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SUMMARY OF FACTS
1. The complaint is filed by the Bakweri Land Claims Committee (BLCC) on
behalf of traditional rulers, notables and elites of the indigenous minority
peoples of Fako division (the Bakweri) against the government of Cameroon.
2. The complaint follows Presidential Decree 94/125 of 14 July 1994 where
the government of Cameroon listed the Cameroon Development Corporation
(CDC), which will allegedly result in the alienation, to private purchasers,
of approximately 400 square miles (104 000 hectares) of lands in the Fako
division traditionally owned, occupied or used by the Bakweri. The
complainant alleges that the transfer would extinguish the Bakweri title
rights and interests in two-thirds of the minority group�s total land area.
3. The complainant states that the land in question was seized from Bak-weri
landowners between 1887 and 1905 by German colonial occupiers, which was
acknowledged by the British colonial authorities and the United Nations
General Assembly (UN document 189, paragraph 16) in November 1949, and that
the land in question was bought back by the British colonial government
following WWII, and declared �native lands� and placed under the custody of
the Governor of Nigeria to hold in trust for the Bakweri. In 1947, the lands
were later leased to a newly created statutory corporation, the Cameroon
Development Corporation (CDC) for a period of 60 years to administer and
develop same until such time that the Bakweri people were competent to
manage them without outside assistance.
4. The complainant alleges that the Bakweri�s antecedent rights and
interests to this land survived the change of sovereignty from the British
crown to the State of Cameroon. The complainant states that the Bakweri
title to this land has never been extinguished, confirmed by Cameroon�s 1974
Land Tenure Act 74-1 which states that land entered in the Grundbuch is
subject to the right of private property, and that the lands held in trust
were leased in 1947 for a period of 60 years to the CDC, until that time
that the Bakweri people were competent to manage them without assistance,
and that during this time the rents paid for the land were to be paid to the
local councils in Fako division.
5. The complainant alleges that the process of extinguishment set in motion
by Decree 94/125, the privatisation of CDC and with it the likelihood of
transferring Bakweri private lands to third parties is in violation of the
Bakweri people�s right to private property and the freedom to dispose of
their wealth and natural resources, which are guaranteed in the African
Charter. The complainant further alleges that this process is being carried
out without any discussion of fair compensation for the Bakweri in a
violation of the African Charter and Cameroon�s own Constitution.
6. The complainant alleges that the concentration of private Bakweri lands
in non-native hands undermines the Bakweri people�s right to development, by
irrevocably altering existing land holding arrangements and pattern of
natural resource exploitation and by forcing a future exodus of the Bakweri
population to other parts of Cameroon who will need to relocate for more
land for their agricultural and development needs, and thereby risk
aggravating social tensions. The complainant further alleges that the
government of Cameroon has adopted a discriminatory approach toward the
Bakweri that has totally lacked in fundamental fairness and has failed to
include proper representation of the Bakweri stakeholders in the
negotiations with regard to the future of the CDC.
COMPLAINT
7. The complainant alleges violations of articles 7(1)(a), 14, 21, 22 of the
African Charter on Human and Peoples� Rights.
8. The complainant prays for the Commission to recommend that:
� The government of Cameroon affirm the lands occupied by the CDC are
private property;
� The Bakweri be fully involved in any CDC privatisation negotiations;
� Ground rents owed to the Bakweri dating back to 1947 be paid to a Bakweri
Land Trust Fund;
� The Bakweri, acting jointly and severally, be allocated a specific
percentage of shares in each of the privatised companies;
� The BLCC be represented in the current and all future policy and
management boards.
PROCEDURE
9. The complaint was dated 4 October 2002 and received at the Secretariat on
8 and 15 October 2002.
10. At its 32nd ordinary session held from 17 to 23 October 2002 in Banjul,
The Gambia, the African Commission considered the complaint and decided to
be seized thereof.
11. On 4 November 2002, the Secretariat wrote to the complainant and
respondent state to inform them of this decision and requested them to
forward their submissions on admissibility before the 33rd ordinary session
of the Commission.
12. On 31 January 2003, the respondent state forwarded its written
submission on the admissibility of the communication, which was forwarded to
the complainant.
13. On 3 February 2003 (received on 6 February 2003), the complainant
forwarded its written submission on the admissibility of the communication
as requested by the African Commission. The Secretariat forwarded a copy of
the same to the respondent state on 17 February 2003.
