A critical analysis of the rule requiring exhaustion of local remedies in African Human
Rights jurisprudence as provided for under the African Charter on Human and Peoples
Rights.
Wellington Musikadi1
It is a settled and fundamental principle of international law that protection of human rights should be
carried out by national governments. The exhuastion of local remedies rule is an intergral part of the
of the right of individual to bring international claim against a state. This paper seek to examine the
rule requiring exhaustion of local remedies as expressly provided in article 50 2 and article 56(5)3
under the African Charter on Human and Peoples Rights 1986(herein reffered to as the African
Charter) and article 6(2) of the Protocol of African Court on Human and Peoples’ Right (herein
reffered to as the Court) and to critically analyze the jurisprudence of the African Commission on
Human and Peoples Rights.In this write up, the writter will examine issues like the origins,rationale,
application and permissible exceptions of the rule of exhaustion of local remedies as well giving
comparative analysis with the jurisprudence of the European Court on Human Rights and other
continental human rights sytems.
The customary international law rule of exhaustion of local remedies requires individuals to seek
redress for any harm or violation of a right allegedly caused by a state within national or municipal
legal system before proceeding against the state at international level. This is rooted in the principle
of subsidiarity which states that primus status must be accorded to municipal courts to remedy the
alleged violation of a right protected by an international convention.This is because the domestic
courts have the most proximate link with the aggrieved individual and the cause of action based on
the territoriality principle.4 In that respect an individual cannot initiate an international claim without
1
2
Law student at the Midlands State University Zimbabwe( e.mail wellyscady@gmail.com)
The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist,
have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be
unduly pro longed.
3
5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged
4
In the event of international litigation against a State by individuals, therefore, there is always the domestic
jurisdiction of a respondent State to be asserted in defence to the claim. As a consequence, whenever an additional
international level of enforcement jurisdiction is created in favour of individuals, primus status is accorded to municipal
prior recourse to the responsible state domestic courts. The African Charter in article 56(5)5 on the
admissibility criteria before the African Commision requires exhaustion of local remedies as a
precondition for the matter to be admissible. A local remedy for the purporses of article 56(5) of the
African Charter has been described as any domestic legal remedy that may lead to the resolution of
the complaint at national level and the remedy must be available,effective,sufficient and judicial in
nature as expounded on the leading casesof the Jawara v The Gambia6 and Law Society of
Tanganyika & Anor v Tanzania.7 Hence exhaustion of domestic remedies requires use of all
available procedures to seek protection from future human rights violations and to obtain justice for
past abuses.
Most international human rights treaties and conventions provides for the exhaustion of local
remedies before a claim for an alleged violation is brought before an international body. 8The rule of
exhaustion of local remedies originated in the context of diplomatic protection of aliens in
internatioanal law where the host state were allowed to settle the matter internally before
international mechanism were invoked.
9
Judge Wirmarski in the Interhandel (USA v
Switzerland)10 stated that the rationale for the rule is to enable a state in which rights of a foreign
national alleged to have been injured in breach of international law to provide a remedy by its own
within the framework of its own law. The rule was affirmed in the World Organisation Against
Torture &Ors v Zaire11 where the African Commission stated the raison detre of the rule in the
following terms
institutions (as the institutions that have the most proximate link with the aggrieved individual and the cause of action)
over any international enforcement mechanism there may be. This primus place is clothed in the doctrine of
exhaustion of domestic remedies ,state sovereignity and reserved domain .see A.O.Enabulele& B.Bazauye, “Setting
the Law Straight: Tanganyika Law Society & anor v. Tanzania and Exhaustion of Domestic Remedies before the
African Court” Mizan Law Review Vol 8 no8 2014. See also the Margin of appreciatiation principle developed by the
European Courts on Human Rights.
5
African Charter on Human and Peoples Rights 1986.
6
Communication 147/95
7
Application 009/2011. This case was consolidated with Mtikila v. Tanzania application, No 011/2011
8
See for example the European Covention of Human Rights(ECHR)
9
C.F .Amerasinghle, Local remedies in International law .Grotius 1990. The exhaustion of locl remedies resonates
with the Calvo doctrine in Latin American states which require foreigners to exhaust local remedies before brought an
action against the concerned state before an international body.
