Décisions relatives aux communications

Communication 787/22: Onai Muzore & Junior Munyaka, on behalf of Precious Muzore, Minor (Represented by Mr. Shadrack Tebeile) v. Republic of South Africa

Decision on Communication 787_Inadmissible_ENG.pdf
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Docusign Envelope ID: A39DAFC4-4CAD-8DDA-8188-614FCAF68904 ACHPH African Commission on Human and Peoples' Rights Human Rights our Collective Respons1b1lity DECISION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS ON ADMISSIBILITY COMMUNICATION 787/22 ONAI MUZORE & JUNIOR MUN¥AKA, on behalf of PRECIOUS MUZORE, Minor (Represented by Mr. Shadrack Tebeile) REPUBLIC OF SOUTH AFRICA Adopted by the African Commission on Human and Peoples• Rights During the 84"' Ordinary Session, held virtually from 21 to 30 July 2025 A . . . . . . . . . . . . . . . . . •IW'f.::!P.fl&i~ Ms. Ablo/a Execullve ~~~ Commission on u Rights Hon. Com Chairperson on Human an The African Commission on Human and Peoples' Rights 31 B1jilo Annex Layout, Kombo North District, West Coast Region Phone: (220) 230 4361 Fax: (220) 441 05 04 Email : au-banjul@africanurnon.org k!O-i;ir,ctth! AfriGan ( ~, Union W. n iples' https:/achpr au.lnVO o • ec/fmm/AIO
p.CHP'l , t.J6~ttE~ Human Rights our Collective Responsibility Human and Peoples' Rights DECISION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS ON ADMISSIBILITY COMMUNICATION 787/22 ONAI MUZORE & JUNIOR MUNYAKA, on behalf of PRECIOUS MUZORE, M inor (Represented by Mr. Shadrack Tebeile) v. REPUBLIC OF SOUTH AFRICA SUMMARY OF THE COMPLAINT 1. The Secretariat of the African Commission on Human and Peoples' Rights (the Secretariat) received the Complaint on 15th February 2022 from the Complainants herein. 2. The Complainants allege that the victim is their child , Precious Muzore, who is a minor, born on 20 May 2021 , at Jane Furse Hospital, Makhuduthamaga Local Municipality, Limpopo Province, Republic of South Africa. After the recovery of the mother, the parents of the child were advised that the child is entitled to South African nationality under Section 2(2)(a) and (b) of the South African Citizenship Act 88 of 1995, then they took the child to the Department of Home Affairs for birth certificate in order to apply for support for the child before the Department of Social Development. An officer from the Home Affairs Department requested proof that the child was born in South Africa. 3. The Complainants allege that after obtaining proof that the child was born in South Africa, they returned to the Home Affairs Department. Still, they failed to get the child's birth certificate because an officer of the Home Affairs Department requested a copy of ID Books and proof of the birth certificate and informed them that, because they are Zimbabweans, their child cannot get a birth certificate and should be Zimbabwean, not South African. Further, the same officer told them that the child was not born in South Africa, although the proof of birth had been submitted to him. 4. They add that on 22 September 2021 , the Complainants seized the High Court with an urgent application which, on 13 October 2021 , was di • compliance with the directive of this Court". Subsequently, th the Constitutional Court of South Africa with an urgent applic dismissed it "as it bears no reasonable prospects of success." ~ ............ Union\.!? ~\ -< ll P a g~ Afncan~41\ <S'~- , ~ The African Commission on Huma 31 Bijilo Annex Layout West Phone: (220) 230 4361 Fm;,il · ;,11-h;,ni11I ~- ,...·'"""'"!~ •
p.C HPJl ci r) 6~!:H:B Human Rights our Collective Responsibility Human and Peoples' Rights nnm ARTICLES ALLEGED TO BEEN VIOLATED 5. The Complainants allege the violation of Articles 1, 2, 3, 4, 5, 6, 12(2), 13(2)(3), and 22(1) of the African Charter. PRAYERS 6. The Complainants pray the Commission to: (i) Declare that the Respondent violated the minor rights under Articles 1, 2, 3, 4, 5, 6, 12(2), 13(2)(3), and 22(1) of the Charter. (ii) Order that the victim is a South African under Section 2(2)(a) and (b) of the South African Citizenship Act 88 of 1995; (iii) Order the Respondent to issue a South African birth certificate and assign the South African Identity Number to the victim within ten (10) days from the date of the order; (iv) Order the Respondent to endorse into the victim's birth certificate of the victim the names of the Complainants as their parents; (v) Order the Respondent to pay to the Complainants a compensation of R200,000,000.00 (Two Hundred Million Rands), which includes legal fees and expenses before domestic Courts; and (vi) Further orders as the Commission deems fit to grant in the circumstances. PROCEDURE 7. The Secretariat received the complaint and, after due consideration, seized the matter pursuant to Rule 115(5) of the Commission's Rules of Procedure. The parties were informed of this decision by a letter dated 13 June 2022 and a Note Verba le of the same date. The Complainants were invited to submit arguments on admissibility and merits. 