Do=;g"f~;:~B~ACHpmR.
~j~
~Ctti:ttbV':
African Commission o~
Human and Peoples' RIghts
Human Rights our
Collective Responsibility
Communication 298/05
-,~,---......_
~imbabwe Lawyrrs /~~r'~~man
Rights (on behalf o',-Ilo}r'~'~,~,n@~t)
-.'_'"
'".
...-:-;
~/
"
"',V,
.
j'
~--:.
,,-
J
J/
"
R~p-ubl
ic'-'~f
Zi ."',,,abwe
.I f
"
-.
,'>
I
,
•
I
I
,
I
Adopted by t~\ \ .""'. ,.
_
African CommissIOn em,Human 'and.Peoples· Rights
During the 7r1'
SessIOn 4gne virtually from 23 ebrotlry to 09 March lOll.
oit4niPY
\
.......
..;'
I
I
I
I
The African Commission on Human and Peoples' Rights
31 Bijilo Anhex Layout, Kombo North District, West Coast Region
I
Phone: (220) 230 4361 Fax: (220) 441 0504
Email: au-banjul@africa-union.org
https:/achpr.au.inUooa
An ()ga1 cttIB
African
Union
ec/prc/AIO
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
:im:babweLawyers for
Communication 298/05 -
I Bennett)
Human Rights (on behalf of
v Zimbabwe
I
!
Summary of the Complaint:
Zimbabwe- (the
Rights (the
was an elected
at the time.
1. The Complaint is filed against
Respondent State) by the
Complainant) on behalf of Roy
opposition Member of Parliament for
2. The Complaint alleges that the Victim I
imprisoned by the)'political
time the Complaint was brou
prison where he was serving
sentence was imposed by
contempt of Parliament.
of Parliament against
in Parliament during a
I
4. The
Theft bill, the
Mini~:fg~.J,;gt
Justice
verbal "~~1~v~tl:
..the
Ministei~t,R
parliamentary debate on the Stock
assault by the Respondent State's
the ruling party. Enraged by the
, have approached and shoved the
,",'-".I.J.LIIJUA.J..1.
v:t
ili~'@~~~:ff"'S
...
<'-'<~<f:~~'~" ,~,;;.
.,,<_:c::,
\~h;<t;;~~~"
;:~:+:9'
~&\~
5. Following
eventsf'that occurred
Parliament on 18 May 2004, the
Complainanbkalleges
that
a
Iiamentarv
Committee was established to
vJ\ _,.,
__
try the Victirrl)i~0't
contempt of
The Victim allegedly protested
that the proceedings were
.on the grounds that the Victim
alone was charged even though
disruption of Parliament was
occasioned by a scuffle involving
Minister of Justice and another
Member of Parliament representing
ruling party.
:'.'>
6. The Complainant avers that the V
the Parliamentary Committee on
members of the ;ruling party
I
1
The Republic of Zimbabwe is a state party to the
1986
:nHJ."UJ.
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
protestations, the Victim was triedj found guilty of contempt and
sentenced to 12 months in prison with harq labour.
7. The Complainant states that the trial bt th~ Parliamentary Committee was
a continuation of an official policy of ~ictimisation aimed at the Victim by
the Respondent State. The Complainant claims for instance that among
other things, the .Victim's election Js Member of Parliament for the
Chimanimani District had previouslyl brought harassment and violence
directed against the Victim and hiS, fam,ily. There were also attacks
allegedly made on the Victim's farm and his farm workers by persons
suspected to be in the employment of the Respqnd¢~t State. The Victim
I
/",,""~>k " ;;~
was allegedly subjected to all forms of rtrib~~~~~ean~tt
8. The Complainant alleges further that th:,)~f~ti~ hqf~~,~~~,:~'een.th:~
t~pet of
discriminatory land confiscation by ~:~spoFt'~
ent State;,,_,Tne-·<.'ZoD:!pTainant
claims that although the Victim h~~:.flii4:r,chase des61~t~'P0rtion of land
from the land-owning community, ~~"\', m
all custotliaty rites and
~!'\
I
\ /
obtained a "Certificate of nO.$pr,~~~.r;t
inte
,"from the Q6'vernment, the
Respondent State had J,;mlawful:ly:,targe
the Victim's land for
confiscation.
-,,'
O
f
'<;
'>
~. ":-'
,,~
.:"';
";-. -,
"">,
"
...:~"
'
':~L,
"
\~, }""
"t
•
"">-'"
iY'
9. According to the/~ofuRJ~inanp;~:p.ecohfis'c~tiop?lsaggravated by the fact
that the Victim'~'}t~mdwa~ targ'et~a'{tf~erhejhad turned the fortune of the
fa.ro: around frt~ its b~rren state"T~ejspmplainant avers further that the
Victim's farm w: confiscated al~ege9~y7'aspart of Respondent State's fast
track land refo
rogramme, j~n sFite of court orders in his favour
~arril1J:L".:heState;::,~~:~, inte~!:ittin.gI with. t~e Victim's pro~erty. All
b:~~~~~~~:4~~Z
~~!!~~!~;~~:~:~i~:.VICtim'S
favour are said to have
10. The co~J~a~~
~~:..,s·t:.rther that ij an attempt to seek protection from
the law, the' ·~ictim carefully documented the incidents of violence against
him, his family.and his employees. The Victim was said to have written
letters of complaint to the authorities I of the Respondent State including
the Minister of State Security, the Minister of Home Affairs and the Head
of Agritex. These letters allegedly did Jot yield any positive results.
I
11. In relation to the alleged violation in the present Communication, the
Complainant alleges that the Victim/ challenged his conviction by the
Parliamentary Committee but was sent to prison while his a _':[€;':l3Mxa~
,
I
,
2r~ N.<1tv 0..0(': , '.
pending before the Supreme Court, despite the Victim's ex. ~'8.~Tt1vat
I
"" '<>
0 .
his app~al would be com~leted befpre the. sentence is ~cu
,.'.,;'
~t\
Complamant states that this was further evidence of a ; Be-d tel1~d
u.l
~ \
targeting of the Victim.
~'~
~",,~;:I
~ -1/
~ i~
~ 0
(1
a: -;,
\~
AU-UA
~"
,
~
~<v0Q
(~. )\I.<1"RICP.\~~
'70111
",?~
,
en.l
1/
s:
tZ'
~
ME ET DE
,~ r>
,,',II
Y'
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Articles alleged to have been violated:
12. The Complainant alleges that the Resp~mdent State has violated Articles I,
2,3,4,5,6, 7(1) (a), 10, 11, 13, 14, 18 and 26 of the African Charter.
r·
Prayers
13. The Complainant prays the African Commission on Human and Peoples'
Rights (the Commission) to:
I
h
a. Make a declaration that the Respondent St,5\t\\ s v \,l~ted Articles I, 2,
b. t:~e6~~~1~~~o~Od:~~ ~;~t~4~o~8an~26~~f,tlle~,,~~.
. .
Eject all persons unlawfull}/gecURx~,g tR~J~~ari:gsw:'Q2Y~Estate
and other properties of t~~~ }c:~imWl~~limme~~~!~ effect;
In :he alternative, pa, th:1\(i.~t~.mf!~¢.equate 'e~
..~pensation ~n
United States dolja
emg tlj$~.<··currency qf' reference m
Zimbabwe, for t!le expr 'P'NJ~tion8t:0harleswood Estate, and all
his other p::9·";i' ties in ,q.:~.k'<;2rdance,:~~i!}1
the principles of
internation?!"la '
....
~>
;};/
Ensure.,!be. ,IT.EZturn
¥:!~gc;}farm labourers to their
dwelling..rs:
~.'.\
'~;;jY
i.
ii.
iii.
,;
,!
,t.'f"
I
iv.
Guarantee the return
e9:}1ipment which was unlawfully
,
\
d
posses1:;e ;
..r-'
v.
Pay adequate compensatiori for all the destroyed properties and
~~;7'; livestock;~s;'p~r their cJ;{rrentvalue;
vi. \;(j:(if~~'lnx~stigc{t~~tQ~}~~~~~:f'tidicial
killings, torture, rapes, destruction
anc{oH1er .vi?la~ons of rights of all affected persons
\f,\Vhq(.'}Vep@tlq;~'¥f.}1lly
residing on the farms;
vii.
~e.spect, erit~r~e and obey al~court orders.
{~~\o1:':P~~~:~~f:Y
~~
Procedure:
ii~\~:;,{j
~
I
I
14. The Complai~; which was dated 3 February 2005 was received along with
a request for Provisional Measures, iby the Secretariat of the African
Commission on Human and Peoples'
Rights (the Secretariat) on 14
I
February 2005. On 25 February 2005, the Secretariat informed the
Co~plain~nt that the ~omplaint ~a~ been registered and sl~!~fer~
consideration by the African CommISSIOn on Human and Peo .~ <.Ri£~l~N
"1~<.
ission) a t it
37thO
di
S
I
•
'
0'-: ~~c
'4'1".<l~
,
(th e C omrrussion
1s
r mary ession.
~0
0..0\.
~
« "
o
,~
t\. ,
i((""t,Jl'
t
(J.
•2
\>0"
.do
~
~!;;t
g
'..
AU-UA
~
~
•
.
~ ~\
~
(;/./
<:)
l
rv0 '" //
15/0
?t
~~{/5~~Q :uq'v~••
0111
?~;r
111£ET Of_S
/-
~..",
"I-.-,t,n.:::t"G'~~''''
~
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
r
15. On 27 April 2005, the Complainant I filed another formal request for
Provisional Measures seeking the release of the Victim from Prison
custody pending the determination of fuiscase.
tt
16. In compliance with Article 57 of I African Charter, notice of the
Complaint and the request for Provisfonal Measures, along with a copy
thereof, was communicated to the Resiondent State on 5 May 2005.
17. On 8 May 2005, the Respondent State filed its preliminary submissions on
the Complainant's request for Provisiohal Measures. The Respondent State
filed further arguments in objection of the
est for Provisional
Measures on 1 June 2005.
~:~~.
.i;</
18. After hearing the oral arg_u~ents. of t~~/~:~w~la f~~~l;~~it~$~7"l~i_~;:~~?
the
Respondent State's Submissions In r~spect:;Q£~t~ereql;l~st Ior :Rr<2¥,lsIOnal
Measures, the Commission declineg;x('t requ~~t~i vie~:iiQitthefact that the
request had been overtaken by ~)r.e~ts.
·;'t·;r,:,·~:·~~·('
c
,: .(\'".,
f
};:..,:,&i:
t\:!~
',<'.~:"
<~;/
19. On 18 August 2005, the S~.cretari~f:f\v,rotet
th Parties to inform them
:a~i!e ;~!=~:C\~~~~~~~~:~~lhe
~~~
::
r~~~::~
the Complaman~,19J0i1-Y;~dIts~~y?nuslslbn:S,~:,,~p?-':'AdrmsslbIllty.
Y"
1. 1/
,'"
~. ./
e
,,r
20. Between 18 Au'g.ust 2005 and 3 Noyel!lber 2006, letters were exchanged
between the Se~~~tariatand the ~arti'e~:~clQncerning
the submission of their
respective argurit~~~~on the Ad~issi1Jility of the Communication. During
the 39~".~rdinar:l;f~~~~~tonof /~~~ C9mmission held in May 2006, the
Resp~TI.;.4..~~t:
:.?tate s~b~~~~~~:l;~tsarg~ment on the Merits although no
Subrmss~9~s,o~·.Adrmsslblhtyhad bee~ made .
•
,
,"""
',.,.
I
21. On 25 No~em:ber 200q)the Complainant's argument on Admissibility was
received at the Secretariat and receipf acknowledged by a letter dated 8
December 200~:;,
..'
I
22. Between May 2007 and December 12011, several other letters were
exchanged between the Secretariat I and the Parties concerning the
Respondent State's Submissions on Admissibility.
The Secretariat also
I
communicated with the Parties on the need for submission of legible
copies of all relevant national decisiohs and judgments by both parties.
Copies of relevant national decisions and judgments in legible format-~
were finally received from the Complainant on 22 April 2008.
_~\J1~ARNN
4tvD,o s.
~
0'-
~
c,R£.
23. On 23 January 2012, the Secretariat received a Note Verba, mat
. ~
January 2012 from the Respondent State submitting the R~~on e t. ,,:,)~
r
I
/4)"
<\ 'Co..
0.0'"
<'~ .
q. ""<C:
<p. \
~
I
I
"'-.~'
l
i ~/
\ -~ ~
~~~t'li~.
IJ'
...\, c.-5'/0'tv 4"RICP.\~ ~'V,_v~,,'
ji 't'
' ~.~ ~..OMME E1. D.£.s ........
~~ ' ~
~":J
I
~
C,
ACHPR
African Commission on
Human and Peoples' Bights
Human Rights our
Collective Responsibility
Observations on Admissibility. The ~espondent State's Observations on
Admissibility were acknowledged on 31 January 2012 and forwarded by
letter dated 31 January 2012 to the Coinpl~inant, along with a request for
their comment on the State's submissioh. :
I
'
24. The Complainant's response to the Respondent State's submission on
Admissibility was received at the Secre~ariat on 13 March 2013.
25. During its 53rd Ordinary Session, the Commission deferred the
consideration of the Communication and the Parties were accordingly
informed.
""n
'"
.//fSi;~'L~:,.\::;,\,
26. At its 13th Extra-Ordinary Session help in N~it~b'f( Ke4~k, from 20 to 24
~lc:O!~,
th~eC~=:~:
::~%]1p~~~~~~;!~:;~~~i:r
letter and Note Verbale respect1v~lY-d~~~,
24 Siltemoer 2~13.. The letter
attaching a copy of the decision-was t ..,', it ~ato the'<;J:6r:riplainantby
courier (DHL) on 26 Septemb~r':2~~:$:
,:.>/
.
"
,'Y
.,.;'
....
27. By the same letter, the C;oiliplainant·'iy~s·.reques
. )'terms of Rule 108(1)
of the Rules of Proc~1ure:':t~gP) ?QloJ::t~i':s,ubmi<:,itten arguments and
supporting evidel1:~.e::,oh;,MerH~~~ithinJ
60\1aYSyofnotification, thus latest
by end of November 2013'.'
',;,,~
"
j'i
<' ',/
F,:i,
28. By letter of 7 Jap,'(;1flry
2014, the <;omplaihant acknowledged receipt of the
.~:
";;
'/
Secretariat's lette~;:~$),t
19 Decem~,er 2~13, and indicated that it had not
received any notifi ,m;". n or a c ~py of the decision on Admissibility, let
alone 'q.\r~quest tojfi et::
•
,missi~ms. This was followed by another
letter d~!~a<5J~i1ar<:;h
2014 received by ~mail on 6 March 2014 in which the
Complainant ,reqll~sted .an extension :of time within which to file merit
submissionsdn the 'eyent that the Communication had been declared
admissible. .The request for extension of time was granted by the
Commission.;~ , ,
I
" ~',\'\-
_
:
I
,
I
29. On 3 May 2014, the Secretariat received the Complainant's submissions on
the Merits and transmitted the same rO the Respondent State on 5 May
2014.
,
I
Merits.
ACHPR
African Commission on
Human and Peoples' R_ights
Human Rights our
Collective Responsibility
31. The Respondent State submitted on jhe Merits in March 2015 and the
submissions were transmitted to the Complainant by letter dated 24 April
2015.
32. The Complainant made observations on the Respondent State's
submissions on the Merits received at the Secretariat on 28 May 2015, and
transmitted to the Respondent State by Note Verbale of the same date.
33. Consideration of the Communication I and decision on the Merits was
deferred during subsequent Sessions of the Commission .
.'¢.j;f~t;~::~r':~;:j~
Request for Provisional Measures
('
,,~~;\;'
i,'>'
·,;;.:0.".··.< •.•.:,\.
'\~i)i~HJ
'
,
34. The Complainant's request for Provisional M :'!fl:;re~~(;':;>'
h was filed
along with the.Complaint on 3 Febn~,iy,:;200~~.~:t:l:d
rl!~~~~ '. ~w'~lt~j~April
th
200~ was considered a~ t~e 37 . O~gliB\~I:~
SessfPf of th~~~~~~IsslOn and
declined by the Commission as I ad 13e~n,"9vel:tp.ken
by ev" s.
."
\'\J:;::::::::~"': ~,:"';::<>' "~
Qi<j.',;: .." »,
Submission of the'Complainant
.
.
~
"
35. The S~mplainant<~ub,l:11itsthat if,)has complied with all the requirements
for A~~~~~~~ility 1in~,er",:4T.ti5le561 o~ ~he African Charter and the
Communlcatf
hould be declared admissible,
36. RegardJ~~.fcIe
. 'p. of the AfricJ Charter, the Complainant submits
that the reqMirementi'''in those provisions have been satisfied since the
CommunicaNqn js not anonymous.
I
37.In relation t!~r~cle 56 (2) of the ~rican Charter, the Complainant
submits that the facts raised in the Communication allege a violation of
provisions of the African Charter. Thus, the Complainant argues that the
facts and issues in dispute fall within ~he rationae materiae and rationae
personae jurisdiction of the Commi~sion. The Complainant contends
further that the issues raised in the Coinmunication are within the scope of
the Constitutive Act of the Afric1n Union (AU Consti~~B.&~7~
Accordingly, the Complainant asserts that it has complie~drJ~d\Irt1~«J. o.~'
~
0
56(2) of the African Charter.
,
1~.
\
I
I
I
I
I
I /,'~'
,
•{
.•
.((1Ji)
J:1'1,~
z:
R;3
(l
Ill;o
0-
~ClO
e (f-~f'~5
;, "&. ~~
.~
U/o
~~
(:t.,
~ "1":RICA\~~
\
5!:
_-{
/!!
'''''''.,....
! '"
~'?
Co
o RS
~
"0
~".
"l11Y71OET DOCS?
.'
.•".~¢"
...
<i;.V ...
•
i
ACHPR
African Commission on
Human and Peoples' R.~ghts
Human Rights our
Collective Responsibility
(
38. Concerning Article 56 (3) of the African Charter, the Complainant submits
that the language used in the Comm4nid.'ltion is not disrespectful of the
Respondent State or any Organ of the AfriJan Union (AU).
39. In relation to Article 56 (4) of the Africln Charter, the Complainant claims
that although reference is made to statements uttered by individuals on
national television, in Parliament I and in political meetings, the
Communication is not based exclusively on news disseminated through
the mass media. The Complainant claiJns that the Communication is based
on affidavits filed in local courts and oh the decision of those court as well
as statements uttered in various co ~ext but tharhave bearing on the
matter at hand.
/<>'- '. <" \
/
.~,
. ':."<Z:;;~1,
'\
.v.
). ,;1
.':'1"":';"';';.
',~:,t;>\'''.J·:''':·:·';'~''.. .
40. With regards to Article 56 (5) of th~!~:A:fHc~~l~haFt~]\tne':CoD:lpiainant
contends that the requirement to e'$J;r~~s.tlocal'~f~p1ediesz~a,~been satisfied
in relation to the commun~c~tio~l<\(j~~i~:~~~~.Vj.local
re~~dies ': th~
Respondent ~tate have ~royed!to.~:~,/Ifeffe~i\~~' Ill.usory ~na~navallable .
The Complamant submits that locaJ:r;emedIess'l;i~~ineffective, Illusory and
unavailable because several court o~d~h,Jn fa~b~~:Qf::theVictim have been
"defied and disobeyed" "oY¢itbeRe,spdrlcl&l1tStat~fl;§'~chthat the national
/>
legal system ha{;~e(tl.t£.pr6"~~e:~e~tss£0J~!"J,e Victim.
41. The Complainant argues further··,tnat attempts to have the presently
contested decisi,~¥ of Parliament re~~~wed by the national courts have
e.ith~r be~n stali~~::~sRY
the issua~ce
orders that the matter had been
finalised in terms";$ifr:p1e relev;f\ht ~ct or have been unduly delayed,
e~p~ciaJlt'~y. ~he SUP~~.~~:E·,~Sllrt.1he Co~plainant submits that the
VIctim s,_erveq;z:9J\l.t
the pnson term aomplamed of before the Supreme
Court of Zimbabwe-reached its decisioh on the case pending before it.
!.4-.';J
",!",_,_)-,."-:,.-,~/
1£
v
,
~. ,.'
';"."
-'
I
42. The Complainant argues further in relation to Article 56(5) of the African
Charter that i!\\spite of the fact that it Thadappealed against the decision of
the Parliament'to the Supreme Court ~f the Respondent State, that appeal
was essentially academic as it was aware that the Supreme Court upholds
the sanctity of the decisions of Parliament.
