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Kenya Law / Blog / Case Summary: Offhandedly dismissing the remedies available within a respondent state by applicants without attempting to activate them leads to inadmissibility of an application before an international court

Offhandedly dismissing the remedies available within a respondent state by applicants without attempting to activate them leads to inadmissibility of an application before an international court

Shukrani Masegenya Mango & Others v United Republic of Tanzania

Application No. 008/2015

African Court on Human and Peoples’ Rights

S Ore, P; B Kioko, VP;RB Achour, A V Matusse, S Mengue, M Mukamulisa, TR Chizumila, C Bensaoula, B Tchikaya, Sl Anukam,

September 26, 2019

Reported by Faith Wanjiku

Download the Decision

Jurisdiction jurisdiction of the African Court on Human and Peoples’ Rights -material jurisdiction -where the applicants had not exhausted local remedies before approaching the African Court – where it was alleged that the African Court did not have jurisdiction as it was sitting as a court of first instance- whether the African Court lacked jurisdiction where applicants approached it before exhausting local remedies and was thus allegedly sitting as a court of first instance-Protocol to the African Charter on Human and Peoples’ Rights, article 3

International Law –law of Convention – Banjul Charter; Rules of Court – rules of procedure – admissibility of applications-conditions for –exhaustion of local remedies and filing applications within a reasonable timefailure towhether the application was inadmissible due to the applicants failing to exhaust domestic remediesand not filing the application within a reasonable time when approaching the African Court-African Charter on Human and Peoples’ Rights, article 56; Rules of Court, rule 40

Civil Practice and Procedure – applications – joint applications – what was the scope of joint applications in relation to courts ruling on several applicants in the same case.

Brief Facts

7 applicants jointly filed a case before the Court. 5 of the applicants (Ally Hussein Mwinyi, Juma Zuberi Abasi, Julius Joshua Masanja, Michael Jairos, Azizi Athuman Buyogela) had been convicted of murder and sentenced to death but subsequently their sentences were commuted to life imprisonment. 2 of the applicants, (Shukrani Masegenya Mango and Samwel M Mtakibidya) had been convicted of armed robbery and sentenced to 30 years imprisonment. The applicants’ main grievance was the manner in which the respondent state had been exercising the presidential prerogative of mercy, particularly in pardoning convicts. The applicants alleged that the respondent state was guilty of discrimination in the manner in which it exercised the prerogative of mercy and that that was contrary to, among others, guarantee of non-discrimination in article 2 and the right to equality in article 3 of the African Charter on Human and Peoples’ Rights (the Charter).

The applicants also alleged that the conduct of the respondent state was a violation of the Universal Declaration of Human Rights and the respondent state’s Constitution. 2 of the applicants, who had been convicted and sentenced for armed robbery, also alleged that the 30 year sentence that was meted to them was illegal since the sentence was not in existence at the time they were convicted. The applicants prayed the African Court on Human and Peoples’ Rights (African Court) make an order nullifying the decisions of the respondent state that violated their rights and also order for reparations.

Issues:

i Whether the African Court lacked jurisdiction where applicants approached it before exhausting local remedies and was thus allegedly sitting as a court of first instance.

ii Whether the application was inadmissible due to the applicants failing to exhaust domestic remedies before approaching the African Court and not filing it within a reasonable time after the exhaustion of domestic remedies

iii What was the scope of joint applicationsin relation to courts ruling on several applicants in the same case?

Relevant Provisions of the Law

Rules of Court

Rule 40-Conditions for Admissibility of applications

Pursuant to the provisions of article 56 of the Charter to which article 6(2) of the Protocol refers, applications to the Court shall comply with the following conditions:

1. lndicate 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’

4. Are not based exclusively on news disseminated through the mass media,

5. Are filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,

6. Are filed 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 the 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 provision of the present Charter.