8. By a letter dated 28 June 2022, the Complainants submitted arguments and evidence on Admissibility and Merits, which were forwarded to the Respondent State to submit its Arguments and Evidence on Admissibility and Merits, in accordance with Rule 116(2) of the Rules of Procedure (2020). 9. By a Note Verbale dated 26 April 2023, the Respondent State requested an extension of time within which to submit its observations on Admissibilit and Merits. The request was granted and confirmed by a Note Verbale ----~ date. e, 4 ZI Page Afunt,, Un10n !:I ~ ~ ~ ~ i5 "' g '2, The African Commission on Human an 31 Bijilo Annex Layout, K West Co Phone: (220) 230 4361 Fax: ( • Fm;:,il • " ' 1- h:>ni, liml:,frir :,-1 ,ninn nrn . $// '/1'
f~c•r) 6~tH:~ mnw Human s;ghts ou, Human and Peoples Rights Collective Responsibility 10. By a Note Verbale dated 26 May 2023, the Respondent State was informed that its submission did not contain arguments on Merits and was granted an additional thirty (30) days to rectify the omission. 11 . By a Note Verbale dated 16 April 2024, the Secretariat reminded the Respondent State of the need to submit arguments and evidence on both Admissibility and Merits. A further extension of time was granted. 12. By a letter dated 16 May 2024, the Respondent State challenged the admissibility of the Communication and requested an oral hearing to present its complete arguments and evidence regarding Admissibility and Merits in accordance with Rule 102(1) of the Commission's Rules of Procedure. 13. By a Note Verbale dated 19 June 2024, the Secretariat acknowledged receipt of the Respondent State's request. It informed it that the request for an oral hearing had been transmitted to the Bureau of the Commission in accordance with Rule 102(3), which was still pending approval. The Secretariat further informed the Respondent State that its observations on Admissibility had been forwarded to the Complainants for a response within thirty (30) days under Rule 116(2). 14. By a letter dated 19 June 2024, the Secretariat transmitted to the Complainants the Respondent State's observations on Admissibility and Merits and advised it to submit a rejoinder within thirty (30) days, which it elected not to do. ADMISSIBILITY OF THE COMMUNICATION The Complainant's Submissions 15. The Complainants submit that the present Communication meets the admissibility requirements under Article 56 of the African Charter on Human and Peoples' Rights and should be considered. They argue that the case falls within the Commission's jurisdiction as the Republic of South Africa ratified the Charter on 9 July 1996 and the Protocol on 3 July 2002, establishing the African Court on Human and Peoples' Rights. 1 16. As to the identity and address of the Complainants, they submitted that the First Complainant, Onai Muzore, and Second Complainant, Junior Munyaka, both of Zimbabwean nationality, are lawfully residing in South Africa and submit this Communication on behalf of their minor child, Precious Muzore, who was born in South Africa on 20 May 2021 .2 They added that the minor child's birth was officially registered at Jane Furse Hospital in Limpopo Province, and a proof of birth certificate was issued as Annexure FA3. ~ --~ N 4tvo C, 147 '°/0-<> <« <I· ,.. ~ 1 See, Paragraph 7, Written Submission on Admissibility and Merits 2 See Paragraphs 6-9, Written Su bmission on Admissibility and Merits; Paragrap Evidence , i Q 3I Page Afncan -.) Union ,ll ~ ~ The African Commission on Human ' • ~ 31 Bijilo Annex Layout, West Coas Phone: (220) 230 4361 Fax: (220) 441 05 04 Fm~il· ~ 11-h:::.ni11lfri);:1fri r..:=1-1 minn nrn 'i : ·
p.CHPfi ( 1 r\ 6~JjE~~ Human and Peoples· Rights Human Rights au, Collective Responsibility 17. As to the Compatibility with the charter, the Complainants assert that the Respondent State has violated their minor child's rights under the African Charter, specifically Articles 1, 2, 3, 4, 5, 6, 12(2), 13(2), 13(3), and 22(1 ), by refusing to recognize the minor child as a South African citizen by birth despite meeting the legal requirements under Section 2(2)(a) and (b) of the South African Citizenship Act 88 of 1995.3 18. The Complainants submit that they have exhausted all available local remedies as required under Article 56(5) of the Charter. They outline their legal efforts as follows: - On 22 September 2021, the Complainants filed an urgent application before the High Court of South Africa, Gauteng Division, Pretoria, seeking a declaration of citizenship for their minor child and the issuance of a South African birth certificate.4 They added that on 13 October 2021 , the High Court struck the case off the roll with costs, citing non-compliance with procedural directives and that the court did not consider the substantive merits of the case. 5 19. The Complainants also alleged that following the High Court's decision, the Complainants applied for direct access to the Constitutional Court, arguing that the matter raised constitutional issues relating to the child's nationality and rights under international law.6 On 30 November 2021 , the Constitutional Court dismissed the application, stating that it bore no reasonable prospects of success and declining to hear the matter on direct access. 