10
Preliminary objections,1959.ICJ reports dissenting opinion
11
Communication 25/08, 47/90
…the requirement of the exhaustion of local remedies is founded on the principle that a government
should have notice of human rights violations inorder to have the opportunity to remedy such violation
before being called before an international body.
It is imperative to note that the rule as it applies in human rights law it applies even between a state
and its nationals.
The customary international law rule of exhaustion of local remedies aims at safeguarding state
sovereignty by requiring individuals to seek redress for any harm allegedly caused by a state within
its domestic legal system before pursuing international proceedings against that state. The
exhaustion of local remedies rule protects the sovereign character of the state and the reserved
domain of municipal law. In the Interhandel case(USA v Switzerland)12 the court held that the
exhaustion of local remedies rule serves the purporse of giving the state where violation occurred
an ooppotunity to redress it by its own means and within the framework of its domestic legal system.
This was affirmed by the African commission in the case of Nyikadzino v Zimbabwe, where in the
Commission stated,
The African Commission through its jurisprudence made it clear that the whole purpose of asking
Complainants to exhaust local remedies before approaching the Commission is to give the
Respondent State a chance to redress the alleged human rights violations through its structures and
organs. This is derived from the principle of complementarity which dictates that international
or regional mechanisms do not and cannot substitute national courts; it is only when national
courts or tribunals fail to deliver justice that international or regional organs will have
jurisdiction to receive cases. This is why the African Commission has been stringently applying the
exhaustion of local remedies rule and only in few justified circumstances has it waived such
condition.13
Basing with the above it is crystal clear that the underlying principle under the exhaustion of local
remedies rule is the need to safeguard sovereignity of states,reserved domain of municipal law
which are fundamental principles of modern international law.
12
Preliminary objections,1959.ICJ reports at page 27
Communication 340/07 p21 See also Emmanuel Mjawasi & 748 Ors v AG of the Republic of Kenya Application
009/2011 para 34 where the African court reiterated that the rule is to the effect that a state should be given an
opportunity to address the alleged wrong within the framework of its domestic legal system before its responsibility
can be called into question hence article 56 of the Charter on admissibility clearly peovides exhaustion of local
remedies as a precondition to be met before seeking recourse at international level
13
In African human rights law ,the exhaustion odf local remedies rule tends to be interpreted more
broadly and flexibly rather than strictly and restrictively for the benefit of the alleged victims of
human rights violations. Article 56(5) of the Charter states that ‘… are sent after exhausting local
remedies, if any, unless it is obvious that this procedure is unduly prolonged’14 hence this rule is one
of the most important conditions for admissibility of communications, no doubt therefore, in almost
all the cases, the first requirement looked at by both the Commission and the state concerned is the
exhaustion of local remedies. Failure to exhaust local remedies by a complainant is a ground for
inadmissibility in terms of article 56(5) of the Charter. This was shown in the case of Nyikadzino v
Republic of Zimbabwe supra where the African Commission rejected the communication because
the complainant had not attempted to exhaust local remedies on the basis that the government of
Zimbabwe had a tendency of defying court orders making local remedies ineffective and
unavailable. The court rejected this excuse of the complainant and stated clearly that the
complainant must always seek internationational redress after exhausting local remedies and the
onus is on the complainant to show that he had exhausted all local remedies or the remedies
available are futile and ineffective.
To cement the above , the question whether the local remedies available had been exhausted is mainly
the factual question about which the African Court or the Commision may require further information.
In that respect the African Court in Law Society of Tanganyika & Anor v Tanzania
15
stated that in
any case before the commission the complainant must at least lay the foundation that local remedies
have been exhausted. In the Campbell &Ors v Republic of Zimbabwe16 the SADC tribunal held the
exhaustion of local remedies means that individuals should go through the national courts system
starting with the court of first instance to the highest court of appeal to get a remedy.The rationale for
exhaustion of local remedies is to enable local courts to first deal with the matter because they are well
placed to deal with the legal issues involving national law before them. It also ensures that the
international tribunal does not deal with cases which could easily have been disposed of by national
courts hence the complainant must show that he exhausted local remedies. Basing with the above one
can note that the African jurisprudence on human rights law follows the requirement for exhaustion of
local remedies religiously as shown in the above cases.
14
15
16
See also Article 50 the Charter.
