SUMMARY OF THE FACTS
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat") received the Communication from the Complainant - Redmond,
Tsatsu Tsikata, in accordance with Article 55 of the African Charter on
Human and Peoples' Rights (the "African Charter").
2. The author of the present Communication, who is himself the Complainant,
submitted the Communication against the Republic of Ghana ("Ghana"),
alleging that the latter is in the process of trying him for "wilfully
causing financial loss to the State" contrary to Section 179A (3) of the
Criminal Code, 1960 (Act 29); an act, which did not constitute an offence at
the time of the commission. He alleges that this is contrary to Article 19
(5) of the Constitution of Ghana, which prohibits retroactive
criminalization, and Article 7 (2) of the African Charter. He had challenged
this in the High Court in Ghana, and his contention was upheld.
3. He further alleges that in the course of his trial, he has been denied
the right to a fair trial, in violation of Article 7 (1) of the African
Charter. He alleged that he had been summoned "in the name of the President" to appear before a
"Fast-Track Court"; and he had challenged the
constitutionality of both at the Supreme Court, which claims were upheld on
28th February 2002. However, after the Executive's alleged interference with
the decision, and the "questionable" appointment of a new Justice of the
Supreme Court, the decision was "reversed" by an 11-member panel of the
Supreme Court, including the newly-appointed Justice, on 26th June 2002. The
case was further "remitted" to the "Fast-Track Court", which had now been
4. The author also notes that the Chief Justice had prior to the Supreme
Court's latter decision, publicly and explicitly stated his determination to
have the earlier decision of the case reversed.
5. The author also contends that both the manner of appointment of the new
Justice of the Supreme Court and the conduct of the Executive towards the
Judiciary in relation to his case constituted a violation of Article 26 of
the African Charter, which obliges States to guarantee the independence of
6. The author stated that on 9th October 2002, he was again charged before
the "High Court of Accra" on four counts, including the retroactive charge
of "wilfully causing financial loss to the State" (paragraph 2 above); and
intentionally misapplying public property contrary to section 1 (2) of the
Public Property Decree 1977, (SMCD 140). He alleges that the facts on which
the charges were based are the same as those on which he had been charged
before three (3) previous courts: a) Circuit Tribunal; b) Fast Track Court;
and c) the normal High Court.
7. The author further alleges a violation of his right to fair trial under
Article 7(1) of the African Charter when the trial judge of the High Court
of Accra overruled his Counsel's submission of "no-case-to-answer", without
giving reasons; thereby violating his right to be presumed innocent until
proven guilty by a competent court or tribunal, as well as right to have the
violations of his fundamental rights redressed.
8. He further alleges that he had appealed to the Court of Appeal, and that
in upholding the decision of the lower court, the Court of Appeal had relied
on a repealed law, which was neither cited in the charge sheet, nor at any
point in the trial proceedings at the High Court, except in response to the
submission of "no-case-to-answer". He alleges that the Court of Appeal
thereby denied him of his right to defence guaranteed under Article 7 (1)
(c) of the African Charter as he could not have known before the trial, that
a repealed law, which he had no (prior) notice of in the charge sheet or at
any point in the trial, would be the basis of his charge. He also alleges a
further breach of his right to be presumed innocent until proven guilty by a
competent court or tribunal guaranteed by Article 7 (1) (b) of the African
9. He submits that there is a further violation of Article 7 (2) of the
African Charter, and a failure to enforce Articles 19 (5) and (11) of the
Constitution of Ghana, which accord him certain fundamental rights as an
10. He contends that he was further denied the right to defence guaranteed
under Article 7 (1) (c) of the African Charter when upon his subpoena, the
counsel for the International Finance Commission (IFC) appeared before the
Court and argued that the IFC was immune from the court's jurisdiction; and
this argument was upheld, even by the Court of Appeal, despite the provision
of Article 19 (2) (g) of the Constitution of Ghana, which guarantees the
accused's right to call witnesses, and the fact tat the statutory provisions
on the IFC in Ghana do not grant them the claimed immunity from testifying.
11. He noted that Article 19 (2) (g) of the Constitution of Ghana is similar
to the paragraph 2 (e) (iii) of the provisions of the Elaboration of the
Right to Fair Trial by the African Commission on Human and Peoples' Rights,
meeting at its 11th Ordinary Session in Tunisia, 2-9 May 1992.
12. Lastly, he contended that the continuation of his trial on charges and
in the manner that offend the provisions of the African Charter would cause
him irreparable damage.
