Admissibility

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Communication 4 of 2020
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African Committee of Experts on the Rights and Welfare of the Child
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Sexual violence and exploitation
Admissibility

The African Committee of Experts on the Rights and Welfare of the Child
(ACERWC)

Ruling on Admissibility

Communication No: 0016/Com/004/2020

Decision on Admissibility No: 002/2021

Author: African Centre for Justice and Peace Studies (ACJPS)

(on behalf of Ms Umjumah Osman Mohamed)

Against: The Republic of Sudan

 

i.    Submission of Communication

1.   The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 24 June 2020 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by the African Centre for Justice and Peace Studies (ACJPS) on behalf of Umjumah Osman Mohamed (the Complainant). According to Section IX (2) (i) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communication Guidelines), the Committee transmitted a copy of the Communication to the Respondent State party on 16 July 2020. The State Party submitted its response in December 2020.

ii.   Summary of alleged facts

2.   The Complainant is a Sudanese national born on 6 June 2000 in Khashm el Girba town in Kassala State, Eastern Sudan. It is alleged that in 2016, the Complainant was raped by Mr Tarig Idriss Daoud, an adult who also resides in Khashm el Girba town in Kassala state, Eastern Sudan. As a result of the rape, the Complainant got pregnant. It is further submitted that the matter was reported by the Complainant’s father, Mr Osman Mohamed on 31 August 2016 at Khashm el Girba police station.

3.   The Complainant alleges that investigations were carried out by the Prosecution Attorneys Bureau and the case was referred to the Child Court since the Complaint was 16 years at the time of the alleged offence.

4.   The Communication alleges that on 20 September 2017, the case was heard before the Child Court and Mr Tarig Idriss Daoud was convicted for rape and sexual abuse of a child under Article 45(b) and (c) of the Child Act 2010 respectively. It is alleged that he was sentenced to 20 years imprisonment and a fine of 20 thousand Sudanese pounds.

5.   It is submitted that in 2017 Mr Tarig Idriss Daoud appealed against his conviction to the Appeal Court under Appeal Case Number 9 of 2017 and on 29 October 2017, the Appeal Court passed a ruling where it upheld the decision of the Child Court.

6.   The Complainant indicates that Mr Tarig Idriss Daoud appealed against the decision of the Appeal Court to the High Court in 2018 under case number 12 of 2018. It is alleged that the High Court overturned the decision of the previous courts and acquitted Mr Tarig Idriss Daoud of rape on grounds that the complainant is not a child in accordance with the definition in Article 3 of the Criminal Act 1991 which states that an adult is a person whose puberty has been established by definite natural features and has completed fifteen years of age and whoever attains eighteen years of age is an adult even if the features of puberty do not appear. The Complainant alleges that the court used an ambiguous determination of childhood as ‘attainment of puberty’ in accordance with Article 3 of Sudan’s Criminal Act 1991 to rule that the complaint is not a child thus her case should not have been heard by the Child Court.

7.   It is alleged that the High Court further held that being an adult who understood the sexual act, both the complainant and Mr Tarig Idriss Daoud should instead be tried for the offence of adultery (zina) under Section 145(1) (a) of the Criminal Act 1991 by the Criminal Court.[1] It is further alleged that the High Court also directed the Criminal Court to grant bail to Mr Tarig Idriss Daoud pending his trial for adultery.

8.   The Communication alleges that the Complainant filed for a review of the decision of the High Court by the High Court Review Chamber and in 2019 the High Court Review Chamber approved the ruling of the High Court stating that it is in line with Sudanese and Sharia law.

9.   It is alleged that thereafter, the Complainant petitioned before the Constitutional Court to annul the decision of the High Court on grounds that it was unconstitutional because it violates Article 27(1) and 31 of the 2005 National Interim Constitution,[2] and it was contrary to Article 4 of the Child Act 2010 which defines a child as a person below the age of 18. The Complainant alleges that on 11 December 2019, the Constitutional Court in its ruling agreed with the decision of the High Court and dismissed the petition. It is further alleged that the Constitutional Court held that the decision of the High Court was in line with the Sudanese legislation and the 2005 Interim National Constitution.[3]

1.   .lt is alleged that Umjumah Osman Mohamed is thus currently awaiting trial for the crime of adultery before the Criminal court. The Complainant alleges that since pregnancy is conclusive proof of adultery under Article 62 of the Evidence Act 1994, the Complainant will be convicted and eventually subjected to 100 lashes pursuant to Article 145 of the Criminal Act 1991. The Complainant alleges that pregnancy rebuts the legal and constitutional presumption of innocence and immediately shifts the burden of proof to her to prove her innocence.

11. Based on these facts, the Complainant alleges that the Republic of Sudan has violated the rights guaranteed under the Charter, particularly article 1,2, 3, and 16 as well as rights guaranteed under the African Charter on Human and Peoples’ Rights, particularly article 3,5, and 7.

111.           Applicant’s submission on admissibility

12. The Complainant submits that the Communication fulfils the requirement of admissibility under Section IX (1) of the Revised Communications Guidelines. The complainant focuses on all the requirements provided for in section IX (1) of the Revised Communication Guidelines.

13. The Complainant submits that the Communication is brought in conformity with the provisions of the Charter and the Constitutive Act of the African Union. The Complainant submits that the Communication alleges specific provisions of the Charter that have been violated by the Republic of Sudan and which Sudan has undertaken to respect by virtue of articles 3 (h) and 4 (m) of the Constitutive Act.

14. The Complainant further submits that the Communication is not exclusively based on information obtained from the media. The Complainant submits that the information contained in the Communication is supported by unofficial translations of the laws of Sudan, the 2019 Constitutional Charter for the Transitionary period, the decision of the High Court and the petition submitted to the Sudanese Constitutional Court.

15. The Complainant further submits that the Communication is not before any other investigation, procedure or international human rights mechanism. Further, the question of violation of Umjumah -Osman Mohamed’s rights has not been submitted to any other international tribunal or adjudicating body for determination.

16. The Complainant submits that all the local remedies available have been exhausted. The Complainant submits that after the High Court over turned the decision of the Child Court and the Appeal Court, the Complainant applied for a review of the decision of the High Court by the High Court Review Chamber. In 2019, the High Court Review Chamber passed a ruling that agreed with the High Court. Thereafter, the complainant petitioned the Constitutional Court to hold the decision of the High Court unconstitutional. Unfortunately, on 11 December 2019, the Constitutional Court passed a judgment that the decision of the High Court is constitutional.

17. Furthermore, the Complainant submits that the Communication is presented within a reasonable period after the exhaustion of local remedies. The Complainant submits that after the High Court (Kassala and Red Sea Chamber) overturned the decision of the Appeal Court, the Complainant filed for a review of the decision of the High court by the High Court Review Chamber in 2017. The High Court Review Chamber upheld the decision of the High Court and thereafter, the complainant lodged a Constitutional petition to have the decision of the High Court pronounced unconstitutional on grounds that it deprived the complainant of protections granted to a child under Article 4 of the Child Act 2010. On 11 December 2019, the Constitutional Court dismissed the petition on the grounds that the ruling of the High Court was in line with the Constitution and Sudanese law.

18. Lastly, the Complainant submits that the wording used in the Communication is not offensive. The Complainant submits that the Communication has not been cast in any offensive language or suggests any offensive language and the language used was carefully chosen and the document deals with legal arguments rather than political motives.

19. Based on these submissions, the Complainant seeks that the Communication be declared admissible.

iv. Respondent’s submission on admissibility

20. In its response to the arguments of the Complainant on the admissibility of the Communication, the Respondent State submits that the Communication is not admissible as it does not fulfil the conditions listed below under the Revised Communication Guidelines. The Respondent State’s arguments are based on three issues.

21. Firstly, the Respondent State submits that the Communication is not compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter. The Respondent State argues that there is an emphasis on the support of all African Union Institutions to the Member States without intervention into the internal affairs of such States and without interfering with the administration of justice. In that regard, the Respondent State argues that the Complainant’s incident is an isolated individual incident that has not been repeated in such a large and systematic manner to render a violation that obligates the State to assume the stance of the defender of committing or the recurrence of such violations. The Respondent State further argues that the case is still pending before the national courts and has not been finalised and therefore the submission of the Communication should be deemed as a blatant interference in the provisions, measures and procedures of the domestic judiciary and is contrary to the Constitutive Act of the African Union.

22. Secondly, the Respondent State submits that the Communication does not satisfy the requirement that a Communication should not raise cases pending before another international body. The Respondent State argues that the case is pending before the Criminal Court in the city of Khashm el Girba hence the Complainant’s actions in taking fear as a reason to resort to international institutions is unwarranted. The Respondent State further submits that no final decision was issued on the case, no appeal of the final decision was filed, and the decision has not become res judicata yet. The Respondent State emphasizes that the decision of the Criminal Court has not been passed and in any event, it may exonerate the Complainant or apply the provisions of the Child Act of 2010. The Respondent State therefore submits that the fear of the likelihood of the sentence of flogging being passed on the Complainant notwithstanding the form of the decision of Court that might exonerate her, according to the recently introduced Amendments to the Criminal Code abolishing the flogging penalty, renders such fears groundless.

23. Thirdly, the Respondent State submits that the Complainant has not exhausted all the local remedies. The Respondent State argues that the Communication does not indicate that the Complainant filed a complaint to the National Commission of Human Rights and no advisory decision was issued prior to its dissolution in September 2020, knowing that the Commission is an independent human rights entity that was established in accordance with the 2007 Paris Principles on establishing independent national human rights mechanism. The Respondent State submits that such a Commission is recognised by the African Union and United Nations and enjoys the status of an advisory mechanism by several similar mechanisms. The Respondent State further argues that the Complainant did not lodge a complaint to the General Grievances and Corrections Corporation established in Sudan as an internal remedy path to be resorted to after the exhaustion of other justice and judiciary mechanisms. The Respondent State submits that the General Grievances and Corrections Corporation is deemed a supervisory body monitoring the judiciary and justice institutions performance and their enforcement of the National Sudanese law and international and regional obligations of Sudan, in particular in the domain of human rights.

24. Based on these submissions, the Respondent State seeks that the Communication be dismissed for lack of fulfilling admissibility requirements.

v. The Committee’s analysis on admissibility

25. In analysing the admissibility of the Communication, the Committee relies on article 44 of the Charter and the Revised Communication Guidelines. The provisions of article 44 of the Charter and Section I (1) of the Revised Communication Guidelines stipulate that ‘non-governmental organisations legally recognized by one or more of the Member States of the African Union or State Party to the Charter or the United Nations, among others can submit a Communication before the Committee.’ The Committee notes that ACPJS is a registered non- governmental organization working to monitor and promote respect for human rights and legal reform in Sudan and is making the application on behalf of a Sudanese national. Moreover, Sudan is a state party to the Charter as it ratified the Charter in 2008. Furthermore, in terms of Section I (4) (a) of the Revised Communication Guidelines, the Committee’s jurisdiction is determined by the complainant’s age at the time of the alleged violation. Although the complainant is 20 years old, the Committee notes that she was 16 at the time of the alleged violation. As such, the Committee holds that the Complainant has locus standi to submit the case.

26. The admissibility of a Communication determined based on the conditions of admissibility provided under Section IX (1) of the Revised Communications Guidelines. Therefore, the Committee assesses whether or not the Communication meets those conditions. From the Complainant and the Respondent State’s submissions on admissibility, the Committee has identified three issues that require analysis namely;

a)   Whether or not the Communication is compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter;

b)  Whether or not the Communication raises matters pending settlement by another international body; and

c)   Whether or not the Complainant has exhausted local remedies, and whether the Complainant should be exempted from exhausting local remedies.

A. Whether or not the Communication is compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter

27  . Section IX (1) (a) of the Revised Communication Guidelines provides that a Communication is admissible if ‘it is compatible with the provisions of the Constitutive Act of the African Union and the African Children’s Charter.

28  .The Respondent State has invoked the principle of non-intervention into the internal affairs of States and argues that the Communication does not meet this requirement. The Committee however acknowledges that ‘ once a State commits itself to a treaty or its membership of an organisation, that act implies agreement to be bound by decisions from these institutions that are responsible for implementing and giving effect to the treaty.’[4] The Committee further acknowledges that ‘by ratifying the African Children’s Charter, states automatically accept the competence of the Committee to ‘receive’ individual and inter-state communications.’[5] Article 1 of the Charter places an obligation on Member States to recognise the rights, freedoms, and duties enshrined in the Charter, and by ratifying the Charter, the Respondent State bound itself to the provisions of the Charter, including this obligation. Further, the Respondent State bound itself to the mandate of the Committee to promote and protect the rights enshrined in the Charter provided in article 42 of the Charter. This also includes the mandate to receive Communications against Sudan, relating to matters covered by the Charter as stipulated in article 44 of the Charter.

29  .The Committee notes that the principle of non-intervention is not absolute as it is subject to limitations and there are exceptions to the principle. Indeed, the Committee acknowledges that under international law, particularly article 2(7) of the Charter of the United Nations, the principle ‘concerns the duty not to intervene in matters within the domestic jurisdiction of any State’, and this implies that States should be given an opportunity to redress violations within their own system. However, in the report of the UN Secretary General ‘In Larger Freedom: Towards Development, Security and Human Rights for Alf, the Secretary General, while acknowledging that the responsibility to protect citizens lies first and foremost with each individual state, stressed that ‘ if national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian, and other methods to help protect the human rights and well­being of civilian populations.’[6] Drawing from these sentiments, the Committee is of the view that the principle of non-intervention does not entirely preclude intervention and in the event that a particular state fails to redress violations in its own system, intervention is warranted.

30  .The Committee notes from the Communication that the Respondent State was given an opportunity to remedy the alleged violations at the national courts but it is alleged that the Respondent State failed to do so. The Applicant has thus approached the Committee for redress and refusal by the Committee to deal with the matter on the basis of the principle of non-interference will be undermining the objectives and purpose of the Charter. While giving regard to the concept of State sovereignty and non-interference in terms of article 4(g) of the Constitutive Act, the Committee acknowledges that intervention is required in order to protect and promote children’s rights. The Respondent State cannot therefore seek to absolve itself from the obligations of the Charter by invoking the principle of non-interference.

31 .The Committee notes that the substantive requirement of compatibility with the AU Constitutive Act and the Charter entails the necessity that complainants make reasonable claims that articles of the Charter have been violated. The Committee reiterates its decision in the Talibes case where it held that the condition of compatibility with the AU Constitutive Act and the Charter is met if a Communication alleges violations of the African Children’s Charter.[7] The same was stated by the Committee in its admissibility ruling of Ahmed Bassiouny v Egypt,[8] where the Committee held that in order to be accepted by the Committee, a communication should show prima facie violation of the provisions of the African Children’s Charter. The Committee notes that the present Communication alleges violation of specific provisions of the Charter (articles 1, 2, 3, and 16) and is therefore brought in conformity with the provisions of the Charter and the Constitutive Act of the African Union.

32  . In light of the above, the Committee notes that the Communication fulfils the requirements of section IX (1) (a) of the Revised Communication Guidelines on compatibility with the Constitutive Act and the Charter.

B. Whether or not the Communication raises matters pending settlement by another international body

33  . Section IX (1) (c) of the Revised Communication Guidelines provides that a Communication is admissible if it does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the African Union and principles of the United Nations Charter.

34  .The Committee makes reference to its admissibility ruling in the case of Legal and Human Rights Center and Center for Reproductive Rights (on behalf of Tanzanian Girls) v Tanzania where it stated that the intention of this condition is to avoid subjecting States to similar international and regional judicial or quasi-judicial procedures on similar alleged violations.[9] As stated in the same admissibility ruling, the Committee further acknowledges that a hierarchy should not be created among the various international judicial or quasi-judicial organs where one can appeal against the other.[10] Furthermore, as held in the Committee’s admissibility ruling in the case Prcject Expedite Justice and others v Sudan, the Committee notes that ‘ such requirement is provided to prevent conflicting decisions and ensure efficiency of transnational tribunals.’[11]

35  .On the basis of this requirement and the Respondent’s State submission, the Committee notes that the key issue of determination in this Communication is the nature of the adjudicating body where the Respondent State alleges that the matter is pending. The provisions of section IX (1) (c) of the Revised Communication Guidelines are straightforward as they refer to matters pending before ‘international’ bodies or procedures and not ‘national’ bodies or procedures.

