Decisões sobre Comunicações

Communication 839/24: Kenyi Yasin Abdallah v South Sudan

Decision on Communication 839_Inadmissible_ENG.pdf
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....: J ACHPR 1 �\ Af.rican Comm1ss1on .. on arrcm . Human and Peoples' Rights Human Rigl1ts our Collective Responsibility COMMUNICATION 839/24 Kenyi Yasin Abdallah V Republic of South Sudan Adopted by the African Commission on Human and Peoples' Rights During the 85"' Orrlb,a,y Session _held in Banjulfrom 07 to 30 October 2025, Banjul, The Gambia ......... ----- :I: .... (/] .••··· Sow Hon. Ca Chairpe Commission .. on Human and Peoples' Rights ......... Ms.A Execu Com Rights ����� fr/can Peoples' The African Commission on Human and Peoples' Rights An Organ of the AfriGan(�'t Union� 31 Bijilo Annex Layout, Kombo North District, West Coast Region Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: au-banjul@africanunion.org https:/achpr.au.int/0 o a
DECISION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS ON ADMISSIBILITY Communication 839/24 - Kenyi Yasin Abdallah v South Sudan SUMMARY OF THE FACTS 1. The Secretariat of the African Commission on Human and Peoples' Rights (the Secretariat) received a complaint on 26 January 2024 from Mr. Kenyi Yasin Abdallah (the Complainant) on behalf of Civil Servants in the employ of the Government of South Sudan (the Civil Servants or the Victims) against the Republic of South Sudan (the Respondent State)1 . 2. The Complainant indicates that he is a South Sudanese human rights lawyer. He alleges that the Respondent State has not remunerated the Civil Servants for six (6) months and they have been subjected to economic hardship and starvation as a result. 3. The Complainant alleges that the Respondent State has suppressed any attempt by the aggrieved Civil Servants to protest their lack of pay through peaceful assembly. The Respondent State, he alleges has threatened to shoot protesters. 4. The Complainant states that there has been between 2022 and 2024, several incidents were teachers have attempted to protest the non-payment of salaries and in all instances were arrested and detained by the military. 5. The Complainant avers that the Respondent State instead diverts funds towards the payment of expensive International missions with large delegations as well as, the purchase of luxury vehicles for senior government officials. 6. The Complainant argues that there is rampant corruption in the Ministry of Finance, and that specifically in 2022 the Sudan People's Liberation Movement (SPLM) members were paid advance salaries of four (4) months which he avers was unlawful. 1
8. The Complainant further submits that the Council of Ministers; National Legislative Assembly; Judiciary and National Human Rights Commission were aware of this situation. ARTICLE(S) OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS (AFRICAN CHARTER) ALLEGED TO HAVE BEEN VIOLATED 9. The Complainant alleges that the Respondent State has violated Articles 5, 11, 15 and 22 of the African Charter. PRAYER 10. The Complainant therefore prays as follows: i. ii. iii. iv. v. vi. vii. A declaration that the policy of the Respondent State of prolonged Salary delay constitutes exploitation, is inhumane and enabling starvation; A decision requiring the Respondent State to strictly adhere to Article 57(1) of the Civil Service Act 2011; A decision requiring the Respondent State to clear all salary arears of civil servants both at National and State levels of Government; A decision requiring the Respondent State to establish a Salaries and Remunerations Commission in accordance with section 4.6.1.2 of the Revitalised Peace Agreement; A decision requiring the Respondent State to compensate every civil servant with a six-month salary for the suffering they endured; A decision requiring the Respondent State to reform her Human Rights Commission to be independent and effective by incorporating international standards of National Human Rights Institutions (NHRls) in its operations and appointment of its Commissioners, and incorporating prosecutorial powers and abolishing Section 30(3) of the Human Rights Commission Act 2009 and Section 159 of the Code of Criminal Procedure Act 2008; and A decision requiring the Respondent State to compensate the Complainant with USD30 000 for the costs of this communication. THE PROCEDURE 11. The Secretariat received the Complaint on 26 January 2024.