Held by majority

  1. By virtue of article 3 of the Protocol to the African Charter on Human and Peoples’ Rights (the Protocol), it had material jurisdiction in any matter so long as the application alleged violations of provisions of international instruments to which the respondent state was a party. In the instant application, all the applicants were alleging violations of the Charter, to which the respondent state was a party, and the Universal Declaration of Human Rights (UDHR). In respect of the UDHR, while it was not a human rights instrument subject to ratification by states, it had been recognised as forming part of customary law and for that reason the instant court was enjoined to interpret and apply it.
  2. The African Court had personal jurisdiction given that the respondent state was a party to the Protocol and it deposited the required Declaration. It had temporal jurisdiction as the alleged violations were continuing at the time the application was filed, which was after the respondent state became a party to the Protocol and deposited its Declaration. It had territorial jurisdiction given that the alleged violations occurred within the territory of the respondent state. The African Court had jurisdiction to hear the application.
  3. In relation to the alleged violation of the applicants’ rights by reason of the exercise of the presidential prerogative of mercy, the applicants did not dispute that the avenue offered by the Basic Rights and Duties Enforcement Act was available to them whereby they could have challenged, before the High court, the alleged violation of their rights. They instead contended that it was so useless and senseless to refile an application to the high court of the respondent state since the tribunal/court was not independent, fair and just in adjudicating justice to the parties particularly to which referred to judicial system.
  4. Exhausting local remedies was an exigency of international law and not a matter of choice. It lay with the applicant to take all such steps as were necessary to exhaust or at least endeavour to exhaust local remedies. It was not enough for the applicant to question the effectiveness of the state’s local remedies on account of isolated incidents. All the applicants could have approached the High Court to challenge the legality of the exercise of the presidential prerogative of mercy, the Prisons Act, the Parole Act and other laws which they perceived to be implicated in the discrimination that they allegedly suffered.
  5. It was not open to the applicants to offhandedly dismiss the remedies available within the respondent state without attempting to activate them. The applicants failed to exhaust local remedies as stipulated under article 56(5) of the Charter and as restated in rule 40(5) of the Rules of the Court. Admissibility requirements under the Charter and the Rules were cumulative such that where an application failed to fulfill one of the requirements then it could not be considered. It was not necessary to examine the other admissibility requirements in so far as they related to the allegation by all the applicants that their rights were violated as a result of the exercise of the presidential prerogative of mercy. The application, in so far as it related to all the applicants and their allegation of a violation of their rights due to the exercise of the presidential prerogative of mercy, was inadmissible for failure to fulfil the requirement of exhaustion of local remedies under article 56(5) of the Charter which was restated in rule 40(5) of the Rules.
  6. The 1st applicant and the 7th applicant made an additional allegation which was distinct from the allegations made by all the applicants jointly and that pertained to the legality of their sentence for armed robbery. In that connection the legality of their sentence for robbery implicated their right to fair trial. Both the 1st applicant and the 7th applicant appealed their convictions and sentences to the Court of Appeal which dismissed the appeals. The question of the legality of their conviction and sentence, therefore, was enmeshed in the bundle of rights and guarantees due to the applicants which the Court of Appeal could have pronounced itself on during the hearing of the appeals.The Court of Appeal which was the highest court in the respondent state had the opportunity to pronounce itself on the allegations pertaining to the legality of the applicants’ sentences.
  7. Secondly, the African Court, recalling its jurisprudence, reiterated its position that the remedy of a constitutional petition, as framed in the respondent state’s legal system, was an extraordinary remedy that an applicant needed not exhaust before approaching the Court. For that reason, the African Court held that the 1st applicant and 7th applicant needed not have filed a constitutional petition before approaching it. The application was admissible in so far as it related to the allegations by the 1st applicant and the 7th applicant. The respondent state’s objection was, therefore, dismissed.

Per B Tchikala, J (concurring)

  1. The power to annul a sentence, or even the annulment of a prosecution procedure was conferred on the highest political authority in the country. It was a monarchical “snub”, and even an infringement on the law, against the power of the judiciary. The power of mercy existed in almost all democratic systems. In the instant case, the applicants were not disputing the basis, but primarily alleging a violation of their rights to equality and non-discrimination by reason of the exercise of the presidential prerogative of mercy. The arguments used by the applicants were even more explicit. They stated that the respondent state treated prisoners convicted of corruption and other economic crimes lightly and favourably compared to other prisoners since they could access the presidential pardon twice, a condition which was not afforded to other convicts. The applicants contended that that violated article 3(l) and (2) of the Charter, and article 7 of the Universal Declaration of Human Rights. The applicants were thus denouncing an allegedly arbitrary exercise of the presidential pardon.
  2. The international justiciability of the discretionary acts of Heads of State remained debatable. The application of international law, including human rights law, was essentially based on a principle namely that all that could be required of a state was that it should not overstep the limits which international law placed upon its jurisdiction; within those limits, its title to exercise jurisdiction rested in its sovereignty. The issue was whether the internal acts regarding the presidential pardon were detachable or not from the office of President. It was an office whose legal regime belonged globally to the internal sovereignty of states. The law applicable to the exercise of presidential pardon, except arbitrarily controlled by international law, was subject to the domestic law of states. It was up to the applicants, not the Court, to add the elements, the nature of which varied according to the national legal systems. It was indisputable that the control of international law on that aspect was not worthless. But the applicants’ case made no contribution thereto; they merely stated the arbitrariness of the respondent state’s use of the presidential pardon.
  3. Acts of the executive, attached to the power did not fall within the jurisdiction of the judicial powers normally exercised by the local judge because of the separation of powers. They had been proposed to be submitted to constitutional power. That seemed to be an illusion, since constitutional power remained dependent on the domestic law, which remained under the control of the sovereign power. Supranational law integrated into international law would exercise control over those acts to which would be subjected, not the presidential pardon itself, but its administration or exercise, under two conditions, however: that such acts were detachable from the exercise of the reserved area of the State, and that after validation of the conditions of admissibility, the acts were really tainted with arbitrariness.
  4. As a result, even though in the instant case the applicants submitted that the respondent state automatically excluded prisoners serving long term sentences from the prerogative of mercy thereby violating article 2 of the Charter and articles 13(1), (2), (3), (4) and (5) of the respondent state’s Constitution, the African Court refused to grant the request, as the procedural and substantive elements were not strictly associated.