36  .The Committee notes that the Sudanese Criminal Court is not an international body hence the Respondent State’s argument is misplaced and would only affect the condition of exhaustion of local remedies, which the Committee will address in detail below.

37  .The Committee notes that there is no other indication to the effect that the matters raised in the present Communication are pending settlement or have been previously settled by another international body or procedure in accordance with any legal instruments of the AU and principles of the UN Charter. In light of that, the Committee holds that the Communication fulfils the requirements of section IX (1) (c) of the Revised Communication Guidelines.

C. Whether the Complainant has exhausted local remedies, and whether the Complainant should be exempted from exhausting local remedies.

38. Section IX (1) (d) of the Revised Communication Guidelines provides that a Communication is admissible if submitted ‘after having exhausted available and accessible local remedies, unless it is obvious that this procedure is unduly prolonged or ineffective.’ As this Committee in the Children of Nubian descent case noted, ‘one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State to be the first port of call to address alleged violations at the domestic level.’[12]Drawing from the Respondents State’s argument, the Committee will determine whether or not the Complainant has failed to exhaust local remedies by failing to submit the case to the National Human Rights Commission and the General Grievances and Corrections Corporation.

39. Drawing from its jurisprudence in the Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on behalf of children of Nubian descent in Kenya v. The Government of Kenya (Children of Nubian descent case), the Committee reiterates that what is envisaged under the Revised Guidelines with regards to the exhaustion of local remedies is that ‘extra-ordinary remedies of a non-judicial nature do not fall within the notion of local remedies and need not necessarily be exhausted for a communication to be declared admissible.’[13] This position has also been adopted by the African Commission on Human and Peoples’ Rights in the case of Cucjoe v Ghana where it was stated that the requirement of the rule of exhaustion of local remedies is that only ordinary judicial remedies need to be exhausted.[14] The African Courton Human and Peoples’ Rights in its jurisdiction and admissibility ruling in the case of Hamad Mohamed Lymbaka v the Republic of Tanzania,'[15] also held that an applicant is not compelled to exhaust remedies that are non­judicial in nature.

40. Judicial remedies can be understood as remedies that are ‘provided by independent tribunals on a non-discretionary basis according to law and provide remedies as a matter of right and in a binding and enforceable manner.’[16] As noted by the Human Rights Committee in the case of Brough v Australia, the Committee recognises that administrative bodies or National Human Rights Commissions that meet all of these standards may constitute appropriate domestic remedies as well.[17] In the event that such bodies do not meet these standards, for example as a result of their issuing non-binding recommendations, or as a result of failure to issue their holdings according to clear legal rules, or due to other characteristics that give them a less-than judicial character, they do not constitute remedies that must be exhausted.[18]

41. The Committee notes that the National Human Rights Commission of Sudan has a status of an advisory mechanism, while the General Grievances and Corrections Corporation is a supervisory body monitoring the judiciary and justice institutions’ performance and enforcement of the national laws as well as the international and regional obligations of Sudan. In that regard it is clear that these two bodies do not provide remedies that are binding and enforceable and are thus non-judicial in nature hence the Complainant cannot be compelled to approach these bodies.

42. The Committee notes from the alleged facts of the Communication that after the High Court overturned the decision of the Child Court and the Appeal Court, the Complainant approached the High Court Review Chamber and upon being disgruntled with the decision of the High Court Review Chamber, the Complainant approached the Constitutional Court. The Sudanese Constitutional Court is the custodian of the Constitution and is the highest court on matters dealing with the constitutionality of laws and provisions in accordance with the Constitution. In that regard, the Complainant exhausted all local remedies available.

43. Regarding the Respondent State’s argument that the matter is pending before the Criminal Court, the Committee notes that the Respondent State is referring to the adultery matter which is yet to be heard by the Criminal Court. The Committee notes that the subject matter of the Communication is the decision of the High Court, the High Court Review Chamber, and the Constitutional Court of Sudan in respect of the rape matter, which decision is alleged, to have a bearing on the victim as she will be prosecuted for adultery before the Criminal Court. The Committee sees no reason why the Complainant should be expected to wait for the adultery trial which is a result of the decisions of the other courts, to be completed before approaching the Committee.

44. In light of that, the Committee holds that the Complainant exhausted all local remedies available and therefore the Communication fulfils the requirement of exhausting local remedies provided in section IX (1) (d) of the Revised Guidelines.

45. As to the other conditions of admissibility, the Committee does not observe any irregularity and no contention has been raised by any of the parties to the Communication.

vi. Decision on admissibility

46. On the basis of all the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has fulfilled all the admissibility conditions laid down in the Committee’s Revised Guidelines on Consideration of Communications; and it is accordingly declared admissible.

Adopted in March 2021 during the 37th Ordinary Session of the ACERWC

Honorable Joseph Ndayisenga

Chairperson of the African Committee of Experts on the Rights and Welfare of the Child

 

[1] Zina is defined under Article 145 (1) of the Criminal Act 1991 as : "There shall be deemed to commit adultery (a) every man, who has sexual intercourse with a woman, without there being a lawful bond between them; (b) every woman, who permits a man to have sexual intercourse with her, without there being a lawful bond, between them"

[2] Article T1 (1) of the 2005 National Interim Constitution provides that "The Bill of Rights is a covenant among the Sudanese people and between them and their governments at every level and a commitment to respect and promote human rights and fundamental freedoms enshrined in this Constitution; it is the Corner stone of social justice, equality and democracy in the Sudan" whilst Article 27 (3) states that, "All rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of this Bill".

[3] The 2005 National interim constitution does not define a child but states that, "the "state shall protect the rights of the child as set forth in international and regional agreements ratified by Sudan."

[4] GM Wachira, Sovereignty and the 'United States of Africa' Insights from the EU, Institute for Peace Studies (June 2007), 2.

[5] F Viljoen, International Human Rights Law in Africa (2012) 399.

[6] Report of the UN Secretary-General 'In larger freedom: towards development, security and human rights for all' 2005, para 135.

[7] ACERWC, Communication No 003/Com/001/212, The Centre for Human Rights (University of Pretoria) and another v The Government of Senegal, para 18.

[8] ACERWC, Communication No 009/Com/001/2016, Decision on Admissibility No 002/2017, Ahmed Bassiouny v Egypt, para 18.

[9] ACERWC, Communication No 0012/Com/001/2019, Decision on Admissibility No 001/2020, Legal and Human Rights Center and Center for Reproductive Rights v United Republic of Tanzania, para 21.

[10] As above.

[11] ACERWC, Communication No OOll/Com/OOl/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 33.

[12] ACERWC, Communication No 002/Com/002/2009, The Institute for Human Rights and Development in Africa and another (on behalf of children of Nubian descent in Kenya) v The Government of Kenya para 26.

[13] As above, para 30.

[14] ACHPR, Communication 221/1998, Cudjoe v Ghana, (1999), para 14.

[15] AC+HPR, Application 010/2016, Hamad Mohamed Lyambaka vThe Republic of Tanzania, para 39.

[16] C Roberts, Admissibility of Complaints before the African Court Practical Guide (2016), 37.

[17] Human Rights Committee, (HRC) Communication 1184/2003, Brough v Australia, (17 March 2006), para 8.6.

[18] D Sullivan, Overview of the Rule Requiring the Exhaustion of Domestic Remedies under the Optional Protocol to CEDAW, (2008), 5.

Author
admin
Judgment date
Case number
Communication 1 of 2019
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Harmful practices affecting the rights of children
Admissibility
Education

The African Committee of Experts on the Rights and Welfare of the Child
(ACERWC)

Admissibility Ruling

Communication No: 0012/Com/001/2019

Decision on Admissibility No: 001/2020

Legal and Human Rights Center and Center for Reproductive Rights (on behalf of
Tanzanian girls)

v

United Republic of Tanzania

Original- English

I.        Submission of Communication

1.   The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a Communication dated 17 June 2019 pursuant to article 44 of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Legal and Human Rights Center and Center for Reproductive Rights (on behalf of Tanzanian girls) (the Complainants) against the United Republic of Tanzania (the Respondent State). Receiving the Communication, pursuant to Section III of the Committee’s Revised Guidelines for Consideration of Communication (the Revised Communications Guidelines), the Secretariat of the Committee conducted a preliminary review and registered the submission as Communication No: 0012/Com/001/2019. To facilitate the determination on the admissibility, the Communication was duly transmitted to the Respondent State through a Note Verbal, Ref DSA/ACE/64.2604.19 dated 25 June 2019, pursuant to Section IX (2) of the Revised Communications Guidelines. The Committee received a Note Verbal from the Respondent State, Ref. CHAD/239/738/01/10, dated 01 October 2019, which contains the Respondent State’s submission on the admissibility of the Communication. The response submitted by the Respondent State was not accepted by the Committee as it was signed by one of the Members of the Committee, thus raising conflict of interest contrary to what is prescribed under Rule 4 of the Rules of Procedures of the ACERWC. Hence, the Committee, through a Note Verbal, Ref. DSA/ACE/64/5333.19, dated 09 December 2019, requested the Respondent State to revise and re-submit its response. Accordingly, the Respondent State submitted its revised response on the admissibility of the Communication with a Note Verbal, Ref. No. CHAD 239/780/01/35, dated 27 August 2020 which was also sent to the Complainants on 31 August 2020. Following the Respondent State’s submission, on 01 September 2020, the Complainants, pursuant to Section IX (2) (Vi) of the Revised Communications Guidelines, further submitted their observations on the response of the Respondent State.

II.       Summary of alleged facts

2.   The Complainants allege that primary and secondary school girls are subjected to forced pregnancy testing and expulsion from schools in events where they are found pregnant or married. While acknowledging that the exact number of children expelled from schools for reasons of pregnancy or marriage is unknown, the Complainants submit that Tanzania’s 2013 Basic Education Statistics provides that 2433 primary schoolgirls and 4705 secondary schoolgirls dropped out of school due to pregnancy in 2012. Moreover, the Complainants allude to reports from Human Rights Watch that over 15,000 girls drop out of school every year due to pregnancy. It is also submitted that the study conducted by one of the Complainants, Center for Reproductive Rights, provides that over 55,000 female students dropped out of school due to pregnancy between 2003 and 2011.

3.   The Complainants allege that mandatory pregnancy testing is practiced in almost all public schools subjecting girls as young as 11 years of age to pregnancy testing. It is submitted that the testing does not follow any standard and sometimes painful methods such as poking are applied to check for pregnancy by school personnel. The Complainants allege that pregnancy testing is undertaken without the consent of the girls and most often the results are not communicated to the girls but rather shared with school staff without the consent of the girls. Girls are also required to take pregnancy test when they enroll in schools.

4.   The allegation of the Complainants provides that girls who are found to be pregnant before being enrolled will not be accepted to schools and those girls who are found to be pregnant in the school year are expelled from schools. The Applicants allude to the fact that neither pregnancy testing nor expulsion of students due to pregnancy is prescribed by the Education Regulations. The Applicants provide that pregnancy is not included as a ground of expulsion in the Education (Expulsion and Exclusion of Pupils from School) Regulation 2002 G.N. No. 295 of 2002, however, school administrators interpret pregnancy to be an offence against morality which is one of the grounds of expulsion under the Regulation. The Complainants also indicate that some school administrators expel pregnant girls from school claiming that it is government policy. As expulsion is a universal practice in public schools, girls who find out about their pregnancy by themselves dropout of school to escape the humiliation and stigma they will be subjected to if school administers find out about their pregnancy during mandatory testing. Moreover, the Complainants submit that the expulsion and exclusion of pregnant school girls has no exception such as in cases where girls fall pregnant due to sexual abuse or incest even in cases where police report can be produced to that effect.

5.   The Communication further alleges that married girls are not allowed to register or remain in school once married and this is vividly provided by the Respondent State’s Regulation on Expulsion and Exclusion of Pupils. The Complainants submit that the Education (Imposition of Penalties to Persons who marry or Impregnate a School Girl) Rules 2003, G.N. No. 265 of 2003 penalizes anyone who marries or impregnates a schoolgirl. The Communication highlights that this is in contradiction with the laws of the Respondent State as the Marriage Act allows girls as young as 14 to get married. The Communication also indicates that there is a court decision which rules that the age of marriage for girls set below 18 has been declared unconstitutional but has not entered into force due to an ongoing appeal on the decision of the High Court.

6.   Moreover, the Complainants allege that the expulsion and exclusion policy of the Government is a permanent one as school girls are not readmitted to the public school after delivery. School girls who have been expelled due to pregnancy or marriage can only be readmitted to private schools or vocational training schools. The Complainants further allege that these options are not always accessible or limit the education path girls wish to pursue. While noting that since 2014 the Education and Training Policy has incorporated a provision which provides that students who left school for any reason should be readmitted, the Complainants submit that this has never been implemented. The Communication also submits that recent statements by high level officials of the Respondent State including the President have alluded to the fact that the Government of the Respondent State will intensify its effort to expel students who fall pregnant and also to ensure their non-readmission to schools. The Complainants also submit affidavits of girls who have been denied to re-enter school after giving birth due to the statements of the officials, mainly the President.

7.   The Communication includes facts that school personnel usually report pregnancies as the Child Act and the Ministry of Education Rules prescribe penalty against those who impregnate girls. The Complainants submit that such reports are subjecting girls to unlawful detention or harassment as they are often detained or harassed until they expose the identity of the person who impregnated them. Furthermore, the Communication alleges that girls who fall pregnant due to sexual abuse are exposed to the same risk of detention and harassment subjecting them to secondary victimization. The Complainants refer to the assessment undertaken by the Tanzanian Commission on Human Rights and Good Governance to allege that children are detained in harsh conditions, denied of visits by caregivers, and subjected to delayed case hearings. The Communication therefore alleges that girls are being detained when they refuse or are unable to testify against who impregnated them although being pregnant by itself is not provided as a crime. The Communication cites the statement of the Regional Commissioner who ordered regional and district commissioners of education to arrest pregnant girls who refused to identify the person who impregnated them. Following the order, the Communication alleges that 55 pregnant school girls were arrested in Tandahimba District. Such practices and policies discourage pregnant girls or parents from seeking information or assistance including reporting cases of sexual abuse especially in cases where the perpetrators are unknown. Even when the perpetrators are known, the Complainants allege that proper investigation is not carried out to prosecute them.

8.   The Communication finally alleges that girls in the Respondent State are deprived of access to sexual reproductive health information and services to prevent unplanned pregnancies. Girls who are pregnant are not also provided with pregnancy related services such as information on family planning, and transmittable diseases. The Complainants allege that lack of information and services on sexual reproductive health issues has resulted in a high rate of teenage pregnancy and unsafe abortion as well as disproportionate risk of teenage pregnant girls’ death in the Respondent State. The number of teenage girls who fall pregnant is higher among those with lower education, lower income and girls in rural areas. The Complainants claim that there is lack of comprehensive sexual education in schools as sexuality education mainly focuses on abstinence and is provided in secondary education level where girls are already sexually active. In addition, girls are not provided with any kind of sexual reproductive health services or information during mandatory pregnancy testing such as contraception options or prevention of sexually transmitted diseases. The sexual reproductive health services available in the Respondent State are not youth friendly and hence girls are not encouraged to access such services even when they are available. The Communication submits that lack of information and services on sexual reproductive health result in unwanted and unplanned pregnancy of girls who are then forced to leave their education as a result of pregnancy. It is also increasing the number of unsafe abortions among adolescent girls which is also exacerbated by restrictive abortion law of the Respondent State.

III.      Applicants’ submission on admissibility

9.   The Complainants argue that the Communication fulfills the requirement of admissibility under Section XI (1) of the Revised Communications Guidelines.