14. The Complainant's submissions on Admissibility and Merits were received on 6 June 2024, and the African Commission on Human and People's Rights (the Commission) acknowledged receipt on 28 June 2024. 15. The Complainant's submissions on Admissibility and Merits were transmitted to the Respondent State on 28 June 2024 and the Secretariat requested the Respondent State to make submissions on Admissibility and Merits, within sixty (60) days of notification, in accordance with Rule 116 (2) of the Rules of Procedure of the Commission, 2020 (ROP2020). 16. By Note Verbale dated 1 August 2024, the Respondent State replied to the Secretariat, acknowledging receipt of the Note Verbale of the Secretariat forwarding the submissions of the Complainants on Admissibility and Merits and requesting the Secretariat provide the case file details for further action and consultations. 17. By email of 5 August 2024, the Secretariat re-forwarded the submissions of the Complainants on Admissibility and Merits to the Respondent State. The Respondent State did not forward its submissions on Admissibility and Merits on the Communication. THE LAW ON ADMISSIBILITY Submissions of the Complainant on Admissibility 18. The Complainant submits that his Communication complies with the Admissibility requirement stipulated by Article 56 of the African Charter. 19. The Complainant submits that the author of this Complaint is clearly indicated and known by his name, occupation, address, contact, and nationality and that the author has filed the Complaint on behalf of a group of victims who are extremely vulnerable and legally, logical and practically unable to grant permission of legal representation due to grave fear of retaliation, including termination of employment, arbitrary arrest or detention by the army or national security agents. 20. The Complainant referred to the Commission's decision in Malawi African Association and Others v Mauritania2 , where it was held that "Article 56(1) of the African Charter demands that any persons submitting communications to the Commission relating to human and peoples 'rights must reveal their identity. They do not necessarily have to be the victims of such violations or members of their families. This characteristic of the African Chanter reflects sensitivity to the practical difficulties that individuals can face in countries where human rights are violated. ];frl~ afi.e~L or international channels of remedy may not be accessible to th ~ .- ~ ,;1"' g-· .. 2 Communications No. 54/91-61/91-96/93-98/93-164/97_196/97-210/98 Malawi Afrr·~ As • 3 n v Mauritania 2000. O :x ~ •. ~ ~ ~ o &/ f AU -UA ,r_:l' <;)'<' ~o'\, ~ 0-11 0,'?" , ./ ( -'Y. -'l•·RICAIN\:. O - ~ l f f. ·. 4'1,: ET DE:5 1>\:. ····,,~ - . . - ; .... ...,~-- · .. <v°' I t
Complainant submits that pursuant to Article 56 (1) of the African Charter, the author's representation of the victims is valid. 21. The Complainant submits that the Communication is compatible with the Constitutive Act of the African Union (AU) and the African Charter, further that the Complaint is not written in a disparaging language as the it is authored in a respectful tone and language, with due respect to the AU, its Organs, and the Respondent State, and is not based exclusively on news disseminated through the mass media on official information of the Respondent State and documented evidence, in compliance with Article 56(2), 56(3), and 56(4) of the African Charter. 22. Pursuant to Article 56(5) of the African Charter, the Complainant submits that domestic remedies are not available for the civil servants as they are restricted from suing the Respondent State and that the Civil Servants have a single institution, the Employees Justice Chamber to file their Complaint and proceed to court thereafter. However, the said institution, does not have jurisdiction to decide any matter or grievance relating to: i. matters that may impact on the Civil Service-wide workplace or employment policies of the South Sudan Civil Service; or ii. the fixing of terms and conditions of employment. (Section 29 (5) of the South Sudan Employees Justice Chamber Act, 2011 ). 23. According to the Complainant, the Complaint before the Commission is of a nature that has impact on the civil service-wide workplace, as it relates to the treatment and human rights violations of the entire civil servants. Moreover, the Complainant submits that Section 19 of the Civil Service Act, 2011 did not provide for the right to legal representation against the Respondent State, except the right to legal representation against a third party. The Complainant submits that the Complaint is, equally against institutions constitutionally mandated to protect human rights, including the Human Rights Commission, the Legislative Assembly, the Ministry of Justice, the Judiciary and the Employees Justice Chamber, who are also employers of the victims. 