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BEFORE THE

AFRICAN COMMISSION

ON

HUMAN AND PEOPLES’ RIGHTS

Communication 370/09

Social and Economic Rights Action Center v. Nigeria

APPLICANT’S BRIEF IN SUPPORT OF ADMISSIBILITYPURSUANT TO ARTICLE 56 OF THE

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

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TABLE OF CONTENTS

INTRODUCTION................................................................................................................... 1

FACTUAL BACKGROUND................................................................................................. 1I. The Evictions and Their Aftermath .......................................................................... 1II. The Evictees’ Attempts to Secure a Local Remedy ................................................. 2

A. The Courts............................................................................................................. 3i. Initial Proceedings. ............................................................................................... 3ii. The Appeal. ........................................................................................................... 4iii. Subsequent Trial Court Proceedings................................................................. 4iv. Current Status of Proceedings........................................................................... 6

B. Other Avenues of Redress Pursued by the Evictees ............................................. 8i. The Oputa Commission ........................................................................................ 8ii. Legislative Efforts................................................................................................. 8

ARGUMENT........................................................................................................................... 9I. The Communication Satisfies Article 56(5)’s Exhaustion Requirement................ 10

A. The Maroko Evictees Are Not Required to Meet the ExhaustionRequirement Because Local Remedies Are Not Available or Effective. ........... 10

i. Local Remedies Are Unavailable Because the Courts Are Unwilling toAct................................................................................................................... 12

ii. Local Remedies Are Ineffective Because There Is Little Prospect ofSuccess............................................................................................................ 13

iii. Local Remedies Are Unavailable and Ineffective Because of the Scaleof the Human Rights Violations ..................................................................... 14

B. Even if Local Remedies Were Available and Effective, the MarokoEvictees Have Satisfied Article 56(5) Because the Local Remedies HaveBeen Unduly Prolonged. ..................................................................................... 15

C. The Communication Satisfies the Principles that Undergird theExhaustion Requirement. .................................................................................... 18

II. The Communication Satisfies All of Article 56’s Remaining AdmissibilityRequirements. ......................................................................................................... 20

A. The Communication Indicates Its Authors. ........................................................ 20B. The Communication is Compatible with the Charter of the African Union

and with the African Charter............................................................................... 20i. Compatibility Ratione Materiae.......................................................................... 20ii. Compatibility Ratione Personae ......................................................................... 21

C. The Communication Is Not Written in Disparaging or InsultingLanguage............................................................................................................. 21

D. The Communication Is Not Based Exclusively on News DisseminatedThrough the Mass Media. ................................................................................... 22

E. The Communication Is Timely. .......................................................................... 23

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F. The Communication Does Not Raise Claims that Have Been Settled bythe Government of Nigeria or Resolved in any Other InternationalForum. ................................................................................................................. 23

CONCLUSION ..................................................................................................................... 24

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TABLE OF AUTHORITIES

INTERNATIONAL INSTRUMENTS

African [Banjul] Charter on Human and Peoples’ Rights,adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5,1520 U.N.T.S. 217, 245 (1982) ..................................................................... passim

American Convention on Human Rights, O.A.S. Treaty Series No. 36,1144 U.N.T.S. 123 ...........................................................................................38, 50

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at197, U.N. Doc. A/39/51 (1984)], 1465 U.N.T.S. 85..............................................51

International Convention on the Elimination of All Forms of RacialDiscrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No.14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195........................................51

International Law Commission, Articles on Responsibility of States forInternationally Wrongful Acts, adopted by G. A. Res 56/83 (2001)(annex), corrected in U.N. Doc. A/56/49 (Vol. 1)/Corr. 4.....................................67

Optional Protocol to the Convention on the Elimination of Discrimination againstWomen, G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N.Doc. A/54/49 (Vol. I) (2000), 2131 U.N.T.S. 83...................................................51

Optional Protocol to the International Covenant on Civil and Political Rights,G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc.A/6316 (1966), 999 U.N.T.S. 302 ...................................................................51, 74

AFRICAN COMMISSION CASES

Amnesty International and Others v. Sudan,Comms. 48/90, 50/91, 52/91, 89/93, 13th Activity Report (1999)................ passim

Article 19 v. Eritrea,Comm. 275/2003, 22nd Activity Report (2007)............................................ passim

Bakweri Land Claims Committee v. Cameroon,Comm. 260/02 (2004)............................................................................................69

Centre on Housing Rights and Evictions v. Sudan,Comm. 296/05 (2006)....................................................................37, 44, 45, 46, 76

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Chinhamo v. Zimbabwe,Comm. 307/2005, 23rd Activity Report (2007).........................................63, 64, 66

Diakité v. Gabon,Comm. No. 73/92, 13th Activity Report (2000)....................................................40

Dioumessi and Others v. Guinea,Comm. 70/92, 9th Activity Report (1995).............................................................61

Ilesanmi v. Nigeria,Comm. No. 268/2003, 18th Activity Report (2005)........................................37, 44

Jawara v. The Gambia,Comm. 149/96, 13th Activity Report (2000)................................................ passim

Ligue Camerounaise des Droits de l’Homme v. Cameroon,Comm. No. 65/92, 10th Activity Report (1997)....................................................69

Malawi African Ass’n and Others v. Mauritania,Comms. 54/91, 61/91, 64/92, 68/92, 78/92, 98/93, 164-196/97, 210/98,13th Activity Report (2000)........................................................................... passim

Modise v. Botswana,Comm. No. 97/93, 14th Activity Report (2000)................................................... 49

Modise v. Botswana,Comm. No. 97/93, 10th Activity Report (1997). ...................................................49

Mouvement des Réfugiés Mauritaniens au Sénégal v. Sénégal,Comm. 162/197, 11th Activity Report (1997).......................................................64

Mpaka-Nsusu v. Zaire,Comm. No. 15/88, 7th Activity Report (1994)......................................................76

Odjouoriby v. Benin,Comm. 199/97, 17th Activity Report (2004).........................................................49

Rencontre Africaine pour la Défense des Droits de l’Homme v. Zambia,Comm. 71/92, 10th Activity Report (1996)...........................................................39

Social and Economic Rights Action Center and the Center for Economic andSocial Rights v. Nigeria,Comm. 155/96, 15th Activity Report (2001).............................................55, 57, 58

Tsikata v. Ghana,Comm. No. 322/2006, 21st Activity Report (2006) ........................................54, 74

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World Organisation Against Torture and Others v. Zaire,Comms. 25/89, 47/90, 56/91 & 100/93, 9th Activity Report (1995).....................57

Zegveld and Ephrem v. Eritrea,Comm. No. 250/2002 (2003) .................................................................................49

OTHER AFRICAN COMMISSION DOCUMENTS

Afr. Comm’n on Human & Peoples’ Rights,Communication Procedure: Information Sheet No. 3............................................49

Rules of Procedures of the African Commission on Human and Peoples’ Rights,adopted on the October 6, 1995. ...........................................................................2,3

OTHER INTERNATIONAL HUMAN RIGHTS CASES

A. T. v. Hungary,Comm. on the Elimination of Discrimination against Women,Comm. No. 2/2003, U.N. Doc. CEDAW/C/32/D/2/2003 (2005)..........................51

Akdivar and Others v. Turkey,Eur. Ct. H.R., Case 99/1995/605/693 (1996)...................................................38, 39

Arredondo v. Peru,Human Rights Comm., Comm. 688/1996,CCPR/C/69/D/688/1996 (2000) ............................................................................51

C. v. Australia,Human Rights Comm., Comm. 900/1999,U.N. Doc CCPR/C/OP/8 (2002). ...........................................................................44

da Silva Cassiano and Others v. Brazil,Case 12.198, Report No. 51/04,Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 164 (2004). ...................50

Des Fours Walderode & Kammerlander v. Czech Republic,Human Rights Comm., Comm. 747/1997,U.N. Doc. CCPR/C/73/D/747/1997 (2001) ...........................................................51

Dimitrijevic v. Serbia and Montenegro,Comm. against Torture, Comm. No. 207/2002,U.N. Doc. CAT/C/33/D/207/2002 (2004). ............................................................51

Dimitrov v. Serbia and Montenegro,Comm. against Torture, Comm. No. 171/2000,U.N. Doc. CAT/C/34/D/171/2000 (2005). ............................................................51

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Durmic v. Serbia and Montenegro,Comm. on the Elimination of Racial Discrimination,Comm. No. 29/2003, U.N. Doc. CERD/C/68/D/29/2003 (2006)..........................51

Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and46(2)(b) of the American Convention on Human Rights),Advisory Opinion No. OC-11/90,Inter. Am. Ct. H.R. (Ser. A) No. 11 (1990) ...........................................................38

Oliveira v. Brazil,Case 11.694, Report No. 36/01,Inter-Am. C.H.R., OEA/Ser.L/V/II.111 Doc. 20 rev. at 178 (2000). ....................50

Portugal v. Panama,Case 357/01, Report No. 72/02,Inter-Am. C.H.R., Doc. 5 rev. 1 at 376 (2002). ...............................................50, 67

Restrepo v. Colombia,Case 11.726, Report No. 84/00,OEA/Ser.L/V/II.111 Doc. 20 rev. at 185 (2000). ..................................................50

Sarma v. Sri Lanka,Human Rights Comm., Comm. 950/2000,U.N. Doc. CCPR/C/78/D/950/2000 (2003) ...........................................................51

