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African Court of Human and Peoples Rights (ACHPR) strikes out a case for failure to exhaust local judicial remedies.

African Court of Human and Peoples Rights (ACHPR) strikes out a case for failure to exhaust local judicial remedies.

In the African Court of Human and Peoples’ Rights.
Urban Mkandawire v. The Republic of Malawi
Application 003/2011
Before: Sophia A.B Akuffo, Fatsah Ouguergouz, Bernard M. Ngoepe, Gerard Niyungeko, AugustinoS.L.Ramadhani, Elsie N.Thompson, Sylvain Ore El HadjiGuisse, Ben Kioko, Robert Eno.
21st June, 2013.
Reported by Diana Kerubo.

Brief Facts.

The Applicant had entered into an employment contract with the University of Malawi as a lecturer of French. He signed the contract with the University on 1st December, 1998 which came into effect then, and started teaching on 5th July, 1999.
The employment was for an indefinite period and one of the terms of the contract was that either party would terminate on a three months’ notice or with three months payment in lieu of notice.
The Applicant was however dismissed as a result of complaints levelled against him by students regarding his competence as a lecturer. This was followed by a dismissal letter dated 2nd December, 1999 by the Registrar.
He as a result lodged a case through the Malawian Courts including the Industrial Court then right up to the Supreme Court of Appeal which is the highest judicial authority in Malawi. The Applicant was still not satisfied with the outcome and lodged the application with the Commission.
In his application, he contended that the termination of his employment violated his rights under the Protocol to the African Charter on Human and Peoples Rights specifically under Articles 4, 5,7,15 and 19 and sought remedies for the reinstatement of his position as a lecturer, for the payment of damages and payment his entitlement under the scheme run by the National Insurance Company on his 9 months’ salary as if he was contributing to the scheme were he not dismissed prematurely.
The Respondent (The Republic of Malawi) on the other hand raised the question as to the admissibility of the application as the matter was already before the African Commission on Human and Peoples Rights and therefore subjudice.
It also questioned the jurisdiction of the court to handle the matter since the applicant’s alleged violation took place in 1999 yet the Protocol came into operation in respect of the Respondent on 25th January, 2004.
They also argued that the Applicants rights under Article 7 of the Charter had not been violated as he had exercised his right to go to the national courts and was given a fair hearing.
As regards the violation of Article 15 of the Charter, the respondents argued that he was employed by the university under contract and one of the terms was that it could be terminated by either party on three months’ notice or by three months payment in lieu of the notice.

Issues:

i. Whether the application was subjudice thus inadmissible since it was already before the African Commission on Human and Peoples Rights.
ii. Whether the court could apply provisions of the Protocol to the Africa Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights (the protocol) retrospectively with regards to human rights violations.
iii. Jurisdiction of the court with regards to human rights violations.
iv. Whether all the available local judicial remedies were exhausted.
International Law-treaties- interpretation of treaties-Protocol to the Africa Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights–whether the ACHPR couldapply provisions under the Protocol retrospectively with regards to human rights violations-article 3 of the protocol.
International Law-jurisdiction-African Court of Human and Peoples Rights-extent of jurisdiction of ACHPR on human rights violations-article 3, article 5(3),article 34(6)of the protocol
International Law- redress mechanisms-whether the applicant had exhausted all available local judicial redress mechanisms-article 6 of the Protocol-article 56(5) of the Charter.

African Charter of Human and Peoples Rights (the charter). Article 7(1)
“Every individual shall have the right to have his cause heard.This comprises:
a) The right to an appeal to competent national organs against acts violating fundamental rights as recognized and guaranteed by conventions, laws ,regulations and customs in force;…

Article 15

Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.
Article 56(5)
Communications relating to human and peoples’ rights referred to in Article 55 received by the Commission shall be considered if they: are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged.
The Protocol to the Africa Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights.
Article 3(1)
The jurisdiction of the court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter,this protocol and any other relevant Human Rights instrument ratified by the States concerned.
Article 3(2)
In the event of a dispute as to whether the court has jurisdiction,the court shall decide.
Article 6(2)
Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter.