10. The Complainants particularly focus on the requirement of exhaustion of local remedies, where they submit that the communication fulfills the requirement of exhaustion of local remedies. The Communication provides that one of the

Complainants, Legal and Human Rights Center (LHRC), along with the National Organization for Legal Assistance filed a case at the High Court of the Respondent State on behalf of school girls against the Minister of Education and Vocational Training and the Attorney General alleging that forced pregnancy testing and the practice of expelling pregnant girls from school violates the Constitution of the Respondent State. The case was filed on 13 September 2012 and after receiving the reply of the Respondents in that case, the High Court rescheduled the case three times the final of which was scheduled for 02 May 2013. The Complainants submit that hearing could not be held on the scheduled day as the assigned judge decided to recuse himself from the case. The High Court announced that the case has been reassigned to another judge on 26 November 2013 and rescheduled the preliminary hearing twice after which it decided to get the preliminary objection in writing. The Communication alleges that after numerous appointments, the Court dismissed the preliminary objection on 13 November 2015, more than three years after the filing of the case. The Communication also provides that the hearing of the merits was withheld by the Court for various reasons until 04 May 2017 when the Court decided to receive arguments on the merit in writing. The Court rendered decision on 04 August 2017 dismissing the case of the petitioners entirely on the basis of lack of evidence of discrimination and further decided that pregnancy is a matter of discipline that should be left for schools. Following the decision, the Complainants indicate that a notice of appeal was submitted to the Court of Appeal on 14 August 2017, however, the certified judgment and proceedings of the High Court were provided only on 11 April 2018. The Complainants allege that despite all procedures fulfilled, the Court of Appeal has not given a hearing date on their appeal until the day they submitted the current Communication to the Committee.

11. Based on these facts, the Complainants argue that local remedies have been unduly prolonged, hence they should not be required to wait any further for remedy at local level. The Complainants refer to Section IX (1)(d) of the Guidelines for Consideration of Communications which provides that local remedy may not be exhausted if it is unduly prolonged or ineffective. The Communication also makes reference to the Minority Rights Group International v. Mauritania case and IHRDA et.al on behalf of Children of Nubian descent v. Kenya case (Children of Nubian Descent case) Where the Committee ruled that seven and four years of delay respectively fulfill the requirement of unduly prolonged local remedies. Moreover, the Communication alleges that the best interest of the child should be the primary consideration in determining whether a local remedy is unduly prolonged given the irreparable harm the children will suffer. The Communication also reiterates the decision of the Committee in the Children of Nubian Descents Case where the Committee stated that one year delay constitutes 6 percent of childhood and hence it found that over 6 years delay in local court proceeding is not in the best interest of the children.

12. The Complainants further argue that the local remedies are not effective as local authorities are informed about the situation but have failed to act on it. The Complainants cite the Committee from its decision on the Michelo Hunsungule and others (on behalf of children in Northern Uganda) v. The Government of Uganda case (Children of Northern Uganda case) whereby the Committee stated that the purpose of having the requirement of exhaustion local remedies is to prevent international tribunals from serving as appellate courts and also to give States the opportunity to be able to address violations that occur in their territory. The Complainants also support their arguments with the jurisprudence of the African Commission on Human and Peoples’ Rights (African Commission) citing various cases including Article 19 v Eritrea and FIDH and OMCT v Sudan where the African Commission held that local remedies are ineffective and need not be exhausted in cases where the State has been provided with ample notice of the alleged violations and yet the State fails to take measures. The Communication further makes reference to Amnesty International and Others v. Sudan where the African Commission held that in cases of clear human rights violations, domestic and international attention alone may suffice to confirm that the State has received notice. In the current case, the Complainants argue that the practice of expelling pregnant girls from school is a widespread practice which the Respondent State is aware of and tries to defend and further that international reports as well as appeals including by the Committee, the Commission and the UN Committee on the Rights of the Child have been provided for the Respondent State. Therefore, the Complainants submit that local remedies are ineffective as the Respondent State has failed to act on the violations that have been brought to its attention.

13. Finally, the Complainants argue that local remedies are not available as the violations are massive and serious. The Communication makes reference to the decision of the Committee in the Children of Northern Uganda case in which the Committee granted exemption from exhausting local remedies on the basis that the violation affected thousands of children and the violation occurred on a large scale. The Complainants further support their argument by the jurisprudence of the African Commission where the Commission decided that local remedies need not be exhausted in massive and serious human rights violation cases. The Complainants rely on the definition of massive and serious human rights violation by the Commission in the Open Society Justice Initiative v. Cote d’Ivoire case where the Commission held that ‘a massive violation is one that affects a large number of persons, either in a specific region or all over the territory of a State Party. Concerning the nature, the violation must be the consequence of continual and pre-determined actions having an impact on a right or a group of rights under the African Charter’. The Communication argues that there are a large number of girls who are being affected by the expulsion which makes it massive and it would be impractical to require all these girls to exhaust local remedies.

IV.      Respondent’s submission on admissibility

14. In its response to the arguments of the Complainants on the admissibility of the Communication, the Respondent State submits that the Communication is not admissible as it does not fulfill the conditions listed down under the Revised Communication Guidelines.

15. The Respondent State submits that the Communication raises matters pending before another international human rights body, hence does not fulfill the requirement of admissibility under Section IX (1(c) of the Revised Communication Guidelines. The Respondent State submits that a similar joint communication has been submitted to the Special Mechanisms of the Human Rights namely the Working Group on Discrimination of Women in Law and Practice under Reference No. AL TZA 3/2017 dated 14 August 2014 and Special Rapporteur on the Right to Education under Reference No JAL TZA 1/2018 dated 22 February 2018. The Respondent State supports its submission using various decisions of other treaty bodies among others the decision of the African Commission in the Amnesty International v Tunisia, Mpaka- Nsusu V Zaire, and Interights v Eritrea and Ethiopia cases where it declared the Communications inadmissible as they were pending before the UN Human Rights Commission. The Respondent State argues that the Special Mechanisms are part of the Human Rights Council mechanism and hence fits in the UN Charter Procedure in accordance with Section IX 1(c) of the Guidelines of the ACERWC.

16. Furthermore, the Respondent State argues that the Communication is inadmissible as the Complainants have not exhausted local remedies available in the Respondent State. In its submission, the Respondent State argues that the Complainants should not be granted an exemption from exhausting local remedies as local remedies are available, effective, and sufficient in the domestic system. The Respondent State argues that the fact that one of the Complainants filed a case against the Ministry of Education before the High Court and later filed an appeal at the Court of Appeal reveals that there is a judicial remedy available at domestic level. The Respondent State, making reference to the Decision of the African Commission in the Amnesty International and Other V Sudan, submits that the existence of the right to appeal satisfies the condition of effectiveness of local remedies. The Respondent State further submits that its judiciary is independent and the effectiveness of a local remedy is assessed on the basis of prospect of success, not the awareness of authorities about the violation, hence the judicial and administrative role of the State should not be confused. The Respondent State also relies on the decision of the Committee on Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt in submitting that evidence should be produced to show ineffectiveness of local remedies and a mere doubt does not make a remedy ineffective. In providing evidence that a local remedy is effective, the Respondent State cites Rebeca Z. Gyumi v The Attorney General where both the High Court and the Court of Appeal Tanzania declared Section 13 and 17 of the Law of Marriage Act unconstitutional for providing lower age of marriage for girls. The Respondent State submits that the Complainants should follow their appeal up to the end and their decision to abandon the local remedy they started to exhaust is against the principle of subsidiarity and complementarity of international tribunals. In supporting these arguments, the Respondent State among others refers to the decision of the Committee in the Sohaib Emad v Arab Republic of Egypt case that international and regional bodies do not serve as a first instance courts, rather as a last resort after exhausting local remedies.

17. In addition, the Respondent State submits that the Communication does not fulfill the requirement under Section IX 1(e) of the Guidelines on Consideration of Communications as it is premature and not submitted within reasonable time. The Respondent State alludes to the fact that the Court of Appeal is yet to rule on the case and the delay is normal like in other cases. Only cases that require urgency are given priority and the Respondent submits that this case is not urgent, hence the Complainants should wait for the decision of the Court of Appeal.

Highlighting the fact that conditions of admissibility are cumulative, the Respondent State seeks that the Communication is dismissed for lack of fulfilling admissibility requirements.

V. The Committee’s analysis on admissibility of the Communication

18. The Committee’s analysis of the admissibility of a Communication is guided by article 44 of the Charter and the Revised Communication Guidelines. According to article 44 of the Charter and Section I (1) of the Revised Communication Guidelines, non­governmental organizations legally recognized by one or more of the Member States of the African Union or State Party to the Charter or the United Nations, among others can submit a Communication before the Committee. The Committee notes that LHRC is a non-governmental organization registered in Tanzania and holds an observer status before the Committee since March 2019; similarly, the Center for Reproductive Rights is an international non-governmental organization which has a regional office in Nairobi and also has an observer status before the Committee since November 2018. Considering that the Complainants fulfill the requirement to access the Committee as they are registered in Member States of the African Union, and noting that their application is filed on behalf of pregnant and married school girls, the Committee accepts the standing of the Complainants to submit the case.

19. The Committee in analyzing the admissibility of the Communication assesses whether or not the conditions of admissibility provided under Section IX (1) of the Communications Guidelines are fulfilled. After considering the argument of the Complainants and the Respondent State, the Committee has identified three contentious issues that need to be analyzed in line with the requirement listed in the Revised Communication Guidelines; these are:

i.   Whether or not the Communication raises matters pending settlement by another international body;

ii.   Whether the Complainants have exhausted local remedies, and whether they should be exempted from exhausting local remedies;

iii.  Whether the Communication is presented within a reasonable time after exhaustion of local remedies.

i.        Whether or not the Communication raises matters pending settlement by

another international body;

20. Section IX (1) (c) of Revised Communication Guidelines states that a Communication is admissible if it ‘does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter’. The Respondent State submits that the same issue is raised before the Special Mechanisms of the Human Rights Council, hence it falls within the exclusionary requirement of ‘matter pending before another international procedure’. On the basis of the requirement in Section IX (1) (c) the Revised Communications Guidelines and the submission of the

Respondent State, the Committee notes that the key issue of investigation is the nature of the adjudicating body where the current Communication is pending to be settled, which is the procedure within the Special Mechanisms of the Human Rights Council.

21. While examining the matter, the Committee notes that understanding the background importance of having the above-mentioned requirement as a condition for considering admissibility of a case is crucial. The Committee recognizes that States should not be subjected to similar international and regional judicial or quasi-judicial procedures on similar alleged violations. The Committee further recognizes that having various international judicial or quasi-judicial organs should not be used in a way that creates hierarchy among such organs where one can appeal against the other. As stated in the admissibility ruling of the case Project Expedite Justice and others v The Sudan, the Committee notes that such requirement under its Guidelines are provided to prevent conflicting decisions and ensure efficiency of transnational tribunals.[1] Such criterion of admissibility has a role to play in ensuring ‘certainty and finality of international adjudications’.[2] The same has been upheld by the African Commission, from whose jurisprudence the Committee draws inspiration in line with article 46 of the Charter, where the Commission held that the rationale behind having such requirement of admissibility is ‘to desist from faulting Member States twice for the same alleged violations of human rights and ensures that no State may be sued or condemned for the same alleged violation of human rights’.[3] The Committee further reiterates the Commission’s elucidation that the requirement is a principle that guarantees the res judicata status of decisions issued by international and regional bodies mandated to adjudicate human rights cases.

22. In line with the above, regarding the current Communication, the Committee notes that the requirement of ‘pending settlement or has been settled by another body’ shall be understood in the sense that the case in question should be pending or already settled by a body that has a mandate to reach at a decision that binds that State concerned. The spirit and wording of Section IX (1)(C) of the Revised Communication Guidelines is clear that it is not referring to all kinds of mechanisms available at international or regional levels, rather it is referring to procedures that are capable of redressing a violation as it uses the term ‘settlement’. In its admissibility ruling on the case of Project Expedite Justice and others v The Sudan, where the Respondent State argued that the same matter is pending before another procedure as the issue was being considered by the United Nations Security Council, the Committee held that ‘[f]or the Committee to consider any other procedure as considering or having settled a matter, the body or procedure must be able to address in substance the rights given to the child by the African Children’s Charter. Hence, the organ or body in question must have a mandate comparable to the Committee.’[4] Since, the UN Security Council does not have a mandate comparable to the Committee, the Committee decided that the matter cannot be regarded as pending before another international procedure and therefore dismissed the argument of the Respondent State in the stated case. Drawing inspiration from other jurisdictions, the Committee refers to the decision of the Human Rights Committee (HRC) on the Celis Laureano v Peru case, where the HRC held that international settlement for the purpose of admissibility does not include extra- conventional procedures that are tasked with assessing or reporting on certain human rights violations in specific territories.[5] More similar to the case at hand, in the Madoui V Algeria case, the HRC declared the case admissible despite the fact that the same issue has been submitted before the UN Working Group on Enforced or Involuntary Disappearances as such mechanisms are not what are meant by international settlement under its Optional Protocol.[6] Likewise the African Commission spelled out that a case is deemed to be settled if it is considered by an international treaty body or adjudication mechanism.[7] The Commission further mentions that consideration by another international procedure entails a procedure that ‘is capable of granting declaratory or compensatory relief to victims, not mere political resolutions and declarations’, hence matters considered by the UN Security Council or Human Rights Council are not precluded from being entertained by the Commission.

23. The Committee also notes that the mandate of the Special Rapporteurs or Working Groups of the Human Rights Council is limited to sending communications to the concerned State in a form of letters or reports and requesting the State to respond on the same.[8] The Special Mechanisms then report their communications and the replies of States to the Human Rights Council. As such, they do not have the mandate to issue any form of relief or decision on the complaints they receive. If the Committee considers the current communication, it cannot be said that the Respondent State is being subjected to an international procedure more than once on the same matter as no decision or relief was or can be issued to the victims by the above-mentioned special mechanisms.

24. The Respondent State relied on various cases in substantiating its argument that the case is pending before another procedure including the Mpaka-Nsusu V Zaire case and Interights v Eritrea and Ethiopia case of the African Commission among others. However, the Committee notes that the jurisprudences in which the Respondent State relied on are not similar to the case at hand. The Mpaka-Nsusu V Zaire case was declared inadmissible by the African Commission because it was already considered by the Human Rights Committee which is a treaty body with a quasi-judicial human rights mandate similar to the Commission.[9] The Commission in the Interights v Eritrea and Ethiopia case did not declare the case inadmissible; rather admitted the case and suspended the consideration until the Claims Commission make a decision.[10]

25. On the basis of the above, the Committee decides that the complaints that have been submitted to the Special Rapporteur on Education and the Working Groups on Discrimination against Women in Law and Practice do not qualify as matters ‘pending settlement or previously settled’ under Section IX (1) (c) of the Guidelines, hence the Committee is not prevented from considering the Communication.

11.     Whether the Complainants have exhausted local remedies, and whether they

should be exempted from exhausting local remedies

26. The second issue in relation to admissibility in the current Communication is the requirement of exhaustion of local remedies. The Committee notes, Section IX (1) (d) of the Revised Communication Guidelines provides that a Communication is admissible, among others, if submitted ‘after having exhausted available and accessible local remedies, unless it is obvious that this procedure is unduly prolonged or ineffective’. While the Complainants argue that local remedy has been unduly prolonged and is not available and effective, the Respondent State, referring to the previous cases, argues that local remedies are indeed available and effective. Examining the matter in contestation, the Committee refers to the long established principle that only judicial remedies that are ‘available, effective, and sufficient’ should be exhausted.[11] The availability of a local remedy is assessed in terms of the ability of the Complainants to make use of the remedy in their case.[12] The rationale behind the requirement of exhaustion of local remedies is not to create impediment on access to redress at supranational level, but rather to make sure that States are given the information about the alleged violations and an opportunity to redress such violations within their available means. States should be given ample notice about the violation that is occurring before being called at international or regional level to account for those violations.[13] Moreover, Complainants are required to exhaust local remedies because local remedies are ‘cheaper, quicker, and more effective’.[14] However, treaty bodies, like this Committee, may entertain a case without a local remedy being exhausted to the end when such remedy is unduly prolonged[15] despite the fact that a remedy is available or could be effective if pursued.

