Communication 389/10 – Mbiankeu Geneviève v. Cameroon
Summary of the Complaint
1. On 7 September 2010, the Secretariat of the African Commission on Human
and Peoples’ Rights (the Secretariat) received from Mrs Geneviève Mbiankeu
Kamenga, a citizen of Cameroon with French nationality, a Communication
submitted pursuant to Article 55 of the African Charter on Human and
Peoples’ Rights (the African Charter). The Complainant is a radiology
technician resident in France.
2. The Communication was submitted against the Republic of Cameroon (the
Respondent State or Cameroon), a State Party to the African Charter.1
3. The Complainant submits that following a mandate entrusted to a law firm in
Yaoundé, she and her husband were informed on 6 June 2007 that a 2,000 m²
plot of land located in a residential neighbourhood in Yaoundé was on sale.
After verifying the documents in the possession of the vendor’s notary, Mr
Pierre Firmin ADDA, a notary in Yaoundé, the Complainant and her husband
were informed that there was no opposition to the sale of the plot of land. On
8 June 2007, the firm, on their behalf, negotiated with the vendor for the
purchase of an area of 500 m² valued at 22,500,000 (twenty-two million five
hundred thousand) CFA francs.
4. The Complainant avers that her husband then left Paris for Yaoundé where
he signed, on 26 June 2007, the deed of sale in exchange of the sum of
26,578,000 (twenty-six million five hundred and seventy-eight thousand) CFA
francs which was handed over to the notary. This amount included the sum
of 3,020,340 (three million twenty thousand three hundred and forty) CFA
francs as fees paid to the Government of Cameroon and notary and lawyer
fees.
5. The Complainant contends that following the land sale and administrative
steps taken by the notary, her husband received by DHL on 17 August 2007, a
land certificate no. 38826/Mfoundi issued on 6 August 2007 by the
Government of Cameroon.
6. The Complainant further alleges that her husband returned to Yaoundé on 25
October 2007 to start developing the land. She contends that on 29 October
2007, the Land Registry issued her husband a certificate of ownership stating
that the land certificate was not subject to any charges or fees, and that as
1 The Republic of Cameroon ratified the African Charter on 20 June 1989.
from 30 October 2007, her husband was prevented from enjoying ownership
of the land as a result of a number of incidents.
7. The Complainant avers that between 30 October and 20 November 2007,
several acts were committed by law enforcement officers, land tenure officers
and private individuals with the aim of making her husband to leave the land
which they claimed belonged to the Government. Such acts include sudden
visits to the land, destruction of property and installations, assault and death
threats. In some cases, the perpetrators of these acts claimed to be acting on
the orders of Mr Ambroise MBAGOFA, a rich businessman, who claim to
have a land certificate over the land including the plot bought by the
Complainant’s husband.
8. The Complainant avers that on 19 November 2007, as her husband was
heading to the police station to file a complaint, he was stopped by a
uniformed police officer who pointed his service weapon at him and asked
him to take off his glasses and raise his hands. The officer then sprayed his
face with tear gas and ordered him never to return to the plot of land.
9. The Complainant contends that on 19 November 2007, her husband went to
the Land Registry where he was received by the Land Registrar to whom he
mentioned the difficulties he had been facing, and that the latter confirmed
that the land certificate had been duly obtained and was not subject to any
opposition. She maintains that the Land Registrar informed her husband that
land certificate no. 25641 belonging to Mr MBAGOFA contained some
inconsistencies, especially relating to the boundaries, and that the said land
certificate had been suspended by the Administrative Chamber of the
Supreme Court of Cameroon by Ordinance No. 61/OSE/PCA/CS/98-99 of
29 June 1999; that the Government of Cameroon by a request dated 6 April
2001 had also requested the Administrative Chamber to annul the same land
certificate on grounds of fraud. She avers that the Registrar gave her husband
copies of the Ordinance and the annulment request made by the Government
of Cameroon which are included in the Communication file.
10. The Complainant avers that as a result of the assault committed by the police
officer, her husband suffered excruciating pain that made him drop his
glasses which broke when he accidentally stepped on them. He fell into a
ditch, injured his mouth and his hip; and his eyes irritated and he had
difficulty breathing. She further avers that in spite of his condition, he
managed to go to the Yaoundé Central Police Station on two occasions to
lodge a complaint, but was unable to do so since there was no officer on duty.
After an hour of fruitless waiting, her husband had to leave the police station
because he had to quickly find a seat on a flight back to Paris, fearing for his
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life. On the same day, he took a flight from Douala. She contends that when
her husband returned to Paris on 21 November 2007, he went to hospital for
an emergency consultation following which a medical certificate was issued
to him granting him four days of rest.
11. The Complainant avers that between 23 November 2007 and 25 March 2010,
her husband made several attempts in vain to initiate administrative and
judicial actions in Cameroon in order for their right to property to be
reinstated. The following measures were taken:
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23 November 2007: a complaint with a claim for damages sent, by
international registered mail, to the State Counsel of the Yaoundé High
Court;
3 May 2008: another complaint/reminder sent, by international
registered mail, to the State Counsel given the lack of response
regarding the first complaint;
25 August 2008: a petition for arbitration in respect of land rights sent
by registered mail with acknowledgement of receipt to the Minister of
State Property and Land Tenure, copying the Inspector-General in
charge of the Anti-Corruption Unit at the same ministry;
25 August 2008: a petition for arbitration in respect of land and
property rights sent by registered mail to the Minister, Assistant
Secretary-General at the Presidency of the Republic;
16 September 2008: another petition sent by fax to the Minister,
Assistant Secretary-General at the Presidency of the Republic;
21 September 2008: a petition for arbitration in respect of land and
property rights sent, by Chronopost with a delivery certificate dated 25
September 2008, to the Inspector-General in charge of the AntiCorruption Unit at the Ministry of State Property and Land Tenure;
10 October 2008: a petition sent by registered mail to the Minister of
Justice regarding the failure by the judicial services to act on two
complaints filed;
2 February 2009: another letter sent to the Minister, Assistant
Secretary-General at the Presidency of the Republic, informing the
latter that his address in France provided on the land certificate issued
to him by the Government of Cameroon had been used to utter death
threats against him and his family through anonymous letters and
phone calls, and requesting protection from the Government;
3 February 2009: a reminder sent by registered mail to the Minister of
Justice complaining against the lack of action by the judicial services.
12. The Complainant maintains that with so many petitions and letters
unanswered by the authorities of the Respondent State, her husband sent six
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(6) other petitions for arbitration, by fax and registered mail, to the Minister
of State Property and Land Tenure, respectively on 25 March 2009, 11 June
2009, 7 October 2009, 3 November 2009, 9 February 2010 and 25 March 2010.
13. The Complainant asserts that since his return to France on 21 November 2007,
her husband has continued to receive death threats through anonymous
phone calls from Cameroon, and that he has not returned to Cameroon out of
fear for his life.
14. The Complainant declares that up to the day the Commission was seized of
the Communication, the Government of Cameroon had not responded to
their various petitions and that as a result, the Government has deprived
them of their right to property, since they were forced to abandon a plot of
land for which they continue to repay monthly instalments.
15. The Complainant alleges that the absence of notification from the
Government of Cameroon has prevented them from challenging any decision
before the administrative courts; that it is undeniable that the purchase of the
land has caused them so many difficulties, whereas it was supposed to be
protected by the State.
Articles alleged to have been violated
16. The Complainant alleges that the facts stated above constitute a violation of
Article 14 of the African Charter and prays the Commission to ensure:
a) The reinstating and protection of their right to property through the
return of their land; or, if not possible, the granting of compensation for
loss of their land rights, loss of ownership, deprivation of effective
enjoyment and loss of the land, corresponding to the market value of the
property in question;
b) The refund of the costs incurred for the purchase and development of the
property;
c) The granting of compensation proportionate to the gravity of the violation
of the rights guaranteed by the African Charter.
Procedure
17. The Complaint was received at the Secretariat on 7 September 2010. The latter
acknowledged receipt on 21 September 2010.
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18. At its 48th Ordinary Session held from 10 to 24 November 2010 in Banjul, The
Gambia, the Commission considered the Complaint and decided to be seized
thereof. On 3 October 2011, the Secretariat notified this decision to the parties
and informed them that during its 49th Ordinary Session held from 28 April to
12 May 2011 in Banjul, The Gambia, the Commission considered the
Communication and deferred its admissibility decision for lack of
submissions from the parties. By the same letters, the Secretariat requested
the Complainant to submit her observations on admissibility within two
months following the notification of the seizure decision.
19. On 16 November 2011, the Secretariat informed the parties that during the
50th Ordinary Session held from 24 October to 5 November 2011 in Banjul,
The Gambia, the Commission decided to defer its admissibility decision to its
51st Ordinary Session to be held from 18 April to 2 May 2012, for lack of
admissibility submissions from the parties. The Secretariat also requested the
parties to submit their observations on admissibility within two months
following the notification.
20. On 3 January 2012, the Secretariat received a letter transmitting the
Complainant’s observations on admissibility. The Secretariat acknowledged
receipt on 12 January 2012, and transmitted the said submission to the
Respondent State for its comments.
