Setting the law straight: Tanganyika Law Society & anor v. Tanzania and exhaustion of domestic remedies before the African Court

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.