7 20. The Complainants argue that after the Constitutional Court's ruling, no further legal remedies were available, as the Constitutional Court is the highest judicial authority in South Africa.8 They submit that refiling the case before the High Court would not have been an effective remedy, as the High Court had already dismissed the matter on procedural grounds, and the constitutional validity of the Citizenship Act was a question for the higher courts. 9 21. The Complainants assert that their Communication was filed within a reasonable time, as required under Article 56(6) of the Charter. They argue that the Constitutional Court issued its ruling on 30 November 2021, and they submitted this Communication in March 2022, within four months of the final domestic decision. 10 3 Ibid, Paragraph 3, ibid; Paragraph 13, ibid 4 Annexure FA4- Notice of Motion High Court Order 6 Paragraph 26, Written Subm 1ssion on Admissibility and Merits; Paragraphs 19Evidence 7 Annexure FA6-Constitutional Court O rder 8 Ibid, Para 29, Written Submit sion on Admissibility and Merits; Paragraph 23, Aff 9 Ibid, Para 30 10 Ibid, Para 22; also Para 25 5Annexure FAS - 41 P . <" e, U' "' ~ o~ ri en . ~ C ~ Afncan Union The African Commission on Huma 31 Bijilo Annex Layout, West Co Phone: (220) 230 4361 Fa)(: ( ' • Fm~il • ~1t-h~ni11lfm;:1frir..::1-1ininn n rn
0··r)6~!js,Ef1 anm. Human and Peoples' Rights Hurna" Rights OUI Collective Responsibility 22. Further to the foregoing, the Complainants state that their claims are not based on mass media reports but instead on official court records , government decisions, and legal arguments presented before the domestic courts. They emphasize that all evidence supporting the Communication is documentary in nature and originates from official sources.11 23. The Complainants further submit that their Communication does not contain any disparaging or insulting language toward the Respondent State. They submit that their legal arguments are strictly factual and grounded in human rights law, thus complying with Article 56(3) of the Charter.12The Complainants submit that no other international body has previously settled their case, nor has it been the subject of any agreement or settlement between the parties that would render it inadmissible under Article 56(7) of the Charter.13 24. Based on the above, the Complainants urge the Commission to declare this Communication admissible and proceed with considering the merits of the case. 14 The Respondent State's Submission 25. The Respondent State submits that the present Communication is inadmissible under Article 56 of the African Charter on Human and Peoples' Rights, primarily due to failure to exhaust local remedies. It also contends that the Complainants prematurely submitted their case before the African Commission without fully utilizing available domestic legal mechanisms.15The Respondent State acknowledges that it ratified the African Charter on 9 July 1996 and is, therefore, bound by its provisions. However, it argues that the admissibility criteria set out under Article 56 must be strictly adhered to, and the Complainants have failed to meet this threshold.16 26. The Respondent contests the Complainants' claim that they have exhausted local remedies, asserting that the legal avenues available within South Africa's judicial system were not fully pursued before approaching the Commission.17 The Respondent provides a detailed account of domestic proceedings and highlights that the Complainants failed to take all reasonable steps to litigate their case entirely. 11Para 16-18, and Para 27, ibid 12 Paragraphs 13-15, Written Submission on Admissibility and Merits 3Ibid, Paragraphs 24-25, 14 Para 3, Written Subm ission on Admissibility and Merits; and Para 30, Af • Annexures FA7 & FA8 - Citizenship Act Provisions 15 See Para 5-7, Respondent's Written Reply on Admissibility and Merits. 16 ibid, Para 8 17Jbid Paragraph 10 Z ~ 1 I SI P a ge ~ African Union " ~ 1 e,~~ 4 r o~ ~- i 1Jo ~ ~ Q g i -.,_,~ The African Commission on Huma 31 Bijilo Annex Layou West Phone: (220) 230 4361 F ' ·N<e~O:~ra::::;iif,1" . Fm~il· :::11 1-h:::ini11l t'n)~frir::1-11ninn nrn ~ ~" (,n