27. In the current Communication, it is submitted that one of the Complainants has attempted to exhaust local remedies since 13 September 2012 when the case was initially filed at the High Court of Tanzania and the High Court gave its decision on 04 August 2017, 5 years after the submission of the case. It was further submitted that even though the Complainants filed a notice of Appeal at the domestic level on 14 August 2017, the Court of Appeal has not given them a hearing date until this case was filed before the Committee in 2019. The Committee believes that time is of a crucial essence of local remedy particularly for children as their best interests demands it and also they have a limited period to enjoy the rights accorded to them as such rights are prescribed by time. As the Committee, in the children of Nubian Descents Case pronounced, a court proceeding that is pending for over 6 years is not in line with the obligation of States to take proactive action and give immediate attention for the realization of children’s rights.[16] Likewise in the case Minority Rights Group International and other v Mauritania, the Committee found that four years of pending case at an appeal stage without any decision amounts to an unduly prolonged domestic remedy, hence the Committee concluded such instance forms a sufficient ground for exemption from exhaustion of local remedies requirement.[17] Referring to the practice with other jurisdictions, the Committee notes that a similar approach is followed by various international and regional bodies. The Human Rights Committee has declared that a proceeding that lasted 6 years at domestic level is an unduly prolonged local remedy which makes a case admissible at the Committee without having the need to wait for the final result of the court proceeding.[18] The Inter American Human Rights Court has also held that a case that has taken 5 years or more since the initial process can result in exemption of the requirement of local remedies.[19] The Committee is cognizant of the fact that there is no fixed amount of years to say that a local remedy is unduly prolonged, rather it is decided on a case by case basis giving due regard to the rights of children at stake. The Committee, while drawing inspiration from the above-mentioned cases, is in no way attempting to prescribe a definitive amount of time for what needs to be considered as ‘unduly prolonged local remedy’. It is the view of the Committee that the amount of time and the nature of the right invoked along with the best interests of the child should determine whether a local remedy is unduly prolonged or not.

28. In the current Communication, the Committee notes that the domestic remedy has taken over 7 years in total and the appeal has taken 2 years without the Court fixing a date for a hearing of the case. Given the time that has lapsed during the consideration of the case by the High Court and the rights of children at stake, the Complainants should no more be subjected to wait for the decision of the Court of Appeal whose proceeding so far has not demonstrated to be any faster. The right to education that is being alleged to have been violated is an essential right for children, which has a long-lasting effect on the wellbeing of children. Education determines the future of children and a domestic proceeding that is prolonged on such fundamental right should not be regarded as a remedy that should be sought till the end process. The Committee, therefore, holds the view that the domestic remedy is unduly prolonged.

29. The Committee does not find the argument of the Respondent State acceptable where it relies on previous cases of the Committee namely Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt in arguing that local remedies are effective. The Committee would like to differentiate between the case at hand and the abovementioned two cases invoked by the Respondent State. Both in Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt cases the Committee declined the communication as the Applicants were anticipating the ineffectiveness of the local remedy by relying on previous cases or merely casting doubts without trying to exhaust any remedy at local level.[20] However, in the present case, the Committee notes that the Complainants have attempted to engage the domestic courts and waited for 5 years to get a decision from the High Court, and appealed to the Court of Appeal which took long time to fix the hearing date. Such practices entail that the domestic remedy is proved to be unduly prolonged while the State has been given ample time to address the violation. Hence, it is the view of the Committee that the Complainants argument is not based on a mere anticipation, rather proven records of unduly prolonged domestic proceedings. The Committee reiterates, one of the reasons for exhaustion of local remedies is to give notice to the concerned State about the alleged violations so that it gets the opportunity to address the allegation. In this regard, the Committee, in addition to the local remedies sought by one of the Complainants, refers to the attempts by various international and regional interventions that have drawn the attention of the Respondent State on the same matter covered in the current Communication. In this regard, the Committee particularly refers to the Committee’s and African Commission’s joint letter of urgent appeal sent to the Respondent State regarding the right to education of pregnant girls on 21 July 2017 with        Ref:

ACHPR/LPROT/SM/652/17 regarding the school attendance by pregnant girls and young mothers in the Respondent State. In such circumstance, the Committee takes a strong view that it is against the best interests of the girls in the Respondent State to subject them to prolonged domestic proceedings on a matter that the Government of the Respondent State is well aware of. Moreover, the Committee declines the argument of the Respondent State that resorting to international human rights mechanism without finalizing cases at domestic level is against the subsidiarity principle of transnational systems. The Committee is duly cognizant that reginal and international mechanisms are subsidiary to domestic systems and such principle is reflected under its Revised Communications Guidelines as it prescribes exhaustion of local remedies as one criterion for admissibility of any communication. However, as explained earlier this criterion is not without exception and the exceptions in no way compromise the principle of subsidiarity.

30. With regard to the submission of both parties on the availability of domestic remedy, the Committee makes reference to some of the instances where the remedies have been rendered to be unavailable including when the power or competence of the local courts have been ousted by decrees or any form of decisions; when there is fear for life if the case is brought before local courts,[21] and when the remedies available are non-judicial or are discretionary.[22] The Respondent State argues that the attempt of the Complainants to seek remedy is a proof that remedy is available and cited cases where courts ruled favorably in cases that involved systematic issues like child marriage. The Committee takes the view that exemptions to exhaustion of local remedies are assessed on a case by case basis. The African Commission as well as the Inter American Court of Human Rights have both indicated the same, that the availability and effectiveness of a local remedy is assessed on a case by case basis.[23]A remedy may be available according to the general principle or practice of the Respondent State, however, if the Complainants are not able to use it in their circumstances, it may be regarded as unsuitable for the case.[24] While the Committee is convinced that a remedy may be available in the Respondent State for cases like the current one, it, however, notes that the remedy is unjustifiably and unduly prolonged which makes it not suitable for the Complainants to pursue.

111.   Whether the Communication is presented within a reasonable time after

exhaustion of local remedies.

31. The third issue on admissibility relates to time. The Respondent State submits that the Communication does not satisfy the requirement under Section IX (1) (e) of the Revised Communication Guidelines which requires complaints to be submitted within reasonable time after exhausting local remedies. The notion of this requirement is to ensure that Complainants who allege violations act in due diligence in pursing their cases. The requirement aims at preventing delays in reaching out to international bodies after exhausting local remedies the main goal being to prevent what is known as ‘abuse of right to submission’ in other jurisdictions.[25] Even though there is no provided time under the Revised Communication Guidelines on the number of years within which cases should be submitted before the Committee after the period of exhaustion of local remedies, the Committee draws inspiration from the approach of the Human Rights Committee where it says no delay is acceptable without reasonable justification.[26] Hence, given this rationale of the provision under the Guidelines, the argument of the Respondent State that the case is premature and hence not submitted within reasonable time is misguided and out of the context of the requirement under Section IX (1) (e).

32. As to the other conditions of admissibility, the Committee does not observe any irregularity and no contention has been raised by any of the parties to the Communication.

33. For the forgoing reasons, the Committee finds that the present Communication is admissible as per its requirements under article 44 of the Charter and Section IX (1) of the Revised Guidelines for Consideration of Communications.

Adopted in September 2020 during the 35th Ordinary Session of the ACERWC

Honorable Joseph Ndayisenga

Chairperson

The African Committee of Experts on the Rights and Welfare of the Child

 

[1] ACERWC, Communication No 0011/Com/001/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 33.

[2] Frans Viljoen, International Human Rights Law in Africa, 2012, 2nd ed, Oxford University Press, p321.

[3] ACHPR, Communication 260/2002, Bakweri Land Claims Committee v Cameroon, (2004), para 52.

[4] ACERWC, Communication No 0011/Com/001/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 37.

[5] Human Rights Committee (HRC), Communication 540/1993, Celis Laureano v Peru, (25 March 1996), para 7.1

[6] HRC, Communication 1495/2006, Zohra Madoui (represented by counsel, Nassera Dutour) v Algeria Decided at 94th session, 28 October 2008, CCPR/C/94/D/1495/ 2006 para 6.2.

[7] ACHPR, Communication 279/03, Sudan Human Rights v The Sudan; ACHPR, Communication No 296/05 Centre on Human Rights and Evictions v The Sudan, May 2009, para 104.

[9] ACHPR, Communication No. 15/88 Mpaka - Nsusu Andre Alphonse v. Zaire, para. 2; HRC, Communication No. 157/1983, Andre Alphonse Mpaka-Nsusu v Zaire, Twenty Seventh Session.

[10] ACHPR, Communications 233/99- 234/99: Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) / Eritrea para 55.

[11] ACERWC, Communication 002/2009 Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya, para 28; ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 31.

[12] ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 33.

[13] ACHPR, Communication 155/96, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (Oct 2001) para 38; ACHPR,Communications 25/89, 47/90, 56/91, 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de I’Homme, Les Te'moins de Jehovah v Zaire (Oct 1995) para 37;

[14] ACHPR, Communication 299/05, Anuak Justice Council v Ethiopia (May 2006), para 48

[15] ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 32; Guidelines for Communications, section IX (1)(d).

[16] ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 33-34.

[17] ACERWC, Communication no 007/Com/003/2015, Minority Rights Group International and SOS- Esclaves on behalf of Said Ould Salem and Yarg Ould Salem v Mauritania, (2017), Para 28

[18] HRC, Communication 1085/2002, Louisa Bousroual (on behalf of Salah Saker) v Algeria (15 March 2006), para 8.3.

[19] Inter-American Court of Human Rights (IACtHR), Genie-Lacayo v. Nicaragua, Merits, para 81; IACtHR, Las Palmeras v. Colom-bia, preliminary objections, para 38

[20] ACERWC, Communication No 008/Com/002/2016, Sohaib Emad v Arab Republic of Egypt, (2017) para 18; ACERWC, Communication No 009/Com/001/2016, Ahmed Bassiouny v Arab Republic of Egypt, (2017) para 24 and 30.

[21] ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 34­35.

[22] H Onoria ‘The African Commission on Human and Peoples’ Rights and the exhaustion of local remedies under the African Charter’ (2003) 3 African Human Rights Law Journal 5; ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 30.

[23] ACHPR, Communication 299/05, Anuak Justice Council v Ethiopia (May 2006), para 49; Inter American Court of Human Rights, Fairen-Garbi and Sol^s-Corrales v. Honduras, Preliminary Objection, para 89.

[24] Inter-American Court of Human Rights, Durand and Ugarte v. Peru, Preliminary Objection, 1999.

[25] Article 3, Optional Protocol of the HRC

[26] HRC, Communication 767/1997, Mr Vishwadeo Gobin v Mauritius (16 July 2001), para 6.3.

Author
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Judgment date
Case number
Communication 1 of 2018
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE
CHILD (ACERWC)

ADMISSIBILITY RULING

Communication No: 0011/Com/001/2018

Decision on Admissibility No:001/2019

AUTHORS:

Project Expedite Justice

The Al Khatim Adlan Centre for Enlightenment and Human Development

The International Refugee Rights Initiative

African Centre for Justice and Peace Studies

Horn of Africa Civil Society Forum

National Human Rights Monitors Organization

(Project Expedite Justice et al)

Respondent: The Government of the Republic of the Sudan

  1. Registration of the Communication
  1. The current Communication is submitted pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC) and duly registered by the Secretariat of the ACERWC on 26 August 2018. The Communication is submitted by Project Expedite Justice, The Al Khatim Adlan Centre for Enlightenment and Human Development, The International Refugee Rights Initiative, African Centre for Justice and Peace Studies, Horn of Africa Civil Society Forum and National Human Rights Monitors Organization (herein after referred to as Project Expedite Justice et al or the Complainants), on behalf of children in South Kordofan and Blue Nile states (jointly the “Two Areas”) against the Government of the Republic of the Sudan (“the Respondent State”).
  1. Summary of Alleged Facts
  1. The Complainants allege that in June 2011, conflict erupted in the Blue Nile and South Kordofan regions of The Sudan between the Respondent State and the Sudan People’s Liberation Army-North (SPLA-N). It is alleged that the Respondent State has deliberately and indiscriminately targeted civilians and engaged in a campaign of aerial and ground attacks by the Sudanese Armed Forces (SAF). The Complainants stated that as a direct result of the Respondent State’s campaign, infants and children have been killed, entire towns and villages have been depopulated, and over a million people have been forced into camps as Internally Displaced People (IDPs) or abroad as refugees.
  2. The Complainants further allege that the Respondent State’s persistent bombing of civilians has killed and maimed children far from the frontlines of the conflict, and served no legitimate military purpose. As part of their submission, the Complainants refer to various instances of bombing that targeted civilians, including high number of children, particularly the May 2015 areal bombardment that caused displacement and a disruption of basic services, including children’s access to vaccination and health services, and the destruction of schools; and the bombing campaigns in 2014 and 2015, called “Operation Decisive Summer,” which allegedly resulted in an increase in the violent deaths of civilians, widespread displacement and extreme food insecurity. The Complainants stated that Barrel bombs are released from high-flying Antonov aircrafts and there is an increased use of cluster munitions.
  3. The Complainants further site various examples of instances of attacks against children. On 18 November 2012, four children were playing under a fruit tree in Al Dar, Buram locality, when a SAF Antonov plane dropped a bomb on them. Two brothers, ages five and ten were killed instantly. Their two cousins, ages three years and two months, were injured when pieces of flying shrapnel hit their limbs. Less than one month later, on 12 December 2012, a second Antonov bombed their family’s home. All eight members of their family, including the remaining seven children, were forced to flee. On 3 November 2013, a family was in their home in Farandala when it was bombed at approximately 9:00 am, as a result a five-year-old sustained serious injuries to his stomach, causing his intestines to fall out. While they were on the way to the hospital, the hospital was also bombed and the facilities to treat the injured boy were all destroyed. It is also alleged that on 16 October 2014, six children in Heiban village were killed when a bomb hit a house in which seven children between the ages of five and twelve were hiding. Only one child survived. On 7 January 2015, a seven-year-old boy was hit by shrapnel from a SAF fighter jet attack on Abu Lila, South Kordofan. The boy’s right foot was severely damaged. He also had deep cuts on his back and suffered blood loss from other injuries sustained by the shrapnel. Though the child was taken to the nearest clinic, he eventually died from the injuries. Moreover, according to the Complainants, in February 2015 in Umdorein, a family of eight children ran to a foxhole for shelter. As they hid, their foxhole caught on fire, burning one child to death immediately. Four siblings were severely burned and driven to Gidel Hospital, a four-hour drive away. The three-year-old girl died from her injuries within a few days. Her ten-year-old sister died after becoming infected with tetanus, and her eight-year-old brother died after maggots swarmed into his wounds. Only a five-year-old boy survived the attack, and he now suffers from severe PTSD. On 1 May 2016, the Respondent State’s aerial bombardment on Heiban violently killed six children aged between four and twelve years. The Complainants state that between 1 March 2011 and 21 December 2016, 328 cases of children either maimed or killed has been recorded in the Two Areas.
  4. The Complainants allege that as early as 2014, SAF began employing Sukhoi jets to attack civilians. Despite the increased accuracy, improved technology and the ability of the Sukhoi jet to deliver a wider range of destructive weapons, such as FAB 500 parachute bombs with a destructive area of 1,500 square meters and S-8 rockets, civilian causalities increased following their introduction. Drawing from the above instances, the Complainants submit that the high increase in civilian causality, considering the fact that Sukhoi jets are designed to reduce civilian causality, proffes that the Respondent State deliberately targeted civilians.
  5. Following aerial bombing campaigns, according to the Complainants the Government armed groups continued to carry out ground attacks on villages, looting and arbitrary arrests, including of children, and that the Government allowed such attacks to continue with impunity.
  6. It is alleged that the Respondent State has also obstructed humanitarian access including the distribution of foreign food aid, and has failed to reach a permanent solution that will end the conflict and ease the suffering of the children in the Two Areas.
  7. The Complainants state that after seven years of attacks, unexploded ordnance litters the Two Areas, posing an additional and ongoing danger, especially to children. It was alleged that the Respondent State employed anti-personnel mines in clear violation of its obligations under the Convention on the Use, Stockpiling, Production and Transfer of Anti-Personnel Land Mines.
  8. The Complainants allege that bombings intensify during key planting and harvesting seasons, thereby severely impacting civilians’ ability to cultivate crops. Approximately 2.1 million children in Sudan are reportedly malnourished, most of which live in the Two Areas. It is alleged that 1205 people, half of them children, starved to death in Payam Wadaka, Blue Nile Region, from 2011 to 2012.
  9. The Complainants also allege that persistent bombing destroyed hospitals and clinics and forced their closure, leaving only a few functioning health services in all of the Two Areas. It is stated that the Gidel Hospital, which attends to a population of more than half a million people, was targeted by 60 bombs between May and June 2014, including eleven times in a two-day period on 1 and 2 May 2014. When UNICEF and the Ministry of Health launched a measles immunization campaign, the Respondent State prevented them from accessing SPLM-N controlled areas of South Kordofan, resulting in a widespread outbreak. The lack of access to vaccines in the Two Areas has placed approximately 160,000 children under five, at risk of polio and other preventable diseases since 2011.
  10. It is alleged that schools were targeted by bombing campaigns despite the fact that they are far from the frontline and are not used as garrisons by the SPLM-N. In 2015 the bombings destroyed approximately 20 schools in the Nuba Mountains, forcing most remaining schools to operate outdoors and others to cease operations.
  11. The Complainants allege that on 28 February 2012, twenty-two children perished along the road as a group of 4,500 civilians fled conflict that had erupted in Trugi, South Kordofan Region. Between January and June 2016, 7,500 people fled South Kordofan to South Sudan refugee camps, 3,000 of them in May alone. Almost 90% were women and children, and about 10% were children travelling alone.
  12. The Complainants claim that the Respondent State has committed violations, including harassment, arbitrary detention, and torture of those perceived to be supporters of the SPLM/A-N or based on their non-Arab ethnicity. Children experience torture in detention such as beaten with sticks, hoses and gun butts, suspended up-side down from the ceiling and burnt with molten plastic bottles. Minors have been victims of rapes including by the police, Government forces, and Government aligned militias. In other instances, minors witnessed the rape of their family members including their mothers and sisters.
  13. The Complainants narrate that on 25 October 2011, six boys ages twelve to eighteen were stopped by Popular Defense Force (PDF) forces in Dilling and accused of being SPLM-N, likely because they were of Nuban ethnicity. The six children were taken away in different directions. Five boys were killed. A thirteen-year-old child was arrested in Shamshaga village, Abu Kershola, South Kordofan in November 2013 during a raid of the village by SAF, Military Intelligence, National Intelligence Security Service (NISS), PDF and (Rapid Support Forces) RSF personnel. While in detention, the child was beaten with sticks, hoses and gun butts, suspended up-side down from the ceiling and burnt with molten plastic bottles. The child was brought before a military court on charges of undermining the constitutional system and waging war against the state. On 15 May 2012, a nine-year-old boy was reportedly raped by a police officer at the Al Guenis Market outside of Alrois, Blue Nile. A 14-year-old girl from Khor Maganza, Blue Nile was arrested in September 2014 alongside her mother and sister and taken to the military barracks, where she was raped by four different soldiers. On 22 March 2015, a sixteen- year-old girl from Damazin, Blue Nile was raped by a SAF soldier. She reported the incident to Family and Child Protection Police; the Medical Assessment Report confirmed that rape had occurred and that the victim suffered injuries to her head and shoulder. However, the police failed to follow up and the perpetrator was never summoned to the administration unit as promised. On 2 January 2016, five women, including an eleven­year old girl, were raped by the RSF when it attacked the main market in El Abbasiya.

