Wakilii

Ngoge and Another v Republic of Kenya (Communication 516-15)

African Commission on Human and Peoples' Rights · [2023] ACHPR 4 · 2023 Communication Dismissed as 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 dismissal of domestic proceedings without consideration of merits
Decision
Communication dismissed as inadmissible

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission on Human and Peoples' Rights declared the Communication inadmissible for failure to comply with Articles 56(3), 56(5), and 56(6) of the African Charter. The Commission found that the Complainant used disparaging and insulting language against the Respondent State and its judiciary, failed to exhaust available local remedies, and submitted the Communication prematurely before exhausting domestic judicial processes.

Outcome

Communication dismissed as inadmissible

Facts

Peter Ngoge, a Kenyan advocate, filed a Communication on his own behalf and on behalf of his client Everlyene Ekea, alleging violations of the African Charter arising from domestic proceedings in Kenya. Ngoge alleged that in January 2009, Justice Nyamu dismissed a Chamber Summons without examining its merits, and in June 2010, Justice Wendoh dismissed a Constitutional Petition without considering the constitutional and human rights issues raised. Ngoge claimed that Civil Appeal No. 37 of 2009 had not been listed for hearing and that the Registrar refused to supply certified copies of proceedings to enable him to lodge an appeal against Justice Wendoh's ruling. Ngoge alleged that these actions violated multiple provisions of the African Charter and were part of a systematic effort by the Kenyan judiciary to deny him and his clients access to justice. He submitted that local remedies were unavailable and ineffective due to official mistrust and lack of professional respect between himself and the Kenyan judiciary, citing a report by the Vetting of Judges and Magistrates Board which acknowledged corruption challenges in the judiciary and a breakdown of trust between Ngoge and judicial officers.

Issues

  1. Whether the Communication complies with the admissibility requirements under Article 56 of the African Charter on Human and Peoples' Rights.
  2. Whether the language used by the Complainant in his submissions constitutes disparaging or insulting language contrary to Article 56(3) of the African Charter.
  3. Whether the Complainant exhausted local remedies as required by Article 56(5) of the African Charter.
  4. Whether the Communication was submitted within a reasonable time after exhaustion of local remedies as required by Article 56(6) of the African Charter.

Orders

  • Communication declared inadmissible for non-compliance with Articles 56(3), 56(5) and 56(6) of the African Charter on Human and Peoples' Rights.
  • Notice of the decision to be given to the parties in accordance with Rule 107(3) of the Rules of Procedure 2010.

Rules and key headnotes

African Charter — Admissibility Requirements — Article 56(3) — Disparaging or Insulting Language
For language in a Communication to be deemed disparaging or insulting under Article 56(3) of the African Charter, it must clearly go beyond advancing a complaint and intend to bring an institution, officer, or the State into disrepute, reaching a level which exceeds the bounds of normal criticism and is aimed at unlawfully and intentionally violating the dignity, reputation, or integrity of a judicial officer or body in a manner calculated to cast aspersions on and weaken public confidence in the administration of justice.
African Charter — Admissibility — Exhaustion of Local Remedies — Article 56(5)
A remedy is considered available if the petitioner can pursue it without impediment, effective if it offers a prospect of success, and sufficient if it is capable of redressing the complaint. The existence of a remedy must be sufficient and certain not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness. A complainant must exhaust local judicial remedies unless they can demonstrate with substantive evidence that such remedies are unavailable, insufficient, or ineffective.
African Charter — Admissibility — Exhaustion of Local Remedies — General Allegations of Judicial Corruption
A general statement as to the non-independence of the judiciary or allegations of corruption in the judicial system, even when supported by reports from vetting bodies, does not relieve complainants of their obligation to exhaust local remedies. It is not sufficient for a complainant to merely argue that domestic remedies are unlikely to succeed without having attempted to pursue them to their logical conclusion.
African Charter — Admissibility — Reasonable Time — Article 56(6)
Where a complainant has failed to exhaust domestic remedies, it follows that the Communication will also be considered as not having satisfied the conditions of Article 56(6) of the African Charter for having been submitted prematurely, as the requirement to submit within a reasonable time presupposes that local remedies have first been exhausted.
African Charter — Admissibility Requirements — Cumulative Nature
The admissibility requirements under Article 56 of the African Charter are cumulative, meaning that if any one of them is absent, the Communication will be declared inadmissible.

