Wakilii

Ngoge v Republic of Kenya ; Ngoge and Another v Republic of Kenya (Communication 515-15; Communication 527-15)

African Commission on Human and Peoples' Rights · [2023] ACHPR 14 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Joint communications before the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from domestic judicial proceedings in Kenya
Decision
Communications declared inadmissible

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission declared the communications 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 that exceeded the bounds of normal criticism. The Commission further held that the complainant failed to exhaust local remedies, as general allegations of judicial corruption and the findings of a Vetting Board did not relieve him of the obligation to pursue available judicial remedies to their logical conclusion. The communications were also found to have been submitted prematurely.

Outcome

Communications declared inadmissible

Facts

Peter Odiwuor Ngoge, a Kenyan advocate, submitted two communications to the African Commission alleging violations of the African Charter arising from domestic judicial proceedings in Kenya. Communication 515/15 concerned unpaid legal fees following taxation of bills of costs and subsequent appeals. Communication 527/15 concerned a fatal accident claim in which the complainant alleged that court files had disappeared and that the defendant had operated a passenger vehicle without insurance. The complainant alleged that the Kenyan judiciary, acting at the behest of the state, had systematically discriminated against him and denied him access to justice through delays, missing files, and judicial recusals. He claimed this was retaliation for exposing wrongdoing during 2003 parliamentary elections. The complainant relied on findings of a Judges and Magistrates Vetting Board that acknowledged corruption as a challenge to the judiciary and noted a breakdown of trust between the complainant and the judiciary.

Issues

  1. Whether the communications satisfy the admissibility requirements under Article 56 of the African Charter on Human and Peoples' Rights.
  2. Whether the language used by the complainant constitutes disparaging or insulting language under 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 communications were submitted within a reasonable time under Article 56(6) of the African Charter.

Orders

  • Communication declared inadmissible for failure to comply with Article 56(3), (5) and (6) of the African Charter.

Rules and key headnotes

African Charter — Admissibility Requirements — Disparaging or Insulting Language
Under Article 56(3) of the African Charter, communications must not be written in disparaging or insulting language directed against the state or its institutions. While complainants may use strong language and express emotions about their circumstances, this must not transform into ad hominem attacks on the state or its institutions that exceed the bounds of normal criticism. Language is considered insulting when it reaches a level which exceeds the bounds of normal criticism and is used in a manner calculated to cast aspersions on and weaken public confidence in the administration of justice.
African Charter — Admissibility Requirements — Exhaustion of Local Remedies
Article 56(5) of the African Charter requires exhaustion of local remedies unless they are unavailable, ineffective, or unduly prolonged. A remedy is 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. General statements about non-independence of the judiciary do 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 made an attempt to pursue them.
African Charter — Admissibility Requirements — Reasonable Time for Submission
Under Article 56(6) of the African Charter, communications must be submitted within a reasonable time from exhaustion of local remedies or from the date the Commission is seized with the matter. Where a complainant has failed to exhaust domestic remedies, the communication will also be considered as not having satisfied Article 56(6) for having been submitted prematurely.

Legislation cited (26)

  • 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 7
  • African Charter on Human and Peoples' Rights Article 8
  • African Charter on Human and Peoples' Rights Article 9(2)
  • African Charter on Human and Peoples' Rights Article 14
  • 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 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 the Republic of Kenya 2010 s.163
  • Constitution of the Republic of Kenya 2010 s.164
  • Constitution of the Republic of Kenya 2010 s.165
  • Advocates Act s.51(2)
  • Law Reform Act
  • Fatal Accidents Act
  • Insurance Act
  • Vetting of Judges and Magistrates Act No.2 of 2011

Cases cited (15)

  • Jawara v Gambia
  • Institute for Human Rights and Development in Africa v. Republic of Angola, Communication 155/96
  • Social and Economic Rights Action Center for Economic and Social Rights v. Federal Republic of Nigeria
  • Ilesanmi v Nigeria, Communication 268/03
  • Ligue Camerounaise des Droits de l'Homme v Cameroon
  • Zimbabwe Lawyers for Human Rights & Associated Newspapers v Zimbabwe
  • Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe, Communication 293/04
  • Eyob B. Asemie v the Kingdom of Lesotho, Communication 435/12
  • Apinis v Latvia, App 46549/06
  • Association Mauritanienne des droits de l'Homme v Mauritania, Communication 242/01
  • Alfred B. Cudjoe v Ghana, Communication 221/98
  • Anuak Justice Council v Ethiopia, Communication 299/05
  • Nixon Nyikadzino v Zimbabwe, Communication 340/07
  • Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others [2014] (Petition No.13A, 14, 15) (2013)
  • Givemore Chari (represented by Gabriel Shumba) v Zimbabwe, Communication 351/07

Full judgment

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Ngoge v Republic of Kenya ; Ngoge and Another v Republic of Kenya (Communication 515-15; Communication 527-15) [2023] ACHPR 14 (23 May 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.