Communication 407/11- Artur Margaryan and Artur Sargsyan v the Republic of
Kenya
Summary of the Complaint:
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a Complaint on 7 October 2011 from Artur Margaryan and
Artur Sargsyan (the Complainants) against the Republic of Kenya1 (the
Respondent State).
•
2. The Complainants are Armenian nationals who nonµally reside in the United
Arab Emirates. The Complainants submit that on 18 January 2006 they applied
for work permits for the position of Directors in "Kensington Holdings Limited"
and "Brother Link International Li.Jnited" in the Respondent State. These
companies were registered in the Respondent State's Registrar of Companies on
13 February 2004 and 1December2005, respectively. The Complainants submit
that they were each granted a work permit for a period of two years on 19
January 2006 by the Inter-Ministerial Co:trimittee of the Respondent State .
.
3. The Complainants aver that their business involved importing a large number of
goods, mainly electronic eqtdpment, into the Respondent State.
4. The Complainants allege tbafsince the beginning of their stay in the Respondent
State, Mr. Raila Odinga, currently the Prime-Minister of the Respondent State,
announced in public, i;nter alia, th;;J,t the Complainants entered the country
without compliance to relevant ~tc:i.tfites, that they were mercenaries, they had
connections with people known to be dealing in drugs and no meaningful
investigation had betID. caii;:i~~lpµt .in respect of these allegations.
'
... ' j ·,
5. The Complainants submit that they held a press conference in which they refuted
the statements of Mr. Od:U:tga as false, malicious and defamatory to them. The
Complainants submit that they met Mr. Odinga on several occasions in the
Respondent State prior to his allegations, when he sought a loan from the
Complainants amounting 1.5 million US Dollars to finance certain political
activities; however the Complainants declined to grant this loan. The
1
The Republic of Kenya ratified the African Charter on Human and Peoples' Rights on 23
January 1992.
Communication 407/11 - Artur Margaryan and Artur Sargsyan v the Republic of Kenya
Complainants submit that Mr. Odinga subsequently obtained a personal loan
from Mr. Artur Margayan, which he did not pay back. The Complainants
indicate that Mr. Odinga was publishing false statements with the intention to
"close of the door of the Respondent State before them," in order to avoid
returning the borrowed money.
6. The Complainants submit that the scandal was repeatedly published in the mass
media and broadcasted on TV with various comments made from other public
officials and citizens.
7. The Complainants submit that in the spring of 2006, Mr. Artur Margaryan
lodged a civil suit with the High Court of.the Respondent State, Case No. 314 of
2006, against Mr. Raila Odinga, seeking to have his false, malicious and
defamatory statements refuted. The Complainants submit that each of the parties
filed written comments contesting the allegations of Mr. Odinga; however the
case is still pending trial.
•
8. The Complainants submit that on 8. June 2006 at 7.00 pm, Mr. Artur Margaryan
went to the Jomo Kenyatta Internatiqnal Airport (JKIA) to meet his guests from
Dubai. The Complainants submit that some Customs officials at JKIA alleged
that one guest had not declared and paid the duty fee for some of the goods in
his luggage. Mr. Artur Margayran objected, stating that no duty fee should be
paid for personal belongirigs: The Complainants aver that the matter dissolved
into an argument; how.r Mr. Artur Margaryan was forced to take the luggage
away and resolved to s~le the disputed matter later.
9. The Complainants submit that on the same day, 8 June 2006 at 11.45pm, they
were arrested at tlj~it :feSid(;lrtce and escorted to the police station where they
were put in custody.
10. The Complainants submit that on 9 June 2006 they were compulsorily expelled
from the Respondent State to the United Arab Emirates. Further, on the same
day, the police searched their house and seized all their goods, including 13
vehicles.