Sassen van Elsloo Otero and Torres Herbozo v. Ecuador,Petition 183/02 , Report No. 70/02, Inter-Am. C.H.R.,Doc. 5 rev. 1 at 284 (2002). ...................................................................................50

Semey v. Spain,Human Rights Committee, Comm. 986/2001,U.N. Doc. CCPR/C/78/D/986/2001 (2003) ...........................................................38

Tames v. Brazil,Case 11.516, Report No. 19/98,Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 112 (1997). ........................50

Velásquez Rodríguez Case,Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988). ...............................................................38

Weinberger v. Uruguay,Human Rights Comm., Comm. 28/1978,U.N. Doc. CCPR/C/OP/1 at 57 (1984) ..................................................................51

DOMESTIC STATUTES

Fundamental Rights (Enforcement Procedure) Rules, 1979..................................12, 18, 24

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High Court of Lagos State (Civil Procedure) Rules 2004. ................................................18

NATIONAL COURT PROCEEDINGS

Kokoro-Owo and Others v. Lagos State Gov. and Others, Appeal No.CA/L/210M/90, Judgment (Court of Appeal at Lagos, May 4, 1995) ............12, 13

Kokoro-Owo and Others v. Lagos State Gov. and Others, Case No. M/394/90

Amended Statement (Jan. 20, 2004). .....................................................................17

Motion Ex-Parte, July 11, 1990. ............................................................................10

Motion on Notice (and accompanying schedule) (Feb. 17, 1998).........................15

Motion on Notice (and accompanying schedule) (Mar. 13, 1998). .......................15

Motion on Notice (Feb. 17, 2003). ........................................................................16

Notice of Preliminary Objection (Dec. 18, 2002)..................................................16

Notice of Preliminary Objection (May 6, 2003). ...................................................17

Ruling (February 2, 2007)......................................................................................17

Written Address Opposing the 1st and 2nd Defendants’ Notice ofPreliminary Objection Dated the 6th Day of May 2003 (May 26,2006). .........................................................................................................17

Written Argument in Support of the Notice of Preliminary ObjectionDated 6th May 2003 (April 5, 2006). ........................................................17

OTHER AUTHORITIES

Amnesty International, Nigeria: Making the destitute homeless-forced evictions inMakoko, Lagos State (2006) ..............................................................................5, 29

Centre on Housing Rights and Evictions, Housing Rights in West Africa: Reportof Four Fact-Finding Missions (2004). .............................................................5, 29

Dare Babarinsa and Others, “Good-bye Maroko: Lagos State authorities uproot300,000 Maroko residents and leave a huge refugee problem behind,”Newswatch (July 30, 1990). .............................................................................11, 72

Lagos State House of Assembly, Report on the Petition from the MarokoEvictees, April 25, 2005.........................................................................................32

Letter from S.A. Aiyeyemi to General Ibrahim Babangida, 9 July1990. ............................8

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Malagu Oumarou-Sanda, “Sorrow, Tears and Blood – the Maroko Demolition,”Island News (July 19, 2004)...................................................................................12

“No going back on relocation of Maroko residents, says Rasaki,”The Guardian, July 10, 1990. ................................................................................42

Report Submitted by the Human Rights Violations Investigation Commission,May 2002, Vol. 7. ............................................................................................30, 31

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INTRODUCTION

1. On behalf of the former residents of the Maroko District in Lagos, Nigeria, theSocial and Economic Rights Action Center (“SERAC” or the “Applicant”) respectfullysubmits this brief on the admissibility of Communication 370/09, captioned Social andEconomic Rights Action Center v. Nigeria (hereinafter the “Communication”).1

2. The Communication was submitted to the African Commission on Human andPeoples’ Rights (the “Commission”) on December 3, 2008. The Commission was seized ofthe Communication at the 45th Ordinary Session which took place in The Gambia duringMay 13-27, 2009. As directed in the Commission’s Notification of Seizure, received bySERAC in August 2009, SERAC submits these observations in accordance with Article 56 ofthe African Charter on Human and Peoples’ Rights (hereinafter the “African Charter”)2 andRule 117(1) of the Rules of Procedures of the Commission.3

FACTUAL BACKGROUND

3. SERAC has detailed the factual and legal basis of the Maroko evictees’ claimsunder the African Charter in the Communication. See Communication, ¶¶ 1-37. As stated inthe Communication, SERAC will provide the requisite factual detail and supporting evidenceon the merits of the Maroko evictees’ claims at the merits phase of these proceedings. See id.¶ 7 n.3. For the Commission’s ease of reference, however, SERAC here provides a briefsummary of the events and circumstances giving rise to the claims, as well as additionalrelevant factual information and evidence regarding the Maroko evictees’ attempts to obtainredress from the Federal Republic of Nigeria (“Nigeria” or the “Respondent State.”).

I. The Evictions and Their Aftermath

4. On July 14, 1990, during the military dictatorship of General IbrahimBabangida, the Lagos State government, under the direction of its governor Colonel RajiRasaki, staged a military assault on the town of Maroko, a densely populated and thriving

1 SERAC does not believe there is a basis for the state of Nigeria to challenge theCommunication’s admissibility. Should Nigeria raise any question as to admissibility, however,SERAC hereby respectfully requests the opportunity to submit further written observations inresponse and to address the Commission orally at its 46th Ordinary Session in The Gambia inNovember 2009.

2 African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc.CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217, 21 ILM 58 (1982), entered into force October 21,1986.

3 Rules of Procedures of the African Commission on Human and Peoples’ Rights, adoptedOctober 6, 1995.

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settlement located on what was then the outskirts of Lagos. Having received no formalnotice, Maroko’s 300,000 inhabitants were forcibly evicted during the course of the nexttwelve days, as bulldozers demolished their homes, schools, and other buildings. Armedsoldiers beat them as they fled, looting their belongings and destroying their homes,livelihoods and community.

5. The scattered evictees faced and continue to face appalling living conditions.Many endured homelessness and disease in the immediate aftermath of the eviction, whichtook place at the height of the rainy season; and some died as a result. Many evictees,including most of those who were tenants of Maroko’s 10,000 property owners, scattered tothe slums of Lagos or elsewhere. Many remain with no housing at all. Others sought shelterin several half-built and abandoned government housing estates at Ilasan, Ikota, and Epe.The government attempted again to evict those who had taken refuge in these housingestates. After being forced to suspend these efforts because of the public outcry followingthe Maroko demolition, the government claimed to have “re-settled” these evictees. Eventhose evictees who have fared the best now dwell in dilapidated and dangerousaccommodations, most with no sanitation, water supply, or electricity. The evictees live indebilitating poverty due to the loss of jobs and businesses and because of the difficulty inaccessing the economic centers of Lagos. They have also suffered from abysmal healthconditions, experienced severe disruption of their children’s education and faced long-termseparation and fragmentation of their families.4

6. The evictees confront ongoing persecution by the Nigerian government, whichin 2007 demolished some of the residential structures built at the Ilasan housing estate byevictees who had been “resettled” in housing that had not yet been built. More recently,agents of the Lagos State government have again threatened to evict the displaced of Marokofrom Ilasan altogether.

7. To this day, none of the evictees have been offered any compensation by theLagos State government for the devastating losses suffered in 1990 or since, despitecontinual attempts by community leaders during the past 19 years to seek some form ofredress.

II. The Evictees’ Attempts to Secure a Local Remedy

8. In the 19 years since the destruction of their homes and livelihood, as theystruggled with the short and long term consequences of the eviction, the evictees havediligently but unsuccessfully pursued efforts to obtain relief from the Respondent State in

4 Several human rights organizations have examined the plight of the Maroko evictees andconcluded that the Nigerian government engaged in a gross violation of human rights and failedto live up to its international obligations. See, e.g., Centre on Housing Rights and Evictions,Housing Rights in West Africa: Report of Four Fact-Finding Missions (2004), at 27-32(hereinafter “COHRE Report”), attached hereto as Exhibit 1; Amnesty International, Nigeria:Making the destitute homeless-forced evictions in Makoko, Lagos State (2005), § 3.1 attachedhereto as Exhibit 2.

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every forum available to them. Indeed, even before the demolitions began, the evicteesappealed to the Nigerian federal government5 and the courts for a remedy, but to no avail.

A. The Courts.

9. Since learning of the planned demolition through newspaper and radio reportsa mere few days before the scheduled date, the evictees have actively sought assistance fromthe courts in the form of declaratory and injunctive relief and, after completion of thedemolition, compensation for the losses they had suffered (and continue to suffer). Almosttwo decades later, however, the courts have yet to make any serious effort to address theirclaims.

i. Initial Proceedings.

10. On July 11, 1990, four days after the Maroko news reports of the impendingevictions first appeared and three days before the deadline given by the government for thecommencement of the demolition of Maroko, a group of Maroko residents brought a legalaction in the High Court of Lagos State.6 The residents sought a declaration that theproposed demolition violated their fundamental rights and their right to the enjoyment oftheir property under the Nigerian constitution, as well as an emergency interim injunctionrestraining the government from carrying out the demolition.7

11. The Chief Judge of the Lagos High Court, however, assigned the case to atrial judge who was not scheduled to sit until July 16, 1990—two days after the deadlinegiven by Colonel Rasaki for the eviction and demolition.8 This precluded any possibility of atimely hearing on the injunction. On July 13, the Maroko residents submitted a furtheraffidavit of urgency in support of their request for an injunction urging the High Court to haltthe demolition, but the High Court still took no action on their application. Despite havingseveral days notice of the planned demolition, sufficient for an emergency application to beheard, the court simply let the demolition proceed.