24. The Complainant further submits that South Sudan is governed by a military Government that has been in constant violations of Article 3 (e), (g) and (h) of the AU Constitutive Act and the military group of the Respondent State actively undermines human rights in South Sudan. The Complainant argues that the persistent violation of Article 3 (h) of the AU Constitutive Act undermines the very foundation of the African Union. These conditions have effectively supplanted judicial authority with reprehensible practices, leaving victims with no access to domestic human rights remedy. The Complainant refers to Mouvement ivoirien de droits de /'Homme -el rly (MIDH) v. Cote d'/voire 3 where the Commission decided that, when it ap that the Complainant does not have the qualification/possibility to use th att~ to • •. remedies, the Commission considers that it is as if there is no locaJ. . ,, se~y'~ al (M)feo<"0 • for the Complainant. / l ~ 1"' :·~ ii .3~ ' Communication 262/02- Mouvement ivoirien de droits de !'Homme (MIDH) v. Cot !f.. n "'· ,___ C:: ..q,·RICA\Nt ~ VJ '/ '·=·;:,, ' E E T Of:S l)t\) •
25. Accordingly, the Complainant submits that the problems were known to the Council of Ministers, including the President of South Sudan even before "the approval of the budget for the financial year 2023-2024 in November 20234 . Yet, the Respondent State to suppress protests and threats to use live bullets as public money is regularly being squandered. The Complainant further argues that the Office of the President issued a statement on its official Facebook page, which stands similar to a Government Gazette, on 9 July2021, 24 November 2021, 16 December 2021, 26 May 2022 and 1 August 2022, acknowledging the violations suffered by the civil servants. The Minister of Finance also issued a statement on 13 December 2023 and 20 January 2024, acknowledging the same. 5 26. The Complainant indicates that Article 56 (5) of the African Charter requires that local remedies, if any, be exhausted, unless these are unduly prolonged. The Complainant referred to SERAC V. Nigeria: where the Commission held that, the exhaustion of domestic remedies requirement should be properly understood as ensuring that the State concerned has ample opportunity to remedy the situation of which applicants complain. A state has more than sufficient opportunity to give domestic remedies when it had ample notice over the past several years . .. and, where a right is not well provided for in domestic law such that no case is likely to be heard, potential conflict does not arise. Similarly, if the right is not well provided for, there cannot be effective remedies, or any remedies at all. 27. The Complainant submits therefore, that the South Sudan Government, including the Office of the President, has had ample notice of the human rights violations being suffered by the civil servants. Instead of remedying the violations, the Respondent State rather imposed terror on its citizens while regularly diverting public funds for private and illegal purposes. The Complainant submits that with this state of affairs, there is logically no domestic human rights remedy in practice, as the Respondent State perceives human rights negatively, and as such the Article 56(5) of the African Charter has been satisfied. 28. The Complainant submits that in accordance with Article 56(6) of the African Charter, the Complaint is submitted within a reasonable time from the date the Annual Fiscal Budget 2023- 2024 was passed in November 20236 . The Complainant avers that only one salary for August 2023, from this amount has been paid to Civil Servants for the budget period since 2023. The Complainant submits that with just a few months to the next financial year, salaries for more than eight (8) months have not yet bee~ •·:i=atR the last communication from the Minister of Finance in December 2023;t· - ~tQ9~f l'le-<11, 0 intention to clear the salary arrears was futile and all attempts by the ,;- ~~tims"' 'iy1,,. ~ ,. express their voice on the matter were met with unprecedented forc~.p • ~\ !q: ~ u 1 ii' \4 \ lJ) ~ 'i ,f) u' \\. <· /0 ._______- '),<I '-, 'YO¾ 4 (the law that allocated funds to pay civil servant's salaries) 5 (the Evidence list in pages 1 to 7 and the Approved Fiscal Budget 2023-2024), 6 ~ ~ l:' ~ U' \' ' "' () <;2 <:::>" !<-"=' ,-,i'ICAINt O x."=' ,· 11l" n DE S r1:.0<?"' '--....::= (i.e. the legal document that allocated 424.3 billion South Sudanese Pounds for wages and salaries). 5 CJ :r ,;; 1/ !
