AFRICAN UNION
African Commission on Human &
Peoples’ Rights
UNION AFRICAINE
UNIÃO AFRICANA
Commission Africaine des Droits
de l’Homme & des Peuples
31 Bijilo Annex Layout, Kombo North District, Western Region, P. O. Box 673, Banjul,
The Gambia Tel: (220) 4410505 / 4410506; Fax: (220) 4410504 E-mail: au-banjul@africaunion.org; Web www.achpr.org
Communication 278/2003 - Promoting Justice for Women and Children
(PROJUST NGO) vs. Democratic Republic of Congo
Summary of the facts
1. On 20 August 2003, the Secretariat of the African Commission on Human and
Peoples’ Rights received a Complaint from the NGO Promoting Justice for Women
and Children (PROJUST NGO) (hereinafter referred to as PROJUST NGO or the
Complainant)1, a Communication lodged on behalf of the NGO by Lawyers
Sylvie Diulu Tshiongo and Kathy Byenda Karubara, in accordance with Article
55 of the African Charter on Human and Peoples’ Rights (the African Charter).
2. The Complaint is brought against the Democratic Republic of Congo2
(hereinafter referred to as the DRC or the Respondent State), on behalf of Mrs.
Masumbuko Mwali Anne Marie, Mrs. Chibalonza Balole Coco, Mrs. Kamwanya
Beya Rose, Mrs. Fono Onokoko Péguy, Mrs. Nabintu Marcelline and Mrs.
Atandjo Otshudi (the Victims), who are all Congolese citizens. The Complainant
submits that these six women were arrested in lieu of their husbands, who had
1
2
PROJUST NGO is an NGO based in the Democratic Republic of Congo. This NGO is involved in
the promotion of human rights and more particularly in the rights of women and children.
Address: BP 16225 Kinshasa 1, Telephone: 00243 815008856, E-mail: projust2002@yahoo.com .
The Democratic Republic of Congo ratified the African Charter on July 20th, 1987.
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fled from the country or were deceased. The latter were alleged to have
participated in the assassination of President Laurent Désiré Kabila on 16
January 2001.
3. The Complainant further alleges that these Victims were first taken to a jail (the
GLM, Groupe Litho Moboti), which does not fall under the authority of the Office
of the Prosecutor, where they were tortured before being transferred to the
Kinshasa Penitentiary and Re-education centre in March 2001. The Complainant
alleges that some of the Victims were held there with their children and one of
them, (Madam Coco Chibalonza), even delivered her second child in the Centre.
4. The Complainant submits that after a year of detention with no charges being
brought against them, and with no possibility of communicating with their
lawyers, the Victims were informed on 13 March 2002, of the decisions to bring
them before the Military Court. The Complainant avers that the decisions of this
Court cannot be appealed, and that the impartiality and independence of this
Court is questionable. The Complainant submits that the Victims were accused of
belonging to the so-called “Masasu” group, which is seeking to take over power.
Further, the Complainant submits that Masumbuko Mwali and Kamwanya Beya
were also accused of having helped their husbands escape from their place of
detention.
5. The Complainant avers that after ten months of trial, all the accused were
acquitted of the charges brought against them. Despite this acquittal, the Victims
allege that all their property was confiscated and that as a result, they were now
destitute.
The Complaint:
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6. The Complainant claims that the facts outlined above constitute:
a violation of Articles 5, 7 and 14 of the African Charter, but also
Articles 10, 11 (1), and 17 of the Universal Declaration of Human
Rights;
Articles 7, 9 (3), 14 (1), (2) (3) and (5) of the International Covenant
on Civil and Political Rights.
7. The Complainant therefore requests the African Commission to:
a. Find the DRC in violation of Articles 5, 7 and 14 of the African Charter;
b. Declare the DRC responsible for serious violations of the provisions of
the African Charter as indicated above, to the detriment of the Victims;
c. Request the DRC to make torture an offense in its national legislation;
d. Declare that legal decisions taken simply on the basis of declarations
without any legal grounds seriously infringe the rights and liberties
recognised by the African Charter.