11. The Complainants state that by Gazette Notice No. 4308 of 13 June 2006, the
President, acting under Section 3 of the Commissions of Inquiry Act Cap 102,
appointed a Commission to inquire into "various wrongful, criminal or
13th Extra-Ordinary Session
21Page
•
Communication 407/11 - Artur Margaryan and Artur Sargsyan v the Republic of Kenya
otherwise unlawful acts and omissions, including but not limited to breaches of
security proceedings involving the Complainants and Others." The Commission,
also known as the Kiruki Commission, was also requested to recommend, inter
alia, criminal investigation or prosecution of the Complainants.
12. The Complainants submit that the Kiruki Commission should have been
inquiring into the circumstances and events leading to their deportation.
13. The Complainants submit that on 28 June 2006 the Kiruki Commission started its
public hearings, which were subsequently completed on 2 August 2006. The
Kiruki Commission heard 84 witnesses and produced 83 exhibits against the
Complainants.
14. The Complainants submit that their<Defense Counsel attempted, twice, to take
part in the proceedings, however he was not allowed to attend the proceedings.
The Complainants submit that the Kir.uki Commission stated, in its report, that
. this prohibition was necessary because the Colll-plainants, in their criminal
transactions, "used intermediarieSi:'Su.ch as advocates, who were retained in their
transactions."
•
15. The Complainants submit that, in ~a letter dated 28 August 2006, the Kiruki
Commission submitted its,,r.eport to the President which stated, inter alia, that the
issuance of work permitS, the handling and custody of their Entry Declaration
Cards, the security of Blank Passpor~· before issuance and the deportation were
not procedural. The KirUki Co~ion also concluded that the issuance of
Airport Passes was irregulc:u;;. .:·tlfte (use of the Government VIP lounge was
unauthorized and the breaches of security at the Baggage Hall on 8 June 2006
were criminal and tlfttfe'afilrting,to?.public officers as well as the public. The Kiruki
Commission further nptei;fi that the procedure for registering the companies
associated with the Complainants was not adhered to, such as signature and
stamp duty evasion. The KiruJ<i Commission also noted that following the raid of
the Complainants residence, the police recovered the imported goods for which
the Complainants refused to pay duty, thirteen vehicles which were believed to
have been stolen, six firearms which were not licensed and two forged State
passports of the Respondent State, among other items.
16. The Complainants submit that the Kiruki Commission concluded, inter alia, that
the evidence revealed possible criminal acts committed by the Complainants,
13th Extra-Ordinary Session
3IPage
Communication 407/11- Artur Margaryan and Artur Sargsyan v the Republic of Kenya
namely robbery with violence (Section 296(2) of the Penal Code); handling
suspected stolen property (Section 322 of the Penal Code); being in possession of
firearms without a certificate (Section 4(2), as read with Section 3(a) of the
Firearms Act Cap 114); forgery (Section 349 of the Penal Code); being in
possession of un-customed goods (Section 220(d)(iii) as read with Section 201 of
the East African Community Management Act); establishing radio
communication apparatus without a license (Section 35(a)(ii) of the
Communication Commission Act No.2 of 1998 and fraudulent immigration
(Section 114(i) of the Traffic Act Cap 403). The Kiruki Commission recommended
that criminal investigation and prosecution of the Complainants for the stated
criminal offences.
17. The Complainants submit that since the K.il'..uki Commission submitted its report
to the President, no further proceedings have been conducted by an investigation
authority, or the Courts.
•
Articles alleged to have been violated
18. The Complainants allege that the Respondent State has violat~d Articles 7(1)(a),
(b), (c),(d), 12(4) and 14 of the African Charter.
Procedure
19. The Secretariat of the African Commission received the Complaint on 7 October
2011.
.
20. By letter ACHPR/COMM"/407/11/KEN/0.1/757.11 dated 19 October 2011, the
Secretariat acknowledged receipt of the Compliant and informed the
Complainants that it has been registered as Communication 407/11 - Artur
Margaryan and A.dl(;tr Sargsyanv. The Republic of Kenya.
