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Kenyan Section of the International Commission of Jurists and Another v Kenya (Communication 263 of 2002)

African Commission on Human and Peoples' Rights · [2004] ACHPR 61 · 2004 Communication Inadmissible AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from judicial review proceedings that threatened Kenya's constitutional review process
Decision
Communication declared inadmissible; complainants directed to exhaust local remedies in Kenyan courts

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission declared the communication inadmissible for non-exhaustion of local remedies under Article 56.5 of the African Charter. The Commission held that complainants must exhaust or attempt to exhaust domestic remedies and cannot bypass them based on apprehension about judicial independence without ample evidence. The Commission found that the complainants had obtained standing in the domestic proceedings and should pursue available local remedies before approaching the Commission.

Outcome

Communication declared inadmissible; complainants directed to exhaust local remedies in Kenyan courts

Facts

Three Kenyan civil society organisations submitted memoranda to the Constitution of Kenya Review Commission (CKRC) regarding judicial reform. The CKRC's draft report reflected widespread public concern about corruption and lack of independence in the Kenyan judiciary. Two judges of the Kenyan courts then sought judicial review to quash the CKRC's recommendations concerning the judiciary. The High Court granted leave and issued staying orders preventing the CKRC from discussing judicial provisions. The complainants alleged this threatened the constitutional review process and violated the African Charter. They brought a communication to the African Commission without exhausting domestic remedies, arguing the Kenyan judiciary lacked independence. The complainants later obtained standing as interested parties in the domestic judicial review proceedings.

Issues

  1. Whether the complainants exhausted local remedies before bringing the communication to the African Commission.
  2. Whether the judicial review proceedings instituted by Kenyan judges against the Constitution of Kenya Review Commission violated the African Charter.
  3. Whether the complainants could obtain a fair hearing in Kenyan courts given the alleged lack of judicial independence.

Orders

  • Communication declared inadmissible for non-exhaustion of local remedies in conformity with Article 56.5 of the African Charter.

Rules and key headnotes

Human Rights — Admissibility of Communications — Exhaustion of Local Remedies — African Charter Article 56.5
A communication to the African Commission on Human and Peoples' Rights is inadmissible where the complainant has not exhausted local remedies, unless it is obvious that such remedies would be unduly prolonged or ineffective.
Human Rights — Exhaustion of Local Remedies — Burden of Proof — Complainant's Duty
It is incumbent on complainants to take all necessary steps to exhaust, or at least attempt the exhaustion of, local remedies; mere doubts about the effectiveness of local remedies or apprehension about lack of judicial independence do not absolve complainants from pursuing such remedies.
Human Rights — Role of the African Commission — Relationship with Domestic Courts
The African Commission will not admit a case based on a complainant's apprehension about perceived lack of independence of a country's domestic institutions where the complainant has not adduced ample evidence to demonstrate the validity of such apprehensions and has not tested the principle before domestic courts.
Administrative Law — Judicial Review — Standing — Interested Parties
Where complainants obtain locus standi as interested parties in domestic judicial review proceedings, they must exhaust the local remedies available through those proceedings before approaching an international tribunal.

Legislation cited (9)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 7(1)(a)
  • African Charter on Human and Peoples' Rights Article 9(2)
  • African Charter on Human and Peoples' Rights Article 46
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 56.5
  • Constitution of Kenya Review Act Chapter 3A
  • Constitution of Kenya Section 79

Cases cited (3)

  • Sana Dumbaya v The Gambia (Communication 127 of 1994)
  • A v Australia (Communication 560 of 1993)
  • Legal Resources Foundation v Zambia (Communication 211 of 1998)

Full judgment

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

Kenyan Section of the International Commission of Jurists and Another v Kenya (Communication 263 of 2002) [2004] ACHPR 61 (7 December 2004)
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.