The Complainant contends that
I
by failing to subject the decision of Parliament which had exercised
jurisdiction as a special court to the sd'utiny of fair trial guaranteedin the
African Charter, the Respondent State Ihad failed to provide effective local
remedy. The Complainant argues :that this was the situatio~that_
warranted the request for provisional measures while an ;'B~itI~&b'~,
I
.l.'A ,,!:l ""c? 'i1tIA,.,.
pending before the Supreme cou1t of the Responden ;r~mate.
Complainant contends that it has shown that local r fM'edi '~."~~
:If' .
I
1;3
~
,~~p~
\\.
.~
"0
(/y,~"vA,':RIC"'\t-I~
~'''''
0"" ~
~. \
,(((~t.»)~
~d.:I
A\..I-.!.lA
or ~5
(1
\ ~
,o(:'~
UJ:O
~.
§. ;t,t
<S'
t
Q"v'?
tv'" ,'?r
,\p."
°411\.11: ET DOCS "X:
.... "t.I;>:
t
~I
#'
'
ACHPR
African Commission on
~ Human and Peoples' Rights
"
Human Rights our
Collective Responsibility
r
I
unavailable and i:~ffective such that lhe o~us has shifted to the State to
demonstrate that local remedies were ~vailable and effective.
43. As to Article 56 (6) of the African ChJter,1 the Complainant
the Communication
contends that
has been submitte~ ina timely manner.
44. In relation to Article 56(7) of the Africal Charter, the Complainant submits
that the Communication complies wit I the provisions of the sub-article as
the Communication does not deal wit: a case which has been settled by
any relevant procedure.
Respondent State's submission on Admissibility ,</!,'
45.
'C"
" .:
",
diSt.~~~~~~lnBJ~~t'~_
The R~sp~ndent Sta~e does not
';,'s~rt,ions
regardmg Its satisfaction of the Adrms.~,,~J51htY:l;t'~HU1rerp:c,'11).ts
m'-Art!~le/56 (1)
(3) (4)(6) and (7) of the African Char:tef~:t,.. '.""'Y:,
'-"\':~\.
"'<., .~>,~,~~
..>
;,' "
46. In relation to Article 56(2) ot.th~:S::harter ,
esponde~~:>State submits
that there ~s a re~uirem.~-2J ~hat 'a~!~:Fo .~.:"':'·cat~on submitted "should
prove a pnma facie ... ~Ipl~hon of a>s:p~cIfied '
cle", Hence, the State
argues that. the prese,~: Co~~ni~,~tl~6r!~f,e~ ~o !eet the re~uirem:~t in
the sub-article be<;e:l'use':;the
CqmmUnIaahoff,<faIls to "show with sufficient
clarity. what Vi?-~~tionl";i1dho:W;',~~~,.+ola:i,~~·is. supposed to have been
committed". This, the State contend.~:Is anindication that the "facts do not
fall within the ~~tionae materia~ ol"t!~Yjurisdiction of the Commission".
The Respondent::j:i:.l~aws
the attention
"af the Commission to its decision in
.;?!,:_;t.;':_:~\.
?~'
Chinhamo v ZimbalJlve:~"..
l'i
", ~.,_",.....
, ....,
" ...;
·(~::':"~~'i:,t'·
-~'
r'
<!i,)
,J};'
47. The Re's~?n~~~t-.,,$,~ategiv:s its versilon .of. the facts leading up to the
CommunI<::atI?r.r"al'l.d'~submItsthat the VIctim was summoned and was
represent~~':~~fore"t~,~/parliamentar~
Committee. For that reason, and
because Parliament is empowered by law to impose a fine and
imprisonment'for up to two years, the State argues that the conviction and
sentencing of the Victim were done according to law.
I
I
48. The Respondent argues further that" there has been no violation of Article
14 of the Charter as the land acquisitions were made lin the interest of
public need' for land and "in actordance with the provisions of
appropriate laws". Thus, the State contends that the Communica:loflxGioeL_
not show a prima facie case of any violation and has therefore ', ~Q:\'Cf~~e~
I
4)".o~
~
the requirement in Article 56(2) the Afnican
Charter.
lllC:> <:,"=-C
o~i:'.
'~l)
r'~.'
l~)~
j'(.),
',z
2
Communication 307/2005
h;3
• ~\;
o
~ ......
,.,.,
0
\,
AU-UA
~
~n
~
J2:r~
! (/)~
-
--I
rvC:>~ II
'1.1'/0
" r~~&fafi6§,,=-\)<?vy
~,
't1Mt; ET Dr.'" ?,~:I"'
'...,.,"""
..
'(I.~'~4""~·
~
r. .' ",..- •.:
ACHPR
African Commission on
Human and Peoples' Rights.
Human Rights our
Collective Responsibility
49. With regards to Article 56(5) of the African Charter, the Respondent State
contends that local remedies have not] been exhausted because an appeal
against the incarceration of the Victi1 w~s brought before the Supreme
Court of the Respondent State bU~I.the Complainant rushed to the
Commission and filed this Communication before the appeal was resolved
by the Supreme Court. The Responde4t State argues that the action of the
Complainant has deprived it of thel opportunity to first address the
dispute. The Respondent argues that the action of the Complainant
amounts to forum shopping which thJ Commission has condemned in its
decision in Interights v Namibia+
/;\;~!
"b"
50. The Respondent State contends furtherr that ~~~:exce .*~~rs to the rul~ of
exhaustion of local remedies do not apply in;faVAVIof tl\~iCommunication
I
'" ',' '"'
" ,~.
because the requirement that local remedies shdu19",be;1~ffeGtivedoes not
necessarily mea~ t.hat the outcome ~f!;ttatio~'a~'rrrib~~4.!~g§~:;~KB~Lcf;be
in
favour of the Victim. The State argues. furtherjthat lo~~1;l.en::edles were
effective c.ontrary to the ~ompl "~a~trs 51~i~;9-hd th~t tR,~,:;1@t'ate.
did not
comply WIth only the national, .," IOfs tlii.~~itIt
had appealed against. The
Respondent contends that..it ha """ p,ealed':,aga,inst "most of the cases"
<,
""···'o',k,
'. ."
mentioned by the Comp, .,,:'.lnt. AcC6~§Jp"gly,thEt~7§pondent State argues
that the exceptions tOJlle ',:~¥:s!o
nqj!;~pp~Yt~pthis,'case .
.-, '" .,. '~~:':>:~I'" I ""~:i'~';iff'x
51. The Respondent 'State argues"~J{TI:rtherth~t>'the Complainant was not
interested in exhausting local remed.1 I, since it did approach the Supreme
Court over the \aileged refusal tq ob " :,[.thecourt orders in its favour and
the Victim did not.await the final\kiecis,'on of the Supreme Court. Thus, the
Respq\~~,~~t State" <c?~~~~ds theW;'the I~OmmiSSion would be "se~ting ,a
dangeI:~~,~:~R~~'.:edent'if:J~;~rI~:.toadrrpt a c~se based on a Complainant,s
apprehel):sfon,:~po;t1t the perceived lack of Independence of a country s
domesti~\:insg~Ha~f;,:.,I!'l support of this position, the Respondent State
refers to tli~>'aecisioi}'i;fn Kenyan Section of the Ie] v Kenya.4 Hence, the
Respondent-State asserts that the Complainant has not exhausted local
remedies.
\.:1t::'l:?
I
,;~>
ACH
African Commission on
Human and Peoples' Rights.
Human Rights our
Collective Responsibility
.,.''''."
Commission. The Complainant contends further that the issues are also
within the scope of the AU Constitutive A~t.
53. The Complainant argues that the JqUirement to show a prima facie
violation of the Charter only requires the latter to show that a human
rights violation may have occurred. Accordingly, the Complainant
contends that it has set out a prima fa~ie case that is compatible with the
AU Constitutive Act and the African Charter.
54. In response to th'-·Respondent state,j argument that local remedies had
not been exhausted as required by Article 5~(5~';;9f the Charter, the
Complainant asserts that it has "gone to Iengtl¢";'t~"et:eW;$mstratehow the
local remedies in this case have prored tde; .' 's:eff ',,; e, illusory and
unavailable". Citing the case of Akdiv~r v urkey<.~~~}" ~?t~~\~ ~~~pean
Court of Human Rights (ECtHR), the
""';i(~ntc0~!ep s'tha,t<~\ie:medy
should be "an effective one, avai!iit
tK~~~:yandz;i].}practice at the
relevant time". The Complail1.~flt co ..",::~g.s/~}f:hher thllt.,:;·!J:iejudgment
handed down by the Supt,e:qle4qg~l;1rtof "':' i" .abwe in C,cise no SC75j05
filed by the Victim" actually reinfo~P the...
mission that there are no
domestic remedies, ava~l~~!f. to hi~' .••..
~ .;t~uS,th
plainant asserts that
the burden of pr6viJ:lf tH~;<i@?fiste~9~"
o'£tli.y;ailabl nd sufficient domestic
remedies lies upons.tll~([~.tate;7:~;~~·'r
..';l:·
" '\f·.:",
/I
The Commission'
.fnalYSi: on
Ad~i, ~
55. The Communica ..v"'P is brought 'tInder Article 55 of the African Charter.
ACC?r,?-i
..·:r.'0.g.,.l. y' it ne~f*; 9 s~tisfy~t;e se.¢en Admissibil~ty .requiremen~s laid
out In '~f:t:lc!~:56of th
..
:ilii'narterlAs the Commission has previously
held, tH~.:c·o~4itiptls in Ai ICe 56 of the Charter apply conjunctively and
cumulativ:~ly.~TM§1nea:llB that a failur~ to satisfy anyone or more of those
conditions renders the;€ommunicatiorl inadmissible."
56. The COmmiiiio!'!flotes that in the preJ.nt Communication, the parties are
in agreement that the conditions laid but in Article 56 (I), (3), (4), (6) and
(7) of the African Charter have bJen met. The Commission's own
assessment of the Communication alko confirms that the conditions in
those provisions have been satisfied. Accordingly, the Commission's
analysis will focus on the requirements in Article 56 (2) and (5) of the
Charter.
I
I
z~~~"
SAkdivar v Turkey(1996) ECtHR (Application No 21893/93)
"'o~~c~€.IAR/4r
6 See Communication 304/2005 - FIOH NationdZ Human Rights Organizatiol/jfjt..ffj
an
RencontreAfricaine pour la Defense des Droits de l'Homme (RADDHO) v Seneg~~06)
~cr}it~\
para 38
l
:'1~
;~!!)
7Article 19 v Eritrea (2007),para 43
\\~~ '6
.o~o:,~,
<'<:<'\
I
... ~
p..1J
. e'tQ;o
"
'V 4"RICP.\~
-,
If>~ ,
0
~
i
~"''':~t- B ~ f
~
\"".6..~
'0,
Ul
(~
-r , ,
Q'
~0'!«_; P
1<;<:;)
~_-0'<"//
'?"~
0il1ME ET o€.'O,_:;."
ACHPR
African Commission on '
Human and Peoples' ~ights
Human Rights our
Collective Responsibility
I
I
57. Article 56(2) provides that a Commu+ica~ion should be compatible with
the Charter of the Organisation of African Unity (now the AU Constitutive
Act) or the African Charter. The CO~ission
notes that the provision is to
be read conjunctively to mean that a Communication
should be
compatible with both the AU Constithtive Act and the African Charter.
The Respondent State contends that tHe present Communication does not
satisfy this condition because it shotvs no prima facie violation of the
African Charter.
l
58. It is also the Respondent State's argu ent that}~;~I~o~unication
does
not show with sufficient clarity what fights ~aye bee11:}'i}olatedand how
those rights have been violated by the State>Th~. Complainant responds
that the requirement is for a Comrnuriication to';' d~jnppSb:ate .that African
Charter protected rights may have be~hfViol~~~5:J,bY\4,e~B.esPbnd~4tState.
'1-"s<;fri~[::;\r:>,
0&"
'\~;:i~~-,":
'>~, .
'Y,h has helQ',fhat as used in
Article 56(2) of the African Cl:\att@~~"thJ
ter
patible".,iri~ans to be "in
compliance with": or "in., confo'r:~t% wit " r "not contrary to" or
"against" the AU Constittrtive Act or~)jPll~:
Chart
,.;peCommission notes
that there are two pa'rts;;t~~:if\rticl~~,
516~+» of th ':"harter. The first part
requires that a C9guriU;n~~atio:b."'$Q,ouldl
not contradict or be contrary to the
?rinciples of t~7-/I.U Constitutiv~:'~~~'IThis si~p~y means that the claim(s)
In a ~o~uru~~tl0n
should not o£l~n~;rhe spirit and purp?se. of the AU
Constitutive Ac,t;;::;rhesecond pa]\t reqjnres that a Communication should
allege a violatiorlirg:£;,a
right or rigpts
rJcognized in the African Charter. In
.,....,.';'.
"I
other\;yyords, the daifu;Jn a Comjfumidation should conform with and not
59. In a number of earlier decisions.fhe
contralq,~;:;th~~~~~,ts
ih~~1~~nteel~
in the Charter.
60. The Corrlipisstqn':h~~~gl~()'previously Held that Article 56(2) of the Charter
k
requires a ':¢9hununis¥tf~n to indicate prima facie violation of the African
Charter." T'l;t~ Respondent State contends that this obligates the
Complainantfo show with sufficient c]arity what violations have occurred
and how thoseviolations have occurr~d. The Commission notes that the
term prima facie as used in its jurisprudence does not impose an obligation
to "show with sufficient clarity" the alleged violations that have triggered
the submission of a complaint. InstJad, the Commission notes that it
simply requires that at face value lor upon mere sighting, without
requiring either p£rty to adduce any: evidence, it should be possible to
I
See Communication 252/2002 -Bissangou v Repubtic of Congo (2006) ACHPR; CoIJ}.~:'l.
-Chinhamo v Zimbabwe (2007) ACHPR; Communidation 246/2002 - Mouveme,.:fI~'bii'[e~ de. 4r
1
,
~
Droits rllumains (MIDH) v COte d'Ivoire(2008) AGHPR
!~
".....
9See Communication 300/2005 - Social and EconorlticRights Action Project (S: z P) N~~~
(2008) ACHPR, para38.
o
8
lit,
~
'l_ ~
I
-~
t::Jl/
AU-UA
0
"~~
',~e'1
"'0
55
~o-<>\
< ,
~,\,
-g ~ ~
£!l~, ~~
tp"
0
<§="
~'V
0,
<&.
(-'.:, ~ 4"'RICP.\~ ,,:--0(/., '" •
~,..:.Oil1I'VtE ET o~s\',
.
.~~~.~.,.
'"
•
'/;'
ACH
African Commission on
Human and Peoples' Hights
come
within the competence of the
that rights recognized by the African
Human Rights our
Collective Responsibility
tion can be accommodated
on the grounds that it alleges
have been violated.l?
61. In the present Communication, the Complainant alleges that rights
guaranteed by the African Charter ha been violated by the Respondent
State. The Complainant goes further
list the provisions of the Charter
that have allegedly· been violated even though there is no obligation on a
Complainant to mention specific
of the Charter that have been
violated.l! Accordingly, the
met the requirement to show a prima
62. The Commission
further notes
Communication do not contradict the nrmcrmesser
Act. The Communication also meets
personae competence of the
alleged violation of rights in
competent entity against a
with its established
Communication
African Charter.
respon '"
means wi'~it;f~~
alleged to n:~v.ebeen '"
'~",
64. The commisJi9Ur)has previously held
remedies does not apply where
ineffective"14 or where they are"
is therefore firm! y established in the
i
'
the Respondent State
inadmissible
because the
local remedies. Article 56(5)
"sent after exhausting local
that this procedure is unduly
on the principle that "the
ty to redress by its own
domestic legal system, the wrong
t the requirement to exhaust local
remedies are "unavailable or
and unreasonably prolcnged=.vlt
of the Commission that
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
in order for the rule of exhaustion of 19calremedies to apply, remedies in
the Respondent State must be available, effective and sufficienr.w
I
;
65. The Respondent State contends that local remedies have not been
exhausted by the Complainant in the ~res~nt Communication because the
Complaint was submitted to the Cornriussion whilst an appeal filed by the
Victim before the Supreme Court of t~e Respondent State upon the same
facts was still pending. The Respondent State argues further that the
exceptions to the exhaustion of local remedies rule do not apply to the
present Communication since the Complainant has failed to take
advantage of effective and available remedies provided .by the State.
66. The Commission recalls its eSlabliShekjuris~~;~~nce ~t a State which
alleges that a Complainant has failed It9..~~h~ust;·~~c~J.;t~J.:led.i~~c,~/~s
the
burden of showing that the reme<!t¢si.:l~~';::"
,. e availaple,-"effecJ!v~ and
sufficient to cure the violation.ei
ed".
s is "evi<ient from the
Commission's decision in RencQ1'{t;eA II .,'ilfe.
ir La Defo~,~"&s DraUs de
l'Homme v Zambia,18 the Resppti~e~~ S~at~l~t;i;'" en of demonstrating that
effective and sufficient local remedies exisfl:ilj'~salways been recognised
under the African Chart~t,';;ttis a pra<tti9~that
irmly entrenched in
international human,~~ght§~.~~ fro,~·4~~h>,the.
ission is authorised
by Articles 69:<y.aI1~h>,61 ":~<of;,:'"thd Charter to draw inspiration
from.l? Accordin,:~ly,the iriitial bu~;d~nItoprove the availability of effective
and sufficient remedies within its-Iegal system rests on the Respondent
State.
'
r
v-,
"
"
i;;!
,
.~~
67. The E.:,es,pondent f
claims th~f the Complainant should have pursued
the m~~t~r:t()~,~,~ogica@~~l~~~iW
befo1e the Supreme C~urt as the dispute
was already-before that Court. Although the Complainant alleges that
accessingonatlonal'{courts was futilJ because the State has failed to
implement,' pfevio~s~.::c~urt decisionk in favour of the Victim, the
"
I
RespondentvState argues that it had! only failed to implement those
decisions because it appealed against
of them.
+
68. The Respondent State contends fuhher that the allegation of nonimplementation of national decisions :ought to have been brought before
the Supreme Court in the same maI]iller the current dispute had been
submitted before the Supreme Court. f=onsidering the ultimately negative
I
16 See Communication
147/95 - 149/96 -Jawara v IThe Gambia (2000) ACHPR para::>:3p,~,
and Socio Economic Rights a?d Accountabilihj Project p. Nigeria (2008) para. 45
O~'?-E.iAR/41/YD.o~ "\
17Article 19 v Eritrea (2007) para 51
I
&]0' c,,<C:
o~
'4~
~
18Rencontre Africaine pour la Defence des Droits de l'Homme v. Zambia (1997), par'" ~
~'.
lI', "
19 See De Wilde, O~ms and Versyp (Vagrancy case) v ~elgium(1972)ECtHR,
(Serf
60; Vaiesouez-Rcdriguez v Honduras (1988) IACtHR (Series C, No 4)
f ~ (")
,,,
..,
~ ;i 13
vo~
14{~, ~~\
~i!AJ
",u-u;>.,g-
\ ~ 9.
%
~.ageJ'
'!:
'/y 4~-RICP.\~~
.
'"
.~
('!y,
~
~x;;
°MME ET oE.""
.~~~'I'~~'Jd
l
tZ':I
s: ',f'
?eg
r
f
ACH
African Commission on
Human and Peoples' Rights
:~
Human Rights our
Collective Responsibility
outcome of the case submitted to the S~preme Court, the Respondent State
argues that effectiveness of local reJ1edie.i1S
does not mean that national
proceedings should be in favour of the victim.
(
69. The Commission
must first deal with the question whether the
Communication is inadmissible on the grounds that it was filed while the
Supreme Court of the Respondent Sta~ewas still seized of the matter. The
Commission notes that Article 56 of tHe African Charter has to be applied
with flexibility." The Commission rec~lls that it is also firmly established
in international human rights law and Ipractice that the exhaustion of local
remedies rule must be applied with some q.eg.l{El\ijr"pf
flexibility and
without excessive formalism" .21
({;'i,}-' "'l~ ;t~"
II
~<~:;\;<:-,)\~.
;:'<
<,:~;~>?\
~<;~;:~~?~~,
'.
:;~~~.:
70. The Commission notes that although th C;:ompl~it1J
.;~~$.;:;;£il~5:1
with the
Secretariat before the final resolution
' eall0:d,g~d:~ti:h~",~j1preme
Court, the Communication was n!;l:
ide
befoie>;.tl;l,e
conclusion of
that appeal by the Supreme 4~our ..
Commis~~9n{Sview, in
appropriate cases, a flexible iP:f¢i~~~tatio
application)ai Article 56(5)
of the African Charter alloJ;Vsthe 69" , nissio
receive a Complaint even
when an appeal is sti]
,ending '_'., ,·'h~,.
lte nat
eve!. However, the
.~.
