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RAPPORTEUR
31st Session: Commissioner Angela Melo
32nd Session: Commissioner Angela Melo
33rd Session: Commissioner Angela Melo
SUMMARY OF FACTS
1. The Complainant, Mr Jean Simbarakiye, is a national of Burundi currently
a refugee in Lomé, Togo.
2. He is assisted by the Institute for Human Rights and Development in
Africa, an NGO with observer status with the African Commission, with its
head office at Banjul, Gambia, P.O. Box 1896, Tel. 220 962280/954131, Fax:
220 49 41 78, Email:info@africaninstitute.org;Website:WWW.AFRICANEINSTITUTE.ORG.
Mr Jean Simbarakiye states that:
3. He arrived in Zaire, now Democratic Republic of Congo, in 1974 where he
obtained the status of political refugee granted and recognised by the
Republic of Zaire and the United Nations High Commission for Refugees.
4. He did his University studies there up to 1984 and, in 1989, he was
employed as a civil electrical engineer by Office National des Transports (ONATRA)
for and on behalf of the State of Zaire.
5. In 1996, following the war between the Democratic Republic of Congo and
Burundi, Uganda and Rwanda in the East of the country, the Haut Conseil de
la République, i.e. the Transitional Parliament, during its session held on
31st October 1996, adopted Resolution No. 04/HCR6PT/96 by which it was
decided to "terminate work contracts for all Rwandan, Burundian and Ugandan
subjects…"
6. Pursuant to this decision, Mr. Jean Simbarakiye was dismissed on 3rd
January 1997, without prior notice nor compensation, by ONATRA, for the sole
reason of being of Burundi origin.
7. He has three children, and his wife is a Congolese (DRC) national.
8. The communication also alleges also that from January 1997, when he was
dismissed without prior notice or compensation, to June 1997, when he left
DRC, Mr Simbarakiye made numerous but unsuccessful attempts to obtain
justice by approaching the Congolese Authorities.
9. Due to moral and material pressure, he was forced to leave DRC in June
1997 and took refuge in Lomé, Togo, where he continued enjoying the status
of refugee, without having exhausted local remedies.
10. He continued his contacts with the Chargé d’Affaires of DRC in Lomé and,
through him, sent a letter on 21st February 2000 to the Minister of Justice
of DRC but, all in all, all his efforts, just like those of his wife after
he left DRC in June 1997 till her own departure for Lomé in 2000, were not
fruitful.
THE COMPLAINT
11. The communication alleges Resolution No. 4 of the Haut Conseil de la
République, the Transitional Parliament of the Democratic Republic of Congo
violates Articles 1, 2, 3, 7, 14, 15 and 18 of the African Charter.
Procedure
12. The communication was received by the Secretariat of the African
Commission on 3rd April 2002, which acknowledged receipt of the same to
Counsel of the Complainant, the Institute for Human Rights and Development
on 4th April 2002.
13. At its 31st Ordinary Session held in Pretoria, South Africa, from 2nd to
16th May 2002, the African Commission decided to be seized of the
communication and referred consideration of the admissibility of the case to
its 32nd Ordinary Session.
14. The Secretariat informed the concerned parties through a Note Verbale
and a letter dated 27th June 2002. In response, the Complainant, through his
counsel, filed his submissions on the admissibility of the communication,
which were received at the Secretariat of the African Commission on
12/8/2002.
15. The Government of DRC, through H.E. the Minister for Human Rights,
acknowledged receipt of the correspondence from the Secretariat of the
African Commission concerning the communication by a letter dated 20th July
2002 and referenced 737 and which was received at the Secretariat on 26th
December 2002.
16. The DRC delegation to the 32nd Ordinary Session of the African
Commission held in Banjul, The Gambia, from 17th to 23rd October 2002,
handed to the Secretariat of the African Commission the submissions of the
Government on the admissibility of Communication 247/2002.
17. The African Commission deferred consideration of the communication to
its 33rd Ordinary Session scheduled for Niamey, Niger, from 15th to 29th May
2003.
18. By Note Verbale and a letter dated 2nd December 2002, the Secretariat of
the African Commission informed the parties of the African Commission’s
decision and forwarded the documents submitted by each of the parties.
19. On 31st January 2003, the Complainant sent to the Secretariat written
submissions in reply to the submissions of the Government of DRC.
20. At its 33rd Ordinary Session held from 15th to 29th May 2003 in Niamey,
Niger, the African Commission considered this communication and declared it
inadmissible.