 

  1. The Complaint
  1. On the basis of the above facts, the Complainants submit that the Government of The Sudan has failed to protect the children in the two areas from various forms of harms, hence it has violated the following provisions of the African Charter on the Rights and Welfare of the Child:
  1. Article  1- obligation to give effect to the charter;
  2. Article  5- right to life, survival and development;
  3. Article  11- right to education;
  4. Article  14- right to health and health services;
  5. Article  17- administration of juvenile justice;
  6. Article 22- rights of children during armed conflict and
  7. Article 27- sexual abuse and violence.
  1. Preliminary Examination and Transmission of the Communication
  1. The Secretariat of the ACERWC received the Communication on 26 August 2018.
  2. In accordance with Section III of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Guidelines), the Secretariat of the ACERWC undertook preliminary review of the Communication. The Secretariat reviewed the Communication against the requirements of form and content and noted that the Communication is directed against a State Party to the Charter, as the Respondent State, within whose jurisdictions violations of the rights enshrined in the Charter have allegedly been committed, ratified the ACRWC on the 18 July 2010. The Communication was brought by organizations legally recognized by Member States of the African Union.

It is brought on behalf of children in Blue Nile and South Kordofan regions of the Sudan. It is also duly signed by the Complainants and written in an official language of the Committee. Therefore, as the Communication meets the requirements of form and content, the Secretariat, according to Section IX (2) (I) of the Guidelines, transmitted a copy of the Communication to the respondent State Party.

  1. The Respondent State submitted a written response on the issue of admissibility on 4 December 2018.

V. Consideration of Admissibility

Complainants’ submission on admissibility

  1. The complainants claim that the Communication is compatible with the provisions of the Constitutive Act of the African Union, the African Children’s Charter, and it is in compliance with the requirements set forth in the Revised Guidelines.
  2. The Complainants state that the information contained in the Communication was collected through onsite investigations, including interviews with victims and witnesses. The investigations and interviews were conducted by, inter alia, Project Expedite Justice and local human rights activists who have documented the Respondent State’s aerial and ground attacks. A vast majority of the illustrative incidents referred to in this brief are also corroborated by documentary, photographic, and video evidence, as shown in Annex B of the Complainants’ application document. The information and evidence presented also includes official reports from the UN, foreign governments, and NGOs.
  3. The Complainants provide that local remedies have not been exhausted because of the following reasons: due to the number of victims, domestic remedies would be neither practicable nor desirable, and would be unduly prolonged; domestic remedies for serious human rights abuses are unavailable, ineffective and insufficient in Sudan; the Respondent State fails to remedy the situation despite ample notice; and climate of fear which prevents exhaustion of domestic remedies in the Respondent State.

Respondent State’s submission on admissibility

  1. The Respondent State on its part submits its responses to the allegations and argues that the Communication should be declared inadmissible as it is not in line with the requirements under the African Children’s Charter and the Revised Guidelines.
  2. The Respondent State submits that the Communication is not compatible with the Constitutive Act of the African Union and the African Children’s Charter. The Respondent State argues that it is the duty of the State to maintain security and peace for the citizens of these Two Regions and to maintain the integrity of the country's territory from violent armed rebel groups. The Respondent State further mentions various treaties that recognize the duty of the state to maintain peace and security.
  3. The Respondent state also submits that all the allegations in the Communication are based on second hand information which is gathered only from the media and various websites.
  4. The Respondent State further alleges that the matters in the Communication are still pending before the African Commission on Human and Peoples’ Rights (the Commission) and under other mechanisms. The Respondent State argues that there are 14 United Nations Security Council resolutions, which resulted in the establishment of country monitoring and reporting task forces. Following the establishment of the task force, the Government of the Republic of the Sudan prepared and signed an action plan with the aim of enhancing the overall protection of children in conflicts. Furthermore, a technical committee was formed under the chairmanship of the National Council for Child Welfare and the membership of the concerned bodies. The Respondent State adds that the UN and armed groups in the Two Areas, with the agreement of the Government, signed two actions plans. The Respondent State further argues that the Communication should not be admissible because it creates a situation of conflict with the obligations under Article 103 of the Charter of the United Nations and that if such a complaint is accepted, a conflict of jurisdiction arises between the Security Council and the Committee, as the matter is being addressed by the Security Council.
  5. The Respondent State argues that the justifications given by the Complainants for not exhausting local remedies are unfounded and incorrect. The Sudan has a functional system for the protection of children in armed conflict established by Presidential Decree No. (89) of 2016 operated through a Higher Ministerial Committee represented by all relevant Ministries and Government institutions.
  6. With regard to the allegation that there is an atmosphere of apprehension preventing the exhaustion of national remedies and that Sudanese legislation lacks provisions protecting victims and witnesses, the Respondent State submits the following arguments. The Respondent State refers to article 115 (2) of the Penal Code of 1991 which prohibits and punishes any public authority personnel who lures, threatens or tortures any witness, defendant or opponent to testify and not to give any information in any case. Further reference is made to article 156 of the Criminal Procedure Act of 1991 (Witnesses Protection) which requires the court to prevent any act that affects witnesses or to pose any questions that are irrelevant to the case and to protect them from statements and comments that frighten or harm them. Following the enactment of the Children's Act in 2010, according to the Respondent State, specialized courts and prosecution agencies for the childhood sector are instituted, as well as the Child's Units in the Ministry of the Interior. Public Prosecution, the National Council for Child Welfare, National Assembly and the State Legislature, Ministerial committee established through presidential decree for them protection of children in armed conflicts, ministerial level technical committee. Despite the existence of all these mechanisms, the Respondent State submits that it has not received any formal complaint, notice or report on the occurrence of any of the allegations contained in the current Communication.
  7. The Respondent State also argues that the Communication contains derogatory and inappropriate terms which are not supported by any evidence or legal basis. The Respondent State particularly identifies the following statement by the Complainants derogatory: 'the State has launched a campaign of ground and air attacks by the armed forces led by President Omar al-Bashir, resulted in the killing of a group of infants and children, the emptying of a number of towns and villages and the displacement of more than one million people to camps for displaced persons and refugees'. According to Respondent State the above-mentioned statement is insulting and the inclusion of the name of the President of the Republic in this Complaint, is inappropriate as he is a symbol of the State sovereignty and is an elected President assuming the post after a legitimate election; and who does not exercise any military commanding functions in the Armed Forces or carrying out ground or air campaigns, but exercises his functions consistent with the law and the Constitution as the supreme commander of the armed forces like any other head of state.
  8. The Respondent State further argues that the Communication should be inadmissible as it shows political motivation. It was stated that the political motivation can be inferred from the inclusion of the name of the head of State in the report and some State leaders, and expressions of views that justify the position of the armed movements.

The ACERWC’s Analysis and Decision on Admissibility

  1. The ACERWC notes that the current Communication is submitted pursuant to Article 44 of the African Children’s Charter which gives the Committee the mandate to receive and consider complaints from “any person, group or non-governmental organization recognized by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter’’. In addition to the provisions of the Charter, the Committee analyses on admissibility of the Communication is also based on Section IX of the Revised Guidelines.
  2. In the matter of compatibility with the Charter and the AU Constitutive Act, provided in Section IX (a) of the Revised Guidelines, the Committee reiterates its Decision in

Talibes case[1] and notes that the condition of compatibility with the African Union Constitutive Act and the Charter is met if a Communication alleges violations of the African Children’s Charter. The present Communication alleges violations of various provisions of the Charter and hence fulfils the criteria of compatibility.

  1. Section IX (b) of the Revised Guidelines provides that a Communication must not be exclusively based on media information. The Committee notes that from the text of the Communication and the annexed documents, the Communication is based on reports and official documents of various United Nations agencies and treaty bodies, reports from international non-governmental organizations with observer status at the Committee and international media sources. Hence the Committee notes that the Communication is not exclusively based on media sources.
  2. Section IX (1) (C) of the Revised Guidelines states that for a Communication to be admissible it should not ‘raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter’. The Committee notes that a similar criterion, albeit with slight variations, is applied in other treaty bodies including in the African Commission on Human and Peoples’ Rights. The rational for such criteria is mainly to prevent conflicting judgments and to promote efficiency by ensuring that the same case is not considered by multiple separate bodies. This can be inferred from decisions of various treaty bodies. In its decision, on Mpaka-Nsusu Andre Alphonse v. Zaire, the African Commission on Human and Peoples’ Rights, ‘Considering that the communication had already been referred for consideration to the Human Rights Committee established under the International Covenant on Civil and Political Rights’[2] declared the Communication inadmissible.
  3. The Respondent State argues that the same matter is pending in other international procedures, hence it is important to clarify what is meant by “another international body or procedure” and what is meant by “matters” in the Guidelines. The term “matters” should be understood to include the alleged violations and victims whether or not they are lodging the complaint themselves or through representatives. In the case of Leirvag v. Norway[3] the Committee on Civil and Political Rights noted that the words “the same matter” within the meaning of article 5, paragraph 2 (a), of the Optional Protocol to the ICCPR, must be understood as referring to one and the same claim concerning the same individual, as submitted by that individual, or by some other person empowered to act on his behalf, to the other international body”. Similarly, in the case of Fanali v. Italy, the UN Human Rights Committee while disagreeing with the Respondent State which argued that the same matter had been brought before the European Commission of Human Rights, held that the concept of "the same matter" had to be understood as including the same claim concerning the same individual, submitted by him or someone else who has the standing to act on his behalf before the other international body.[4] In the case of Kayhan v. Turkey, the Committee on the Elimination of Discrimination against Women, taking inspiration from the Human Rights Committee noted that one of the elements for determining whether a case was settled by another body is the identity of the complainant.[5]
  4. In determining weather or not the same matter is pending or settled before another procedure, the ACERWC takes inspiration from the above-mentioned jurisprudence and underscores the importance of the identity of the child/children whose are victims and the rights that are allegedly violated in accordance with the Communication. In the present Communication, the Respondent State claims that the matter is pending before the African Commission on Human and Peoples’ Rights. In this regard, the Committee has got confirmation from the Commission that there is no Communication with similar facts or parties pending at the Commission.
  5. The Respondent State further argues that the issue is under the jurisdiction of the UN Security Council and is being addressed by mechanisms created by the council, and argues that this amounts to a similar matter pending in another procedure in accordance with the Guidelines.
  6. The Committee notes that its mandate pertains to monitoring the implementation of the rights recognized in the Charter. For the Committee to consider any other procedure as considering or having settled a matter, the body or procedure must be able to address in substance the rights given to the child by the African Children’s Charter. Hence, the organ or body in question must have a mandate comparable to the Committee. Furthermore, as the Committee is a quisi-judicial treaty body that monitors the Charter with independence and impartiality, hence the procedure or body in question must be an independent and impartial mechanism free from political influence.
  7. The Committee notes that in a similar Communication in which the Respondent State argued that the matter is already being handled by the UN Security Council, the African Commission raised the importance of the mandate and nature of the organ in question. The Commission noted that “while recognizing the important role played by the United Nations Security Council, the Human Rights Council (and its predecessor, the Commission on Human Rights) and other UN organs and agencies on the Darfur crisis, it is of the firm view that these organs are not the mechanisms envisaged under Article 56(7). The mechanisms envisaged under Article 56(7) of the Charter must be capable of granting declaratory or compensatory relief to victims, not mere political resolutions and declarations.”[6]
  8. In another case, Madoui v. Algeria, the Human Rights Committee noted that the matter was submitted to the United Nations Working Group on Enforced or Involuntary Disappearances. However, it recalled that “extra-conventional procedures or mechanisms established by the Commission on Human Rights or the Economic and Social Council, and whose mandates are to examine and publicly report on human rights situations in specific countries or territories or on major phenomena of human rights violations worldwide, do not constitute procedures of international investigation or settlement” Accordingly, it was ruled that the fact that Menouar Madoui's case was registered before the Working Group on Enforced or Involuntary Disappearances does not make it inadmissible.[7]
  9. In light of the foregoing, the ACERWC notes that the argument of the Respondent State, that the Communication should be inadmissible as the matter is being handled by mechanisms of the UN Security Council, is not tenable. While noting the significant contribution of the UN Security council and other UN and AU agencies in the conflict in the Two Regions, the Committee notes that such mechanisms do not address the rights of the child from a human rights protection angle by finding the State accountable for violations and rendering corresponding recommendations. Hence, the fact the matter is being addressed by the UN Security Council does not preclude the Committee from admitting the Communication under its Guidelines.
  10. Section IX Article 1(d) of the Revised Guidelines further provide that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. As this Committee in the Children of Nubian descendants case[8] noted, “one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level.”
  11. The Committee notes that according to Section IX (1) (d) of the Guidelines Communication must be submitted after having exhausted available and accessible local remedies, unless it is obvious that this procedure is unduly prolonged or ineffective.
  12. The Respondent State, as mentioned above, argues that local remedies are available, accessible and effective in the Sudan and the Complainants should have exhausted the remedies. While the Complainants argue that due to the number of victims, domestic remedies would be neither practicable nor desirable, and would be unduly prolonged; and that domestic remedies for serious human rights abuses are

unavailable, ineffective and insufficient in Sudan, among other things.

