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The requirement to exhaust local remedies before approaching regional tribunals

Yacouba Traore v Republic of Mali

Application No O1O/2O18

African Court on Human and Peoples’ Rights

S Ore, B Kioko, RB Achour, AV Matusse, MT Mukamulisa, S Mengue, RT Chizumila, C Bensaula, D Tchikaya, SI Anukam, JJ

November 27, 2020

Reported by Faith Wanjiku & Ian Otenyo

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International Law – litigation at the regional & international tribunals – African Court on Human and Peoples’ Rights – doctrine of exhaustion of local remedies – claim where the appellant had filed the instant suit when the matter was still pending at the local court – was the time taken by the local court to determine the applicant’s matter reasonable – whether the applicant had exhausted all local remedies provided by the respondent state before filing the instant suit – African Charter on Human and Peoples’ Rights, 1981, Article 56 (5)

Brief facts:

The applicant was of Malian nationality, a former Chief Chemist and former staff representative of the Australian Laboratory Service (ALS) Group Mali SARL where his duty was to determine the gold content of ores. Since he was not classified in the corresponding professional category and his salary was below that category, he made claims for reclassification which led to reprisals. Consequently, he was assigned to Bamako in the pretext of training. While at Bamako, the reprisals continued as his employer instigated his work to be sabotaged by his colleagues which caused him to be summoned before the disciplinary board where he was laid off against article L277 of the Malian Labour Code which required that before laying off someone of his capacity as staff representative, one should seek prior authorisation from the Regional Director of labour. The applicant lodged the matter to the Bamako Labour Court, which declared his dismissal unlawful but the situation persisted. It was against that background that the applicant alleged violation of the right to work under fair and satisfactory conditions as enshrined in article 15 of the Charter was violated. The applicant then lodged the instant suit when his case was still pending in the local court of appeal.

Issues

  1. Whether the applicant had complied with the requirement to exhaust all existing local remedies before filing the instant suit.
  2. Whether the time taken by the local court to determine the applicant’s case was reasonable.

Relevant provisions of the law African Charter on Human and Peoples’ Rights, 1981

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 55 received by the Commission, shall be considered if they:

(5) Are sent after exhausting local remedies, if any, unless it is obvious that that procedure is unduly prolonged.

African Court on Human and Peoples’ Rights Rules

Rule 40 (2) – Commencement of Proceedings

The application shall specify the alleged violation, evidence of exhaustion of local remedies or of the inordinate delay or ineffectiveness of such local remedies as well as the orders or the injunctions sought. All applications filed by individuals and Non-Governmental Organizations shall meet the other admissibility conditions as set out in Article 56 of the Charter and Rule 50 of these Rules.

Held:

  1. The court was cognizant that article 56(5) of the African Charter on Human and Peoples’ Rights (Charter) stated that applications should be filed after the exhaustion of local remedies, if any, unless it was obvious that the procedure was unduly prolonged. The court further found that the requirement of exhaustion of local remedies prior to lodging a case before an international human rights court was an internationally recognised and accepted rule.
  2. Compliance with the requirement of exhaustion of local remedies implied that the applicant ought to initiate legal action in local courts and wait for their outcome.
  3. The local remedies that ought to be exhausted should be ordinary judicial remedies that could be easily accessed by the applicant without hindrance. The local remedies should also be effective and sufficient, in the sense that they could satisfy the complainant or remedy the disputed matter.
  4. The court noted that it took only five months and ten days for the applicant’s matter to be adjudged by the local court of appeal after it was referred to it by the Supreme Court of Mali. Such period was considered to be reasonable and the applicant should have waited for the outcome before filing the instant suit. As such, rule 40 (2) of the African Court on Human and Peoples’ Rights had not been violated by the respondent.
  5. The applicant had filed the instant suit when local remedies had not yet been fully exhausted. The conditions of admissibility laid down in article 56 of the Charter and rule 40 of the African Court on Human and Peoples’ Rights Rules were cumulative and as such, when one of them had not been complied with, then the application failed to pass the admissibility criteria.

Application dismissed, each party would bear their own costs.

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