13. The author of this Communication contends that the charge on which his
trial is based constitutes a violation of the right against non-retroactive
criminalization under Article 7 (2) of the African Charter.
14. He also contends that the manners in which the trial has been, and is
being carried out violate Article 7 (1) of the African Charter.
15. He seeks the intervention of the African Commission on Human and Peoples'
Rights, and urges the Commission to invoke Rule 111 of its Rules of
Procedure on Provisional measures, and request the Republic of Ghana not to
proceed further with his trial until his case has been heard by the African
16. The present Communication was received by the Secretariat of the African
Commission on 27th April, 2006.
17. The Secretariat of the Commission acknowledged receipt of the
Communication to the Complainants under letter ACHPR/LPROT/COMM/322/2006/RE
of 2nd May 2006, providing the references of the Communication and informing
the Complainant that the Communication would be scheduled for consideration
by the African Commission at its 39th Ordinary Session to be held in May
2006, in Banjul, The Gambia.
18. At its 39th Ordinary Session, held from 11th to 25th May 2006, in Banjul,
The Gambia, the Commission decided to be seized of the Communication, but
declined to request the Respondent State to take provisional measures in
accordance with Rule 111(1) of its Rules of Procedure because the
Complainant did not demonstrate the irreparable damage that would be caused
if the provisional measures were not taken.
19. On 1st June 2006, the Secretariat of the African Commission informed the
parties of the above-mentioned decision and asked them to provide it with
more information on the admissibility of the Communication, in accordance
with Article 56 of the African Charter. It also sent a copy of the
Communication to the Respondent State. It requested the parties to send
their written observations to the Secretariat within three (3) months after
notification of the decision.
20. On 31st August and 5th September 2006, the Secretariat of the Commission
received the submissions of the Respondent State by fax & mail, respectively.
21. At its 40th Ordinary Session held from 15th to 29th November 2006 in
Banjul, The Gambia, the African Commission considered this Communication on
THE COMPLAINANT'S SUBMISSION
22. In the case under consideration, the Complainant makes reference to
several recourses to the domestic courts for redress of the alleged
violations of his rights, but gives no indication of the exhaustion of all
available domestic remedies, particularly in view of the alleged on-going
From the facts presented, the alleged on-going violation of his rights
involves an on-going trial, the legality of which he challenges on the basis
of the provisions of the Charter. He however failed to present evidence of
the conclusion of this trial, and or to prove that it has been unduly
23. The Complainant contended that the continuation of his trial based on
charges and in the manner that offend the provisions of the African Charter
would cause him irreparable damage, but without elaborating how.
THE RESPONDENT STATE'S SUBMISSION
24. In its response in accordance with Rule 116 of the Rules of Procedure of
the African Commission, the Respondent State referred to the provisions of
Article 56 (5) of the African Charter which provides for the exhaustion of
local remedies as a requirement for the African Commission to rule on the
admissibility of Communications, unless it is obvious that this procedure is
unduly prolonged. It therefore submitted that since the matter of the
Complainant's Communication is still pending in the High Court of Justice,
Ghana, with further unexplored rights of appeal to the Court of Appeal and
Supreme Court of Ghana, in accordance with Articles 137 & 131 respectively
of the Constitution of Ghana, the Communication should be declared
inadmissible by the Commission.
25. The Respondent State also recalled that the guidelines for submission of
Communications provide that each Communication should particularly indicate
that local remedies have been exhausted, and observed that the Complainant
failed to provide any evidence of the domestic legal remedies pursued.
26. The Respondent State also argued that the Complainant further failed to
meet the requirement of Article 56(5) of the Charter as he could not show in
his complaint that the procedure in the High Court of Justice has been
protracted or unduly delayed. It further submitted that if indeed any delay
has been occasioned, it would be due to the Complainant's own repeated
requests for adjournments and interlocutory appeals.
27. The Respondent State also made reference to Article 56(6) of the Charter,
which provides for Communications to be submitted "within a reasonable
period from the time local remedies are exhausted...", and submitted that the
Complainant acted impetuously given that the matter has not been concluded,
and time has not begun to run so as to afford the complainant an opportunity
to bring his complaint.
28. Furthermore, the Respondent State noted Article 56(3) of the Charter and
the guidelines for submission of Communications which provide that a
Communication shall be considered "if it is not written in disparaging or
insulting language directed against the State concerned..."; and submitted
that the language in paragraphs 15, 16 and 17 of the Complainant's
Communication is insulting to Ghana and its Judiciary where lack of
integrity, impropriety, bias and prejudice are imputed to the Executive and
the Judiciary of the Republic of Ghana. To this effect, the Respondent State
cited the Complainant's statement in paragraph 17 of his Communication
whereby he stated that: "Far from guaranteeing the independence of the Court
in relation to my trial, the Government of Ghana has shown an irrevocable
determination to have me found guilty by hook or crook and incarcerated".