21. On 31 May 2012, the Secretariat informed the parties that at its 51 st Ordinary
Session held from 18 April to 2 May 2012 in Banjul, The Gambia, the
Commission considered the Communication and decided to defer its decision
on admissibility to its 52nd Ordinary Session to be held from 9 to 22 October
2012 in Yamoussoukro, Côte d’Ivoire, given that the Respondent State was
yet to submit its arguments on admissibility. By the same note verbale, the
Secretariat requested the Respondent State to submit its arguments within
two months from the notification, latest 31 July 2012. By letter on the same
date, the Secretariat forwarded the same information to the Complainant.
22. On 3 July 2012, the Respondent State informed the Secretariat of the
Commission that it could not submit its observations on admissibility given
that it had not yet received a copy of the Complainant’s submission on
admissibility. On 14 August 2012, the Secretariat responded by resending a
copy of the Complainant’s admissibility submission and requested the
Respondent State to submit its observations no later than 15 October 2012.
23. On 4 September 2012, the Respondent State again wrote to the Secretariat
stating that it had not received the document. The Secretariat again
responded by resending the Complainant’s submission on admissibility. On
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13 November 2012, the Secretariat also informed the Respondent State that
failing its observations latest 13 January 2013, the Commission will be obliged
to take a decision on the basis of the information in its possession.
24. On 13 November 2012, the Respondent State forwarded its observations to
the Secretariat which acknowledged receipt on 20 November 2012. On the
same date, the Secretariat forwarded the said observations to the
Complainant and requested her to submit her rebuttal, if any, within one
month.
25. On 3 February 2013, the Complainant submitted her rebuttal to the Secretariat
of the Commission which acknowledged receipt on 6 February 2013. The last
correspondence between the parties was the Complainant’s rebuttal of 6
February 2013.
26. At its 53rd Ordinary Session held from 9 to 23 April 2013 in Banjul, The
Gambia, the Commission considered the Communication and decided to
defer its decision on admissibility to its 14th Extraordinary Session to be held
from 20 to 24 July 2013 in Nairobi, Kenya. The parties were duly informed of
this decision on 30 April 2013.
27. At its 14th Extraordinary Session held from 20 to 24 July 2013 in Nairobi,
Kenya, the Commission declared the Communication admissible. The
Secretariat informed the parties of this decision on 12 August 2013 and
requested the Complainant to submit on admissibility within two months.
28. On 25 August 2013, the Complainant sent a request for amicable settlement to
the Commission. The Secretariat acknowledged receipt of the request on 23
September 2013. At its 54th Ordinary Session, the Commission acceded to the
request and appointed a Commissioner to facilitate the amicable settlement.
On 14 November 2013, the Secretariat informed the Complainant of this
decision and the related conditions and requested for her confirmation.
29. On 22 December 2013, the Complainant confirmed her request for amicable
settlement and transmitted her proposals for the settlement. The Secretariat
acknowledged receipt on 20 January 2014 and forwarded the proposals to the
Respondent State on the same date. Without any response from the
Respondent State, the Secretariat sent a reminder letter to the latter on 6
March 2014. The Complainant was notified of this latest development.
Having received no response to the various letters, the Commission decided
to consider the Communication on the merits. On 17 April 2014, the
Secretariat informed the Complainant of this decision and requested her to
submit her arguments on the merits.
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30. On 12 May 2014, the Complainant submitted her arguments on the merits.
The Secretariat acknowledged receipt on 22 May 2014 and forwarded the
submission to the Respondent State on the same date. On 21 July 2014, the
Respondent State requested for a 60-day extension to submit its observations.
On 22 July 2014, the Secretariat granted a 30-day extension in accordance with
the Commission’s Rules of Procedure. The Complainant was informed of this
latest development.
31. On 21 October 2014, the Respondent State submitted its observations to the
Secretariat. On 28 October 2014, the Secretariat acknowledged receipt and
forwarded the observations to the Complainant for her comments.
32. On 28 November 2014, the Complainant wrote to the Secretariat requesting
for an extension to submit her observations. On 8 December 2014, the
Secretariat granted a 30-day extension in accordance with the Commission’s
Rules of Procedure. The Respondent State was informed of the extension.
33. On 4 January 2015, the Complainant forwarded her observations to the
Secretariat. On 26 January 2015, the Secretariat acknowledged receipt and
forwarded the observations to the Respondent for a rebuttal, if any. There
was no other correspondence between the parties.
The Law on Admissibility
Complainant’s Submissions on Admissibility
34. The Complainant submits that the Communication meets the conditions to be
declared admissible, basing her admissibility arguments on the fact that the
requirement of exhaustion of local remedies under Article 56(5) of the African
Charter has been met.
35. The Complainant submits that the exhaustion of local remedies requirement
is inseparable from that of the prior existence of available and fair local
remedies, and that such a condition can become an obstacle only in cases
where prompt and sufficient local remedies are available. The Complainant
further submits that going by the jurisprudence of the Commission, the
condition of exhaustion of local remedies must be applied concomitantly with
Article 7 which establishes and protects the right to a fair trial.
36. The Complainant submits that local remedies exist in this case but are not
available. She submits that since the property was acquired in the most legal
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manner, the only remedy left to them was to rely on the intervention of the
judicial and administrative authorities for local remedies.
37. The Complainant argues that the procedure of local remedies in Cameroon
was unduly prolonged. She contends that even though available, local
remedies do not achieve their main purpose of being effective. She declares
that to their knowledge, the matter has not made any progress at the national
level even after bringing the case before the Commission. As such, she prays
the Commission to declare that a period of more than three years without any
action regarding their complaint is beyond a reasonable period within the
meaning of Article 56(5) of the African Charter.
38. The Complainant concludes that up to the date the Commission was seized of
the matter, it did not appear that the Respondent State met its obligation to
provide the remedy which is required under the African Charter. As such,
she requests the Commission to declare the Communication admissible.
Respondent State’s Submissions on Admissibility
39. Without disputing the facts as presented by the Complainant, the Respondent
State considers, however, that the Communication brought before the
Commission cannot be admissible. The Respondent State submits that local
remedies exist and are available, and that the Complainant’s husband failed
in his obligation to exhaust local remedies.
40. In support of the claim that local remedies exist, the Respondent State
invokes Section 157(1) of the Cameroon Criminal Procedure Code, which
provides that: “Any person who alleges that he has suffered injury resulting
from a felony or misdemeanour may, when lodging a complaint with the
competent Examining Magistrate, file a claim for damages”.
41. The Respondent State submits that the availability and effective use of this
remedy by individuals are demonstrated by the statistics on indemnification
claims filed with the Mfoundi High Court in Yaoundé over the period from
27 November to 28 December 2007, and from January to February 2009
during which the Complainant’s husband alleges to have attempted to
exhaust local remedies. Cameroon further avers that a review of the said
statistics shows that during that period all complaints filed were effectively
processed and in some cases led to the trial of the accused persons. The
Respondent State underscores that in addition to the possibility of filing a
claim for damages, the Cameroonian legal system also offered the
Complainant the possibility of instituting action by direct summons as
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provided for by the Criminal Procedure Code. As such, the Respondent State
concludes that local remedies are indeed effective.
42. Regarding the Complainant’s obligation to take steps to exhaust local
remedies, the Respondent State calls on the Commission to examine the
consistency of such efforts. In response to the local procedures alleged to have
been followed by the Complainant’s husband, the Respondent State submits
that no relevant evidence was submitted in the Communication file. The
Respondent State further submits that the failure to come to Cameroon in
person to file the complaint may simply be interpreted as a refusal to exhaust
available remedies.
43. Cameroon states, in connection with the steps allegedly taken by the
Complainant, that investigation conducted by the Government at the mail
service of the Ministry of Justice, the Registry of the Mfoundi High Court in
Yaoundé and the Office of the State Counsel of the said court produced no
trace of the letters the Complainant alleges to have been sent to the Minister
of Justice and the State Counsel of the Mfoundi High Court.
44. The Respondent State concludes that in view of its arguments, local remedies
are available but the Complainant’s husband did not take steps to exhaust
them, and that under these circumstances the Communication should be
declared inadmissible on grounds of non-exhaustion of local remedies.
Analysis of the Commission on Admissibility
45. The Communication was submitted in accordance with Article 55 of the
African Charter on Human and Peoples’ Rights under which the Commission
is mandated to receive and consider “Communications other than those of
State Parties.” To be declared admissible, Communications have to meet the
conditions under Article 56 of the African Charter.
46. A consideration of the above arguments and facts suggests that the parties are
in agreement on all the admissibility conditions laid down in Article 56 of the
African Charter, with the exception of the exhaustion of local remedies. It also
appears to the Commission that, with the exception of the exhaustion of local
remedies, the conditions laid down in Article 56 have all been met.
47. The condition of the exhaustion of local remedies is laid down in Article 56(5)
of the African Charter as follows: in order to be considered by the
Commission, Communications must be “sent after exhausting local remedies,
if any, unless it is obvious that this procedure is unduly prolonged”.
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48. Article 56(5) has been applied by the Commission in several Communications
which confirms and broadens this interpretation. The principle decision on
the issue is without doubt the decision passed in the case of Jawara v. The
Gambia, in which the Commission explains the nature and quality of local
remedies which are required to be exhausted by a Complainant. The
Commission stated that within the meaning of Article 56(5) of the African
Charter, local remedies must be “available, effective and sufficient”.2 The
Commission clarified the meaning of these criteria as follows:
A remedy is considered available if the petitioner can pursue it without
impediment, it is deemed effective if it offers a prospect of success, and it
is found sufficient if it is capable of redressing the complaint.3
49. In the case of this Communication, the Complainant alleges to have
attempted to exhaust local remedies and that such remedies were not made
available by the Respondent State which, moreover, unduly prolonged them.
