Failure to exhaust local remedies by parties amounts to inadmissibility of applications before the African Court on Human and Peoples’ Rights

Collectif Des Anciens Travailleurs Du Laboratoire Als v Republic of Mali

Application No. 042/2016

African Court on Human and Peoples’ Rights

S Ore, P; B Kioko, VP; R B Achour, A V Matusse, S Mengue, T R Chizumila, C Bensaoula, B Tchikaya, S L Anukam, l D Aboud, JJ

March 28, 2019

Reported by Faith Wanjiku

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International Law- law of treaty-African Charter on Human and Peoples’ Rights -admissibility of applications-conditions for-exhaustion of local remedies-whether the application should be declared inadmissible on the ground that the local remedy of going on appeal before the investigating judge and file a civil suitwas not exhausted-African Charter on Human and Peoples’ Rights, 1981, article 56(5); Rules of Court, rule 40(5); Mali Code of Criminal Procedure,articles 62, 90, 112

International Law- law of treaty-African Charter on Human and Peoples’ Rights- access to the court-conditions for-where a state party had ratified the Protocol to the Charter and deposited the Declaration-whether the instant court had personal jurisdiction to hear the applicants who had filed the application as a group of individuals rather than individuals-Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998, articles 5 (3), 34 (6)

International Law- law of treaty-African Charter on Human and Peoples’ Rights- admissibility of applications-conditions for-identity of applicants-whether the application was inadmissible based on the lack of proper identification of the members of the group who had filed the application-Rules of Court, rule 40 (1)

Brief Facts

The applicants, who claim to have been victims of lead poisoning during their service, seized the Prosecutor at the Commune lll Court of First lnstance of the District of Bamako of a criminal complaint, followed by a letter addressed to the Attorney General at the Court of Appeal of Bamako on the same subject. The applicants alleged that the Australian Laboratory, which specialized in the chemical analysis of samples to determine the content of gold and other metals, used in that respect, toxic products such as acid, butyl diisobutyl (DIBK), and solvents such as nitrate, sodium, lithium, borax, sodium carbonate, sodium oxide and lead.

Having received no information from the Prosecutor General on the progress of the case one year after the referral, they concluded that the proceedings had been unduly prolonged by the judicial authorities of the respondent State. They therefore decided to file the case before the instant Court. The applicants asserted that their rights to the enjoyment of the highest attainable standards of health set out in articles 16 and 24 of the Charter and 12 of the lnternational Covenant on Economic, Social and Cultural Rights (the ICESCR), had been violated.

They further submitted that the undue delay in the examination of the case constituted a violation of their rights under articles 7(1) and 26 of the Charter and articles 2(3) and 14 of the lnternational Covenant on Civil and Political Rights (the ICCPR).

Issues:

i. Whether the application should be declared inadmissible on the ground that the local remedy of going on appeal before the investigating judge and file a civil suit was not exhausted.

ii. Whether the instant court had personal jurisdiction to hear the applicants who had filed the application as a group of individuals rather than individuals.

iii . Whether the application was inadmissible based on the lack of proper identification of the members of the group who had filed the application.

Relevant Provisions of the Law

African (Banjul) Charter on Human and Peoples’ Rights, 1981

Article 7

1. Every individual shall have the right to have his cause heard.

This comprises:

(a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

(b) the right to be presumed innocent until proved guilty by a competent court or tribunal;

(c) the right to defense, including the right to be defended by counsel of his choice;

(d) the right to be tried within a reasonable time by an impartial court or tribunal.

Article 16

1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.

2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

Article 24

All peoples shall have the right to a general satisfactory environment favorable to their development.

Article 26

States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

International Covenant on Economic, Social and Cultural Rights, 1966

Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

International Covenant on Civil and Political Rights, 1966

Article 2 (3)

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 14

1. All persons shall be equal before the courts and tribunals…

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Held:

1. The applicants were an informal group of one hundred and thirteen (113) individuals. The Court recalled that the Republic of Mali was party to the Protocol and had deposited the Declaration prescribed under article 34(6), allowing individuals to seize the Court directly, in accordance with article 5(3) of the Protocol. The applicants were entitled to file their application before the Court.
2. The instant court had material jurisdiction, since the applicants alleged the violation of the right to health provided under articles 16 and 24 of the Charter, and 12 of the ICESCR; the right to a fair trial under articles 7(1) and 26 of the Charter, and of the right to be tried without delay as provided under articles 2(3) and14 of the ICCPR; all instruments to which the respondent State was a party, thus giving the Court the power to interpret and apply them in accordance with article 3 of the Protocol.
3. The instant court also had temporal jurisdiction, insofar as the alleged violation in the present case, namely, the fact that the national courts had not adopted measures to remedy the violations committed against the applicants, was continuous; and territorial jurisdiction, insofar as the facts occurred in the territory of the respondent state, a state party to the Protocol.
4. With the submission of the list of the members of the group, the applicants were properly identified in accordance with rule 40(1) of the Rules of Court (the Rules).
5. Referral to the investigating judge was an effective and satisfactory remedy under article 90 of the Mali Code of Criminal Procedure, which provided that the investigating judge would, in accordance with the law, take all such acts of information as it deemed useful for the manifestation of the truth, and article 112 of the same Code which gave the civil parties the right to participate in the procedure, including to appeal against the decisions of the investigating judge.
6. If the applicants were not satisfied with the prolongation of the proceedings in respect of their criminal complaint before the prosecutor general, they had the opportunity to appeal to the investigating judge or to file a civil suit. In the instant case, the applicants filed a criminal complaint with the respondent state’s Office of the Attorney General on February 1, 2012, but until July 1, 2016, the date of the filing of their application to the instant Court, their criminal complaint did not give rise to any decision.
7. The applicants could have seized the investigating judge to avoid the alleged delay in the Attorney General’s handling of the complaint. Having failed to pursue that remedy, the applicants were not justified in submitting that the domestic proceedings were unduly prolonged. The applicants had not exhausted local remedies.
8. Having concluded that the application was inadmissible due to failure to exhaust local remedies, the Court did not have to pronounce itself on whether other conditions of admissibility enumerated in rule 40 of the Rules had been met, in as much as the conditions of admissibility were cumulative.

Application dismissed; each party to bear its own costs.

Relevance to the Kenyan Situation

Article 2 (6) of the Constitution of Kenya, 2010 provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution. In that spirit, Kenya ratified the African (Banjul) Charter on Human and Peoples’ Rights, 1981 on January 23, 1992. She also ratified the Protocol To The African Charter On Human And Peoples’ Rights On The Establishment Of An African Court On Human And Peoples’ Rights on February 4, 2004.

However, she is yet to make a declaration under rules 5 (3) and 34 (6) of the Protocol, to have NGOs with observer status and individuals to institute cases directly before the African Court on Human And Peoples’ Rights. In the meantime only she as a state party can institute cases before the court or the African Commission on Human and Peoples’ Rights on behalf of individuals, groups of individuals or NGOs from Kenya.

This case is important as it emphasizes on rule 40 (5) of the Rules of Court which provides for exhaustion of local remedies before making applications to the African Court unlessthe procedure is unduly prolonged. Under international law, this is important to prevent forum shopping and avoid international courts having a backlog of cases which can be decided domestically. Kenya having ratified the Charter and the Protocol is expected to have this rule in mind for admissibility before making applications before the Court.