THE COMMISSION'S DECISION
29. The admissibility of the Communications submitted before the African
Commission is governed by the seven conditions set out in Article 56 of the
30. The parties' submissions only relate to the provisions of Articles 56(3)
(5) and (6).
31. Article 56(3) specifically stipulates that Communications shall be
considered if they "are not written in disparaging or insulting language
directed against the State concerned and its institutions..."
32. In respect of the Respondent's State's submission that paragraphs 15, 16
and 17 of the complaint is written in disparaging or insulting language
directed against the former, the Commission holds that this is not the case.
The Commission notes that these stipulated paragraphs of the complaint are
only facts of allegations of Charter violations; and expressions of the
complainant's fear in this regard. It is on the basis of these allegations
and fear that the Complainant had submitted this Communication. The
Commission reiterates that the purpose of its mandate is to consider
complaints alleging such perceived judicial bias and prejudice, and undue
interference by the executive with judicial independence, in accordance with
Article 7 of the Charter, its Resolution on the Respect and the
Strengthening on the Independence of the Judiciary (1996) [FN1], and other
relevant international human rights norms; in accordance with articles 60
and 61 of the Charter.
[FN1] ACHPR /Res. 21(XIX) 96.
33. In this light, the Commission wishes to distinguish these paragraphs,
for instance, from its decision in the case of Ligue Camerounaise des Droits
de l'Homme vs. Cameroon [Comm. 65/92], where the Commission condemned the
use of words such as "Paul Biya must resond to crimes against humanity"; "30
years of the criminal neo-colonial regime incarnated by the duo Ahidjio/Biya";
"regime of torturers"; and "government barbarisms"; as insulting language.
34. In respect of Article 56(5), which stipulates that Communications shall
be considered if they "are sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged...", the
Commission notes the importance of this rule as a condition for the
admissibility of a claim before an international forum. It notes that the
rule is based on the premise that the Respondent State must first have an
opportunity to redress by its own means and within the framework of its own
domestic legal system, the wrong alleged to have been done to the individual.
35. In light of the parties' submissions, the African Commission notes that
the Complainant's allegations are in respect of an on-going/unconcluded
trial. The information provided by the Complainant himself states that the
communication is still pending before the courts of the Republic of Ghana.
The Commission further notes that should the on-going trial end against the
Complainant's favour, he has further rights of appeal to the Court of Appeal
and Supreme Court of Ghana, in accordance with Articles 137 & 131
respectively of the Constitution of Ghana. In this regard, the Commission
draws the attention of the parties to the similar case of Kenya Human Rights
Commission vs. Kenya [Comm. 135/94], where it had held that "...the facts
supplied by the Complainants themselves stated that the Communication was
pending before the Courts of Kenya,... [and] that the Complainants had
therefore not exhausted all available local remedies."
36. Therefore, although the Communication presents a prima facie case of a
series of violations of the African Charter, a close look at the file and
the submissions indicate that the Complainant is yet to exhaust all the
local remedies available to him.
37. With regard to Article 56(6) of the Charter which provides that
Communications shall be considered if "... they are submitted within a
reasonable period of time from the time local remedies are exhausted, or
from the date the Commission is seized of the matter", the Commission holds
that this is quite related to the principle of the exhaustion of local
remedies in accordance with article 56(5). This means that the Commission
estimates the timeliness of a Communication from the date that the last
available local remedy is exhausted by the Complainant. In the case of
unavailability or prolongation of local remedies, it will be from the date
of the Complaianant's notice thereof.
38. Unlike its Inter-American [FN2] contemporary, the Commission does not
specify a time-period within which Communications must be submitted. However,
it advised on the early submission of Communications in the case of John K.
Modise vs. Botswana [Comm. 97/93].
[FN2] Art 32 of the Rules of Procedure of the Inter-American Commission;
39. However, having found that the Complainant has not exhausted local
remedies the Commission concurs with the Respondent State's argument that
the Complainant had acted impetuously in bringing this Communication. This
is because the matter has not been concluded, for which reason time has not
begun to run such as to afford the complainant the opportunity to bring this
FOR THESE REASONS, THE AFRICAN COMMISSION declares the communication
inadmissible for non-exhaustion of local remedies.
Done at the 40th Ordinary Session held from in Banjul, The Gambia, 15 - 29