264/02 : Association Que Choisir Bénin / Benin
Summary of Facts
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1. On the 6 November 2002, the Secretariat of the African Commission received from Mr Dossou
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Dossa Bernard, Chairperson of the NGO Que Choisir Benin , a communication submitted on behalf of
Beninese magistrates, in accordance with the provisions of Articles 55 and Article 56 of the African
Charter.
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2. The communication was instituted against the Republic of Benin (State party to the African
Charter and hereinafter referred to as Benin) and in it the NGO Que Choisir Benin alleges that the
report prepared by a Commission of Inquiry of the Ministry of Finance of Benin) set up to investigate
disbursements effected between 1996 and 2000 concluded that “all sorts of irregularities and
fraudulent dealings in the collection and issue of taxes and memoranda falling under the jurisdiction of
magistrates”, had been committed and as a result several magistrates, court clerks and tax collectors
of the Beninese Treasury were brought before the judicial chamber of the Supreme Court accused of
falsification of public accounts, complicity in embezzlement, fraud...
3. Que Choisir Benin furthermore declares that the Constitutional Court of Benin, by its Ruling DCC
02-097, dismissed, on unconstitutional grounds, the appeal lodged by the magistrates imprisoned
since December 2001.
Complaint
4. The NGO Que Choisir Benin contends that the provisions of Articles 547, 548 and 549 of the
Ruling No 25/PR/MJL of 07/08/67 governing the [C]riminal [P]rocedure [C]ode in Benin and by virtue
of which the proceedings were brought (against those accused), violate the principles of equality and
the right to defense provided for under the provisions of Article 26 of the Constitution of Benin
and Article 7.1.c of the African Charter.
5. Que Choisir Benin consequently requests the African Commission to “consider this communication
at one of its future sessions”.
Procedure
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6. The Secretariat of the African Commission, by letter ref ACHPR/COMM/2 of 11 February 2003
addressed to Que Choisir Benin, acknowledged receipt of the communication, specifying the reference
of the communication and further informing it that the communication would be registered on the
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African Commission‟s roll for examination on seizure at its 33 Ordinary Session scheduled from
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15 to 19 May 2003 in Niamey, Niger.
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7. At the 33 Session, the African Commission considered the complaint, decided to be seized of it
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and deferred consideration on its admissibility to the 34 Ordinary Session of the [African]
Commission.
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8. The Secretariat of the African Commission, by Note Verbale and letter dated 23 June informed
the parties of the decision on seizure taken by the African Commission with regard to the
communication and requested them to convey, as early as possible, their submissions on admissibility
of the communication.
9. The [Complainant] transmitted by electronic mail its submission on the admissibility of the
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communication to the Secretariat on the 18 August 2003.
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10. The Secretariat of the African Commission, by letter dated 19 September 2003, acknowledged
receipt of the [Complainant]‟s letters requesting some documents mentioned but which were absent
from the file.
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11. The Secretariat of the African Commission, by Note Verbale dated 24 September 2003
transmitted the Complain[an]t‟s submission and attachments to the Respondent State reminding it that
the African Commission still awaited its submission.
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12. The African Commission considered the case during its 34 Ordinary Session and deferred
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consideration on its admissibility to the 35 Session. During the meetings of the 34 Ordinary Session,
the Respondent State delivered its submission on the admissibility of the communication to the
Secretariat of the African Commission.
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13. The Secretariat of the African Commission, by Note Verbale and letter dated 15 December 2003
informed the Parties of developments on the file, forwarding to the Complainant a copy of the
Respondent State‟s statement of case.
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14. The Respondent State was also notified that its delegation to the 34 Session had pledged to
provide the African Commission with copies of the Constitution and the Criminal [P]rocedure Code of
Benin.
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15. Following a reminder by Note Verbale dated 5 March 2004, the Ministry of Foreign Affairs of the
Republic of the Benin forwarded the above-mentioned documents under cover of a letter dated
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19 March 2004 to the Secretariat of the African Commission.
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16. The Secretariat of the [African] Commission, by letter dated 12 May 2004 also reminded it to
forward its response to the Complainant.
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17. During the 35 Ordinary Session which was held in May/June 2004 in Banjul, The Gambia, the
African Commission considered the complaint and heard the delegate from the Respondent State.