14. On 4 March 2003, the complainant forwarded its response to the
submissions by the respondent state. The former also requested for leave to
appear before the Commission at its 33rd ordinary session for the purpose of
making an oral submission.
15. On 8 May 2003, the Secretariat received the written submission of the
respondent state on the admissibility of the complaint.
16. At its 33rd ordinary session held in Niamey, Niger from 15 to 29 May
2003, the African Commission considered the communication and deferred its
decision on admissibility to the next ordinary session allowing the
complainant more time to forward written response to the respondent state�s
reply on admissibility, which was handed to the complainant on 24 May 2003.
Pending the final decision of the African Commission on the issue, the
latter also requested its Chairman to forward an urgent appeal letter to His
Excellency, President Paul Biya of the Republic of Cameroon respectfully
urging him to ensure that no further alienation of the land in question
takes place.
17. Accordingly, the Chairman of the African Commission forwarded the said
letter to His Excellency, President Paul Biya of the Republic of Cameroon on
20 May 2003.
18. The complainant forwarded its written response to the respondent state�s
reply on 23 August 2003.
19. At its 34th ordinary session held in Banjul, The Gambia, from 6 to 20
November 2003, the African Commission heard oral submissions of the parties
and decided to defer its consideration on admissibility to the 35th ordinary
session. The parties were also requested to avail the Secretariat with
copies of the Constitution of the Republic of Cameroon and relevant
legislation cited in their respective submissions.
20. On 10 December 2003, the Secretariat wrote to the parties informing them
of this decision.
21. At its 35th ordinary session held in Banjul, The Gambia from 21 May to 4
June 2004, the African Commission deferred its decision on admissibility to
the 36th ordinary session due to lack of time.
22. On 17 June 2004, the Secretariat wrote to the parties informing them of
this decision.
23. During its 36th ordinary session that took place from 23 November to 7
December 2004 in Dakar, Senegal, the African Commission considered the
communication.
THE LAW ADMISSIBILITY
24. In its initial complaint dated 4 October 2002, the complainant notes
that it is mindful of the requirement of exhausting local remedies under
article 56(5) of the African Charter. This rule is waived, however, where it
is obvious that the procedure for exhausting domestic remedies is �unduly
prolonged� and further, the complainant holds, that the African Commission,
in its jurisprudence, has cautioned against the mechanical application of
the domestic remedies rule particularly in �cases where it is impractical or
undesirable for the complainant to seize the domestic courts in the case of
each violation�.[FN1] The complainant also cited the African Commission�s
jurisprudence on the need to exhaust local remedies.[FN2] The complainant
drew the Commission�s attention to the fact that the government of Cameroon
has had four decades during which it could have redressed these grievances
within the framework of its domestic legal system. It further argues that
the government instead was engaged in delaying tactics to avoid taking a
principled position on the Bakweri land problem. It has known, for very long
time, about the violations of Bakweri land rights and thus had �ample
opportunity� to reverse the situation consistent with its obligations under
the Banjul Charter.
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[FN1] Free Legal Assistance Group and Others v Zaire [(2000) AHRLR 74 (ACHPR
1995)] para 37.
[FN2] Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
[(2001) AHRLR 60 (ACHPR 2001]
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25. The complainant further argues that during this entire period, it
petitioned the successive Cameroonian governments for restitution. It met
with the various officials of the Republic, including the Prime Minister and
the Assistant Secretary-General at the Presidency, but to no avail. The
complainant holds thus that any further negotiations to seek domestic relief
will merely prolong the resolution of the Bakweri land problem.
Free Legal Assistance Group and Others v Zaire [(2000) AHRLR 74 (ACHPR
1995)] para 37. Social and Economic Rights Action Centre (SERAC) and Another
v Nigeria [(2001) AHRLR 60 (ACHPR 2001)].
26 The complainant alleges that even if the exhaustion of domestic remedies
rule is given its most restrictive meaning, requiring it to go through the
courts of Cameroon would be futile. No judge in Cameroon will risk his/her
career, not to mention his/her life, to handle this politically sensitive
matter, as the matter implicates the crown jewel of a privatisation
programme the government is determined to see through; pits the Bak-weri
people against a Prime Minister and head of government as well as an
Assistant Secretary-General at the Presidency, both of whom are Bakweri but
non-elected officials holding their offices at the pleasure of the
President; and places the government in a face off with a
politically-conscious minority tribe that has refused to stay quiet and
watch its ancestral lands being sold to non-natives. The complainant claims
that experience has shown that such is not the kind of politically-sensitive
litigation that a judiciary firmly under the control of the President would
like to handle and it is a contest in which the complainant is not going to
receive a fair hearing.
