33rd Ordinary Session: Commissioner Salamata Sawadogo
34th Ordinary Session: Commissioner Salamata Sawadogo
35th Ordinary Session: Commissioner Salamata Sawadogo
36th Ordinary Session: Commissioner Salamata Sawadogo
37th Ordinary Session: Commissioner Salamata Sawadogo
SUMMARY OF FACTS
1. On the 6thNovember 2002, the Secretariat of the African Commission on
Human and Peoples’ Rights received from Mr. Dossou Dossa Bernard,
Chairperson of the NGO Que Choisir Benin [FN1], a Communication submitted on
behalf of Beninese magistrates, in accordance with the provisions of
Articles 55 and 56 of the African Charter on Human and Peoples’ Rights (the
[FN1] Que Choisir Benin is an NGO based in Benin and has had Observer Status
with the African Commission On Human and Peoples’ Rights since May 2001
(29th Ordinary Session).
2. The Communication was instituted against the Republic of Benin (State
party[FN2] to the African Charter and hereinafter referred to as Benin) and
in it the NGO Que Choisir Benin alleges that the report prepared by a
Commission of Inquiry of the Ministry of Finance of Benin) set up to
investigate disbursements effected between 1996 and 2000 concluded that “
all sorts of irregularities and fraudulent dealings in the collection and
issue of taxes and memoranda falling under the jurisdiction of magistrates”,
had been committed and as a result several magistrates, court clerks and tax
collectors of the Beninese Treasury were brought before the judicial chamber
of the Supreme Court accused of falsification of public accounts, complicity
in embezzlement, fraud, ...
[FN2] Benin ratified the African Charter on 20th January 1986
3. Que Choisir Benin furthermore declares that the Constitutional Court of
Benin, by its Ruling DCC 02-097, dismissed, on unconstitutional grounds, the
appeal lodged by the magistrates imprisoned since December 2001.
4. The NGO Que Choisir Benin contends that the provisions of Articles 547,
548 and 549 of the Ruling No 25/PR/MJL of 07/08/67 governing the criminal
procedure code in Benin and by virtue of which the proceedings were brought
(against those accused), violate the principles of equality and the right to
defense provided for under the provisions of Article 26 of the Constitution
of Benin and Article 7-1 © of the African Charter on Human and Peoples’
5. Que Choisir Benin consequently requests the African Commission to
"consider this Communication at one of its future
6. The Secretariat of the African Commission, by letter ref ACHPR/COMM/2 of
11th February 2003 addressed to Que Choisir Benin, acknowledged receipt of
the Communication, specifying the reference of the Communication and further
informing it that the Communication would be registered on the African
Commission’s roll for examination on seizure at its 33rd Ordinary Session
scheduled from 15 to 19 May 2003 in Niamey, Niger.
7. At the 33rd Session, the African Commission considered the Complaint,
decided to be seized of it and deferred consideration on its admissibility
to the 34th Ordinary Session of the Commission.
8. The Secretariat of the African Commission, by Note Verbale and letter
dated 23rd June informed the parties of the decision on seizure taken by the
African Commission with regard to the Communication and requested them to
convey, as early as possible, their submissions on admissibility of the
9. The plaintiff transmitted by electronic mail its submission on the
admissibility of the Communication to the Secretariat on the 18th August
10. The Secretariat of the African Commission, by letter dated 19th
September 2003, acknowledged receipt of the plaintiff’s letters requesting
some documents mentioned but which were absent from the file.
11. The Secretariat of the African Commission, by Note Verbale dated 24th
September 2003 transmitted the Complaint’s submission and attachments to the
Respondent State reminding it that the African Commission still awaited its
12. The African Commission considered the case during its 34th Ordinary
Session and deferred consideration on its admissibility to the 35th Session.
During the meetings of the 34th Ordinary Session, the Respondent State
delivered its submission on the admissibility of the Communication to the
Secretariat of the African Commission.
13. The Secretariat of the African Commission, by Note Verbale and letter
dated 15th December 2003 informed the Parties of developments on the file,
forwarding to the Complainant a copy of the Respondent State’s statement of
14. The Respondent State was also notified that its delegation to the 34th
Session had pledged to provide the African Commission with copies of the
Constitution and the Criminal procedure Code of Benin.
