App. 008/2020_Ghaby and Nabyh Kodeih vs Republic of Benin
Ghaby Kodeih and Nabyh Kodeih vs Republic of Benin
On February 17th, 2020, Mr Ghaby and Mr Nabyh Kodeih (the applicants) filed with the African Court on Human and Peoples’ Rights (the Court or the ACHPR) an application instituting proceedings against the Republic of Benin for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its Articles 7 and 14.
They claim that by judgment number 044l3rd CD dated September 27th, 2019, the Court of First Instance of First Class of Cotonou found them guilty of non-compliance with the building permit of their building, sentenced them to a fine of 500,000 XAF and ordered the demolition of the building in question. They claim that this destruction, if it were to be effective, will cause them irreparable damage in that they will not receive any compensation even though they built said building on their own funds. They accompanied their application with a request for the indication of provisional measures to stay the execution of the judgment concerning the demolition of the building.
The African Court on Human and Peoples’ Rights ruled on these points in its Order of February 28th, 2020. It recalled that it could only order provisional measures when the conditions contained in article 27 ( 2) of the Protocol establishing the Court were met. After examining the facts, it concluded that the situation did indeed have the characters of extreme gravity or urgency and the risk of irreparable damage to the person and decided that the Beninese justice could not proceed with the demolition of the claimed building as long as the Court had not rendered its judgment on the merits.
On March 25th, 2020, the Republic of Benin withdrew the Declaration under which Benin accepted the jurisdiction of the Court to hear cases filed by individuals and non-governmental organizations. There was therefore a legal question regarding the fate of all the current cases not yet decided.
In its judgment of June 23rd, 2022, the Court clarified that this withdrawal had no impact on pending cases and on new cases referred to it before the entry into force of said withdrawal, i.e. on March 26, 2021. It then proceeded to check its jurisdiction to rule on this dispute and concluded that it could indeed render a judgment. It then examined the objection of inadmissibility of the complaint raised by Benin.
he Respondent State maintains that the Applicant had not exhausted all domestic remedies, which was a prerequisite for referral to the Court (Article 50 (2) (e) of the Rules of Court) in so far as where Mr. Kodeih had lodged an appeal before the Cotonou Court of Appeal on October 1st, 2019. Without waiting for the fate of these proceedings, the applicant appealed to the African Court on Human and Peoples’ Rights. Misters Kodeih replied that the lack of independence of the judiciary left them little confidence about the impartiality of the procedure.
The Court considers that the Applicants should have waited for the outcome of their appeal before filing the present Application, except if they could prove that the proceedings of before the Beninese court of appeal had been extended abnormally. Therefore, the application of Mr. Kodeih is inadmissible before the African Court of Human and Peoples’ Rights due to the non-exhaustion of domestic remedies.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.