27. The complainant concludes that, under the circumstances, asking the
Bakweri to seek domestic relief will merely prolong the agony of the
Bak-weri in seeking a resolution to their land problem.
28. In its 4 February 2004 further written submissions on the admissibility
of the complaint, the complainant contends that BLCC is the accredited agent
of the Bakweri People on whose behalf it filed the present communication,
that the complaint is not pending before any other international tribunal,
that the allegations contained therein are backed by documentary evidence,
and that there is no insulting language used. In elucidating further on
article 56(5) of the African Charter, the complainant alleges that the
thrust of the provision therein is to check whether an effective legal
remedy exists in Cameroon of which the complainant could avail itself. The
complainant alleges that no such remedy existed and that special
circumstances excused it from compliance with the exhaustion requirement.
29. First, the complainant alleges that in Cameroon, the judiciary is
neither free nor impartial with the result that justice tends to be
dispensed in a discretionary manner thereby making recourse to domestic
avenues of redress uncertain, impractical and undesirable. Second, the
complainant alleges that the government of Cameroon has had ample time to
resolve the Bakweri land claims problem but has failed to do so. Instead it
has effectively blocked inferior decision-making organs from taking on the
matter.
30. The complainant proceeded to argue that in deciding whether BLCC has
made full use of the available legal remedies, attention ought to be focused
on what in the Cameroon context passes for effective remedies. It alleges
that the legal and political context in which justice is administered in
Cameroon is one where the President wields extraordinary powers. It is a
unified executive wherein the last word in domestic remedies, whether of an
administrative or legal nature, in the Cameroonian context is the President
of the Republic. Presidential decisions carry a kind of res judicata on
other state institutions and organs.
31. The complainant argues that Cameroon�s judiciary lacks independence. To
substantiate this, it cites the 1999 and 2001 human rights reports on
Cameroon produced by the United States Department of State, and a newspaper
report. Although the President is assisted by a Higher Judicial Council in
the appointment of members of the bench and officials of the legal
department, judicial officers serve at the President�s pleasure. Besides,
the Judicial Council is completely under the control of the President who
appoints the majority of its members and presides over all its meetings.
32. The complainant avers that the supremacy of the Presidency and its
dominance of the judiciary give rise to a peculiar form of de facto
executive �pre-emption� of decision making by subordinate state organs,
regardless of whether there is an actual conflict between them or not.
Presidential �pre-emption� of decision-making at all levels and in all
areas, judicial as well as non-judicial, operates in much the same way as an
ouster clause which bars �the ordinary courts from taking up cases placed
before the special tribunals or from entertaining any appeals from the
decisions of the special tribunals.�[FN3] The Bakweri case is not entirely
dissimilar to International Pen and Others v Nigeria as the presidential
�pre-emption� ousts the jurisdiction of the ordinary courts thus depriving
the complainant of effective domestic relief.
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[FN3] International Pen and Others (on behalf of Saro-Wiwa) v Nigeria
[(2000) AHRLR 212 (ACHPR
1998)] para 75
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33. The complainant further reminds the Commission that the relief it is
seeking is for the government to acknowledge in writing its legal title to
the Bakweri lands, which can only come from the authority that issued the
Privatisation Decree of 1994, which is non-other than the President of the
Republic. The later can theoretically be ordered to do so by the courts.
Yet, that would not be possible as the court system remains under the
President�s total control, whose judges are personally appointed, promoted
or removed by him.