Application 009/2011. This case was consolidated with Mtikila v. Tanzania application, No 011/2011
SADC (T) Case No. 2/2007
A closer analysis of the jurisprudence of the African Court in cases relating to violation of human rights
clearly shows that the local remedies to be exhausted in terms of article and article 56(5) of the Charter
must be available ,effecient and sufficient they must be judicial in nature hence quarsi judicial
remedies are not local remedies.This was stated explicitly in the leading case of Jawara v The
Gambia17 and Law Society of Tanganyika & Anor v Tanzania
18
where the court held that the
remedies envisaged by the combined reading of article 6(2) of the Protocol and article 56(5) of the
Charter are primarily judicial remedies as they are the ones that meet the criteria of
availability,effectiveness and sufficiency.
Three major criteria could be deduced from the practice of the Commission in determining what
constitutes local remedies namely: the remedy must be available, effective and sufficient. And a
remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective
if it offers a prospect of success, and it is found sufficient if it is capable of redressing the
complaint19.On availailality of the remedy the jurisprudence of the African Commission illustrates that
the complainant must be able to pursue the remedy without difficulties or impedements whether
practical or legal ones. Hence the remedy must not exist only in theory but also in practice and it must
have some certain degree of immediacy as stated in the Law Society of Tanganyika & Anor v
Tanzania case supra. On effectiveness the Commission and the African court stated that the remedy
must exist in a domestic legal system and the remedy must provide effective means of redress , offer a
reasonable prospect of success in relation to the case. The applicant need not to exhaust futile or
unhelpfull remedies as stated in the case of Jawara v The Gambia supra20. This was also reiterated
in the case of Media Rights Agenda v Nigeria21 where the court stated that were there are serious
reasons to believe that local remedies do not offer real prospects of success,applicant need not to
exhaust local remedies. In that case the court stated clearly that judicial remedies cannot be said to be
effective where the executive or government is in a habit of disobeying court orders.
17
Communication 147/95
Application 009/2011. This case was consolidated with Mtikila v. Tanzania application, No 011/2011
19
see the case of Jawara v The Gambia supra.
20
Where in the court had this to say,” The existence of a remedy must be sufficiently certain, not only in theory but
also in practice, failing which, it will lack the requisite accessibility and effectiveness. Therefore, if the applicant
cannot turn to the judiciary of his country because of generalised fear for his life (or even those of his relatives), local
remedies would be considered to be unavailable to him.” Para 13
21
Communication 148/94
18
Apart from the above ,the human rights jurisprudence in Africa shows that remedies that need to be
exhausted before submitting a communication before the commission or Afric court must be sufficient.
A remedy must be adequate and capable of providing redress to the complainant in relation to the
specific human right violation. In Constitutional Rights Project v Nigeria22 the communication was
declared admissible by the commission because remedies alleged by the Nigerian government to be
in place were not of judicial nature. The commission stated that remedies of non judicial nature for
example clemency as of in that case are not sufficient hence the need not to be exhausted for the
purporses of article 50 and 56(5) the Charter because they do not operate impartially and on clemency
the government have no obligation to decide according to legal principles of natural justice. 23
Furthermore , the human rights jurisprudence in Africa depicts that indivividuals need to exhaust only
remedies which are judicial in nature. Quarsi judicial remedies need not to be exhausted.
In Law
Society of Tanganyika & Anor v Tanzania supra24 the court ruled that non judicial remedies are
not valid remedies that need to be exhausted before claims are brought before the African Court .
Basing with the above position ,one would argue that while it may be legally sustainable that judicial
remedies are the most viable remedies, it does not mean that non judicial remedies should be
completely fore closed nor does it mean that judicial remedies are effective in all circurmstances as a
result the position by the Commision that judicial remedies only must be exhausted before
communication to the international tribunal is unduly wide and indiscriminate proposition that would
have the effect of unjustifiably exclude administrative remedies that may have effectively remedied a
breach if approached by individuals before coming to African Commission or Court.