5 See Letter from S.A. Aiyeyemi to General Ibrahim Babangida, July 9, 1990, attached hereto asExhibit 3.

6 At the commencement of these proceedings, the evictees were represented by the Civil LibertiesOrganization. Subsequently the representation was taken over on a pro bono basis by the lawfirm of Olisa Agbakba & Associates. Currently, the evictees are represented in the High Courtproceedings by SERAC, the author of this Communication.

7 See Kokoro-Owo et al. v. Lagos State Gov. et al., Case No. M/394/90, Motion Ex-Parte, July 11,1990, attached hereto as Exhibit 4.

8 Dare Babarinsa et al., “Good-bye Maroko: Lagos State authorities uproot 300,000 Marokoresidents and leave a huge refugee problem behind,” Newswatch (July 30, 1990) at 17(hereinafter “Good-bye Maroko”), attached hereto as Exhibit 5.

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12. When the application was finally heard on July 16, 1990, after the demolitionhad commenced, it was treated with the same lack of urgency. The trial judge improperlyrefused the application on erroneous procedural grounds (namely, that the issues raised wereproprietary in nature and thus did not relate to enforcement of the applicants’ fundamentalrights under Nigeria’s Fundamental Rights (Enforcement Procedure) Rules, 1979).9 Thejudge then dismissed the application for an injunction as moot, because, as a result of thecourt’s own inaction, the demolition had already taken place.10 In fact, although a largenumber of structures had already been damaged or destroyed, the demolition was to continueunabated for another ten days, until July 25, 1990.11 The court had the power, evenbelatedly, to forestall a significant amount of the damage, and to prevent the now irreversibledestruction of the Maroko community, and yet it did nothing.

ii. The Appeal.

13. On July 19, 1990, within days of the trial court’s July 16, 1990, denial of theirclaim, the evictees filed an appeal. The Nigerian Court of Appeal took no interlocutoryaction to halt the ongoing demolition, and the appeal languished without a decision for nearlyfive years. On May 4, 1995, the Court of Appeal at last issued its ruling reversing the trialjudge’s procedural ruling, and reinstating the evictees’ initial application.12 Nevertheless,although the Court of Appeal found it had cause itself to grant leave for the evictees topursue their claim on the merits, it chose to remit the case to the High Court for furtherproceedings, introducing a further unnecessary delay.

iii. Subsequent Trial Court Proceedings.

14. With the case back in the High Court of Lagos State, the evictees promptlysought to move the proceedings forward. As required under the applicable procedural rules,and because the Court of Appeal had not granted leave to proceed directly to the merits, theapplicants were forced to file, on or around July 20, 1995, a Motion on Notice with the LagosHigh Court for a hearing on the July 11, 1990 application—essentially restarting the entirelegal process before the courts.

9 Fundamental Rights (Enforcement Procedure) Rules, 1979, available at http://www.nigeria-law.org/FundamentalRights(EnforcementProcedure)Rules1979.htm.

10 See Kokoro-Owo et al. v. Lagos State Gov. et al., Appeal No. CA/L/210M/90, Judgment (Courtof Appeal at Lagos, May 4, 1995), at 3, attached hereto as Exhibit 6.

11 See Malagu Oumarou-Sanda, “Sorrow, Tears and Blood – the Maroko Demolition,” Island News(July 19, 2004) at 4 (hereinafter “Sorrow, Tears and Blood”), attached hereto as Exhibit 7(noting that the demolition began in the morning of July 14, 1990 and that “for 12 days and 12nights, the bulldozers worked . . . [to] reduc[e] . . . [the community] to rubble[]”).

12 See Judgment, note 10, above, at 4) (noting that the trial judge relied on an “erroneoussubmission on a question of law”).

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15. In February and March 1998, the evictees filed and served AmendedStatements in order to add new applicants to substitute for those who had died awaiting aresolution of the case and to add claims for damages because the government had completedthe demolition after the courts had failed to halt it.13

16. After many years of deliberate delay, in December of 2002, the Lagos Stategovernment filed a Preliminary Objection to the evictees’ claims.14 It did not, however, filewritten arguments in support of its objections. In February 2003, the government soughtleave to file its counter-statement of facts and sought a further extension of time to file itswritten argument.15 As grounds for this extension, the government asserted that it had notbeen served with the evictees’ Statement—the document which provides a brief summary ofthe grounds giving rise to the applicants’ claims and essentially initiates the case.16 At thatpoint, the litigation had already been pending for over twelve years and the government hadparticipated in two appeals and many years of High Court proceedings. In addition, thegovernment had at that point been served with the evictees’ Amended Statements on at leasttwo prior occasions.17

17. In May 2003, the government renewed its Preliminary Objection to theevictees’ application, attaching a counter-statement of facts, but neglecting to include itswritten argument.18 In December 2003, the court ordered the evictees to re-file and re-servetheir Amended Statement, which they promptly did in January 2004.19 Following a series ofadjournments by the court, the government finally filed its written argument in support of itsPreliminary Objection in April 2006, nearly three years after the renewed PreliminaryObjection was filed.20 The evictees promptly filed their written response to the objection in

13 See Kokoro-Owo, Case No. M/394/90 Motion on Notice (and accompanying schedule) (Feb. 17,1998), attached hereto as Exhibit 8; Kokoro-Owo, Case no. M/394/90, Motion on Notice (andaccompanying schedule) (March 13, 1998), attached hereto as Exhibit 9.

14 See Kokoro-Owo, Case no. M/394/90, Notice of Preliminary Objection (December 18, 2002),attached hereto as Exhibit 10.

15 See Kokoro-Owo, Case no. M/394/90, Motion on Notice (February 17, 2003), attached hereto asExhibit 11.

16 Id. ¶ 3.

17 See ¶ 15, above.

18 See Kokoro-Owo, Case no. M/394/90, Notice of Preliminary Objection (May 6, 2003), attachedhereto as Exhibit 12.

19 See Kokoro-Owo, Case no. M/394/90, Amended Statement (January 20, 2004), attached heretoas Exhibit 13.

20 See Kokoro-Owo, Case no. M/394/90, Written Argument in Support of the Notice of PreliminaryObjection Dated 6th May 2003 (April 5, 2006), attached hereto as Exhibit 14.

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May 2006.21 Eight months later, in February 2007, the court issued its ruling denyingdefendants’ Preliminary Objection.22

iv. Current Status of Proceedings.

18. After the denial of the Preliminary Objection, the evictees, who since 2005have been represented in the High Court proceedings by SERAC (the author of the presentCommunication) believed they would finally receive a hearing on their claims and achieve aresolution of the (then) 17 year old litigation. The trial court, however, again refused to ordera hearing on the merits of the evictees’ claims. Instead, on February 2, 2007, the judge thenpresiding over the case ordered a Pre-Trial Conference,23 despite the fact that such a step isnot required under the streamlined procedures applicable in cases to enforce fundamentalrights.24 Although discouraged by this new and unexpected procedural hurdle, on August 31,2007, the evictees filed a Hearing Notice for Pre-Trial Conference, attaching a Pre-TrialInformation Sheet as required by the Civil Procedure Rules, and requested a date for ahearing, expecting the conference to be a pro forma matter that would be quickly concluded.

19. Before the Pre-Trial Conference could be held, however, the presiding judgewas transferred to another division of the Lagos State High Court in the middle of the 2007Court vacation–a vacation that lasted from July to September 2007. A new judge was notassigned to the case until October 22, 2007, when the evictees applied to the AdministrativeJudge of the High Court for reassignment. The case was then reassigned and came up beforea new judge on February 4, 2008. The court did not sit on that date, however, due to anationwide strike by judicial workers. The matter was adjourned to February 28, 2008.

20. On February 28, 2008, the court was open, but the Lagos State governmentfailed to appear. Rather than meeting this flagrant disregard of the court’s orders andprocedure with sanctions or penalties, the court made no effort to progress the case, andmerely adjourned it again, this time to April 21, 2008. The court further ordered the evicteesto serve a formal Hearing Notice on the Lagos State government and the other respondents.

21 See Kokoro-Owo, Case no. M/394/90, Written Address Opposing the 1st and 2nd Defendants’Notice of Preliminary Objection Dated the 6th Day of May 2003 (May 26, 2006), attachedhereto as Exhibit 15.

22 Kokoro-Owo, Case no. M/394/90, Ruling (re 1st and 2nd Defendants’ Notice of PreliminaryObjection dated 6 May 2003) (February 2, 2007), attached hereto as Exhibit 16.

23 The events described in paragraphs 18 to 26 are verified in the annexed Verifying Affidavit ofVictoria Ohaeri, dated October 9, 2009, ¶¶ 2-20.

24 Compare Fundamental Rights (Enforcement Procedure) Rules, 1979, with Order 15(4) of theHigh Court of Lagos State (Civil Procedure) Rules 2004, available at http://www.nigeria-law.org/LagosStateJudiciaryHighCourtRules2004.htm.

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21. By the date of the April 21, 2008 hearing, despite receiving the formalHearing Notice, the Lagos State government had not yet filed a Pre-Trial Information Sheetas it was required to do under the Civil Procedure Rules. Moreover, the High Court onceagain could not hear the case, this time due to a power outage, and the case was adjourned toJune 9, 2008.

