The Prohibition of Torture and Ill-treatment in the African Human Rights System: A HANDBOOK FOR VICTIMS AND THEIR ADVOCATES The absence of effective remedies against torture also constitutes an exception to the rule requiring exhaustion of domestic remedies. In Zimbabwe Human Rights NGO Forum v. Zimbabwe, the Commission cited the Clemency Order, which pardoned every person liable for any politically motivated crime, and thereby effectively foreclosed the possibility of bringing criminal action, as a reason for declaring the complaint admissible, despite the failure to exhaust domestic remedies.403 Burden of Proof An important element of the exhaustion of local remedies admissibility requirement is the onus of proof. In Ilesanmi v. Nigeria,404 the Commission indicated that the following procedure applies to prove that a specific remedy is unavailable, ineffective or insufficient: (a) the complainant begins the process by making the relevant allegations; (b) the Respondent State must then show that the remedy is generally available, effective and sufficient; (3) the onus then shifts to the complainant, who must prove that even if the remedy is generally available, effective and sufficient, it is not so in the specific case.405 The importance of the burden of proof is illustrated in Anuak Justice Council v. Ethiopia.406 Merely alleging that domestic remedies are not effective does not suffice to convince the Commission that local remedies need not be exhausted. This has been reiterated in a number of subsequent cases,407 including Article 19 v. Eritrea, in which the African Commission made it clear that ‘it is incumbent on the [c]omplainant to take all necessary steps to exhaust, or at least attempt the exhaustion of local remedies. It is not enough for the [c]omplainant to cast aspersion on the ability of the domestic remedies of the State due to isolated incidences’.408 However, as set out above, there are some specific circumstances in which the complainant may be able to concretely demonstrate the inadequacy or ineffectiveness of domestic remedies without attempting to exhaust them. Three cases, however, demonstrate the challenges associated with satisfying the burden of proof and the exception to the requirement to exhaust domestic remedies on grounds of ineffectiveness or inadequacy. As noted above, in the case of Gabriela Shumba v. Zimbabwe, the Commission found the case admissible even though the complainant had not exhausted domestic remedies on the combined grounds that local remedies were ineffective and the complainant’s fear for his life should he be required to return to Zimbabwe to exhaust domestic remedies. 403 404 405 406 407 408 96 ACHPR, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Comm. No. 245/02, para. 72. ACHPR, Ilesanmi v. Nigeria, Comm. No. 268/2003, 37th Ordinary Session (11 May 2005). Ibid., para. 45. ACHPR, Anuak Justice Council v. Ethiopia, Comm. No. 299/05, 39th Ordinary Session (25 May 2006). ACHPR, Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, Comm. No. 338/07. ACHPR, Article 19 v. Eritrea, Comm. No. 275/03, para. 67.