CHAIRPERSON: Kamel Rezag-Bara
VICE CHAIRPERSON: Jainaba Johm
COMMISSIONERS: A. Badawi El Sheikh, Andrew R. Chigovera, Vera M.
Chirwa, Emmanuel V. O. Dankwa, Yasser Sid Ahmed El-Hassan, Angela
Melo, N. Barney Pityana, Hatem Ben Salem, Salimata Sawadogo
|Interights v. Namibia, Decision,
Comm. 239/2001 (ACmHPR, May. 16, 2002)
|Documents of the African Commission
on Human and Peoples’ Rights, Vol. 2, at 348 (Malcolm D. Evans &
Rachel Murray eds., 2009); (2002) AHRLR 21 (ACHPR 2002)
29th Session: Commissioner Andrew R. Chigovera
30th Session: Commissioner Andrew R. Chigovera
31st Session: Commissioner Andrew R. Chigovera
SUMMARY OF FACTS
1. The communication is submitted by Interights a human rights NGO based in
the United Kingdom on behalf of Jose Domingos Sikunda
2. Mr. Sikunda is of Angolan descent but has been living in Namibia for 25
3. The Complainant alleges that sometime in 2000, Mr. Sikunda was arrested
and detained by Namibian authorities. No reasons were given for his arrest
4. It is alleged that on 24th October 2000 the high court of Namibia ordered
the release of Mr. Sikunda from detention but that the government of Namibia
declined to comply with the order.
5. It is also alleged that Mr. Sikunda's lawyers then sought to enforce the
high court order and on 31st October the Judge issued a rule nisi directing
the Minister to show cause why he should not be cited for contempt of the
court order. The case was adjourned twice and on 12th January 2001 Judge
Teek delivered his ruling recusing himself from the case without either
party having applied for it.
6. The Complainant states that there is a pending court order restraining
the deportation of Mr. Sikunda which will lapse on 1st February 2001; and
that the Namibian authorities have indicated their preparedness to deport
Mr. Sikunda to Angola whose government accuses Mr. Sikunda of being a UNITA
rebel. The Complainant alleges that such an act will put Mr. Sikunda at real
risk of torture and extra judicial death.
7. The Complainant alleges a violation of Articles 4, 5 and 12(4) of the
African Charter on Human and Peoples' Rights.
8. The communication was received at the Secretariat of the Commission on
31st January 2001 by fax, a copy of which was forwarded to the Chairman of
the African Commission requesting him to appeal (under Rule 111 of the
Commission's Rules of Procedure) to the Namibian government to refrain from
taking any measures that may put the life of Mr. Sikunda at risk.
9. The Secretariat acknowledged receipt of the communication on 2nd February
2001 and requested the Complainant to furnish it with further information.
10. On 19th February 2001, the Chairman of the African Commission wrote to
the Minister of Foreign Affairs of the Republic of Namibia expressing
concern over the alleged deportation of Mr. Sikunda.
11. On 22nd February 2001, the government of Namibia responded to the
Chairman's appeal declining it and stating that the actions of the Namibian
government were legal and aimed at protecting the security of the country
and its citizens.
12. On 12th March 2001 a copy of the above-mentioned written response was
forwarded to the Complainant and they were reminded to furnish the
Commission with further information.
13. On 21st March 2001, the Complainant responded to the request for further
information stating that will revert back to the Commission with additional
submissions and evidentiary material.
14. At its 29th ordinary session, the Commission decided to be seized of the
15. On 23rd May 2001, the Secretariat conveyed the above decision to the
parties and requested parties to furnish it with additional information on
admissibility in accordance with Article 56 of the African Charter and
forwarded a copy of the text of the Complaint to the Respondent State. The
Parties were requested to present their written submissions to the
Secretariat within three months of notification of the decision.
16. During his promotional visit to Namibia from 2nd to 7th July 2001,
Commissioner Chigovera raised the matter of this Complaint with officials
from the Ministries of Justice and Foreign Affairs and urged them to submit
their written submissions to the Secretariat as soon as possible.