To cement the above, the writer contends here that the Commission insistence on judicial remedies is
unduly narrow and injudicious as it does not contemplate all possible deployable measures as
disclosed by state practice.This ‘rigidity’ excludes other avenues of redress that may satisfy state
obligations relating to the right to an effective remedy and obligation incumbent upon states at
22
23
24
Communication 60/91 1994-5
See also Law society of Tanganyika Case supra.
see also Media Rights Agenda v Nigeria
international law to respect,promote,protect and fufill human rights. 25 In fact, the African
Commission’s insistence on remedies of a judicial nature,while the Commission has favoured
in most cases amicable settlement of complaints lodged with it, is paradoxical and legally
untenable.(my emphasis) Since the mischief of the rule requiring exhaustion of local remedies is
always to to allow the state to resolve its matters by means of its own choosing and to protect state
sovereignty,one would argue that the African Commission in ruling that remedies must be judicial in
nature went too far which is against reserved domain of states and principle of sovereignity in
international law.
However, it is germane to note that they are various exceptions to the rule requiring exhaustion of local
remedies. Article 50 and 56(5) of the Charter and states that the Commission can only deal with a
matter submitted to it after making sure that all local remedies, if they exist, have been exhausted,
unless it is obvious to the Commission that the procedure of achieving these remedies would be
unduly pro longed and sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged respectively. This clearly shows that the complainant is not required
to exhaust local remedies where there is undue delay. In determing whether the case has been unduly
delay the Court focuses on the time frame from when the local remedy procedure is deemed to have
started, which begins on the date when the states judicial system started dealing with the matter. In
Beneficiaries of Late Norbert Zongo v Burkina Faso,26 the court held that the domestic remedies
had been unduly prolonged and hence there was no need for the applicants to exhaust local remedies.
There is no precise time frame that constitutes undue delay. Several factors will be involved in the
consideration of undue delay. Determination of the exception of undue delay can involve an
examination of whether serious efforts have been made so as to move the case forward. However the
court used the concept of a reasonable man test is to determine what constitutes undue delay as
stated in the case above. Undue delay can happen in situation where courts are not independent,
refuse to administer justice or render judgements that are manifestly unfair, grossly unreasonable and
contrary to common sense.
25
26
See section 44 of the Zimbabwean Constitution(Act no 20)2013
Communication 25/94
To add on , the complainant need not to exhaust local remedies in cases where there is massive
and serious human rights abuse. As a pratical matter local remedies are prima facie not available or
effective in intances where there is serious and massive human rights abuse. This was affirmed in
the case of Free Legal Assistance Group & Ors v Zaire27 where the commission remarked
The commission has never held the requirement of exhaustion of local remedies to apply literally in
cases where it is impractical or undesirable for the complainant to seize the domestic courts in case
of each violation. This is the situation here , given the vast and varied scope of the violations and the
general situation prevailing in Zaire
.
Basing with the above it is crystal clear that a complainant need not to exhaust local remedies in
instances where there is massive human rihghts violations like the case in Zaire where there was
alleged widespread arrests,detention, unfair trial and restriction of freedom of press and deprivation
of private property.
Last but not least , a complainant is not required to exhaust local remedies under African Human
Rights system where the jurisdiction of the courts has been ousted by domestic legislation. In
Constitutional Rights Project v Nigeria supra the court stated that whre there is ouster clauses
on the jurisdiction of courts the complainant need not to exhaust local remedies 28 This was also
affirmed in the Mike Campbell case where the SADC tribunal stressed the fact that Amendment
17 has ousted the jurisdiction of the courts of law in Zimbabwe from any case related to acquisition
of agricultural land hence the complainant were unable to institute proceedings under the domestic
jurisdiction. Basing with the above, one can conclude that where domestic legislation of the state
concerned does not afford due process of the law for the protection of right that have allegedly
been violated.
In summation, the rule requiring exhaustion of local remedies is a fundamental principle in modern
day international human rights law because it guarantees reserved domain and state sovereignity of
states. However it is imperative to note that the jurisprudence of the African Court is understandably
at an infantile stage and continues to undergo development and refinement. There is need for
27
Communication 25/89
The constitution(Suspension &Modification) Decree 107 of 17 November 1993 which ousted jurisdiction of
Nigerian courts in certain cases.
28
reconsidering the position that only local remedies which are judicial in nature need to be exhausted
before communication to the African Commision because this proposition of the African
Commission would have the effect of unjustifiably excluding other non judicial administrative
remedies which can effectively remedy a breach if approached by individuals before coming to the
African Court or Commision. The writer is of the view that this position interferes with the reserved
domain of municipal law by touching on the sensitive part of the bond of nationality between a State
and its citizens by dictating what should be considered as effective and sufficient local remedies .