,.,.,".
Commi~sion will onl~;,cons~~~5.,s~~~\(
I };~~!?unis+..,
ion after the .fact of the
conclusion of th~§?ppe<;l!hastJ?~en transm~~t2gwtothe Secretanat. In the
Commission's yiew, ~hat ~6n.~titues art~'>~ppropriate case will be
determined on ;~;,case-by-casebasl~(~! ,g~nerally relates to circumstances
where the urg~.~~y of the situatio "\> anrants immediate access to the
,,<'
commission in "'~t,~~:VOid iTer
danger to life, liberty or property.
71. In the" ;', tCommurliq~~~?~i~;theCor;nission notes that at the time the
Complaig
'l~d, the Victim was faced with the imminent risk of
imprison~~
~~l0n:Jbejail term a~ainst which he had appealed 'to the
Supreme G' t. It is t:ete failure of the Supreme Court to stay execution of
the decision f the Parliament Co~ittee
against which the Victim had
appealed tha ,greed the Complainant
come before the Commission.
"
!:B;:?
toI
72. The Commission recalls that by Articl~s 60 and 61 of the African Charter,
the Commission is encouraged to draw inspiration from international
human rights law. In this regard, the Commission finds the experience of
the ECtHR useful on this point. Faced .rith a similar challenge in Ringeisen
v Austria,22 the ECtHR took the view that "while it is fully upheld th~~~
I
~~.
20Commun~ca~on 304/0~ FIDH - O:ganisationnrtionale des droits de I'Homme (1J!J!j'!j.-~W;:&RI4r
Rencontreafricaine pour la defence des droiis de I'Hom1le (RADDHO) v Senegal
21SeeLehtinen. v ~inland (2006) ECtHR (APPliCati0r no 43160/98) P 7; Horoai 11r!0ati (20(~'
ECtHR (Apphcation No 51585/99)para 40
"~
22ECtHR (1971), (Application no 2614/65)para 91
\ ~ ~
AIJ-IJA
!l!
('o~\,,\
"
<'t,,'\
~::; I
~~!.I
\~"".i. ~
Pa
,11~
.~~
:<'-OMME
g '"i
{V'?
"RICP.\~~Q
ET ol:.S
'lf~~~,~,~.
%\
'Z?,
'"
(I
vQ.S;/
":;,<",,f""
PR
AC
African Commission on
Human and Peoples' Rights
.;'~
Human Rights our
Collective Responsibility
~:- - .
,-
applicant is ... duty bound to
the different domestic remedies
before he applies to the
:it must be left open to the
Commission to accept the fact that the lasf stage of such remedies may be
reached shortly after the lodging
the application but before the
Commission is called upon to
itself on admissibility".
73. The position of the ECtHR is further
where the United Nations Human
held that the question of exhaustion
the consideration of the Comm
submission of the Complaint.23
e Complainant
notes that along
inent risk
had filed a request for Provisional
,c:r;1j~~ding
of imprisonment that the Victim
A<[,7
mission notes
before the Supreme Court of the ~"<:;J"J0},,{'!-'l\"''''~
tervention
that in those situations where
exists as a result of an 1m1'''',..,
liberty or operty, a strict
na1L1st:ed
before a Complainant
requirement that local
qe);eii:rr the purpose of the
can come before the
is impracticable and
African Charter. In ..1;)
undesirable to
wait till pending
proceedings .
before a Complaint is
brought to the
74. The Commission
'-AJ
•••
",Y,,L
although the Complaint was filed
h",t.nl"'"
the Supreme Court of the
Respo
present Communication on
Admiss'lJ 1
conclusion of that appeal. This
means tK~! e~;~;.
,%gh, the last
of the domestic proceedings took
place a£te~~4rthe filiqg'" of
consideration of the
Communicajion is only taking place I
the conclusion of the national
proceedings. \\'Ii;heCommission t'tHll""'f"tl..,l"'" finds that there is substantial
compliance wIfl1 Article 56(5) of the
I
on this point.
I
76. Regarding the Respondent State's arrment
that the exceptions to the
exhaustion of local remedies rule I do not apply to the present
I
23Communication No. 1085/2002 -Taright et al v. A~' eria, Views adopted 15 March 2006,
para. 7.3; where the Respondent State argued that the Communication was submitted before
local remedies were exhausted and while the ,omplainant was still pursing ~~
..
remedies. Also see Communication No. 925/2000 1 Kuok Koi v. Portugal, Decisio.~.&d8B"'ed~rtvD ..o~:>"
~0c._,~
0.<>\,
October 2003, para. 6.4.
~'fi:
('~\
24 Also see the SADC Tribunal case of Campbell (Pvt) Limited & Others v iA~ba
e ~~"'~"
~.\\
~/O
fI(b~
III ~\~
AHRLR 141 (SADC 2007) para 15
W.J·
~, ~h;(
0 Gi'3
0
r
i\~
~ ~ 1
! '"
f
~""".<r
(l
\~g'\ 5 oi\~A
\1 A.
~
'\
s1
«.,0 c, ~(
~<J
'V 4"RICP.\~
(c,v«'~·
&/0
""
(.
"..'}Yo
"" ,
c. '(
I11ME ET OE>
-........",,_..."'."'""',.,,~~ .... ~','.......
.co"
,,""
ACHPR
•
I
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
I' ,
Communication, it is incumbent on the Respondent to demonstrate that
effective and sufficient local remedies are available at the national level. In
its decision in Jawara v The Gambia, the F0riunission held that" a remedy is
considered availa~le only if the ap~licant can make use of it in the
circumstances of his case" .25In Chinhano v Zimbabwe, the Commission also
held that "remedy is considered avail~ble if the petitioner can pursue it
without impediment; it is deemed Jffective if it offers a prospect of
success, and it is found sufficient M it is capable of redressing the
complaint" .26
77. The Respondent State argues that the alleged-violations
which are
primarily ascribed to an action by thJ Parliamentareredressable
by the
national courts, especially the Supreme Court.- The Commission notes the
Complainant's submission that even the
,ggtisio&#rl(~lli:;hande,~
down by
I ..1"''',
", --_,
-.,_,,- -r>
the Supreme Court reinforces the agum
thaf,-,tnere is--no:.:g£fective
domestic remedy for the Victim. xft, 'Comrru§~jon notes.fhe conclusion
reached by the Supreme Court
th ' ia~~nt is a ~li~'Ctat
Court and
the failure of Parliament to "f911fX~\certai ,~~Eedures that-are followed in
a court of law does not necessarily-mean tR~ ""
impartial"_27
"~,'_
":'
Jlfat
-" -. 5,,}'~';::;
78. In the face of such,~~t~l?Fs~~~:dqmestic law; the' ~~spondent State has not
shown .that the,,:,',~,'
~pre~e" Couit<<?r-..\a,,_,.n,~,
,,0,t~er'. c~urt had any pro~pect of
redressing the] :YIolation alleged '<by!:, the Victim. On this point, the
Commission firids that the ResponderijState has not discharged the onus
to show that th~',i~~~,lremedy it\~s ho~ding out is ef!e~tive since fr~m the
onset, there was no;pl19spect of c~;uccess.The CommISSIOn agrees WIth the
Respondent ,_~tate tI1~tt1;~i!~f~~iY~ness
I does not necessarily mean that
national.proceedings
mustoe in favour of the Victim." However, the
Commission takes.fhe.view that e££ec!tivenessmeans that the remedy is
"capable ot~producing/ the result for which it was designed".29 The
remedies in-the present situation do Inot show any such prospect. The
Commission therefore finds that the Respondent State has not shown that
effective local, 'remedies which shoJld have been exhausted by the
Complainant are available.
I
I
79. The Respondent State also submits that the Complainant has failed to
approach the Supreme Court with a crmplaint that national decisions in
II
25Jawara v Gambia (2000)para 33
26Chinhano v Zimbabwe (2007), para 54
I
27Fg 16 of the judgment of the Supreme Court ofl Zimbabwe in Roy Bennet
Others, Judgment No SC 75/05
I"
28Also see Valesquez-Rodriguez v Honduras (1988), para 67
29Id,para 66
I
~~o~ f\UMAN 4~~"
c:P~~(,I'l-E.'ARI4r ,o~o~"
~
v,/ '" nai
grtjiU,a,"
/J8 ,
~(~
1, ~ '9.
I~":i.
1'1
""
"A
Ul
,,---::;//
~ ~
0!J
<:.>~
c.
~4':RIC~\~\'-
""~
MME EI D£s
Ito
is
u-UA
e ':Js'6
\;:
~~\
(~
"'~-='~"
4?
,.::;,qv~
,?X-hi'
:;;<"""
'1
~~,
(;i,9
(/Y
ACH R
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
favour of the victim have not been implemented. The Commission notes
and agrees with the jurisprudence of fhe ECtHR that local remedies are
ineffective and therefore not required to be exhausted where violations are
actively perpetuated or at least, tolerated by the State and its agents.s? In
the face of undisputed claim that natiohal decisions in favour of the victim
have never been implemented by the ~espondent State, the Commission is
of the view that requiring the same victim to exhaust local remedies would
amount to a futile exercise.
80. The Commission further notes and agrees with the view that where "the
general legal and political context in rhiCh tht7¥i,,;~~.p7~,~te
as well as the
personal circumstance of the applicant" indi~~~e that{I!'~~alremedies are
::,;~:::ea
~;:~t:s~
o:o:!~;~.~~
~p~ca:!;¥j~:;~~;~~;,e~~~
obtained multiple court orders, as in I.
the Supreme Court of the Responde
challenged the claim that th~:l~jvicti
enforcing these orders ..33 In tlte~ "; of ku ,
has failed to demonstrate t~at loca rhedle
as far as the victim is co jt~rned.
the requirement to e~Hau
has been satisfied ...,<}';':,.'{,c0:;" >i'~\>,"
the'Ul.il1orify''';jua,g'ti'ient
of
tate'n~~.\~ot disputed or
ounterea.~~:d,ifficultiesin
lity, the R~'spondent State
e effective and sufficient
ommission rules that
e 56(5) of the Charter
,
Decision of the Cq,~mission on Adm
"
r~
81. In view of the ~~pye, the Afric~p C mission on Human and Peoples'
Right~~)t,g:clares 'fhi~~:Z:;fommUl\ii'atio Admissible in accordance with
Articlej, ,
e Africarc -....€havter:
'
, >" ',:'~:",:'" ..... '
';-'~'
Consideratiori·tpl~he M
Complainant's sitl1missions on the Merits
(';'"
(.'~
I
Alleged violation of Article 2 of the Mric~n Charter
82.The Complainant submits that the Vijtim has suffered discriminationin
violation of Article 2 of the African C ! arter. The Complainant avers that
30
See Akdivar v Turkey (1996)para 67
ACHPR
African Commission on
Human and Peppiest Righ~s
Human Rights our
Collective Responsibility
I
from May 2000 to January 2005, the vic~imjendured a relentless barrage of
attacks from agents in the direct or ihdirject employ of the Respondent
State. They submit that these abuses were both physical and verbal attacks
on the Victim, which resulted in: the death of two employees, a
miscarriage suffered by the Victim's wife while she was held hostage
during one of the attacks, the rape 0f two female employees and the
physical assault and illegal detentiorl of the Victim's employees, who
subsequently fled from their home on His estate.
83. The Complainant submits that the vicLm Was imprisoned for 12 months
with hard labour at a maximum security prison 9 . ]?1l,l,'iousconviction of
contempt of Parliament, and to date dontinu~'~0 i\P~.tl~B
fear for his life
should he return to Zimbabwe. The C6mplafit~~~!~,ther~~~recontends that
the fail~re or unwillingness. by the Resk9:p:d~!ltSf~$~~!~.~!fl~2~~~~.~~~:,,;;ictim
from mistreatment can be directly ascribed-to, the fact~that Re~lS:I).J?F)!only
a
supporter of the main oppositiop-:~plarty, but. also '\~,)'White man and
therefore a victim of State sancti rl~d r1cifal~distq;iminatioitji~'~ntrary.to the
African Charter.
. \> ".'
,yiP
C'
84. The Complainant
refer,s2J~~(~heCo~h~.~ion' s \le"cis.ton in Malawi African
Association, Amnesty Irlterii4~i,fp;tal'lyJs~l:sq~.Diop >~.:UnionInterafricaine des
Droits de l'Homme ·}md>'1).AD~EX1f!lJi"·Colledi}.itt~~LrNeuves
et Ayants-droit and
Association Mauriianiennedee D~gi!t.~:4erl'HornP¥~'v Mauritania, where it held
that:34
"<~lt~:;",j
" "
.a'
Article 2 of th~:(:;harter lays down a ~i~~I'6ie that is essential to the spirit of this
convention; one~9f:tf0se goals is the.elinahation of all forms of discrimination and to
ellsure equality ariloilg all human beings,
'
.",
'\~"~~;';:~;--.,
..,,,
'\<, .-;,>;, ~':":" ,
. ,;:\~: ~
",.",
':,
'"'
1.
85. The qJ?:1F.~.~!.R~~tsubtr\it~::;that th same 0_bjective un~erpin~. the
DeclaratIp,n o'fCi~lgl:~~,of
Persons Belongmg to National or Ethnic, Religious
and Ling4Jsgs:>Mirl'Qpitt~sadopted by the United Nations in Resolution
47/135. Tffey' contendthat
Article 1 of the declaration stipulates the
obligation o£~'.fl;
State to protect the existence of national or ethnic, cultural,
religious and\;;i'~iii.guisticidentity of ±runorities within their respective
territories.
.,,!v
I
86. The Complainant
submits that the Respondent State has disregarded this
obligation, as the Victim was subjected to racial discriminatory abuses by
State functionaries including the highJst authority being the President of
I
I
ACHPR
I
I
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
I
Zimbabwe." The Complainant refers! to the Commission's decision in
Union Inter Africaine des Droits de l'Homme, Federation Internationale des
Ligues des Droits de l'Homme, Rencont~e Africaine des Droits de l'Homme,
Organisation Nationale des Droits de dHomme au Senegal and Association
Malienne des Droits de l'Homme v tAngOla, where the Commission
underscored the fact that:36
A government action ... directed at specific ational, racial, ethnic or religious group is
generally qualified as discriminatory ... ThJ Commission concedes that African States
in general. .. are faced with many challenges, mainly economic, and in the face of such
difficulties, States often resort to radical measures ... whatever the circumstances may
be, such measures should not be taken at the detriment pfthe, enjoyment of human
rights.
'
,,/;< " ."«
'.
:
..
',~
87. The Complainant submits that in the present ca~Edt,<;:ann0t_Q~
argued that
the expropriation of the Victim's ass~,tJw~~:~wptivat~~~by~coiiSJdefations
other than race, as he acquired CJJ~(B~is
as's~t~;\aftei'<~imbabwEt gained
""~'···'1·",
c",'w
'
independence and was not a b~J,1e£icia,X~i",of
tQ~ historical-annexation of
',~ :
I <'1 :;;::;,(t'I;-' ,
:/;:1~')'
'.
land by the British settlers il1(18Ql.
e1;:!,~"QJ,'ri.plainant
therefore
submits
t"A~:~~:'~~_'
_
./
that the targeting of the/yictiih:~;B1}, accolillitli,.,pfhis race constitutes a
violation of the spirit of A~#cle 2 of th~;.Nrican< ., t .r.
'J,
"';"""~h::> ,;;,,::;'
Alleged violation of ~U~If: 3 ofJhe,,8frican'qhart~t'·
_,¢r ~..,-~~,'~--:"~
~'"
"'~<~'~l\, ,
88. The complain~~
'SUb::~
that:t~ii'.rLusaf of the Respondent State to
respect court o~~~rs issued in f~vourl0t the Victim points to deliberate
efforts by State ':~ig§ntsto deny tl,1eVictim of the protection of law. The
Complainant avet~J*p§ltthe Victi,!p puJsue~ all available legal channels to
'. . ,";<':,x, " ",~~ , '
I
!
protect '~is family, rt£h;?~f:o/s;;f\P'd employees from the State sanctioned
attack, \~:r:cLjvas.t?ranted;';ria~less thad six (6) orders in his favour. The
Com?laina,nt av.et~·':~h~tthese orders cpnfirmed. the Victim's. right to stay
on hIS farm.r.not to be, assaulted, harassed or interfered WIth, however,
these were all defied by the Respondent State with impunity.
:y~.
'<' ,
I
--------~.!~,
..----
I
The Complainant indicates in its complaint that onl12 June 2003, President Mugabe delivered a
speech on ZTV at Nyalcomba Irrigation Scheme in N)janga, during which he stated: "these Bennetts
and the De Klerks, are not deserving cases in regards to allocation of land, because they are
destabilizing our society, they are for illegality; they ar~ supporting a party in its program of pursuing
an illegal course of power. All those who are wOfking in this illegal way, in this manner of
destabilizing our society, do not deserve a portion of our land at all. If they have it, if they have that
land, that land will be taken from them and given to more loyal citizens, so I don't want to h~lfa:t~.
there is a Bennett, that there is a De Klerk who contin~es to destabilize our wellbeing, th~,e"
from here."
I
.f:j-0",;§:,c
36 Communication 159/96 - Union Inter Africaine des DroUs de l'Homme, Federation ,,;mati
al~...
des Ligues des Droits de l'Homme, Rencontre Africaine des Droits de l'HommeJrg~gan satii~~'
Nationale des Droits de l'Homme au Senegal and AS1'SOciatiOnMalienne des Droits ~~l'lj,
m~.:;1
Angola paras 15 and 16.
\~~ ~
t>-IJ.IJt>35
'{iiuStlq:~~~IyD~
,
",,;,.6-
I
~
Pa' .,19 ~tE
"'b (It.
~~
~o-<>'
"
~ \
I).l
~
§i
~
en
~~C) "',,/
RICp..\~~<;) :0q
,?<G.
OMME ET oeS
•
r,,;.~
~
~
.!f
'I
-r •. -~.
.;.--
AC P
African Commission on
Human and Peoples' Ri.gbt~
Human Rights our
Collective Responsibility
89. The Complainant
submits that the I Privileges Committee of the 4th
Parliament of Zimbabwe was biased torards the Victim, as majority of the
members were from the Zimbabwe 4frican National Union - Patriotic
Front (ZANU-PF), and predictably failed or refused to take into account
all the relevant factors in their deter~ination. Further, the Complainant
avers that the sentence imposed on the Victim failed to take into account
the violations he had suffered at the hJnds of State agents, which led him
to act in the heat of the moment and lin response to severe provocation.
The Complainant submits that this was noted by Justice Sandura of the
Supreme Court of Zimbabwe in a dissenting opinion, which stated that the
sentence was grossly disproportionate to the s~t"i,Q.B~,J)),~SS
of the offence
I
/'
<e
committed by the Victim, and was therefore JJ.~cons11· ional in terms of
section 15 (1) of the Constitution of the R~R~l?lic 0
imbabwe, 1980
,1,;"'~
(former Constitution of Zimbabwe).
",\,
"'< ";:;-."
-/_''''''''V''')f"
/i..
"i~1t,~~.l:·,\,<\ :fu~:'~'
refers to the desj§l?>J1,of tH~jJ=ommi~~jQn in Zimbabwe
Lawyers for Human Rights and the nstituf¢~~r Hu,t{ianRigh{s;;a,~d,:Vevelopment
in Africa v Zimbab;we where J
J.at'\'4~~e~ Article ~;\l;ofthe African
90. The Complainant
Charter, equality before and equ"
btectl"()h;8+the law means equality
with regard to interpre /i: on, apph
n and'''i~~Qf,cement of the lawP
Hence, the Complain
e trea.thlent of the Victim as
outlined above wa~:iru:iirect
n of A, "
'of the African Charter.
Alleged violation ~,":ticle:'
\:}:,~'~.
'\ ,;.\,
4 and 5 0,
l
frican Charter
\'
that rre ttl a,cks directed at the ,totality of the
VICtl1~;Slife .amount~~>~~ tortur2~i!crue~,mhumar: or degradmg tre~trr:e~t.
The co
ant suBm*~§~th~t);tl1e
acts of torture mclude: the extra-judicial
executio~ 0
" f his ~riiprby~es, the rape suffered by two young female
employe~§l t,~
lffiP§x"essaultmeted on the Victim and his employees,
and the mi~,~~triage's~f£ered by the Victim's wife as a result of the actions
of agents of\~ANU -PF,
91. T~e. Co~plainant;t?~~tends
.4
92, The Complain. nt avers that the Victim was arrested on 9 October 2002, in
Mutare and assaulted at the police s~ation while the Officer-in-Charge
looked on.