22. On June 9, 2008, although the court was open for hearings, the fourthrespondent failed to appear, and instead submitted a letter to the court requesting yet anotheradjournment. The court again adjourned the case to October 2, 2008.

23. On October 2, 2008 the court was again closed. No reason was advanced forthe court’s inability to hear cases, and the case was further adjourned to November 6, 2008.On November 6, 2008, the court again did not sit, and once again no reason was advanced forthis. The case was further adjourned to January 29, 2009.

24. On January 29, 2009, the court was finally able to hold the first Pre-TrialConference. At that hearing, almost two years after the Conference had been ordered by theprior judge, the presiding judge discontinued the Pre-Trial Conference, finding that a Pre-Trial Conference was improper in a suit brought under the Fundamental Rights (EnforcementProcedure) Rules, 1979.

25. On March 16, 2009, the case came up before the judge again. At this hearing,nearly 19 years after the evictees had commenced their action and nearly 14 years after theCourt of Appeal had found that the evictees should be granted leave to pursue their claims,the High Court granted the evictees July 11, 1990 ex parte application for leave to apply forenforcement of their fundamental rights. This grant of leave did not indicate that the evicteeshad been successful on their claims, however. Rather, it merely permitted them to pursuetheir claims in the first instance.

26. Notwithstanding this apparently favorable development, the judge introducedan unexpected and unwarranted procedural hurdle. Rather than proceed to schedule the casefor trial, she once again ordered the evictees to re-serve their Amended Statement on all ofthe respondents, as if, 19 years after the commencement of the proceedings, the RespondentState had never had notice of the case or the claims. Moreover, even now, the defendantscontinue to submit new procedural motions which can only lead to further prolongation of adetermination of the evictees’ case.

27. Thus, despite diligent efforts to pursue a local remedy in the Nigerian courts,the evictees have yet to be granted a single hearing on the merits of their claims, and theyhave never been permitted to introduce the significant evidence of their rights to the Marokolands, the violence that was done to them during the demolition, and the ongoing harm totheir health, education, family lives, work, and development caused by the eviction and bythe inadequate housing that some of them have secured for themselves.

28. If the current pace of the court action continues (and the Maroko evictees haveevery reason to believe that it will), the case could easily continue for many more years with

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no resolution. Consequently, the evictees and SERAC, their counsel, have concluded that alocal remedy from the Nigerian courts will not be forthcoming in the foreseeable future.

B. Other Avenues of Redress Pursued by the Evictees.

29. Even during the pendancy of the court proceedings, SERAC and the evicteeshave pursued several other avenues for redress from the Nigerian government. The evictionshave been the subject of several reports by independent human rights organizations, bringingattention both within Nigeria and internationally to the events of July 1990 and to Nigeria’sneglect of the evictees’ plight.25 In addition, the evictees appealed directly to the state, filingpetitions with Nigeria’s Oputa Commission and with the Lagos State House of Assembly.

i. The Oputa Commission

30. In July 1999, a group of Maroko evictees petitioned the Human RightsViolations Investigation Commission of Nigeria (known as the Oputa Commission after itsChairman, the Hon. Justice C. A. Oputa, Justice Emeritus of the Supreme Court of Nigeria).The Oputa Commission was established after the restoration of civilian rule to investigatehuman rights abuses during over thirty years of military regimes. After reviewing thepetition submitted by the Maroko evictees, the Commission was of the view that the LagosState government “should, on behalf of its predecessors, apologize to Maroko residents andpublicly condemn the high-handedness of Col. Rasaki’s government especially given thatthese innocent citizens went through this harrowing experience so as to satisfy the greed of afew elites whose residences have now sprung up in Maroko.”26 In addition, the OputaCommission recommended that the government properly resettle the Maroko evictees inadequate housing.27

31. The government of Nigeria has never carried out the Oputa Commission’srecommendations.

ii. Legislative Efforts

32. In September 2004, the Maroko evictees, with the assistance of SERAC, fileda petition with the Lagos State House of Assembly’s Committee on Judiciary, Ethics andPrivileges, Human Rights and Public Petitions over the government’s human rights abusesassociated with the forced evictions. In response, the House of Assembly erroneouslyconcluded that the overcrowded, decayed, collapsing and in some cases non-existent housingat the Ilasan, Ikota, and Epe estates was adequate compensation for those few who hadsought shelter there, and resolved that the remaining evictees who had been “victims of the

25 See note 4, above.

26 Report Submitted by the Human Rights Violations Investigation Commission, May 2002, ¶ 72,attached hereto as Exhibit 17.

27 Ibid.

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unfortunate saga” should be re-settled “on humanitarian grounds.”28 The resolution passedby the House of Assembly stated:

Based on the accurate data of Evictees prepared by New TownsDevelopment Authority (NTDA), the State Government willwork in conjunction with SERAC, Ford Foundation and otherinterested NGOs in resettling the outstanding Maroko Evicteesas part of the resolution of the House.29

However, the Lagos State has failed to carry out even this limited legislative mandate.

ARGUMENT

33. To be considered admissible, communications submitted to the Commissionpursuant to Article 55 of the African Charter must meet the requirements of Article 56, whichstates:

Communications relating to human and peoples’ rights referred to inArticle 55 received by the Commission, shall be considered if they:

1. Indicate their authors even if the latter request anonymity,

2. Are compatible with the Charter of the Organization of African Unity orwith the present Charter,

3. Are not written in disparaging or insulting language directed against theState concerned and its institutions or to the Organization of AfricanUnity,

4. Are not based exclusively on news discriminated through the massmedia,

5. Are sent after exhausting local remedies, if any, unless it is obvious thatthis procedure is unduly prolonged,

6. Are submitted within a reasonable period from the time local remediesare exhausted or from the date the Commission is seized of the matter, and

7. Do not deal with cases which have been settled by those States involvedin accordance with the principles of the Charter of the United Nations, or

28 See Lagos State House of Assembly, Report on the Petition from the Maroko Evictees, April 25,2005, §§ 3.10.1, 5.0, 5.1, attached hereto as Exhibit 18.

29 Resolution of the Lagos State House of Assembly, Plenary Session of April 11, 2005, attachedhereto as Exhibit 18.

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the Charter of the Organization of African Unity or the provisions of thepresent Charter.30

34. As explained below, the Communication satisfies each of these requirements.The only provision of Article 56 which merits any detailed discussion is Article 56(5)concerning the exhaustion of local remedies. Accordingly this requirement is discussed first,followed by brief observations on the remaining admissibility requirements. As all seven ofArticle 56’s requirements are satisfied, SERAC respectfully requests that the Commissiondeclare the Communication admissible.

I. The Communication Satisfies Article 56(5)’s Exhaustion Requirement

35. Article 56(5) of the African Charter requires applicants to the Commission to“exhaust[] local remedies, if any, unless it is obvious that this procedure is undulyprolonged,” before attempting to seek redress from the Commission. Article 56(5)’sexhaustion requirement is not rigid, however. Article 19 v. Eritrea, Comm. 275/2003, 22ndActivity Report (2007), ¶ 48. Like the other admissibility criteria, it “must be appliedbearing in mind the character of each communication.” Amnesty International and Others v.Sudan, Comms. 48/90, 50/91, 52/91, 89/93, 13th Activity Report (1999), ¶ 28. That is, theCommission “interprets the provisions of Article 56(5) in the light of its duty to protecthuman and peoples’ rights as stipulated in the Charter.” Malawi African Ass’n and Others v.Mauritania, Comms. 54/91, 61/91, 98/93, 164-196/97, 210/98, 13th Activity Report (2000),¶ 85.31 Accordingly, the Commission has established a number of exceptions to therequirement that local remedies be exhausted. See Article 19, Comm. 275/2003, ¶ 48.

36. As discussed in further detail below, (A) the Maroko evictees are not requiredto exhaust local remedies because those remedies are unavailable and ineffective, and (B) thecase falls squarely within the express exception to Article 56(5)’s exhaustion requirement forcases in which proceedings to obtain local remedies are “unduly prolonged.” Moreover, (C)this case implicates none of the issues underlying the local remedies requirement.

A. The Maroko Evictees Are Not Required to Meet the Exhaustion RequirementBecause Local Remedies Are Not Available or Effective.

37. Under the Commission’s jurisprudence, an applicant is not required to exhaustlocal remedies if such remedies are unavailable, ineffective, or insufficient. Article 19,Comm. 275/2003, ¶ 51; Ilesanmi v. Nigeria, Comm. No. 268/2003, 18 Activity Report(2005), ¶ 45; Jawara v. The Gambia, Comm. 149/96, 13th Activity Report (2000), ¶ 31.

30 African Charter, art. 56.

31 See also Akdivar and Others v. Turkey, Eur. Ct. H.R., Case 99/1995/605/693 (1996), ¶ 69 (“theapplication of the [exhaustion] rule must make due allowance for the fact that it is being appliedin the context of machinery for the protection of human rights . . .[and the Court] has recognisedthat [the rule] must be applied with some degree of flexibility and without excessiveformalism.”).

