239/01 : Interights (on behalf of Jose Domingos Sikunda) / Namibia
Summary of Facts
1. The communication is submitted by INTERIGHTS (the Complainant), a human rights NGO based
in the United Kingdom, on behalf of Jose Domingos Sikunda.
2. Mr Sikunda is of Angolan descent but has been living in Namibia for 25 years.
3. The Complainant alleges that sometime in 2000, Mr Sikunda was arrested and detained by
Namibian authorities. No reasons were given for his arrest and detention.
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4. It is alleged that on 24 October 2000 the [H]igh [C]ourt of Namibia ordered the release of Mr
Sikunda from detention but that the government of Namibia declined to comply with the order.
5. It is also alleged that Mr Sikunda’s lawyers then sought to enforce the High Court order and on
31st October the Judge issued a rule nisi directing the Minister to show cause why he should not be
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cited for contempt of the court order. The case was adjourned twice and on 12 January 2001 Judge
Teek delivered his ruling recusing himself from the case without either party having applied for it.
6. The Complainant states that there is a pending court order restraining the deportation of Mr
Sikunda which will lapse on 1st February 2001; and that the Namibian authorities have indicated their
preparedness to deport Mr Sikunda to Angola whose government accuses Mr Sikunda of being a
UNITA rebel. The Complainant alleges that such an act will put Mr Sikunda at real risk of torture and
extra-judicial death.
Complaint
7. The Complainant alleges a violation of Articles 4, 5, and 12 (4) of the African Charter.
Procedure
8. The communication was received at the Secretariat of the [African] Commission on 31st January
2001 by fax, a copy of which was forwarded to the Chairman of the African Commission requesting
him to appeal (under Rule 111 of the [African] Commission’s Rules of Procedure) to the Namibian
government to refrain from taking any measures that may put the life of Mr Sikunda at risk.
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9. The Secretariat acknowledged receipt of the communication on 2 February 2001 and requested
the Complainant to furnish it with further information.
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10. On 19 February 2001, the Chairman of the African Commission wrote to the Minister of Foreign
Affairs of the Republic of Namibia expressing concern over the alleged deportation of Mr Sikunda.
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11. On 22 February 2001, the government of Namibia responded to the Chairman’s appeal
declining it and stating that the actions of the Namibian government were legal and aimed at
protecting the security of the country and its citizens.
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12. On 12 March 2001 a copy of the above-mentioned written response was forwarded to the
Complainant and they were reminded to furnish the [African] Commission with further information.
13. On 21st March 2001, the Complainant responded to the request for further information stating
that will revert back to the [African] Commission with additional submissions and evidentiary material.
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14. At its 29 Ordinary Session, the [African] Commission decided to be seized of the complaint.
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15. On 23 May 2001, the Secretariat conveyed the above decision to the parties and requested
parties to furnish it with additional information on admissibility in accordance with Article 56 of the
African Charter and forwarded a copy of the text of the complaint to the Respondent State. The parties
were requested to present their written submissions to the Secretariat within three months of
notification of the decision.
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16. During his promotional visit to Namibia from 2 to 7 July 2001, Commissioner Chigovera raised
the matter of this complaint with officials from the Ministries of Justice and Foreign Affairs and urged
them to submit their written submissions to the Secretariat as soon as possible.
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17. On 17 August 2001, the Parties were reminded to forward their written submissions to the
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Secretariat on or before the 23 of August 2001.
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18. On 18 and 21st September 2001, the Secretariat wrote to the Respondent State and the
Complainant respectively reminding them to forward their submissions on admissibility.
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19. On 24 September 2001, the Secretariat received a letter from INTERIGHTS stating that they
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would not be able to forward their submissions for consideration at the forthcoming 30 Session as
there are elements missing from their submissions that have not been transmitted by the lawyers of
the victims.
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20. At its 30 Ordinary Session held in Banjul, The Gambia, the Commission considered the
communication and decided to defer the matter to the 31st Ordinary Session to allow the
Complainants forward their submissions on admissibility.
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21. On 9 November 2001, the parties were informed of the [African] Commission’s decision.
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22. On 2 January 2002, the Complainants were reminded to submit their written submissions on
admissibility.
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23. By email on 7 January 2002, the Complainants informed the Secretariat that they had sent a
request for supplementary information to their colleagues in Namibia but had not yet heard from them
and in the event that they do not hear from them they would actively consider sending a notification for
discontinuance of the case.
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24. On 19 March 2002, the Secretariat wrote enquiring as to whether the Complainants still wished
to proceed with the communication and if that were the case to forward their written submissions on
admissibility.
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25. The Complainant on 20 March 2002 wrote informing the Secretariat that despite repeated
attempts they had failed to secure a response from their colleagues at the National Society for Human
Rights. The Complainants assured the Secretariat that if this situation does not change before the next
session, then they would request the [African] Commission to authorise them to withdraw the
communication.
Law
Admissibility
26. Article 56 of the African Charter governs admissibility. The most relevant provisions of that Article
provide communications … received by the Commission shall be considered if they:
“(5)… are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged”.
27. The Respondent State argues that following refusal by the Minister of Home Affairs to honour the
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High Court decision on 24 October 2000 ordering Sikunda’s release from detention, Sikunda’s
lawyers sought to enforce the court order by an application to commit the Minister of Home Affairs for
contempt of court.
28. The Respondent State submits that INTERIGHTS submitted the present communication to the
African Commission on 31st January 2001 whilst the matter of hearing the application of a rule
nisi showing cause why the Home Affairs Minister should not be held in contempt of court was still
pending before the High Court. Indeed, [the] High Court heard the matter on 1st February 2001 and
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delivered judgement on 9 February 2001, finding the Minister of Home Affairs in contempt of court.
Therefore, the Respondent State argues, that INTERIGHTS by submitting a complaint on 31st
January 2001 had failed to meet the requirements of Article 56.5 of the African Charter.
29. The Complainants on the other hand have been repeatedly requested by the [African]
Commission to furnish their submissions on admissibility, especially on the question of exhaustion of
domestic remedies but there has not been any response from them.
30. Thus, from the information available to the [African] Commission and principally from the copy of
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the judgement of the High Court of Namibia delivered on 9 February 2001; the [African] Commission
observes that the Complainant brought the matter before it prior to exhausting domestic remedies,
indeed while the matter was still pending before the High Court of Namibia.
Holding
For these reasons, the [African] Commission in conformity with Article 56.5 of the African Charter
declares this communication inadmissible for non-exhaustion of domestic remedies.
NOTE:
When the Chair of the [African] Commission wrote to the Government of Namibia expressing concern
over the alleged deportation of Mr Sikunda, the government responded stating that its actions were
legal and aimed at protecting the security of the country and its citizens.
Following the decision that the [African] Commission has come to, the [African] Commission would like
to state that in circumstances where an alleged violation is brought to the attention of the [African]
Commission and where it is alleged that irreparable damage may be caused to the victim, the [African]
Commission will act expeditiously appealing to the Responding State to desist from taking any action
that may cause irreparable damage until after the [African] Commission has had the opportunity to
examine the matter fully. In such cases the [African] Commission acts on the facts as presented and it
was therefore in this vein that the [African] Commission wrote to the Minister of Foreign Affairs of the
Republic of Namibia expressing concern over the alleged deportation of Mr Sikunda.
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Done at the 31 Ordinary session of the African Commission held in Pretoria, South Africa, from 2 to
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16 May 2002