8. The Complainant further requests the African Commission to:
Ensure that the ordinary Criminal Procedure Code is complied with;
Restore all the movable and immovable property of the Victims;
Pay the Victims fair and equitable compensation, as damages and interest.
The Procedure:
9. The Secretariat of the African Commission wrote to the Complainant, on 29
August 2003, acknowledging receipt of the Communication from PROJUST. The
Secretariat further informed the Complainant that the Complaint would be
considered on seizure by the Commission during its 34th Ordinary Session,
scheduled for 6 to 20 November 2003 in Banjul, The Gambia.
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10. During its 34th Ordinary Session held in November 2003 in Banjul, The Gambia,
the African Commission considered the Communication and decided to be
seized thereof.
11. On 2 December 2003, the Secretariat of the Commission wrote to the
Complainant informing the latter that the Commission was seized of the
communication. The Complainant was also asked whether besides the
arguments on admissibility raised in the initial letter there were additional
submissions on admissibility. It was also requested to submit a copy of the
Decree establishing the Military Court and a copy of the decisions issued in
respect of the Victims.
12. By Note Verbale sent on 15 December 2003, the Secretariat of the African
Commission notified the Respondent State of its decision to be seized of the
matter. A copy of the complaint was attached and the Respondent State was
requested to submit its arguments on admissibility within 3 months.
13. On 12 February 2004, in the absence of any reaction from the Respondent State,
the African Commission forwarded a copy of the Complaint to the Ministry of
Foreign Affairs of the DRC, with a request for acknowledgement, and requesting
its reaction at the earliest possible time.
14. Having received no response from the Respondent State, the Secretariat gave
another copy of the Communication to the Congolese delegation at the 35th
Ordinary Session, held from 21 May to 4 June 2004 in Banjul, The Gambia, and
emphasized the fact that with or without the Respondent State’s reaction, the
African Commission would proceed with examination on admissibility of the
Communication at its 36th Session.
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15. The Secretariat wrote to the Complainant on 9 August 2004, and requested
additional information on the admissibility case.
16. On 9 August 2004, the Secretariat sent a reminder to the Respondent State
requesting its submissions on the Communication’s admissibility.
17. On 16 August 2004, the Respondent State transmitted its submissions on
admissibility to the Secretariat of the Commission.
18. The Secretariat acknowledged receipt of the submissions to the Respondent State
on 11 October 2004 and transmitted them to the Complainant.
19. Having received no response from the Complainant, the Secretariat sent a
reminder on 10 March 2005.
20. On 19 April 2005, the Complainant sent a document to the Secretariat, which
stated that additional documents would be sent via email; however these
documents were never received at the Secretariat.
21. At its 37th Ordinary Session, held from 27 April to 11 May 2005 in Banjul, The
Gambia, the African Commission considered the Complaint and, pending the
arrival of additional documents from the Complainant, decided to defer its
decision on admissibility of the Complaint to its 38th Ordinary Session.
22. On 6 June 2005, the Secretariat wrote to the Complainant acknowledging receipt
of its letter and attached documents, stressing the fact that the documents did not
provide an answer to the question of exhaustion of local remedies, as challenged
by the Respondent State. The letter further requested information on the
documents which were to be sent by email but had not arrived, in addition to
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requesting the Complainant’s specific reaction to the arguments of the
Respondent State on the admissibility of the Complaint.
23. On 8 September 2005, a reminder was sent to the Complainant requesting its
response to the arguments put forward by the Respondent State on the
admissibility of the case.
24. During its 38th Ordinary Session held from 21 November to 5 December 2005 in
Banjul, The Gambia, the African Commission considered the Complaint and in
the absence of the Complainant’s response to the Respondent State’s submissions
on admissibility , decided to defer its decision at this stage to its 39th Ordinary
Session.
25. On 6 December 2005, the Parties to the Communication were informed of this
decision. The Complainant was specifically requested to submit a response to the
arguments of the Respondent State on the admissibility.
26. At its 39th Ordinary Session held from 9 to 23 May 2006 in Banjul, The Gambia,
the Commission decided to defer its decision to its 40th Ordinary Session to give
the Complainant one final chance to submit its arguments on admissibility. The
Respondent State and the Complainant were informed of the Commission’s
decision by letter dated 1st July 2006.