For its part, the Respondent State simply contests the efforts made by the
Complainant claiming that it never received any of the alleged petitions.
Under such circumstances, it is incumbent on the Commission to determine if
the Complainant actually attempted to exhaust local remedies and if the said
remedies exist and are available, effective and sufficient. The Commission
will also determine if, according to the Complainant’s allegations, the remedy
sought was unduly prolonged.
50. In the Jawara case, the Commission emphasises that the existence of a local
remedy must be sufficiently certain, not only in theory but also in practice,
failing which it will lack the requisite accessibility.4 On this point, the
Respondent State provides details to support its claim that the availability
and effective use of this remedy by individuals are demonstrated by the
statistics on indemnification claims filed with the Mfoundi High Court in
Yaoundé over the period from 27 November to 28 December 2007, and from
January to February 2009 during which the Complainant’s husband alleges to
have attempted to exhaust local remedies.
51. After considering the Respondent State’s submission, the Commission does
not have any doubt about the existence of local remedies in Cameroon, both
in theory and in practice. The Complainant does not also contest the existence
of such remedies since she alleges that her husband brought the matter to
their attention. The Complainant rather contests the inaccessibility of the said
2 Jawara v. The Gambia Communication 147/95-149/96 (2000) AHRLR 107 (2000) para 31.
3 Jawara para 32. Highlighted by the Commission.
4 Jawara para 35.
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remedies due to the failure by the Respondent State to activate them by
considering the alleged complaints.
52. The Commission is of the view that remedies can actually exist legally and in
practice without necessarily being accessible to a Complainant. There is
therefore the need to make a distinction between the existence and
availability of local remedies. In this case, the Respondent State denies having
received any petition from the Complainant whereas the latter provides
supporting documents to prove that she filed several complaints which have
not been acted upon. As such, the criterion of availability will mainly be
assessed in the light of accessibility and in particular the possibility of making
local remedies available.
53. Regarding accessibility as a result of failure on the part of the Respondent
State, the Commission decided in the case of Article 19 v. Eritrea that “the local
remedies rule is not rigid. It does not apply if recourse to local remedies is
made impossible.”5 In the case of Anuak Justice Council v. Ethiopia, the
Commission further stresses that a remedy is considered to be available if it is
“accessible and within reach”.6 It emerges that the failure by the Respondent
State and its authorities to activate such remedies renders them unavailable.
In the present case, Cameroon considers that remedies were accessible and
available. The Respondent State contends that the Complainant did not
follow the necessary formalities and also did not make enough effort to
attempt to exhaust local remedies.
54. With regard to the formalities for seizure which the Respondent State argues,
under Cameroonian law it appears that there is no provision in the procedure
codes which prohibits seizure of the judicial authorities by correspondence.
The same laws do not also make it mandatory the use of a representative or
any form that a petition should take for a case to be heard in court. In fact, in
addition to direct referral provided for in Section 135(1) (b) of the Cameroon
Code of Criminal Procedure, Section 135(1) (a) of the Code stipulates that:
“matters shall be brought to the State Counsel either by way of written
information, a written or oral complaint or a written report by a competent
authority”.7 In this regard, Cameroon has not provided the Commission with
evidence that the formalities and means of seizure used by the Complainant
are prohibited by the relevant laws or fail to comply with these laws.
55. Alternatives such as claims for damages or direct summons, which Cameroon
seems to fault the Complainant for failing to explore, are nothing other than
5 Article 19 v. Eritrea Communication 275/03 (2007) AHRLR 73 (ACHPR 2007) para 48.
6 Anuak Justice Council v. Ethiopia Communication 299/05 (2006) AHRLR 97 (ACHPR 2006).
7 Cameroon Code of Criminal Procedure (27 July 2005).
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forms of seizure organised according to the circumstances and the
individuals of a given case. A reading of the following Sections of the same
Code reveals that the Complainant submitted her complaints following the
formalities required by law since Section 135(4) (a) of the Code states that:
“When the written or oral report is made by the victim of the offence, it shall
be considered as a complaint....”8 Moreover, Section 135(4) (b) stipulates that
“…complaints shall not be subjected to any formalities or fiscal stamps. The
authorities referred to in sub-section (2) - the State Counsel, any judicial
police officer or any administrative authority - shall be bound to receive the
information or complaints.”
56. The Commission considers that the clarity of these provisions calls for no
interpretation as to their meaning and purpose. Moreover, in civil law
tradition, the general rules of procedure state that the formalities for seizing a
court may range from a simple statement at the court registry on plain paper
to more complex statements, including a writ of summons served by a bailiff.
57. The supporting documents accompanying the Complainant’s submission
reveal that she attempted to activate local remedies by sending letters and
petitions by international registered mail – including with proof of delivery,
fax and Chronopost International. It appears to the Commission that in
application of the Respondent State’s laws underscored above, the means by
which the Complainant sought local remedies are consistent with and are not
contrary to the legal provisions. As such, the argument that the Complainant
failed to exhaust local remedies by not complying with the seizure
requirements cannot be accepted.
58. Even though the means of seizure used by the Complainant are consistent
with the law, the Respondent State however denies having received any of
the several letters sent by the Complainant through the various channels
indicated above. In this regard, as a general rule, a correspondence is deemed
to have been delivered once the sender has evidence that the letter was
actually delivered to the person or institution responsible for its transmission
which, in the case under consideration, are the various postal services cited
by the Complainant. It will therefore be sufficient to have a simple receipt
from the postal service used - either by post or by fax, for that correspondence
to be presumed delivered to the recipient. However, according to the
reception theory, evidence of sending a mail only presumes that the mail was
delivered until the recipient proves the contrary.
8 Cameroon Code of Criminal Procedure (27 July 2005), Section 135(4) (a).
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59. In this case, the Complainant has proven to the Commission that she seized
several authorities of the Respondent State. Documentary evidence provided
include, among others, deposit slips, receipts and certificates of delivery
regarding the correspondences sent to the various authorities as mentioned
above under the summary of the Complaint.
60. The Commission notes that having received copies of the documents
produced by the Complainant, the Respondent State cannot contest the fact
that the various authorities were petitioned, as attested by the certificates of
delivery contained in the Communication file.
61. At this stage, the Commission will verify if in addition, the petitions were
sent to the competent authorities and if the efforts made by the Complainant
are sufficient within the meaning of the condition of the exhaustion of local
remedies.
62. Regarding the competence of the authorities to be seized, the Commission
notes that the complaints made by the Complainant are about the violation of
her right to property. Under Cameroonian law which both parties invoke,
any person who has knowledge of an offence classified as a felony or
misdemeanour shall directly and immediately inform either the State Counsel
or any judicial police officer or in their absence, any administrative authority
of the locality.9
63. The Commission notes that the complaints sent to the authorities of the
Respondent State are aimed at putting an end to the violation of the right to
property, fully reinstating the Complainant’s right to the plot of land or,
alternatively, refunding the costs incurred for the purchase of the property,
including the expenses for obtaining a land certificate incurred for the benefit
of the Government. Under Cameroonian law, the Complainant has two
options: seize a criminal court capable of passing judgements in criminal and
civil matters, or seize administrative authorities who are competent in
matters of land dispute. When administrative authorities have been seized,
they can either settle the dispute or seize the competent judicial authorities.
64. The Commission has already noted that the Complainant actually seized the
competent administrative authorities. Failing to settle the dispute, the
administrative authorities concerned have the obligation, under Cameroonian
law, to inform the judicial authorities of the alleged violation in order to
institute legal proceedings.
9 Cameroon Code of Criminal Procedure (27 July 2005), Section 135(2).
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65. In fact, Sections 135(2) and 135(3) of the Cameroon Criminal Procedure Code
makes it mandatory for government officials, representatives of government
authorities and even civil servants to inform the judicial authorities by all
means whenever they are aware of an offence. The Commission notes that the
Minister of Land Tenure, the Inspector-General of the said ministry and the
Land Registrar are government authorities and civil servants. As such, they
are bound by the obligation stipulated in the abovementioned provisions.
66. The Commission also recognises the obligation of administrative authorities
to initiate local remedies whenever they have the competence. In this regard,
the Commission confirms that local remedies which must be exhausted by a
Complainant must be of a judicial nature as it indicated in the case of Cudjoe
v. Ghana.10 However, the Commission notes that, in cases where
administrative remedies are those that are competent under the country’s
law, such remedies may be relevant if they exist and are effective.11
67. For example, in the case of Mouvement des Réfugiés Mauritaniens au Sénégal v.
Senegal, the Commission admitted the submissions of the parties citing the
administrative authorities, in particular the Governor, the Minister of Interior
and the Prime Minister, as local remedies through whom the action required
should have been initiated before the administrative court. After accepting
this argument put forward by the Respondent State, the Commission
declared the Communication inadmissible for lack of attempt to exhaust local
remedies. On the contrary, the Commission is of the view that when national
laws provide for the initiation of local remedies by administrative or politicoadministrative authorities, refusal or failure to initiate legal proceedings
amounts to the unavailability of the said remedies by preventing access to
them.12
68. The UN Human Rights Committee confirms such an interpretation. In the
case of Sankara v. Burkina Faso, the Committee held that ‘‘domestic remedies
must be understood as referring primarily13 to judicial remedies” and that “the
effectiveness of a remedy also depended, to a certain extent, on the nature of
the alleged violation”.14
69. Regarding the issue of the formalities and means of seizure, the Commission
therefore notes that the Complainant complied with the formalities and
10 Communication 221/98 (2000) AHRLR 127 (ACHPR 1999) para 14.
11 Ilesanmi v. Nigeria Communication 268/03 (2005) AHRLR 48 (ACHPR 2005).
12 See Mouvement des Réfugiés Mauritaniens au Sénégal v. Senegal Communication 254/02 (2003) AHRLR 131
(ACHPR 2003) paras 19-21.