p.C HP1f • ~ rl 6~!j,;Ef1 Human and Peoples' Rights Human Rights ou, Collective Responsibility 27. From the High Court, the respondent submitted that the Complainants filed an urgent application before the High Court of South Africa, Gauteng Division, Pretoria, on 22 September 2021 , seeking recognition of their minor child as a South African citizen by birth and requesting the issuance of a birth certificate and national identity number.18 They added that on 13 October 2021 , the High Court struck the case off the roll with costs, citing procedural non-compliance.19 28. The Respondent emphasizes that the High Court never ruled on the merits of the case, as it was struck off due to procedural deficiencies rather than substantive legal findings .20 As to the Complainant's move to the Supreme Court of Appeal, the Respondent argues that the Complainants had an obligation to refile their case before the High Court or approach the Supreme Court of Appeal for relief before escalating the matter to the Commission. 21 29. The Respondent stated that the Supreme Court of Appeal has jurisdiction over constitutional and administrative law disputes, including matters related to citizenship and identity documents, and could have provided an adequate remedy. 22 They submitted that the Complainants never attempted to engage the Supreme Court of Appeal, meaning an effective remedy remained unutilized .23 30.As to the Constitutional Court Proceedings, the Respondent noted that the Complainants sought direct access to the Constitutional Court, bypassing the Supreme Court of Appeal, which is the usual appellate forum for such matters. 24 On 30 November 2021 , the Constitutional Court dismissed the Complainants' application, stating that it bore no reasonable prospects of success, referring to Annexure RS4-Constitutional Court Ruling. 31. The Respondent submits that the dismissal by the Constitutional Court was procedural, as the Court did not engage with the substantive legal arguments regarding the minor child's citizenship. It contends that the failure to obtain a ruling on the merits from the High Court or Supreme Court of Appeal means that the Complainants did not exhaust local remedies. 25 32. Further to the said , the Respondent submits that the Complainants failed to utilize available administrative remedies before resorting to litigation. Specifically, it noted that it could have been used by the Department of Home Affairs to provide internal review mechanisms for individuals challenging citizenship decisions. The Respondent State submitted that the Complainants 18Annexure RS1 - High Court Application. 19 Annexure RS2 - High Court Ruling 20 Para 12-13, Respondent's Written Reply on Admissibility and Merits. See, Para 14, ibid See, Annexure RS3 - Supreme Court Jurisdiction Document 23 See Paragraph 15, Respondent's Written Reply on Admissibility and Merits 24 See, Paragraph 16, ibid 25 See, Paragraphs 18-19, ibid 21 22 6I Page African , ~ Union
ACHPR African Comm1ss1on on Human and Peoples' Rights Hurnan Rights our Collective Responsibility did not engage in these mechanisms, which could have resolved the matter at an administrative level, citing Annexure RS5- Citizenship Review Procedure. 33. The Respondent also submitted that the Complainants did not submit an appeal to the Minister of Home Affairs, who has statutory authority to review and rectify citizenship determinations.26 It argues that the filing of the Communication was premature, as effective remedies were still available. It maintains that the failure to litigate the matter before South African courts fully renders the Communication inadmissible under Article 56(5) of the Charter. 27 34. Regarding the timeframe for filing the Communication, the Respondent acknowledges that it was submitted within four months of the Constitutional Court's ruling . However, it argues that this does not cure the defect of nonexhaustion of remedies and does not validate an inadmissible claim.28 35. The Respondent further asserts that the Communication contains inaccuracies and unsubstantiated claims regarding the exhaustion of domestic remedies. It highlights that the Complainants failed to disclose their ability to refile their case or approach the Supreme Court of Appeal, which would have been material information for determining admissibility. 36. Finally, the Respondent concludes that the Communication does not meet the admissibility requirements under Article 56 and should, therefore, be declared inadmissible. It urges the Commission to dismiss the case and to advise the Complainants to pursue the appropriate legal channels within South Africa before seeking recourse under the Charter. THE COMMISSION'S ANALYSIS ON ADMISSIBILITY 37. It is a cardinal principle that a Communication submitted under Article 55 of the African Charter on Human and Peoples' Rights must satisfy the seven admissibility requirements stipulated in Article 56 of the Charter. The African Commission has consistently upheld this rule , recalling that these requirements are cumulative and must be fully met for a Communication to be declared admissible. 38. In particular, the Commission reiterates its position in FfDH & Others v Senega/29 that non-fulfillment of any one of these conditions renders a Communication inadmissible. 39. As Article 56 requires assessment and confirmation of fulfillment of each of the seven conditions listed therein, it is incumbent on the African Commission to Ibid, Paragraph 20 Ibid, para 22 28 Ibid, para 24 29 Communication 318/06, pa ra 32/38 7 I I age 26 27 uJ ,,, ,,...._. Alric.ant~ Union\ ~I r "l 0 The African Commission on H 31 Bijilo Annex L Phone: (220) 230 Fm:::.il · ~ 11- 6 ~ """""'-"--'-·~· . ifh • . . :i: z;;,
