PART C: Protection against Torture: Procedures before the African Commission
and African Human Rights Court
Denial of Access to an Effective Appeal
There are no effective remedies when a victim is denied access to an effective
appeal. In the Sudan cases, the Commission described the right to an appeal as
‘a general and non-derogable principle of international law’.387 The Commission
defined an ‘effective appeal’ in the Sudan cases as one that ‘subsequent to the
hearing by the competent tribunal of first instance, may reasonably lead to a reconsideration of the case by a superior jurisdiction, which requires that the latter
should, in this regard, provide all necessary guarantees of good administration of
justice’.388 It held that domestic legislation in both Mauritania and Nigeria that
permitted the executive the prerogative to confirm decisions of first instance tribunals, in lieu of a right of appeal, violated Article 7(1)(a). In Egyptian Initiative for
Personal Rights and Interights v. Egypt, the complainants were not required to exhaust
domestic remedies. The Commission found that no local remedies were available
as the victims in this case had been sentenced to death by Egypt’s State Security
Emergency Court and had no right of appeal against the decision.389 They could
only rely on the President to revoke the sentence, which the Commission stated is
a non-judicial measure of discretionary nature.
Ouster of the Jurisdiction of the ‘Ordinary’ Courts
The Commission considered the impact of ‘ouster’ clauses on the question of
the unavailability of domestic remedies in three cases, against The Gambia,390
Nigeria391 and Sudan.392 In these cases, the Commission defined ouster clauses as
legislative provisions that ‘prevent the ordinary courts from taking up cases … or
from entertaining any appeals from the decisions of … special tribunals’.393 In all
of these cases, the Commission held that the existence of such clauses precluded
any need to exhaust domestic remedies. The Commission recognised that the rule
requiring exhaustion of domestic remedies prevents it from acting as a court of
first instance but reiterated that domestic remedies must be available, effective and
sufficient. In each case, the Commission took the view that ouster clauses rendered
domestic remedies both unavailable and non-existent.
ACHPR, Amnesty International and Others v. Sudan, Comm. Nos. 48/90, 50/91, 52/91 & 89/93, para. 37.
Ibid.
ACHPR, Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt, Comm. No. 334/06, para. 96.
Ibid.
See ACHPR, Purohit and Moore v. The Gambia, Comm. No. 241/2001, 33rd Ordinary Session (May 2003);
Zegveld and Ephrem v. Eritrea, Comm. No. 250/2002.
392 See the cases cited in note 28, supra.
393 ACHPR, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria,
Comm. No. 140/94, 141/94,145/95, 26th Ordinary Session (5 November 1999), para. 28.
387
388
389
390
391
93
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