27. At its 40th Ordinary Session held in Banjul, The Gambia, from 15 to 29 November
2006, the African Commission examined the Communication and decided to
defer it to the 41st session for a decision on admissibility.
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28. By letter dated 10 January 2007 and Note Verbale of 12 February 2007, the
Secretariat informed both parties of the Commission’s decision and reminded the
Complainant to submit its arguments on admissibility.
29. At the 41st Ordinary Session of the African Commission, held in Accra, Ghana,
from 16 to 30 May 2007, the Commission considered the Communication and
decided to defer its decision on admissibility to the 42nd Ordinary Session, to give
the Complainant a final opportunity to submit its arguments, specifically on the
exhaustion of local remedies.
30. By Note Verbale and by letter dated 20 June 2007, the Secretariat informed the
Parties of the Commission’s decision and specifically reminded the Complainant
to submit its arguments on the exhaustion of local remedies. Another reminder
was sent to the Complainant by letter dated 17 September 2007.
31. At its 42nd Ordinary Session held in Brazzaville, Congo, from 15 to 29 November
2007, the African Commission considered the Communication and decided to
defer its decision on admissibility to its 43rd Ordinary Session.
32. By Note Verbale and by letter both dated 19 December 2007, the Secretariat
informed the Commission’s decision to the parties and reminded the
Complainant to submit its arguments on the exhaustion of local remedies.
33. By letters dated 17 March 2008, 17 April 2009, 3 October 2011 and 21 November
2011, the Secretariat sent further reminders to the Complainant regarding the
exhaustion of local remedies. The Parties were informed that consideration of the
Communication had been deferred for lack of a response from the Complainant
on the arguments of the exhaustion of local remedies submitted by the
Respondent State.
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34. In view of the prolonged and unjustified lack of response from the Complainant,
the African Commission feels compelled to make a pronouncement on the
Communication on the basis of the elements at its disposal.
Decision on admissibility
Arguments from the Parties
The Complainant’s Submissions on Admissibility
35. The Complainant avers that the Communication meets all the requirements laid
down by Article 56 of the African Charter.
36. The Complainant contends that by stating the names of the Victims, the
requirement under Article 56(1) is fulfilled.
37. Still according to the Complainant, there is no incompatibility between this
Communication and the provisions of the African Charter.
38. The Complainant contends that the Communication contains neither disparaging
nor insulting language against the Respondent State, and that the information
contained therein is based on real accounts, thus is not based exclusively on news
disseminated through the media.
39. The Complainant also contends that ”all local remedies have been exhausted
pursuant to the provisions of Decree No. 019 of 23/08/1997 establishing the
Military Court, specifically in its Article 5 according to which the rulings of the
Court can neither be appealed nor set aside.”
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40. The Complainant further states that its Communication has not been subjected to
proceedings
before
another
international
organization.
Moreover
the
Complainant states that all local remedies have been exhausted and that the
Communication was presented to the African Commission within a reasonable
time period, from the time the local remedies were exhausted.
The Respondent State’s Submissions on Admissibility
41. The Respondent State submits that the Communication should be declared
inadmissible on the grounds that the condition of exhaustion of local remedies has
not been met and on submission of the Communication within a reasonable time
period from the exhaustion of local remedies.
42. To support these claims, the Respondent State argues that Article 15 of the
Congolese Constitution guarantees the right to fair trial and prohibits torture, and
that Article 180 of Book II of 30 January 1940 of the Criminal Code severely
sanctions the violations of the rights of individuals by public servants.
43. The Respondent State further submits that the Victims did not refer the case against
the perpetrators of the alleged acts of torture, to any national Court to obtain
redress or to seek the compensation for their movable and immovable property
allegedly seized in application of the contested Court decisions.
44. The Respondent State furthermore conveyed to the African Commission documents
intended to prove that the decisions of the Military Court of the DRC may be
appealed before the Supreme Court, which could constitute a local remedy that the
Victims did not exhaust.
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45. The Respondent State contends that the Complainant “does not provide evidence
of having submitted an appeal against the disputed Judgement, whereas this
remedy remains open in conformity with Article 150, paragraph 3 of the
Transitional Constitution in the Democratic Republic of Congo.”