15. Following a reminder by Note Verbale dated 05 March 2004, the Ministry
of Foreign Affairs of the Republic of the Benin forwarded the
above-mentioned documents under cover of a letter dated 19th March 2004 to
the Secretariat of the African Commission.
16. The Secretariat of the Commission, by letter dated 12 May 2004 also
reminded it to forward its response to the Complainant.
17. During the 35th Ordinary Session which was held in May/June 2004 in
Banjul, The Gambia, the African Commission considered the Complaint and
heard the delegate from the Respondent State.
18. During the 36th Session, the Commission decided to defer its decision on
admissibility to its 3ih Ordinary Session and notified the State accordingly
by Note Verbale dated 20th December 2004.
19. The Secretariat also notified the Complainant of the decision taken by
Commission at its 36th Session and reminded him, by letter dated 20/12/04,
to convey his conclusions on the admissibility of the Communication as early
20. On the 15th February 2005, the Complainant finally submitted his
memorandum on admissibility and a letter acknowledging receipt was sent to
him on the 22/03/05. The Complainant’s memo was also sent to the Respondent
State by Note Verbale dated 22nd March 2005.
21. The African Charter on Human and Peoples’ Rights provides under its
Article 56 that for Communications covered by the provisions of article 55,
to be considered, they should necessarily have exhausted all local remedies,
if any unless it is obvious that this procedure is unduly prolonged.
22. ln the case at hand, the numerous letters from the Secretariat
requesting the Complainant for evidence that the said requirement had been
satisfied remained, for a long time, without response. In fact, the
Secretariat of the Commission lost contact with the Complainant from October
23. However, on the 15th February 2005, the Complainant finally
re-established contact with the Secretariat and conveyed his memorandum on
admissibility through electronic mail. In this memorandum the Complainant
contends that the State of Benin has violated two fundamental principles of
human rights, namely: the principle of equality of all citizens before the
law and in consequence before justice and the principle of the legality of
the criminal act.
24. The Complainant recalls that Articles 547,548 and 549 of the Benin
Criminal Code which form the basis of the procedure thus submitted before
the Supreme Court blatantly violate the Magistrates’ right to defense as
they eliminate the right to appeal in refusing to allow any appeal against
the rulings of the reporting judge acting as examining judge.
25. The Complainant argues that to defend themselves against the abuse of
power and arbitrary rulings by the examining judge, the magistrates found no
other means than to bring the said Articles before the Constitutional Court
which, evidently, are contrary to the provisions of Article 26 of the Benin
Constitution which stipulates that “the State guarantees the equality of all
citizens before the law without discrimination of social position” and that
of Article 3 of the African Charter on Human and Peoples’ Rights which
“1. All individuals enjoy total equality before the law;
2. All persons have right to equal protection by the law”
26. The Complainant contends that the Complaint should be declared
admissible by the African Commission in conformity with Article 50 of the
27. The Respondent State for its part, argues that the Complaint should be
declared inadmissible since the matter at issue is still pending before the
Courts in Benin and if need be, the concerned parties shall have the
possibility of appealing after the Court of Appeal’s ruling to which the
Supreme Court’s judicial chamber had referred the case in April 2003.
28. This argument, posited by the Respondent State in its statement of case
of the 13/11/2003, was reaffirmed by its delegate at the hearing granted by
the African Commission during its 35th Ordinary Session (May/June 2004).
29. Whilst the Respondent State contends that the Complaint is still pending
before the local Courts, the Complainant has not answered the fundamental
question which is whether local remedies have been exhausted in this
30. Since the Complainant has not proven, contrary to the claims of the
Respondent State, that the case has been settled by the Benin Courts and
that local remedies have been exhausted, the African Commission is compelled
to accept the position of the Respondent State which contends that the case
is still pending before the local Courts.
31. Whereas the established jurisprudence of the African Commission, which
is in conformity with the provisions of Article 56 (5) of the African
Charter, requires that the Communications governed by Article 55 of the said
Charter can only be examined after local remedies, if they exist, are
exhausted, “unless it is clear to the Commission that the recourse to these
remedies is unduly prolonged”.
32. Such a position which is also contained in the established precedents of
other human rights institutions is based on the principle that the
Respondent State should first of all have the means of rectifying, through
its own means and within the framework of its own national legal system, the
alleged violation by future Complainants.
33. On these grounds, the African Commission declares the Communication
inadmissible for non exhaustion of all local remedies.