Wakilii

Koutche v Republic of Benin (Application No. 020-2019)

African Court on Human and Peoples' Rights · [2021] AfCHPR 43 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights alleging human rights violations by the Republic of Benin
Decision
Application declared inadmissible for non-exhaustion of domestic remedies

Observed later treatment

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Holding

The African Court on Human and Peoples' Rights held that the application was inadmissible for failure to exhaust domestic remedies. The Court found that the applicant had not raised the same substantive complaints before the Constitutional Court as those brought before the African Court, had not awaited the conclusion of first-instance proceedings before CRIET, had not demonstrated undue prolongation of administrative appeals, and had not shown that the political context constituted an obstacle to exhausting remedies. The Court dismissed the objection based on disparaging language, finding the applicant's statements protected by freedom of expression.

Outcome

Application declared inadmissible for non-exhaustion of domestic remedies

Facts

Komi Koutche, a Beninese politician residing in the United States and seeking political asylum in Spain, was implicated in two audit reports published in 2017 concerning financial mismanagement in the cotton sector and the National Microfinance Fund. He filed lawsuits before the Constitutional Court alleging violation of his right to be heard. The Constitutional Court found a violation regarding the cotton sector audit but rejected his appeal concerning the National Microfinance Fund audit. Criminal proceedings were initiated against Koutche before the Court for the Repression of Economic Crimes and Terrorism (CRIET) for embezzlement of public funds. His passport was cancelled in August 2018, and he was arrested in Madrid in December 2018 pursuant to an INTERPOL warrant. Spain rejected Benin's extradition request and released Koutche in January 2019. At the time of filing the application before the African Court, criminal proceedings before CRIET remained pending, and Koutche had been convicted in absentia to twenty years imprisonment and a fine of 500 million CFA francs, with an appeal pending before the CRIET Appeals Chamber.

Issues

  1. Whether the application is admissible despite the use of allegedly disparaging language.
  2. Whether the applicant exhausted local remedies before the Constitutional Court of Benin.
  3. Whether the applicant exhausted local remedies before the Court for the Repression of Economic Crimes and Terrorism (CRIET).
  4. Whether the applicant exhausted local remedies before the administrative courts of Benin.
  5. Whether the applicant exhausted local remedies before the Appeals Chambers of CRIET and the Judicial Chamber of the Supreme Court.
  6. Whether the political context in Benin excuses the applicant from exhausting domestic remedies.

Orders

  • Dismisses the objections to jurisdiction.
  • Declares that it has jurisdiction.
  • Upholds the objection to the admissibility of the Application on the ground of non-exhaustion of domestic remedies.
  • Decides that the Application is inadmissible.
  • Orders each Party to bear its own costs.

Rules and key headnotes

Admissibility — Disparaging Language — Freedom of Expression
Language in an application is not disparaging within the meaning of Article 56 of the African Charter and Rule 50 of the Rules of Court unless it is intentionally aimed at violating the dignity, reputation, and integrity of a judicial official or body and is used in a manner calculated to undermine public confidence in the administration of justice, and this condition must be examined in light of the right to freedom of expression under Article 9(2) of the Charter.
Admissibility — Disparaging Language — Tolerance of Criticism by Public Officials
Government institutions and public officials cannot be immune from criticisms, however offensive, and a high degree of tolerance is expected when such criticisms are made by opposition political figures in situations with political implications.
Admissibility — Exhaustion of Local Remedies — Substantive Identity of Claims
The requirement to exhaust local remedies entails that issues brought before an international court for determination must be, on the merits, the same as those that have been brought before the highest domestic court with jurisdiction in the matter; it is not sufficient that the applicant merely seized that court.
Admissibility — Exhaustion of Local Remedies — Ordinary, Available, and Effective Remedies
The requirement of exhaustion of local remedies applies only to ordinary, available, and effective judicial remedies, and the ratio legis of this requirement lies in the need to afford States, through their domestic courts, the opportunity to prevent or redress the violations alleged against them.
Admissibility — Exhaustion of Local Remedies — Undue Prolongation
Where domestic proceedings are pending, an international court cannot be seized of the matter except if the proceedings are unduly prolonged, and the assessment of whether the duration is normal or abnormal must be made on a case-by-case basis, taking into account the complexity of the case, the conduct of the parties, and whether the judicial authorities have shown passivity or clear negligence.
Admissibility — Exhaustion of Local Remedies — Burden on Applicant
It is incumbent on the complainant to take all necessary steps to exhaust, or at least attempt the exhaustion of, local remedies, and it is not enough for the complainant to cast aspersions on the ability of the domestic remedies of the State without providing sufficient information to prove inefficiency.
Admissibility — Exhaustion of Local Remedies — Political Context
The prosecution of a politician is not per se a ground for exemption from the requirement to exhaust local remedies, but where the political context has significant negative impact on the functioning of the courts, the court will take into account, on a case-by-case basis, the scope of the implications of that context in deciding whether to exempt the applicant from exhausting local remedies, examining material obstacles that have deprived the applicant of remedies.

Legislation cited (14)

  • African Charter on Human and Peoples' Rights Article 7(1)
  • African Charter on Human and Peoples' Rights Article 56
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 6(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 34(6)
  • Universal Declaration of Human Rights Article 10
  • International Covenant on Civil and Political Rights Article 14
  • International Covenant on Civil and Political Rights Article 14(5)
  • International Covenant on Civil and Political Rights Article 12
  • International Covenant on Civil and Political Rights Article 25
  • Beninese Constitution Article 17
  • Beninese Constitution Article 126
  • Beninese Constitution Article 129
  • Benin Code of Criminal Procedure Article 206

Cases cited (18)

  • Hongue Eric Noudehouenou v Republic of Benin (Application No. 003/2020)
  • Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa v. Zimbabwe, Comm. 293/04 (May 22, 2008)
  • Lohé Issa Konaté v Burkina Faso
  • Boubacar Sissoko and 74 Others v Republic of Mali (Application No. 037/2017)
  • Ingabire Victoire Umuhoza v Republic of Rwanda
  • Sébastian Germain Ajavon v Republic of Benin (Application No. 013/2017)
  • Alex Thomas v United Republic of Tanzania
  • Wilfried Onyango Nganyi and 9 Others v United Republic of Tanzania
  • African Commission on Human and Peoples' Rights v Republic of Kenya
  • Houngue Eric Noudehouenou v Republic of Benin (Application No. 003/2020)
  • Yacouba Traoré v Republic of Mali (Application No. 010/2018)
  • Peter Joseph Chacha v Tanzania
  • Diakité Couple v Republic of Mali
  • Mariam Kouma and Ousmane Diabaté v Republic of Mali
  • Beneficiaries of the late Norbert Zongo and Others v Burkina Faso
  • ECHR, Baumann v. France, Application No. 33592/96, 22 May 2001, § 47
  • Rutabingwa Chrysanthe v Republic of Rwanda
  • Collectif des anciens travailleurs ALS v Republic of Mali (Application No. 042/2015)

Full judgment

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

Koutche v Republic of Benin (Application No. 020-2019) [2021] AfCHPR 43 (25 June 2021)
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.