13 Highlighted by the Commission.
14 Sankara v. Burkina Faso Communication 1159/2003 (2006) AHRLR 23 (HRC 2006) para 6.4.
14
means of seizure prescribed by the laws of the Respondent State. Moreover,
the petitions were sent to the competent authorities.
70. Regarding the efforts required for which the Respondent State faults the
Complainant, the Commission notes that the Complainant sent not less than
fifteen petitions to various authorities. As established by the Commission
above, at least ten (10) of these petitions were transmitted to the competent
administrative and judicial authorities in compliance with the rules
prescribed by the laws of the Respondent State. Under such circumstances, it
will be unreasonable and unjust to consider that the efforts made by the
Complainant are insufficient. In this case, efforts regarding seizure as
prescribed by the laws of the Respondent State are not quantitative but
qualitative. As such, the Commission deduces that extraordinary efforts or
supplementary action cannot be required from a Complainant in order to
exhaust local remedies even where the threshold of action required by law
has been reached.
71. The Commission notes that the inherent meaning of the term “exhaustion”
refers to the conclusion of an action, the beginning of which is possible and
achievable. It will therefore be illusory for averagely reasonable formalities to
be required of an individual in order to conclude an action which he or she
could not initiate due to a material or legal impossibility. The Commission
confirms, as it did in the case of Amnesty International v. Sudan, that the spirit
of the provisions of Article 56(5) is to uphold the principle of subsidiarity by
providing the State the opportunity to redress violations committed in its
territory.15 The philosophy underlying this rule is not therefore to impose
insurmountable efforts on the Complainant.
72. The European Court of Human Rights adopts the same position when it
considers for example in the case of Moreira Barbosa v. Portugal16 and Jelicic v.
Bosnia-Herzegovina17 that when there is more than one potentially effective
remedy, the applicant is only required to exhaust or attempt to exhaust one of
such remedies.
73. In the present case, the Commission notes that having seized the judicial and
administrative authorities of the Respondent State mentioned above, the
Complainant reached the threshold of efforts required by the condition of the
exhaustion of local remedies within the meaning of Article 56(5) of the
15 Also see Amnesty International and Others v. Sudan Communications 48/90, 50/91, 52/91, 89/93 (2000)
AHRLR 297 (ACHPR 1999) paras 31-39 and Anuak Justice Council v. Ethiopia Communication 299/05
(2006) AHRLR 97 (ACHPR 2006)
16 Case No. 65681/01, decision of 29 April 2004.
17 Case No. 41183/02, decision of 15 November 2005.
15
African Charter. The Commission concludes that the Complainant did not
only seize the competent authorities following the required formalities but
also exceeded the efforts required to activate local remedies.
74. The Respondent State also contends in its submission to the Commission that
the Complainant’s husband should have come in person to seize the
Cameroonian authorities. On this issue, the Commission has already noted
above that under Cameroonian law complainants are not obliged to be
physically present to be able to lodge a valid complaint. This position
stipulated in the law of the Respondent State is in line with the African
Charter and the jurisprudence of the Commission.
75. In fact, the issue of the need for a Complainant’s physical presence in the
territory of the Respondent State at the time of the attempt to exhaust local
remedies has been settled by the Commission. In the case of Abubakar v.
Ghana18 and Amnesty International v. Zambia19 for example, the Commission
consistently considers that several reasons, such as political exile, fear for
one’s life – such as following death threats as it is in the present case, or
deportation may prevent a Complainant from being in the territory of the
Respondent State at the time he or she seizes the local courts.
76. Under such circumstances, the Commission is of the view that in the present
case, it would be unreasonable and illogical to require that the Complainant’s
husband, whereas he and his family were receiving constant death threats
including through phone calls, returns to Cameroon and lodge a complaint,
where he previously experienced serious attacks on his person.20 Such an
approach would be risky and superfluous given that it is not required by law.
77. At this stage, the Commission notes that local remedies existed at the time of
the events both in theory and in practice. The Commission also notes that the
Complainant seized the competent authorities in accordance with the
formalities prescribed by law. The Commission however notes that the said
remedies were not available to the Complainant, and that the lack of action
by the authorities of the Respondent State rendered such remedies
inaccessible. Moreover, the Commission is satisfied that the efforts made by
the Complainant are sufficient. The Commission concludes that the remedies
rendered inaccessible were not available, even if they existed, and that the
Complainant actually attempted to exhaust them.
18 Communication 103/93 (2000) AHRLR 124 (ACHPR 1996). Also see Jawara para 35.
19 Communication 212/98 (2000) AHRLR 325 (ACHPR 1999).
20 See Abubakar v. Ghana; Amnesty International v. Zambia. See in particular Rights International v. Nigeria
Communication 215/98 (2000) AHRLR 254 (ACHPR 1999) para 24.
16
78. Since evidence has been shown that the competent authorities were seized
following the required formalities, the Respondent State has two obligations:
act immediately to prevent remedies from being unduly prolonged or refute
the Complainant’s evidence.
79. Regarding the first obligation following seizure, the responsibility lies with
the Respondent State to ensure that local remedies are not unduly prolonged.
On this point, the Commission notes that between the date when the
Complainant’s husband attempted to exhaust remedies at the national level,
that is, on 23 November 2007, and the time the Commission was seized on 7
September 2010, close to three years elapsed without the Complainant
receiving any response from the authorities of the Respondent State.
80. The Commission notes in particular that between 13 November 2012 when
the Respondent State acknowledged receipt of the Complainant’s submission
and the date of this decision, the Respondent State has been unable to prove
to the Commission that action has been taken to activate local remedies. In
summary, from the time local remedies were sought in 2007 to the date of this
decision, it has been close to five years since the Complainant has not
received any outcome regarding her complaints. Even if the latter period
cannot be taken into account when calculating the delay of remedies, the
Commission notes that its seizure of the matter does not prevent the
Respondent State from activating local remedies. Consequently, the
Respondent State was well informed of the facts and had the discretion to act.
81. In any case, the Commission notes that at the time it was seized, local
remedies were prolonged for three years without any response. In its
jurisprudence, the Commission has considered that local remedies were
unduly prolonged for ten years21 and also for five years. 22 It can be concluded
that the Commission’s position is to consider if remedies have been unduly
prolonged on a case-by-case basis. By comparison, in the case of Bousroual v.
Algeria,23 the UN Human Rights Committee considered as unduly prolonged
a procedure that lasted four years. In the light of the circumstances of the
present case presented above, the Commission notes that local remedies were
unduly prolonged, and as such fail to meet the requirements of Article 56(5)
of the African Charter.
21 See Modise v. Botswana Communication 97/93 (2000) AHRLR 30 (ACHPR 2000) para 69.
22 See for example Association of Victims of Post Electoral Violence and Interights v. Cameroon Communication
272/03 (2009) AHRLR 47 (ACHPR 2009); People’s Democratic Organisation for Independence and Socialism v.
The Gambia Communication 44/90 (2000) AHRLR 104 (ACHPR 1996).
23 Communication 1085/2002 (2006) AHRLR 3 (HRC 2006) para 8.3.
17
82. Such failure inevitably undermines the effectiveness of remedies, even
though the Respondent State has done so well to prove their existence in its
submission on admissibility. The judicial and administrative remedies that
are capable of ensuring the protection and enjoyment of the right to property
supposedly granted to the Complainant by the Government of Cameroon
through a land certificate have remained inaccessible to the Complainant as a
result of the Respondent State’s lack of action.
83. Regarding the second obligation following seizure, in its jurisprudence the
Commission has adopted the stance that the Respondent State bears the
burden to prove the existence and availability of local remedies once the
Complainant has shown evidence of having sought such remedies. The
Commission states this position on the shift in the burden of proof in the case
of Rencontre Africaine pour la Défense des Droits de l’Homme v. Zambia.24
84. The Commission recalls the jurisprudence of the UN Human Rights
Committee in the Sankara case to note that the burden of proof does not mean
that the Respondent State should confine itself to a mere recital of remedies
available under its law but should rather demonstrate that they would have
constituted effective remedies for the applicant.25
85. The Commission notes that the Respondent State merely recited remedies, in
particular judicial remedies, without necessarily demonstrating their
effectiveness in the case of the Complainant. In the present case, the
administrative remedies mentioned by the Complainant and which were
specifically relevant to her complaints were not commented upon by the
Respondent State. Overall, the Respondent State was unable to refute the
Complainant’s evidence of having tried in vain to seize the competent
authorities. The Commission underscores that the burden of proof shifts from
the Complainant to the Respondent State once the latter contests the
exhaustion of local remedies.26
86. In view of the foregoing, the Commission notes that local remedies were
unduly prolonged and that in the circumstances of this case the Respondent
State was unable to refute this fact. As such, the Commission concludes that
since these remedies were unduly prolonged, they cannot be effective.