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
I
I
I
i
this argument, the Complainant refe~s to the decision of the Supreme
Court of Zimbabwe in 5 v Ndhlovu, where it held that:38
The freedom [from] torture, cruel, inhumal or ~egrading punishment and treatment
is not confined to punishments which are [in their nature inhuman or degrading. It
also extends to punishments which are' grossly disproportionate': those which are
inhuman or degrading in their disproportionality to the seriousness of the offence, in
I
that no one coul4 possibly have thought that the particular offence would have
attracted such a penalty...
l
94. The Complainant argues that in applyi g the above principles to the facts
of the present Communication, there c~n
I be no dq;u;ptc:tllatthe sentence of
15 ~?nths imprisonme~t with l~~our, }~;'?'"whic~~;}pm~nths was
conditionally suspended, IS grossly dispropC)rtl~~~te to\t~e senousness of
the offence committed by the victim.
·~(;:):;~t:;:,,/;L;"..
.r'', ._ .....,',.
,.".~
L"£""''''''
,'<:: t...
"
"'\j'<"
95. The Complainant submits that bY)nli~sing\vi.}effecll~/~Jt:prison
sentence
~:_;!~
when other forms of puni~~enf ::'~,o.,Uld):;;havebee::"" ppropriate,
Parliament failed to guard aga~~t an exce§'si\Fedevotions 0 the cause of
deterrence. Hence, the COIfwlainaflt~'£:~.ntends~t99:~
Parliament did not give
due regard to mitigatil1g'i~~ctors, a~~1\t~.,
Victim. acted in the heat of the
moment and in respqn§e4tdt~§xere_(l1tb~'~£·~,t.ion.
T,he
Complainant submits
,<-.;_.;y~
t'"M
I
-"',,'f ~~~\
.,
that if these factors- were con$J~~red, it wqH!gy,have greatly reduced the
Victim's moral blamewotthines"si);:Itt~erefotE(submits that this omission
amounts to a vi~ia tion of Articles '4~i>,J 5 of the African Charter.
.
_-i :_.~......
'-
0
_.-.
'\.
•••
",
',j-'6"
Alleged violation o(At;ticles 6 of th~ Affi~an Charter
vJtim
96. The C;'~Pli!inant :dbmly;:< thaf~e
was subjected to an unlawful
and arB~1i.ary;>'"
~~; on 9'Oc-tober 2002,[asthe charges brought against him
were fals~i,It §:;r 'i111:~~,:",t~'tt
following the arrest of the Victim, his lawyers
were deni~a.,:gtcesst6{ruin and threatened with violence.
"';;',
,"'
I
97. The ComplaiB:fl,ptalleges that after sdffering humiliation and abuse, the
Victim and other arrested persons were eventually taken to court and
accused of violating the Electoral Ac~ by taking photographs within a
hundred (100) meters of the polling sta~on. The Complainant submits that
there was no evidence to sustain the charge, hence the State never
proceeded with the matter. However,lthe Complainant contends that the
action~ of the Respondent Stat~ a~d its!failure to stop the arbitrary a~r~~_~!_
detentIO~s and assa~lt o~the VI.chmat rhe hand~ of.Sta~ea~en~~te~~_,
to an arbitrary deprivation of liberty and security In violahO}?;,W~~~t121WI6r
('o~\
of the African Charter.
l!_!
....... <~\\
O
:f1
(~,'
ul
~Gl Ii
__________
.r __
'1(.)
·,\,'-O'W))
0
Ii
385
v Ndhlovu (1998) 2 SA 702 ZSC at 715 G - I
': ~
,,-=,,,#
~::;
»
;"'"
~ b1
i'
I,)
~ ~
o
~
p.U-llA,g:-
\\~gc.
4"RICP,\~~
'~
""
0
~
~
~0'X'v
""0M
1:,'5 'i' t/'
"",'~
ME ET 0
;;p."
..,~
en ~
.q
AC
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Alleged violation of Articles 7 of the AfriJan Charter
,
I
98. The Complainant
submits that the proceedings conducted by the
Privileges Committee of the 4th Parliament of Zimbabwe violated the
Victim's right to a fair hearing by an independent and impartial court or
adjudicating body as prescribed in Arti~le 7 of the African Charter.
99. The Complainant submits that in ALnesty International, Comiie Loosli
Bachelard, Lawyers' 'Committee for Huma~ Rights, Association of Members of the
Episcopal Conference of East Africa v Sudan the CO!ll.1:l)~~~ipn
held that all the
provisions of Article 7 of the African :Charte+,~;M~~"fuu.hlally
dependent,
and where the right to be heard is in£~inged~'":Q!b:!
vio\~fions may occur,
such as detentions being rendered arbitrar . Espec;ian~>B>~p>siti~e
is the
definition of "competent", which enco I
acets'~:~i~h"cl~::~ii~,':~S:¢p~rtise
of the judges and the inherent j]¥.
of t
laws':;'~i,~er which they
operate" .39
"
"'"',,S,\;,
",l
;,,:1':
.,
"
.",.. <'"
•~~" .~:;.
"\.-,~,:,,>.
•
.:.
<'
The Complainant argye{ thdt(,~£ the
ent Co~unication,
the
Victim's right to have Dls~;;causehea~ij;:~was
by the fact that the
Privileges Committe~tri\~11¥~:~f0m.g,9§~~~tLmem,f~.ers
of the ruling party,
100.
~!
~~N~o~::n;!il;lr'~~S~:c'
,IJer~;, ~~~~),:~t~~;:~~:e;::;
which the Vicfi~, belonged. The
'~~laJnant submits that as a result of
this compositio Jhe Privileges ~o~tt~e
was biased and retributive in
their application ';the law.
;~
.
~~~
'\'
ALi
Th~:~"?,~R~~i~anf ~~'~I~~P!nits tH(atthe Respondent State ~ay. argue
that wh.'~n"<E~a!ll9;ment
IS dealing WIth contempt offences, It IS not
exercising-a criihiqaL'J?~.civil jurisdiction, rather a sui generis jurisdiction
expressly authoris~d'By':'the Constitutidn of Zimbabwe. The Complainant
however contends that the former Con~titution of Zimbabwe in so far as it
permitted Parliament to be judge in its bwn case, is in violation of Article 7
of the African Charter.
:
101.
I
The Complainant submits that the 4th Parliament of Zimbabwe
imposed a criminal penalty of 12 months imprisonment with hard labour,
without meeting the burden of proof n~cessary in criminal matters, which
is proof beyond reasonable doubt. It Avers that the Victim should have
been tried by a competent court of la~, where due process would, ~~~'~\\,
102.
~
c:rt£.IAR/4r
I~~
39
Communication
48/90-50/91-52/91-89/93
It!
- Amnesty International, Comite Loosl{iach
Law_yers' Committee for Human Rights, Association of
Africa v Sudan para 62.
..0.::: ~';'
":>~
O.<l~
ardi:c.;" '
III ~~
<(0 \
1Mem bers of the Episcopal confef'~ce 0 Eas: <!::J
s
;,'" ~
Page" 2 o~
~\~
\
rt-
-;.,
"
c-.
"~
~ ~~~
i5;;i
UA
,g:
~R$J II.
AU'
....
<;:"J<4""RICP.\
~-0
ItOMI\1E ET O€.S \'
~"'~...-~-
>
'
.:
I
'
'
ACHPR
_'
"
African Commission on
Human and Peoples' Rights
.
..
Human Rights our
Collective Responsibility
,-,,-'_'
t in the court' of Parliament,
as the Victim was convicted
the allegation, followed by a
been followed. The Complainant su
the procedure was fundamentally
by a mere moving of a motion
debate and a vote on the motion.
I
103. The Complainant argues that
<=In-,or,"!" was supposed to exercise its
jurisdiction in a manner that is not
tent with or offensive to the
African Charter. It submits that the ...,
........
1:'......' of the Parliament should have
made it clear to Members that they
sitting as a court of record and as
such obligated to decide the matter
into consideration the Victim's
rights. The Complainant submits that
voting along party lines in violation of
104. The Complainant further alleges
and sentence imposed on the Vt/"'Ttm'lifoi
Privileges Committee failed to prE~Sei1l;t);.~:t;s
4th Session of the 4th
presented its report to the ::::>U.l:f,,,,e,SSH
Parliament that the
Session unless it has
a new session. The
Complainant submits
that the proceedings
to advance the cause of
were retributive iI}"ria.'t"\1re
justice.
~r'/"
:."
r--'Y_i'
Alleged violation q~'>:(\rticles
10, 11 and
... '
n
105.
T
was targeted for his support
President of Zimbabwe boldly
ou d be run off his land as he was disloyal due
u DC. The
plainant submits that after the
infamous i ~'? ech, op~ "Hives from
Central Intelligence Organization
arrived at Ij"~lport Farm, which the
.was leasing, and threatened to
kill anyone ~~g;@}Vorked
for the Victim.
..L:L'-
'i~'2)
106. The Complainant submits that
violence, the farm labourers fled, and
farm. The Complainant alleges that
police, who had initially stated that
was "political", but eventually two
the farm, but were prevented from
""VJ
107. The Complainant submits that the
for the opposition party and labelled
11 and 13 of the African Charter
a repeat of the March 2004
assailants proceeded to loot the
Victim immediately informed the
were unable to act, as the matter
officers escorted the Victim to
..L'-'-,
AC PR
African Commission on
Human and Peoples' RiglJ_ts
Human Rights our
Collective Responsibility
association and assembly, as well as tljteright to participate freely in the
government of the country. The Cornplainant refers to paragraph 3 of
Resolution ACHPR/Res. 5 (XI) 92 on t~e Right to Freedom of Association
and submits that, while acknowledging the rights and duty of the State to
regulate the exercise of the rights I to freedom of expression and
association, such rights, under the Afr~can Charter, can only be restricted
on the basis of public interest as enshrfned in Article 27(2) of the African
Charter. As such, targeting the Victim simply on the basis of his skin
colour does not fall within the acceptable derogations of the freedoms set
out in Articles 10 (1), 11 and 13 of the African Charter.
.
Alleged violation of Article 14 of the Mril.n
Ch
108. The Complainant contends that ~e mnfisc .
Victim's property constitutes a vio,l9/yforl,,,d~ .the
guaranteed in Article 14 of the African.Charter: ;"
.' ""'t:f?ci:i:t,
of the
0'; :;:
The Complainant submits
t the" .. tiin was bq
Rusape,
Zimbabwe, attended an ;1";'ag;icu
colle
¢l:;"and
worked
as
a farm
.
~h··t;.;:0·
manager before purc ",' g his
farrri:<~,~la,I),,9'>
through Standard
Chartered Bank in 19,8. "
omRi~;n , rvers
the Victim borrowed
further funds with which h
<~hased, ....,[,.more farm lands in Karoi
ar~a, Zimbabw:,;R~~e~er, the
. ras~~~~mfortable wi:h the insular
attitude of otherjwhite farmers on
'u!tdmg farm, and decided to move
to Chimanimanioeastern Zimbabwe; ;here he announced his arrival to
the traditionall~~clers
and vari01i'stra
itional
ceremonies were held before
\~,<.·~'\r>.,
~5~
I
he WaS, anted the~~FmFovalto proceed with his project.
109.
r
that
~~:
,_'.
'.",:'.':::';:', ('" ":'"
."
I
/;"'.
The\~:~omp( iQant slibrrtifs that he was issued a "certificate of no
present i~~~r".' '':~%~
ase his far, - C~arleswoo~ Estate, which he
transforme~i}:rnto. a />' hly productl\je entity, growmg coffee on 310
h:ct~res anaj;~~.,
h.e...
rd of 880 cattle. The Fomplai~ant fur.ther avers that the
VIctim enter~~?,j{;~mto
a partnership 't1th an international company to
process and f;,export coffee, and registered the estate as an Export
Processing Zone protecting it from compulsory acquisition by the
government.
I
110.
The Complainant submits that the 'right to property is a fundamental
right in democratic society. The Complainant avers that the acquisition of
the Victim's farm amounted to an acit of expropriation. It submits that
_
under international law, the following minimum standard ~u~~~"
c~m~li~d with for an act of e.xpropriat~ont,obe lawful: it .ought to.~~RETAR'4r
discriminatory, for a public purpose and accompamed by qwmB' .. "
adequate and effective compensation.
,'.18
(~~
111.
<\:i ,
'10'6
Page\~
OA,\'6
<~.'
~ ~\
~""'''?
Of
AU-UA
\~~
"-'lJ'
,.5'/0
", c ""
4':RICP.\~
.", I-to
"., :-::--.MME
••• ~~~_I
i
~:;
0(1),
,g:
(:.<:>~".;
S~ .//
'f
0
'<;'/jI
(:...:::,q_'V.y
ET oc "!,,.,';F
!
ACH
African Commission on
Human and Peoples' Ri9Ns
Human Rights our
Collective Responsibility
112. In support of the above position, the Complainant referred to the
decision of the Commission in Sudan R¥marr- Rights Organization and Centre
on Rousing Rights and Evictions (CORRE) v Sudan where it held that "The
right to property encompasses two main principles. The first one is of a
general nature. It provides for the pr~nciple of ownership and peaceful
enjoyment of property. The second prirciple provides for the possibility,
and conditions of deprivation of the right to property.//40
113. The Complain';;"t submits that ChJleswood Estate has been acquired
by the Respondent State a~d is beingioperate~,cB:M~~:~,~\\
Agricultural a~d
Rural Development Authority. Howev r, no ~~¥lpenSCl:t~,€?n
has been paid
to the Victim. The Complainant theteforei'·:a~g¥_es tJ:t~~where a State
exercises its eminent domain and
uires ai1':~:-i~di,V-h:l~~rs
property,
adequate and effective compensation "
. id, I~i,?;Q_g·~hicI1:J1.ie'~ct
of
expropriation is illegal. In sUPPO,~l
is t. m~n( "~ Complainant
referred to the decision of the interna
C~"h of Jus~l~~;,,;it{the matter
between Germany v Poland(Tqe:i~~~±ory at
0~:fow case).4~!:)
at
~.
"
v";~;-~~':~ij~:
s.
114. The Complainant ther~ipre subritit~;,t~at b ' .'~,vng court orders, and
mounting ~ campaig~\to p~¥~)~e:~~';V[iq:~~~fr.o~!~iru~
es~ate, without .due
compensation, t~0:JE.e~pj~nden;, tate vIOlat~:~,::ltsobligation as prescribed
in Article 14 of t1{eAfricaft Chart ,
;~;tr;:}'
;~j;l;~
rl~:'l
' •.
Alleged violation o~;ArticIe 18 of the Aft
\:;"";"'~'\
,t,;~,
115. The, Complaina
-submits tl}~t ~~ticle 18 (3) of the African Charter
enj~inS:,;:~~3-t~~,.to
en '; " e1rffiinati9~ of every form of dis.criminatio.n
ag~mst. \y'om~~"a,~~ e~sur t e protec~IOn of women and chIldre~. ThIS
obhgatIon,.\the,q0t;l}-pl~!n?nt contends the Respondent State has failed to
uphold.
k'
.
-.,\:< ,.
"
AC
African Commission on
Human and Peoples' Ri9hts.
Human Rights our
Collective Responsibility
.and equipment
maliciously damaged, stock
belongings stolen from the Victim's
and personal
I
I
human rights violations are
117. The Complainant argues that
can
be held responsible at an
perpetuated by private actors, the
itself, but due to the failure to
international level, not because of the I
exercise due diligence to prevent the
'.LU".LV.L
or respond to it as required
contends that present
by the African Charter. The
Communication, the consistent failure
the Respondent State to enforce
the Victim and his family
the court orders which would have
their
, amounts to a
peaceful, and undisturbed
violation of Article 18 of the African
.L
....
Alleged violation of Article 1 of the
118. The Complainant submits
mandates States to recognize
therein and to adopt
Complainant refers to the',,,u'_'-.L,nvJ
Victims of Post Electoral
that:42
in Association of
where it held
fl'WI,(rWlIln
}.t·:'"
"negative obligation of doing
the positive obligation of the
these rights.
The respect for
nothing to
State to
,., contends that the failure of the
119. In this context, the
his family and his employees from
Respondent State-to ;protect the ,
the ni"~ .plence of 'Sf~t~,;'El:ctors(;:;yOuth tia and ruling party supporters
, iolation "'6ffAr:£lcl~"l of
African Charter.
. sions on the
Alleged violati """,
of Article 2 of the Mric
Charter
120. The Respdlt:nt
State submits thatl to understand issues surrounding
the events between the periods of 2000 rO 2005, it is necessary to delve into
the historical background of Zimbab'fe. In this regard the Respondent
State submits that land was one of the major reasons for waging war
against ~he colonial ?ower~ and those th? .sou~ht to perpetuate its legacy. ._
It submits that the first Chimurenga (uprising) m 1893 to 1896 was fO%fl~M;-~~
to restore land seized from blacks itt 1890, in same manner, th~g:l'.iAR%;I\tD:~;
I
42
Communication
Cameroon para 88.
272/03 - Association of Victims
I
0
A:~0
o~
~<c:
Jt
r:; ,
.,'
(~\
~
Post Electoral Violence & INT~', IG~ 5 v .~/
~u
~ Ci'. ~
All-UA
,,\S'~,
~; "a. ~J'
g}
0
!l:'
",Q o
-v<i;; «_
Page 2 of ff-" 4"RIC~\"'~ I(:.\)~
~
\
..,.~-~......'t7
°41ME ET 01'.5 ~
H
African Commission on
Human and Peoples' Rig~t~,
Human Rights our
Collective Responsibility
, r
question led to the War of Liberation (second Chimurenga) which ended
with the Lancaster House Agreement in 19~9.
le
121. The Respondent State submits that
colonial government had put in
place policies that favoured the white bommercial farmers, as they could
access trainings, direct grants, loan I guarantee schemes, funding for
agricultural research and building of roads. The State submits that as a
result of this policy, many whites bought farmlands in areas reserved for
the white population, which tended to be upland areas where rainfall was
higher and the soilfertile.
j
122. The Respondent State argues that i was a
various laws on acquisition of land were e
Zimbabwe in the interest of economic .devel
peace, security and political stability aqi6rig;~f1.}~r
tliI
ackground that
government of
ial harmony,
S"
123. The Respondent State sUbnjifs··~t~4~ ~~~t Consti
11. contained
f
provisions relating to the a,cq;!.1{i§i 10n
df la#$;~,forresettlem nt and placed
the onus for providing cOrI],pensatl" Ir the·~~ca.Riredfarms on the former
~olonial pow~r. The ,j";
.
Ziili1:)~8~e woul.d pay for
Infrastructurallmproy,
t notJot the land Itself.
.
,~'
:~~~te
124. The Respon~~~~
that t
Impatience of the landless
masses reached \ boiling point I
bo resulting in invasions which
coincided with ''t~~ rejection of ~pe t
" Draft Constitution. It states that
the invasions welje::,nevera poli~y n' r were they an integral part of the
Lands-Reform and. ;R~~ettlemel}tFProgramme, but were a spontaneous
reacti6I};::\~r:,:~;lancit~s.s':~;g~,?p~l
The IRe~pondent State avers that war
veterans;JVho~liCldsacrificed their yout, and future prospects to go to war
over the land .questi,qn were disappointed by the apparent setback and
took it upon-themselvesto demonstrate!.
"'.
r
I
125. The Respondent State condemns the actions of these actors and states
that there was £lever a directive from ~he State advising the police not to
attend to complaints or respond to incidents of crime on account of their
being 'political'. It avers that the invasions happened spontaneously and
were country wide, as such, the police were overwhelmed. The State
submits that these constraints faced b~ the Police led to the Complainant
facing the treatment complained of in the present Communication.
I
I
""~~'~~~c~<."
126. The Respondent State submits that the primary goal of t g_o~ARI4r
J
. 1'0 '?
Reform and Resettlement Programme ISto redress colonial im~~':5:'anCE't:'
access to ownership, control and utiliiation of agricultural la~~.'.':in
,0("0'
-o
<~, ,
aYPi.<~~} ~ ~ .'.\.";
I
I
;("i <tL)
~""","
('l
~
0
-i ~,
en
<J
\\~
~
AU'Up..
i.
~0 /~ .,/
P ag·\I."'M7~,ru:~·
~ ""1'0
~ <:> ,;y ,ff
\.
/ , ~ 4':RIC"\~
((.,,§.
',.
"~
<
~o
1?
s'i' /"".
MME ET or.
'~"'''' __ ._'-="''''-:;;i''
",f
.~9H~'!.:
"
ACHPR
African Commission on
Human and Peoples' fiigl]ts
Human Rights our
Collective Responsibility
" r
that avail production and developmeft opportunities to the previously
disadvantaged black population.