34. The complainant avers that in Cameroon, justice is exercised in a
discretionary manner through a process of de facto ousting of the
jurisdiction of the courts. Executive-controlled organs including ministers
can and do make judicial decisions by-passing the courts. Besides, there is
inordinate control in the dispensation of justice exercised by law
officials, like the Procureur de la Re´publique [public prosecutor], who as
an official of the [justice] department, can order law enforcement officers
to either enforce a court judgment or ignore it. For this, the complainant
cites the procur-eur�s discretionary action not to enforce a court judgment
in the Cameroon Tea Estates (CTE) (which plants tea on disputed Bakweri
lands) management dispute, where it was ordered that the Board of the CTE
reinstate the general manager whom they dismissed. The complainant further
alleges that there is also a discretionary exercise of power evident in the
judiciary. This has implications on the requirement of exhaustion of
domestic remedies by the complainant as the procureur�s refusal to enforce
the decision in the management dispute foreshadowed the fate of the BLCC if
a court were to exercise jurisdiction in rem over the disputed Bakweri
lands, which also introduced uncertainty undermining confidence in the court
system. The complainant draws the Commission�s attention to its decision in
the Constitutional Rights Project (in respect of Akamu and Others) v Nigeria
[(2000) AHRLR 180 (ACHPR 1995)]. The issue in that communication was a
provision in the Robbery and Firearms Act (Special Provisions) which
conferred on the State Governor the power to confirm or disallow a
conviction for violations of this law by a special tribunal. The African
Commission held that the Governor�s power was a� discretionary,
extraordinary remedy of a non-judicial nature� and that �[i]t would be
improper to insist on the complainants seeking remedies from sources which
do not operate impartially and have no obligation to decide according to
legal principles.�
35. In expounding further on its claim that the government of Cameroon had
adequate notice and opportunity to remedy the violations, the complainant
argues that more than nine years have passed since they referred the matter
to the President of the Republic, following the privatisation decree of 1994
affecting the Bakweri lands. The President was also sent another memorandum
from Bakweri landowners in 1999. The complainant argues that these were done
in light of the primacy of the Presidency under the Repubilc�s Constitution
and the existent presidential pre-emption of decision-making at all levels.
The government of Cameroon has been duly notified of this problem as the
Bakweri lands problem has been around for several decades, nine years have
passed since the government was seized of it, that in January 2003, a
special envoy of the President met and assured the Bakweri chiefs that the
government intended to �provide a sustainable and durable solution� to the
Bakweri lands problem, and that the government�s own representatives before
the UN Sub-Commission in February 2002 had expressed the government�s
readiness to resolve the problem amicably. The complainant argues that where
the republic has been aware of the problem for at least nine years and that
where the opportunity to redress the problem has been squandered due to
unwarranted delay and slow state response, it should not be compelled to
exhaust local remedies.
36. The complainant further avers that the remedies in Cameroon are
inadequate and unduly prolonged and hence need not be exhausted. It,
however, admits that although the matter never went to court but was
referred to the President of the Republic for a political/administrative
solution, the government�s own conduct in the matter implicitly admitted the
impracticality or undesirability for complainant to seize the courts of
Cameroon as demonstrated by the declaration made by the representatives of
the government to the UN Sub-Commission to resolve the matter
satisfactorily. Still, the complainant maintains that it tried to engage
pressure authorities through various means but to no avail. The lack of
progress, it holds, meant to suggest that remedies either do not exist or
cannot be effective in the complainant�s situation and in any event, their
application is being increasingly prolonged.
37. The complainant also argues that remedies in Cameroon are unavailable
and to the extent they exist ineffective. The continued classification of
the Bakweri lands as state property afforded complainant no basis for
legally challenging the government�s acts or omissions that violate its
ownership rights. Besides, the rule of exhaustion of remedies should not be
invoked where it offers no possibility of success, which the government will
not be able to prove. An insistence on the pursuit and exhaustion of
domestic remedies will only prolong the application of the Bakweri people.
38. In its submission on admissibility, dated 31 January 2003, the
respondent state requested the Commission to declare it inadmissible. It
raised the following preliminary objections, that:
� The author of the communication does not show any proof that it is the
victim of a violation of the Charter;
� The object of the communication is unclear as it interchangeably speaks
about the violation of the �right to own land in Cameroon�, �the
dispossession of indigenous peoples of lands that they have historically
owned and occupied�, and �the violation of the right of an indigenous ethnic
minority in Cameroon to own land�;
� The communication is improper as the author deliberately remains imprecise
about the actual illicit act for which the State of Cameroon is blamed:
privatisation or sale;
� The author did not exhaust local remedies as all the actions the BLCC took
certainly do not correspond to remedies mentioned by the African Charter;
� The communication casts such suspicions and aspersions on the Ca-meroonian
judicial system and hence could be considered insulting per article 56 of
the Charter; and
� The UN Sub-Commission has already settled the case brought before the
African Commission, Mpaka-Nsusu v Zaire [(2000) AHRLR 71 (ACHPR 1994)].
