Communication 351/2007- Givemore Chari (represented by Gabriel
Shumba) v Republic of Zimbabwe
Summary of the Complaint:
1. The Secretariat of the African Commission on Human and Peoples‟
Rights, (the Secretariat) received this Complaint on 5 November 2007. It is
submitted by Gabriel Shumba (the Complainant), representing Givemore
Chari (hereinafter referred to as the Victim), against the Republic of
Zimbabwe (the Respondent State).1
2. The Complainant states that the Victim is an unemployed male citizen of
Zimbabwe who was 27 years old at the time the Complaint was
submitted. He states further that in 2005, the Victim was the President of
the Student Representative Council (SRC) of the Bindura University in the
Mashonaland Province of Zimbabwe, which was highly critical of
Government policies on higher education.
3.
The Complainant alleges that in October 2005, the Victim was suspended
from his studies by the University authorities after leading a peaceful
march of students which demanded timely and adequate payouts, as well
as their general welfare. According to the Complainant, the Respondent
State was involved in the Victim‟s suspension because of the harassment
he suffered from the State police responsible for throwing him out of the
1
The Republic of Zimbabwe ratified the African Charter on 30 May 1986, and is consequently
a State party to the African Charter.
1
University campus. He alleges that the police is frequently used to
suppress opposition in the Respondent State.
4. The Complainant avers that after the suspension, the Victim later returned
to the University, but suffered constant harassment by way of
victimisation and death threats from the University authorities and the
police respectively.
5. The Complainant alleges that in May 2006, there was high tension at
Bindura University caused by the increase of tuition for students. He
alleges further that students were tortured and about 200 were arrested
from the National University of Science and Technology, while student
leaders were expelled from the University of Zimbabwe, for unjustified
reasons.
6. The Complainant states that in mid-May 2006, the Victim and other
student leaders staged a peaceful march in their various universities. He
alleges that the peaceful march led to the arrest of the Victim, along with
forty-seven (47) other students who were taken to Rhodesville Police
Station.
7. The Complainant alleges that the Victim and other students were detained
overnight in a crowded cell, which was wet, dirty, smelly, infested with
vermin, and with a small opening for a window. He alleges that the
students were brutally assaulted by the police while in the cell. The
Complainant purports that the Victim was punched with clenched fists,
kicked, and beaten on the soles of his feet. He alleges that the Victim was
also denied food, visits from his relatives and access to a lawyer during
the two days detention period. The Complainant avers that, the Victim
2
and the other students were released after two days without any
procedures of being charged.
8. The Complainant claims that after the first arrest, the Victim was again
arrested and released after being assaulted by the police. He submits that
on the night of the same day the Victim was released, he was abducted by
members of the Government Security Agency-Central Intelligence
Organisation (CIO), who bundled him into a vehicle and drove him to an
unknown destination. The Complainant alleges that while in the vehicle,
the Victim was continually assaulted and later overheard his abductors
making plans to kill him and dump his body because he is critical of the
Government.
9.
The Complainant states that after overhearing plots to be killed by his
abductors, the Victim became terrified and jumped out of the moving
vehicle to escape. As a result of this, he sustained severe body injuries
and was fortunately rescued by passers-by.
10. The Complainant submits that after this ordeal, which the Victim
narrowly escaped from, he fled from Zimbabwe to South Africa.
Articles alleged to have been violated
11. The Complainant alleges that, the Victim‟s rights under Articles 4, 5, 6,
7(b) and 14 of the African Charter on Human and Peoples‟ Rights (the
African Charter) have been violated by the Respondent State.
3
Prayers
12. The Complainant prays that the African Commission on Human and
Peoples‟ Rights ( the African Commission or the Commission) should:
i.
Find that the Respondent State has violated the Victim‟s
right to physical integrity, protection against torture,
protection against arbitrary arrest, fair trial,
freedom of
association, right to property and to work;
ii.
Carry out an inquiry and investigation to bring the
perpetrators of these human rights violations to justice; and
iii.
Ask the Respondent State to pay compensation for the
physical pain, psychological trauma, loss of job and access to
family suffered by the Victim.
Procedure
13. The present Complaint was received by the Secretariat on 5 November
2007. Attached therein, were the Complainant‟s submissions on
Admissibility.
14.
By letter dated 7 November 2007, the Secretariat acknowledged receipt
of the Complaint and informed the Complainant that it has been
registered as a Communication and would be considered for Seizure
during the 42nd Ordinary Session of the African Commission scheduled to
take place in Brazzaville, Republic of Congo.
4
15. At its 42nd Ordinary Session, the African Commission considered the
Communication and decided not to be seized of it, because it was not
signed and did not include the annexes mentioned in the Complaint.