;·f\J ACHPR mm, African Comm1ss1on on Human and Peoples' Rights Human Rights our Collective Responsibility examine the submission of the parties and satisfy itself of the compliance of the communication with each of the seven requirements irrespective of whether the parties made submissions on each of the requirements. Accordingly, the Commission will now consider the parties' submissions in light of these admissibility requirements successively. Article 56(1): Identity of the Complainants 40. Article 56(1) of the Charter requires that a Communication indicates the identity of its authors, even if they request anonymity. 41. The Commission reiterates its position in Michael Majuru v. Zimbabwe,30and lbrahima Dioumessi and others v. Guinea,3 1 as reaffirmed in Spilg and Mack & 0/TSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana32 that complainants must provide their complete identity and contact details both to ascertain their authorship of the communication and to ensure continued interest in the matter. 42. The present Communication is submitted by Onai Muzore and Junior Munyaka, acting on behalf of their minor child, Precious Muzore, through their legal representative, one Adv. Shadrack Tebeile.33 The Respondent State does not contest the identity of the Complainants. The Commission, therefore, finds that the requirement under Article 56(1) has been met. Article 56(2): Compatibility with the African Charter 43. Regarding the requirement under Article 56(2) of the African Charter, the Commission reiterates that this provision requires the Communication to be compatible with the Constitutive Act of the African Union or the African Charter on Human and Peoples' Rights (the African Charter), and that it must fall within the Commission's four aspects of competence, namely: ratione personae, ratione materiae, ratione temporis, and ratione loci. 34 44. According to the Commission's jurisprudence, the requirement of compatibility of a communication with the Constitutive Act or the African Charter is fulfilled if the communication deals with human and peoples' rights issues provided for in the African Charter. In this respect, the Commission observes that the present Communication addresses allegations of violations of rights guaranteed under the African Charter, as listed in paragraph 5 above. The rights in question allegedly violated by the Respondent State are directly related to the objectives of the African Union, including the promotion and protection of human and 30 Communication 308/ 05, para 40 ... 31 Communication 291/ 04, para 27 32 Communication 277/ 03, para 51. 33 See, Paragraphs 6-9, Written Submission on Admissibility and Meri ts; Para 34 Communication 709/ 19- Sena tor Jean-Pierre Bemba Gornbo v Democratic paras 26-28 8I Pa [e Afn~n Un:on N,11_.,, R•4 r 0 =. "' The African Commiss ion on H 31 Bijllo Annex L w Phone: (220) 230 436 ~m~il • ::111-h::=1ni11l/'n)::1frir.::1-1 ininn nrn
ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility peoples' rights, as stated under Article 3(h) of the Constitutive Act of the African Union. Furthermore, nothing in the Complainants' submissions or in the nature of the Communication reveals any incompatibility with the African Charter or the Constitutive Act. 45. Concerning the four aspects of jurisdiction, it is established in the jurisprudence of the African Commission that ratione personae is fu lfilled where the communication dealing with human and peoples' rights under the African Charter is submitted by individuals (on their own behalf or on behalf of others) whose identity is established under Article 56(1) of the African Charter.35 The present Communication is filed by Onai Muzore and Junior Munyaka, Zimbabwean nationals lawfully residing in South Africa, on behalf of their minor child , Precious Muzore, against the Republic of South Africa, which is a State Party to the Charter. The Respondent State ratified the Charter on 9 July 1996. Given that, under the African Charter, a communication can be filed by anyone (on one's own behalf or on behalf of others) whose identity is established pursuant to Article 56( 1) of the African Charter, the present communication, in which the identity of the authors is established pursuant to the said Article 56( 1), fulfills the requirement of ratione personae. Therefore, the African Commission has personal jurisdiction on this Communication, which is brought against a party under the Charter. 