Employment and Labour Relations Court at Mombasa
Reported By Linda Awuor
1. Whether the Complainants were required to have recourse to other local remedial avenues after the Court of Appeal’s decision in order to meet the requirement of Article 56(5) of the African Charter on exhaustion of local remedies.
2. Whether a communication submitted after a period of thirty one months from the time the local remedies are exhausted can be considered reasonable for determination by the Commission
International law – admissibility of Communications brought to the African commission on Human and Peoples right for determination – whether the applicant had exhausted all local remedies – article 55 &56, African Charter on Human and People’s rights
International law –submission of communications to the African Commission - time period within which a communication should be filed – whether a period of thirty one months can be considered reasonable in the circumstances of the case – Article 56(6) African Charter on Human and Peoples Rights
Background of the case
In November 1987, the Victim, Priscilla Njeri Echaria petitioned the High Court requesting that matrimonial property between her and the husband be divided equally. In 1993, the High Court granted an order to the effect that the property acquired during the subsistence of the marriage, be divided equally between the Victim and Mr. Peter Echaria, as the Victim had made an indirect contribution to the acquisition of the property, the property in question being a farm called Tigoni Farm, comprising 118 acres. In 2001, Mr. Peter Echaria appealed against the decision of the High Court to the Court of Appeal and in February 2007, the Court of Appeal set aside the ruling of the High Court and reduced the Victims share of the matrimonial property to a quarter of the assets. The Court of Appeal being the highest court in Kenya at the time, the Victim felt that she had no further recourse before a Kenya Court and therefore submitted the case for determination to the Secretariat of the African Commission on Human and Peoples’ Rights. Priscilla Njeri Echaria (represented by Federation of Women Lawyers, Kenya and International Center for the Protection of Human Rights alleged violation of Articles 2, 3, 14, 18(3) and 19 of the African
Charter and urged the African Commission to:
a) Find violations of the Charter Articles enumerated above and
b) Recommend to the Respondent State to enact legislation aimed at effecting the property rights of married women before a specific time.
Article 56 of the African Charter provides that:
Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they:
1. Indicate their authors even if the latter request anonymity,
2. Are compatible with the Charter of the Organization of African Unity or with the present Charter,
3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity,
4. Are not based exclusively on news discriminated through the mass media,
5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,
6. Are 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. Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.
1.The African Commission has jurisdiction over a Communication which alleges the violation of rights guaranteed in the African Charter. The subject matter of the Communication must relate to the violation of a right protected in the African Charter and the Complainant is only required to establish a prima facie violation. In assessing whether a prima facie case exists, the African Commission only needs to be satisfied that the facts before it point to likelihood that a right protected in the African Charter has been violated. There is no requirement in the African Charter for evidence of systematic violations to be adduced for a prima facie case to exist.
2.Whether a national court has handed down a judgment in a matter is immaterial to the determination of the existence of a prima facie case before the African Commission. What matters is whether such judgment is in conformity with a state’s obligations under the African Charter. In assessing the compatibility of the ruling of a national court with theAfrican Charter, the African Commission does not act as an appellate body with powers to overrule the decisions of national courts but simplydischarges its mandate of ensuring compliance by a State Party, with the provisions of the African Charter in its interpretation and application of the law.
3. It was clear that the Court of Appeal was not under any legal obligation to review its own decisions. It was therefore apparent that the power of the court to review its own decisions is purely discretionary and not mandatory and such review cannot as such be considered an available local remedy. It is an established principle in human rights law that when a remedy has been attempted, use of another remedy which has essentially the same objective is notrequired. The Kenyan Court of Appeal was very well in a position to protect the right that the Victim would have sought to be protected through a fundamental rights application to the High Court. The remedy was thus exceptional and the victim could not be required to have engaged in forum shopping in order to meet the requirement of article 56(5).
4. The Kenyan Human Rights Commission and thePublic Complaints Standing Committee are quasi-judicial bodies which do not constitute judicial remedies. The Victim was therefore not required to approach these bodies in order to meet the exhaustion requirement under the African Charter.
5. The Complainants made no submissions to explain why the Communication could not be submittedearlier than thirty one months. Submitting a Communication thirty one months after local remedies were exhausted without any reason to explain such a wide interval was clearly unreasonable and therefore did not meet the requirement of Article 56(6).
Communication declared inadmissible for failing to comply with the provisions of Article 56(6) of the African Charter