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“[A]ll three criteria [i.e., availability, effectiveness, and sufficiency,] must be present for thelocal remedy envisaged in Article 56(5) to be considered worthy of pursuing.” Centre onHousing Rights and Evictions v. Sudan, Comm. 296/05 (2006), ¶ 61. “A remedy isconsidered available if the petitioner can pursue it without impediment, it is deemed effectiveif it offers a prospect of success, and it is found sufficient if it is capable of redressing thecomplaint.” Jawara, Comm. 149/96, ¶ 32.

38. These principles are consistent with the law of other international humanrights tribunals which this Commission has found persuasive.32 For example, the EuropeanCourt of Human Rights has held that the exhaustion requirement under the EuropeanConvention “is based on the assumption . . . that there is an effective remedy available inrespect of the alleged breach in the domestic system.”33 Likewise, the United NationsHuman Rights Committee “has consistently taken the view that a remedy does not have to beexhausted if it has no chance of being successful.”34 The American Convention on HumanRights provides an express exception to the exhaustion requirement where the applicant “hasbeen denied access to the remedies under domestic law or has been prevented fromexhausting them.”35 In interpreting this provision, the Inter-American Court of HumanRights has stated that the exhaustion requirement does not apply when domestic remedies“are not available either as a matter of law or as a matter of fact.”36 In the case of VelásquezRodríguez, the Court elaborated, stating that exhaustion is not required when

it is shown that remedies are denied for trivial reasons orwithout an examination of the merits, or if there is proof of theexistence of a practice or policy ordered or tolerated by thegovernment, the effect of which is to impede certain personsfrom invoking internal remedies that would normally be

32 See African Charter, arts. 60-61 (providing that the Commission “shall draw inspiration frominternational law on human and peoples’ rights” in ascertaining the principles to be applied incarrying out its mandate).

33 Akdivar, Eur. Ct. H.R., Case 99/1995/605/693, ¶ 65.

34 Semey v. Spain, Human Rights Committee, Comm. 986/2001, U.N. Doc.CCPR/C/78/D/986/2001 (2003), ¶ 8.2.

35 American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123(hereinafter “American Convention”), art. 46(2).

36 Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of theAmerican Convention on Human Rights), Advisory Opinion No. OC-11/90, Inter. Am. Ct. H.R.(Ser. A) No. 11 (1990), ¶ 17.

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available to others. In such cases, resort to those remediesbecomes a senseless formality.37

39. Where the admissibility of a communication is challenged on exhaustiongrounds, it is the state’s burden to establish that local remedies are available, effective andsufficient to cure the violation alleged. Article 19, Comm. 275/2003, ¶ 51; RencontreAfricaine pour la Défense des Droits de l’Homme v. Zambia, Comm. 71/92, 10th ActivityReport (1996), ¶ 13. In order to meet this burden, the state cannot simply point to theexistence of local remedies “in abstracto,” but must “relate[] them to the circumstances ofthe case,” and “show[] how they might provide effective redress.” Article 19, Comm.275/2003, ¶ 73. For the reasons outlined below, the Respondent State cannot meet thisburden.38

i. Local Remedies Are Unavailable Because the Courts Are Unwilling toAct

40. No local remedy is available because the courts and the Lagos Stategovernment have continually impeded the Maroko evictees’ ability to pursue a remedy. ThisCommission has held that “a remedy is considered available only if the applicant can makeuse of it in the circumstance[s] of his case.” Jawara, Comm. 149/96, ¶ 33. In other words“[t]he existence of a remedy must be sufficiently certain, not only in theory but also inpractice, failing which it will lack the requisite accessibility and effectiveness.” Id. ¶ 35.The exhaustion requirement “does not . . . mean that the complainant should necessarilyexhaust remedies which, in practical terms, are not available.” Diakité v. Gabon, Comm. No.73/92, 13th Activity Report (2000), ¶ 16.

41. Although some of the evictees have sought to vindicate their claims in theNigerian courts, the court and the government have continually engaged in dilatory tactics orraised unmeritorious or extraordinary procedural obstacles that have stalled the litigation foryears at a time. As detailed above (paragraphs 9-28), on July 11, 1990, some of the residentsof Maroko filed a claim seeking to prevent the destruction of Maroko, and, after thedemolition was allowed to occur, continued pressing their case to secure compensation forthe violations of their rights. To date, there has been no examination of the merits of theclaims brought by the Maroko evictees in Nigerian courts. Instead, after more than 19 years,the claims are essentially once again at the very earliest stages of litigation with everyindication that endless delays will continue. Requiring the evictees to continue pursuing aremedy in the domestic forum would be “a senseless formality.”

37 Velásquez Rodríguez Case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), ¶ 68. See also Zegveld,Comm. 250/2002, ¶ 36 (citing to Velásquez).

38 Jurisprudence from other international human rights bodies similarly place the burden on therespondent state to establish that local remedies are available and effective. See, e.g., Akdivar,99/1995/605/693 (ECHR), ¶ 68.

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ii. Local Remedies Are Ineffective Because There Is Little Prospect ofSuccess

42. The local remedies the Maroko evictees have attempted to pursue areineffective because they offer no reasonable prospect of success. This is exemplified by theMaroko evictees’ desperate and futile attempt to seek preliminary injunctive relief in the faceof the impending eviction in July, 1990. Not only was the hearing on the legality of thegovernment’s proposed eviction of the evictees scheduled only for after the evictions hadbegun, but even after a supplementary emergency filing with the High Court, the court tookno action. In addition, Nigerian government officials openly boasted about their ability toignore the outcome of any court proceedings. For example, in the days prior to thedemolition of Maroko, Colonel Rasaki stated, “[i]t is left for me as chief executive of thestate to decide whether to obey the court injunction” if one were issued39—a threat whichmay well have impacted the manner in which the Maroko evictees’ petition for a preliminaryinjunction was handled.

43. As with their request for injunctive relief, the local court proceedings pursuedafter the demolition offer no prospect of success for the Maroko evictees. Both the court andthe Lagos State government as defendant have shown a willingness to allow the proceedingsto continue indefinitely. The government and other respondents have routinely floutedorders to file arguments, such as for the Pre-Trial Conference (see paragraphs 18 to 24,above) and the court has not imposed the sanctions for such failures that are required by theapplicable rules. Even when the court has ruled in the evictees’ favor on procedural issues, ithas brought them no closer to a resolution of the case. Indeed, in some instances, when theevictees believed they might finally receive a hearing on their claims, the court imposed newprocedural requirements that have placed them in the same position they had occupied yearsearlier. These endless delays and failures of the court to act demonstrate that the evicteeshave no realistic hope of ever obtaining a remedy. Whatever remedy this process maytheoretically bring, it is insufficiently certain in practice to provide “the requisite accessibilityand effectiveness.” Jawara, Comm. 149/96, ¶ 35.

44. Likewise, although the Oputa Commission found in favor of the Marokoevictees, its recommendations were purely advisory, have not altered the status of theMaroko evictees and cannot be found to constitute an effective remedy. See, e.g., Centre onHousing Rights and Evictions v. Sudan, Comm. 296/05 (2006), at 10 (noting that “theexhaustion of domestic remedies . . . requires the exhaustion of legal remedies and notadministrative remedies.” ); Ilesanmi v. Nigeria, Comm. No. 268/2003, 18th Activity Report(2005), ¶ 42 (“The remedies required under article 56(5) are legal remedies and notadministrative or executive remedies.”); see also C. v. Australia, Human Rights Comm.,Comm. 900/1999, ¶ 6.6, U.N. Doc CCPR/C/OP/8 (2002) (where the Human RightsCommittee has held that administrative remedies whose decisions were onlyrecommendatory in nature did not constitute “effective remedies”). Moreover, the

39 “No going back on relocation of Maroko residents, says Rasaki,” The Guardian, July 10, 1990,attached hereto as Exhibit 19.

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Respondent State has continually ignored the Oputa Commission’s findings or failed tofollow through and carry out its recommendations.

iii. Local Remedies Are Unavailable and Ineffective Because of the Scaleof the Human Rights Violations

45. The Commission has also recognized the inapplicability of the exhaustionrequirement in cases, such as this, involving mass violations of human rights. TheCommission has held that in assessing the applicability of the exhaustion requirement there isa “distinction between cases in which the complaint deals with violations against victimsidentified or named and those cases of serious and massive violations in which it may beimpossible for the complainants to identify all the victims.” Amnesty International, Comm.No. 48/90, 50/91, 52/91, 89/93, ¶ 30.40 “In cases of serious and massive [violations], theCommission reads Article 56.5 in the light of its duty to protect human and peoples’ rights asprovided for by the Charter. Consequently, the Commission does not hold the requirement ofexhaustion of local remedies to apply literally, especially in cases where it is ‘impractical orundesirable’ for the complainants or victims to seize the domestic courts.” Id. ¶¶ 38-39; seealso Malawi African Ass’n, Comm. Nos. 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98, ¶85; Centre on Housing Rights and Evictions, Comm. 296/05, ¶ 65 (holding “the scale of thealleged abuses, the number of persons involved and the nature of the alleged abuses ipsofacto makes local remedies unavailable, ineffective and insufficient. . . [Indeed given that]tens of thousands of people [in Darfur] have been forced from their homes. . . [i]t isimpracticable and undesirable to expect these victims to exhaust . . .[local] remedies.”).

