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AFRICAN COURT LAW REPORT VOLUME 1 (2006-2016)
argument. However, the Respondent argues that the parliamentary
process with which the constitutional review process is connected, is
also a remedy which the Applicants should have exhausted.
82.3 The term local remedies is understood in human rights
jurisprudence to refer primarily to judicial remedies as these are the
most effective means of redressing human rights violations. That the
2nd Applicant has exhausted local judicial remedies is not in dispute.
The Respondent, having not joined issue on the 1st Applicants’
argument that they need not have instituted an action challenging the
prohibition of independent candidates, is deemed to have admitted the
position of the 1st Applicants. In the circumstances, the Court accepts
that there was no need for the 1st Applicants to go through the same
local judicial process the outcome of which was known. The
parliamentary process, which the Respondent states should also be
exhausted is a political process and is not an available, effective and
sufficient remedy because it is not freely accessible to each and every
individual; it is discretionary and may be abandoned anytime;
moreover, the outcome thereof depends on the will of the majority. No
matter how democratic the parliamentary process will be, it cannot be
equated to an independent judicial process for the vindication of the
rights under the Charter. In conclusion, we find that the Applicants have
exhausted local remedies as is envisaged by Article 6(2) of the Protocol
read together with Article 56(5) of the Charter.
83. Alleged delay in filing the Applications
The Court agrees with the Applicants that there has not been an
inordinate delay in filing the Applications; because after the judgment of
the Court of Appeal, the Applicants were entitled to wait for the reaction
of Parliament to the judgment. In the circumstances, the period of about
three hundred and sixty (360) days, which is about one year from the
date of the judgment of the Court of Appeal until the Applications were
filed was not unreasonably long.
V.
The Court’s ruling on the preliminary objection on
jurisdiction
A.
Temporal jurisdiction of the Court
84. The only point on which the Court’s jurisdiction is challenged is
based on the fact that the conduct complained of, namely, the barring
of independent candidates, occurred before the Protocol came into
operation. This argument cannot be upheld. The rights alleged to be
violated are protected by the Charter. By the time of the alleged
violation, the Respondent had already ratified the Charter and was
therefore bound by it, The Charter was operational, and there was
therefore already a duty on the Respondent as at the time of the alleged
violation to protect those rights. At the time the Protocol was ratified by
the Respondent and when it came into operation in respect of the
Respondent, the alleged violation was continuing and is still continuing:
independent candidates are still not allowed to stand for the position of
President or to contest Parliamentary and Local Government elections.
Furthermore, the alleged violations continued beyond the time the