CHAIRMAN: Professor E.V.O. Dankwa
VICE CHAIRPERSON: Mrs. Julienne Ondziel-Gnelenga
COMMISSIONERS: Professor Isaac Nguema, Dr. Hatem Ben Salem, Mr.
Kamel Rezag-Bara, Dr. Nyameko Barney Pityana, Mr. Andrew Ranganayi
Chigovera, Mrs. Vera Mlangazuwa Chirwa, Mrs. Jainaba Johm
||Diakité v.Gabon, Comm. 73/92, 13th
ACHPR AAR Annex V (1999-2000)
||IHRDA, Compilation of Decisions on
Communications of the African Commission On Human and Peoples’
Rights Extracted from the Commission’s Activity Reports 1994-2001,
at 98 (2002); Documents of the African Commission on Human and
Peoples’ Rights, Vol. 2, at 170 (Malcolm D. Evans & Rachel Murray
eds., 2009); (2000) AHRLR 98 (ACHPR 2000)
17th Session: Commissioner Nguema
18th Session: Commissioner Nguema
19th Session: Commissioner Nguema
20th Session: Commissioner Nguema
21st Session: Commissioner Nguema
22nd Session: Commissioner Nguema
23rd Session: Commissioner Nguema
24th Session: Commissioner Nguema
25th Session : Commissioner Nguema
26th Session: Commissioner Nguema
27th Session: Commissioner Nguema
SUMMARY OF FACTS
1. The complainant is a citizen of Mali who lived in Gabon for 17 years, and
was expelled on 4 November 1987, leaving his wife and 5 children who were
all born in Gabon. According to the complainant, the reason for his
expulsion is that his friend (a certain Mr. Coulibaly Hamidou) was accused
of having a sexual relationship with the first wife of a Gabonese Government
Minister, Mr. Mba Eyoghe, former member of government. Consequently, the
latter using his connections with certain Gabonnese administration
humiliated the complainant, his family and friend. The complainant also
claims that Mr. Mba Ejoghe owes him money. The complainant and his friend
were expelled from Gabon and on 27 August 1989 following expulsion order No.
182/MATCLI-DGAT-DDF-SF. A second order No. 126/MAT/CLD/SE/SG/DGAT/DDF/SF of
22 June 1992 nullified the first order, therefore the complainant and his
friend were authorised to come back to Gabon.
2. Though the complainant does not indicate specific violations of the
provisions of the Charter to substantiate his communication, it appears that
Articles 12(4), 14 and 18 (1) and (2) have been violated.
3. The communication is dated 10 April 1992. The Commission was seized of it
at its 12th session.
4. The Secretariat of the Commission exchanged many correspondences with the
parties on the issue of exhaustion of local remedies and reparation by the
Gabonese authorities to the complainant for the prejudice suffered.
5. The complainant responded and indicated that he had exhausted local
remedies and that the Gabonese authorities were yet to remedy the violations
6. At its 14th Session held in Banjul, the Gambia from 25 October to 3
November 1994, the communication was declared admissible.
7. At its 16th session held in October 1995, the Commission directed that a
letter be sent to the Government of Gabon to find out what steps had been
taken to deal with the complainant's case.
8. At the 17th session in March 1996, it was decided that Commissioner
Nguema would take the matter up with the Foreign Minister of Gabon.
9. On 30 March 1995, a Note Verbale was received from the Ministry of
Foreign Affairs of Gabon stating that Commissioner Nguema had met the
Minister of Foreign Affairs for discussions. The case of M. Diakite had been
discussed but a resolution had not been reached. However the Gabon
authorities promised to work on a solution.
10. The case was deferred on many occasions to allow parties to settle the
matter amicably with the assistance of Commissioner Isaac Nguema.
Unfortunately, these attempts did not succeed.
11. On 11 May 1999, the Secretariat received a letter sent by the
complainant and addressed to the Chairman of the Commission. The said letter
was soliciting his intervention ex qualite to the Gabonese Head of State.
The content of the letter was brought to the attention of the Chairman. He
then wrote to the President of Gabon, on 10 June 1999, requesting him to
help find a lasting solution to the matter. The latter is yet to react.
12. On 30 March 2000, the Secretariat received a letter from the complainant
acknowledging receipt of the letter conveying the decision of the Commission
to postpone consideration of the communication to the 27th session. But at
the same time expressed his wishes that a final decision will be taken at
the said session.
13. On 30 April 2000, the Respondent State submitted fresh evidence thereby
throwing more light on the matter and the way the complainant and his friend
returned to Gabon
14. According to the provisions of Article 56(5) and (6) of the African
Charter on Human and Peoples’ Rights, communications received at the
Commission, concerning human and Peoples’ rights shall, in order to be
considered, necessarily fulfil the following conditions – they must be:
(5) “sent after exhausting local remedies, if any unless it is obvious that
this procedure is unduly prolonged”;
(6) “submitted within a reasonable period from the time local remedies are
exhausted or from the date the Commission is seized with the matter”.
15. Mr Mohamed Lamine Diakité, was expelled from Gabonese territory on 22
August 1989, pursuant to a warrant issued by the administrative authority of
the State. Though he had returned to his country of origin, Mali, he
undertook démarches with a view to causing the revocation of his warrant of
expulsion, as well as obtaining compensation for the injury suffered due to
the expulsion. He was later on authorised to return to Gabon where he is
residing since 9 December 1997.
16. However, the focus of the Commission’s attention is really on the fact
that the condition regarding the exhaustion of internal remedies before
seizing an international forum is based on the principle that the defendant
State should have had the opportunity to redress the injury caused to the
victim by its own means, within the framework of its own judicial system.
This principle does not however mean that the complainant should necessarily
exhaust remedies, which, in practical terms, are not available.
17. The Respondent State by correspondence dated 30 April 2000 has submitted
fresh evidence from which it essentially appears that Mr. Mohammed Lamin
Diakite had never contested the decision of expulsion No. 182/MATCLI-DGAT-DDF-SF
issued against him. His return to the Gabonese territory is based on a
political decision by the Gabonese Head of State following talks with his
Malian counterpart during an official visit to Mali.
FOR THE ABOVE REASONS, THE COMMISSION
declares the communication brought by Mr. Mohammed Lamin Diakite
inadmissible for non-exhaustion of local remedies.
Done in Algiers, Algeria on 11 May 2000.