I
The Respondent State submits that at the initial stage of the process,
the government laid down a framework under which farms once gazetted
for acquisition could be de-listed for Ivalid reasons, for example, if the
farms were plantations, farms in the large-scale production of tea, coffee,
timber, citrus, sugar cane etc. Also I included were farms in Export
Processing Zones. The Respondent S~ate avers that during this period
almost all the farmers whose land Had been targeted for acquisition
instituted legal proceedings. It was the~efore du~~~g~tB~same period that
the. compla~nant ?btained th~ court or~ers. ~<2~~}\g'
~\f~~\the gover~ent
notices of intention to acqUIre, and con£lrmeq:;\hISrIght to remam at
Charleswood Estate.
':';~2>,
" ~,
127.
, "'~{':':. :'''r~ ,
r".~:;~'~ ,~; -"
The Respondent State avers t~p.;
engesi.:\~Jo,weddown the
":'~,l,:;/.,~~_ _~~
acquisition and resettlement pf,8,cess I
' pace, as",,~gl;lrtprocesses
were blocking meaningful prp@l:.~,~.~,in
th
Reform arid Resettlement
Programme. It therefore pecame<~:i1;~,~~ssary promulgate a law that
promoted the goals a~cli;:~urposes
r
in the country. The
Respondent State SUq~ItStrrfl\:!h~,rG0n~t'l!~.tJ:~~al .endment (No 17) Act
of 2005 was ena5,t,ydN,t.~i,meet
tllis need, as,~j:~t,}provided
for compulsory
acquisition of agficulturaJ land"1'Mithoilitreqc>ilrseto the courts, save for
issues of comp {','sationfor improv~~~~t~~, ,
128.
'\'~~t~J~~~
It;'
129, The Respon
State conte~s
the Constitutional Amendment
had ':th~effect 0
llifying ell court orders which had set aside
government,J:"lotices0
to acquire. The State therefore submits
tha~ alf1l9rtgh""",th~"
~nitial policy ex~l+ded farms belonging to foreign
nationals .;who;:were:;pl;'qtected by BIlateral Agreements and under the
Export Processing Zope, this policy cduld not be maintained due to the
fact that the-number of people in need I of land had not been satisfied and
in some cases'~(ld in~r~~sed. The ResI?9n~e~t State therefore contends that
the compulsory acquisition was not discriminatory.
I
Further, the Respondent State refers to the incident of rape alluded to
by the Complainant and states that the rape was never encouraged or
sanctioned by the government. It refets to Article 8 of the International
Law Articles on Responsibility of State~ for Internationally Wrongful Acts
which stipulates that:43
I
- ~UMAN
130.
,,'" o't\~
f;,
'1:",,0
0'"
41\1D
G~nARI4r
~~
_
" International Law Comm",ion Articles on Responsibilityof States for Internationa\(:(m ~
Acts, November 2001 Supplement No. 10 (A/56110) ILd art 8.
~\~ ()
~,,,,,,.
l
~
C{_
~
AU-UA
,o~
<'"'~
~
g} ::;
r!?
"~~~~U'~~
P age,
,
'e,
o.() ~
(I)
c,¢1 ~
<:)<,f,
Ii'i'
,( f.t. 0,."4~·RICP.\l'I~ ~0"'v~/'
"'-::.?il1I\1E ET of.S ~
--:-::-~~'
,
I
r
A HP
African Commission on
Human and Peoples' Right~_
Human Rights our
Collective Responsibility
1",-.,,;,
The conduct of a person or group of perspns shall be considered an act of a State
under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of that State in carrying out the
conduct.
I
I
Referencing the above provision, tli~'
e R....
espondent State contends that
for the conduct of a person or group of persons who are not officially
"organs" of the State, to be attributable 0 the State, the person or group of
persons must be acting on the instnfctions or under the direction or
control of the State in carrying out the conduct. It submits that there
should be evidence that such people were actually authorised and
recruited by the State to do so for the attri9;~;mL, 0 be accepted in
international law, which is not the case in the '" ent ,. munication.
131.
I
.. '
l:~leg::iO~::;:n:e=i:::t:
(~u::::);;t:~~~:tu
ofZimbabwe
~~~~:l~e::'o~~~~~~O~yb~~~~
.'e~~J.\~
:~i:~le,i!~::c~v:.
Courts of the Respondent St~!e and
were in his favour. The Res
dent St
the Victim to pursue the,eNor ,
not raised any allegation-ofob
same.
.1"
'>~";!
ned tHe:V:9;flOuS
court orders which
' ontendS,;tl1atdtwas incumbent on
co~~£;:;rders,and that he has
. lin his attempt to enforce
The Respondents' State contends.thaf I ithin its jurisdiction, it is never a
duty of the State toenforce court o~deis in civil proceedings but rather the
duty of t1l].~.;l[ldividualji~.~l"tose
favour the brder is made, through the Deputy
Sherriff. ~~~~l,:;t!~:
Dep1.{t~ ?~~p:if£faces I resistance, he can then enlist the
services of t~~ P' .';'.!'\~;r~y
for the purpose of providing security coverage, and
not the phY~\t~ ~eG"~~~~of the ordef' The Respondent ~tate further
contends that\;!;;) en the;!]Stateagents ref~sed to respect the said orders as
alleged, the Vict~.mought to have approached the courts for remedy in the
form of contempt~~J)1courtproceedings, givbn the circumstances.
133.
'...'....
115/
I
I
The Respondent State denies all allegations of bias raised by the
Complainant, as it pertains to the proceedings of the Privileges Committee of
the 4th Parliament of Zimbabwe. It avers th~t the Committee was composed of
three (3) members from ZANU PF and two (2) members from the MDC,
which was proportional, taking into iconsideration the Parliamentary
representation at the relevant time. The Respondent State argue§4~Fu~~~".
complainant before the Committee was t~~ Parliament and not
On this basis, the Respondent State subtnits that members g:~~l'arl~ent
belonging to ZA~U PF party wer: ~ompe~.en~to adjudicate up4~~a: att8
contempt of Parliament by the VIctIm. This It avers was the p~@.tio oftne",
~,W %
p'u-ll
134.
~u~p!:T4r
.',~'"t.. ~l't
.
~
,o(,o}:"\
<~~\
~ ~\
8 '-I. '
!S
e~
~/,0 ~0
c ,~,y 4"RICp..\~~ ~,§,/_j'
'>:'" ItOMME ET o'C.~.~ ~'
Il'~~.~,..~~_
...r: ....,' ·',_.
PR
African Commission on
Human and Peoples' flights
,.~..
____
Human Rights our
Collective Responsibility
'
Supreme Court of Zimbabwe in Roy Lejslie Bennett v Emmerson Dambudo
Mnangagwa and 6 others, wherein the court noted that Parliament is separate
and distinct entity from ZANU PF.44
I
I
135. The Respondent State submits that in ' determining the appropriate
sentence, the Privileges Committee struck a proper balance between the
aggravating and mitigating factors. It subbits that pursuant to section 21 of
the Privileges, Immunities and Powers of Parliament Act, Parliament may
either impose a level seven (7) fine or imprisonment up to two (2) years, and
in accord~nce ~ith secti~ns 16(1) and 3 o~~he Act, impose any penalty which
was not inconsistent with sentences which the Hous
Commons of the
Parliament of the United Kingdom could irhpose Af A"'" 980.
136. The Respondent State submits that !I;t", cons
p~~s~ent,
the majority of the mem?~;Js(;5f"~~~0
~o
.
.
VIctim s conduct was the worst atta~kz8,~.\the d~,g).1.Ity
0
'f~harnent m the
history of Zimbabwe; assaulting an ther Nr~¥}perJ~fParlia ;iij3yiWOrSe
still a
Cabinet Minister, who is also Lead
thJ HQ}-t,~~e,
could not De tolerated and
Parliament has to express its ..:displea ,e by im}5,9?inga deterrent sentence;
the speech by the Honoura ;;,Member .
ot be s~i'9gtohave provoked the
Victim as to morally N,~t1ty . co~~{jt
that p~hicular day; and that
whatever happened",;~J:]J{tQ:~yic. 'rPfarms
is 'true) cannot be used as
justification for th~f[fhorallyr€preH ible cond] ct he displayed towards the
Honourable Member
and Parliament I
~:':i/.!'
Il}r':'i
\iil
137. The Respondenf1i!;,§~,bmits
that £]jlemajority voted for the punishment
impose~\~l1i~e the ni~i{~~~~,~
thouS~~ a mfch more le~ient punish~ent was
approprIat~ ;:fB(J~e ~IrcU:J3;!,§~~~~~i:>
It ~h1refore .submlts t~~t t~e Issue of
whether the2;aggta,.y.~tmg
features as welg~ed agamst the mitigating features,
justified the li~rsn"punis~ent recommended by the majority members of the
Committee oFr,;sI1.ould~ave led to the limposition of the overly lenient
punishment recommended by the minority members of the Committee is, to a
large extent, a matter of value judgment.
A
R
African Commission on
Human and Peoples' Righ~s
Human Rights our
Collective Responsibility
Charleswood farm, Chimanimani
owned by the Victim. The
Respondent State avers that Viola N
ha~ alleged that she was raped at
the farm by one Chamunorwa Muusha,
the matter was investigated by the
police under the Criminal Investigations I
Mutare and the crime
docket referred to the Attorney General' s ~ ......
~'-'I
139.
In respect of the alleged cases of
, the Respondent State submits
that it is only aware of the murder of
IManyenyekwa of the same farm. It
submits that the police are yet to finalise
investigations hence, the alleged
case of murder is still pending. The 1<o" ......"."
State avers that progress in
bringing these cases to finality is impeded
the fact
the accused and
witnesses, including the Victim could not
140.
With regards to the miscarriage s
the alleged actions of ZANU PF sup
knowledge of such incident, and cOllte:m:(i:IJl;k
comprehensive facts pertaining to Jtte
investigated, and would have b~en:{~Jna
allegations raised.
;.
141.
The Respondent ~f~t~
'~;:
:
were clearly not
State agents, as the ~~gpdl:J,~",
",
and wooden clubs,
are a clear indicatioI1fi!l1atthey'were "'Hf';,I..;'~,,,
• Therefore, it contends that
since the violations i~pmplained of
sanctioned by the State but were
actions of opportuni~~iE criminals who to():J,<[,'aavantage
of the situation, liability
can thus not be attrib] >'/ to the State.'~)i
":,
Alleged vior~t*:Qn:of Artie
\.~\,:~)
-':~.<\~
<:,!~!l.;
<
/;,/.
il:
,'Yo£,;,the+African
·"~~\i;~1i:g.~'~ttEt3j:~;;"
..<,( -:/,',::;:
by the Complainant as it
142. The R~~pogaenj::;~JFl:~Y'
denies all ~~-r-'-h~
relates to 'the':'allege'~;j:tihlawful and
y arrest of the Victim on 9
of access to legal representation.
October 2002i"and the subsequent
ACHPR
African Commission on
Human and Peoples' Rjgh~s
Human Rights our
Collective Responsibility
144. The Respondent
State contends that the submissions by the
l
Complainant as it pertains to Article I 7 of the African Charter are not
merited for one or more of the following reasons: a) The Victim was
charged with contempt of Parliament and not contempt of ZANU PF, and
in any event the complainant in the Victim's case was not ZANU PF but
Parliament; b) Parliament is a separate land distinct entity from ZANU PF;
c) If the Victim's argument is to be adcepted, then members of his own
party could not have adjudicated, las based on the Complainant's
argument they would be considered committers of the contempt.
145. The Respondent State submits th~t in a l~llJi]:J:~~of Zimbabwean
Supreme Court cases, it has been held that a fil1.gfngof:gtlilt by Parliament
on contempt offence is not a crime lin th~::q9i~venti~~al sense. When
dealing w~th these contempt offences, ~.adi:a1)1~nf<:f~?,~~~~~J:~ti~P'~~1~,!Jourt,
does not SIt as a court of laws. It exercisesits.own Juqs9,IctIon"angiiPowers
conferred upon it by the Privileges.slmmunities and P'O~e.F~of Parliament
Act. The Respondent therefore'ii~16nten~s,Jhat: ,~ny failui~~J?~:;:Parliament,
when sitting as court :0 ac!heI:~~t~t.s~,~ta~~
p~%~~~:d~res
foll~we~ in a c~urt of
law does not necessarily II1:~antha:h~!.!snhearll¢g\~snot fair or Impartial.
r
.'
"" ,
'~,~:~:
'.'\,
" <,.~»;,;"7
146. The Respondent S,tiite ,,§:~!St9:;.dJ:l8:,iitRreme);C:ourtcase of Mutasa v
Makombe wherein it~was,stat~a:,thif:45 I ,;,tir>;~,,:<-t; t
In the court of '~~rliam~~f; the p'f~~~e;~re ~~f~~~~h~entallY and tot~lly different., In
the court of Parliament due process<:l~;:)~~tisfledby the mere movrng of a motion
setting out the. allegation, debate and vo@g)'bn the motion. At the end of the debate
the question of. ~ verdict and pum'shmeJ,itris determined by a majority vote of the
Members of Parliament. More often;'thar{'nbt, either by design or otherwise, the vote
to~9-E:t.~rmine
the outcome of any debate is JIong party or partisan lines.
~iC;{J?:~I;r>'." ,
'"
Z,.' .,
c,'
•
I
r
147. The \~esPQ!).dent State contends thft the Complainant's argument of
arbitrariness 0;i-"'the:,ba,sis,that the Privileges Committee failed to present
its findings>~t-"the 4th':.S~ssion of Parliafnent and only presented its report
to the 5th ~~ssion o{Parliament in contravention of the rules, have not
been subst~f\ti~ted. The Responderh avers that the Complainant
erroneously r~tied on Standing Order INo 159 to contend that there was
need to officially resuscitate the issue Iin the next session, as the Order
relates to Portfolio Committees and Js such bears no relevance to the
Complainant's argument.
:
I
148. The Respondent State submits thatlthere was nothing irregul~~gg!~
the Privileges Committee presenting its findings to the 5th Ses~~ ~th'e1/4rtvD
same Parliament, as it was still the same Parliament wi~~./~4he~ !§,e,,',,
,'U,
45 Mutasa
v Makombe 1998 (1) SA 397 (ZSC) at 402 E-G
I
I
I
I
z
<{
I
o
\, Ci:. ~
11',<.)
\U
?o
~.\ 6.
'?-o,S'
.5'/0
o t
(/)
I
~
(5
!C'
Q
~""
~<;)
Oil1ME ET o-c.5
"::,"";.,~.~"!.',~
k'l'
en p
,.
'I.<
s If
""
Pag 32 6f'5'5-P,\~ <?<;::0'< , ~
~,~
I,
~
0
I-
AU-UP,
'1,\'",
\.
~~ ,
('~~';;.:r'
{('-"I;1,)]JJf
""
.....
-2.:
~ ....... P
,r; 0
~
,c<"o~
,/,.-:?
'If
ACHPR
African Commission on
Human and Peoples' Rights
r..:
Human Rights our
Collective Responsibility
:.:
membership. The Respondent State 90ntends that the situation would
have been different had Parliament been Idissolved, as this would have
been done in terms of section 63 of thJ former Constitution of Zimbabwe
I
which provides that on dissolution of ~arliament, all proceedings pending
at the time shall be terminated and accordingly every bill, motion, petition
or other business shall lapse.
Alleged violation of Article 10, 11 and 13 of the African Charter
149. The Respondent State denies that tJeI Victim was targeted as alleged. It
contends that during the period in issue ther
a revolution and
landless people were occupying farms ~t their,."
Ins,,~)).ceas previously
alluded to. Thus, the Victim's farm ras Tr?" ,gete~i9f~r his .being a
member of MDC, as all other farms ,ere being '" ~'l1R!~~':!p,fJ_l1dmg>
land
belonging to indige~ous Zimbabwe~,~~;Tthe::R~sP'~~~'~ft";Sta.te£:"tijetefore
contends that the actions of the occupiers cannot.be Imp1;1te.p
on the State.
>
Alleged violation of Article 14 ofJhi,,,vril;nleh":er
150. The Respondent sup~ts
"'~'f'
~j;lrU;~'~d~
J?
14 of the African
Charter guarantees t~E{rigl;lt prop~~t¥!'it mustjj~ noted that this right
may only be encr9s¢h~;d upon" in the interest, of public need or in the
general interest.of.the c'dinmunity\~nd in accordance with the provisions
of the laws.
,~'
,"
\~;?\
tha:'
'j.
'" '
;:'
151.. The Respon(i'~~~:'i?tate
asserts i~f.at:tfe exp:o~riation was in accordance
WIth\~b~~
laws of tfr~l~t~teand w8,;.~
In the public Interest due to the need for
~~::~:t~!il~;
;e~:~;~::;;o~:!:~trr~~e~:
;:da~~~::ta~~
property': rights, regime, .to promote I economic growth through wider
equity and efficiency gains from land rjdistribution.
I
152. The Respondent therefore submits tp.at public purpose is considered by
international law to be of such overriding importance that it is allowed to
derogate from the principle of respect of private rights. As such, the
Respondent State contends that the expropriation was for a public purpose
which overrides the interests of the individual.
I
Alleged violation of Article 18 of the Mriban Charter
153.
/",~-~~~",
' o~ C"E.1ARI,I'q, <} ~<;;;
I
,0'\:,
~o'\'
The Respondent State denies the Complainant's assertion thJihe
~
~~
is liable for action of non-Stateactors .Jvhoinvaded the Viclirn';1§ar
l~
~ ~.
and held his wife hostage.
.
~\~ '6
~'A~
~"~
~
AU-
{<;-
I
e:,Q
~
s:tfJ 'I
c- <1>0'Y 4~·RICP.\~'C.'0""
",~ l,.,
!,
Page
8 ~t
~=u' A
Ito
. ~~~/;r
~~
4'
f
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
154. The Respondent State submits thaf when one considers the kind of
weapons allegedly used, it is clear thatlthe lattackers were not state agents,
and neither does the Complainant claim that these were State agents,
therefore their action should not be impujed to the Respondent State. It
further contends that the Communica~ion does not contain any evidence
tha.t the Victim reported the incident tf' the police who had failed to take
action,
155.
In view of the foregoing, the Respondent
State submits that the
CO:::::~:~:::St::::i~::p~::~nt slate,s,s~g~~:;:~~n
the
I
' "
....
AllegedviolationofArticle ofthe ,,,,~,,,,,,,te~';'if~t;~~'i"":;,S~;;,
Merits
2
Afri
156. In response to the Respond~nr,);S
s
ission, "fq~$.}3bmplainant
contends t~at th~ injustices urd~~~t~nii .g. ' uggle ag~!Rst colonialism
are not at Issue In the pres~nt COl.1"J+l)~mcatI
' " he Complainant submits
that it has neither alleged hor inferred,lhat the
form program in its
entirety was ill foun~~,d'ar ~~ec~ssar~. :~~"l
'
157. The Compla,ip~~::;~~~ates th~~;,;,t,he
~ict~~<,vas not a beneficiary of the
appropriation q£:ilandby the coloriiC\!!~tk,~aving bought his first farm after
independence i~~;t983 through aj"loah;:ip15tCiined
from Standard Chartered
B~n~ (ref~rred f~;~;~~St~nbic BatJ.tk).';
1he Compl~inan.t su~mits that the
V.ICb~....
;.,n.J.oye~.tJ:i~1:~~:~:r.,;.;.~.1.n
..
..g...s....o...
f!'l~hepel~pl~
..
of Chlmammam~ who named
him :Bac4ed,u Indlcatll}g:,~~~ygltreness
with the local community.
;::,~;'< ';,:" ;~;' :', L .'
x;",;;~,l,y;;J
I:
<,
158. The Cq~p!~iria~t'.~1f.t6her avers that the fact that the Respondent State
was attemgting to ~~riect historical rrongs does not exempt it from
paying compensation to the Victim, as the critical question is the effect of a
government'sacj, not its subjective intehtion.
'
, ,~,
I
159. The Complainant submits that it i~ disingenuous for the Respondent
State to dismiss the rape of the Victim(s employees as 'shear lawlessness
by some opportunist'. The Complainarlt contends that while these crimes
may not have been perpetrated by a g~vernment official acting in ~S:"f~~-"
capacity as such, the failure of the Respondent State to investi~Z~'Sl!4T
and pro~ecute these perpetrators amounts to complicity in the
,,(?n
of the crimes.
i
Alleged violation of Article 3 (1) and (2) of the Mrican Charter
I
Ai/nIti'
~;,'\
<i::\
1(8
(F;j
\\~.~~
':='~~p.0! 0~
~ ~y-;r,":
\~,""'\, ~ ~&&IOty MRICP.\ ""<V<:)'<<v-0,/
- g,.!f/ "
"" (i-t
s'(~/
, ~MME
Ei ;:S/
Page 34 of::55~
R
AC
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
160. The Complainant maintains that t e Victim was not afforded a fair
hearing and that the sentence imposediby the 4th Parliament of Zimbabwe
was grossly disproportionate to the offence committed. It contends that
imposing a term of 12 months imprisonment with hard labour for an
incident that could arguably be labelled a petty squabble between political
rivals, is clearly unbalanced.
