Communication 331/06 [R] - Kamanakao Association, Reteng & Minority Rights
Group v. The Republic of Botswana
Summary of the Application for Review
1. On 18 February 2013, the Secretariat of the African Commission on Human and
Peoples’ Rights (the Commission) received a request for reconsideration of the
decision of the African Commission on Human and Peoples’ Rights (the
Commission), on Communication 331/06 - Kamanakao Association, Reteng &
Minority Rights Group v. The Republic of Botswana.
2. The request is submitted by Kamanakao Association, Reteng and Minority
Rights Group International (the Complainants), on behalf of the non-Setswana
minorities in Botswana, including the Wayeyi tribe (the Victims).
3. The request is submitted in accordance with Rule 107(4) of the Commission’s
Rules of Procedure.
4. It should be recalled that Communication 331/06 was declared inadmissible by
the Commission during its 10th Extra-Ordinary Session, held from 12 – 16
December 2011, on grounds of non-exhaustion of local remedies and the
timeliness of submission of the Communication to the Commission following the
exhaustion of local remedies.
5. The Complainants base their request for review on the fact that the requirement
to exhaust available, effective and suffcient domestic remedies has been met in
the present Communication, as confrmed in a recent decision of the Court of
Appeal of Kgosikgolo Kgafela II Kgafela and Dithshwanelo (The Botswana
Centre for Human Rights) v. Attorney General of Botswana and Others (2012)
( t h e Kgosikgolo case), which endorses the Complainants submissions on
admissibility.
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6. The Complainants note that the principal reason given for declaring the
communication inadmissible was the failure to exhaust domestic remedies by not
appealing the domestic decision of the High Court to the Court of Appeal.
7. The Complainants submit that the Commission has previously held, in
Communication 147/95-149/96 - Sir Dawda K. Jawara v. The Gambia, that the
underlying rationale of the local remedies rule was to ensure that the State
concerned had the opportunity to remedy the matter through its own local
system before proceedings were brought before an international body, and these
remedies must be available, effective and suffcient. 1
8. The Complainants submit that in the domestic case fled before the High Court,
the Court made it clear that it did not consider that it had the power to declare on
the constitutionality of provisions of the Constitution. The Complainants aver
that no appeal was brought against the domestic case on the basis of a previous
Court of Appeal decision in which it held that any such case was bound to fail.
The Complainants further submit that in a subsequent domestic case, the Court
of Appeal unanimously endorsed the views expressed by the High Court in
Kamanakao and Others v. the Attorney General and Others.
9. The Complainants submit that in the Kgosikgolo case, the Court of Appeal held
that: “… to strike out one section of the Constitution as offending another is to
rewrite the Constitution … to be able to do so … Court would need to have
express powers derived from the body of the Constitution itself, enabling the
revisionary instrument for the alteration of the Constitution … That is not the
normal function of a Court. That function is usually left, as has been done in the
Botswana Constitution, to representatives of the electorate who can, through
discussions and consultation among themselves and with their constituents,
agree new provisions to right what is wrong or lacking … We do not think that
such awesome powers as to rewrite the Constitution can be assumed to exist
unless they are clearly and expressly granted by unambiguous language.” The
Complainants assert that this ruling of the Court of Appeal is further evidence
1
Communication 147/95-149/96 - Sir Dawda K. Jawara v.The Gambia (2000), para 31, 32
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that any appeal brought directly against the High Court decision regarding the
discriminatory nature of the Constitutional provisions, would have been bound
to fail.
10. The Complainants therefore submit that the above constitutes new evidence
which establishes that Article 56(5), on the exhaustion of local remedies, has been
met in the present Communication.
Prayers of the Complainants
11. The Complainants request the Commission to set aside its earlier decision, and
fnd the Communication admissible.
Procedure
12. The request for review was received at the Secretariat on 18 February 2013. The
Secretariat acknowledged receipt and transmitted the request to the Respondent
State for its comments on 01 March 2013. The Respondent State has not
submitted any comments on the request for review. The Commission will
proceed to examine the application on the basis of the Complainants
submissions.
Analysis of the Commission on the Review
13. The present request for review is submitted pursuant to Rule 107(4) of the Rules
of Procedure of the Commission. The Rule provides as follows: If the Commission
has declared a Communication inadmissible, this decision may be reviewed at a later
date, upon submission of new evidence in a written request to the Commission by the
author.
14. In order to determine whether the Commission’s decision in the above
Communication is reviewable, the Commission will assess whether the issues
raised by the Complainants constitute new evidence in terms of Rule 107(4) of
the Commission’s Rules of Procedure.
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15. The Commission notes that in applications of this nature “the application would
be granted where it is proved that some facts have been discovered which
intrinsically might have had a decisive infuence on the judgment had it been
brought to the attention of the Commission at the time the decision was made,
but which at the time was unknown to both the Commission and the party
making the application and also which could not, with reasonable diligence,
have been discovered by the party before the judgment was made or on account
of some mistake, fraud or error on the face of the record or because an injustice
has been done.”2
16. The Commission notes that the new evidence provided in the request for review
submitted by the Complainants is the recent decision of the Court of Appeal, in
the Kgosikgolo case.
17. The Commission’s jurisprudence highlighted above contemplates a review on
the basis of evidence which existed at the time the Commission took its decision
on Admissibility, but was not known to the Complainants at the time. However
from the facts of the review adduced by the Complainants, the evidence being
relied on did not exist at the time the Commission declared the communication
inadmissible in 2011, and therefore does not constitute new evidence within the
meaning adopted by the Commission.
18. From the above, it is evident that the Complainants have not adduced new
evidence to warrant a review of the Commission’s decision.
Decision of the Commission
19. The application is hereby dismissed.
Done at the 14th Extra-Ordinary Session of the African Commission on Human
and Peoples’ Rights, held from 20-24 July 2013, in Nairobi, Kenya
2
Communication 384/09 - Kevin Ngwang Gumne et al v. Cameroon (2012), para 37
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