Per B Chafika, J (dissenting)

  1. Each applicant was prosecuted and convicted by different judicial authorities, on different dates, for different events, even though some of the charges had the same characterization and others the same convictions. A reading of the definitions of joint application led to summarizing it into one action or one legal proceeding or one procedure that allowed a large number of persons to sue a legal or natural person in order to obtain an obligation to do, not to do or give. Victims were of a similar situation, the damage caused by the same person with a common cause, the prejudice had to be common; the issues on which the judges should rule had to be common in fact and in law.
  2. The choice between joint application and individual application had to be assessed on a case-by-case basis, since major damages were generally not appropriate for collective processing because the complaint almost always involved issues of rights and facts that would have to be tried again on an individual basis. A joint application was subject to conditions other than admissibility and jurisdiction over the existence of a sufficient link drawn from the following elements:
    1. identity of the facts,
    2. identity of jurisdiction,
    3. identity of procedure leading to the conviction of the applicants.
  3. The African Court in its judgment which was the subject of the dissenting opinion, declaring the application admissible without basing its decision on Iegal grounds for the admissibility of the joint application and by ignoring the peculiarity of the application, breeched the principles of reasoning decisions set forth in rule 6l of the Rules and had completely shifted from its jurisprudence and that of international human rights courts.

Per R B Achour, J (dissenting)

  1. From the ground of inadmissibility held by the African Court against 5 applicants that the appeal for unconstitutionality was no longer considered by the Court as an extraordinary remedy from which the applicants were exempted, but now as anecessary and compulsory remedy. However, and unlike the treatment meted out on those 5 applicants, the African Court refrained from sanctioning the 1st and 7th applicants for failure to bring the same action for unconstitutionality. With regard to those 2 applicants, the African Court reiterated its traditional position that the remedy of a constitutional petition, as framed in the respondent state’s legal system, was an extraordinary remedy that an applicant needed not exhaust before approaching the court. For that reason, the court held that the 1st applicant and 7th applicant needed not have filed a constitutional petition before approaching the Court.
  2. The underlying reason for that differential treatment of the applicants seemed to be the consequence of what was developed above, namely the combination of elements of a different nature concerning the merits of the case on the one hand and the procedure on the other hand.For those reasons, the judgment was voted against.

Application partly allowed; each party shall bear its own costs.

Orders

i Declaration that the application was inadmissible in relation to all the applicants, for failure to comply with the requirement under Article 56(5) of the Charter which was restated in rule 40(5) of the Rules, in so far as it related to the allegation of violation of the applicants’ rights by reason of the exercise of the presidential prerogative of mercy;

ii Declaration that the application was admissible in respect of the allegation by the 1st applicant and the 7th applicant in relation to the legality of their sentence for armed robbery;

iii The respondent state had not violated the 1st applicant’s and 7th applicant’s right to fair trial under article 7(2) of the Charter by reason of their sentences for armed robbery.

iv The prayer for reparations was dismissed.

 

Relevance to the Kenyan Situation

Exhaustion of local remedies before approaching international courts has always been insisted on by international courts as it prevents forum shopping which is an abuse of the court process. In African Commission on Human and Peoples’ Rights v Republic of Kenya the African Court on Human Rights held that any application filed before the Court had to comply with the requirement of exhaustion of local remedies. The rule of exhaustion of domestic remedies reinforced and maintained the primacy of the domestic system in the protection of human rights vis-a­vis the Court. Article 56 (5) of the Charter and rule 40(5) of the Rules required that for local remedies to be exhausted, they had to be available and not be unduly prolonged.

The applicant’s application was held admissible as they had provided evidence that members of the Ogiek community had litigated several cases before the national courts of the respondent, some had been concluded against the Ogiek and some were still pending. The respondent could thus reasonably be considered to have had the opportunity to have addressed the matter before it was brought before the Court. The remedy the respondent was requesting the Applicant to exhaust that was, procedures before the National Human Rights Commission, was not judicial.

As in the African Court judgment above, the applicants offhandedly dismissed the available remedies in the respondent state and went ahead to file the application before the African Court.Their application was thus not admissible. Exhaustion of local remedies is not a matter of choice and is an exigency of international law.

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