Wakilii

Ngoge and Others v Republic of Kenya (Communication 524 of 2015)

African Commission on Human and Peoples' Rights · [2018] ACHPR 120 · 2018 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 dismissal of constitutional petition in Kenyan courts
Decision
Communication declared inadmissible

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 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 Kenyan judiciary, failed to exhaust available local remedies, and did not submit the Communication within a reasonable period. The Commission held that allegations of mistrust and lack of professional respect with the judiciary, without substantive evidence, were insufficient to establish unavailability or ineffectiveness of domestic remedies.

Outcome

Communication declared inadmissible

Facts

The Complainant, a Kenyan advocate, filed a constitutional petition in the High Court of Kenya on 8 June 2012 on behalf of himself and three clients alleging violations of fundamental human rights. The petition concerned the arrest and detention of one client, allegedly excessive bail, and attempted execution of committal orders. Justice Ngugi postponed the hearing on 25 September 2012 to allow the Attorney-General and respondents to file responses. The Complainant alleged he was not properly served with subsequent mention notices for hearings on 2 November, 5 November, and 19 November 2012. On 3 December 2012, Justice Ngugi dismissed the petition with costs for want of prosecution. The Complainant's motion to set aside the dismissal was itself dismissed on 17 October 2013. The Complainant then lodged three appeals and an application in the Court of Appeal in November 2013, which remained pending when this Communication was filed with the African Commission on 15 December 2014. The Complainant alleged that the Kenyan judiciary systematically denied him and his clients access to effective remedies through various means including deliberate delays, dismissals without hearing merits, and retribution for his human rights advocacy work.

Issues

  1. Whether the Communication satisfies the admissibility requirements under Article 56 of the African Charter on Human and Peoples' Rights.
  2. Whether the Communication contains disparaging or insulting language directed at the Respondent State and its institutions contrary to Article 56(3).
  3. Whether the Complainant exhausted local remedies or whether an exception to the exhaustion requirement applies under Article 56(5).
  4. Whether the Communication was submitted within a reasonable period from exhaustion of domestic remedies under Article 56(6).

Orders

  • Communication declared inadmissible for failure to comply with Articles 56(3), 56(5) and 56(6) of the African Charter.
  • Decision notified to the parties in accordance with Rule 107(3) of the Rules of Procedure.

Rules and key headnotes

Admissibility of Communications — Disparaging or Insulting Language — Article 56(3) African Charter
A Communication fails to satisfy Article 56(3) of the African Charter where the complainant characterizes judicial officers as 'recalcitrant' and alleges that the judiciary seeks 'revenge' and 'retribution', as such language undermines the dignity, reputation and integrity of judicial officers and the judiciary as an institution and would weaken public confidence in the judicial institution.
Admissibility — Exhaustion of Local Remedies — Burden of Proof
The burden of proof is on the complainant to provide evidence as to why they could not exhaust local remedies. It is not enough for the complainant to cast aspersion on the ability of the domestic remedies of the State due to isolated or past incidences. The complainant must show that remedies do not fulfil the criteria of availability, effectiveness and sufficiency in practice, not merely in the opinion of the victim or legal representative.
Admissibility — Exhaustion of Local Remedies — Available, Effective and Sufficient Remedies
For domestic remedies to be exhausted under Article 56(5) of the African Charter, they must be available, effective and sufficient. A remedy is considered available if the petitioner can pursue it without impediment; it is deemed effective if it offers a prospect of success; and it is found sufficient if it is capable of redressing the complaint.
Admissibility — Undue Prolongation of Domestic Remedies
Where a complainant alleges that domestic remedies have been unduly prolonged as an exception to the exhaustion requirement, the Commission takes into consideration the circumstances of each case, including the general context in which the formal remedies operate and the personal circumstances of the applicant. A one-year delay in the Court of Appeal, in the context of an eight-year backlog in that court, does not constitute undue prolongation.
Admissibility — Reasonable Period for Submission — Article 56(6)
Where a matter has not been concluded before domestic courts and local remedies have not been exhausted, time has not begun to run such as to afford the complainant the opportunity to bring a complaint, and Article 56(6) of the African Charter requiring submission within a reasonable period is not met.

Legislation cited (21)

  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 8
  • African Charter on Human and Peoples' Rights Article 12
  • African Charter on Human and Peoples' Rights Article 15
  • African Charter on Human and Peoples' Rights Article 19
  • African Charter on Human and Peoples' Rights Article 22
  • African Charter on Human and Peoples' Rights Article 24
  • African Charter on Human and Peoples' Rights Article 55
  • 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)
  • Constitution of Kenya Article 22

Cases cited (15)

  • Sir Dawda K. Jawara v The Gambia (Communication 147/95-149/96)
  • Ilesanmi v Nigeria (Communication 268/03)
  • Zimbabwe Lawyers for Human Rights v Zimbabwe (Communication 293/04)
  • Eyob B. Asemie v Kingdom of Lesotho (Communication 435/12)
  • Ligue Camerounaise des Droits de l'Homme v Cameroon (Communication 65/92)
  • FIDH & Others v Senegal (Communication 304/2005)
  • Communication 25/89, 47/90, 56/91, 100/93
  • Southern Africa Human Rights NGO Network & Others v Tanzania (Communication 333/06)
  • Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe (Communication 284/03)
  • Anuak Justice Council v Ethiopia (Communication 299/05)
  • Front for the Liberation of the State of Cabinda v Republic of Angola (Communication 328/06)
  • Peter Odiwuor Ngoge v Republic of Kenya (Communication 432/12)
  • Cudjoe v Ghana (Communication 221/98)
  • Tsatsu Tsikata v Republic of Ghana (Communication 322/2006)
  • Communication 104/94, 109/94 and 126/94 Center for the Independence of Judges and Lawyers and Others

Full judgment

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Ngoge and Others v Republic of Kenya (Communication 524 of 2015) [2018] ACHPR 120 (18 October 2018)
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.