Wakilii

Tuweni and Others (Represented by REDRESS) v Republic of Kenya (Communication 778-22)

African Commission on Human and Peoples' Rights · [2023] ACHPR 1 · 2023 Application Dismissed 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 alleged detention, rendition, and torture in Kenya, Somalia, and Ethiopia
Decision
Communication inadmissible 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 Commission declared the communication inadmissible for failure to exhaust local remedies under Article 56(5) and (6) of the African Charter. The First Complainant did not pursue an available appeal to the Kenyan Court of Appeal despite having no evidence that the appeal lacked prospects of success or would be unfair. The Commission held that the 12-year delay in the High Court proceedings did not excuse exhaustion where the complainant chose to await the outcome. The Second to Fourth Complainants had not pursued any domestic remedies for their individual claims.

Outcome

Communication inadmissible for failure to exhaust local remedies

Facts

The First Complainant, a UAE national born in Zanzibar, travelled to Kenya in January 2007 as an interpreter for two Omani businessmen. She was arrested by Kenyan Anti-Terror Police without warrant or explanation, detained incommunicado for three days, denied consular access and legal representation, and allegedly subjected to inhuman treatment including threats of sexual violence. She was then rendered to Somalia where she was detained and interrogated for ten days in proximity to armed conflict, then rendered to Ethiopia where she was detained for another month under harsh conditions. After questioning by a presumed CIA officer who found no basis for her detention, she was released in March 2007. In 2009, she filed a civil claim in the Kenyan High Court alleging constitutional violations. The High Court dismissed her claim in July 2021 on the basis that she had failed to prove her case, finding most of her evidence inadmissible on technical grounds. She did not appeal. The Second to Fourth Complainants are family members who claim moral damages but did not participate in the Kenyan proceedings.

Issues

  1. Whether the communication satisfies the admissibility requirements under Article 56 of the African Charter on Human and Peoples' Rights.
  2. Whether the complainants exhausted local remedies as required by Article 56(5) of the African Charter.
  3. Whether the First Complainant was required to pursue an appeal before the Kenyan Court of Appeal.
  4. Whether the domestic proceedings were unduly prolonged such that exhaustion of local remedies could be dispensed with.
  5. Whether the Second to Fourth Complainants exhausted local remedies in respect of their individual claims.

Orders

  • Communication declared inadmissible.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Requirement to Pursue Available Appeals
A complainant who chooses not to pursue an available appeal on the advice that it lacks prospects of success must provide evidence that the appeal would be ineffective, unfair, or incapable of providing a remedy. Mere prediction of an unfavourable outcome or concerns about cost and duration are insufficient to dispense with the requirement to exhaust local remedies.
Admissibility — Exhaustion of Local Remedies — Undue Prolongation
Where a complainant waits for the completion of domestic proceedings despite their lengthy duration, the complainant forfeits the right to claim that those remedies were unduly prolonged. A complainant is not required to wait for a remedy that is unavailable, insufficient, or ineffective, but having chosen to await the outcome, the complainant must exhaust all available remedies including appeals.
Admissibility — Exhaustion of Local Remedies — Individual Claims
Remedies must be exhausted separately for each element of a claim and for each complainant. Where additional complainants raise claims that were not part of domestic proceedings, the respondent state must be given an opportunity to address those claims domestically before the Commission can consider them.
Admissibility — Effective Remedies — Burden of Proof
The complainant bears the burden of proving exhaustion of local remedies. An effective remedy is one that offers a prospect of success, meaning an assurance of full and fair examination of the legal issues, not a guarantee of a favourable outcome. The complainant must demonstrate why it was impossible to obtain a remedy through available procedures.

Legislation cited (16)

  • African Charter on Human and Peoples' Rights Art.1
  • African Charter on Human and Peoples' Rights Art.2
  • African Charter on Human and Peoples' Rights Art.5
  • African Charter on Human and Peoples' Rights Art.6
  • African Charter on Human and Peoples' Rights Art.7
  • African Charter on Human and Peoples' Rights Art.12
  • African Charter on Human and Peoples' Rights Art.18
  • African Charter on Human and Peoples' Rights Art.55
  • African Charter on Human and Peoples' Rights Art.56(1)
  • African Charter on Human and Peoples' Rights Art.56(2)
  • African Charter on Human and Peoples' Rights Art.56(3)
  • African Charter on Human and Peoples' Rights Art.56(4)
  • African Charter on Human and Peoples' Rights Art.56(5)
  • African Charter on Human and Peoples' Rights Art.56(6)
  • African Charter on Human and Peoples' Rights Art.56(7)
  • Constitution of Kenya 1969

Cases cited (28)

  • Abdel Hadi, Ali Radi & Others v Sudan (Communication 368/09)
  • Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon (Communication 272/03)
  • Enga Mekongo Louis v Cameroon (Communication 59/91)
  • Luke Munyandu Tembani v Angola (Communication 409/12)
  • Institute for Human Rights and Development in Africa v Angola (Communication 292/04)
  • Social and Economic Rights Action Center v Nigeria (Communication 155/96)
  • World Organisation Against Torture v Democratic Republic of Congo (Communication 325/06)
  • FIDH & Others v Senegal (Communication 304/2005)
  • Michael Majuru v Zimbabwe (Communication 308/05)
  • Ibrahima Dioumessi v Guinea (Communication 70/92)
  • Spilg and Mack & DITSHWANELO v Botswana (Communication 277/2003)
  • Kevin Mgwanga Gunme v Cameroon (Communication 266/03)
  • Zimbabwe Lawyers for Human Rights v Zimbabwe (Communication 284/03)
  • Sir Dawda K Jawara v Gambia (Communication 147/95-149/96)
  • Ahmed Ismael and 528 Others v Egypt (Communication 467/14)
  • The Nubian Community in Kenya v Kenya (Communication 317/2006)
  • Human Rights Council and Others v Ethiopia (Communication 445/13)
  • Patino v Panama (Communication 473/1990)
  • Nobert Zongo and Others v Burkina Faso (Application 013/2011)
  • Sana Dumbuya v Gambia (Communication 127/94)
  • Actions pour la Protection des Droits de l'Homme v Côte d'Ivoire (2016) 1 AfCLR 668
  • Wilfred Onyango Nganyi & 9 Others v Tanzania (App. No. 006/2013)
  • Zimbabwe Lawyers for Human Rights v Zimbabwe (Communication 293/04)
  • Promoting Justice for Women and Children v Democratic Republic of Congo (Communication 278/2003)
  • Bakweri Land Claims Committee v Cameroon (Communication 260/02)
  • Luke Munyandu Tembani and Benjamin John Freeth v Angola and Thirteen Others (Communication 409/12)
  • Sudan Human Rights Organisation & COHRE v Sudan (Communication 279/03-296/05)
  • Frank David Omary and Others v Tanzania (App. No. 001/2012)

Full judgment

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

Tuweni and Others (Represented by REDRESS) v Republic of Kenya (Communication 778-22) [2023] ACHPR 1 (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.