Private prosecution as a local remedy before the African Commission on Human and Peoples’ Rights

Abstract

Article 56(5) of the African Charter on Human and Peoples’ Rights provides that the African Commission on Human and Peoples’ Rights will admit individual communications only if, inter alia, they ‘[a]re sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged’. The African Commission has developed rich jurisprudence around article 56(5). One of the issues that has started to emerge before the African Commission is whether or not a private prosecution is a domestic remedy that has to be exhausted before a person may file a communication before the Commission. Relying on the jurisprudence of the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of All Forms of Racial Discrimination, the Inter-American Court of Human Rights and the European Court of Human Rights, the author suggests some of the ways in which the African Commission could deal with the issue of private prosecution as a domestic remedy. Specifically, the author argues that in order to determine whether or not a private prosecution is an effective remedy the African Commission may have to consider factors such as the person with locus standi to institute a private prosecution; funding to conduct a private prosecution; and how the public prosecutor has exercised or is likely to exercise the power to intervene in private prosecutions.