46. Although, the Maroko residents have engaged in extensive efforts to exhaustlocal remedies, the present case falls squarely within the exception discussed in MalawiAfrican Association, Amnesty International, and Centre on Housing Rights and Evictions.Approximately 300,000 former residents of the Maroko region were forcibly and violentlydisplaced from their homes and their community destroyed. Many of these evictees werebeaten, and some were raped and even killed. Further, in addition to the loss of life andproperty, the Maroko evictees faced a significant impairment in their health, education andwelfare, all in clear violation of the terms of the African Charter. The Nigerian government’spurported attempt to re-house a small number of Maroko evictees in sub-standard andinhospitable structures at Ilasan, Ikota, and Epe, is clearly insufficient, particularly given thatthese “re-settled” evictees continue to face the threat of further evictions. SeeCommunication, ¶¶ 13-29. Here, as in Malawi African Association, Amnesty International,and Centre on Housing Rights and Evictions, the sheer number of victims involved, theseriousness of the human rights violations attributed to the government and the reluctance onthe part of the government to meaningfully address the Maroko evictees’ claims render localremedies unavailable and ineffective in practical terms.

40 This case “deals with the arbitrary arrests and detentions that took place following the coup of 30July 1989 in Sudan. It is alleged therein that hundreds of prisoners were detained without trial orcharge.” Amnesty International, Comm. No. 48/90, 50/91, 52/91, 89/93, ¶ 1.

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47. In sum, because Nigeria has failed to offer available or effective localremedies, the Maroko evictees are not required to aimlessly pursue these remedies with nohope of securing relief or to ensure that the domestic remedies have been exhausted.

B. Even if Local Remedies Were Available and Effective, the Maroko EvicteesHave Satisfied Article 56(5) Because the Local Remedies Have Been UndulyProlonged.

48. The African Charter provides an express exception to the exhaustionrequirement where, as here, the applicant has already submitted its claim before domesticcourts but has experienced a lengthy delay in obtaining any redress. Pursuant to Article56(5) of the African Charter local remedies need not be exhausted if it is “obvious that thisprocedure [has been] unduly prolonged.” This exception clearly applies to the presentCommunication.

49. The Commission’s communication procedure guidelines explain that theunduly prolonged exception is applicable when domestic procedures are delayed, “forexample, say by numerous and unnecessary adjournments.”41 The Commission has foundthat a claimant’s local remedies have been unduly prolonged when they have been pendingfor as little as 18 months. For example, in Zegveld and Ephrem v. Eritrea, the Commissionfound undue delay where 11 detainees were held for more than 18 months without formalcharges and without access to their lawyers or families, “render[ing] them unable to seeklegal or administrative redress.” Comm. No. 250/2002, 17th Activity Report (2003), ¶¶ 27-28. In Odjouoriby v. Benin, the Commission upheld its previous decision declaring acommunication admissible where a case had been pending before the court of appeals fornine years without judgment. Comm. 199/97, 17th Activity Report (2004), ¶¶ 17-23. TheCommission noted that “it is obvious that the proceedings will remain in impasse as long asthe Appeal Court has not made any ruling on the appeal pending before it.” Id. ¶ 18. InModise v. Botswana, the Commission declared the communication admissible in the absenceof exhaustion of local remedies because the applicant had commenced his action in localcourts over 16 years before the communication was brought before the Commission. Comm.97/93, 10th Activity Report (1997). The Commission made note of the fact that the legalprocess had been “repeatedly interrupted” and “willfully obstructed” by the governmentthrough summary deportations of the applicant. Id. ¶ 20; see also Modise v. Botswana,Comm. 97/93, 14th Activity Report (2000), ¶ 69 (subsequent Commission decision affirmingoriginal admissibility finding).

50. The exemption of applicants from satisfaction of the exhaustion requirementwhen local remedies have been unduly prolonged is also a firmly established principle in thejurisprudence of other human rights bodies. Article 46(2)(c) of the American Convention onHuman Rights, like Article 56(5) of the African Charter, provides an explicit exception to the

41 Afr. Comm’n on Human & Peoples’ Rights, Communication Procedure: Information Sheet No.3 (hereinafter “Information Sheet No. 3”), at 6, available at http://www.achpr.org/English/information_sheets/ACHPR%20inf.%20sheet%20no.3.doc.

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admissibility requirement of exhaustion when “there has been unwarranted delay inrendering a final judgment,”42 and the Inter-American Commission has interpreted this clauseto include cases where domestic proceedings have been delayed for as little as five years.See Sassen van Elsloo Otero and Torres Herbozo v. Ecuador, Petition 183/02, Report No.70/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 284 (2002), ¶¶ 24-30 (finding unwarranted delaywhere case had been pending for five years before a military court without a finaljudgment).43

51. Similarly, according to Article 2 of the Optional Protocol to the InternationalCovenant on Civil and Political Rights, the requirement that individuals submittingcommunications to the Human Rights Committee (the body that monitors state compliancewith the ICCPR)44 “exhaust[] all available domestic remedies” is inapplicable “where theapplication of the remedies is unreasonably prolonged.”45 Indeed, the Human RightsCommittee has adopted a rule that “for the purposes of article 5, paragraph 2(b) of theOptional Protocol, domestic remedies must be effective and available, and must not beunduly prolonged.” Arredondo v. Peru, Human Rights Comm., Comm. 688/1996, U.N. Doc.CCPR/C/69/D/688/1996 (2000), ¶ 6.2.46 The Committee on the Elimination of

42 American Convention, art 46(2)(c).

43 See also Portugal v. Panama, Case 357/01, Report No. 72/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at376 (2002), ¶¶ 22-24 (12 year criminal investigation into disappearance prima facie constitutesunwarranted delay under Article 46(2)(c)); Tames v. Brazil, Case 11.516, Report Nº 19/98, Inter-Am. C. H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 112 (1997), ¶ 22 (initial proceedings took sevenyears, and a final judgment was “nowhere in sight”); Oliveira v. Brazil, Case 11.694, Report No.36/01, Inter-Am. C.H.R., OEA/Ser.L/V/II.111 Doc. 20 rev. at 178 (2000), ¶¶ 21-25 (finding thata delay of six years in the preliminary investigation “implies that criminal proceedings cannot bebrought, thereby making it impossible for the perpetrators to be punished”); Restrepo v.Colombia, Case 11.726, Report No. 84/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 185 (2000), ¶¶21–25 (preliminary investigation lasted eight years); da Silva Cassiano et al. v. Brazil, Case12.198, Report No. 51/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 164 (2004), ¶20 (undue delay where proceedings lasted for 10 years).

44 The Human Rights Committee is empowered to hear individual petitions for violations of theICCPR, provided that the state exercising jurisdiction over the petitioning individual has accededto the Optional Protocol to the International Covenant of Civil and Political Rights. OptionalProtocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302 (hereinafter“ICCPR Optional Protocol”), art. 1.

45 ICCPR Optional Protocol, arts. 2, 5(2)(b).

46 There is ample HRC jurisprudence on undue delay. In a petition alleging arbitrary arrest anddetention, the HRC, pursuant to Article 5(2)(b), held that the exhaustion requirement did notapply since final judgment in the domestic proceedings had not been rendered in over four and ahalf years since the arrest of the petitioner. Weinberger v. Uruguay, Human Rights Comm.,Comm. 28/1978, U.N. Doc. CCPR/C/OP/1 at 57 (1984), ¶ 11; see also Sarma v. Sri Lanka,Human Rights Comm., Comm. 950/2000, U.N. Doc. CCPR/C/78/D/950/2000 (2003), ¶ 6.3

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Discrimination against Women (“CEDAW Committee”), 47 the Committee on theElimination of Racial Discrimination (“CERD Committee”) 48 and the Committee againstTorture (“CAT”) 49 all also contain provisions exempting claimants from the exhaustion of

(stating that an investigatory commission’s seven-year delay in reaching a final conclusion onthe disappearance of the alleged victim was unreasonably prolonged and that the petition wasadmissible to the HRC); Arredondo v. Peru, Human Rights Comm., Comm. 688/1996, above,¶ 6.2 (stating that the petition was admissible, even though domestic remedies had not been fullyexhausted, because eight years had passed without resolution since the alleged victim’s trialcommenced); Des Fours Walderode & Kammerlander v. Czech Republic, Human RightsComm., Comm. 747/1997, U.N. Doc. CCPR/C/73/D/747/1997 (2001), ¶ 6.4 (an additional fiveyears for the finalization of a constitutional appeal would result in unreasonably prolongeddomestic remedies, particularly given the age of the complainant).

47 Article 4(1) of the CEDAW Optional Protocol provides: “The Committee shall not consider acommunication unless it has ascertained that all available domestic remedies have beenexhausted unless the application of such remedies is unreasonably prolonged or unlikely to bringeffective relief.” Optional Protocol to the Convention on the Elimination of Discriminationagainst Women, G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/49(Vol. I) (2000), 2131 U.N.T.S. 83. Indeed, the CEDAW Committee has adopted the view that “adelay of over three years from the dates of the incidents in question would amount to anunreasonably prolonged delay within the meaning of article 4, paragraph 1, of the OptionalProtocol . . . .” See A. T. v. Hungary, Comm. on the Elimination of Discrimination againstWomen, Comm. No. 2/2003, U.N. Doc. CEDAW/C/32/D/2/2003 (2005), ¶ 8.4.