  1. The Committee notes that the requirement of exhaustion of local remedies is only applicable if the remedies are available, effective, accessible and not unduly prolonged. The Committee reiterates the jurisprudence of the Commission in this matter and notes that a remedy is considered 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. In the case that involved a grave and massive violation of human rights, the Commission noted that it “has never held the requirement of local remedies to apply literally in case where it is impractical or undesirable for the Complainant to seize the domestic courts in the case of each violation.’[9] The Commission further noted that ‘given the vast and varied scope of the violations alleged” exhaustion of local remedies can be exempted.
  2. In another Communication against Sudan in which it was alleged that tens of thousands of people have allegedly been forcefully evicted and their property destroyed, the Commission ruled that it is impracticable and undesirable to expect these victims to exhaust local remedies. The Commission added that “the scale and nature of the alleged abuses, the number of persons involved ipso facto make local remedies unavailable, ineffective and insufficient”[10] Additionally in its Decision in the Talibes case[11], this ACERWC also noted that when a remedy is impractical due to the number of victims and the practically challenging process of exhausting it, then it is considered unavailable.
  3. The Committee notes that the requirements of availability, accessibility and effectiveness contained in Section IX (1) (d) of the Revised Guidelines, are cumulative. If one of them are not met then the requirement of exhaustion of local remedies can be set aside. In the present Communication, millions of children have allegedly been forcefully displaced, malnourished, died of starvation, killed or maimed as a result of armed conflict. Hence, even though various remedies may be put in place, due to the scale and nature of the alleged violations, it is indeed unreasonable to expect the Complainants to comply with the requirement of exhaustion of local remedies. The large number of victims and the complexities of the violations raise concerns of efficiency; it is wishful thinking to expect local courts to try the cases of millions of children in a reasonable time in keeping with the best interest of the child. The Committee also notes that in a situation of armed conflict in which the Government is involved, as alluded to by the Respondent State, it is unreasonable to expect local remedies to offer a likelihood of success as it relates to alleged violation resulting from the conflict itself, thus rendering the remedies ineffective. Furthermore the delicate situation of instability and insecurity on the ground resulting from armed conflict is an impediment to exhausting local remedies, thus making them in fact unavailable. The Respondent State failed to show the effectiveness and efficiency of the remedies put in place to address violations arising from the conflict. Additionally, a large number of the victims have allegedly been forced to flee to other countries, making domestic remedies inaccessible for them. Hence the Committee notes that local remedies are inaccessible for a large number of the victims, ineffective and unavailable. Furthermore, the rational of the requirement of exhaustion of local remedies is to give States the opportunity to address human rights violations domestically. [12] As can be adduced from various reports, including UN Security Council resolutions, the Respondent State had adequate notice of the impact of the conflict in the Two Areas on the rights of children, and hence had ample opportunity to address the matter.
  4. Section IX (1) (e) of the Revised Guidelines provides that the Communication must be presented within reasonable time after exhaustion of local remedies. The Respondent State argues that the alleged facts and the associated information thereof date back to the years 2011, 2012 and 2013 with the latest referring to the middle of 2016 - more than two years before the submission of the Communication to the Committee, which is considered an unreasonable period of delay. While the Complainants state that the Communication was filed in a timely fashion, as it concerns ongoing violations. They further state that although active hostilities have eased since the most recent ceasefire, the Respondent State’s assault on the Two Areas continues, as demonstrated by their unwillingness to negotiate a peace settlement that will allow people to return to normal life; and that the Respondent State continues to violate children’s rights by its actions and inactions, and the situation of instability, coupled with the Respondent State’s unwillingness to undertake measures to improve the lives of children in the Two Areas,
  5. The Committee notes that the Communication contains alleged violations that took place in events starting from 2011 to July 2018 and certain violations that are allegedly still ongoing. The alleged armed attack of children, as contained in the Communication dates up to 2018, while threats to the lives of children cause by unexploded ordnance, is allegedly ongoing. Furthermore, the consequences of armed conflict such as forced displacement, lack of access to medical services, and destruction of food sources leading to malnutrition are allegedly ongoing violations. Hence the ACERWC notes that most of the allegations and their impacts are ongoing.
  6. Moreover, the Committee refers to Section IX (1) (e) of the Revised Guidelines which states that Communication must be presented within reasonable time after exhaustion of local remedies. The rational for this rule is ensuring legal certainty, if a specific case is settled in national courts, in order to ensure certainty there ought to be a time limit to take the matter to any other forum. The same reasoning is used by the Inter-American Court of Human Rights in the case of Plan de Sanchez Massacre v. Guatemala. The Court noted that rule of brining a case within in a timely manner after exhaustion of local remedies (which is within six months from the date on which the complaining party was notified of the final judgment at the domestic level, in accordance with the Inter-American system) “ensures legal certainty and stability once a decision has been taken” and that it “does not apply when it has been impossible to exhaust internal remedies”.[13] Additionally the African Court on Human and Peoples’ Rights, in the case of Late Nobert Zongo et al V Burkina Faso, noted that the requirement of submission within a reasonable time after exhaustion of local remedies does not apply when an exception to the rule of exhaustion of local remedies is applied. [14]
  7. With regards to reasonable time period for brining Communications that benefit from exceptions to the rule of exhaustion of local remedies, the Inter-American Court has adopted a case by case approach. The Court noted that in situations where local remedies are not exhausted due to permitted exceptional grounds, the timeliness of a Communication should be assessed “considering the circumstances of each specific case”[15]
  8. In the present Communication, as stated above, local remedies are not exhausted and the Communication falls in the exception to this rule. This renders Section IX (1) (e) non-applicable as it related to communications that come after exhaustion of local remedies. Moreover, the Committee notes that Communications should be brought within reasonable time even in situations where local remedies are not available. Communications are based on facts and events that need to be proved by the complainants; hence if a Communications is lodged after unreasonable delay from the time of acts/events allegedly causing violation, it is detrimental to ascertaining the truth. However, the present case deals with a situation of armed conflict that has started in 2011 and continued up to 2018 with most of its elements allegedly still ongoing. Hence the Committee notes that the Communication is brought within a reasonable time.
  9. Section IX (1) (e) of the Revised Guidelines provides that a Communication should not contain disparaging or insulting language. In this regard, the Committee takes inspiration from the Commission in striking balance between freedom of expression and the prohibition of the use of insulting language. While discouraging insulting

 

language, the enjoyment of human rights such as the right to freedom of expression should not be violated.[17] In view of this, the Committee notes that Section IX (1) of the Revised Guidelines should be interpreted looking at whether or not the alleged insulting language is a factual allegation or a derogatory characterization of a Government body or official. Criticism of the actions and policies of government organs or individuals is an integral part of democratic exercise in an open society and necessary in building good governance and hence should not be condemned.

  1. In the present case, the inclusion of the name of the head of state in the Communication as leader of the armed forces of the country is a factual claim that does not contain any derogatory characterization of the head of state. Therefore, Committee notes that the Communication does not contain any language that is disparaging or insulting.
  2. In determining the alleged political nature of the Communication, the Committee notes that the text of the Communication is limited to explaining various facts that are relevant to the alleged violations. As the situation in the Two Areas is characterized by armed conflict, the mere mentioning of the various actors involved in the conflict and the steps taken or lack of actions towards peace building, does not amount to politicization of the Communication.

iv. Decision on Admissibility

  1. On the basis of all the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has fulfilled the admissibility conditions as laid down in the Charter and the Committee’s Guidelines on Consideration of Communication. The Committee will proceed to consider the merits of the Communication.

Done in March 2019

Goitseone Nanikie Nkwe
Chairperson
ACERWC

 

 

 

[1] The Centre for Human Rights (University of Pretoria) and La Rencontre Africanine Pour La Defence Des Droits de L’Hommes Vs the Government of Senegal, ACERWC 2014, Para 18.

[2] Mpaka-Nsusu Andre Alphonse / DRC ACHPR para 2.

[3] Leirvag v. Norway, Comm. 1155/2003, U.N. Doc. A/60/40, Vol. II, at 203 (HRC 2004).

[4] Fanali v. Italy, Comm. 75/1980, U.N. Doc. A/38/40, at 160 (HRC 1983) 7.2

[5] Kayhan v. Turkey, Comm. 8/2005, U.N. Doc. A/61/38, at 69 (2006) Para 7.3

[6] Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v. Sudan

[7] Madoui v. Algeria, Comm. 1495/2006, U.N. Doc. CCPR/C/94/D/1495/2006 (HRC 2008) para 6.2.

[8] The Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) against The Government of Kenya (2011) para 26.

[9] Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union Interafricaine des Droits de l'Homme, Les Temoins de Jehovah / DRC ACHPR para 37.

[10] Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) / Sudan, ACHPR para 100

[11] The Centre for Human Rights (University of Pretoria) and La Rancontre Africanine Pour la Defense des Droits de L’homme versus the Government of Senegal para 23.

[12] Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les

Temoins De Jehova V. DRC

[13] Plan de Sanchez Massacre v. Guatemala IACHR 1999 para 29.

[14] Beneficiaries of Late Norbert Zongo et al. v. Burkina Faso, Af. Ct. H.P.R, 2014.

[15] Plan de Sanchez Massacre v. Guatemala, App. No. 11,763, Int.-Am. Ct. H.R., para. 29.

[17] Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa Vs Zimbabwe 2008 ACHPR para 52.

Author
admin
Judgment date
Case number
Communication 3 of 2016
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF
THE CHILD (ACERWC)

ADMISSIBILITY RULING

Communication No: No. 010/Com/003/2016

Decision on Admissibility No:

Authors: Mr. and Mrs. Elogo Menye and Rev. Daniel Ezo’o Ayo

Represeted by Etoungou Nko’o Law Firm

Against: The State of Cameroon

I. Submission of Communication

I.  The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 22 April 2016 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Mr. and Mrs. Elogo Menye and Rev. Daniel Ezo’o Ayo (the Complainants). According to Section IX (2) (i) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communication Guidelines), the Committee transmitted a copy of the Communication to the respondent State Party. Upon receipt of the Communication, the State Party should have submitted its response within 60 days from the date of the request from the Secretariat. As the Committee did not receive a response from the Government, it decided to proceed considering the admissibility of the Communication without the response from the Respondent State.

II. Summary of Alleged Facts

2.  The complainants allege that Elisabeth Gloria aged 4 and Jacques Le Juste aged 6 died on November 2012 at the Catholic hospital Notre Dame de l’Amour of Logpom in Douala, Cameroon. It is further alleged that the children lost their lives at the hospital because the person in duty was not a doctor and could not diagnose febrile gastroenteritis. The complainants allege that the fact that the children died of the reason stated above has been confirmed by the autopsy report conducted on 8 January 2013.

3.  The complainants allege that the hospital refused to issue documents ascertaining the state of health of the children when they were admitted to the hospital or death certificate. Furthermore it is alleged that the hospital falsely stated that the children arrived at the hospital dead, after being ritually tortured by their parents who are members of a sect.

4.  The complainants allege that after the death of the children, their corpses were sexually defiled as coitus was performed on the remains of Elizabeth Gloria and the remains of Jacques Le Juste was sodomized. These acts were allegedly undertaken as rites of worship that provide access to immeasurable degrees of power.

5.  The complainants, taking the facts into consideration, claim the Republic of Cameroon is in violation of Articles 14 (Health and Health Services) and 16 (Protection Against Child Abuse and Torture) of the Charter by virtue of the sexual acts performed on the bodies of the children after they lost their lives.

III.The African Committee’s Analysis on the Decision of Admissibility

6.  The current Communication is submitted pursuant to Article 44 of the Charter which allows the Committee to receive and consider complaints from “any person, group or non-governmental organization recognised by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter’’. The Complainants, therefore, have identified themselves as Mr. and Mrs. Elogo Menye and Rev. Daniel Ezo’o Ayo represented by the law firm of Etoungou Nko’o Henry Charles. The Complainants also stated that the communication is directed against a State Party to the African Children’s Charter, as the respondent State ratified the Charter on 5 September 1997, and within whose jurisdictions the violations of the rights enshrined in the Charter have allegedly been committed.

7.  As provided under Section II and Section IX of the Revised Communication Guidelines, the admissibility of a communication submitted pursuant to Article 44 is subject to conditions relating to authorship, form and content as considered below:

i. Requirement as to Authorship

8.  Section I Article1(C) of the Revised Communications Guidelines provides that a Communication may be presented by any individual or group of natural or legal persons.

9.  The Committee notes that the Communication explicitly states the names of the authors, Mr. and Mrs. Elogo Menye and Rev Danield Ez’o Ayo. Therefore, the Committee holds the view that the Complainants have complied with Section 1 Article 1(C) of the Revised Communication Guidelines.

ii. Requirements as to Form

10. The Complainants submitted that the present Communication satisfies the requirement as to form as set out in Section 2 (2) of the Revised Communication Guidelines, which states that a Communication can only be considered by the Committee if it is not anonymous, it is written in one of the official languages of the Committee, it concerns a State signatory to the Charter and it is duly signed by the complainant or her/his representatives. In this regard, the Committee notes that the Communication submitted is written in English and French, which are the Official languages of the Committee, and it is made against a State Party to the Charter. Therefore, the Committee concludes that the complainants have complied with the requirement as to form as laid down in the Communication Guidelines.

iii.Requirements as to Content

11. Laying down the conditions of admissibility, Section IX (1) (A) of the Revised Communication Guidelines (Revised Guidelines) prescribes that a Communication has to be compatible with the provisions of the Constitutive Act of the African Union or with the Charter on the Rights and Welfare of the Child. The complainants submitted that this condition is satisfied since the Communication is presented pursuant to Article 44 of the African Children’s Charter.

12. The Communication is brought on behalf of two children who have passed away. The Complainants allege that the Communication concerns violations of the provisions of the Charter. They further argue that the Charter should protect the rights of deceased children.

13. According to Section II (1) of the Revised Guidelines, the Committee considers Communications alleging violations of the rights and welfare of the child pursuant to the Charter. The complainants allege that the Communication concerns violations of articles 14,16 and 44 of the Charter. In this regard the Committee would like to refer to the decision of the Commission in Korvah v Liberia in which it was decided that the case is inadmissible due to the fact that the allegations thereunder did not amount to human rights violation under the African Charter on Human and Peoples’ Rights. [1] Hence, for the purpose of admissibility of this Communication, it is paramount to analyse if the allegations relate to violations of the rights and welfare of the child under the Charter.

14. Taking in to consideration the fact that the Communication was brought mainly on the assertion that acts committed on the deceased children should be considered a violation of their human rights under the Charter, the main issue in assessing the admissibility of the communication is the extent of protection accorded in the Charter as a human rights instrument. In other words, does the Charter protect the right of deceased children? The Committee duly notes that, according to article 2 of the Charter (definition of a child), it is stated that a child is a human being under the age of 18. This provision makes the extent of protection of the Charter clear and excludes deceased children. However, the Complainants request that the Charter should be interpreted to extend its protection to the remains of deceased children. Responding to this request demands an exploration of the issue in relation to foundations of human rights.

15. The Committee recognises that the philosophical foundation of human rights is a contentious matter, however the Universal Declaration of Human Rights (UDHR) and consecutive instruments indicate that the justification for human rights is the inherent dignity of human beings. The Vienna Declaration and Plan of Action (VDPA) on the other hand states that human rights emanate from ‘the dignity and worth inherent in the human person.’[2] The key in these justifications is human beings or the human person; the obvious question with a seemingly obvious answer is what is a human being? Moreover, the less obvious question is where does dignity, which is the source of the inalienable rights bestowed upon the human beings emanate from? Central to being a human being is life, as simple as that appears the question of when does life begin is rather a difficult one on which consensus is very far from being reached. However, the question of when does life end is far less controversial, death is the end of life and thereby the end of being considered a human person.

16. In addition to the theoretical bottlenecks, the Committee notes the practical problems that may arise in attributing human rights to the dead. Dignity, as a foundation for universal human rights, needs a universal standard; that is how rights such as prohibition of cruel and inhumane treatment can be implemented. Human rights bodies develop standards that can be applied universally to ensure the implementation of such rights. However, if remains of humans are to be granted dignity and human rights this will prove to be an impossible task. Remains of humans are treated differently in different cultures, religions and jurisdictions. There are ancient ritual such as mummification, the most common once such as burial and cremation as well as the latest modern once such as Plastination, Eternal-reefs, Freeze-drying and Space Burial. There rituals range from preserving the body in a recognisable form up to mixing the crushed bones of the remains of a human with concrete to make underwater reefs that can be habitat for fish.