Legislation cited (12)

  • African Charter on Human and Peoples' Rights Articles 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24
  • African Charter on Human and Peoples' Rights Article 56(1)
  • African Charter on Human and Peoples' Rights Article 56(2)
  • African Charter on Human and Peoples' Rights Article 56(3)
  • African Charter on Human and Peoples' Rights Article 56(4)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • African Charter on Human and Peoples' Rights Article 56(6)
  • African Charter on Human and Peoples' Rights Article 56(7)
  • African Charter on Human and Peoples' Rights Article 9(2)
  • Constitutive Act of the African Union Articles 3(h) and 4(m)
  • Constitution of the Republic of Kenya (2010) sections 163-165
  • Vetting of Judges and Magistrates Act (Kenya) Act No.2 2011

Cases cited (33)

  • Jawara v The Gambia (Communications 147/95, 149/96)
  • Rashid Odhiambo and Others v Haco Industries Limited (Civil Appeal No. 110 of 2001)
  • Michael Majuru v Zimbabwe (Communication 308/05)
  • Article 19 v Eritrea (Communication 275/2003)
  • Mouvement ivoirien des droits humains v Cote d'Ivoire (Communication 246/02)
  • Obert Chinhamo v Zimbabwe (Communication 307/05)
  • Samuel T. Muzerengwa and 110 Others v Zimbabwe (Communication 306/05)
  • Kevin Mgwanga Gunme and Others v Cameroon (Communication 266/03)
  • Mohammed Abdullah Saleh Al-Asad v Republic of Djibouti (Communication 383/10)
  • Law Society of Zimbabwe and Others v Zimbabwe (Communication 321/2006)
  • Spilg and Mack and Ditshwanelo v Botswana (Communication 277/2003)
  • Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013)
  • Peter Joseph Chacha v United Republic of Tanzania (Application No. 003/2012)
  • Alex Thomas v Republic of Tanzania (Application No. 005/2013)
  • Nixon Nyikadzino v Zimbabwe (Communication 340/07)
  • Interights and Ditshwanelo v Republic of Botswana (Communication 319/06)
  • Institute for Human Rights and Development in Africa v Angola (Communication 292/04)
  • Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Zimbabwe (Communication 284/03)
  • Ilesanmi v Nigeria (Communication 268/03)
  • Ligue Camerounaise des Droits de l'Homme v Cameroon (Communication 65/92)
  • Rehak v Czech Republic (Application No. 67208/01)
  • Apinis v Latvia
  • Eyob B. Asemie v Kingdom of Lesotho (Communication 435/12)
  • Constitutional Rights Project and Others v Nigeria (Communications 140/94, 141/94, 145/94)
  • Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa v Zimbabwe (Communication 293/04)
  • Human Rights Council and Others v Ethiopia (Communication 445/13)
  • Judges and Magistrates Vetting Board and Others v Centre for Human Rights and Democracy and Others (Petition No. 13A, 14, 15 of 2013)
  • Interights and Others v Mauritania (Communication 242/01)
  • Alfred B. Cudjoe v Ghana (Communication 221/98)
  • Free Legal Assistance Group and Others v Zaire (Communications 25/89, 47/90, 56/91, 100/93)
  • Recontre Africaine pour la Defense des Droits de l'Homme v Zambia (Communication 71/92)
  • Anuak Justice Council v Ethiopia (Communication 299/05)
  • Givemore Chari v Republic of Zimbabwe (Communication 351/2007)

Full judgment

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Ngoge and Another v Republic of Kenya (Communication 516-15) [2023] ACHPR 4 (7 March 2023)
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.