46. The Respondent State avers that it was possible for the Victims to file a petition for
annulment and to refer the disputed ruling to the Supreme Court of Justice. Since
they did not make use of this remedy, the Communication should be declared
inadmissible for non exhaustion of local remedies.
The African Commission’s Analysis on Admissibility
47. Article 56 of the African Charter stipulates seven conditions that generally must be
met for a Communication to be declared admissible by the African Commission.
48. The admissibility of Communications received in accordance with Article 55 of the
Charter is governed by Article 56 which states:
“Communications relating to Human and Peoples’ Rights referred to in Article 55
received by the Commission, should necessarily, to be considered, meet all the following
requirements:
1. Indicate the identity of their authors even if the latter requests the Commission
to preserve its anonymity;
2. Be compatible with the Charter of the Organisation of African Unity or with
the present Charter;
3. Not be written in disparaging or insulting language directed against the State
concerned, its institutions or the OAU;
4. Not be based exclusively on news disseminated through the mass media;
5. Be sent after exhausting local remedies, if any, unless it is obvious to the
Commission that this procedure is unduly prolonged;
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6. Be submitted within a reasonable period with effect from the time local remedies
are exhausted or from the date established by the Commission as being the start of
the period of its seizure;
7. Not deal with cases which have been settled either in conformity with the
principles of the Charter of the United Nations, or the Charter of the
Organisation of African Unity or the provisions of the present Charter.”
49. In the present Communication, the Complainant argues that the seven conditions
have been fully met. The Communication provides the identity of its authors who
are representing the Victims: Masumbuko Mwali Anne Marie, Chibalonza Balone
Coco, Kamwanya Beya Rose, Fono Onokoko Péguy, Nabintu Marcelline, Atandjo
Otshudi Charlotte, Congolese citizens represented by Lawyers Kathy Byenda
Karubara and Sylvie Diulu Tshiongo, in accordance with Article 56(1).
50. The Complainant submits that paragraph 2 of Article 56 of the Charter has also
been respected in the Complaint which alleges the violation of the provisions of
the Charter (Articles 5, 7 and 14) by a State Party (the DRC).
51. Concerning paragraphs (3) and (4) of Article 56 of the Charter, the Complainant
avers that the Complaint is not written in disparaging or insulting language
against the State being challenged, its institutions or the African Union, and is not
based on news disseminated through the mass media since the information
provided constitutes concrete facts provided by the Victims.
52. The Complainant also argues that in accordance with Article 56 (5), local remedies
were exhausted under the provisions of Article 5 of the Decree establishing the
Military Court, which stipulates that its decisions cannot be appealed, nor set aside,
and that the Communication was brought before the African Commission within a
reasonable timeframe (Article 56(6)).
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53. The Complainant alleges that the condition under Article 56(7) of the Charter has
also been met since the case was not subjected to any other international
proceedings.
54. Among the conditions set out in Article 56, only the conditions relating to the
exhaustion of local remedies (Article 56(5) and the need to submit the
Communication within a reasonable time frame with effect from the date of
exhaustion of local remedies (Article 56(6) have been challenged by the Respondent
State.
55. Concerning the five conditions which the Respondent State has not specifically
challenged, the African Commission concurs with the Complainant that they have
been met. Having studied the Complainant’s submissions, the African Commission
sees no reason to hold an opposing view, and is therefore of the opinion that the
requirements under Articles 56(1), (2), (3), (4) and (7) of the Charter have been met.
In light of this, only the contested Articles, that is 56(5) and 56(6) of the Charter, will
be subjected to analysis.
56. In the present Communication, it should be noted that several letters were sent to
the Complainant by the Secretariat requesting supplementary observations on the
argument presented by the Respondent State on the non exhaustion of local
remedies by the Victims.
57. Following the lack of reaction from the Complainant to the Respondent State’s
arguments on the exhaustion of local remedies, the African Commission has no
other choice but to proceed with the examination of the admissibility of the
Communication solely on the basis of the information it has been provided.
