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AFRICAN COURT LAW REPORT VOLUME 1 (2006-2016)
92. The Applicant made no observation on the competence of the
administrative jurisdictions suggested by the Respondent State.
93. As underscored in the Court’s jurisprudence as well as in that of the
Commission,88 in the Application of the rule governing exhaustion of
local remedies, the following three conditions must be met, namely:
availability, effectiveness and sufficiency of the remedies.
94. In the Matter of Nobert Zongo and Others v Burkina Faso,99 for
example, the Court decided that “the effectiveness of a remedy is
measured in terms of its ability to solve the problem raised by the
Applicant”.
95. In the same vein, the Inter-American Court of Human Rights held
that:
“... Adequate domestic remedies are those which are suitable to address
an infringement of a legal right. A number of remedies exist in the legal
system of every country, but not all are applicable in every circumstance. If
a remedy is not adequate in a specific case, it obviously need not be
10
exhausted”.10
96. Regarding the remedies before administrative jurisdictions as
mentioned by the Respondent State, Article 5(2) of Ivorian Law No 94440 relating to the Supreme Court provides that the Administrative
Chamber “shall hear in the first instance and without appeal cases of
annulment on the grounds of abuse of authority, against decisions
emanating from the administrative authorities”.
97. It follows from the aforementioned provision that administrative
jurisdictions are not competent to hear cases of unconstitutionality of
laws.
98. The Court therefore holds that the administrative remedy is not
sufficient and, for this reason, that the Applicant did not have to
exercise it.
99. Concerning the unconstitutionality of the impugned law, the Court
notes that Article 77 of the Ivorian Constitution provides that:
“The laws can, before their promulgation, be referred to the Constitutional
Council by the President of the National Assembly or by one-tenth at least
of the Deputies or by the parliamentary groups. The associations of the
defense of the Rights of Man legally constituted can equally refer to the
Constitutional Council the laws concerning the public freedoms. The
Constitutional Council decides in a time period of fifteen days counting from
its seizing.”
100. The Court observes that the impugned law does not relate to
public freedoms and that, for that reason, the Applicant could not refer
8
Reverend Christopher Mtikila v Tanzania (Application 009-001/2011), Judgment of
14 June 2013 para 82.1; Lohé Issa Konaté v Burkina Faso (Application 004/2013),
Judgment of 5 December 2014 para 92 See also Communications Nos. 147/95 and
149/96, Sir Dawda Jawara v The Gambia, para 32.
9 Application No 013/2011, Judgement of 28 March 2014, para 68.
10 Velasquez-Rodriguez v Honduras, Judgment of 29 July 1998 (Series C), No 4, para
64.