21. During its 50th Ordinary Session held from 24 October to 5 November 2011, in
Banjul, The Gambia, the Commission considered and decided to be seized with
the Communication, and the Complainants and the Respondent State were
informed of the said decision by a letter dated 18 November 2011 and Note
Verbale dated 21November2011 respectively.
22. During its 51 st Ordinary Session held from 18 April to 2 May 2012 in Banjul, The
Gambia, the Commission decided to defer its decision on the Admissibility of the
Communication pending submissions from both parties. Both parties were
13th Extra-Ordinary Session
41Page
•
Communication 407/11 - Artur Margaryan and Artur Sargsyan v the Republic of Kenya
informed of such decision by Note Verbale and letter dated 8 May 2012, and in
the same letter the Secretariat also requested the Complainants if they want their
submissions on seizure to be also considered for admissibility.
23. On 10 August 2012 the Secretariat received the submissions of the Respondent
State, and by a Note Verbale dated 16 August 2012 it acknowledged receipt, and
on the same day forwarded the submissions to the Complainants.
24. At its 52nd Ordinary Session the Commission deferred the consideration of the
Communication due to time constraints, and informed the parties of the same by
a Note Verbale and letter dated 5 November 2012,
Reasons for Strike out
25. Rule 105(1) of the Rule of Procedures of the Commission provides that when the
Commission decides to be seized with a Communication, it shall inform the
Complainant of the decision and request the latter to submit evidence and
arguments on admissibility within two months. In accordance with this Rule, the
Complainants by a lette.r dated 18 November 2011 were informed that tpe
Commission was seized with the Communication, and were requested to present
evidence and arguments on Admissibility within two months.
•
26. However, the Secretariat dicl not receive any submissions or correspondence of
any kind from the CompJctinants within the two months deadline. Accordingly,
in a letter dated 8 May 2012 the Secretariat requested the Complainants if they
want their original submissions ~;m seizure to be also considered for
admissibility. Nonetheless, ~e. Secretariat did not receive any response from the
Complainants.
27. On 10 August 2012 tfte Seqretariat received the submissions on the Admissibility
of the Communication frqfu. the Respondent State, and acknowledged receipt of
the same by a Note Verbale dated 16 August 2012.
28. Even though the Complainants failed to initiate the admissibility proceedings by
submitting their arguments as required under Rule 105(1) of the RoPs, the
Secretariat on 16 August 2012 forwarded the submissions of the Respondent
State to the Complainants and requested them to forward their observations
within one month of notification, that is before 18 September 2012.
13th Extra-Ordinary Session
SI Page
Communication 407/11 - Artur Margaryan and Artur Sargsyan v the Republic of Kenya
29. The Complainants did not acknowledge receipt of the Respondent State's
submissions or forward their observations on the said submissions.
30. During the 52nd Ordinary Session the Commission did not consider the
Communication due to time constraints, and subsequently by a Note Verbale
and letter dated 5 November 2012 the parties were informed of such fact, and
were further informed that they will be duly informed of the outcome of the
consideration, when a decision is taken regarding the Communication by the
Commission.
31. The Commission notes that between 5 Novemper 2012 and January 2013, the
Secretariat has made numerous attempts to conununicate the Complainants via
email and telephone to no avail.
e
32. The Commission also notes that since the Secretariat received the original
Complaint from the Complainant$ on 7 October 2011, it has not received any
submissions or correspondence of any1~9tO. from the Complainants.
"
Decision of the Commission
33. In view of the above the Commi~s~on hereby decides to:
I.
strike out the Commtinicatioo foi lack of due diligence in prosecuting the
case; and
II.
notify both parties of; the dec;~fon.
Done in Banjul, The.,Gamtil~-tiltlie 13th Extraordinary Session of the African
Commission on Humanil,ndHeoples' Rights held from 19 to 25 February 2013
13th Extra-Ordinary Session
GI Page
e