48 Pursuant to Article 14(7), the CERD Committee “shall not consider any communication from apetitioner unless it has ascertained that the petitioner has exhausted all available domesticremedies. However, this shall not be the rule where the application of the remedies isunreasonably prolonged.” International Convention on the Elimination of All Forms of RacialDiscrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc.A/6014 (1966), 660 U.N.T.S. 195, art. 14(7)(a) (emphasis added); see Durmic v. Serbia andMontenegro, Comm. on the Elimination of Racial Discrimination, Comm. 29/2003, U.N. Doc.CERD/C/68/D/29/2003 (2006), ¶ 6.5 (finding that four and a half years of seeking domesticadjudication of the alleged victim’s claim is unreasonably prolonged).

49 Article 22(4) of the CAT requires individuals to exhaust all available domestic remedies.However, the rule does not apply where “the application of the remedies is unreasonablyprolonged or is unlikely to bring effective relief to the person who is the victim of the violationof this Convention.” Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N.Doc. A/39/51 (1984)], 1465 U.N.T.S. 85, art. 22(4); see Dimitrov v. Serbia and Montenegro,Comm. against Torture, Comm. 171/2000, U.N. Doc. CAT/C/34/D/171/2000 (2005), ¶ 7.1(Committee deemed admissible a complaint that alleged that the local authorities only beganinitial investigatory actions some three and a half years after the alleged victim lodged hiscomplaint); see also Dimitrijevic v. Serbia and Montenegro, Comm. against Torture, Comm.207/2002, U.N. Doc. CAT/C/33/D/207/2002 (2004), ¶ 5.2 (stating that two and a half years of noresponse to the alleged victim’s complaint rendered the domestic remedy unreasonablyprolonged.).

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local remedies requirement where access to the local remedy has been unreasonablyprolonged.

52. Under any reasonable interpretation of Article 56(5) and the communicationprocedure guidelines, as well as the Commission’s prior rulings on exhaustion, it is clear thata 19 year delay in court proceedings, replete with unnecessary adjournments and otherdilatory tactics is an instance where the local remedy has been unduly prolonged, particularlygiven the seriousness of the violations alleged and the ongoing harm suffered by the evictees.The evictees filed their initial claim before the Nigerian courts on July 11, 1990, and to date,19 years later, there has not been a single hearing on the merits and the case is still mired inprocedural issues.

53. Consistent with the object and purpose of Article 56(5) and the Commission’sjurisprudence, as well as that of other human rights tribunals interpreting the exhaustionrequirement, the domestic proceedings in the Maroko eviction case have been undulyprolonged. The Communication should therefore be found to fall squarely within Article56(5)’s explicit exemption from the requirement to exhaust local remedies.

C. The Communication Satisfies the Principles that Undergird the ExhaustionRequirement.

54. The requirement that local remedies must be exhausted reflects the principleof “subsidiarity” in international law pursuant to which states must be permitted “to solvetheir internal problems in accordance with their own constitutional procedures beforeaccepted international mechanisms can be invoked.” Article 19 v The State of Eritrea,Comm. 275/2003, 22nd Activity Report (2007), ¶ 45. The Commission has identified threeprimary purposes for giving the respondent state the first opportunity to respond to claims ofhuman rights violations, recognizing that the subsidiarity principle is limited by therequirement that a state provide domestic remedies that are available, effective and sufficient.See Jawara, Comm. 149/96, ¶ 31; Tsikata v Ghana, Comm. No. 322/2006, 21st ActivityReport (2006), ¶ 53; Malawi African Ass’n, Comms. 54/91, 61/91, 98/93, 164-96/97 and210/98, ¶ 80.

55. First, the Commission has held that “the exhaustion of local remediesrequirement [serves] to give the domestic courts an opportunity to decide upon cases beforethey are brought to an international forum, thus avoiding contradictory judgements of law atthe national and international levels.” Social and Economic Rights Action Center and theCenter for Economic and Social Rights v. Nigeria, Comm. 155/96, 15th Activity Report(2001) (hereinafter “Ogoni Case”), ¶ 37. Of course, if a state is unable or willfully choosesnot to resolve a case at the local level, “the potential of conflict does not arise.” Ibid.

56. Second, the exhaustion requirement “enables the African Commission onHuman and Peoples’ Rights to avoid playing the role of a court of first instance . . .” ratherthan a tribunal of last resort. Malawi African Ass’n, Comms. 54/91, 61/91, 98/93, 164-96/97and 210/98, ¶ 80; see also Jawara, Comm. 149/96, ¶ 31. If the state fails to act in the firstinstance, however, or places impediments in the way of the applicant’s ability to seek relief

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in the first instance in the domestic courts, the applicant may resort to the Commission forrelief. See Article 19, Comm. 275/2003, ¶¶ 72-76; Amnesty International, Comms. 48/90,50/91, 52/91, 89/93, ¶ 35.

57. Third, the Commission has noted that “one of the justifications for [requiringthe exhaustion of local remedies] is that the accused state should be informed of the humanrights violations it is being accused of, to provide it with an opportunity to redress them andsave its reputation, which would be inevitably tarnished if it were brought before aninternational jurisdiction.” Malawi African Ass’n, Comms. 54/91, 61/91, 98/93, 164-96/97and 210/98, ¶ 80; see also Ogoni Case, Comm. 155/96, ¶ 38 (“[A] government should havenotice of a human rights violation in order to have the opportunity to remedy such violation,before being called to account by an international tribunal.” (citing World OrganisationAgainst Torture and Others v. Zaire, Comms. 25/89, 47/90, 56/91 & 100/93, 9th ActivityReport (1995), ¶ 53)). So long as the State has been made “sufficiently aware to the extentthat it can be presumed to know the situation prevailing within its own territory as well as thecontent of its international obligations,” this purpose of the exhaustion requirement has beenfulfilled. Amnesty International, Comms. 48/90, 50/91, 52/91, 89/93, ¶ 33. Accordingly, if“the state has had ample notice and time within which to remedy the situation, even if notwithin the context of the domestic remedies of the state” and nevertheless does not take anyaction, this indicates “that domestic remedies are either not available or if they are, noteffective or sufficient to redress the violations alleged.” Article 19, Comm. 275/2003, ¶ 77.

58. The present Communication satisfies all three elements of the subsidiarityprinciple. Requiring the Maroko evictees to continue pursuing a non-existent local remedywill not satisfy this principle that is at the core of the exhaustion requirement. The evicteesare not asking the Commission to serve as a tribunal of first instance, but are resorting to itsprocess after almost two decades of unsuccessfully pursuing remedies in the domestic courtsand other national and local institutions in Nigeria. In addition, given the Nigerian courts’inability or unwillingness to address, much less resolve, the evictees’ claims, there is no realpotential for conflicting decisions.50 See, e.g., Ogoni Case, Comm. 155/96, ¶37.

59. Moreover, over 19 years of litigation, including an appeal to Nigeria’s highestcourt, has surely been sufficient to make the Respondent State “aware to the extent that it canbe presumed to know the situation prevailing within its own territory as well as the content ofits international obligations.” Amnesty International, Comms. 48/90, 50/91, 52/91, 89/93, ¶33. In addition, in the immediate aftermath as well as in the years since the demolition ofMaroko, the plight of the Maroko evictees has received significant attention, both nationallyand internationally. The demolition and its aftermath have been the subject of at least threereports issued by human rights NGOs and has received regular attention from Nigerian andinternational media outlets. Moreover, Nigeria’s Oputa Commission has examined theeviction and its aftermath and has made recommendations to the Lagos State government, ashas Lagos State’s own legislative assembly.

50 On the other hand, the action the evictees are asking the Commission to take is wholly inharmony with the recommendations of the Oputa Commission.

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60. Despite having clear notice of the plight of the Maroko evictees, the Nigeriangovernment has failed to implement those recommendations or to take any action to improvethe deplorable living conditions into which its actions forced the Maroko evictees. Indeed,acting through various political subdivisions and agencies, Nigeria has continued to takeactions against the evictees in violation of its obligations under the African Charter. Thismanifest indifference to its international obligations demonstrates that any local remedies theevictees might avail themselves of are ineffective and unavailable.

II. The Communication Satisfies All of Article 56’s Remaining AdmissibilityRequirements.

A. The Communication Indicates Its Authors.

61. Article 56(1) of the African Charter requires that communications “indicatetheir authors.” This requirement ensures that the Secretariat has the appropriate contactdetails of the author for communication purposes. Dioumessi and Others v. Guinea, Comm.70/92, 9th Activity Report (1995), ¶ 11 (noting that the identity of authors is important toensure that they “be sent notifications.”).

62. The present Communication clearly meets these requirements. SERAC isidentified as the Communication’s author (also the Applicant) on the cover pages of theCommunication, and SERAC’s full physical and mailing addresses are provided. SeeCommunication, at 2. The address of Debevoise & Plimpton LLP, counsel to SERAC, is alsospecified in the Communication. See id. As indicated in the Communication, SERAC is aninternational human rights non-governmental organization headquartered in Lagos, Nigeria.SERAC works to promote and protect economic, social and cultural rights in Nigeria, with aparticular focus on the right to adequate housing and the prevention or remediation of forcedevictions. Id.

