APDH v Côte d’Ivoire (2016) 1 AfCLR 668
679
83. The Court further holds that the Applicant was only presenting the
acts of the Ivorian authorities and that none of the expressions used is
insulting towards the latter.
84. It therefore dismisses the objection to the Application’s admissibility
on that ground.
ii.
Objection to admissibility on grounds of failure to
exhaust local remedies
85. In its additional submissions to the brief in Response, the
Respondent State reiterates that the Applicant did not exhaust the local
remedies before filing the case before the Court. It contends that the
Applicant could have seized the Constitutional Council to determine the
unconstitutionality of the impugned law; that in Côte d’Ivoire, the said
remedy is truly judicial within the meaning of this notion as understood
by the Commission; that, in fact, upon being found grounded, the
remedy results in the annulment of the adopted law.
86. The Respondent further contends that the Ivorian administrative
law makes it possible to hold the State liable for its legislative activity;
and that such procedure may lead the State to either abrogate an
impugned law or amend the same.
87. The Respondent State argues, lastly, that it lies with the Applicant
to produce evidence as to the exhaustion of local remedies, failing
which its Application would be declared inadmissible; that this is also
the position of the African Commission in Communications Nos. 127/94
and 198/97, in the Matter of Sana Dumbuya v The Gambia and SOS
Esclaves v Mauritania.
88. In conclusion, the Respondent State prays the Court to rule that the
Applicant has not exhausted the aforementioned local remedies and,
therefore, declare the Application inadmissible.
89. Concerning the unconstitutionality of the impugned law, the
Applicant contends that, according to Article 77(2) of the Ivorian
Constitution, human rights advocacy associations may refer to the
Council only the laws relating to public freedoms; that given that the
impugned law is a law governing an independent administrative
authority, no remedy is open to non-governmental organizations and
individuals to solicit the withdrawal or review of such a law.
90. In its additional observations, the Applicant further contends that,
according to Article 77 of the Ivorian Constitution, the Constitutional
Council should be seized only prior to promulgation of laws; that even
if the Applicant were entitled to seize the Constitutional Council, it would
be necessary that the Applicant be informed of the adoption of such a
law by the National Assembly.
91. It maintains that, in Côte d’Ivoire, the only means by which the
existence of a law is brought to the attention of the citizens, is the
publication thereof in an Official Gazette after its promulgation; that, in
the circumstances, it would be impossible for human rights associations
to seize the Constitutional Council prior to promulgation of the laws as
required by the Constitution.