87. The Commission is of the view that local remedies existed both in theory and
in practice. The Commission finds that the Complainant sought local
24 Communication 71/92 (2000) AHRLR 321 (ACHPR 1996) para 12.
25 Sankara v. Burkina Faso Communication 1159/2003 (2006) AHRLR 23 (HRC 2006), para 6.4.
26 See Zimbabwe Lawyers for Human Rights and One Another v. Zimbabwe Communication 293/2004 (2008)
AHRLR 120 (ACHPR 2008) para 44.
18
remedies following the formalities required by law, that these remedies were
sought from the competent authorities, and that the necessary efforts within
the meaning of the condition of the exhaustion of local remedies were made.
As such, the remedies were effectively sought and it was incumbent upon the
Respondent State to ensure access to the remedies, an obligation which the
Respondent State failed to discharge. Such failure rendered the remedies
unavailable given that they were inaccessible. Moreover, the failure to act by
the authorities of the Respondent State made remedies to be unduly
prolonged, which resulted in their ineffectiveness. Having concluded on the
unavailability and ineffectiveness of local remedies, the Commission is of the
view that it is no longer necessary to consider if local remedies were
sufficient.
Decision of the Commission on Admissibility
88. For the above reasons, the African Commission on Human and Peoples’
Rights declares the Communication admissible in accordance with Article 56
of the African Charter.
Consideration of the Merits
Complainant’s Submissions on the Merits
Alleged violation of Article 14
89. In her merits submissions, the Complainant presents arguments to prove that
she has property right over the contested property, that she met the national
legal requirements for buying real estate, that the State failed in its obligations
and that as a result of its failure her right to property under Article 14 of the
African Charter was violated. In the alternative, the Complainant claims a
violation of the right to adequate housing by invoking the provisions of
Articles 16 and 18 of the African Charter.
90. In proving that she has property right, the Complainant submits that it is only
the land certificate which can be considered as the indisputable proof of the
right of ownership. In this regard, she submits that the duly obtained land
certificate no. 38826 issued on 6 August 2007 by the Respondent State is an
incontestable proof of ownership. According to the Complainant, the State
was the original owner of the land in question, a part of which it retroceded
to her vendor under another land certificate no. 38602. The Complainant
submits that the land certificate issued by the Respondent State gives her
unassailable, inviolable and final right of ownership over the land and that its
19
registration in the Land Register makes this right opposable to third parties,
including the State.
91. Regarding the national procedures for buying real estate, the Complainant
describes the successive stages involved in the national laws laying down the
conditions for obtaining land certificates. She submits that she successively
contacted a notary, the Land Registrar and the Divisional Head of Service of
Land and Surveys who are all authorities of the Respondent State before
whom she produced all the required information and documents. The
Complainant submits that having met the legal requirements before the
authorities recognised by the law to cross-check and double-check the
authenticity of the procedure for obtaining land certificates, and the said
authorities having found that the land was not subject to any opposition, the
land certificate constitutes an authentic document that is opposable to both
the State and to third parties. The Complainant further submits that she
presumed to be in possession of an unquestionable land certificate since it
was obtained in strict conformity with the legal requirements.
92. The Complainant further avers that the alleged violations were committed as
a result of the Respondent State’s failure in its obligations to respect, protect,
promote and enforce her right to property. She argues that the State failed in
its obligation to respect the said right as a result of the intervention of its
employees who prevented the enjoyment of the property and dispossessed
her of her property, without any grounds of public use or legal grounds.
Regarding the violation of the obligation to protect, the Complainant submits
that it is as a result of the fact that the State did not prevent third parties and
its own employees from evicting her from the land and destroying her
property and installations. The Complainant argues that since the State has
authority over land and having issued an authentic and inviolable land
certificate, it had the obligation to protect the conferred right to property. She
contends that having failed to ensure such protection, the State also failed to
conduct an investigation towards punishing the perpetrators whereas she
had brought the matter to the attention of the competent authorities.
93. Regarding the obligation to promote, the Complainant states that this
obligation was not met as a result of the Respondent State’s incapability to
secure her right. Regarding the enforcement of her right to property, she
maintains that even though the State has a law governing the issuance of land
certificates, it has however failed to comply with Article 1 of the African
Charter which imposes an obligation of result and not of means.
94. The Complainant submits that the State has not only violated her ownership
right in terms of property but also other related rights and privileges,
20
including in particular the right to use, sell, bequeath, mortgage and develop
the land. The Complainant further submits that the violation has lasted for six
years during which, despite having been duly informed of the situation, the
State has not done anything to restore her rights and punish the persons
responsible.
95. While acknowledging that any use in the interest of public need could justify
what she considers as a de facto expropriation, the Complainant submits that
the use in the public interest of such an expropriation has not been proven
and that as such, there was a violation.
Alleged violation of the right to adequate housing, a combined reading of Articles 14,
16 and 18
96. In the alternative, the Complainant claims a violation of the right to adequate
housing by invoking the provisions of Articles 14, 16 and 18 of the African
Charter. In support of this claim, the Complainant argues that by allowing the
destruction of the hut which was meant to provide shelter for her and her
family, the Respondent State violated their right to family life. She further
submits that in general, the right to shelter goes beyond the right to have a
roof over one’s head to include the right to be left alone and to live in peace,
whether under a roof or not. The Complainant contends that as a result of the
repeated trespassing on the land, she was prevented from enjoying a peaceful
family life.
Respondent State’s Submissions on the Merits
Alleged violation of Article 14
97. The Respondent State submits that the case brought by the Complainant
before the Commission is about a dispute between individuals and to which
the State is not a party. In support of this claim, the Respondent State argues
that the inviolable nature of land certificates alleged by the Complainant is
not absolute, since the relevant laws provide for situations where land
registration can be questioned. Among other exceptions, the Respondent
State cites cases of fraudulent land registration and the withdrawal of land
certificates by the Minister of Land Tenure for administrative error or fraud
by the land certificate holder.
98. The Respondent State submits that in order to obtain his own land certificate,
the Complainant’s vendor resorted to fraud which is penalized on several
accounts by the judicial and administrative authorities. The Respondent State
21
contends that the court issued Ordinance No. 71/C withdrawing the
Ordinance granting the vendor’s land certificate, and that the Minister of
Land Tenure annulled the said land certificate in accordance with the Decree
to establish the conditions for obtaining land certificates in Cameroon. The
Respondent State submits that the irregularities in the procedure through
which the vendor’s land certificate was obtained had consequences on the
Complainant’s land certificate which lost its opposability to third parties
under the same law.
99. The Respondent State submits that protection, as raised by the Complainant,
indeed existed, not through remedies relating to the property but rather
through a personal action for damages against the person responsible for
fraud, a remedy which the Complainant failed to pursue. The Respondent
State maintains that the protection of government authorities was extended to
the true owner of the plot of land who brought the matter before the
competent courts. Reiterating its role as a third party in this dispute, the
Respondent State maintains that it would have met its obligation to protect if
the Complainant had brought a case against her vendor for failing to honour
the sales contract.
Alleged violation of the right to adequate housing, a combined reading of Articles 14,
16 and 18
100. In refuting the argument on the violation of the right to adequate housing,
the Respondent State submits that the Complainant’s claim is baseless given
that the disputed land already belonged to someone else. The Respondent
State maintains that the Complainant was expelled in accordance with the
relevant legal provisions which also provide that any development project
shall automatically belong to the owner without any compensation to be paid
to the occupant. The Respondent State concludes that it has not violated any
of the provisions of the African Charter given that it is a dispute between
individuals.
Complainant’s rebuttal
101. In response to the argument that her land certificate is illegal as a result of
the fraud involved in her vendor’s land certificate, the Complainant submits
that her good faith throughout the procedure has given her apparent legality.
She maintains that the negligence shown by the competent authorities cannot
be blamed on her and should fall under the full responsibility of the
Respondent State. She concludes that in any case, the subsequent disputes
22
cannot undermine her right established in the past and through a procedure
that was validated by the Respondent State itself.
102. The Complainant submits that the Respondent State cannot claim the
failure to seek remedies to justify its failure to meet its obligation to protect.
She contends that despite the several steps she took to obtain the protection of
the State, the latter did not take any measure and was incapable of detecting
the numerous cases of error, fraud and irregularities involved in the
procedure for issuing the land certificate. The Complainant points out that
under Cameroon criminal law the State should have taken action, simply on
the basis of information provided to the State Counsel, against third parties
and government employees.
103. Regarding the procedure for issuing the land certificate, the Complainant
maintains that the State should have annulled the land certificate no. 25641
used by Mr MBAGOFA to claim ownership over the entire land from which
was extracted the plot of land allocated to her vendor by the authorities of the
Respondent State. In this regard, the Complainant presents correspondences
and a report dated November 2008 and January 2009, documents
recommending the annulment of the three land certificates mentioned above.
The Complainant submits that it is important to find out why the Respondent
State failed to discuss these documents.
Analysis of the Commission on the Merits
Alleged violation of Article 14
104. Article 14 of the African Charter stipulates that: “The right to property
shall be guaranteed. It may only be encroached upon in the interest of public
need or in the general interest of the community and in accordance with the
provisions of appropriate laws”. Using a literal interpretation, the
Commission notes that under the said provision the African Charter
stipulates a right that is guaranteed but also limited by the interest of public
need and general interest, limitations that have to be determined by the
relevant laws.
