legislative, administrative and other appropriate measures in order to bring to an end the
current situation children of Nubian descent in Kenya find themselves in.
30. Furthermore, with some stretch of imagination, it could also be argued that the
Complainants should have exhausted extra-judicial remedies such as administrative
procedures within the relevant government offices or by lodging an official claim at the
Kenya National Commission on Human Rights. However, what is envisaged under the
Guidelines for the Consideration of Communications, and also supported by the
jurisprudence from the African Commission, is that extraordinary remedies of a non-judicial
nature do not fall within the notion of “local remedies” and need not necessarily be
exhausted for a communication to be declared admissible.
31. The African Committee is of the view that the Complainants can be exempted from
exhausting local remedies if such an attempt would be or is unduly prolonged, which is an
explicitly mentioned exception under Article 56(7) of the African Charter on Human and
Peoples’ Rights.
32. In fact, an unduly prolonged domestic remedy cannot be considered to fall within the
ambit of “available, effective, and sufficient” local remedy. Therefore, while the African
Committee notes that in Civil Liberties Organization v. Nigeria,8 the African Commission
declined to consider a Communication with respect to which a claim had been filed but not
yet settled by the courts of the Respondent State, it is our view that the unduly prolonged
court process in the present Communication is not in the best interests of the child principle
(Article 4 of the Charter), and warrants an exception to the rule on exhaustion of local
remedies.
33. To conclude, a year in the life of a child is almost six percent of his or her childhood. It
is in the spirit and purpose of the African Children’s Charter, the Africa Call for Accelerated
Action (Cairo Plus 5), the Millennium Development Goals and other similar commitments,
that States need to adopt a “children first” approach with some sense of urgency. This is one
of the messages that the drafters of the African Children’s Charter wanted to communicate
in its Preamble when they recognized that “the child occupies a unique and privileged
position in the African society”. The implementation and realization of children’s rights in
Africa is not a matter to be relegated for tomorrow, but an issue that is in need of proactive
immediate attention and action.
34.
As a result of the above, the African Committee decides that the six years that lapsed
without a consideration of the merits of the case before the High Court in Nairobi is unduly
and unreasonably prolonged, and qualifies for an exception to the requirement imposed on
Complainants to exhaust local remedies. In connection to this, the Committee is also of the
view that this Communication is brought within a reasonable period of time, after waiting
for a sufficient period of time attempting to see if local remedies would offer any prospect of
success and adequate remedies.
35.
In view of the preceding reasoning, the Communication is declared admissible.
Consideration of the Merits
8
Communication No. 45/90.
7