Of all the requirements for the admissibility of
communications or applications in the different human rights mechanisms in
Africa, The rule on domestic or local remedies is the most important. This
requirement must be complied with if not the communication will be declared inadmissible.
The requirement has for many years operated as an iron wall which prevents individuals’
free access to seeking justice when they feel such justice cannot be readily
obtained from national legal systems. The rule to exhaust local remedies is
just one of the many requirements to be fulfilled by a complainant who wants to
file a case through the African Human rights mechanisms such as the commission,
the court and the committee and it has over the years stood out as the most
important requirement. In Sir Dawda
Jawara Vs. The Gambia[1]
The commission held that:
“This rule is one of the most important conditions for
admissibility of communications, there is no doubt therefore, that in almost
all the cases, the first requirement looked at by both the Commission and the
state concerned is the exhaustion of local remedies…the rationale of
the local remedies rule both in the Charter and other international instruments
is to ensure that before proceedings are brought before an international body,
the State concerned must have had the opportunity to remedy the matter through
its own local system. This prevents the Commission from acting as a court of
first instance rather than a body of last resort”
This requirement must be fulfilled in order for the
communication to pass the admissibility stage. For the
communication to be admissible, it must comply with the following rules below
according to article 56 (6) of the African Charter.
1.
It
must indicate the author(s) even if the latter request anonymity,
2.
The
communication must be compatible with the Charter of the Organization of
African Unity or with the present Charter,
3.
It
must not be written in disparaging or insulting language directed against the
State concerned and its institutions or to the Organization of African Unity,
4.
It
must not be based exclusively on news discriminated through the mass media,
5.
It
must be sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged,
6.
It
must be submitted within a reasonable period from the time local remedies are
exhausted or from the date the Commission is seized of the matter, and
7.
It
must not deal with cases which have been settled by these States involved in
accordance with the principle of the Charter of the United Nations, or the
Charter of the Organization of African Unity or the provision of the present
Charter.
8.
The
matter must not be pending before any other international mechanism for
adjudication.
However, in as much as this rule serves as an iron bar, it
is worth necessary to understand what it is and the reason for its existence. Exhaustion
of local remedies is a principle in international Human Rights law which
requires that before a matter is brought to an international forum for
adjudication, the local/national courts of the complainant(s) must have first
been given the opportunity to try and provide remedy on the matter. This definition
according to me is self-explanatory and from it, is found the main reason for
the requirement; i.e. the preservation and respect of state sovereignty.
The
respect for State sovereignty is therefore paramount because national courts
are and should be considered always by litigants as courts of first and last
instance. International tribunals are secondary and should only operate as
complements to national courts. This reason accounts for why in almost every
international tribunal such as the African commission, the African Court, The
African Committee of Experts for the Rights and Welfare of the Child, the
European Court on Human Rights, the inter-American Court on Human rights all
have the requirement that local remedies must be exhausted unless where it is
not possible to do so for some reasons which will be discussed in the later
paragraphs. Even in international courts having criminal jurisdiction such as
the International Criminal Court (ICC) and the International court of Justice
(ICJ), this requirement is applicable.
The principle of complementarity is the
bedrock upon which the ICC was founded for example. This goes a long way to
tell us that, national courts are the primary adjudicatory bodies charged with entertaining
matters be, they civil or criminal in nature. The state has the machinery in
place to ensure the enforcement of any judgment that is given by local courts
unlike international tribunals whose decisions are often times not binding on
state parties or are at best recommendations. It is therefore necessary for a
litigant to first give the opportunity to local tribunals to hear a case and not
jump to get remedy elsewhere and to pass the test of admissibility at the
international tribunals, this requirement should and must be satisfied by the
litigant. The local remedy rule therefore helps to prevent a situation of forum
shopping between local courts and international tribunals and with this I
believe the territorial integrity of states will always be respected and
preserved.
Another salient reason why local remedies requirement is important
is the possibility of avoiding an overflow of cases before the international
tribunals. The issue of avoiding flood gates of cases is very important as it
prevents just every kind of case to be heard at the international scene. If
this requirement was not available, I’m very sure that, in Africa for example,
less than 40% of cases will be taken to local courts. It is a general notion
with most litigants in Africa especially victims of human rights violations
that, if they have their cases heard by an international court/tribunal, they
will most certainly get fair and impartial justice which to them is most often
compromised in their domestic legal systems. This is a truism however if one
considers the different type of countries in Africa and how some of the legal
systems function.