105. After considering the arguments put forward by the parties, it appears to
the Commission that in this case, the limitations provided for under Article 14
of the African Charter do not apply; the reason being that in response to the
violations alleged by the Complainant the Respondent State does not invoke
neither general interest nor public need. In order to determine if the right
guaranteed under Article 14 has been violated, the Commission will consider
23
if the right to property alleged by the Complainant was guaranteed as
stipulated in the African Charter. Before conducting such an assessment, it is
important to verify if the subject of the dispute actually constitutes property
within the meaning of the African Charter and if the Complainant meets the
necessary legal requirements to be entitled to the right to property.
106. In its jurisprudence on the right to property, the Commission has not
defined property and all that it entails under Article 14 of the African Charter.
However, the Commission notes that property is generally understood as the
right to use, enjoy and dispose of something in an exclusive and absolute
manner subject only to the limitations laid down by law. That said, property
also refers to the property on which such a right is based.27 The property
which is the subject of dispute before the Commission is a plot of land. As the
Commission decided in the case of Malawi African Association and Others v.
Mauritania, the Commission notes that a plot of land and any building
thereon constitute property within the meaning of Article 14 of the African
Charter.28 In this case, the plot of land and the building on it thus constitute
property. Before determining if there was a violation of ownership, it is
important to establish the Complainant’s right to property over the property
in question.
107. The issue to be resolved at this stage is that of the legal guarantee of the
right to property. In other words, the Commission has to determine if the
Complainant meets the requirements and can prove that she is legally
entitled to the right she invokes. In this regard, the Commission notes that the
land certificate is the legal guarantee of the right to property. In terms of land
in general, property ownership is guaranteed by a document called “land
certificate”. This position is in line with national and international laws and
jurisprudence.
108. Regarding national laws, the Commission notes that Article 1 of Decree No.
76/165 of 27 April 1976 to establish the conditions for obtaining land certificates,
amended and supplemented by Decree No. 2005/481 of 16 December 2005 in
Cameroon stipulates that: “The land certificate shall be the official certificate
of real property rights.” This view is shared by the European Court of Human
Rights which states in the case of Rimer and Others v. Turkey that “the title
deed is considered as the indisputable proof of the right to property”.29 In the
Endorois case, the Commission recognised legal title as the guarantee for an
See S. Braudo Dictionnaire privé du droit privé http://www.dictionnaire-juridique.com/
definition/propriete.php; Juritravail ‘Propriété’ http://www.juritravail.com/lexique/Propriete.html
(consulted on 20 March 2015).
28 Malawi African Association and Others v. Mauritania (2000) AHRLR 149 (ACHPR 2000) para 128.
29 See Rimer and Others v. Turkey Application No. 18257/04 ECtHR (2009) para 36.
27
24
effective protection of the right to property protected under Article 14 of the
African Charter.30
109. In this case, whereas the Complainant holds a land certificate which she
deems valid, the Respondent State considers that the said land certificate lost
its opposability to third parties as a result of the annulment of her vendor’s
land certificate. In order to resolve this aspect of the dispute, the Commission
will start by verifying if the Complainant holds a valid land certificate in
accordance with the relevant laws before considering the cogency of the loss
of opposability as argued by the Respondent State.
110. The Commission will begin by verifying if the Complainant followed the
established procedure for obtaining a land certificate in Cameroon and, as
appropriate, what the legal consequences are. In this regard, the Commission
notes that under the law cited above, applications to convert various deeds
into land certificates shall be submitted to the Provincial Head of Service of
Land Tenure of the locality where the property is situated and have to meet
certain format requirements. The same law provides that the notary who
draws up the sales deed shall submit to the Land Registrar of the locality
where the property is situated a file containing the required documents,
including the situation plan of the property duly signed by the Divisional
Head of Service of Land and Surveys.
111. The Commission notes in particular that Article 30 of the Decree cited
above stipulates that: “Before converting deeds into land certificates, the
Land Registrar shall verify the documents submitted and ensure the identity
and capacity of the parties and the availability of the property”.31 It emerges that
the sworn authorities of the Respondent State cannot issue a land certificate
on a property without verifying if the procedure is in compliance with the
law. Moreover, and in particular, the said authorities are obliged to refrain
from issuing a land certificate unless they have verified the availability of the
property, that there is no dispute and that it indeed belongs to the vendor.
112. In the present case, the Commission notes that the Respondent State does
not at any given time dispute the legality of the procedure followed by the
Complainant to buy the property or obtain a land certificate. In fact, the
Complainant contacted the competent authorities who made the necessary
verifications and duly issued a land certificate. As such, the land certificate
was opposable to third parties and the State. Regarding the resulting legal
implications, the land certificate obtained by the Complainant became
30 See Centre for Minority Rights Development and Minority Rights Group v. Kenya (2009) AHRLR 75 (ACHPR
2009) para 205.
31 Highlighted by the Commission.
25
unassailable, inviolable and final. However, the Complainant’s right to
property has to be free from any of the exceptions to inviolability.
113. The exception raised by the Respondent State relates to the loss of
opposability to third parties as a result of the annulment of the vendor’s land
certificate. The Respondent State raises the issue of fraud by the holder of the
land certificate, the vendor, which under the relevant laws makes the land
certificate liable to withdrawal by the Minister of Land Tenure. The
Respondent State contends that the fraud was penalised by the court which
withdrew the Ordinance granting the vendor’s land certificate, and following
which the competent Minister withdrew the said land certificate. The
Respondent State maintains that as a result, the Complainant should have
filed a fraud suit for damages against the vendor who committed fraud.
114. Regarding this argument, the Commission recalls its decision in the case
of SERAC and Another v. Nigeria to state that the nature of the obligations of
States under the African Charter is not only to respect rights but also to
guarantee their protection, fulfilment and promotion.32 The obligation to
respect requires States to refrain from participating directly in committing
violations, while the obligation to protect requires intervening to prevent
these rights from being violated. Regarding the obligations to fulfil and to
promote, they require implementing the necessary measures for the effective
enjoyment of the guarantees provided for by the law.
115. In this case, the Commission notes that since the land certificate issued to
the Complainant was fully valid under the relevant laws, no error involved in
the procedure for issuing the document can encumber the right of the
Complainant who scrupulously complied with the legal requirements under
the supervision of sworn government authorities. It would be unjust for
buyers of good faith to be left in total legal insecurity, at the mercy of vendors
who commit fraud and dishonest competent authorities who allowed the
fraud that is subsequently alleged. In this case, the fraud committed by the
vendor which the Respondent State raises falls under the full responsibility of
the authorities who issued the land certificate that was later annulled, and
thus entails the responsibility of the Respondent State.
116. The Commission notes that instead of fraud on the part of the beneficiary,
it should be a question of “error on the part of the Administration as a result
of an irregularity occasioned during the procedure for obtaining the land
certificate and with regard to authentic documents”. The relevant laws of the
Respondent State provide for such administrative error as an exception to the
32 See SERAC and Another v. Nigeria Communication 155/96 (2001) AHRLR 60 (ACHPR 2001) para 44.
26
absolutely opposable nature of an obtained land certificate. In any case, the
error on the part of the Administration cannot be opposable to the
Complainant who is a buyer of good faith. As a result, since the
Administration is at fault, it had to shoulder the responsibility for the damage
by redressing the damage suffered by the presumed true owner of the
property. Otherwise, it would appear that the buyer of good faith was
penalised for scrupulously complying with the laws and obtaining a land
certificate validated with the seal of the State.
117. From the foregoing, it should follow that by allowing through its fault the
competent court and Minister to take actions that undermine the tangible
land certificate held by the Complainant, the Respondent State violated its
obligation to respect the right to property guaranteed under Article 14 of the
African Charter.
118. Supposing that the Complainant should have filed a fraud suit for
damages against the vendor who committed fraud, the Commission is of the
view that the Respondent State should first of all have met its obligation to
verify the authenticity of the vendor’s land certificate which supposedly gave
rise to the validity of the Complainant’s land certificate. It appears that
despite the fact that the Complainant complied with the established
procedure, government employees failed to detect the vendor’s alleged fraud
and as a result failed to protect the Complainant. The obligation to protect
was not also met afterwards given that despite the several complaints filed by
the Complainant, the Respondent State did not take any action to initiate
legal proceedings against its employees or the vendor who committed fraud.
It should be concluded that the obligation to protect was violated.
119. Lastly, the Commission is of the view that the obligations to fulfil and to
promote the right to property required the Respondent State to implement
the relevant laws and take the necessary administrative and other measures
to facilitate the practical enjoyment of the right in question. In this case, even
if there is a relevant law governing the conditions for obtaining land
certificates, the legal insecurity involved in the practical issuance of land
certificates and the constant possibility to question a duly obtained land
certificate undermine the fulfilment and promotion of the right to property.
In this case, despite the fact that she scrupulously complied with the legal
requirements, the Complainant, for close to seven years, was prevented from
enjoying her property which was nevertheless duly bought and protected by
a land certificate bearing the seal of the State. Under such circumstances, it
should be noted that the Respondent State did not meet its obligations to
fulfil and promote the right to property.
27
Alleged violation of the right to adequate housing, a combined reading of Articles 14,
16 and 18
120. At this stage, the Commission has to determine if there is a right to
adequate housing under Article 14 of the African Charter read together with
Articles 16 and 18, in which case it will be important to determine if the facts
of the case constitute a violation of the right to adequate housing. Article 16 of
the African Charter stipulates that: “Every individual shall have the right to
enjoy the best attainable state of physical and mental health.” Article 18
stipulates that: “The family shall be the natural unit and basis of society. It
shall be protected by the State which shall take care of its physical and mental
well-being”.
