Wakilii

Asemie v the Kingdom of Lesotho (Communication 435-12)

African Commission on Human and Peoples' Rights · [2014] ACHPR 8 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to African Commission on Human and Peoples' Rights alleging violations of the African Charter following revocation of citizenship and passport
Decision
Communication declared inadmissible

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the communication was inadmissible for failure to exhaust local remedies under Article 56(5) of the African Charter. The complainant had unimpeded access to Lesotho courts and successfully initiated multiple proceedings from abroad. That the government successfully appealed court orders in the complainant's favour did not constitute denial of justice, as the same avenue of appeal was equally open to the complainant. The language used by the complainant was not disparaging under Article 56(3).

Outcome

Communication declared inadmissible

Facts

The complainant, an Ethiopian national, fled Ethiopia in 2003 and was granted refugee status in Lesotho in 2005. He acquired businesses and was granted Basotho citizenship in 2010 after revoking his Ethiopian citizenship. The Principal Secretary of Home Affairs did not invite him to the swearing-in ceremony. He successfully challenged this before the High Court on 13 September 2012, which ordered the Minister of Home Affairs to swear him in. While he was in South Africa meeting UNHCR officials in October 2012, the Ministry of Home Affairs successfully appealed the High Court decision. The Court of Appeal overturned the High Court judgment on 19 October 2012, finding that the complainant had lied about his date of entry into Lesotho. Following the Court of Appeal judgment, Lesotho revoked the complainant's citizenship and passport and refused him entry. The complainant initiated multiple court proceedings from South Africa through his lawyers, some of which were successful but later successfully appealed by the government. His wife and two children initially remained in Lesotho. The complainant eventually returned to Ethiopia in March 2013 after obtaining pardon from the Ethiopian government.

Issues

  1. Whether the communication was written in disparaging or insulting language contrary to Article 56(3) of the African Charter.
  2. Whether the complainant exhausted all available local remedies in Lesotho as required by Article 56(5) of the African Charter before approaching the African Commission.

Orders

  • Communication declared inadmissible for failure to comply with Article 56(5) of the Charter.
  • Parties to be notified of the decision in accordance with Rule 107(3) of the Commission's Rules of Procedure.

Rules and key headnotes

African Commission — Admissibility — Disparaging Language
Language used by a complainant is not disparaging or insulting under Article 56(3) of the African Charter merely because inferences can be drawn from it which reflect negatively on the state and its institutions, where the language conveys the complainant's perception of facts and the complainant presents evidence to justify that perception. A fine balance must be drawn between the proscription of disparaging language and the need to facilitate free expression.
African Commission — Admissibility — Exhaustion of Local Remedies — Availability
Local remedies required to be exhausted under Article 56(5) of the African Charter must be available, effective and sufficient to redress the alleged violation. The remedies must be sought from instances of a judicial nature, must not be discretionary, and the complainant must take the case to the court of highest jurisdiction in the respondent state before approaching the Commission.
African Commission — Admissibility — Exhaustion of Local Remedies — Forced Departure Distinguished
A complainant who travels abroad voluntarily and is subsequently denied re-entry following due process of law has not been forced to flee in the same manner as one expelled without due process. Where a complainant had unimpeded access to domestic courts and was able to initiate multiple proceedings from abroad through lawyers, local remedies remain available and the complainant cannot claim that the respondent state made it impossible to access those remedies.
African Commission — Admissibility — Exhaustion of Local Remedies — Unsuccessful Litigation
That a respondent state successfully appeals against court orders favourable to a complainant does not amount to a denial of justice, because the same avenue of appeal is equally open to the complainant. Unsuccessful domestic litigation cannot in all cases be construed as evidence of lack of local remedies. A communication is premature where available, effective and sufficient remedies remain pending before domestic courts at the time the communication is submitted to the Commission.

Legislation cited (22)

  • African Charter on Human and Peoples' Rights Art.2
  • African Charter on Human and Peoples' Rights Art.5
  • African Charter on Human and Peoples' Rights Art.7
  • African Charter on Human and Peoples' Rights Art.14
  • African Charter on Human and Peoples' Rights Art.17
  • African Charter on Human and Peoples' Rights Art.18
  • African Charter on Human and Peoples' Rights Art.55
  • African Charter on Human and Peoples' Rights Art.56
  • African Charter on Human and Peoples' Rights Art.56(1)
  • African Charter on Human and Peoples' Rights Art.56(2)
  • African Charter on Human and Peoples' Rights Art.56(3)
  • African Charter on Human and Peoples' Rights Art.56(4)
  • African Charter on Human and Peoples' Rights Art.56(5)
  • African Charter on Human and Peoples' Rights Art.56(6)
  • African Charter on Human and Peoples' Rights Art.56(7)
  • Rules of Procedure of the African Commission on Human and Peoples' Rights Rule 98(1)
  • Rules of Procedure of the African Commission on Human and Peoples' Rights Rule 98(2)
  • Rules of Procedure of the African Commission on Human and Peoples' Rights Rule 105
  • Rules of Procedure of the African Commission on Human and Peoples' Rights Rule 107(3)
  • Rules of Procedure of the African Commission on Human and Peoples' Rights Rule 113(2)
  • Lesotho Refugee Act
  • South Africa Immigration Act 13/2002

Cases cited (11)

  • Dawda Jawara v The Gambia (Communication 147/95, 149/96)
  • Samuel T Muzerengwa and 11 others v Zimbabwe (Communication 306/05)
  • Ilesanmi v Nigeria (Communication 268/03)
  • Ligue Camerounaise des Droits de l'Homme v Cameroon (Communication 65/19)
  • Amnesty International & RADDHO v Zambia (Communication 71/92)
  • Zimbabwe Human Rights NGO Forum v Zimbabwe
  • Article 19 v. Eritrea (Communication 275/2003)
  • Zimbabwe Lawyers for Human Right v Zimbabwe (Communication 293/04)
  • Anuak Justice Council v Ethiopia (Communication 299/06)
  • Egyptian Initiative for Personal Rights & Interights v Egypt (Communication 334/06)
  • Echaria v Kenya (Communication 375/09)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Asemie v the Kingdom of Lesotho (Communication 435-12) [2014] ACHPR 8 (29 July 2014)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.