Setting the Law Straight: Tanganyika Law Society & anor v. Tanzania and Exhaustion of Domestic Remedies before the African Court

Author:AO Enabulele, B Bazuaye
Position:PhD (Brunel University, London) LLB, LLM (Benin) BL, Senior Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria; barrister and solicitor of the Supreme Court of Nigeria - LLM (Benin), LLB (BENSU), Senior Lecturer, Department of Jurisprudence & International Law, University of Benin, Nigeria...
Pages:237-251
SUMMARY

The rule of exhaustion of domestic remedies is an integral part of the right of individuals to bring international claim against a State. This rule is expressly required in the African Charter on Human and Peoples’ Rights and the Protocol of the African Court on Human and Peoples’ Rights. Nevertheless, as the various types of domestic remedies and the various circumstances in which they are... (see full summary)

 
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DOI http://dx.doi.org/10.4314/mlr.v8i1.7
Setting the Law Straight:
Tanganyika Law Society & anor v. Tanzania
and Exhaustion of Domestic Remedies before the
African Court
Amos O. Enabulele* & Bright Bazuaye∗∗
Abstract
The rule of exhaustion of domestic remedies is an integral part of the right of
individuals to bring international claim against a State. This rule is expressly
required in the African Charter on Human and Peoples’ Rights and the
Protocol of the African Court on Human and Peoples’ Rights. Nevertheless, as
the various types of domestic remedies and the various circumstances in which
they are pleaded by respondent States are still unfolding, the jurisprudence of
the African Court is understandably at an infantile stage and continues to
undergo development and refinement. This short comment examines the view
of the African Court, following that of the African Commission on Human and
Peoples’ Rights, that non-judicial remedies are not valid remedies that need to
be exhausted before claims are brought before the African Court by
individuals. It is argued that this is an unduly wide and indiscriminate
proposition that would have the effect of unjustifiably excluding administrative
remedies that may have effectively remedied a breach if approached by
individuals before coming to the African Court. It was consequently argued
that there is need for reconsideration now before the view becomes too
entrenched.
1. Introduction: Overview of the Rule of Exhaustion of
Domestic Remedies
Every system of international adjudication in which an individual has capacity
to bring claims against States necessarily interferes with the sovereignty of
* PhD (Brunel University, London) LLB, LLM (Benin) BL, Senior Lecturer,
Department of Jurisprudence and International Law, Faculty of Law, University of
Benin, Nigeria; barrister and solicitor of the Supreme Court of Nigeria
∗∗ LLM (Benin), LLB (BENSU), Senior Lecturer, Department of Jurisprudence &
International Law, University of Benin, Nigeria and PhD candidate, Faculty of Law,
University of Benin
C

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