121. Regarding the existence of a right to adequate housing, the Commission
notes that the right to property under Article 14 of the African Charter has to
be understood at least using the three broad, inclusive and interdependent
approaches. With the broad approach, the right to property has to entail the
traditional possibility to include a wide range of subsequent rights such as
usus, fructus and abusus. Moreover, and in particular, property ownership is
typical in that its ultimate objective is to meet the need to provide housing,
and housing is one of the most fundamental human rights.33
122. With the inclusive approach, the Commission is of the view that the right
to property is governed by the famous saying that “the accessory follows the
principal”. In this regard, since the ownership of land carries that of what is
above and below, the projects and other activities undertaken by the owner to
develop the land cannot reasonably be excluded from an objective and
holistic definition of property. Regarding the interdependent approach to the
right to property, it is defined as the relationship of this right with other
rights of the African Charter. As such, it will be difficult for the individual
who owns this right to enjoy other rights such as the rights to health and to
education in the absence of adequate housing. In all likelihood, an individual
without shelter will not be able to enjoy the best attainable state of physical
and mental health guaranteed by the African Charter. In any case, since
housing is one of the fundamental human rights,34 it contributes to the
realisation of the right to live in one’s own house.
123. In its jurisprudence on the right to property, the Commission recognises
the right to housing as a right deriving from a combined reading with the
right to the best attainable state of physical and mental health guaranteed
33 See Universal Declaration of Human Rights, Article 25(1); International Covenant on Economic, Social
and Cultural Rights, Article 11(1).
34 See UDHR, ICESCR, op. cit.
28
under Article 16 of the African Charter. Particularly in the case of SERAC v.
Nigeria, the Commission concluded that “although the right to housing or
shelter is not explicitly provided for under the African Charter, the corollary
of the combination of the provisions of Articles 14, 16 and 18(1) of the African
Charter makes it an implicit right”.35 The interdependent approach to the
right to property mentioned above is in line with the spirit of this
jurisprudence. Indeed, the right to property cannot be violated without
violating the corollary rights, including its adjoining and dependent rights in
particular such as the right to housing, physical and mental health, as well as
the well-being of the family.
124. In this case, the Commission notes that the Complainant, her husband and
their children undertook to buy the land in question in order to build a house.
In doing so, they took a bank loan and the building of a hut on the land was
only a step towards achieving their ultimate objective of developing the land.
By destroying or allowing the destruction of the hut, the Respondent State
and its employees destroyed or at least frustrated the project to realise the
right to adequate housing. In the circumstances of the case, the Commission
is of the view that such acts constitute a violation of both the provisions of
Articles 16 and 18 of the African Charter and the right to adequate housing
arising therefrom following a combined interpretation.
Alleged violation of Article 1
125. The Complainant further claims that the Respondent State violated Article
1 of the African Charter since it failed to prevent third parties from stopping
her from realising her right to property and her right to adequate housing. In
this regard, the Commission recalls its jurisprudence and notes that in
principle, a violation of any provision of the African Charter automatically
means a violation of Article 1”.36
126. However, it is important to understand the obligation under Article 1 of
the African Charter which provides for both a legislative or administrative
undertaking of a legal nature as well as a “commitment” to give effect to the
rights enshrined in the African Charter. It is obvious that there are two
obligations under Article 1 of the African Charter: an obligation of means and
of result. In this case, the Commission notes that the Respondent State
adopted a number of laws and regulatory standards to organise and govern
real estate transactions and in particular the obtaining of land certificates.
35 SERAC v. Nigeria op. cit. para 60.
See, among others, Jawara v. The Gambia Communication 147/95 and 149/96 (2000) AHRLR 107
(ACHPR 2000) para 46; Association des Victimes des Violences Post-Electorales and Interights v. Cameroon
Communication 272/03 (2009) AHRLR 47 (ACHPR 2009) para 105-115.
36
29
127. On the other hand, and despite these legal measures, the Respondent State
argues the fraud within its administrative system to contest the land
certificate obtained by the Complainant in full compliance with the
regulations in force. In any case, with the full knowledge of the authorities of
the Respondent State and, in part, through their direct intervention, the
Complainant was unable to achieve the ultimate result of enjoying her rights.
Under such circumstances, the Commission notes that the State failed in its
obligation of result under Article 1 of the African Charter. As such, the
Commission concludes that Article 1 of the African Charter has been violated.
Prayers of the Complainant
Request to find a violation
128. In the light of the foregoing, the Commission concludes that there is a
violation of Articles 1, 14, 16 and 18 of the African Charter and, by
implication, the right to adequate housing.
Reparation
129. Regarding reparation, the Complainant requests for the restoration of the
plot of land or a financial compensation as a result of the loss of her right to
property, the land and related rights and corresponding to the market value
of the property in question. In addition, she requests for the refund of the
expenses incurred in buying and developing the property, as well as
compensation proportionate to the gravity of the violations of the rights
guaranteed by the African Charter.
130. Regarding the request for reparation, the Commission notes that in
accordance with its jurisprudence, a violation of the rights protected under
the African Charter leads to reparation, including financial compensation.37
Since the Commission has concluded that there was a violation of the
abovementioned provisions of the African Charter, it will then consider the
requests for reparation.
131. Regarding the request for restoration or compensation, the Commission
notes that restoration remains the ideal since reparation addresses the need of
restitutio in integrum which requires restoring the victim to the original
situation before the violation. However, where restoration is impossible or
37 See Good v. Botswana op. cit. para 245; Antoine Bissangou v. Congo Communication 253/02 (2006) AHRLR
80 (ACHPR 2006); Embga Mekongo Louis v. Cameroon Communication 59/91 (2000) AHRLR 60 (ACHPR
1995) para 2.
30
unsuitable, the related obligation results in compensation. In any case, the
reparation has to be fair, adequate, effective, sufficient, appropriate,
satisfactory to the victim and proportionate to the damage suffered.38
132. That said, restoration does not necessarily exclude an additional
compensation. In order to restore the victim to the original situation, there is
the need, including when dealing with property and cash, to return the
property or return its value in the form of cash payment and also to
compensate for the damage suffered as a result of the violation.39 As a result,
fair reparation must not only include the restoration of the property, another
property of a similar nature and of equal value or its equivalent in cash.
133. Moreover, the consequences of the violation have to be addressed to the
extent possible, in particular through the payment of damages.40 The
European Court of Human Rights recognises the relevance of an additional
compensation to the primary reparation. Its relevant jurisprudence includes
the case of Trévalec v. Belgium in which the Court decided to grant
compensation for non-material damage in addition to the primary reparation
obtained by the petitioner under an initial decision. The Court thus held that
the primary reparation only partially addressed the damage suffered.41
134. In this case, the Commission notes that on the basis of the facts, with
which the Respondent State fully agrees, the plot of land bought by the
Complainant was taken from her by the judicial, political and administrative
authorities and given to someone else whom they considered to be the true
owner. The Commission has already decided on the opposability, in any case
to the Respondent State, of the land certificate obtained by the Complainant.
As a result, it should be further concluded that there was expropriation
without grounds of public interest in favour of another individual. In
accordance with established international jurisprudence adopted by the
Commission, this is clearly a case of de facto expropriation in disguise; the
reason being that the Respondent State had ownership over the land
including the plot of land and contributed to the expropriation of the
Complainant not in the general interest or in its own interest but in the
38 See Loayza Tamayo v. Peru (1998), Velasquez (1989), Aloeboetoe v. Suriname (1993) of the Inter-American
Court of Human Rights; Djot Bayi v. Nigeria (2009) of the ECOWAS Court of Justice. Also see, in general,
REDRESS Reaching for justice: The right to reparation in the African Human Rights System (2013).
39 See S. Francq ‘L’influence du droit européen sur la réparation du dommage’ Cour de cassation
https://www.courdecassation.fr/venements_23/colloques_activites_formation_4/2005_2033/europeen_
reparation_8066.html (consulted on 4 April 2015)
40 See Ch Quézel-Ambrunaz ‘Dommages et intérêts octroyés par la Cour européenne des droits de
l’homme’ Revue des droits et libertés fondamentaux 2014, Chronique no 5.
41 See Trévalec v. Belgium Application No. 30812/07, Judgement of 25 June 2013 (ECtHR).
31
interest of another individual.42 Moreover, as the Commission decided in the
case of Huris-Laws v. Nigeria, in the absence of adequate compensation as it is
in this case, there is a flagrant violation of the right to property protected
under Article 14 of the African Charter.43
135. It emerges from the foregoing that the property over which the
Complainant obtained an inalienable right to property is no longer in her
possession. Under such circumstances, and since ownership of the same
property has been transferred to someone else by the State, it should be noted
that compensation through another plot of land of equal value is capable of
compensating for the primary damage. Failing that, the most appropriate
reparation would be the payment of financial compensation corresponding to
the value of the property.
136. As concerns determining the value of the plot of land in question, the
Commission notes that the assessment of reparation for the violation of the
right to property on the basis of the market or capital value of the property is
firmly established by international human rights jurisprudence. 44 In practice,
the assessment of real estate in common law considers market value to be the
value that one is likely to get from a property in the event it is resold under
the current market conditions.45 On this basis, it should be concluded in the
present case that the assessment has to be current and as such has to be made
on the basis of the value of the property at the date of the decision granting
reparation, especially given that the violation has not stopped.