39. In its further submission of 5 May 2003, the respondent state avers that
there is no provision under Cameroonian law that excludes any form of appeal
against acts of the executive. It argues that �it must not hastily be
concluded that a state party to the convention has neglected to act in
compliance with its obligation to provide effective local remedies�.[FN4]
The BLCC should not be allowed to transform the African Commission into a
court of first instance. The rule of exhaustion of local remedies implies
legal action brought before the courts and not just political actions. Since
1994, the BLCC has never taken any action against the State of Cameroon
before the courts. Seizure of judicial bodies cannot be avoided on the basis
of subjective suspicions or because of allegations that it is a politically
charged case or a politically sensitive case.
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[FN4] Velasquez Rodriguez case, Inter-American Court of Human Rights
judgment of 29 July 1988, Inter-Am Ct HR (Ser C) 4 (1988).
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40. In its 4 March and 22 August 2003 memorials, the complainant rebutted
the preliminary objections raised by the respondent state.
41. At its 34th ordinary session held in Banjul, The Gambia from 6 to 20
November 2003, the African Commission granted audience to the parties to
complement their respective written submissions orally.
42. In its oral submission, the complainant stated that since it has come
forward with a prima facie case, the burden should shift to the respondent
state to prove that domestic remedies are available, effective and adequate.
There are no such remedies, including the Constitutional Council before
which BLCC has no standing. BLCC has attempted to settle the matter
amicably; yet, the respondent state was not willing and has resorted to
harassment, and intimidation. BLCC has been sued and an injunction been
issued against it declaring it an illegal body, to curtail it from
representing the victims and to generally frustrate the efforts of the
victims to exercise their rights under the African Charter. Should the
matter be deferred to local procedures, the complainant requested an
indication from the respondent state to where it may be directed.
43. The respondent state, in its turn, stated that BLCC has the right to
bring its case before the competent bodies in Cameroon. The government
respected its own institutions and that it would not accept arguments that
its legal system is incompetent to receive or deal with any case from
anyone, while it is evident that there are thousands of cases being
entertained by its courts. The government respects the African Commission
and hopes that it won�t admit the present matter when no attempt has been
made to seize its courts. The UN Sub-Commission has ruled that the
petitioners need to seek local remedies. The Commission could open a
floodgate by admitting the present communication despite the fact that no
attempt was made to exhaust local remedies. The Commission should thus
declare it inadmissible. BLCC should be directed to vindicate itself before
local courts. Indeed BLCC is sued in the local courts, but it is not by the
government but a private entity. But as an advice, all the BLCC had to do
was to seek a declaratory judgment from the High Court to the effect that
�XYZ are the beneficiaries or residual title holders of the disputed land�.
44. The Commission has examined the respective written and oral submissions
on admissibility of the parties and rules as follows.
45. To the respondent state�s objection that the complainant does not have
standing (locus standi), the complainant avers that the complainants
(including the counsel representing them) are all Bakweri and hence victims
of the violation. BLCC represents the Bakweri and has authority to speak for
them as backed by a resolution adopted by the custodians of the Bakweri
lands (resolution attached in the file).
46. The African Commission notes that the locus standi requirement is not
restrictive so as to imply that only victims may seize the African
Commission. In fact, all that article 56(1) demands is a disclosure of the
identity of the author of the communication, irrespective of him/her being
the actual victim of the alleged violation. This requirement is conveniently
broad to allow submissions not only from aggrieved individuals but also from
other individuals or organisations (like NGOs) that can author such
complaints and seize the Commission of a human rights violation. The
existence of direct interest (like being a victim) to bring the matter
before the Commission is not a requirement under the African Charter. The
clear rationale here for allowing a broad gateway for complaints under the
Charter is the practical understanding, in Africa, that victims may face
various difficulties impairing them from approaching the African Commission.
That notwithstanding, in the present communication, the present complainants
are themselves Bakweri, who allege violation of their ownership of
historical lands, and that the counsel himself and the BLCC has been duly
authorised, by a resolution of chiefs, to further the interests of the
Bakweri, which fact has not been denied by the respondent state. The
Commission adds that one may be represented, through express consent or by
the self-initiative of the author who speaks for him/her, irrespective of
the fact that it is known to the Commission that one is soundly capable of
representing oneself. The Commission holds, thus, that the present
complainant has locus standi and is entitled to bring this communication
before the African Commission.
