20.
Frustrated with the process, especially with the fact that within fifteen months of
filing, the case had been brought before five different judges none of whom had proceeded
with it, the Complainants indicate that a letter was sent to the Chief Justice of Kenya stating
that there appeared to be a deliberate placement of administrative and procedural obstacles
in the path of the determination of the application brought on behalf of the Nubian
community. In this regard, the Complainants indicate that no response to this letter, and
other letters sent on 24 July 2004, 24 September 2004, and 24 January 2005 was received.
21.
As a result, the Complainants submitted that, more than six years after the
CEMIRIDE instituted proceedings on behalf of the Nubian community, no bench has been
constituted and no date has been fixed for a substantive hearing on the case. By invoking
jurisprudence from the African Commission, and highlighting the provisions of the African
Children’s Charter and its Guidelines on the Consideration of Communications, the
Complainants submit that such a delay is excessive, and should be seen as an exception to
the exhaustion of local remedies rule.
22.
The Complainants are of the view that the pursuit of local remedies by the Nubian
community has been fraught with such impediments that it offers no prospect of success
and children of Nubian descent living in Kenya cannot be reasonably expected to benefit
from these local remedies. As a result of the above, the Complainants argue that the
Communication should be declared admissible as it complies with all the requirements of
the Guidelines for the Consideration of Communications.
The African Committee’s analysis and decision on admissibility
23. The African Committee, after a detailed consideration of the Communication, agrees
with the submission of the Complainants that the form of the Communication is in
compliance with the Guidelines of the African Committee- i.e. it is not anonymous, it is
written, and concerns a State Party to the African Children’s Charter. It also decides, after a
thorough look at the Communication, that the Communication is compatible with the
Constitutive Act of the African Union and with the African Children’s Charter. The
Communication is presented in a professional, polite and respectful language, and is based
on information provided, inter alia, by the alleged victims and on court documents, and not
solely based on media reports. The Secretariat of the African Committee has also
undertaken efforts to confirm that the same issue provided for the in the present
Communication has not been considered according to another international procedure.
24. However, to decide on the less straightforward and important issue whether local
remedies have been exhausted (and in connection to that, whether the present
Communication has been brought within a reasonable period of time), which is an issue that
probably would have been challenged by the Government of Kenya, the African Committee
has scrutinsed the written and oral submissions by the Complainants in detail, and would
offer below a more elaborate explanation.
25. At the outset, it should be mentioned that the African Children’s Charter explicitly
mandates the African Committee, in Article 46 of the Charter, to:
…draw inspiration from International Law on Human Rights, particularly from the provisions of
the African Charter on Human and Peoples' Rights, the Charter of the Organization of African
Unity, the Universal Declaration on Human Rights, the International Convention on the Rights of
the Child, and other instruments adopted by the United Nations and by African countries in the
field of human rights, and from African values and traditions.
5