Held:

  1. The applicant did formally withdraw his communication from the Commission before lodging his application. He submitted two copies of his letters to the Commission withdrawing his communication. Once the applicant had withdrawn his communication from the commission, he had the right to approach another forum.
  2. Whereas the applicants’ alleged violation of his rights took place in 1999,the protocol came into operation in respect of the Respondent only after the Respondent ratified it on 9th October,2008.The Charter on the other hand came into operation on 21st October,1986 and the Respondent ratified it in 1989. At the time of alleged violation of the Applicants rights in 1999, the Charter was already binding on the Respondent. The latter was under duty to protect the Applicants rights alleged to have been violated. The court further noted that the Applicants violation of his rights under Articles 7 which provided for the right to have his cause heard and appeal to competent national organs against acts violating fundamental rights and Article 15 which provided for the right to work under equitable and satisfactory conditions are continuing.
  3. The jurisdiction of the court with regards to the subject matter was set out in Article 3 of the Protocol. The provision extended to all cases and disputes on human rights issues concerning the interpretation and application of the Charter, the protocol and other relevant human rights instruments ratified any the state concerned. The requirements of the subject matter of jurisdiction were met as the rights alleged to be violated are human rights are enshrined in the Charter.
  4. As regards jurisdiction of the court to bring one to its adjudicative process, the applicant was a national of Malawi, a state that had ratified the protocol and also filled the required declaration terms of Article 34(6) as read together with Article 5(3) of the protocol. It had accepted the competence of the court to deal with cases against it from individuals and Non-Governmental organizations.
  5. No objection was raised based on the failure to exhaust local remedies. It however remains the duty of the court to enforce the provisions of the Protocol and of the Charter. The court is enjoined to ensure that an application meets amongst others the requirements for admissibility as stipulated in the Protocol and the Charter. The law does not have to be pleaded.Failure by the respondent to raise the issue of non-compliance with the requirements stipulated in the Protocol and the Charter did not render admissible an application which is otherwise inadmissible.
  6. The requirement of exhaustion of local remedies was fundamental in the interaction between state parties to both the Protocol and the Charter, and their national courts on the one hand and the court on the other hand. State parties ratify the Protocol on the understanding that local remedies would first be exhausted before recourse to the court.
  7. By exhaustion of local remedies, the court primarily referred to judicial remedies [Matter of Tanganyika Law Society and the Legal and Human Rights Centre v.The United Republic of Tanzania Application no 009/2011 and Reverend Christopher R Mtikila v. the United Republic of Tanzania Application no. 011/2011]the court held that the term local remedies is understood in human rights jurisprudence to refer primarily to judicial remedies as these are the most effective means of redressing human rights violations.
  8. The avenue to claim damages for alleged wrongful dismissal and the avenue to challenge the in the High Court the judgment of the Industrial Relations Court which had ruled that his dismissal was fair and lawful were still open to the Applicant,however, he did not use these avenues. It was open for him to argue before the High Court against the judgmentof the Industrial Relation Court and, if he did not succeed, to argue on further appeal to the Supreme Court of Appeal. As a result of failure to do so, the courts did not have the opportunity to deal with the merits of the claim for wrongful dismissal.
  9. There was no undue delay in the disposal of the Applicants case before the highest judicial institution in Malawi, that is, the Malawi Supreme Court of Appeal. The case number indicates the year that the case was registered and the date of the judgment was not long thereafter: in the Supreme Court the case number was No.38 of 2003,the judgment was handed on 12th July,2004 and in case No. 24 0of 2007,the judgment was delivered on 11th October,2007

The application was not admissible.it was struck out.

Each party to bear its own costs.

Relevance to Kenya.

Constitution of Kenya.
Article 159(2) (c)
In exercising judicial authority, the courts and tribunals shall be guided by the following principles-
Alternative forms of dispute resolution including conciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted.
Traditional dispute resolution mechanisms under Article 159(3) shall however not be used in a manner that contravenes the Bill of Rights, is repugnant to justice and morality and in a manner that is inconsistent with the Constitution or any other written law.
Kenya is also a signatory to the African Charter on Human and Peoples Rights and allows the application of the Charter vide Article 2(5) and (6) of the Constitution as part of the laws of Kenya.

 

 

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