47. To the objection that the complainant failed to show a prima facie case
(the respondent state alleging that the communication is unclear,
interchangeably spoke of various matters, and is improper as it remained
deliberately imprecise about the illicit acts), the complainant avers that
it has provided precise allegations of facts supported by relevant
documents. The Commission examined the original complaint and its supporting
documents. Contrary to the respondent state�s objections, it is evident in
the file that the complainant is indeed clearly alleging the alienation of
the Bakweri lands, which was triggered by the Presidential Decree 94/ 125 of
14 July 1994 where the government of Cameroon listed the Cameroon
Development Corporation (CDC) which is situated on Bakweri lands. It has
alleged that this development will in effect result in the alienation, to
private purchasers, of approximately 400 square miles (104 000 hectares) of
lands in the Fako division traditionally owned, occupied or used by the
Bakweri. The complainant alleges that the transfer would extinguish the
Bakweri (who are a particular ethnic group whose status is never any where
disputed by the respondent state) title rights and interests in two-thirds
of the minority group�s total land area in violation of articles 7(1)(a),
14, 21, 22 of the African Charter. In deciding to be seized of this matter
at its 32nd ordinary session held from 17 to 23 October 2002 in Banjul, The
Gambia the African Commission had found this presentation/narration of
violation of rights protected under the Charter to be sufficiently clear to
be taken up by the Commission, and hence, finds the present objection of the
respondent state untenable.
48. To the objection that the communication casts such suspicions and
aspersions on the Cameroonian judicial system and hence could be considered
insulting per article 56(3) of the African Charter, the African Commission
finds that there is nothing in the various submissions of the complainant to
warrant the invocation of article 56(3) of the African Charter so as to
declare the complaint inadmissible on the grounds of its being written in
disparaging or insulting language. The complainant can allege, among others,
and as it did with a view to be exempted from exhausting local remedies,
that the President of the Republic wielded extraordinary powers so as to
influence the judiciary and that the judiciary is impartial and lacked
independence. This would be nothing but a mere allegation depicting, as it
perceives it, the complainants comprehension of the offices that it thought
would not provide it with any remedies as the African Commission would
demand. Whether the allegations are true is another matter. At best, the
respondent state may, if it so wishes, employ other means to acquaint the
African Commission that the situation is indeed otherwise. The African
Commission notes, however, that such a rebuttal is not necessary for
purposes of examination under article 56(3). Accordingly, thus, the African
Commission finds the respondent state�s objection per article 56(3) of the
African Charter unsustainable.
49. To the objection that the UN Sub-Commission has settled the matter and
hence the African Commission should not entertain the matter per article
56(7) of the African Charter, the complainant responded saying that the
respondent state failed to distinguish complaints before the African
Commission that are pending before another international tribunal from those
where the tribunal was seized of the matter but declined to take action. It
alleges that the African Commission has indeed addressed this distinction in
Njoku v Egypt [(2000) AHRLR 83 (ACHPR 1997)] which the UN Sub-Commission had
decided not to entertain. The African Commission had held that the rejection
by the UN Sub-Commission �does not boil down to a decision on the merits of
the case and does not in any way indicate that the matter has been settled
as envisaged under article 56(7)�.
50. Desirous of getting to the bottom of this issue in the present
communication, the African Commission requested for the copy of the decision
by the UN Sub-Commission as relates to the Bakweri lands dispute from both
parties. None of them, however, was able to furnish the Commission with a
copy of the same. The complainant, however, had availed the African
Commission a copy of a letter, dated 18 July 2002, from the Governor of the
South West Province of Cameroon, on behalf of the Minister of External
Relations, to the President of the BLCC on the �Decision of the UN High
Commission on Human Rights on Bakweri Claim�, the relevant contents of which
are summarized as follows (during its oral submissions at the 34th ordinary
session, the respondent state has claimed that, not denying the fact, the
Governor had no right to write such a letter):
On matters of procedure, the Commission felt that the petitioners did not
fully exploit local avenues available to solve the problem and the Cameroon
judicial system was deemed competent to handle the petition. Concerning the
content of the petition, the Commission commended the government�s position
on the issue and encouraged government�s efforts in her continuous
willingness to resolve once and for all, this matter of Bakweri Lands.
Considering the above, the Commission considered itself incompetent to
handle the matter, and therefore asked the matter to be closed.