46.As to ratione materiae, the jurisprudence of the African Commission established that the communication has to deal with human and peoples' rights issues under the African Charter. In the present Communication, the Complainants allege violations of specific rights guaranteed under the African Charter, including, but not limited to, Articles 2, 3, 13, and 22 , which fall squarely within the Commission's material jurisdiction. 36 47. On ratione temporis, the jurisprudence of the African Commission has established that the alleged violations need to have occurred at a time subsequent to the ratification of the African Charter by the Respondent State. In the present Communication, the alleged violations occurred after the Republic of South Africa ratified the African Charter, specifically since May 2021. As such, the facts fall within the temporal scope of the Commission's jurisdiction. 48. With respect to ratione loci, it is established in the jurisprudence of the Commission that the alleged violations took place in the territory of the Respondent State. In the present Communication, the alleged violations took .. uth place within the territory of the Respondent State, namely, the Africa. ;o <«, 35 See, for example, Communication No 266/ 03-Kevin Mgwanga Gunme & Communication No 39/90, Pagnoulle (on behalf of Abdoulaye Mazou) v C 36 'b'd I I 9 I ,J • ~ ~ ~\ s ~ ~ .. .., e Afncan ,: Unoo ... ..____. ~ ; / o ~ l 31 B1jllo Annex Lay . ~ ===~ . West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Fm ~i I · ;u 1.h~ni11lm);:1frir~-• 1ninn nrn
ic••t ACHPR J African Commission on Human Rights our Collect,ve Responsibility Human and Peoples' Rights 49. On account of the foregoing analysis and the lack of contestation of these by the Respondent State, the Commission, therefore, concludes that the requirements of Article 56(2) have been met. Article 56(3): Absence of Disparaging or Insulting Language 50.Article 56(3) of the Charter stipulates that a Communication must not contain disparaging or insulting language directed at the State concerned. 51. To determine whether a remark is disparaging, the Commission recalls its position in Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v. Zimbabwe, 37 in which it held that determination would depend on whether such remark is aimed at unlawfully impairing the dignity or reputation of the State. 52. The Complainants assert that their submissions contain no offensive or disparaging language.38 The Respondent does not dispute this claim. The Commission has examined the Communication and finds no language that is insulting or disparaging the Respondent State. 53.Accordingly, the Commission finds that the Communication complies with Article 56(3) of the Charter. Article 56(4): Not Based Exclusively on Media Reports 54. Article 56( 4) of the Charter requires that Communications not be based exclusively on news disseminated through the mass media. 55. The Commission in Sir Dawda K. Jawara v. The Gambia 39 also, in Ahmed Ismael and 528 Others v. Egypf.4° clarified that the key issue is not whether information originates from media sources but whether it is verified and credible. 56. In this case, the Complainants present official court documents, government correspondence, and administrative decisions. 41 The Respondent does not contest the authenticity of these documents but argues that the Complainants misrepresent their contents. 42 57. Notwithstanding the contestation over the accurate repre documentations relied on in filling the Communication, i communication is not based exclusively on news dissemin 37 Communication 284/ 03, para 82 38 - • t Cr ~ •H~1C1'1tl~ <f<-.J~" A1£ clO"-S ... __,_ ...... u Afncan1,_) UnronW 0 . ~«-,., ~ ~ ~ ~ ~ Paragraphs 13-15, Written Submission on Admissibility and Merits 39 Communication 147/ 95-149/ 96, para 35, 4 Communication 409/ 12, para 40 41 Paragraphs 16-18,; Paragraph 27, Affidavit of Evidence) 42 Paragraphs 26-28, Respondent's Written Reply on Admissibility and Merits). 10 I P a 5 ° __ ......,_ The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Fm~il · ;:a11-h::ani11llm;:afrir~-1 ininn nrn
ACHPR African Cornm1ss1on on Human and Peoples· Riqhts Human Rights our Collect,vf Respon$1bility Therefore, it is found that the Communication is based on verifiable sources other than news media and complies with Article 56(4) of the Charter. Article 56(5): Exhaustion of Local Remedies 58.Article 56(5) of the Charter provides that a Communication shall be admissible if it is sent after exhausting local remedies unless it is evident that this procedure is unduly prolonged. 