot find a violation of the Articles alleged.
Remedies
115. The Complainant requests that the Commission award him damages to
compensate him for his alleged loss, to deter the Respondent State from future
violations and to uphqld the Rule of law. The Complainant submits further, that
such damages should be at a commercial rate of 18 % interest running from the 9th
of January 2003 until payment is made in full. The Complainant also seeks an order
of costs against the Respondent States for the proceedings in the present
communication.
116. The Commission notes that it has. not found any violations of the Charter,
accordingly no order as to remedy is made.
117. The Commission considers that the costs ofJfn~se proceedings were brought
upon the Complainant by himself. It would not .f e in the interysts of justice to
impose that burden on the Respondent State.
DECISION OF THE COMMISSION
118.
For these reasons, the Commission finds that:
A. The Respondent State has not violated Articles 1; 2; 3; 5; 7; 13; 19; 22 and 24 of
the Charter.
B. The prayers of the Complainant'are all dismissed.
Done in Banjul, The Gambia, during the 79 th Ordinary Session held from 14 May
to 3 June 2024.
45
Pages 44 and 48