29. Regarding Article 56(7) of the African Charter, the Complainant submits that the Communi'cation or any part of it is not a subject in any litigation or proceeding in any court or other legal proceedings in any national, regional or international institution. Respondent State's Submission on Admissibility 30. Despite the fact that the Commission requested the Respondent State to submit its submissions and evidence on Admissibility and Merits in accordance with Rule 116 (2) of the ROP 2020, no response has been received. 31. In a situation where a State Party fails to submit its observations and evidence in line with Rule 116 (2) of the ROP 2020, despite notice to that effect, the Commission has no option but to proceed with its consideration of the Communication 7. Accordingly, and in line with its existing jurisprudence, the Commission will analyze and determine the Admissibility of the Communication based on the information supplied by the Complainant in his submissions on Admissibility. Analysis of the Commission on Admissibility 32. The Commission recalls that Article 56 of the African Charter governs the Admissibility of Communications and sets out seven (7) requirements based on which the Commission assesses the Admissibility of Communications submitted before it. For a Communication to be deemed Admissible by the Commission, it must meet the (7) requirements which apply conjunctively and cumulatively. 33. In relation to Article 56(1) of the African Charter states that "Communication relating to Human and Peoples' Rights ... received by the Commission shall be considered if they indicate their authors even if the latter request anonymity ... " The Complaint received by the Commission indicates the author and he did not request anonymity. The Commission therefore holds that the requirement under Article 56( 1) of the African Charter is fulfilled. 34. Article 56(2) of the African Charter states that 'Communications ... received by the Commission shall be considered if they are compatible with the Charter of the Organisation of African Unity or with the present Charter', and in this Complaint the Communication is brought against the Republic of South Sudan, a State Party which ratified the African Charter on 23 October 2013. The Communication alleges violations of the rights contained in the African Charter, in particular, rights guaranteed under Articles 5, 11, 15 and 22 thereof. Given the fact that the Communication is compatible
with the AU Constitutive Act and the African Charter, the Commission therefore holds that the requirements under Article 56(2) of the African Charter have been fulfilled. 35. Articled 56(3) of the African Charter states that "Communications .. .received by the Commission shall be considered if they are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organisation of African Unity now African Union (AU)". The Commission is of the view that the language used in the Communication is not written in disparaging or insulting language directed at the State, its institutions or the AU and for these reasons, the Commission finds that the requirements of Article 56(3) of the African Charter have been fulfilled. 36. Article 56( 4) of the African Charter states that "Communications relating to human and Peoples' Rights ... shall be considered if they are not based exclusively on news disseminated through the mass media." There is no evidence in this Communication which indicates that the allegations contained therein are based exclusively on news disseminated through the mass media. The evidence provided is based official information of the Government and documented evidence. For these reasons, the Commission finds that the requirements of Article 56( 4) of the African Charter have been fulfilled. 37. Article 56(5) of the African Charter, states that 'Communications should be 'sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged. This requirement is based on the fundamental principle that the Respondent State must first have an opportunity 'to redress within its own domestic legal system, the wrong alleged to have been done to the individuaf .8 38. The exhaustion of local remedies requirement is a fundamental principle of international law ensuring the proper functioning of domestic legal systems and granting national authorities the opportunity to address alleged violations before international intervention. The Commission in its jurisprudence has held that Complainants are required to exhaust local remedies if they are available, effective and sufficient. A local 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 Complaint9 . 39. In the present Communication, the Complainant argues that domestic remedies are not available for the Civil Servants and puts forward the following arguments: a) Civil Servants are restricted from suing the Respondent State and have a single institution i.e., the Employee Justice Chamber, to file their complaint; b) the Employment Justice Chamber does not have j • determination about grievances relating to "civil service policies, terms and conditions, which is the subject matter o "\ {'(', I.I' '. • 0 7J \ - Cl ~ ,u 8 Communication No. 71/92 - Rencontre Africaine pour la Defence des Droits de !'Homme v. Zambia f1p abo e). 9 Communication 147 / 95 -149/96 Sir Dnwd11 K. J11wnm vs. The G11111bin, para. 32 \~ " ~ f en ,' 'Y 4"R1c r.11<\'., ~E E1 Ot - ---~·•····'·_ ....,...
