Wakilii

Tivane v Mozambique (Communication 434 of 2012)

African Commission on Human and Peoples' Rights · [2017] ACHPR 139 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging violations of the African Charter arising from property expropriation and subsequent judicial proceedings
Decision
Communication dismissed as inadmissible without consideration of merits

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 exhaust domestic remedies under Article 56(5) of the African Charter. Although the Commission found it had temporal jurisdiction over the continuing violation of property rights and the alleged fair trial violation, the applicant failed to pursue available remedies before the Constitutional Council of Mozambique regarding the constitutionality of laws granting special prerogative powers to the Attorney General.

Outcome

Communication dismissed as inadmissible without consideration of merits

Facts

In 1975, Filimao Pedro Tivane purchased a house in Maputo, Mozambique. In January 1976, he was arrested without warrant and detained in re-education camps until 1988. During his detention, the State took possession of his house and leased it to the USSR Embassy. After his release, Tivane was initially granted permission to buy back the house in 1989, but the State reversed this decision in 1992 and registered the property in its own name. In 2007, Tivane filed a civil suit and obtained a favourable judgment in 2008 declaring the State's registration null and void. When Tivane sought execution of this judgment, the Attorney General used special prerogative powers under Law no. 22/07 to apply to the Supreme Court, which annulled the lower court's decision in 2009 without Tivane being summoned. Tivane's subsequent application to stay the Supreme Court's decision and refer the matter to the Constitutional Council was dismissed. He then filed a Communication with the African Commission alleging violations of his rights to property and fair trial.

Issues

  1. Whether the Communication satisfies the admissibility requirements under Article 56 of the African Charter on Human and Peoples' Rights.
  2. Whether the Commission has competence ratione temporis over alleged violations that occurred before Mozambique ratified the African Charter.
  3. Whether the alleged violation of the right to property constitutes a continuing violation falling within the Commission's temporal jurisdiction.
  4. Whether domestic remedies were exhausted before the Communication was submitted to the Commission.

Orders

  • Communication declared inadmissible for failure to comply with Article 56(5) of the African Charter.
  • Decision to be notified to the parties in accordance with Rule 107(3) of the Commission's Rules of Procedure.

Rules and key headnotes

Human Rights — Admissibility — Exhaustion of Domestic Remedies — Constitutional Council Jurisdiction
Where a constitutional court or council has jurisdiction to review the constitutionality of laws and its decisions are binding and not subject to appeal, an applicant must exhaust remedies before that body before approaching an international human rights forum, unless the applicant demonstrates that such remedies were unavailable or ineffective.
Human Rights — Temporal Jurisdiction — Continuing Violations — Property Rights
An international human rights body may exercise temporal jurisdiction over violations that began before a State's ratification of a treaty where the violation constitutes a continuing violation that persists after ratification, such as where a victim remains unable to return to property that was expropriated before ratification.
Human Rights — Admissibility — Article 56 Requirements — Cumulative Application
The seven requirements for admissibility under Article 56 of the African Charter on Human and Peoples' Rights apply conjunctively and cumulatively, and failure to satisfy any single requirement renders a communication inadmissible.
Human Rights — Exhaustion of Remedies — Highest Court Requirement
To meet the exhaustion of domestic remedies requirement under international law, a victim must have obtained a final decision from the highest court to which recourse is available in the domestic legal system.
Human Rights — Admissibility — Reasonable Time — Six Months
A communication submitted to the African Commission six months after the exhaustion of domestic remedies satisfies the requirement under Article 56(6) of the African Charter that communications be submitted within a reasonable period.

Legislation cited (19)

  • African Charter on Human and Peoples' Rights Article 7(1)(c)
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • 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)
  • Decree-Law no. 5/76 Article 12
  • Law no. 22/07
  • Decree-Law no. 1/05
  • Vienna Convention on the Law of Treaties
  • Constitution of Mozambique Article 241(1)
  • Constitution of Mozambique Article 244(1)(a)
  • Constitution of Mozambique Article 248
  • Organic Law of the Constitutional Council, Law № 06/2006 Article 6

Cases cited (11)

  • FIDH & Others v Senegal (Communication 304 of 2005)
  • Communication 25/89, 47/90, 56/91, 100/93
  • Communication 60/91
  • Communication 159/1996
  • Communication 276/03
  • Communication 292/04
  • Lawyers of Human Rights v Swaziland (Communication 251 of 2002)
  • Moiwana Community v Suriname (Inter-American Court of Human Rights, 15 June 2005)
  • Communications 54/91 - Malawi African Association v. Mauritania; 61/91 - Amnesty International v. Mauritania; 98/93 - Ms. Sarr Diop, Union Interafricaine des Droits de l'Homme and RADDHO v. Mauritania; 164/97, 196/97 - Collectif des Veuves et Ayants-droit v. Mauritania; 210/98 Association Mauritanienne des Droits de l'Homme v. Mauritania
  • Campira v Mozambique (Communication 460 of 2013)
  • Tsikata v Ghana (Communication 322 of 2006)

Full judgment

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Tivane v Mozambique (Communication 434 of 2012) [2017] ACHPR 139 (23 October 2017)
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.