However, no matter the situation in a domestic system, the principle
of exhausting local remedies must always be complied with and cannot be
whittled down for any reason that is far from being reasonable. In Rencontre Africaine pour la Defense des
Droits de l’Homme v Zambia[2]
the African Commission held that;
the rule requiring
the exhaustion of local remedies as a condition of the presentation of an
International claim is founded upon, amongst other principles, the contention
that the respondent state must first have an opportunity to redress by its own
means within the framework of its own domestic legal system, the wrong alleged
to have been done to the individual. This decision by the commission is
satisfactory enough to acclaim that, states at all times must be given priority
to try a matter and not international tribunals.
However, the
international human rights mechanisms in Africa most especially the African
Commission and the African court have somehow soften the rules regarding local
remedies. Most decisions rendered by them have shown that, in the mind of the
courts, the rule is very rigid and so its applicability should not be so
strictly construed but should be construed vis a vis the case at hand or at
best the rule should be construed on a case to case basis. The Inter-American court
on Human rights, in Fairén
Garbi and Solís Corrales v. Honduras[3],
held
in this light that; ‘the conduct of the state normally would imply a waiver of
exhaustion of domestic remedies, but that one must not rule without taking into
account the specific circumstances of the case’. A similar decision was held in
the Velasquez
Rodriguez case that; the requirement of availability or non
availability of local remedies should be based on the specific circumstances of
the case.
If
you consider an interpretation of the rule “It must be sent after exhausting local remedies, if any, unless it
is obvious that this procedure is unduly prolonged”, one would understand that
on the face of it, the rule itself is not sacrosanct and that explains why the
African mechanisms have not found difficulty in overlooking the requirements
and admitting the communication. One can justifiably state that, most
communications that have been admitted and considered in the African Commission
have come under the exceptions on the rule on the exhaustion of local remedies
and not the rule itself. In INSITUTE FOR HUMAN RIGHST AND
DEVELOPMENT IN AFRICA (IHRDA) and OPEN SOCIETY FOR JUSTICE INITIATIVE (OSJI) v
Kenya[4],
the
Committee found the communication admissible not because it fulfilled the
admissibility requirements but because it came under the exceptions of the rule
to exhaust local remedies and
In Rencontre Africaine pour la De´fense des Droits de l’Homme v
Zambia [5] the commission
held that:
“The
rule requiring the exhaustion of local remedies…does not mean, however, that
complainants are required to exhaust any local remedy which is found to be, as
a practical matter, unavailable or ineffective”
A famous authority when it comes to understanding the flexibility of the
local remedies requirements in African Human Rights jurisprudence is the case
of Sir Dawda Jawara Vs. The Gambia[6]
in which case the commission gave a deep understanding into the scope of this
rule when it held that the requirement to exhaust local
remedies could be dispensed with from three angles; viz, availability,
effectiveness and sufficient. To the commission, a remedy is considered
available if the petitioner can pursue it without impediment, effective if it
offers a prospect of success, and sufficient if it is capable of redressing the
complaint.
It implies therefore that, the commission shall relax the rule and
declare the communication admissible where it is satisfied that, practically,
the Local
remedies are not available because the victims can’t pursue them without
impediments, they are not effective because there is no prospect for success
and are not sufficient because it is not capable of redressing the complaint
and most importantly where the local adjudication procedure is unduly prolonged.
In the African Court decision of 21 March 2018 in MARIAM KOUMA & OUSMANE
DIABETE Vs. MALI[7]
the court held that “The court finds that the complainants have not exhausted
local remedies as provided for under article 56 (6) of the charter and rule 40
of the rules of procedure of the African Court.
Much
have been decided regarding the local remedies requirements as the commission
has stretched further the exceptions to a point that, looking at the
circumstances of a particular cases, it can make inference as to whether local
remedies were available and effective or not thus in my opinion, making the
rule somehow too relaxed. In Haregewoin Gabre-Salassie and IHRDA (on behalf of
Dergue Officials) v Ethiopia)[8], the commission held inter alia that: “The fact that the Complainants have not
sufficiently demonstrated why they could not exhaust domestic remedies does not
mean such remedies are available, effective and sufficient.
The African
Commission can infer from the circumstances surrounding the case and determine
whether such remedies are in fact available, and if they are, whether they are
effective and sufficient...The exception to
the rule on the exhaustion of domestic remedies would therefore apply where the
domestic situation of the State does not afford due process of law for the
protection of the right or rights that have allegedly been violated”. This case
and many more will illustrate that, the rule on exhaustion of local remedies
under the African Human rights system is rigid but not sacrosanct, as it is now
considered on a case-to-case basis and has often times been bent in order to
meet the merits of the case.
Author
Ashu Hailshamy O ESQ.
(LL.B Hons University of Buea, B.L Hons
The Gambia Law School)
Barrister and Solicitor of the Supreme
Court of The Gambia
Legal Intern, Institute for Human
Rights and Development in Africa (IHRDA), Banjul The Gambia.
Email: ashu.shamy@yahoo.com
Tel: +220 2615598