relates to the treatment and human rights violations of the "entire civil servants "of South Sudan; c) victims face insurmountable obstacles in seeking justice and accountability; and suppression by the Respondent State of any attempt by the aggrieved civil servants to protest their lack of pay through peaceful assembly, including scores of arrest, detention and threat to shoot protesters have supplanted judicial authority with reprehensible practices, leaving victims with no access to domestic remedy. 40. The Commission notes from the submissions before it that the present Communication is brought on behalf of the entire civil servants of South Sudan 10 . The Commission further notes the argument of the Complainant that the civil servants have a single institution i.e., the Employee Justice Chamber, to file their complaint and proceed to court thereafter, however the Employment Justice Chamber does not have jurisdiction to make determination about grievances relating to civil service wide employment policies, terms and conditions. Article 29(5) of the Southern Sudan Employment Justice Chamber Act 2011 stipulates that "The Chamber does not have jurisdiction to make a determination about any matter or grievance relating to- (a) matters that may impact on the Civil Service-wide workplace or employment policies of the Southern Sudan Civil Service Chamber". In accordance with the Article 29(5) of the Employment Justice Chamber Act 2011 of the Respondent State, the Commission agrees with the Complainant that the Employment Justice Chamber does not have jurisdiction to hea.r the present Complaint. 41. Having determined that the Complaint cannot be determined by the Employment Justice Chamber, the next domestic remedy that the Complainant should proceed to, are the judicial courts in the Respondent State, in order to exhaust domestic remedies. 42. On this note, the Complainant argues that domestic remedies are not available and gave examples of a series of instances of human rights violations, including arbitrary arrest and detention of human rights defenders and civilians; several incidents were teachers have attempted to protest the none-payment of salaries and in all instances were arrested and detained by the military; and incidents where police fired live ammunition during a youth protest regarding the sky rocketing prices of food. Furthermore, the Complainant argued that because victims face insurmountable obstacles in seeking justice and accountability with suppression by the Respondent State of any attempt by the aggrieved civil servants to protest their lack of pay through peaceful assembly with scores of arrest, detention and threat to shoot protesters11 , this have supplanted judicial authority with reprehensible practices, leaving victims with no access to domestic remedy. 10 The government estimated that the number of its employees is 559,590-Approved Fiscal Bu Year 2023 -2024 ~=~.... 11 The According to the Complainant, the Minister of Information who is the governm· made a statement that " anyone who wants to protest should know that South Sudan ·, ·, teargas, but only line bullets" . httP>.: J/ www.s udanspost.com/govt-re1wws- threats-qf;..~.,., aga inst-p r o tester sL ' - \ ,_"':, • '.( ,gty 4 •• t,.l't<\,
43. The Commission will now turn to its jurisprudence to determine whether under the circumstance of this Communication and the arguments put forth by the Complainant, this Communication falls within the category of Communications where exceptions to the requirement to exhaust domestic remedies should apply? 44. According to the jurisprudence of the Commission, the principle of exhaustion of local remedies requires that the Complainant or Victims provide some prima facie evidence of an attempt to exhaust local remedies. Additionally, in Free Legal Assistance Group and Others v Zaire 12 and Rencontre Africaine pour la Defense des Droits de /'Homme v Zambia, 13 the Commission held that the requirement on exhaustion of local remedies is founded on the principle that a Government should have the opportunity to remedy such violations before approaching an international body. 45. Based on the facts before this Commission, the present Communication has not been submitted to the domestic courts of the Respondent State for adjudication, because according to the Complainant, victims face insurmountable obstacles in seeking justice and accountability with suppression by the Respondent State of any attempt by the aggrieved Civil Servants to protest their lack of pay through peaceful assembly with scores of arrest, detention and threat to shoot protesters, and this have supplanted judicial authorities with reprehensible practices, leaving victims with no access to domestic remedy. 46. The Commission in Article 19 v Eritrea and Anuak Justice Council v. Ethiopia held that "it is incumbent on the Complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of local remedies", adding that: "it is not enough for the Complainant to cast aspersions on the ability of the domestic remedies of the State due to isolated or past incidences". The Commission further held that "the argument that local remedies are not likely to be successful, without trying to avail oneself of them, will simply not sway this Commission". 47. Based on the above, the Commission is of the view that the Complainant's reliance on incidents of threats, arrest and detention mainly during protests in the Respondent State, is not adequate to cast aspersions on the futility of approaching the domestic courts, and does not amount to a reasonable justification for not approaching the domestic courts to exhaust local remedies. Consequently, the Commission finds that the Complainant has not illustrated that the Civil Servants had taken any steps to approach the Courts and that the arguments put forth fall under the exceptions of exhaustion of local remedies principles.