LAW
ADMISSIBILITY
21. The Complainant alleges that he did not exhaust local remedies because
he was subjected to moral and material pressure.
22. The Government of DRC submitted that he did not provide proof of the
impracticability to exhaust local remedies while he was in the DRC and in
Lomé, Togo, in June 1997.
23. In fact, the Government of DRC explains that local remedies exist and
are available and that even in Togo, the Complainant had the possibility of
taking legal action before bringing the matter before the African
Commission.
24. Article 56(5) of the African Charter on Human and Peoples’ Rights
requires that communications sent to the African Commission shall be
considered if they "... are sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged."
25. Article 56 aims thus at enabling, among others, the Respondent
Government to be aware of the harmful effects of its actions on human rights
and look into the possibility of taking corrective measures before being
sued to an international court.
26. As far as the African Commission is concerned, the existence of a local
remedy should be both theoretical and practical, a condition without which
the local remedy in question would be neither available nor effective.
27. Such is the case when, for objective reasons, the Complainant cannot
take his case to the courts of the Respondent State in conditions that
guarantee him a fair trial.
28. The African Commission has indeed never admitted that the condition of
exhaustion of local remedies apply ipso facto for receiving a communication,
when it finds it illogical to require the exhaustion of local remedies.
29. To support his allegations relating to the impossibility for him to
exhaust local remedies, the Complainant exhaustively referred to the African
Commission’s previous decisions through the following communications:
• Communication 39/90: Annette Pagnoule on behalf of Abdoulaye
Mazou/Cameroun [FN1];
• Communication 103/93: Alhassan Abubakar/Ghana[FN2]
• Communications No. 147/95 and 149/96 [FN3];
• Communications (consolidated) 25/89, 47/90, 56/91, 100/94 [FN4] - Free
Legal Assistance Group, Lawyers’ Committee for Human Rights, Union
Internationale des Droits de l’Homme, Les Témoins de Jéhovah/Zaire;
• Communication 71/92 : Rencontre Africaine pour la Défense des Droits de
l’Homme/Zambia ; and
• Communication 74/92 - Commission Nationale des Droits de l’Homme et des
Libertés/Chad.
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[FN1] Communication 39/90: Annette Pagnoule on behalf of Abdoulaye
Mazou/Cameroon. The Complainant had taken numerous legal actions both non
contentious and contentious without any success. The Commission felt then
that local remedies had been exhausted.
[FN2] Communication 103/93: - Alhassane Aboubacar/Ghana: the Complainant was
sentenced and sent to prison. Following his escape from prison, he took
refuge abroad and seized the African Commission. The African Commission felt
that it was not logical to ask him to return and exhaust local remedies in
Ghana.
Communication 147/95 and 149/96 – Dawda Jawara/The Gambia The Complainant
was a Head of State who had been toppled and sentenced in absentia. The
African Commission felt that local remedies were not available and that in
such conditions, it was not logical to ask him to return to The Gambia to
exhaust local remedies.
[FN3] Communications (consolidated) 25/89, 47/90, 56/91, 100/94: Free Legal
Assistance Group, Lawyers’ Committee for Human Rights, Union Internationale
des Droits de l’Homme, Les Témoins de Jéhovah/Zaire. Considering that the
condition of exhaustion of local remedies was not applicable to the letter
when it is neither practical nor desirable that the Complainant seizes the
courts for each violation, the African Commission declared the consolidated
communications admissible due to the nature of the violations which were
serious and massive violations of human rights.
[FN4] Communication 71/92 – Rencontre Africaine pour la Défense des Droits
de l’Homme/Zambia: The Commission felt that the condition of exhaustion of
local remedies does not mean that Complainants must exhaust local remedies
when, in practical terms, these are neither available nor practical.
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30. The African Commission feels that none of these communications are
identical with the communication brought by the Complainant who, moreover
did not attempt to exhaust local remedies prior to bringing the matter
before the African Commission in 2002.
31. Considering that he left DRC in June 1997, there is no indication that
he attempted to exhaust local remedies whilst in Togo nor did his wife (who
remained in DRC until November 2002) attempt to take any action to exhaust
local remedies.
32. Furthermore, the Complainant does not provide evidence showing the moral
and material constraints alleged to have prevented him from exhausting local
remedies available under the laws of DRC.
33. For these reasons, and in accordance with Article 56(5) of the African
Charter, the African Commission, declares this communication inadmissible
for non-exhaustion of local remedies.
Done at the 33rd Ordinary Session held in Niamey, Niger, from 15th to 29th
May 2003. |
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