B. The Communication is Compatible with the Charter of the African Union andwith the African Charter.

63. To be compatible with the African Charter and the Charter of the AfricanUnion (“AU”), a communication must satisfy compatibility “ratione materiae” andcompatibility “ratione personae.” Chinhamo v. Zimbabwe, Comm. 307/2005, 23rd ActivityReport (2007), ¶ 38; Article 56(2) of the African Charter. The present Communicationsatisfies both prongs of the compatibility requirement.

i. Compatibility Ratione Materiae

64. To be compatible ratione materiae, a communication must allege asubstantive violation of a provision of the African Charter or other instrument theCommission is authorized to enforce. See, e.g., Chinhamo, Comm. 307/2005, ¶¶ 39-40. Theallegations should provide prima facie evidence that a provision of the African Charter hasbeen violated with sufficient indication of the factual basis on which the alleged violation is

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based. See Mouvement des Réfugiés Mauritaniens au Sénégal v. Sénégal, Comm. 162/97,11th Activity Report (1997), ¶¶ 11-37, 21-22; Jawara, Comms. 147/95, 149/96, ¶ 41.

65. The present Communication alleges violations of specific enumeratedprovisions of the African Charter by state-party Nigeria acting through its politicalsubdivisions. In particular, the Communication alleges violations of the Right to Life, theRight to Human Dignity and Security of the Person, the Right to Housing, the Right toProperty, the Right to Have One’s Cause Heard, the Right to Health, the Right to Family, theRight to Education, the Right to Work, and the Right to Development and a HealthyEnvironment (viz. violations of Articles 2,4, 5, 6, 7, 14, 15, 16, 17, 18, 22 and 24 of theAfrican Charter). See Communication, ¶¶ 44-79. The Communication is supported bydetailed factual allegations that more than establish a prima facie case of the claimedviolations. See Communication, ¶¶ 11-37 and 44-79.

ii. Compatibility Ratione Personae

66. To be compatible ratione personae, a communication must be directed at astate that is party to the African Charter and must make a prima facie showing that that stateis responsible for the violations alleged. Chinhamo, Comm. 307/2005, ¶¶ 39-40.

67. The Communication is directed at the Federal Government of Nigeria (and itssubdivisions) and Nigeria is a member state of the AU and a state-party to the AfricanCharter, having ratified the African Charter on July 22, 1983. See Communication, at 1.Although many of the original violations occurred during the tenure of a prior administration,the present administration can still be validly held responsible because states are responsiblefor a previous government’s violations. See, e.g., Portugal v. Panama, Case 357/01, ReportNo. 72/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 376 (2002), ¶ 24 (holding that “based on theprinciple of the continuity of the State, international liability exists irrespective of changes ingovernment.”) It is further well-established that a federal state is responsible in internationallaw for the acts of its federated subdivisions. See, e.g., International Law Commission,Articles on Responsibility of States for Internationally Wrongful Acts, adopted by G. A. Res56/83 (2001) (annex), corrected in U.N. Doc. A/56/49 (Vol. 1)/Corr. 4, art. 4. Nigeria is thusresponsible internationally for the actions of the Lagos State government set out in theCommunication.

68. Consequently, in accordance with Article 56(2), the Communication iscompatible with the Charter of the AU and the African Charter.

C. The Communication Is Not Written in Disparaging or Insulting Language.

69. For a communication to be admissible, it must not use disparaging or insultinglanguage against the respondent state and its institutions or against the AU. The Commissionhas rarely issued decisions denying admissibility for failure to meet this Article 56(3)requirement. See, e.g., Ligue Camerounaise des Droits de l’Homme v. Cameroon, Comm.65/92, 10th Activity Report (1997), ¶ 13 (denying admissibility where the communicationincluded “insulting” statements such as “30 years of the criminal neo-colonial regime

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incarnated by the duo Ahidjo/Biya,” “regime of torturers” and “government barbarism”).Notably, merely questioning the effectiveness of a state’s judicial or administrativemachinery or the impartiality of its courts does not constitute insulting or disparaginglanguage for purposes of admissibility. Bakweri Land Claims Committee v. Cameroon,Comm. 260/02 (2004), ¶ 48.

70. The present Communication contains no insulting or disparaging languagebut, in conformity with Article 56(3)’s requirements, is written in professional and respectfullanguage which lays out the factual basis and legal analyses for the conclusion that theRespondent State has violated the human and peoples’ rights of the Maroko evictees.

D. The Communication Is Not Based Exclusively on News DisseminatedThrough the Mass Media.

71. In order to be admissible under Article 56 of the African Charter, acommunication must not be based exclusively on information disseminated through the massmedia. See Article 56(4) of the African Charter. The factual information in the presentCommunication derives primarily from interviews SERAC has conducted with the Marokoevictees in which they describe the destruction of their homes, schools and businesses inMaroko, the aftermath of this demolition, and the conditions under which they have lived forthe past 19 years. The Communication is also based on extensive documentary andphotographic evidence collected by SERAC from the evictees and through its owninvestigation.

72. The Communication makes passing references to media reports to confirmfacts and fill in some background details. For example, in preparing the Communication,SERAC consulted Newswatch’s Good-bye Maroko article for additional confirmation thatapproximately 300,000 people were evicted from Maroko.51 The Commission has found thatArticle 56(4) permits reference to media reports in similar circumstances. See, e.g., Jawara,Comms. 147/95, 149/96, ¶ 24. In the Jawara case, the Commission held that “[w]hile itwould be dangerous to rely exclusively on news disseminated from the mass media, it wouldbe equally damaging if the Commission were to reject a communication because someaspects of it are based on news disseminated through the mass media. This is borne out ofthe fact that the Charter makes use of the word ‘exclusively’” Id. This Communication in noway relies exclusively on media reports but is rather based on reliable witness testimonyfrom numerous individuals and on documentary evidence; the media reports merely supportthis evidence and provide background contextual information.

73. Accordingly, the Communication satisfies Article 56(4) of the AfricanCharter.

51 See note 8, above.

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E. The Communication Is Timely.

74. Under Article 56(6) of the African Charter, a communication must besubmitted “within a reasonable period from the time local remedies are exhausted.” Incommon with other human rights instruments, such as the United Nations human rightstreaties,52 the African Charter does not impose a specific time limit in relation to the bringingof proceedings under it. See Tsikata v. Ghana, Comm. 322/2006, 21st Activity Report(2006), ¶ 38 (noting that unlike the Inter-American Commission, the Commission “does notspecify a time-period within which Communications may be submitted.”). In applying thisfactor, the Commission has held that “in the case of unavailability or prolongation of localremedies, [the Commission estimates the timeliness of a Communication] . . . from the dateof the applicant’s notice thereof.” See Tsikata, Comm. 322/2006, ¶ 37.

75. Although the former residents of Maroko have diligently pursued claimsbefore domestic courts in Nigeria for a number of years, as well as before other legislativeand administrative bodies, it is only in the recent past that it became evident that the courtswere simply unable and/or unwilling to provide redress. As recently as June 2008, SERACand the evictees believed that the case would soon be scheduled for a trial on the merits.However, by December 2008, after the pre-trial conference was adjourned for over a year,and after the newly appointed judge required the evictees effectively to re-start theproceedings by re-serving the defendants, the Maroko evictees realized that the court wasunwilling and/or unable to provide any relief and promptly sought relief from thisCommission on December 3, 2008. Accordingly, the Communication has been filed within areasonable time from the date SERAC and the evictees realized that a domestic remedy wastruly unavailable and unlikely to provide effective redress.

F. The Communication Does Not Raise Claims that Have Been Settled by theGovernment of Nigeria or Resolved in any Other International Forum.

76. As is common in international human rights instruments, Article 56(7) of theAfrican Charter adopts a form of the ne bis in idem principle. Under Article 56(7), a claimmay not be brought before the Commission if such claim has been settled by certain otherinternational bodies. See, e.g., Mpaka-Nsusu v. Zaire, Comm. 15/88, 7th Activity Report(1994) (communication inadmissible because claims had already “been referred forconsideration to the Human Rights Committee”); see also Centre on Housing Rights andEvictions, Comm. 296/05, ¶¶ 69 and 70 (finding the communication admissible so long as ithas not been settled by the African Commission or any “bodies created under internationalhuman rights treaties” and noting that “to be settled also requires that the treaty or Charterbody dealing with the matter has taken a decision which addresses the concerns, includingthe relief being sought by the complainant.”).

52 See, e.g,. ICCPR Optional Protocol, art 5.

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77. The claims asserted in this Communication have not been settled inaccordance with the principles of the Charter of the United Nations, the Charter of theAfrican Union or the African Charter. Further, the claims in the Communication have notbeen and are not being considered or examined by any such tribunal or body created byinternational human rights treaties. Accordingly, there can be no argument that thisCommunication is submitted in violation of Article 56(7) of the African Charter.

CONCLUSION

78. For the foregoing reasons, the present Communication satisfies theadmissibility requirements of Article 56 of the African Charter.

Respectfully submitted on this 9th day of October, 2009,

____________________________ ____________________________Felix C. Morka Lord Goldsmith QC

Social and Economic Rights Action Center Debevoise & Plimpton LLPP.O. Box 13616 Tower 42, Old Broad StreetIkeja – Lagos, Nigeria London EC2N 1 HQ

United Kingdom1A Ade Ajayi StreetOff Hakeem Ajala Street Tel. +44 20 7786 9000Zone A4 Fax. +44 20 7588 4180Ogudu GRA E-mail: phgoldsm@debevoise.comOguduLagos Nigeria Counsel for Social and Economic

Rights Action CenterTel. +234 1 764 6299Fax. +234 1 496 8606E-mail: serac@linkserve.com.ngWeb: www.serac.org