59. The requirement of exhaustion of local remedies is premised on the international law principle that primary responsibility for protection lies with national jurisdiction, and international jurisdiction plays a complementary role principally. As a matter of principle, international bodies such as the African Commission can in no case assume first-instance jurisdiction. As such, the jurisdiction of international bodies such as the African Commission kicks in after it has been established that national jurisdiction has failed to avail remedies. The Commission has further elaborated this requirement in several decisions, most notably in Sir Oawda K. Jawara v. The Gambia,43 where it held that for a remedy to be exhausted , it must be available, effective, and sufficient. A remedy is available if the Complainants can pursue it without impediment, effective if it offers a prospect of success, and sufficient if it is capable of redressing the complaint. The burden of proof lies with the complainant to demonstrate that such remedies have been exhausted or are unavailable or ineffective. 60. The Complainants submitted that they have exhausted all available domestic remedies as required under Article 56(5) of the Charter. In particular, they outline their legal efforts of 22 September 2021, when they filed an urgent application before the High Court of South Africa, Gauteng Division, Pretoria, seeking a declaration that their minor child was a South African citizen by birth and requesting the issuance of a South African birth certificate. 44 However, this application was struck off the roll with costs on 13 October 2021 , with the Court citing procedural non-compliance. 45 It is also on record that following the High Court's decision, the Complainants applied for direct access to the Constitutional Court, arguing that the matter raised constitutional issues relating to the child's nationality and rights under international law.46 On 30 November 2021 , the Constitutional Court dismissed the application, stating that it bore no reasonable prospects of success and declined to hear the matter on direct access.47 The Complainants argue that no further legal remedies were available • • ial after the Constitutional Court's ruling, as it is South Africa's hi ~C, ~----- 43 Communications 147/ 95 & 149/ 96, para 31 44 See, Annexure FA4 - Notice of Motion 45 Annexure FAS - High Court Order. 46 See, Paragraph 26, Written Submission on Admissibility and Merits; Paragra Evidence 47 Annexure FA6 - Constitutional Court Order 11 I a.:; African~ Union The African Commission on Human and Peoples' Rights 31 B1j1lo Annex Layout. Kombo North Distnct, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Fm ~i l· ~1 1-h~ni11lfm;::1frir;ti-11ninn nrn \
r ~G--.,, ~nmm J 6~,!j,iEB Human and Peoples' Rights Homan Rrghts 00< Collectrve Responsibility 48 authority. The Complainants submit that refiling the case before the High Court would not have been an effective remedy, as the High Court had already dismissed the matter on procedural grounds, and the constitutional validity of the Citizenship Act was a question for the higher courts. 49 61. The Respondent disputes the exhaustion of local remedies, arguing that the Complainants failed to utilize all available legal mechanisms before approaching the Commission.50 It argued that the High Court did not dismiss the case on its merits but rather struck it off the roll due to procedural defects. The Respondent contends that the Complainants should have corrected the procedural issues and refiled their case before the High Court, which remains a viable remedy.51 The Respondent added that South African courts allow for re-enrollment of cases when procedural errors are corrected , and the Complainants failed to utilize this option.52 62. The Respondent states that the Supreme Court of Appeal has jurisdiction over citizenship matters and could have provided relief to the Complainants.53 The Respondent submits that the Complainants never attempted to engage the Supreme Court of Appeal, meaning an effective remedy remained unutilized. 54 63. The Respondent contends that the Constitutional Court rejected the case on procedural grounds, without considering the substantive arguments. The Respondent further added that the Complainants did not explore available administrative remedies, including the Department of Home Affairs' internal review mechanisms, which allow individuals to challenge citizenship decisions, and an appeal to the Minister of Home Affairs, who has statutory authority to review and rectify citizenship determinations.55 64. The Commission recalls its position in Jean-Claude Roger Gbago v. Cote d'Ivoire, 56 which held that failure to utilize an available judicial remedy renders a Communication inadmissible. Furthermore, in Sir Dawda K. Jawara v. The Gambia,57 the Commission held that remedies must be practical and not unduly prolonged or ineffective. The Complainants have not demonstrated that refiling 48 See, Para 29, Written Submission on Admissibility and Merits; also, Paragraph 23, Affidavit of Evidence 49 See, ibid, paragraph 30 50 Paragraph 10, Respondent's Written Reply on Adm issibility and Merits 51 Ibid, para 12 52 Ibid, para 14 53 Citing Annexure RS3 - Su preme Court Jurisdiction Document. 54 See Paragraph 15, Respondent's Written Reply on Ad missibility and Meri ts 55 See, respectively, A nnexure RS5 Citizenship Review Procedure AND Paragraph 20, Res ponde nt's Written Rep! Merits 56 Communication 348/07, para 60 57 Communication 147/95-149/96, para 31 12 I Pa g c
