Wakilii

Mkandawire v Republic of Malawi (Application No. 003-2011)

African Court on Human and Peoples' Rights · [2013] AfCHPR 38 · 2013 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 following dismissal from employment and exhaustion of domestic remedies in Malawi
Decision
Application struck out for failure to exhaust local remedies

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court on Human and Peoples' Rights held by a majority of seven to three that the application was inadmissible for failure to exhaust local remedies. The Court found that the applicant had not pursued available judicial remedies in Malawi, specifically failing to argue his appeal before the High Court against the Industrial Relations Court judgment and failing to properly plead his claim for wrongful dismissal based on breach of natural justice as a separate cause of action. The Court struck out the application.

Outcome

Application struck out for failure to exhaust local remedies

Facts

The applicant, a Congolese-born Malawian national, was employed as a French lecturer at the University of Malawi from December 1998. Shortly after commencing work in July 1999, students complained about his teaching competence. He refused to attend a meeting to discuss the complaints and was charged with insubordination. After observation by two lecturers who submitted an adverse report in November 1999, he was dismissed on 2 December 1999. The applicant pursued remedies through multiple Malawian courts including the High Court, Supreme Court of Appeal, Constitutional Court, and Industrial Relations Court over several years. The High Court found wrongful dismissal but declined reinstatement and awarded three months' pay in lieu of notice. The Supreme Court of Appeal confirmed the payment but dismissed damages claims, holding the applicant should have pleaded breach of natural justice as a separate cause of action. The Industrial Relations Court found the dismissal fair and that the applicant had been given opportunity to be heard.

Issues

  1. Whether the African Court has jurisdiction ratione temporis over alleged violations that occurred before the Protocol entered into force for the Respondent State.
  2. Whether the application is admissible where the applicant withdrew a communication before the African Commission before filing with the Court.
  3. Whether the applicant exhausted local remedies as required by Article 6(2) of the Protocol read with Article 56(5) of the Charter.
  4. Whether the applicant's dismissal violated his right to have his cause heard under Article 7 of the African Charter.
  5. Whether the applicant's dismissal violated his right to work under equitable and satisfactory conditions under Article 15 of the African Charter.

Orders

  • Application declared not admissible.
  • Application struck out.
  • Each party to bear its own costs.

Rules and key headnotes

Human Rights — Admissibility — Exhaustion of Local Remedies — Judicial Remedies
The requirement to exhaust local remedies refers primarily to judicial remedies as these are the most effective means of redressing human rights violations, and an applicant must pursue all available and effective judicial remedies before approaching a regional human rights court.
Human Rights — Admissibility — Exhaustion of Local Remedies — Proper Pleading
Where a domestic court of final instance has determined that a claim was not properly pleaded and should have been stated as a separate cause of action, the applicant has not exhausted local remedies if they failed to re-plead the claim correctly and pursue it through the available judicial hierarchy.
Human Rights — Jurisdiction — Temporal Jurisdiction — Continuing Violations
A regional human rights court may have temporal jurisdiction over alleged violations that began before the court's founding instrument entered into force for the respondent state where the applicant establishes that the violations are continuing in nature.
Human Rights — Admissibility — Withdrawal from Commission — Forum Shopping
An applicant who formally withdraws a communication from the African Commission on Human and Peoples' Rights before lodging an application with the African Court does not render the application inadmissible on grounds of forum shopping, provided the withdrawal is confirmed by the Commission.
Administrative Law — Admissibility — Court's Duty to Examine — Proprio Motu
A court has the power and duty to consider the admissibility of an application even where the respondent state has not raised a preliminary objection, and failure by the respondent to raise inadmissibility does not render admissible an application that is otherwise inadmissible.

Legislation cited (10)

  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 15
  • 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 22
  • 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)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • Employment Act 2000 (Malawi) s.57(2)
  • Constitution of Malawi s.31
  • Constitution of Malawi s.43

Cases cited (3)

  • Tanganyika Law Society and Others v United Republic of Tanzania (Applications No. 009/2011 and 011/2011)
  • Mariblanca Staff Wilson and Oscar E. Ceville v. Panama, Case 12.303, Report No. 89/03, Inter-Am. C.H.R., OEA/Ser.L/V/II.118 Doc. 70 rev. 2 at 531 (2003)
  • Beneficiaries of late Norbert Zongo and al. v. Burkina Faso

Full judgment

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

Mkandawire v Republic of Malawi (Application No. 003-2011) [2013] AfCHPR 38 (21 June 2013)
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.