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58. Article 56(5) of the Charter requires that the Communication should be submitted
after the exhaustion of local remedies, if they exist, unless it is obvious to the
Commission that the procedure is unduly prolonged.
59. The Commission in its jurisprudence recalls that the objective of the condition of
exhaustion of local remedies is to allow the State to remedy, in conformity with its
local legislation, the alleged human rights violation before it is brought before an
international body. This prevents the Commission from acting as a court of first
instance rather than a body of last resort. 3
60. The justification for the exhaustion of local remedies therefore is for the State to
have the possibility of resolving the issue before it is brought before an
international body. In the African system the Commission has confirmed its
position in its decisions in Free Legal Assistance Group and Others vs. Zaire4 and
Rencontre africaine pour la défense des droits de l’homme vs. Zambia5. The Commission
stated that the condition concerning local remedies is based on the principle
according to which a Government needs to be informed about the human rights
violations to give it the opportunity to resolve it before being called before an
international body.
61. The requirement of exhaustion of local remedies also emanates from the principle of
complementarity on the basis of which international or regional mechanisms cannot
and should not replace the national courts. It is only where the national courts are
unable to deliver justice that the international or regional bodies have competence
3 Decisions of the Commission on Communications 147/95 and 149/96, Sir Dawda K. Jawara vs. Gambia,
para 31; 73/92 Mohamed Lamine Diakité vs. Gabon, para 16; 74/92 National Human Rights and Liberties
Commission vs. Chad, para 27; 48/90 Amnesty International vs. Sudan, 50/91 Loosli Bachelard Committee vs.
Sudan, 52/91 Lawyers Committee for Human Rights vs. Sudan, 89/93 Association of Members of the Episcopal
Conference of East Africa vs. Sudan, para 32.
4 Communication 25/89, 47/90, 56/91, 100/93 – Free Legal Assistance Group and Others vs. Zaire (1993)
parag. 36
5 Communication 71/92 – Rencontre africaine pour la défense des droits de l’homme vs. Zambia, parag.
10.
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to hear these cases. For this reason the African Commission strictly applies the rule
governing the exhaustion of local remedies and it has only waived this condition in
the few circumstances that justify it.
62. The Complainant asserts that it fulfilled this requirement on the exhaustion of local
remedies before seizing the Commission because it had no possibility of instituting
legal proceedings locally given that Article 5 of the Decree Law establishing the
Military Court made no provision for either opposition or appeal against the
judgements delivered by this Court, an argument which has been refuted by the
Respondent State.
63. The African Commission has clearly indicated that when a Government “argues
that the Communication should be declared inadmissible because local remedies
have not been exhausted, this Government has the responsibility of proving the
existence of such remedies.”6 The Respondent State makes reference to the legal
instruments made available to the Commission, which illustrate that the rulings of
the Military Court can be appealed.
64. Thus, according to the Respondent State, the Complainant can, in effect, submit an
appeal before the Supreme Court of Justice against the Military Court’s ruling, a
remedy which the Victims did not explore in order to obtain redress for the
violations they suffered.
65. At the end of a trial which lasted ten months, the Victims were acquitted and
released by the Military Court. On the basis of this acquittal, the African
Commission is of the view that the Respondent State in question had the
opportunity, by its own means and within the framework of its own legal system,
to remedy the wrongs caused to the Victims as a result of imprisoning them for
6 Rencontre africaine pour la défense des droits de l’homme vs. Zambia, Communication 71/92, parag.
12.
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crimes allegedly committed by their husbands. For this reason, it was not
worthwhile to lodge an appeal with the Supreme Court against the ruling of the
Military Court given that the latter had ordered the release of the Victims.
66. The Respondent State further argues that, regarding allegations of torture and the
confiscation of property, the Victims can settle the matter in the Congolese legal
system. The Respondent State submits that torture is prohibited under Article 15 of
the Transitional Constitution of the Republic of Congo and that Article 180 of the
1940 Criminal Code, as presently amended (amended on 30 November 2004 and
later amended by Law No. 06/018 of 20 July 2006 modifying and complementing
the Decree of 30 January 1940 establishing the Congolese Criminal Code), sanctions
the violations of the rights guaranteed to individuals by public servants.