1'CHP1t {, r) 6~.!:tEB , 1 Human a;ghts OUI Collectrve Responsibility Human and Peoples· Rights rm their case at the High Court or appealing to the Supreme Court of Appeal would have been unduly prolonged or ineffective. 65. The Commission also recalls its decision in Cudjoe v. Ghana,58 which states that the burden is on the Complainant(s) to demonstrate that domestic remedies would be futile. The Complainants have not provided sufficient evidence that refiling the case or seeking an appeal would have been ineffective or impractical. They have also not contested that the national courts have not decided on the substance of the communication. 66. Based on the available facts and case law, the Commission finds that the Complainants failed to exhaust local remedies because: The High Court did not decide the case on its merits, and the Complainants did not attempt to refile their case. 59 Also, the Supreme Court of Appeal remained an available and effective remedy, which the Complainants did not utilize nor contest its effectiveness. Further, given that no decision was made on the merits of the communication, the Constitutional Court's rejection of the case on procedural grounds does not constitute exhaustion, as quite rightly argued by the Respondent. 60 The Respondent never countered these arguments. 67. Therefore, the Commission concludes that the Communication does not satisfy the requirement under Article 56(5) of the Charter. Article 56(6): Timeliness of the Communication 68. Article 56(6) of the Charter requires that a Communication be submitted within a reasonable period after the exhaustion of local remedies, or where no local remedies exist, from the date the alleged violation occurred. 69. Given that Article 56(6) of the African Charter speaks of 'after the exhaustion of local remedies' and is accordingly predicated on exhaustion of local remedies, the finding of the Commission in respect of Article 56(5) of the same that local remedies are not exhausted makes consideration or analysis of whether the communication was submitted within a reasonable time unnecessary. If local remedies have not been exhausted , there is no basis for determining a reasonable period under Article 56(6) of the African Charter. In the present case, the Commission has established in the foregoing part that local remedies were not exhausted , thereby rendering it unnecessary to consider Article 56(6) of the African Charter, which is contingent upon Article 56(5). ~ = --;;,.;;.; -~ N 4,yo e, R14,- .o~ 58 Communication 297 / 05, para 56 ~ 0..0 < 59 Written Submissions on Admissibility and Merits, paras 23-24; Affid 60 Written Submissions on Admissibility and Merits, para 26; see also A ~ -\ Wi BI P1~E F"h African Un;on 'I The African Commissi 31 Bijilo ts ict, bia 1 0504 F=m::.il • ~, t-h:=1ni1 dm)~frir.;:1.1inin n nrn
p.C H P#i tJt~ttE~ (1 Human Rights our Human and Peoples· Rights Collective Responsibility Article 56(7): Not Settled by Another International Body 70. Article 56(7) of the Charter states that Communications shall be admissible if they do not deal with cases which have been settled in accordance with the principles of the Charter of the United Nations, the Charter of the Organization of African Unity, or the African Charter itself. 71 . Interrogating the parties' submissions in the present communication, the Complainants submitted that the present Communication has not been considered or settled by any other international human rights body.61 The Respondent State does not contest this submission. 62 72. The Commission finds that the Communication satisfies the requirement under Article 56(7) of the Charter. DECISION ON ADMISSIBILITY 73. The Commission finds that the communication satisfies the requirements under Articles 56(1 ), (2), (3), (4), and (7) of the African Charter but fails to satisfy the requirements under Article 56(5) and (6) of the same. 74. Consequently: (i) The Commission declares the communication INADMISSIBLE under Article 56. (ii) Decides to notify the parties of its decision in accordance with Rule 118(4) of its Rules of Procedure. .-:::-----.;.·~ N..q"'o I r A>/ 0.() Done at the 84th Ordinary Session of the Commission <«..,, "'o ~ ~i I!? :::., 0 VI from the 21st Day of July to the 30th Day of Jul ~ -- 61 Para 28, Complainant's Written Submission on Admissibility and Merits 62 Para 26, Respondent's Written Reply on Admissibility and Merits 14 I P a ,. Atrican1 ) The African Commission on Human and Peoples' Rights Union\. 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia Pho ne: (220) 230 4361 Fax: (220) 441 05 04 Fm::.il · ::111-h.::1ni11l/m::.frir.~-11n inn n rn

Created 10 août 2026 · Edited 10 août 2026