17. The Committee notes that jurisprudence dealing with a human rights question in relation to the remains of a human is rare. The European Court of Human Rights (ECHR) in the case of Elberte v Latvia dealt with an issue concerning removal of a body tissue from a corpse, for pharmaceutical use, without the consent of the deceased’s wife according to an agreement approved by the state. The court ruled that the removal is violation of article 3 (prohibition of inhumane and degrading treatment) and article 8 (the right for respect to private and family life) of the European Convention on Human Rights.[3] However, the violations were not of the rights of the deceased but of the rights of the applicant who was the wife of the deceased under the European Convention. The court stated that the applicant’s right to private life was violated and she suffered metal torture ‘due to the intrusive nature of the acts carried out on her deceased husband’s body and the anguish she suffered in that regard as his closest relative.’[4]

18. The Committee recognises that the universality of human rights comes from its definition, it refers to rights human beings possess simply because they are human beings. Human beings have basic life sustaining interests that inspired and helped formulate various groups of rights. Human corpses on the other hand do not have any vital, life sustaining, interests. Human rights are intended and designed to protect human beings and not remains of humans. The treatment of human corpses is at best a question of Ethics and morality, which should be dealt with in private or criminal law. Therefore, the Committee concludes that all the allegations of the Complainants relating to the postmortem treatment of the Children do not relate to the rights and welfare of the child under the Provisions of the Charter.

19. The Committee notes that the Communication is not strictly limited to the abuse of the children’s bodies postmortem, albeit that is the main focus. The facts of the case include scattered allegations of lack of professionalism leading to the death of the children in Catholic Hospital Notre Dame de l’Amour. The Complainants allege that the person on duty was not a doctor but a nurse and was not able to properly diagnose the children, resulting in their death.

20. The Committee notes that at the admissibility stage complainants are not required to provide detailed arguments on the alleged violations, however, in order to comply with the requirement of compatibility stipulated in the provisions of the Charter under Section IX (1) (A) of the Revised Communication Guidelines, the applicants have to establish a prima facie violation of the right. In the same manner, the African Commission has interpreted compatibility with the African Charter on Human and Peoples’ Rights to mean that “the communication must reveal a prima facie violation of the Charter”[5]

21. In the case at hand, the complainants did not adequately explain the facts of the case in light of article 14 of the Charter in order to establish a prima facie violation of the provision. Furthermore, under the allegation of article 14, the Complainants stress on the need to establish jurisprudence on dead children without explaining how it is connected to article 14. Even though article 14 of the Charter provides various protections relating to the right to health of the child, the Complainants fail to establish a prima facie violation of the right in conjunction with the facts of the case in accordance with the provision of the charter and to substantiate such allegation.

22. The Complainants further allege a violation of article 44 of the Charter, which is a procedural provision on the mandate of the Committee to receive Communications. This allegation does not relate to the rights ad welfare of the Child under the Charter. Moreover the facts under this allegation are related to the action taken at the High Court of Wouri in Duala and the cause of death of the Children, which are not related to the general provision of the Charter under article 44 that bestows the mandate to receive Communications to the Committee.

23. Section IX Article 1(d) of the Revised Communication Guidelines provides that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. The rule of exhaustion of local remedies reinforces the subsidiary and complementary relationship of the international system to domestic system. In principle a tribunal like the ACERWC should not assume the place of first instance court or appealate court. It should come in to the picture only as a last resort after the domestic remedies have been exhausted and failed. In the case of Mouvement des Refugies Mauritaniens au Senegal v Senegal, the African Commission stated that failure to provide a proof of attempting to exhaust local remedies available to complainant can render a communication inadmissible. [6]

24. Furthermore, in the case of Anuak Justice V Ethiopia, the African Commission held that ‘’Applicants must indicate that they have had recourse to all domestic remedies to no avail and must supply evidence to that effect. If they were unable to use such remedies, they must explain why.’’ [7] In the case at hand, the complainants have stated that they have taken unsuccessful action at the High Court of Wouri in Duala. Moreover, aside from stating the failure of this one action at the high court, the Complainants did not indicate all the available remedies and the steps taken to exhaust them, nor did they explain why or adduce evidence to that effect.

iv. Decision on Admissibility

25. On the basis of the aforementioned arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has not fulfilled the admissibility conditions as laid down in the Charter and the Committee’s Guidelines on Consideration of Communication. The content of the Communication is outside the mandate of the Committee and beyond the scope of protection given in the Charter. Furthermore the Complainants failed to establish a prima facie violation of the Charter and to exhaust local remedies. The Communication is accordingly declared inadmissible.

     Done in                              

      Prof. Benyam Dawit Mezmur
Chairperson of the African Committee of Experts on the Rights and Welfare of
the Child

 

[1] Korvah v Liberia (2000) AHRLR 140 (ACHPR 1988)

[2] Vienna Declaration and Programme of Action, preamble

[3] Elberte v Latvia, ECHR Para 117

[4] Elberte v Latvia, ECHR Para 142

[5] Mouvement Ivoirien des Droits Humains (MIDH) v Cote d’Ivoire (2008) AHRLR 75 (ACHPR 2008) para 44.

[6] Mouvement des Refugies Mauritaniens au Senegal v Senegal (2003) AHRLR 131 (ACHPR 2003)

[7] See Anuak Justice V Ethiopia (n 2 above) para 50.

Author
admin
Judgment date
Case number
Communication 2 of 2016
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF
THE CHILD (ACERWC)

ADMISSIBILITY RULING

Communication N2: No. 008/Com/002/2016
Decision on Admissibility N2:001/2017

AUTHOR: Sohaib Emad represented by advocate Dalia Lotfy and Samar Emad AGAINST: Government of Arab Republic of Egypt

  1. Submission of Communication
  1. The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 31 March 2016 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Sohaib Emad represented by advocate Dalia Lotfy and Samar Emad, sister of the alleged victim Sohaib Emad (hereinafter “the Complainants”). According to Section IX (2) (I) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communications Guidelines), the Committee transmitted a copy of the Communication to the respondent State Party.
  2. In a letter dated 6 May 2016, the respondent State expressed its views on the proceedings stating that the ACERWC does not have a mandate to proceed with the case because the State party had entered reservations on articles 44 and 45 of the ACRWC. On 30 January 2017, the ACERWC wrote to the State party clarifying and stating that the reservations entered by the state party are not compatible with the purpose and object of the ACRWC. The ACERWC reasoned that the reservations are incompatible with the object and purpose of the treaty, and in particular contrary to article 19(c) of the Vienna Convention, mainly because the provisions subjected to reservation were among the core rationales for the creation of the treaty. Furthermore the Committee explained that placing a reservation on procedural matters of a human rights treaty is generally incompatible with the purpose and objective of the treaty under international human rights law. Following the exchange of this dialogue, the Committee continued with the proceedings of the Communication.
  1. Summary of Alleged Facts
  1. Sohaib Emad is an Egyptian bom on 12 December 1998 and resides in Mansoura City. At the time of his arrest, he was aged 15 and was attending secondary school in Al Terraa Street, in Mansoura City.
  2. The Complainants allege that Sohaib took part in demonstrations on the 2014th anniversary of the 2011 January uprising. Consequently on 11 February 2014, Sohaib Emad was arrested at his house without being informed of any charges and taken to Mansoura Police Station. He remained in the police station for 40 days. He had no access to a lawyer and family members for the first four days. He was allegedly subjected to beating

including kicks and punches in different parts of his body and face to force him to admit to being a member of a gang involved in, burning police vehicles, possession of Molotov cocktails and targeting police officers and academics to kill them. The Complainants allege that, after Mansoura, he was taken to Dekernes Correctional Facilities where he has been held in an inhumane condition until the time of the submission of the communication.

  1. The Complainants allege that Sohaib did not have any physical problem before the detention; however, in April 2014 he started suffering from swelling and pain in his right knee for which he did not receive medical treatment until May. The doctor diagnosed him with Rheumatoid and instructed the detaining authorities to administer anti-inflammatory injections once every 3 weeks. According to the Complainants, on 29 August 2014 after the pain became sharper, Sohaib was transferred to Dekernes Hospital for examination to be diagnosed with dislocated knee cap. The examining doctor advised an urgent operation to his knees but he was not transferred for surgery until 29 September 2014. The Complainant allege that the delay in providing him with prompt surgery coupled with poor detaining conditions and absence of care and attention exacerbated his condition. They allege that Sohaib was not provided with sufficient recovery time following the operation and was transferred from hospital to detention 1.5 days after the operation. It was also alleged that the detaining officers did not allow him to have the right amount of medication and treatment prescribed to him. In December 2015, Sohaib started to complain of pain in both knees. It is alleged that following many requests, medical professionals at the premises examined him and claimed that the rheumatoid moves from right to left and that all he needed is painkillers. On 1st January 2016, his family noticed that he walks with difficulty and both knees are red and swollen. A doctor outside prison advised the family that what prevented right knee from recovering is failure to complete treatment and therapy. Sohaib remains deprived from any treatment bar for the painkillers. His family complained to the public attorney and ministry of interior on March 16 but allegedly to no avail. The Complainants argue that due to the conditions in detention, humidity, overcrowding and sleeping on the floor, his left knee now suffers the same fate.
  1. The African Committee’s Analysis and Decision on Provisional Measure
  1. in their submission, the Complainants requested the Committee to intervene immediately and request the government of Egypt to release the child and provide him with treatment before his condition worsens.
  2. According to section VII (1) of the Revised Communication Guidelines (hereinafter the Revised Guidelines), the Committee may adopt a provisional measure where it considers that one or more Communications submitted to it or pending before it reveal a situation of urgency, serious or massive violations of the African Children’s Charter and the likelihood of irreparable harm to a child or children in violation of the African Children’s Charter.
  3. The African Court of Human and People’s Rights, in the case of The African Commission on Human and Peoples’ Rights Vs. The Republic of Kenya, stated that for a provisional order to be issued there needs to be a situation of ‘extreme gravity and urgency, as well as a risk of irreparable harm’. In the case of John Lazaro Vs. The Republic of Tanzania as well as in the case of the African Commission on Human and Peoples’ Rights Vs. Great Socialist People’s Libyan Arab Jamahiriya, the Court looked in to the gravity and urgency of the violation in conjunction with the eminence of an irreparable harm in contrary to rights recognized in the relevant treaty in order to decide the necessity of a provisional measure.
  4. In the present communication, the Complainants stated that there is an urgent need for the Committee to intervene immediately to stop the violation of the rights under the Charter. However, the Complainant has not stated the likelihood of an irreparable harm on the enjoyment of the rights under the Charter. In determining the need for a provisional measure, the Committee looks in to the gravity and urgency of the situation, and the irreparable nature and imminence of the harm in question.
  5. The Committee has not been provided with adequate evidence that there is a situation of gravity and urgency that can result in an irreparable harm in violation of the rights provided in the Charter. Therefore the Committee does, inspired by the jurisprudence of the Court and in line with its Guidelines, finds that the requirements for issuance of provisional measure are not met.

IV. The African Committee’s Analysis and Decision on Admissibility

11 .The current Communication is submitted pursuant to Article 44 of the African Children’s Charter which allows the Committee to receive and consider complaints from “any person, group or non-governmental organization recognized by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter”. The Complainants, therefore, have submitted that they have the competence to submit the communication based on this provision. The Complainants also stated that the communication is directed against a State Party to the African Children’s Charter, as the respondent State ratified the ACRWC on the 9th of May 2001, and within whose jurisdictions the alleged violations of the rights enshrined in the Charter have allegedly been committed.

  1. As provided under Section IX of the Revised Communication Guidelines, the admissibility of a communication submitted pursuant to Article 44 is, inter alia, subject to the condition of exhaustion of local remedies.

V. Exhaustion of local remedies

  1. Section IX Article 1(d) of the Revised Communication Guidelines provides that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. The issue of exhaustion of local remedies requires detailed consideration. At the outset, under international law a local remedy is understood to be "any domestic legal action that may lead to the resolution of the complaint at the local or national level." As this Committee in Nubian case noted, “one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level.”
  2. International human rights law obliges a person whose rights have been violated to rely on domestic remedies to rectify the wrong before he/she takes the issue to an international tribunal. The idea behind this rule is that the full and effective implementation of international obligations in the field of human rights is intended to boost the enjoyment of human rights and fundamental freedoms at the national level. As the Commission in the case Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les Temoins De Jehova V. DRC noted, “A government should have notice of a human rights violation in order to have the opportunity to remedy such violations before being called before an international body.”
  3. The rule of exhaustion of local remedies is also of a paramount importance since it reinforces the subsidiary and complementary relationship of the international system to domestic system. In principle, neither international tribunal nor regional tribunal like the ACERWC should assume place of first instance court. The fact that international and regional forums like ACERWC should be accessible is undisputable. However, such kind of forums should come in to the picture only as a measure of last resort after the domestic remedies have been exhausted and their failure is apparent.
  4. However, from Section IX Article 1(d) of the Revised Communication Guideline, it can be understood that there are exceptional circumstances in which the requirement of exhaustion of local remedies can be left aside. In applying the

rule of exhaustion of local remedies, this Committee takes into account the circumstances of each case, including the general context in which the formal remedies operate and the personal circumstances of the complainant.

  1. As established by ACERWC, the requirement to exhaust domestic remedies is only with regard to remedies, which are 'available, effective and sufficient'. The question that begs answer in the present communication is whether it can be concluded that local remedies in the Respondent State are not available, ineffective or insufficient based on the allegations made by the complainant.
  2. In the present case, the Complainants did not attempt to exhaust local remedies. The Complainants are arguing that there are no local remedies to be exhausted.
  3. In their submission, the Complainant argued that the State is well aware of the series of serious and massive human rights violations occurring and has taken little or no steps to remedy those violations. According to the Complainants, these impediments render local remedies unavailable to the victims.
  4. The Complainants further submitted that the Egyptian judiciary has been used by the regime as a tool of repression against many citizens including the vulnerable. Noting that recently a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime 2 years ago and on the basis of other reported incidents, the complainant argued that there is no functioning judicial system in the respondent state.
  5. Although the Complainant argued that the State is well aware of the series of serious and massive human rights violations occurring in the respondent state, they did not adduce any evidence to prove this allegation. A mere allegation cannot be held to be adequate enough to the respondent state responsible. From the submission of the Complainants, it cannot be concluded that the state is well aware about the wrongs done to the victim. In this regard, the Committee is not convinced by the submission of the Complainants.
  6. On the other hand, as outlined above, the Complainants alleged that there is no functioning judiciary in the respondent state as it has been used by the regime as a tool of repression. Apart from casting vilification on the function of judiciary, the Complainants have not buttressed their argument. In other words, they could not prove sufficiently that this allegation is well founded. In the view of the Committee, the Complainants are simply casting doubts about the effectiveness/existence of the domestic remedies. In the case A V Australia,^ has been noted that “mere doubts about the effectiveness of local remedies or the prospect of financial costs involved did not absolve an author from pursuing such remedies.”

1 See the UN Human Right Committee A v. Australia, Communication No. 560/1993, para 6.4.

  1. In the case Anuak Justice V Ethiopia,[2] the African Commission held that “it is incumbent on every complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of local remedies.” The Commission further underscored that it is not enough for the complainant to cast aspersion on the ability of the domestic remedies of the State due to isolated or past incidences. For instance, the fact that a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime as the Complainants mentioned in their submission, cannot render the whole judiciary dysfunctional as it is one of past incidences. The fact that one court gives such kind of decision does not mean all courts in the respondent state will have the same stand on the same issue. An error committed by the lower court can be corrected by the higher court. In any case the functionality of judiciary of a given state cannot be judged by an isolated incidence or the error committed by one court.

iv. Decision on Admissibility

  1. On the basis of all the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the author has not fulfilled the admissibility conditions as laid down in the Charter and the Committee’s Guidelines on Consideration of Communication; it fails to comply with the requirement of exhaustion of local remedies. The Communication is accordingly declared inadmissible.

Done in May 2017

Benyam Dawit Mezmur
Chairperson of the African Committee of Experts on the Rights and Welfare
of the Child

 

[2] See Anuak Justice Council V Ethiopia Communication no. 299/2005, para 50.