67. The African Commission observes that in relation to the acts of torture alleged by
the Complainant, they are supposed to have taken place during the period of
detention which preceded the trial before the Military Court and are clearly not the
result of this Court’s disputed judgement.
68. Thus, the victims had the opportunity after their release to bring the perpetrators of
these acts before the local courts, which was not done. The same is true for the
allegation of confiscation of the Victims’ property.
69. The African Commission observes that the Complainant needs to provide prima
facie evidence of an attempt to exhaust local remedies.7 In the Communication
307/5 - Obert Chinhamo vs. Zimbabwe,8 the African Commission noted the
conclusions of the United Nations Human Rights Committee according to which
the simple fact that a local remedy is untimely or unappealing, or does not
culminate in a result favourable to the Plaintiff does not in itself prove the non7 Zimbabwe: Chinhamo vs. Zimbabwe (2007) AHRLR 96 (ACHPR 2007), Paragraph 84
8 Zimbabwe: Chinhamo vs. Zimbabwe (2007) AHRLR 96 (ACHPR 2007)
15
exhaustion of all effective local remedies.9 In the same case, the Commission also
makes reference to a ruling of the European Human Rights Court which argues
that even where the Complainants have reasons to believe that the available local
remedies and the possible appeals are likely to be ineffective, they should still seek
these remedies considering that, “it is generally up to the victim to provide the
national courts with the opportunity to exercise the existing rights for
interpretation purposes”. In the instant case, the Victims did not prove that a
lawsuit was brought before the competent local courts in order to obtain redress
for the alleged acts of torture, which the Respondent State avers is criminalized in
the Criminal Code.
70. The African Commission observes that in this particular case, the Victims did not
provide evidence of having seized the competent courts, to have the perpetrators of
these acts of torture convicted and their seized movable and immovable property
restored.
71. The African Commission further observes that in failing to seize the local courts, for
the purpose of having the perpetrators of these acts of torture brought to justice,
and for the restoration of their property, the Victims did not provide the local courts
the opportunity to adjudicate on the matter.
72. Furthermore, in Article 19 versus Eritrea, 10 the African Commission was of the
opinion that “it was incumbent on the Complainant to take all necessary measures
to exhaust or, at least, to attempt to exhaust local remedies.”
73. The Commission therefore concurs with the Respondent State that the national
courts did not have the opportunity to find a remedy for the violations which are
9 Ibid, paragraph 84
10 Communication 275/03: Article 19 vs. Eritrea, para. 65
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alleged to have occurred. As indicated earlier, the requirement of the exhaustion of
local remedies is intended to give the State the opportunity to correct the human
rights violations committed. To assess whether the State has had this opportunity, it
is of paramount importance that it be informed of all the details of the complaint. It
is incumbent on the State to ensure that the national regulations are properly
adhered to. In the case in question, there is no evidence that the Victims took any
steps to bring the case before the local courts.
74. From the foregoing, the Commission therefore concludes that the Complainant has
not exhausted the local remedies in relation to the alleged violations of torture and
confiscation of property.
75. The second point of contention in the present Communication is the condition
under Article 56(6) of the African Charter which stipulates that the Communication
shall be considered if it is submitted within a reasonable time period from the time
local remedies are exhausted or from the date the Commission is seized of the
matter. It is not worthwhile to analyse the condition under Article 56(6) given that
Article 56(5) was not complied with.
76. This requirement is tied to the requirement of exhaustion of local remedies so
much so that the point of departure of the reasonable time is from the date of
exhaustion of local remedies. The African Commission having ruled that local
remedies have not been exhausted, it automatically follows that the requirement
under Article 56(6) of the Charter is not met.
Decision of the African Commission on Admissibility
77. In view of the foregoing, the African Commission decides to:
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1) Declare the Communication inadmissible because it does not meet the
requirements under Article 56(5) and 56(6) of the African Charter;
2) Notify this decision to the Parties in conformity with Article 107(3) of the
African Commission’s Rules of Procedure; and
3) Attach thereto its 32nd Activity Report
Done in Banjul, The Gambia, during the 11th Extraordinary Session of the African
Commission on Human and Peoples Rights, held from 21 February to 1 March 2012.
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