from approaching the domestic courts. The Commission's application of the doctrine of actio popularis does not prejudice the obligation of the authors of Communications to exhaust domestic remedies, where such remedies exist and are reasonably available. This ensures that reliance on actio popularis before the Commission does not automatically exempt complainants from the requirement to exhaust domestic remedies merely because such remedies are unavailable to actio popularis Complainants at the domestic level. Rather, the exhaustion requirement continues to be assessed in light of the availability and effectiveness of remedies within the domestic legal system, consistent with the Commission's established jurisprudence. Again, the Commission finds that the Complainant has not illustrated that the Civil Servants, on whose behalf the Communication has been brought, had taken any steps to approach the Courts as structured at the domestic level. 49. Furthermore, although the Commission acknowledges the Respondent State's duty to investigate and administer justice for human rights violations, it is also essential for the Commission to ensure that the Complainants have exhausted all available local remedies through national judicial processes, to sort redress. Mere knowledge or awareness of the violation by the Respondent State is insufficient to exempt the Complainant from meeting this exhaustion of local remedies requirement. Instead, the Complainant should have actively pursued all domestic remedies to provide the Respondent State with the opportunity to address the alleged violations, through its national mechanisms. 50. With the above findings therefore, the Commission holds that the requirement under Article 56(5) of the African Charter has not been satisfied . 51. Article 56(6) of the African Charter states that Communications relating to human and Peoples' Rights... shall be considered if they: are submitted within a reasonable period from the time local remedies are exhausted, or from the date the Commission is seized with the matter". The Complainant submits that the Complaint is submitted within a reasonable time from the date the Annual Fiscal Budget 2023- 2024 was passed in November 2023 14 . The Complaint was submitted to the Secretariat of the Commission on 26 January 2024. The Commission has established jurisprudence, such as in Promoting Justice for Women and Children (PROJUST NGO) vs. the Democratic Republic of Congo, in which it held that where Article 56(5) of the African Charter has not been complied with, there is no reason for proceeding to consider Article 56(6) thereof, as it will be concluded that the latter _.s...oQt been ~ matit;M,c ot complied with . As such, the Commission concludes that this Com 4 consequently meet the requirements of Article 56(6) of the Africa; ~,.~ _ fiaf•feft,1 1?'<1,- 0 ~o ,~ ./!; lo n ii ~ \...- i.e. the legal document that allocated 424.3 billion South Sudanese Pounds for w ges , o • ( I l!!:r· :!'. ~ A 14 1-~ ' ,! v ..... 0 ~· """~ -~ 'l,·R1 t.1Nt- O ...., V) (// "'<,"? --~ 1o 0<? s ~t.
52. With regards to Article 56 (7) of the African Charter , which provides that "Communications relating to human and Peoples' Rights ... shall be considered if they: ~n~ ~~ with cases which have been settled by these states involved in accordance with the principles of the Charter of the ljnited Nations, or the Charter of the Organisation of African Unity or the provisions of the present Charter. The Commission has not come across any indication or evidence that the present Communication has been settled before any other international forum. Accordingly, the Commission finds that the requirement of Article 56 (7) of the African Charter has been fulfilled. Decision of the Commission on Admissibility 11

Created 10 de ago. de 2026 · Edited 10 de ago. de 2026