161. Further, the Complainant submits that the Respondent State's
assertion that the actions of Parliamen~ are beyond reproach because they
conf~rm~d t~ th~ constit~ti?na~ dispe+sation prev.ailing ~n.Zimbabwe at
the time IS misguided, as It IS trite law that dome
VISIOnscannot be
invoked to justify non-compliance with treaty 0
ati
Alleged violation of Article 4, 5, 6 of the Mri~:l1! Charf
'
162.TheComplairu:nt
contendsthat'~_R;:~~~dent
investigate all allegations of crim s co~~t~edJ~ithin
its
};)ry,which it
has failed to do in this case aDd .the £ew'fr!:lJ~fimces
it ha
one so, by its
own admission, there
bee
J prd~~c:utions conducted by the
Prosecutor General.
,
163. The Complai1}Cl,1J:t;;:!)~otes
State refers to the
withdrawal of ,:<:charges''''as a
for
Victim's denial of legal
representation. ,]J submits that in
I Comment 32, the United Nations
Human Rights ','~<?mmittee noted tli !.} "the right to communicate with
counsel requires-that the accused, is granted prompt access to counsel."46
Thusj:1S~~plainant,?~~es
tha~ ~~efactjthat no. charges were filed does not
mean t ,'. e ComplalUct(l,t:snglits were not VIOlated.
'"
.r.
"
:.:,·"""t,,,
I
Alleged violati ,;,~o",: ti~,I~?%9;(;11,13, 14 and 18 of the African Charter
164~ol!~~~~:::~:n::h:~~:ll~~t:~;;e~~~ ::~~~;:7p::~~
the socio-economic life of the peopf of Chimanimani. Therefore the
Complainant contends that the Resporklent cannot hide behind historical
injustices to avoid its responsibilities to [the Victim.
~~,
~\l!J\AN
A"'-'D~'
~<'
v~'C.IARIAr
I
The Commission's
analysis on the Merits
~o-o~.
~
<<;<' \.
I·
,1 ~
./".
ll'_p \
I
8J~~
~8 '
{.~
~~
~~~,Q !~
, Z
"""..,
\. 'G ~
"~~
\
"'~
\,
46 UN Human
1>':
'-':
Rights Committee (HRC), General comm~nt no. 32, Article 14, Right to equall
courts and tribunals and to fair trial, 23 August 2007, CCPRlC/GC/32.
f>,U-ul>-
0
fG.<:)'<1
~.s'
,!j c-
,sto", A>=RICl>-'''''' rv..:§ /'"
(.
",,« /'
Ii
tl \)~./
-"'-, .. -,",,'
Page 35 of 55
C/)
l
IS
i
001}
AC
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Alleged violation of Article 2 of the African Charter
I
165.
Article 2 of the African Charter pro~ides that:
Every individual shall be entitled to tfe e~joyment of the rights and freedoms
recognised and guaranteed in the present Charter without distinction of any kind
such as race, ethnic group, colour, sex, I language, religion, political or any other
opinion, national or social origin, fortuJ' birth or other status.
166. The Complainant specifically ar es that the Victim's rights with
respect to Article 2 of the African Char~er has been violated on the basis of
race, colour, and political opinion. As froof of thi~ all~gation, reference is
made to a speech aired on ZTV, delivered
by
..•...•.
.•....••••.'
t Mugabe
I
..
. '•..
at the Nyakomba Irrigation Scheme in
in
"
the Victim's
property was specifically mentioned fo~
further
argues that the Victim was made ~o
in
paragraphs 7 to 11 above, jointly bee
as
his political affiliation.
I
167. In response to this allegation~th~. Respo , ',ent State ga . a narrative of
, " ".. I
"'"1
t~e inequitable di.stribut.}~h of .lai:l,9!I,;;~here
.
.~lack pop~la~ion in
ZImb~bwe were dIsad~al):~~~.edI~ I".¥~~~.of th
,[tes, ne~~s~Itatmg the
establishment of a n w lart<;t,'Bolley; to 'a;11qyv fo, the acquisition of land
from t~ose. who.,~~ . "Rredb~l~~ntlt ~hi{~~!l'imd restore to those who
were histbnCall~tsadvantaged
~Pl~~~:mantly
black).
168. The Respondent State argues"tthat}tFfeseizure of the Victim's farm was
not discriminat6~:~t .but a lawfJ!1 adion: carried out on the basis of
I
ConsttmtJonal Am
ent (N 17) Act of 2005. The Respondent State
dissod~t
,itSelf from
,.
ns of I~ho~e who allegedly invaded the
Victim' J;;'fa~ih.:iii~d;,~~d assaulted h~s Fife and employees, and. submits
that the 11)ya~lOnsw:%t'x;\heVera pollcr but a spontaneous reaction from
landless people. It avers that this was as a result of the draft Constitution
rejection demonstrations which were nbt instructed, directed or controlled
»
,.~
I
by the State nor' were the acts perpetuated condoned by it.
169. In Zimbabwe Lawyers for Human Rig~ts &' Institute for Human Rights and
Development in Africa (on Behalf of Andrew Barclay Meldrum) v. Zimbabwe,
the Commission defined discrimination I as:47
" .any act which aims at distinction, exclusion, restriction or
preference which is based of. any ground such as race~cok>:tt.~~.
sex, language, religion, political, or other opinion, n~~~AG~~\.
social origin, property, birth or other status, and ~.~
.
~~"
.!~
D
(~
Communication 294/04 - Zimbabwe Lawyers for Hum an Rights & Institute for " U an igh~
Development in Africa (on Behalf of Andrew Barclay Meldrum) v. Zimbabwe para 91~ ':? '6
p.u-uf>.
l
~
0
<:{
\;
c!-
~_
~"'~
'Q'..s:"I·
P . e..tUJ,v> ~
.
t:
g
{i-
.
9
,;;
0 G? II!
<:)<i.I?0 r
p.,\~'<.-.;:,q_
"~-.:: JtOMME ET o~s
~",-:;,~
Q~
~ (/)~p..~
47
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by ali persons, on equal footing, of all
rights and freedoms.
'
I
170. The Commission further developed the :above jurisprudence in the case
of The Nubian Community in Kenya v rhe Republic of Kenya where it held
that differential treatment alone, is not!sufficient to establish an allegation
of discrimination. The differential treatment of individuals similarly
placed, is permitted where such treatment is meant to achieve a rational
and legitimate purpose that does not impair the fundamental dignity of
t~e. affected persons or unjustifiably i~ringes 9~,their.,\enjoyment of the
rights and freedoms guaranteed under th~' CRar,ter.48 Hence, the
Commission must determine whether I the exp.~9Rriati~ti;of the Victim's
property was executed in furtherance of aJegitirriate purpbs~.:_...
.',
.f:;;.:'~' ft~", " -, - : ,.: - ,:"
171. Since the independence of the R.eF~Pticof 4,~Ijlbabw'(il?;19~0, the issue
of land reform, in particular land acquis'-' n a.~¢.redistribution remains a
controversial matter. The C;o~issiJn
ii "e's the Respondent
State's
submission that the State establishEid.'aframe
..','rk
for the redistribution of
+,'
• (',':::·.:~'l
'¥lQs,:12~~
the land, and those farmers, incItid.iJJ).gthe \l;!§"Eil,P' whose lands were
targeted for acquisiti?~-\qst1ttIted.:Ie'~a~.}'l?roce~~iJ;_gs.The Respondent
maintained that it be'~'~~e nec,,~~~aryt~ prbh,1~lgate a law that promoted
the goals and purposes of'land reform tn Zimbabwe, a historical mandate.
The Constitutional Amendment (No-.Jn.Act of 2005 was enacted to meet
this need.'
" '.,, .
\h
\
;:~_:~\,
I~~:'
I
172. The ..Commissieriinotes
thCJ.f,l
pursuant to section 16B (2) of the
Constl~#onal. AmeridrB~2!tit&~6:'17)
and section 5 (1) of the Land
Acquisition (Amendment) Act 2002 (Land 'Acquisition Act) the President
or any Minister duly a].!thorised by tHe President for that purpose may
cause to bepublished in the Government Gazette a preliminary notice of
the intention-of the State to compulsorily acquire any land in the interest
of public safety, order, morality, healthj town and country planning or the
utilization of that or any property for la purpose beneficial to the public
generally or any section of the public. I
tct
I
173. Where the issue of limitation of rights is raised in a Communication,
the Commission has held in Constitutional Rights Project and Others v Nigeria
that "the only legitimate reasons for lirlutations of rights and free_oomsA';0f~
.
.
. I
.
,A~\'IU
NAtv,,-'"
the African Charter are found In Article 27 (2), that IS, that the~glt!~efAth~ D .0(6
Charter shall be exercised with duel regard to the rig
of~ ~~~.
'1~~:.
I
*',?
8,f,
48 Communication
317/2006 - The Nubian Communiiy i1JKenya v The Republic of
-g, ~ \
(~I;JY
z
<1
,u(""l
~:;.
\
ru~'S!"
"'"'".....
1!f[~~
(/):I:~
-i
1::
f
~~."
I
p..
a 1~~:\.J
'l'.s
o(l)g
,,<i;
'<;
\Pa~J''b!fI~~S ,?~vq_'V
·"~ .....
~I\1ME ET oe
.......~
",!}.'
AC
PR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
collective security, morality and common interest."49 The Commission
noted further that the justification ffr the limitation must be strictly
proportionate with and absolutely necesS'ary for the advantages which
follow.
'
174. The Commission notes the Respo dent State's contention that the
Victim's property was compulsorily acquired in furtherance of its
objectives under the Land Reform nd Resettlement Programme, to
redress the inequitable distribution of Iland, access to ownership, control
and utilization of agricultural lands in favour of the previously
disadvantage black population. In con~ast, the C
inant contends that
Charleswood Estate, the disputed land ras ace '
lawful purchase
of land in the post-colonial era, as such the a
. ion I,.F. t odds with the
legitimatepurpose of restoring land tor~~;t~~
175.
i~~
The Commission finds that de§Fit,~/,theC0,.111plain
,"
~~:;!~~
a':U~~~::~im~;:1 .' ~:;,~~~~~~r:~~
h~ ce was not a
beneficiary of the historical ann . . io~ oti~h8 by the British settlers; it
must also be recognis~'
at Stat ':re inde~q;?,:,~ntitled,inter alia, to
compulsorily acquire and, 'trolty
","',i prop:erty in accordance with
the legitimate reasons~~p~fscr '" ~;:in~Itic , '.. ~2),and by enforcing su~h
laws as they deem-necessary fo
gIven H'lXrpose.50
As such, the State in
interfering witl;t:;theVictim's righ
I eaceful ownership and control of
the property W~$ .obligated to som
ith the principle of lawfulness,
and pursue a legitimate aim.
tc\
h~
,,'~',:y
176. In
0,theforegQII}"g[i:\t;;!S,the
Commission's view that the policy of
the Res ";1;,:,
':~;!'i,~:~~e
to' expropri~te I.la~ds for its La~d R~form and
Resettlem~9.rt.~:rogrq,,~~:was not disctiminatory, as the intention was to
address Hl,~torical iglvalances, to serve a public interest, and the
redistributida provided for by law. Th~ Respondent State embarked on a
legitimate pib<:~ss of land reform aJd resettlement, and part of this
process involved the expropriation of riot only the property of the Victim,
but a lot of other owners whose I farms had been identified for
expropriation. As such, the Commissioh does not find that the Victim was
targeted because of his race, or that thk State authorized the perpetrators
of the crimes committed on his proper1ty.In terms of proportionality, the
Commission notes that the reform POlj'CY
affected only those W~Q,WIH~~
vast portions of land, who happened to be predominantly wh~\f~~~tv~:-._
&o~
c,'i'-E.
Ik~"'<;;
49
41
Communication
140/94, 141/94, 145/95 - Constituti nal Rights Project and qf@~s v
I
SP.orr?ng and Lonnroth v Sweden European comriSSi~n
Application 7151/75; 7152175.
50
~I0
~o',
41'
-c v.
ig~e~-~·
.." ara:
('~,
i (;J,:'l' '
Ul ~
of Humar{ Rig~J~ (8c; cto&~~~O)
'\
AU-UP-,g:,I
't ~
'. Ii. ~O'
&~.)
fv'<> '<>
'I
~;.,,:,
,P a~@t3..a;mpj5:x-v~S'~
"",.. Oi11MEET oE.S ~
'\..;~t:."!!.~~~;4"
p
A
African Commission on
Human and Peoples' Rig~ts
Human Rights our
Collective Responsibility
~',"''- r.:,
177. The Commission notes the xesoon
. State's submission that there
was provision for compensation even
the State was only willing to
provide limited compensation for the
; . Therefore, the Commission
considers that the Victim's contention
to the nature of ownership of the
property is a misplaced argument, as
speaks to the issue of 'payment
of fair compensation'. This issue is ....
'.HL'-'.., ..........
extensively under Article 14
of the Commission's decision below.
.I.
178. The Commission however notes
the manner in which the Victim's
land was seized and the context in
I the prgF'~:r~y.was acquire raises
issues. The acquisition was not effected in acc9~:da~ce with the policy and
laws of the Respondent State, but
takep.;:..in a forceful way with
violence inflicted on the Victim, his
hiSi~:wpl9y~.et)J!lbreach of
legal procedures. The
th~t(F~ven·::-t1iiQJJ:ghthe
perpetrators who invaded the
not'1t~~ing in pursuance
of the government's policy, the
.
~~re:~linked to the
President's speech in which
his political views and not
vulnerable and expose~J!ip:!- to the
by the speech. This ther~£p:re
tion and violates
Article 2 of the Africa:rttCharfer~n'::~"
,.' .r :
/:;',.-;'
_'''~:;'':
"~'t
''.
., '~,...
~;.::"
s:'-:,._
9f Article 3 of the Miie
Alleged violation
.
"('
\.~.
179.
Article 3 (1) a:nd:{2)of the Afri~an
provides:
before the law;
i,:;(n.Every inc).,l~~s!~al
shall::\~keq
to equal protection of the law.
\~~1
:,:ijv~ryindi:Vf~Y.
:Biben '
", -r-
""->"<~ 'i.;~-:- \
':'~'"
- .-.,'
180. In Zii:i.~ab'We:;Lal/)ye1'Ef
for Human
and Develol)!J}ent in Ajrtfia v Zimbabwe
and the Institute for Human Rights
Commission held that:51
The right to equality before the law '
that individuals legally within
the jurisdiction of a State should
to be treated fairly and justly
within the legal system and be
of equal treatment before the law
and equal enjoyment of the
available to all other citizens. Its
meaning is the right to have the
I
procedures and principles applied
under the same conditions ... [Hence.] factual patterns that are objectively
equal must be treated equally.
I
181.
~f\"UMAN~
7/~0~~'
The Commission further held that e~ual protection of the law relates;;_to~
.
I
the right of all persons to have the sam eaccess to the law
i
D"<~~
51 Communication
294/04 - Zimbabwe Lawyers for Hum n Rights and Institute for ~man
ig~~
Development in Africa (on behalf of Andrew Barclay Metilrum) v Zimbabwe paras. 96.~cP~
p.1j.1j{>.
"
\~t..
?r
§}
~
i en. f
""oJ
"qJ'
p. e j'9vQ .
". c "It.
s:If;> (/
~0
\t\.<c.<;)
'?'(; ./A'Y
"'..,,"» °MME ET o'C.s~."'"
"',~~~.~p.
U
...
flf
I
I
AC
R
African Commission on
Human and Peoples' Hiqhts
Human Rights our
Collective Responsibility
to be treated equally by the law and courts both in procedures and in the
substance of the law.52
The Complainant's arguments as presented under Articles 2 and 3
above are innately linked. At issue, therefore is the question of whether
the Victim has been treated unequallyl It is trite law that 'he who asserts
must prove', except in instances wher~ there exist facts especially within
the knowledge of the Respondent. The iComplainant, therefore, must show
that the Victim has been treated differently in the application of the law, or
in the degree of access he was afforde8 to in his recourse to the law. It is
not disputed that the ~Victim successfpll? took
befor~ th~ leg~l
system of the Respondent State and obtalneq..;.'!Sourt0r~~rs affirming hIS
right to remain on Charleswood e~tate.'/T~~:~,):.,~ssu~t~~\however
is the
Complainant's contention that despite t
const'¥t~P9if~1';:f':.;F~t~~~~,9
and
orders from the court, the Victim stil
multiF!~~violat1();rts:S6nhis
person, family and property.
"
182.
~~t~~~s~
183. The Commission has held;""ih Zim aBw'
Zimbabwe that human rights i~w 'i~~.~Jes a":
uman Right;>~;'NGOForum v
. ive obligation on States to
prevent and sanction Pr,i¥:~5,eviolati~fi~',gf hu
" .. hts.53 As such, an act
by a private individ,-,.'t~can~~i~ge~{,Pta.fE:i~,!~~:pons
. ity, not because of the
~~t
~~~~t
b::c~~:;;e:~$et!'{~~j~t
r~;Ib~~
t~:,~:e~i::m:i~la~:
standard of 'du,~:,diligence' encompa~~F,~a~ obligati()~ to marshal the full
apparatus of tl\e>State to prevert, InvestIgate, punish and compensate
where a violati6ry;ill.as occurred.P Hehce, State responsibility may arise
unde:t:';:tI:.:~ue .dii1g~~~,~~tand~Bla.f.or I inaction o~ inade~uate actio~ in a
range 'Qf,'.:SltuatIons,
'pa'J!£!~:!%~€l-gJ·ly
failure
to provide police protection to
:, -. . "" "
·-··"·":··:'·ic.·("·
I
p:e:enf:r.riv~te:yi()lence,
failur~ to inresti?ate or investigate adequately
killings by-private actors-and failure tl punish such perpctrators.v
The Commission notes the submission of the Respondent State in
paragraph 13'9.above, that investigations into the allegations raised by the
Complainant is still pending, as sufficient information has not been
received from the Victim, his witnesseslor even the accused, as they cannot
be located. The Respondent State h~s however failed to furnish any
information on the efforts or measures taken to obtain the necessary
184.
t.I
2ft.
u..~~
" Communkation 293/04 - Zimbabwe Lawyer. for Hu an Rights and Institute far Huma,n Ri ~~
Development in Africa v Zimbabwe para 124.
'r\E-IAR~ A.tvo,o"",
53 Communication 245/02 - Zimbabwe Human Rights NGO Forum v Zimbabwe para 14,,3,(~~O~'(_c'<'r ~o-<>'.
54A saove.
b
l
1<';;::'
'~~
.r....
and B Clagett 'State Responsibility for hum n rights abuses by non-State Ici§>rs' 99~\.
American Society of International Law 299 at 302.
56 As above.
l\'~ ~
AIJ.UA
55 S Farrior
\2;1'
~(:'i
'\.\ct.
-;.,
~0-"""~ ~::i'l:
P~e "191
c.
,....
<'I"-lI'.i
'is ~ \,
~ §~
fE rn f
Q"
1;
0,
,l
~~ '(_\)q" j/iF'j'
4':RICP.\~
...." JtOMME
"~~'''''~'lf'1~~~,~~'~
EI oE-'=>" ,.0
ACHPR
African Commission on
Human and Peoples' Biqhts
Human Rights our
Collective Responsibility
-':'"
evidence from the Victim and his witnesses. There were also no details of
the attempts made by the State to co~~act the Victim and his witnesses,
whose identities are known to the authorities.
185. The Commission is mindful that thi acts complained of by the Victim
occurred in a period where it is apparent that there was a breakdown of
law and order, as landless individualsl forcibly invaded farms including
the property of the Victim. The facts disclose that at one incident, the
police did come to the aid of the Victim butthey were overpowered by the
invaders. The State in the circumstances could not prevent the crimes from
occurring at the time, given the cJntext in
,i,c!},they happened.
However, The ~e~ponde~t Sta.te was lunde~(
uty':",~en reports were
made by the Victim, to investigate and try;"pEj:l~J?,~tra
.,' accused of the
crimin~l acts, ~hether or not they .Jv.e~<f
,"~.onn~~~r,,-.
and
accordill~ly punish these ~erpetra~orsl if'!q~n~ gur!~*:~.Tne'1~e~N;o~d~nt
State's failure to do so, particularly ill relation to the assa,glt on the VIctim,
and viole~ce meted against ~is,,~~fe, wlIij~.~
lec!}b the n{i~~~~pfageof their
unborn child, amounts to a vIOlatIon of IArtIcle'3 of the Afncan Charter.