137. Moreover, the assessment of the damages relating to the related damages
suffered by the Complainant cannot be separated from that of the reparation
of the primary damage. The parties do not dispute the fact that the
Complainant lost both the material property and all the related rights, in
particular usus, abusus and fructus. Also, installations made and materials
kept on the plot of land were destroyed which definitely led to a financial
loss.
138. Through the submissions to support her request for reparation, the
Complainant requests for the following payments:
42 See Sporrong and Lönnroth v. Sweden, Judgement of 23 September 1982 (ECtHR).
43 See Huris-Laws v. Nigeria Communication 225/98 (2000) AHRLR 273 (ACHPR 2000) para 53.
44 See Case Concerning the Factory at Chorzow, Judgement of 13 September 1928, International Court of
Justice; Guiso-Gallisay v. Italy, Application No. 58858/00 (ECtHR), Judgement of 22 December 2009;
Salvador Chiriboga v. Ecuador, Judgement of 6 May 2008, Inter-American Court of Human Rights.
45 See Dictionnaire juridique du droit français http://dictionnaire-juridique.jurimodel.com/Valeur%
20v%E9nale.html (consulted on 5 April 2015).
32
a) an amount of 152,076,556 (one hundred and fifty-two million seventy-six
thousand five hundred and fifty-six) CFA francs corresponding to the
appreciated market value of the property;
b) an amount of 9,000,000 (nine million) CFA francs for material damages, to
cover architect and builder fees; the destruction of the hut, the survey
beacons, the perimeter wall and materials; various expenses as a result of
loss of income, travel costs and other expenses;
c) a financial compensation of 15,391,460 (fifteen million three hundred and
ninety-one thousand four hundred and sixty) CFA francs as a result of the
deprivation of enjoyment and use of property; and
d) a compensation for non-material damages assessed at 5,000,000 (five
million) CFA francs for the feeling of uncertainty and frustration as a
result of the fact that the authorities prevented the enjoyment of the right
to property for a long time.
139. In the light of the findings and conclusions on reparation and its
assessment, the Commission notes that the sequence described by the
Complainant is in conformity with the relevant international law and
practice. As such, the Commission will then consider each of the requests in
detail.
Primary damage: sales value of the plot of land
140. Regarding the primary damage, the compensation of 152,076,556 CFA
francs requested by the Complainant for the sales value of the plot of land is
calculated on the basis of the total acquisition cost of 50,692,185 CFA francs
multiplied by a coefficient of 2.5% to which is added the cost of buying a
similar or an equivalent property at the market value. Regarding the total
cost, it is obtained by adding the purchase price, the land transfer fees paid to
the State, the fees and disbursements paid to the notary, the cost of the bank
loan, as well as the fees and commissions paid to the lawyer and to third
party intermediaries.
141. The Commission is of the view that with this breakdown, the assessment
of the total cost of the plot of land is based on objective criteria of which the
calculation coefficients and tangible proof were provided by the
Complainant. It should be noted that a primary damage of 50,692,185 CFA
francs has to be placed on the Respondent State.
33
142. However, the assessment of the sales value of the plot of land is a bit less
obvious to corroborate; the reason being that the Complainant does not
provide any official source or basis for determining the coefficient of 2.5%
applied in this case. The Commission notes in this regard that the relevant
practice requires that the Complainant should have conducted an expert
assessment, the report of which should indicate the reliability and validity of
the coefficient applied. In the absence of such evidence and in order to
expedite the procedure, the Commission is of the view that the issue has to be
referred to the competent administrative and judicial authorities of the
Respondent State for them to determine the coefficient to be applied to the
cost price mentioned above in order to arrive at the sales value of the plot of
land. The assessment shall be made on the basis of the national or
international standards applicable in the territory of the Respondent State.
143. In any event, and since the plot of land has been declared as reserved for
the housing of the Complainant’s family, the sales value shall in no case be
lower than that of a plot of land of equal size, situated in an area of equal
standing and offering the same facilities. Such an assessment will only be fair
given that it is an empty land, and the development costs have been included
when calculating the material damage to be considered below.
144. Without prejudice to such a conclusion, the Commission is of the view
that the importance of the right to property and the right to adequate housing
in the context of Africa requires that the fate of a Complainant who is a victim
of de facto expropriation should not depend exclusively on the vicissitudes
relating to the internal procedures of the Respondent State responsible for the
established violation. Under such circumstances, it is necessary to provide for
a procedural guarantee which protects the Complainant from any uncertainty
regarding the enjoyment of prompt and effective reparation.
145. In this regard, the Commission is of the view that on the basis of the
customary nature of the right to property whose guarantee by the African
Charter has been firmly established, the implementation of a decision issued
pursuant to the African Charter is mandatory.46 The Commission’s position
on this issue is stated in its Resolution 97 on the importance of the
implementation of its recommendations under which a Respondent State is
required to implement within a period of six months. This Resolution derives
its legal basis from Article 45(2) of the African Charter, and its validity has
been endorsed by African Union policy organs, in particular through
See F. Viljoen International Human Rights Law in Africa (2012) pp. 355-356; K. Bonneau ‘Le droit à
réparation des victimes de violations des droits de l’homme : le rôle pionnier de la Cour interaméricaine
des droits de l’homme’ (2006) 6 Droits fondamentaux.
46
34
Executive Council Decision 344(X).47 In its subsequent established
jurisprudence, the Commission has reaffirmed this period for the
implementation of its recommendations in order to guarantee the right to
effective reparation.48
146. In this case, the Commission is of the view that in the event where the
assessment of the sales value for the purpose of compensation is not
concluded within six months following the present decision, it will be
considered following a reasoned submission from the Complainant. If the
need arises, the procedural rights of the Respondent State will be guaranteed.
Subsequent damages
147. Considering the evidence submitted and in light of the foregoing, material
damage in the amount of 9,000,000 CFA francs is granted and is to be paid
insofar as the Complainant presents the necessary supporting evidence for
the fees claimed from the Respondent State following the notification of this
decision. The financial compensation of 15,391,460 CFA francs as a result of
the deprivation of enjoyment and use of the property has been sufficiently
proven by the Complainant, and assessed on the basis of the regulations in
force in the competent regional financial institutions, in particular the Bank of
Central African States. As such, the Commission accedes to this request.
148. Regarding non-material damage, the Commission notes that following the
expulsion of the Complainant’s husband, his family was deprived of the right
to enjoy a property which was nevertheless bought in full compliance with
the regulations of the Respondent State. This situation inevitably led to
frustration which turned into uncertainty when the several attempts to seek
the relevant remedies were frustrated by the authorities of the Respondent
State as the Commission concluded at the admissibility stage.
149. The Complainant’s uncertainty and frustration have lasted for close to
seven years, and the violation has continued as a result of the Respondent
State’s refusal to take the necessary measures to restore the Complainant’s
rights. Considering the nature of the right in question, the project undertaken
by the Complainant and her family and the circumstances of the case, the
Commission is of the view that 5,000,000 CFA francs is not an exorbitant
amount, and as such accedes to this request.
47 See Executive Council Decision on the 21st Activity Report of the African Commission on Human and
Peoples’ Rights – Doc EX.CL/322(X) AU Doc EX.CL/Dec.344(X) Tenth Ordinary Session, 25-26 January
2007.
48 See, among others, Zimbabwe Lawyers for Human Rights and Another (Meldrum) v. Zimbabwe (2009)
AHRLR 268 (ACHPR 2009); Lawyers for Human Rights v. Swaziland (2005) AHRLR 66 (ACHPR 2005).
35
150. The Commission notes that under Rule 112(2) of its Rules of Procedure, in
the event of a decision against a State Party, the parties shall inform the
Commission in writing, within one hundred and eighty (180) days of being
informed of the decision, of all measures taken or being taken by the State
Party to implement the decision of the Commission.
Decision of the Commission on the Merits
For the above reasons, the Commission:
151. Finds that the Republic of Cameroon has violated the provisions of
Articles 1, 14, 16 and 18 of the African Charter.
152. Further finds, and by implication, that the Republic of Cameroon has
violated the right to adequate housing.
153.
i.
As such:
Requests the Republic of Cameroon to provide the Complainant with a
plot of land of equal value and nature in accordance with the description
made and within the period prescribed by the Commission above.
ii.
Requests the Republic of Cameroon, failing a compensation in kind, to
make the following payments to the Complainant:
–
an amount of 50,692,185 CFA francs corresponding to the total cost
price for buying the plot of land;
–
an additional amount to be determined on the basis of the criteria
stated by the Commission above and corresponding to the appreciated
sales value of the plot of land on the date of this decision.
36
iii.
Further requests, in addition, the Republic of Cameroon to pay the
Complainant damages assessed as follows:
–
compensation for material damage, the amount of which shall be
determined by mutual agreement between the parties under the
conditions stated in this decision;
–
an amount of 15,391,460 CFA francs as financial compensation for the
deprivation of enjoyment of the rights related to the right to property;
–
an amount of 5,000,000 CFA francs for non-material damages suffered
as a result of the frustration and uncertainty experienced since the time
the land was expropriated.
iv.
Further requests the Republic of Cameroon to report in writing, within
one hundred and eighty (180) days of notification of this decision, on the
measures taken to implement these recommendations.
Adopted on 6 May 2015 during the 56th Ordinary Session of the African Commission
on Human and Peoples’ Rights held from 21 April to 7 May 2015 in Banjul, The
Gambia
37