17. On 17th August 2001, the Parties were reminded to forward their written
submissions to the Secretariat on or before the 23rd of August 2001.
18. On 18th and 21st September 2001, the Secretariat wrote to the Respondent
State and the Complainant respectively reminding them to forward their
submissions on admissibility.
19. On 24th September 2001, the Secretariat received a letter from
Interights stating that they would not be able to forward their submissions
for consideration at the forthcoming 30th session as there are elements
missing from their submissions that have not been transmitted by the lawyers
of the victims.
20. At its 30th ordinary session held in Banjul, the Gambia, the Commission
considered the communication and decided to defer the matter to the 31st
Ordinary Session to allow the Complainants forward their submissions on
21. On 9th November 2001, the Parties were informed of the Commission's
22. On 2nd January 2002, the Complainants were reminded to submit their
written submissions on admissibility.
23. By email on 7th January 2002, the Complainants informed the Secretariat
that they had sent a request for supplementary information to their
colleagues in Namibia but had not yet heard from them and in the event that
they do not hear from them they would actively consider sending a
notification for discontinuance of the case.
24. On 19th March 2002, the Secretariat wrote enquiring as to whether the
Complainants still wished to proceed with the communication and if that were
the case to forward their written submissions on admissibility.
25. The Complainant on 20th March 2002 wrote informing the Secretariat that
despite repeated attempts they had failed to secure a response from their
colleagues at the National Society for Human Rights. The Complainants
assured the Secretariat that if this situation does not change before the
next session, then they would request the Commission to authorise them to
withdraw the communication.
26. Article 56 of the African Charter governs admissibility. The most
relevant provisions of that Article provide:
“Communications … received by the Commission shall be considered if they-:
(5) are sent after exhausting local remedies, if any unless it is obvious
that this procedure is unduly prolonged.”
27. The Respondent State argues that following refusal by the Minister of
Home Affairs to honour the High Court decision on 24th October 2000 ordering
Sikunda's release from detention, Sikunda's lawyers sought to enforce the
Court order by an application to commit the Minister of Home Affairs for
contempt of court.
28. The Respondent State submits that Interights submitted the present
communication to the African Commission on 31st January 2001 whilst the
matter of hearing the application of a rule nisi showing cause why the Home
Affairs Minister should not be held in contempt of court was still pending
before the High Court. Indeed High Court heard the matter on 1st February
2001 and delivered judgement on 9th February 2001, finding the Minister of
Home Affairs in contempt of court. Therefore, the Respondent State argues,
that Interights by submitting a complaint on 31st January 2001 had failed to
meet the requirements of Article 56(5) of the African Charter.
29. The Complainants on the other hand have been repeatedly requested by the
Commission to furnish their submissions on admissibility, especially on the
question of exhaustion of domestic remedies but there has not been any
response from them.
30. Thus from the information available to the Commission and principally
from the copy of the judgement of the High Court of Namibia delivered on 9th
February 2001; the Commission observes that the Complainant brought the
matter before it prior to exhausting domestic remedies, indeed while the
matter was still pending before the High Court of Namibia.
For these reasons, the Commission in conformity with Article 56(5) of the
African Charter declares this Communication inadmissible for non-exhaustion
of domestic remedies.
When the Chair of the Commission wrote to the Government of Namibia
expressing concern over the alleged deportation of Mr Sikunda, the
government responded stating that its actions were legal and aimed at
protecting the security of the country and its citizens.
Following the decision that the Commission has come to, the Commission would
like to state that in circumstances where an alleged violation is brought to
the attention of the Commission and where it is alleged that irreparable
damage may be caused to the victim, the Commission will act expeditiously
appealing to the State to desist from taking any action that may cause
irreparable damage until after the Commission has had the opportunity to
examine the matter fully. In such cases the Commission acts on the facts as
presented and it was therefore in this vein that the Commission wrote to the
Minister of Foreign Affairs of the Republic of Namibia expressing concern
over the alleged deportation of Mr. Sikunda.
Done at the 31st Ordinary Session of the African Commission held from 2nd to
16th May 2002 in Pretoria, South Africa.