",t';~e~~?~~;,~>
".
':"~
"\;~
..
'_
:\~.'~;"
186. The Complainant ft;lJL~h~rallege~:;;~'r#,,~t
the "'4~eiEiJonof the Privileges
Committee of the 4th Paili~P1~nt :was Bi~$ed, asrrriajority of its member
were from ZANU PF, and '\t~~~i;'the outc9~W='of this allegedly biased
hearing was a. ~isproportionafei~'sent~nce ,W'hich was discriminatory in
nature. In response, the Respondent.State contends that the charge of
contem...p.~.of Pad,iament was prof.,....
eri~,frJ;\ajUdicatedon and an appropriate
sentence Imposed.
)
,
;~'~:~::;'~~'~'~'
- -, ,
_/~;t
187. The:~.~.~mH,l:ission
note~}h~~:section ~6 read in conjunction with section
21 of tJi~~,\~ri\{g)g~SI
Imm~nities and .~o~e~s
Parlia~ent Act [Chapter
2:08] (Prnqleges·Act) pr,qYIdes for the junsdiction of Parliament to address
contempt '~~~ldmeterout punishment which may include a term of
imprisonment. Where a Member of Parliament is charged with contempt
of Parliament," pursuant to section 16 ~4), Parliament sitting as a court of
record shall summarily inquire into land punish the alleged offender.
Hence, the Privileges Committee was I mandated to conduct an enquiry
and make recommendations
to PaJliament in accordance with the
Privileges Act, on whether or not the ~onduct of the Victim amounted to
contempt of Parliament.
=
II
__
~.
I
~o'" ~;_1.AR;f::.rvD?$....
188. The Commission notes that the Complainant
did not ade
:G:e~c.a'fl'/V?14r ';:'~o'
I
I
<:>
Y
:.0
evidence to show that the Privileges Oommittee failed to follqtf'Objed~~.,
<~.
criteria in reaching its findings agains~ the Victim. The mere ,~~t. t1(at ~~"
~ ~ IPrivileges Co~ittee
constituted of ~ majority ?f. ZANU ~~ ~~b~~
cannot be sufficient grounds to hold that the VIctim was n¢.t",ai{o d&t
";)Q
(/:
j ~I
'.
\l's.
'\
/0
\
( . ,::_~~ICP-\~
Pag~"",~:;<1~
"'«;
~v
tfJ
N
K.-V". ',f"
-_,
~
AC p
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
equal protection under the law, ~s being Parliamentarians, their
membership was on a partisan basis. The Commission considers that
insofar as the same set of laws were a~plied to the Victim's case as would
have been applied to any other Parliamentarian, the Complainant's
argument in this respect cannot stand. It is the Commission's view that
based on the submissions of both parties, due process within the context of
the Privileges Committee was follo,ed, which resulted in Parliament
finding the Victim guilty of contemft and imposed a punishment of
imprisonment provided by law. The Commission therefore does not find a
violation of Article 3 in this regard.
j
189. Other facets of the facts in issue as i relates.t9·i~e ri~ht to a fair hearing
is further considered below, under the Commission's analysis of Article 7
of the African Charter.
...}.',.., ", " ..,.
.'
. <.:::::"~>:!:).:::;,.~,': ..
.. t~:W'
.~,.
t,
'~".
'\.:
.->
.. ~
~ -~:
Alleged violation of Article 4 and 5 o(th~' Afric'~ri'~'
\harter -., '
190.
F
'.'J
Article 4 of the AfricanChar.ter:e~~{n~.il:t.·eright to li$.,;"andArticle 5
provides t~~:~
indivi41'~1shal;
ha~,t
th:';~~"t9'
the respect of the
dignity inhi~:en(i{l'~,.h. umanl'b~~~g.and;~c(thereco~ition of his
legal stcltus,:/\1\l1
forms-of exploitation-and degradation of man,
parti~,pJarly sI~\rery;' slave ~ade;'torture, cruel, inhuman or
degr~.~.ingpunishment and treatment shall be prohibited.
191. The Complainant submits th~t the attacks directed at the Victim's life
amounted to torture.asthey include: the extra-judicial killing of two of his
empl.by;~~~;,:the.rape
e~~loyees and the miscarriage suffered
by his WIfe as 'a result of the InVaSIOn.The Respondent State does not
contest tl}.~ factual 'accuracy of the Icomplainant's version of events.
Instead, it Cl~guesthat.it was not awar<tof all the allegations raised by the
Complainant.and where it was aware, it investigated or had been impeded
in its attempt-to .investigate by the absence of key witnesses, including the
Victim.
I
ofc'~~;$~W~re
I
192. Article 5 of the African Charter fs aimed at the protection of both
human dignity and the physical and thental integrity of the individual.F
In Sudan Human Rights Organizationl & Centre on Housing Rights and
Evictions
(COHRE)
v Sudan, the COiission
I
57 Communication
I
adopted the defin~:~~&P~
.~
t-';~o'" c~E.iAR/4r-
I!f
":>~"
Ii!:'?
279/03-296/05 - Sudan Huma1 Rights Organization & dJ~re 0
Rights and Evictions (COHRE) v Sudan para 155.
:~~~~
.....
,o~\,
0..0'
<i.\
H~
~ ~\
AU-UA
~
,,~
Q.
~'~""'A
;.--"
.,
"o5l
~ ':> ,;:/,_
"-,ge.~.tn"R~
:" !-to..
""
"'ME
C;;
\"'~~~\)~"
~"
"c.~~
Ei D"~ ;;;r'
""".~'
J
II
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
torture contained in Article 1 of the United Nations (UN) Convention
Against Torture which states;58
I I
[T]he term "torture" means any [actby which severe pain or suffering,
whether physical or mental, is inte*tionally inflicted on a person for
such purposes as obtaining from him or a third person information or
a confession, punishing him fbr an act he or a third person has
committed or is suspected of Having committed, or intimidating or
coercing him or a third pe+on, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official caIJ~city.
:0 q~al~Z
As indicated in t.hedefinition above'l
a~f6~Mre or ~th~r cruel,
inhuman or degradmg treatment, the pam or su{termg must be inflicted at
the instigation, or with the consent or ~~~Wc~~scenc~':Qf
~l~ptJ.blic,
qf.f.!.cjal
or
anyone acting in an official capacit~:I,·Tn;"'tht~;rpretii,:lg
Article 1/>of the
U:NCAT the Commission in Zi1J1bi1~~~ HJ#!~r Rig1i~s;'~~?:9 Forum v
Zimbabwe referred to the UN Fact Sheet JSfq.,1t.pn Extrajudicial, Summary
and Arbitrary Executions and. found! t~~t/::~situations
extrajudicial
executions or torture are caused' by ~he St~t,~;q$2rthrough its agents or
193:
of
acquiescence.e?
"(;,1,;,,,
."
.
:",;"
. :~',:b,
:"_;::-"~":"";'
"\.: t,~
-, ~"f",
.c-
::;:/
"<.'
In the presentCC)mm:gnicatton~the (Complainant alleges that the crimes
committed again~t the Victim, his;~ife and employees were acts of agents
of ZANU PF .:]·"non-Stateactors.
The".'- >~""
Commission finds that from the
,
C.om~lainant' s O~~l adn::ission, S~r-te?r~ans were never respo~sible for the
violations alleged. WhIle Statesuare not generally responsible for acts
beyoil~~~~eircontr61<.~~~)'
can S~l:heldAccountable for acts of torture or illtreatm'~~t~<.p'¥:cprivate
<inq;~¥~~~i:ll's
if thky fail to exercise due diligence to
prevent;,;jnVestigate, prosecute and pinish such non-state actors.s? This
supportsthe p,osition~th~tthe prime rekponsibility to promote and protect
human rights lies with the contractirig State Party, having ratified the
relevant international human rights trekties.
194.
1
:~,.'
I
As it pertains to the allegations of the assault meted on the Victim and
his wife, which led to her miscarriage, the Respondent avers that it had no
knowledge of the incident prior to thJ institution of the Communication.
In examining States' obligation to investigate incidents of torture or illtreatment, the UN Committee against Torture has held in the case~of. /~.·t'==~'...,
195.
I
I
."" o~ "OMAN A,yD ''''''
~o~
s.E.iAR/4r
f0~
,fl.'}'
A~,,'
~
.
<~~.
I
59 Communication
245102 - Zimbabwe Human Rights NGO Forum v Zimbabwe paras 17rJ!,tg 181
i~'
60 UN Committee Against Torture (CAT), General dmment
No.2: Implementation Jj':}.rtic 2 ~~~:)1
~ Gi \
States Part~es, 24 Janu~ry 2008 art 18; Gene:a~ Comment No 4 on the African Charter ~~li!P n ~1i"""''''/A
Peoples' Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhumall\ lfPl!-li dmg'-U·\J
0t!S
-'
Punishment or Treatment (2017) para 73.
\;.
\5'&10
r.:--v<i- ,.jJ/)
58 As above.
1\
g ~1
). c '" 4~RICP.\'" «_0'1f1
Page:4 . ~ ~ Ei 010.5 ~1"";.I'
---~
....
..,
PR
AC
African Commission on
Human and Peoples' Rig,hts
Human Rights our
Collective Responsibility
Unai Parot v. Spain that the obligation to ensure a prompt and impartial
investigation does not depend on the subrilission of a formal complaint.s!
It is sufficient for torture or ill-treatrhent to have been alleged by the
victim.s- In view of this, the comrniss~on considers that given the hostile
invasions and attacks the Victim experi1enced following the announcement
of his candidacy for MDC from May 20eO to January 2005, the Respondent
State cannot claim ignorance of the incidents alleged in the absence of a
formal complaint. The Commissiori also notes the Complainant's
averments in paragraph 10 above that t~e incidents were documented and
a complaint submitted to the Minister of State Security, Minister of Home
Affairs and Head of Agritex. This wak not disH~f~,~t;!BY
the Respondent
State
,'~:ir ·'ci.ai:r>..
1
..
196. T~g
into consideration the abo e ":l;~~~\ll",:,~!~SionfindS
that the failure to effectively invest~gah~'~t1i~"vlCi!;?;m~
illtreatment of the Victim and his.' wife amounts to /"a~~:violation of the
Respondent State's obligation u~cler
5 bE' the Af;i'ci'~~ieharter. The
Commission further consider~;cf~~t>,~sit pe'#'qi!ls to the allei~ation of extrajudicial killings and the ~~~e of fhe':0¥~ctim;'S';:::~mploye~s,
~uch averments
ought to have been the .B.BBJ.ect
of a s)PI~!,ate Communication on behalf of
a:ssa:uit~i:l~nd
AfiiclF
the affected persons, to'prhy:~.~..~ a ,~~tai1e4~'~.
,a.'.',r,
"r,a.
ti:y.eof these incide~ts and
the names of the' alleged V'1qf~tp.S. In the},:a,;b~,enceof these details, the
Commission is not in a pdsition':fo:.wake a fhiding in this regard.
197. Regarding the alleged assault at ili~'~C::lice
station when the Victim was
arrested on 9 October 2002 in Mutate, ~he Commission maintains that the
specifiS,,?etails of the assault wa~ not s~ated and so it becomes difficult to
make ~,ftbl:iil1gof torture in this-regard.
'.
-,
'""f;.t."
'~,},,"
'::C;}!
:~
-.
-
_,',
~._., ,~>'
'.
198. The C~!llElain~l1jt.f~~ther contends tha~ the punishment imposed by
the Privileg¢s"COmrrl:ittee (15 months imprisonments with hard labour, 3
months of';.f:,which was suspended)
was inhuman
and grossly
disproportionate. to the seriousness df the offence committed by the
Victim, when other non-custodial Ipunishment would have been
appropriate. It is important to note that ~ custodial sentence, once inherent
in or incidental to lawful sanctions, cannot ordinarily be said to constitute
torture, inhuman or degrading treatmerit. However, the emerging position
under international law favours the id~a that a grossly disproportionate
sentence could constitute cruel, inhUlhan and degrading punishment.j,
Most notably, the European Court ofl Human Rights (ECtHR) h",~q;VMA~.
/:Z'" c,RE.,ARI4/
.'7._c}v ":>":;
I
i~
Communication 6/1990, Henri Unai Parot v. Spain, .(2 May 1995) UNHR comml~~ a
Torture, U.N. Doc. Aj50j44at62
(1995) para 10.5.
62 As above.
t ~ '6
61
l~
'" ct.."
.o~'_,:.
O,,() \
<';,
-
E{~[~.
"1."'<i. ~
Page.
4 of.
'''i,
c.
f:, <1'%\
i2::; £
~,d..1
& (/)t
~\..)_\..)p..
,...
4"RICP.\~
Q"
~"?
r.:,<:J
~
~\)<l.
1
",",.~~:::,~<~,'
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Vinter v The United Kingdom that the iwhole life order' which provided
convicted persons no possibility of I parole or release irrespective of
rehabilitation or good behaviour violated Article 3 of the European
Convention on Human Rights (prohibition'against inhuman treatmentj.v'
199. Distinguished from the above m~tter, the present Communication
focuses on the excessive nature of the punishment, in relation to the
offence for which the sentence was ikposed. In assessing whether the
sentence was indeed grossly disproportionate, the Commission must
consider the gravity of the offence, the personal characteristics of the
victim, and the particular circumstances of the case, " '.
In this regard, the Commission jbserves ••,~t in :Ovil Application
16/05 Roy Leslie Bennett v Emmerson Dr~b,1!-_iZ? Mriti'ng!!gzva'E:t.. ~ ..£t~!!r;, the
200.
Supreme Court of Zimbabwe succ.i,¢tlY' tp~8Fned,,:~he gravitX/,of the
Victim's offence in page 28 of its decision
wher¢1it
noted'that
" ... an assault
I·" .;: ,.
Ii_~}}'
. _.;' _.'
.
on a Minister of Government and ~I1~j':;,J_.ea;~er
of the"I1,ause during
Parliamentary proceedings J.11U'strahk··';'1~w.:6ngstthe worst cases of
contempt of Parliament. It is akin
ass11t1:¥~~:~.g
a judge during court
64
proceedings."
Thus, while the offence of 'cqmwon assault' such as
shoving a person~ ma,~:ri.ot'()f4~~arily/bF:~9n~ider~~';sufficiently harmful ~o
warrant a custodial. sent~nce,·tlie,C::OmmISSlOn'Cpnsidersthat the context m
which the assault' occu~red aimravatcid the severity of the punishment
imposed. Also.ithe Commission note~ the observations of the Supreme
Court t~at. in addition to v~ol.ati~g th~laignity of Parliament, evidence on
record indicated that the Victim "(pragged and boasted about what he had
done(';t?5,further aggravating the:i~cideht.
', ::",.. '
' :'1,:i}):~"E;6:~j'
I
201.
On \t:p.e -criteria of p'ersonaI characteristics of the Victim, the
Commission in Huri-laue v Nigeria ha~ held that treatment impugned as
torture, cruel, inhuman or degradin~ must attain a minimum level of
severity.w Determining this level of I severity is largely dependent on
variables such as the duration of th~ treatment, its physical or mental
effect, the age; sex and state of health of the Victim.r" No argument or
evidence has been advanced as to wHether the physical condition of the
Victim made the prison sentence mucH more severe than would otherwise
be the case.
I
tf
Vinter and Others v. The United Kingdom ECtHR 11JUIY 2013) Application 66069/09, 130/1~1~~
~~~~~f-1AR/,qr
1 paras 110 to 111.
389610
0 e:,":-c
64 Civil Application
16/05 - Roy Leslie Bennett v Ermlerson Dambudzo Mnangagwa &/~f5ther
.'.
(Annex I of the Complainant's
Merits submission) 28.
fIB
(~
65 (As above) 29.
66 Communication
225/98 - Huri-lauis v Nigeria para , 41.
t~~
'6
II lIA
,'(j.~
A·
67 Ireland v. United Kingdom, ECtHR (13 December
1,977) Application 5310/71 para 16~J'\.~ ~J'
63
;7
I
I
I
I
I
d:i
'.,\
'
Page 45
","
<'0",
«<"',
u.I IJ-il'.
~~~I ~~~
i5;;i,J j
9:"
~~Q"
'V<i;
0'/0
t.:;
"v 4':RICJ>.\~":- -0(/,v
5541"
of-S \'~ ,
~
-
'
AC
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Finally, the Commission notes that I pursuant to sections 16 and 21 of
the Privileges Act, Parliament may impose a maximum term of two (2)
years imprisonment depending on thJ severity of the case of contempt.
Given that a lesser penalty than the nhaxi;mum penalty required by law
was imposed, 'and taking into considedtiort the severity of the offence and
circumstances of the case, the Commis~ion is of the view that the alleged
violation of Article 5 has not been provEn by the Complainant, as it relates
to the custodial sentence imposed on thr Victim.
202.
Alleged violation of Article 6 of the African Charter:<,:: """,
203~ec~~cl~£
: ~e:~~n~;~a;r~:~:r
~;t;~;ir~~~~~
.:~
detention of any person. The Commlsslon"l1" heIa"Jf:!},Artlcle,,,I2::rriEntrea
that the concept of 'arbitrary detel}tio,~~,.shou.,./.;';
ot ~rtly.",keequated with
against the law' but must be interpretE~~:(i,inore
lD'rbadlyto inClude elements
of inappropriateness, injustice/dack of pr~ei~f~bility and Hue process of
'~~..~:r;~,t
law~•
I
The Commission notes ,!t];i'a,t the ResF6rsl~nt St~ denies the allegations
raised by the Complainant~'9:n·lhe rictl1p~~;')(lrrest and detention on
spurious charges with no access. to, legal representation. The Respondent
State admits that the Victim was arrest1d on 9 October 2002, on reasonable
suspicion that he. could have committed an offence under the Electoral
A~t. The ~harges were wi:h~rawt duel to lack o~ sufficient evidence fO.ra
pnm, acre case. The Victim hpwevJr complamed that he was demed
access
,.'.~lawyers:. j~n ~ll~gation the' Respondent State refuted by
general :,:::.ii~t,,:
' ,~,
,
204.
The G{if.~elinesof;l:the Conditions pf Arrest, Police Custody and PreTrial Detenffon in Africa (the Luanda Guidelines) provides for the right of
an accused Pkrson to "[ajccess withOlh delay [his/her] lawyer or other
legal service providers, at the latest p~ior to and during any questioning
by an authority, and thereafter throughout the criminal justice process.s?
Hence, the Victim's remand withou~ allowing him access to a legal
representative of his choice amounts to a violation of Article 6.
205.
Alleged violation of Articles 7 of the African Charter
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
206. The Co~plaina~t alleges a violatio, of Article 7 (1) (d) of the African
Charter which provides for:
Ii'
(d) the right to be tried within a reasonable time by an impartial court or
tribunal
207. The Complainant raises the allegati on that members of the Privileges
Committee were judges in their cause, as the majority were members of
ZANU PF, an aggrieved party, in breac of the rules of natural justice. The
Complainant argues that the Victim' J case ought to have been heard
according to the rules guiding a competent court of law, rather than by the
mere moving of a motion setting out the allegati9l}.£pllowed by a debate
and voting. In response, the Respondtnt Sta~~ orlt~~""~that the Victim
was charged with contempt of Parliament an . ~t ZA ltk, PF, and argues
that the
of Parliament is S.U1.'...:g.., en.:eriS,
a.s;!J~.'.;' c.h.;!fd
court
of jurisdiction
law.
;
.. oes not sitl' as a
"
208. Before delving into the sa:~ci£i2s':,·:,
of t~ep above' ''', merits, the
Commission must first addres/~il~m$,
Co~pl,~i30fl:nt's argume"j,.' with respect
to the standard of proof nece~'~ctrYIin':'f(Gt!TinaI cases. Indeed, the
Commission agrees wit!J<,the Com:p!airant tfl~t;\thi~ standard is 'proof
beyond reasonable douDH:';~~wev:r;,:;i
:l1~cleat ,\Vnat point this seeks to
buttress, as the alleged incid;~i]:t,,.~aswitri~~§,~d:JJynumerous members of
Parliament and has not. at any'~:~~p,tbe~n d~'@Ci b~ the Complain~n:. The
standard of proof - which relates-only to the veracity of the facts In Issue,
has unquestionably been satisfied. Th~~f;if{tosay, there could have been no
reasonable doubt that the Complainant committed the acts of which he
was accused.