Author
admin
Judgment date
Case number
Communication 1 of 2016
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Imprisoned/detained people
Admissibility

THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD (ACERWC)

Ruling on Admissibility

Communication No: 009/Com/001/201

Decision on Admissibility No: 002/2017

 

 

AUTHOR: Ahmed Bassiouny represented by advocate Dalia Lotfy and Amal

 

AGAINST: Government of Arab Republic of Egypt

 

I.   Submission of Communication

1. The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a communication dated 31 March 2016 pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Ahmed Bassiouny represented by advocate Dalia Lotfy and Amal, mother of the child (hereinafter “the Complainants"). According to Section IX (2) (I) of the Revised Guidelines on Consideration of Communications by the ACERWC (the Revised Communications Guidelines), the Committee transmitted a copy of the Communication to the respondent State Party.

II.  Summary of Alleged Facts

2. Ahmed Bassiouny is an Egyptian citizen born on 16th April 1998 and resides in Al Raml Area in Alexandria. At the time of his arrest, he was aged 15 and was attending primary school at Al Raml School in Alexandria.

3. According to the Complainants, Ahmed was born with partial paralysis in his right arm (known as Erg’s palsy) and regularly attended physiotherapy and occupational therapy sessions to improve his sensation and motor abilities. He further suffers from very poor immune system, Favism and G6PD and poor vision and wear spectacles at all times.

4. The complainants allege that on 1st January 2014, Ahmed was on his way to his friend’s house in Jankleez Area in Alexandria, to borrow some notes, when the police forces threw tear gas on a protest nearby his friend’s house; Ahmed covered his face with his clothes and ran away from the tear gas; and fifteen minutes later, after his arrival to his friend’s house, the state security police came to the building calling on the family to hand the child who just entered the building. They allegedly threatened to break the door of his friend’s flat if the "the terrorist was not handed to them” as stated by the forces.

5. Upon entering the flat, the police allegedly grabbed Ahmed by his clothes, slapped him on his face, breaking his glasses before covering his face with his shirt while dragging him to the floor and pushing him to a police van. The Complainants allege that Ahmed was being verbally and physically assaulted at the time of arrest and continued during the journey to the police station.

6. Ahmed was allegedly then taken to Ramal 1 Police Station in a room with adult criminals. The following day he allegedly faced prosecution and was accused of killing a police officer and two aides, possessing Molotov and disturbing the public peace. The lawyer attending the prosecution avers that he saw injuries to the arms of the child. Furthermore, the child complained of being beaten at different parts of his body, subjected to electricity in his paralyzed arm despite informing the officers of his disability and cold water was poured on him to confess to the killing the officer and the aides. His lawyer alleges that the child’s clothes were torn and smelt drugs and that he looked lethargic. His lawyer’s request of medical referral to the forensic doctor for examination was allegedly denied.

7. On January 26, the child was transferred to Kom Al Dekka Correctional Facility until 16th March 2014 when he was transferred to Merg Youth Centre. The Complainants allege that he was held with adult common criminals who smoked drugs ail the time. The adult criminals also allegedly took the money and the food provided to the child by their families during visitation.

8. The Complainant allege that immediately before Ahmed’s transfer to the Youth Detention, the news of ill treatment and torture of child prisoners held in the Centre, aged between the age of 12 and 17, came to light. The prisoners were initially held in the Youth Detention Centre and due to the overcrowdings of the center; the authorities transferred them from to Kom Al Dekka Correctional Facility. Upon return, they allege about the inhumane treatment and the sexual abuse they faced in the Detention Youth Centre. As a result, the Children in Kom Al Dekka, including Ahmed, allegedly felt terrified of the transfer and entered into a hunger strike to protest their transfer and refused to leave their rooms.

9. The news of abuses in the Youth Centre was leaked to the media and the authorities postponed the transfer to avoid further media coverage. According to the Complainants, at the same time the common criminals started assaulting the children and threatening to cut their parts with razors to force them out of the room.

10.  According to the complainants, on 2nd September 2015, Alexandria Criminal Court sentenced the child to 5 years imprisonment and 5 years under surveillance. No dates or evidences were provided by the prosecution to prove the child’s involvement in killing the officer and his aides or possession of firearms. Despite many requests made to the judge by defense team, the child was denied to call families of the deceased officers who were to attest in his favor. Contrary to the Egyptian Child Act, the child was sentenced in an adult court rather than Court of Juvenile. The family allege that the other 3 defendants were acquitted and that Ahmed suffered from psychological shock after the sentence, refusing to eat and confined himself to his room.

11.  The child alleges that after his sentencing he was transferred to Section C, where convicted children are held. In section C, children are allegedly kept in the same rooms with adult criminals convicted of murder, rape and sale of body part. According to the child, these criminals keep razors in their rooms and continually threaten the child with the razorblades with knowledge of the officers. The child alleges that a criminal convicted of sale of bodies used a razorblade against another child badly injuring him. In response to the shocking incident, Ahmed told the head of the Centre that he will inform his parents who will file complaints and reach the media and international community to expose the violations committed against the children in both the Centre and Correctional Facilities.

12.  The head of the Centre allegedly offered to transfer Ahmed to Section A, where he will be held in more humane conditions and separate from adult criminals, if he remains silent about the incident and does not report it to his parents, which Ahmed did at the time.

13.  According to the Complainants, since birth, the child suffers from partial paralysis to his right arm affecting his motor skills. Before detention, he attended weekly physiotherapy and occupational therapy to improve his motor skills. It is alleged that he was deprived of the sessions throughout his detention due to the absence of a specialist in the Correctional Facility and the Youth Centre and the refusal of the authorities to transfer him weekly to the hospital for sessions.

14.  The Complainants further allege that Ahmed missed 3 final exams at school and had to retake eight subjects as a result. The Centre allegedly made it difficult for the child to pursue his studies as he has to be transferred from Cairo to Alexandria for his exams which resulted in him missing the 3 final exams.

III.The African Committee’s Analysis and Decision on Admissibility

15.  The current Communication is submitted pursuant to Article 44 of the African Children’s Charter which allows the Committee to receive and consider complaints from “any person, group or non-governmental organization recognized by the Organization of the African Unity, Member States, or the United Nations on matters covered by the Charter”. The Complainants, therefore, have submitted that they have the competence to submit the communication on the basis of this provision. The Complainants also stated that the Communication is directed against a State Party to the African Children’s Charter, as the respondent State ratified the ACRWC on the 9th of may 2001, and within whose jurisdictions the alleged violations of the rights enshrined in the Charter have allegedly been committed.

16.  As provided under Section II and Section IX of the Revised Communication Guidelines, the admissibility of a communication submitted pursuant to Article 44 is subject to conditions relating to authorship, form and content as considered below.

i.          Requirement as to Authorship

15.  The Committee notes that the Communication explicitly states the names of the authors. Therefore, this communication satisfies the requirement as to authorship.

ii.         Requirements as to Form

17.            The Complainants submitted that the present communication satisfies the requirement as to form as set out in Section 2 (2) of the Revised Communication Guidelines, which states that a Communication can only be considered by the Committee if it is not anonymous, it is written in one of the official languages of the Committee, it concerns a State signatory to the Charter and it is duly signed by the complainant or her/his representatives. In this regard, the Committee is of the view that the Author of the Communication has been identified and relevant details of the Communication have been provided to the Committee. The Communication is written in English which is one of the Official languages of the Committee and it is made against a State Party to the Charter. Therefore, the Committee concludes that the Complainants have complied with the requirement as to form as laid down in the Communication Guidelines.

iii.      Requirements as to Content

18.    Section IX (1) (a) of the Revised Communications Guidelines prescribes that a Communication has to be compatible with the provisions of the Constitutive Act of the African Union or with the African Children’s Charter. The Complainants submitted that this condition is satisfied since the Communication is presented pursuant to Article 44 of the African Children’s Charter in order to strengthen the observance of the ACRWC’s provisions in Egypt. The Committee notes that the Communication is compatible with the Constitutive Act of the AU and the Charter as it concerns allegations of violations of the provisions of the Charter. The Committee recognises the African Commission on Human and Peoples’ Rights’ approach that for a communication to be compatible with African Charter on Human and Peoples’ Right, a communication must allege prima facie violations of the Charter.[1] Drawing inspiration from the jurisprudence of the Commission, the Committee also requires communications to show prima facie violation of provisions of the African Children’s Charter in order to be accepted by the Committee. Therefore, it is the Committee’s position that the Communication meets the requirements under Section IX (1) (a) of the Revised Communications Guidelines.

19.    The Committee also notes that the Communication is presented in a professional, polite and respectful language, making it compatible with Section IX (1) (F) of the Revised Communication Guidelines.

20.    Pursuant to Section IX (1) (b) of the Revised Communication Guidelines, the Communication should not be exclusively based on information circulated by the media. The Committee learns that the factual basis of the present Communication rests on the information gathered from the child and his parent. Hence the Committee is satisfied that this criterion is met by the Communication.

21.    In compliance with Section IX Article 1(C) of the Communication Guidelines, the Complainants submitted that this communication does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter. As far as the investigation of Committee goes, the Communication under consideration does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter. Consequently, the Committee holds

that the Communication has complied with the requirement in Section IX Article 1(C) of the Revised Communication Guidelines.

22. Section IX Article 1(d) of the Revised Communication Guidelines provides that the author of a communication should exhaust all available and accessible local remedies before it brings the matter to the Committee, unless it is obvious that this procedure is unduly prolonged or ineffective. The issue of exhaustion of local remedies requires detailed consideration. At the outset, under international law a local remedy is understood to be "any domestic legal action that may lead to the resolution of the complaint at the local or national level."[2] As this Committee in the children of Nubian descent case noted, “one of the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level.”[3]

23. In general, international human rights law obliges a person whose rights have been violated to rely on domestic remedies to rectify the wrong before he/she takes the issue to an international tribunal. The idea behind this rule is that the full and effective implementation of international obligations in the field of human rights is intended to boost the enjoyment of human rights and fundamental freedoms at the national level. As the Commission in the case Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les Temoins De Jehova V. DRC noted, “A government should have notice of a human rights violation in order to have the opportunity to remedy such violations before being called before an international body.”[4] The same stand was reflected by the Commission in the case Rencontre africaine pour la defence des droits De L’Hommes (RADDHO) V Zambia.[5]

24. The rule of exhaustion of local remedies is also of a paramount importance since it reinforces the subsidiary and complementary relationship of the international system to domestic system. In principle, neither international tribunal nor regional tribunal (like the ACERWC) should assume place of first instance court. The fact that regional forums like ACERWC should be accessible is undisputable. However, such kind of forums should come in to picture not as a first resort but after the domestic remedies have been exhausted.

25. In their submission, the Complainants argued that the State is well aware of the series of serious and massive Human Rights violations occurring in it and

has taken little or no steps to remedy those violations. According to the complainants, these impediments render local remedies unavailable to the victims.

25. The Complainants further submitted that the Egyptian judiciary has in general been used by the regime as a tool of repression against many citizens including the vulnerable. Noting that recently a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime 2 years ago and there are other reported incidents, the Complainant argued that there is no functioning judicial system in the respondent State. From the submission of the complainants, it can be discerned that they did not approach any court to expose the fact that the victim faced torture and to rectify the wrong done to the victim.

26. From Section IX Article 1(d) of the Revised Communication Guideline, it can be understood that there are exceptional circumstances in which the requirement of exhaustion of local remedies can be left aside. In applying the rule of exhaustion of local remedies, this Committee takes into account the circumstances of each case, including the general context in which the formal remedies operate and the personal circumstances of the complainant.

27. In the present case, there is no indication that the Complainants approached the judicial system with a view to attempt to exhaust local remedies. The complainants are arguing that there are no local remedies to be exhausted.

28. As the ACERWC indicated in its previous decisions, the requirement to exhaust domestic remedies is only with regard to remedies that are 'available, effective and sufficient’.[6] The main question that begs a detailed look in the present communication is whether it can be concluded that local remedies in the Respondent State are not available, ineffective or insufficient based on the allegations made by the complainant.

29. Although the Complainants argued that the State is well aware of the series of serious and massive human rights violations occurring in the respondent State, they did not adduce any evidence to prove this allegation. For any allegation to be considered by the Committee, it should be backed by the evidence that can prove it. A mere allegation cannot hold responsible the respondent State. From the submission of the Complainants, it cannot be concluded that the state is well aware about the wrongs done to the victim. In this regard, the Committee is not convinced by the submission of the complainants.

30. On the other hand, the Complainants alleged that there is no functioning judiciary in the respondent State as it has been used by the regime as a tool of repression. Apart from casting vilification on the function of judiciary, the Complainants have not buttressed their argument by concrete evidence. In other words, they could not prove sufficiently that this allegation is well-founded. In the view of the Committee, the Complainants are simply casting doubts about the effectiveness/existence of the domestic remedies. In the case A V Australia, the Human Right Committee noted that “mere doubts about the effectiveness of local remedies or the prospect of financial costs involved did not absolve an author from pursuing such remedies.”[7]

31. In the case Anuak Justice V Ethiopia, the African Commission held that “it is incumbent on every complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of local remedies.”[8] The Commission further underscored that it is not enough for the Complainant to cast aspersion on the ability of the domestic remedies of the State due to isolated or past incidences.[9]For instance, the indication that a Court has sentenced a four years old child to life imprisonment for allegedly committing a crime as the Complainants mentioned in their submission, cannot be read to render and characterize the whole judiciary dysfunctional. In other words, the fact that one court gives such kind of decision does not mean all courts in the respondent State will have the same stand on the same issue. In any case the functionality of judiciary of a given state cannot be judged by an isolated incidence or the error or violation committed by one court.

32. In their submission, the Complainants mentioned that on 2nd September 2015 Alexandria Criminal Court sentenced the victim to 5 years imprisonment and 5 years under surveillance. Following this sentence, the Complainants have not attempted to use the appellate channel to change the sentence. As the African Commission noted, “If a remedy has the slightest likelihood to be effective, the applicant must pursue it.” The Complainants are arguing that local remedies are not likely to be successful, without exerting an effort to test them. Looking at the situation in perspective, it is difficult to conclude, before trying the appellate channel, and/or on the basis of a seemingly one case, that the respondent State’s judiciary is not functioning in the case at hand.

33. In general, the Complainants have not presented conclusive evidence that demonstrates the judiciary of the respondent State is not functioning, and that local remedies are not available, effective, and sufficient. Hence the Committee is not convinced that this communication should benefit from exceptions of rule of exhaustion of local remedies.

IV. Decision on Admissibility

34. On the basis of the above arguments and analysis, the African Committee of Experts on the Rights and Welfare of the Child notes and concludes that the Communication submitted by the authors has not fulfilled all the admissibility conditions as laid down in the Committee’s Revised Guidelines on Consideration of Communication; and it is accordingly declared inadmissible.

Done in May 2017

Benyam Dawit Mezmur

Chairperson of the African Committee of Experts on the Rights and
Welfare of the Child

 

[1] See African Commission on Human and Peoples' Rights, Frederick Korvah v. Liberia, Communication No. 1/88 (1988) para 6 and Ligue Camerounaise des Droits de I'Homme V. Cameroon communication no. 65/92

[2] See Anuak Justice Council V Ethiopia Communication no. 299/2005, para 50.

[3] See Institute for Human Right and Development in Africa (IHRDA and other on behalf of Children of Nubian descent v. KenyaCommunication No. Com/002/2009, para 26.

See African Commission, Free Legal Assistance Group, Lawyers Committee for Human Right, Union Interafricaine Des Droits De L’Hommes, Les Temoins De Jehova V. DRC Communication no. 25/89, 47/90, 56/91, 100/93 (Joined) para 36.

[5] See African Commission, Rencontre africaine pour la defence des droits De L’Hommes (RADDHO) V Zambia Communication no. 71/92 para 10.

[6] See IHRDA and other on behalf of Children of Nubian descent v. Kenya (n 3 above) para 28.

[7] See the UN Human Right Committee A v. Australia, Communication No. 560/1993, para 6.4.

[8] See Anuak Justice V Ethiopia (n 2 above) para 58.

[9] See Anuak Justice V Ethiopia (n 7 above).