4.1 Massive violations
Prior to the period of intervention, the jurisprudence of the Commission included the serious and massive nature of violations as a factor for granting an exemption to exhaust local remedies. This position was established mainly in Malawi African Association and Others v Mauritania Communications 54/91, 61/91, 98/93, 164/97, 210/98 (2000) AHRLR 149 (ACHPR 2000). While the rationale behind the Commission’s position was to overcome the failure of the domestic judicial systems to practically deal with such cases, this position has been misunderstood to mean that the mere seriousness or massive nature of the violations absolved the complainants from meeting the requirement under Article 56(5) of the African Charter to exhaust local remedies.
This misunderstood position has been clarified in two main cases of the Commission decided in 2015. Those are Réseau Ouest Africain des Défenseurs des Droits Humains and Another v Côte d’Ivoire Communication 400/11 (ACHPR 2015) and Open Society Justice Initiative v Côte d’Ivoire Communication 318/06(ACHPR 2015). The first case is concerned with violations of human rights in the wake of the post electoral violence experienced by Côte d’Ivoire in 2010-2011 (decision on admissibility); while the second case involved, mainly, the violation of the right to nationality of the Dioulas (decision on the merits). In both decisions, the Commission held that the seriousness or massive nature of the violations alone may not absolve the complainants from attempting to exhaust remedies where domestic law permits so and courts are functional at the time the Commission is seized.
4.2 Unduly prolonged remedies
As a condition for a case to be admissible before the Commission, the complainant must have exhausted local remedies as provided under Article 56(5) of the African Charter. However, the same provision grants an exception when those remedies have been unduly prolonged. The nifty issue has however been how to assess both the undue and prolonged character of the remedy.
Before 2012, the precedent of the Commission was not principled as the exemption was granted in cases were the remedy was prolonged for ten years as was the case in Modise v Botswana Communication 97/93 (2000) AHRLR 30 (ACHPR 2000), and five years as in Association of Victims of Post Electoral Violence and Interights v Cameroun Communication 272/03 (2009) AHRLR 47 (ACHPR 2009). There was no principled benchmark for determination despite the gap between the time that had elapsed in the various instances.
That gap was filled in José Alidor Kabambi Beya Ushiye and Others v Democratic Republic of Congo Communication 408/11 (ACHPR 2013) where the cases had been pending before domestic courts for one year and eight months. There, the Commission departed from the duration of domestic proceedings to set out the main benchmarks to assess the remedy. Despite the short duration of the domestic proceedings, the Kabambi case was thus declared admissible on the basis of the situation of the complainants, the nature of the violations, the relevant municipal law, and the diligence of the national authorities.
4.3 Nationality in the African Charter
On at least two occasions since it started its operations, the Commission was requested to consider whether there is a right to “nationality” in the African Charter, namely under Article 5, which provides for a ‘right to a legal status’. In two landmark decisions, the Commission espoused caution and avoided reading nationality into the Charter.
For instance, in the case of Amnesty International v Zambia Communication 212/98 (2000) AHRLR 325 (ACHPR 1999) decided in 1999, the Commission found the Respondent State in violation of the right to dignity for deporting the Complainants, who were thus ‘forced to live as stateless persons’. Similarly, in Modise v Botswana Communication 97/93 (2000) AHRLR 30 (ACHPR 2000) decided in 2000, concerning deprivation of nationality through expulsion, the Commission found that the refusal of the Government of Botswana to recognise the Complainant’s nationality violated the right to dignity and legal status. Although the complainant did not expressly claim nationality, the findings were based on a constructive right to nationality, using dignity and the right to a legal status as the main adjudicatory basis in the absence of express binding provisions setting clear legal standards.
However, international legal standards have established nationality as an inherent manifestation of legal status. The Commission itself has adopted Resolution 234/13 recognising the right to nationality under Article 5 of the Charter, and spearheaded efforts towards a continental legislation. The case of Open Society Justice Initiative v Côte d’Ivoire Communication 318/06 (ACHPR 2015) offered an opportunity to crystallize those developments ahead of imminent legislation. In its merits decision adopted in 2015, the Commission held that there is a right to nationality under Article 5 of the African Charter as one of the inherent manifestations of the right to a legal status.Endorsing major United Nations conventions on nationality and statelessness, this finding is of the utmost relevance to several hundreds of thousands of people battling with statelessness across Africa, about 800 000 according to the UNHCR.
4.4 Right to reparation – factors and principles for assessment of damages
In its earliest decisions, the Commission was reluctant to assert the right to reparation under the African Charter by awarding damages. It limited itself to granting declaratory relief as exemplified in the cases of Free Legal Assistance Group and Others v Zaire (2000) AHRLR 74 (ACHPR 1995), Alhassan Abubakar v GhanaAHRLR 2000 116 (ACHPR 1996), and Pagnoulle (on behalf of Mazou) v Cameroon AHRLR 2000 61 (ACHPR 1997). In the 2000s, the Commission adopted a more progressive approach to reparation by framing more specific relief. It severally adopted the orders of domestic courts, which the state had failed to comply with. Such instances include the cases of Social and Economic Rights Action Centre (SERAC) and Another v Nigeria AHRLR 2001 63 (ACHPR 2001) and Antoine Bissangou v Republic of Congo Communication 253/2002 (ACHPR 2006). Thus, it still did not develop the principles for assessing damages. The jurisprudential trend to declaratory relief and lack of specific quantum has persisted throughout the 2000s, even in the most progressive instances such as Good v Botswana(2010) AHRLR 43 (ACHPR 2010) where the Commission referred the evaluation of quantum to domestic courts.
The need to set or develop specific principles for assessing damages was met in cases decided in 2015. In Mbiankeu v Cameroon Communication 389/10 (ACHPR 2015), the Commission found that the failure of the Respondent State to protect the complainant’s right to property from de facto expropriation warranted restitutio in integrum. As an alternative to the restitution of the concerned land, the Commission requested the State to give land of the same value, or payment equivalent to the market value of the land plus damages for the uncertainty suffered as well as development costs. In the Mbiankeu case, the Commission mainly took into account factors such as the specific loss incurred and the situation of the complainant.
More specifically relating to non material damage, the Commission stated in the case of Equality Now (Woineshet Zebene Negash) v Ethiopia Communication 341/07 (ACHPR 2015), that monetary compensation for such damage is at large and is determined as a matter of impression, taking into account all the relevant circumstances of the case as opposed to a mathematical valuation. The relevant circumstances may include the physical, psychological, and emotional trauma suffered by the victim.
In those cases, the Commission simultaneously granted declaratory, administrative and monetary relief. Such developments constitute a landmark step in affirming the right to effective remedy for violations.