51. The African Commission also heard the parties at its 34th ordinary
session on this and other issues. Regarding the veracity of this particular
claim on the decision of the UN Sub-Commission, both parties seemed to be on
all fours that it was in fact so decided. Given that, thus, and although a
copy of the said decision was not made available to the African Commission
to examine, the Commission notes that the content of that letter adequately
reflected the outcome of the complainant�s petition to the UN
Sub-Commission.
52. As alleged by the complainant, thus, the African Commission notes that
the UN Sub-Commission did not decide on the merits of the case so as to
warrant the discontinuance of the consideration of this matter by the
African Commission as per article 56(7) of the African Charter. The
principle behind the requirement under this provision of the African Charter
is to desist from faulting member states twice for the same alleged
violations of human rights. This is called the ne bis in idem rule (also
known as the principle or prohibition of double jeopardy, deriving from
criminal law) and ensures that, in this context, no state may be sued or
condemned for the same alleged violation of human rights. In effect, this
principle is tied up with the recognition of the fundamental res judicata
status of judgments issued by international and regional tribunals and/or
institutions such as the African Commission. (Res judicata is the principle
that a final judgment of a competent court/tribunal is conclusive upon the
parties in any subsequent litigation involving the same cause of action.)
53. The parties before the African Commission have not disputed the fact
that they were the very same parties at loggerheads before the UN
Sub-Commission disputing the same issues as before the African Commission.
They both, however, admit that there has been no final judgment on the
merits of their dispute by the UN Sub-Commission. The contents of the
excerpts of the letter reproduced above have not been contested either,
thereby buttressing the fact that the matter was not conclusively dealt with
by the UN Sub-Commission. This means that the provision of article 56(7)
incorporating the principle of ne bis in idem does not apply in the present
case as there has been no final settlement of the matter by the UN
Sub-Commission. Therefore, the African Commission holds that the respondent
state�s allegation that the communication be declared inadmissible per the
provision of article 56(7) is unmaintainable.
54. Finally, to the objection that the complainant did not exhaust local
remedies as all the actions the BLCC took certainly do not correspond to
remedies mentioned by the African Charter, the complainant claimed that
local remedies in Cameroon were unavailable, ineffective and inadequate.
Both in writing and orally before the African Commission, the complainant
admitted that it has not exhausted local remedies. Besides, it claimed that
the circumstances in Cameroon warrant that it be granted waiver of this
requirement. It argued, among others, that:
� It has been trying to seek relief for the matter from the Cameroonian
authorities, including from the President of the Republic, for over nine
years, but to no avail;
� The judiciary is not independent;
� The government has had ample time and opportunity to resolve the matter
but failed to do so;
� The executive and other organs can pre-empt the decisions of courts
thereby rendering approach to the courts futile;
� To approach the courts under the present circumstances means merely
prolong the agony of the Bakweri; etc.
55. The African Commission notes that the exhaustion of local remedies
requirement under article 56(5) of the African Charter should be interpreted
liberally so as not to close the door on those who have made at least a
modest attempt to exhaust local remedies. Under this article, all the
African Commission wishes to hear from the complainant is that it has
approached either local or national judicial bodies.[FN5] As can be seen
from the set of facts adduced before the African Commission by both parties
in writing and orally, the complainant, not even once, has seized any local
or national court. For this, it explained that the courts are not
independent and are likely to decide in favour of the respondent state whose
President has a say on their appointment. The African Commission, however,
holds that the fact that the complainant strongly feels that it could not
obtain justice from the local courts does not amount to saying that the case
has been tried in Cameroonian courts. Besides, the complainants assertions
are merely subjective assessments on which the African Commission cannot
base itself in holding that there indeed lacks an effective remedy in
Cameroon to resolve the matter.6 The African Commission is of the view that
it is the duty of the complainant to take all necessary steps to exhaust, or
at least attempt the exhaustion of local remedies. It is not enough for the
complainant to merely doubt the ability of the domestic remedies of the
state to absolve it from pursuing the same.
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[FN5] Cudjoe v Ghana [(2000) AHRLR 127 (ACHPR 1999)].
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56. The African Commission would be setting a dangerous precedent if it were
to admit a case based on a complainant�s apprehension about the perceived
lack of independence of a country�s domestic institutions, in this case the
judiciary. The African Commission does not wish to take over the role of the
domestic courts by being a first instance court of convenience when in fact
local remedies remain to be approached.
FOR THESE REASONS, THE AFRICAN COMMISSION declares the communication
inadmissible. |
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