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18. During the 36 Session, the [African] Commission decided to defer its decision on admissibility to
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its 3[7 ] Ordinary Session and notified the State accordingly by Note Verbale dated 20 December
2004.
19. The Secretariat also notified the complainant of the decision taken by [the African] Commission at
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its 36 Session and reminded him, by letter dated 20 December 2004, to convey his conclusions on
the admissibility of the communication as early as possible.
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20. On the 15 February 2005, the Complainant finally submitted his memorandum on admissibility
and a letter acknowledging receipt was sent to him on the 22/03/05. The Complainant‟s memo was
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also sent to the Respondent State by Note Verbale dated 22 March 2005.
Law
Admissibility
21. The African Charter provides under its Article 56 that for communications covered by the
provisions of Article 55, to be considered, they should necessarily have exhausted all local remedies, if
any unless it is obvious that this procedure is unduly prolonged.
22. ln the case at hand, the numerous letters from the Secretariat requesting the Complainant for
evidence that the said requirement had been satisfied remained, for a long time, without response. In
fact, the Secretariat of the [African] Commission lost contact with the Complainant from October 2003.
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23. However, on the 15 February 2005, the Complainant finally re-established contact with the
Secretariat and conveyed his memorandum on admissibility through electronic mail. In this
memorandum the Complainant contends that the State of Benin has violated two fundamental
principles of human rights, namely: the principle of equality of all citizens before the law and in
consequence before justice and the principle of the legality of the criminal act.
24. The Complainant recalls that Articles 547, 548 and 549 of the Benin Criminal Code which form
the basis of the procedure thus submitted before the Supreme Court blatantly violate the Magistrates‟
right to defense as they eliminate the right to appeal in refusing to allow any appeal against the rulings
of the reporting judge acting as examining judge.
25. The Complainant argues that to defend themselves against the abuse of power and arbitrary
rulings by the examining judge, the magistrates found no other means than to bring the said Articles
before the Constitutional Court which, evidently, are contrary to the provisions of Article 26 of the
Benin Constitution which stipulates that “the State guarantees the equality of all citizens before the law
without discrimination ... of social position” and that of Article 3 of the African Charter which stipulates:
All individuals enjoy total equality before the law;
All persons have right to equal protection by the law”
26. The Complainant contends that the Complaint should be declared admissible by the African
Commission in conformity with Article 50 of the African Charter.
27. The Respondent State for its part, argues that the complaint should be declared inadmissible
since the matter at issue is still pending before the courts in Benin and if need be, the concerned
parties shall have the possibility of appealing after the Court of Appeal‟s ruling to which the Supreme
Court‟s judicial chamber had referred the case in April 2003.
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28. This argument, posited by the Respondent State in its statement of case of the 13 November
2003, was reaffirmed by its delegate at the hearing granted by the African Commission during its
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35 Ordinary Session in May/June 2004.
29. Whilst the Respondent State contends that the complaint is still pending before the local courts,
the Complainant has not answered the fundamental question which is whether local remedies have
been exhausted in this particular case.
30. Since the Complainant has not proven, contrary to the claims of the Respondent State, that the
case has been settled by the Benin courts and that local remedies have been exhausted, the African
Commission is compelled to accept the position of the Respondent State which contends that the case
is still pending before the local courts.
31. Whereas the established jurisprudence of the African Commission, which is in conformity with the
provisions of Article 56.5 of the African Charter, requires that the communications governed by Article
55 of the said Charter can only be examined after local remedies, if they exist, are exhausted, “unless
it is clear to the Commission that the recourse to these remedies is unduly prolonged”.
32. Such a position which is also contained in the established precedents of other human rights
institutions is based on the principle that the Respondent State should first of all have the means of
rectifying, through its own means and within the framework of its own national legal system, the
alleged violation by future Complainants.
Decision of the African Commission
On these grounds, the African Commission declares the communication inadmissible for non-exhaustion
of all local remedies.
Footnotes
1. Que Choisir Benin is an NGO based in Benin and has had Observer Status with the African Commission on
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Human and Peoples‟ Rights („African Commission‟) since May 2001, 29 Ordinary Session.
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2. Benin ratified the African Charter on 20 January 1986.