6
information disseminated by the media. After preliminary enquiries conducted by the
Committee, it has become apparent that the case has not been the subject matter of
another investigation, procedure or international regulation/adjudication.
22.
Moreover, it is the view of the Committee that the Communication, which was
initially submitted in 2005, and further consolidated/updated in 2010 (with a French
translation and a submission on admissibility) was brought within a reasonable period of
time after the Authors decided that the exhaustion of local remedies in the
Communication at hand would not be available, effective and adequate. The Committee
has also gone through the Communication in detail, and has not found any wording
used in the Communication that can be considered to be offensive.
23.
The Committee also applied its mind in determining whether the exhaustion of
local remedies, as required by the Guidelines, has been met.
24.
As was already highlighted by the Committee’s decision in the children of Nubian
descent Communication,3 while the rationale behind the rule that local remedies must
be exhausted is mainly to respect state sovereignty and also to give the State
concerned the opportunity to address alleged violations, it is not without exceptions,
especially in order to promote and protect children’s best interests. Such remedies
should be available, effective, and adequate.
And
Article 46 of the African Charter allows the African Committee to draw inspiration,
amongst others, from the African Charter on Human and Peoples’ rights and the African
Commission.
25.
The Authors have argued, by relying on jurisprudence from the African
Commission, that a remedy “can only be said to be ‘available’ if it can be utilized as a
matter of fact ‘without impediment’, is ‘effective’ if it ‘offers a prospect of success’, and
‘sufficient’ if it is capable of ‘redressing the wrong’ complained of”. As a result, the
Authors argue that while it might have been possible to exhaust local remedies
theoretically, the practical application is impossible as a result of the fact that security is
a serious concern.
26.
The Authors have also indicated that, despite their skepticism about the
availability, effectiveness and adequacy of remedies in Uganda, they have attempted (in
collaboration with CSOs) to approach national courts, but the prospect of success of
doing so were reportedly impossible due to the impact of the conflict on relevant state
institutions in the region, as well as security concerns which also would make evidence
gathering extremely risky and difficult.
27.
The Authors have also argued that the fact that the alleged violations can be
categorized as massive/large scales of violations of children’s rights and involve
3
Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (on
behalf of Children of Nubian Descent in Kenya) v. the Government of Kenya, Decision No
002/Com/002/2009, African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 22
March 2011.