PART C: Protection against Torture: Procedures before the African Commission
and African Human Rights Court
bodies such as national human rights commissions, and discretionary executive
relief such as a ‘pardon’, are not considered ‘domestic remedies’.367 According to
the Commission, ‘a remedy is available if the petitioner can pursue it without impediment; it is deemed effective if it offers a prospect of success; and it is found
sufficient if it is capable of redressing the complaint’.368 There are therefore four
exceptions to the general requirement to exhaust domestic remedies:
(1)
As set out in Article 56(5) of the African Charter, domestic remedies do
not need to be exhausted if ‘it is obvious that this procedure is unduly
prolonged’;
(2) Unavailable remedies;
(3) Inadequate or insufficient remedies;
(4) Ineffective remedies.369
Availability of Remedies when the Complainant has been
Deported or Fled the State in which the Torture Allegedly
Took Place
A key issue that arises in torture cases is whether domestic remedies can be said
to be available to a person who has been deported or who has fled a country. In
answering this question, the Commission has not been consistent.
In RADDHO v. Zambia,370 the Government of Zambia objected on grounds of non-exhaustion of domestic remedies to a case filed on behalf of several hundred West
African nationals expelled en masse by Zambia. In dismissing Zambia’s objection
and upholding the admissibility of the communication, the Commission reasoned
that Article 56(5) of the Charter ‘does not mean… that complainants are required to
exhaust any local remedy which is found to be, as a practical matter, unavailable or
ineffective’.371 The Commission pointed out that the victims and their families were
collectively deported without the possibility of a judicial challenge and concluded
that the remedies referred to by the Respondent State were as a practical matter
unavailable.372 The Commission has upheld this position in subsequent decisions.373
367 ACHPR, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, Comm. No. 334/06.
368 ACHPR, Sir Dawda K. Jawara v. The Gambia, Comm. Nos. 147/95 & 149/96, paras. 31-32.
369 Ibid.; ACHPR, Article 19 v. Eritrea, Comm. No. 275/03, para. 46; ACHPR, Gabriel Shumba v. Zimbabwe,
Comm. No. 288/2004, paras. 56-59.
370 ACHPR, Rencontre Africaine pour la Defense des Droits de l’Homme (RADDHO) v. Zambia, Comm. No. 71/92.
371 Ibid., para. 12.
372 Ibid., para. 15.
373 ACHPR, IHRDA (on behalf of Sierra Leonean refugees in Guinea) v. Guinea, Comm. No. 249/02, 26th
Ordinary Session (7 December 2004).
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