~
•
A"
209. The'.. u~'therefore carr-be broadly addressed in two questions: (1)
whether(:'~DePriY:il~ges Committee con~tituted a tribunal for the purposes
of trying £~3.r?eomplai~a'nt; and (2) w~~t~er the principles of fair trial as
guaranteed ;;,!pnder Article 7 of the African Charter were adhered to,
notwithstandingthat
ZANU PF was in
majority.
re
210. Drawing inspiration from the j~risprudence of the ECtHR, the
Commission notes that in Belilos v SWitzerland the ECtHR held that "a
tribunal is characterised in the substantive sense of the term by its judicial
function, that is to say determining m~tters within its competence on the
basis of rules of law and after proceedings conducted in a prescri~
manner ... "70 In view of this, the Com~ission observes that sectioy;~~~~4~~"
of the Privileges Act describes the jurisdiction and compl~~G\' of
0"i-;,
Parliament in handling cases of contem t as follows: "a court [w_,;PJ~~~h]
a..I~t(...~:;?\\
l~Sl~~....Ul lI'~\
e 0
'')
,u
\'~.s.'-0'
\
I
(
0
J-
altau'up,
~
I,~" ~""jI
.~~~
Belilos v Switzerland ECtHR (29 April 1988) Appl cation 10328/83 para 64; Deltj 'CfJlf2y
ECtHR (15 October 1991) Series A No 210, Application .13057/87 paras 39 to 40,
70
.'i,
~,,;~.)'
:;1
Pag~
p,
Ul
fv00 0
x.<:)
oSlO
Q\(,
I
_,
~
(jJ ,;
l
jI!-
(~i~R'CP.\~
~x--v:~l
,.,.... MME sr \)'i:.S :;,,,/"
'~.~~,,~
..~~~-6.rr
AC
M
PR
African Commission on
Human and Peoples' Hiqhts
Human Rights our
Collective Responsibility
'
have all such rights and privileges of a Jourt of record as may be necessary
for the purpose of summarily inquiring into and punishing the
commission of any act. .. As such, the <corrlmissionconsiders that the fact
that the Privileges Committee does Jot formally make decisions, but
makes recommendations does not dirinish the strict requirements of
adhering to procedural fairness. In light of the forgoing, the Commission
finds that the Privileges Committee ras indeed exercising a judicial
function in determining the Victim's guilt, and as such, it is bound by the
principles of fair trial that govern such Bodies and processes.
II
The Complainant argues that th~ applicatipn"of, the law by the
Privileges Committee was biased and retributive due .to.its composition.
The Principles and Guidelines on thel Right to: a Fair,::Trial and Legal
Assistance in Africa (Principles and Gfid~lines on.Pair: Trial)-,stip~lates
that for a tribunal to be deemed imparlicil>j~~'~4ecisi~1}.,must"oe.J?~ased
on
objective evidence, arguments andfacts presel}f~d before.it, without any
improper influence, inducement, thr:fts<,\\~;,;?orinter{erence.71 The
Commission in determining .the existclncef'qr' non-existence of bias has
previously adopted the subjective and bbje(:Hy~approach applied by the
ECtHR,72In Dawit Isaak v Republic of Erdrea the G,8~ssion noted that the
subjective approach s:eks to':ascertain the ~xiste~(leof bias by 'assessing
th: p~rsonal cOl}Yicti()?:1,of
'agi~en j~dge: i~}'a given =. while the
objective approach simply asks whether the same Judge offered
211.
guarantees SUffi~!e.nt o exclude ai~ylegiFmate doubt of impartiality.~
.
212. In the present: Communication, the application of the subjective
approach seems certain to taint: all members of parliament, including
members of ,MDC, 'fr()~~,:;.:~4judicati+g on matters of contempt of
Parliament by.any Member of Parliament, due to their party affiliations.
This approachis not a;pplicable in this i~stance, as it would have the effect
of robbing ..Parliament of the power to impose disciplinary measures and
govern its own internal affairs as autho~ised by sections 49 and 13 (2) (b)
of the 1980 Constitution of Zimbabwe. I
213. On the objective test, the ECtHR haJ held that in determining whether
there is a legitimate reason to fear that aJparticular body lacks impartiality,
what is decisive is whether the fear can be seen as objectively justified.P In
Demicoli v Malta the ECtHR examined I the. question of impartiality as it
concerned contempt of Parliament proceedings instituted againkthe~
I
~
I
o~ \'Ill MAN 4/yO
f'/Q"" c~E.iAR/4'"
"
.o~ '.
71 Principles and Guidelines on the Right to a Fair Trial and Legal AssistaJl~# mX:A
ioa
principle A (5) (a).
I
,i~[t
.~
o~\.
72 Piersack
f, ~\,
v Belgium ECtHR (1 October 1982) Applicati911 8692179 paras 30 and 31. ,if (]
73 Communication 428/12 - Dawit Isaak v Republic of Eritrea para 32.
('I
74 Ferrantelli and Santangelo v Italy ECtHR (7 August 19~6) Application 19874/92 pa\~~8~
;t~
I
~\
,~.>" g~ .:;!
(l~~
en!
p.u.llp.
~~.."'.d. ~O'
<:J",0 (J rjl;
Pa e d§'%~p.\~~
s:..l
-~ Iy
?~ /"r
" . OMME ET oE.S ;;<"'¢'
-. -v..:;..~~-~,.~
...
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
applicant for the publication of a sktirical article commenting on a
particular debate in the Maltese Ho~se of Representatives. The Court
found that the fact that the "two Memgers of the House whose behaviour
in Parliament was criticised in the impugned article and who raised the
breach of privilege in the House participated throughout
in the
proceedings against the accused ... the impartiality of the adjudicating
body ... would appear to be open to dou ts and the applicant's fears in this
connection were justified."75
214. In the present Communication, the Commission notes that the
Privileges Committee which deliberateH on the guilt'and sentence of the
Victim was chaired by the same Memiber, of Parliament who raised the
breach of privilege and moved a mO~ion forfhe establishment of the
Committee. This clearly raised doubts ~n",.th~,
mind 'of the:Yictimas to the
impartiality of the Privileges Commitf~~;;;"iAccordingly"
"the""~6aceiri
was
,[
",'.'
','-.
,,~,,'
raised before the Privileges Committee'which 'r\il~d thatjto ground of bias
or conflict of interest had been, establi~hed.76 Jrhe Corrimissibn however
considers that a motion express'~~\the bphtiori'~nd desire,~-of a Member,
and in this instance, the Chairperson h~d clearly inferred the guilt of the
Victim when he stated4iJ8~t,: " ... H~h9J~able C4~~~p1asa was addressing
the House and [was]' violently ~h6vt4,:to th~::;;,j;groundtogether with
Honourable Mutasa who hacl';"risen to render-assistance to Honourable
Chinamasa thereby ass~ulting'th~m,."77 (Emphasis Added)
,.',
.
.'
215. In this sense, it can be said that the procedural shortcomings allowed
the Chairperson exercise the dual fu ction of both complainant and
adjUdJ~....
fl'.'.';~
...
,.r,..
'.......
i.•..
n....
contrave.~.ti.o.n ...
0f -the na~ra.l justice principle that n? ~ne
shouldji';p,~~fl;,>Judge
In hIS or: her own cause. Therefore, the CommISSIOn
consid~f~;:"th~t.ha,;::ing subjected the ~ctim to what was, in essence, a
criminal ti:;jal,appropriate safeguards of natural justice ought to have been
followed. ~cc'brdingly;:the Commission find a violation of Article 7 (1) (d)
of the African Charter.
75 Demicoli
v Malta (n 70 above) para 41.
76 Civil Application
77 (As above)
3.
16/05 (n 64 above) 6.
ACHP
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
217. The Commission notes the Complai1~ant averments that the Victim was
persecuted particularly for his membership of the opposition party and his
race. The Respondent State however denies complicity in the acts alleged
by the Complainant. As elaborated i~ the Commission's Guidelines on
Freedom of Association and Assembly in Africa (the Guidelines), the right
to freedom of association protects: ex~ression, criticism of government
action, advancement of rights of marginalized groups and all other
conducts permissible under international law, which includes the right to
establish and join political parties."
I
218. The Commission has also held that Jhe rigI-tt~;{~f.f~J~~1?m
of association
and assembly are both individual and dolleGti:Y:~,"~ights,'r:~~
such, States are
m~ndated to respect the righ~s of asso~iat~o~s ~'0;j,e~~~~~:~::;tg~}~'T~~r:!'i'ities
without threats, harassment, interference, mtlmIdatlQ:tl"or repFi~~l)iof any
ki.n~.79 As previously elucidat~d, the.IComplainant'~';'~?:~ertion th~t the
VIctim was targeted on the basis of hIS race has not bee:q.:{s;ubstantiated.
However, the Commission cgris,i_q~rsthe Complainant's 1?::ffbmissionthat
the invasion of the Victim' 1?,propei;ty:,,~las preceded by a speech delivered
by the President on 12 I;tln~"2003, iri\yHiFh it Wa;t;:irl~erred that the Victim
, "':'''',
""'~<
' . "
should be run off his lahd;~::~~\he
W:~S' disl(Jyal byvirtue
of his support for
MDC
. .,::.'
j':
219. ~e Corrunission therefore find~·.tha ev~n'thOUgh the culprits may not
have been operatives of the State,' the Respondent State is however
implicated in the violations which ensiled, 'as the attacks were motivated
by th~,;,,~peech of the President targetitg the Victim due to his political
associ'anpft:f,9,;nd
opinion in violation
of Articles 10 (1), 11 and 13 (1) of the
,,', ;;',\,1.:;·
..
AfricanCharter,
\~}
"
'\
Alleged Viol~Upn of Article 14 of the Afridan Charter
220.
Article l~\~f the African Charter proLdes that the right to property can
only be encroached upon in the interest I of public need or in the interest of
the community, and in accordance w~~h the provisions of the relevant
laws.
ACH R
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
restitution and/ or compensation.
~he Respondent State however
contends that the seizure was in accordance with the domestic law and in
the public interest.
222. The Commission has held in paragraph 176 above that the compulsory
acquisition of land by the Respon1ent State, with the purpose of
redressing the inequitable distribution of land in Zimbabwe is indeed a
legitimate purpose, as a well impleme~ ed land reform programme could
~eadto a~ i~crease in production an~ ~rl~wthin all sectors. The conte~tion,
Instead Iies In whether or not the VICtIlljls land was lawfully expropriated
in accordance with the laid down procedure. SectionBfl) of the Land
Acquisition Act stipulates that where preliminary :ri9ti~eof acquisition
has been published in the Gazette, the Jcquiring authority may then serve
an order on the owner, not less than t~if:ty (30) 'days' ;a,.fter,..t;he
~,ate of
publication in the Gazette. Section 9~T(1):(b),also 'indicates" tha,.f.",... the
making of an order in terms of subsection (1)"p£;sectio11:8.~hallconstitute
notice in writing to the owner ~r occ~p~~!::)O
to occu:py;/hold or use
that land 45 days after the date of servlce.:.~/.B0'·
"
J
~,i~~e
223. The above procedure was however not applie,~ .in the Victim's case.
The Commission notes the Complainant's submi$sion that Charleswood
Estate is presel1~~Ybeing" operated Iby the, Agricultural and Rural
Development Authority, a government parastatal. The Commission
considers that even though the Respondent State did not authorize the
invasion of the :~fi{:tim'
s land, the State 'honetheless failed in its obligation
to restore the property to the Victim, a~d follow the legal process in the
acquisition of the ,'Victim's propertyJ The Commission reiterates its
jurispr~d~hce in Constitu#()Ylal:1?.ights Pr~ject, Civil Liberties Organization and
Media Rights Agenda v Nigeria that the right to property necessarily
includes 'the right not to have one's property invaded or encroached
upon.s-
ACHP
African Commission on
Human and Peoples' Biqhts
Human Rights our
Collective Responsibility
pursued in measures of economic reform or measures designed to achieve
greater social justice, may call for less than reimbursement of the full
marketvalue".83
I
225. Section 29C (1) of the Land ~cqUisition Act stipulates that
compensation shall only be payable for any improvements on or to the
land ... " and vests the responsibility to 90mpensate owners for the value of
their land on the former colonial power (the British Government). The
Commission considers that in applying the above reasoning of the ECtHR,
the Respondent State is clearly under no obligation to compensate the
Victim for the full market value of the land. However, the Commission
considers that taking into consideration the nature' of the Victim's
ownership (legitimate purchase), an ass:essmen~of compensation ought to
have taken into .consideration factors 1uc~ as: ~he hist9rtof ..~"Y~~f.ship,
use and occupation of the land, and any financial constraints wD!ch may
~::~sitate the payment of comp~at
in installments o~er a period of
II
226. The Respondent Slate ,may l~giJtelY
expropriate land for public
interest provided that it-complies with international principles guiding
such procedures. ~ key req~~r.e.me.~.t
·be~n.gJhatcompul~ory acquisitio~ of
property must be In accordance WIth the law.accompanied by appropnate
and timely compensation. The 'Gqmmi~sion notes that compensation was
not provided to the Victim for the' e~prJpriation of his property, and even
though the Respondent State concedes that the Victim is entitled to be
compensated for only the improvements on the land, its delay in doing so
and the. manner the land was taken, ambunts to a violation of Article 14 of
the Af~iG:ah-'Charter.
\\~:,:
·d~·, .: )-.
"
Alleged Vi~la,tion of-Article 18 of the Afriean Charter
227.
Article'~;;;(3)of the~frican Charter Jrovides that:
The State shall ensure the elimination of every discrimination against women
and also ensure the protection of the r~ghts of the woman and the child as
stipulated in international declarations and conventions.
228. The Complainant avers that the Jvasion of the Victim's farm and
subsequent occupation led to his pregnant wife being held hostage in the
rain at machete point, and as a resultI she suffered a mis~ar~~-\lll,~
·aQe,.;."lRS: ....
I. AM;!::..,
response, the Respondent State again denies complicity and c s.• WiJ~tha~}"VD ,0(.,
.
-S3-(A-S -ab-o-v-e)-p-a-ra-5-4-;
P,-o-Y-m-e,-'K-ing of Greece
25701194 para 78.
I
~~
§ .
fI" ,?<5- e;,'(;
I
I
and Othel'S
V
(~
Greece
.~\C!.
%
\\'" ':;,
'\s'.s{l;)..
~
i(~.\
(28 Novembe~:h..~o~ ppI~a-i;~~
"';, t..
I
I
c""
AU·\.JA
\U
u~.
~
'g..;
i Ifl
C/)
'V<:"'?
rfl {I'
"._ ~~:4-o:t;!fjS.~\,~0~v
/
"'''''~ .'>.o.t,,~~~
oMME ET D'iOS .,,;/,7'
..
ACHPR
African Commission on
Human and Peoples' Hiqhts
Human Rights our
Collective Responsibility
there is no indication that the Complainant reported the incident to the
police.
I
The issue of State responsibility for ~he actions of non-state actors have
already been determined above. The (Commission has held in Zimbabwe
Human Rights' NCO Forum v. ZimbabwJ that the duty of the Respondent
State is in four-folds, it includes an obli~ation to respect, protect, promote
and fulfil human rights.84 The obligatipn to protect entails not only the
enactment of appropriate legislation afd effective enforcement, but also
the protection of all persons within its jurisdiction from damaging acts
229.
that may beperpetrated
by private inditidUalS.:,.
>,
'''::'l
230. As earlier noted, the due diligence stCl)-l9-ard':~ncompasses the
obligation to provide and enforce suffi~ient remecti.~~,/t~~s·Jn<;:l':l~e
!~ing
active steps to prosecute and punish prtvate actors w~g}nter£er~'S'ith the
rights protected under the African Charter. In the"'.:,pr~sentcase, the
Respondent State has not furnishetl any progress<:"!x'~port on its
investigation into the attaC~1.;,XYrjch
111egedly led to ti¥~ miscarriage
suffered by the Victim's, wife:iLAn I effective investigation must be
conducted promptly, and, capable bf::~eading to the identification and
punishment of those responsible. 86:At'mpst also identify the systematic
failures that led to the Yiolat1c)n;;.~~d
theln~¢e~~i~rymeasures to be adopted
to guarantee non-repetition.87 1'ge"Cotpmission therefore finds that the
failure to investigate and bring the''.,pe!petrators to justice violates Article
18 (1) and (3) of, the African Charter/cas the State failed in its duty to
protect the Victim's family, more: so 'as the ;attack followed the speech by
the P!;,;~t
inciting ~e criminal'ac~ Trpetrated on the Victim's land.
Alleged Violation .nf Article 1 of the African Charter
231. The ~~~PlainanicontendS that the ~ailure of the Respondent State to
protect the Victim, his family and em~loyees amounts to a violation of
Article 1of the African Charter.
232. The Commission has held that Arti~le 1 imposes a general obligation
on States to respect, protect and fulfil t~1erights enshrined in the African
Charter.v' In Commission Nationale des Droiis de l'Homme et des Libertes v
84
Communication 245/02 - Zimbabwe Human Rights
85 (A~ above) _para 152.
NGlb Forum v. Zimbabwe para 151.
I
."
••
~=
.
"'-,
,~u~.,
and docu.~~~~fof\R/4r
"'<._
86 Umted Nations (UN) "Is~anbul Protocol- Ma~ual on th1 effective m:eshgatlOn
torture and other cruel, inhuman or degradmg treatntent or punishment" 2004 1~,~~allab .-a~
hgl211;1/wW\-Y,<lchpr.,Qrg/l~galiJ\~.n:t!,f!),q!.1lSldetail?,~q::,:.24
(accessed 14 December 2021).
(C:rc:;~'"
I l.- .,
87
As above.
:
88 Communication 279/03, 296/05 - Sudan Human,
ights Organization and Cen ~Otl> ous'i'ii;rl
.
. .
.~o
\J up.
RIghts
and EVIctions
(COHRE) V Sudan para 227.
\ ~ %
A .
.<
ft
k
"',
C
1
(J
•
...
'.,
6.
""
"'.5'/.0
-,
;;,
\
\_
G
~~;
8'0 "'/
'?
r(J-<'- (;:/.1
Pag . 3~ot-5i'cp.\~~~S"v~/
"~ME
~~:?'-'"
ET Dr.':>?
'if"
:
~~"
ACH
African Commission on
Human and Peoples' Hiqhts
Human Rights our
Collective Responsibility
~had, t~e Commi~sion further hel.d thaf "if a Sta~e neglect.s to .ensure' the
rights In the African Charter, this can be constitute a violation [under
article 1], even if the State or its agents are not the immediate cause of the
violation."89 In the present Communica~ionl the Commission has reached a
conclusion that the Respondent State f~iled to protect the Victim and his
family against discrimination, cruel land ill-treatment, and failed to
guarantee his right to an impartial tribunal, access to a legal representative
and his right to property. Consequently, the Commission finds that the
Respondent State is in violation of Article 1of the African Charter.
Decision of the Commission on Merits
r'
.1
"(' '.'~:~,
~'"
, :,;.,';
::~~e~n~~t:~~~~:::~:~w~:e
_"._ .
ican
".
'_
, ,
<:" ,;""'~".~... »>
S1fiSSiOP O~'Humanand
i. That the Respondent State '- the Re;l1bliG{ig~Zimbab~e '~as violated
Articles 1, 2, 3, 5, 6, 7(1) (d), 10 (1)~11, 13!'(.1), 14 and IS of the African
Charter on Human and Peoples' Right;
:",'
ii. Requests the Repbbtic of Zimbabwe
L
a. Pay fair and adequate comp.Jsation to the Victim named in this
Communication for the.compjrlsory acquisition of Charleswood
.
Estate artdf:a!lhis other properlies acquired pursuant to the Land
"A~quisitioh\(~mendIT).~ftt)Ac~2002, including compensation for
\):he land and all improvementrl therein, and the loss of his farm
.equiprrrent .and livestock, in accordance with the principles
guiding expropriation of priVate property under international
law;
I
b. Promptly and independently fnvestigate, prosecute and punish
all non-State actors responsible for the incidents of rape of the
Victim's employees, cruel afd ill-treatment suffered by the
Victim and his wife, the destruction of property and other
violations of rights of all affJcted persons who were lawfully
residing on the Victim's farms.
'<::':
1,;',~~l~,
~~
iii.Inform the Commission, in accordance with Rule
..o~1flYell'"""'o,o~0
Commission's Rules of Procedure (2010), within one i :1iTIdr an
\
i: ..,;
rjf=~
u
,1/8
((\Cij \,
cg ~
89 Communication
20.
74/92 - Commission
~J~,
Nationale des Dr' its de l'Homme et des Lib~'1,',t!s~ had~aia./
itt{. ~"t
e (/):
AU-UA
'\ "a_
':)Q"
<fJ "
, '. ~:<t,~44j){15.&"'~
~\)'<v ,if!
'~,.
oA1ME ET oE.s? -:9'~"
~
IS~
,~",~,-",=~,,,,
Q<?
•.
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Ul
?l
a Gi,
".'"
,
.
Page 55 of 55