16. By letter dated 19 December 2007, the Secretariat informed the
Complainant of the Commission‟s decision and requested the latter to
forward a signed copy of the Complaint, as well as the annexes to be
considered during the 43rd Ordinary Session of the Commission scheduled
to take place in Ezulwini, Swaziland from 7 to 22 May 2008.
17. By letters dated 19 March 2008, 17 June 2008,
22 October 2008, 11
December 2008, and 27 April 2009 the Secretariat reminded the
Complainant to forward a signed copy of the Complaint, as well as the
annexes so that it can be seized, or else the matter will be deferred sine die.
18. On 11 May 2009, the Secretariat received a signed copy of the Complaint
from the Complainant, after which the Commission was seized of it
during its 45th Ordinary Session which took place from 13 to 27 May 2009,
in Banjul, The Gambia.
19. The Respondent State‟s submissions on Admissibility were received by
the Secretariat on 26 November 2009, and forwarded to the Complainant
by a letter dated 3 December 2009.
20. By letters dated 3 December 2009, 3 June 2010, 30 September 2010, 7
December 2010, 26 May 2011, and 14 November 2011, the Secretariat
forwarded several reminders to the Complainant requesting for additional
information on Admissibility, if any and the annexes mentioned in the
Complaint, which were not attached.
5
21. During its 46th, 47th, 48th, 49th and 50th Ordinary Sessions, the African
Commission deferred the consideration of the Communication, and the
parties were accordingly informed.
22. During its 11th Extra-Ordinary Session, the African Commission
considered the Admissibility of the Communication and the Parties were
accordingly informed.
The Law on Admissibility
Submissions of the Complainant
23. With respect to Article 56(1) of the African Charter, the Complainant
submits that this requirement is fulfilled because the author of the
Communication has been disclosed.
24. Regarding Article 56(2), the Complainant states that the Respondent State
has violated the Victim‟s right to physical integrity, fair trial, freedom of
association, property, work, protection against torture and arbitrary
detention, in compliance with Article 56(2).
25. In fulfilment of Article 56(4) of the African Charter, the Complainant
contends that the Complaint is not based on news from the mass media
because the facts as presented are from the Victim‟s personal account.
26. With regards to the exhaustion of local remedies provided in Article 56(5)
of the African Charter, the Complainant submits that due to the
circumstances of the Complaint, it is impossible for the Victim to exhaust
6
local remedies. He states that the Victim was forced to flee from
Zimbabwe to South Africa for fear of his life after being tortured by
authorities from the Respondent State. According to the Complainant, the
fact that the Victim did not collect his belongings is indicative of the
urgency with which he left the country.
27. The Complainant avers that the Victim who was also a Human Rights
Lawyer representing members of the MDC Party in legal matters is still
living in a state of fear for his security and life as the threats did not stop
even after he left the Respondent State. According to the Complainant,
due to the nature of the Complaint, it would be impractical for the Victim
to go back to Zimbabwe and seek remedy from the national courts.
28. The Complainant submits that since the Victim fled the country against
his will and is now in another country, domestic remedies cannot be
pursued without impediment and hence, not available.2
29. The Complainant further submits that domestic remedies are not effective
because there is no prospect of success. He avers that due to the situation
of the judicial system in Zimbabwe, the availability of local remedies is
not sufficiently certain, and this is aggravated by the prevailing trend of
non-compliance with court orders in Zimbabwe.
30. The Complainant states that in a number of decisions rendered by the
judiciary, particularly those concerning the treatment of members of the
opposition party, and matters affecting the Executive, there has been a
deliberate
practice
of
non-enforcement.
He
makes
reference
to
Commercial Farmers Union v The Minister of Lands and Agriculture, land
2
Communication 232/99-John D. Ouko v Kenya (2000) ACHPR.
7
Resettlement and others,3 where he submits that no attempt has been
made to act upon orders of the High Court against the Commissioner of
Police.
31. The Complainant states further that, Zimbabwe Lawyers for Human
Rights has documented at least 12 cases since 2000 in which the State has
ignored court rulings. He submits that some of the most egregious
examples of non-enforcement of judicial rulings include the case of
Journalists Mark Chavunduka and Ray Choto who were abducted and
tortured by the army.4
32. The
Complainant
states
that
a
Supreme
Court-ordered
police
investigation in 2000 on the above case, but failed to proceed. Hence, it is
the Complainant‟s submission that the Victim has no prospect of success
in pursuing local remedies in Zimbabwe. It is also the Complainant‟s
contention that the uncertainty of the factual existence of a remedy for the
Victim is indubitable, and therefore lacks the requisite effectiveness.
33. Concerning Article 56(6) of the African Charter, the Complainant submits
that the Communication complies with the requirement under this Article.
He substantiates this argument by stating that where a Complainant is
unable to obtain redress locally, and is not required to exhaust local
remedies as in the instant case, reasonable time could be determined by
having regard to the date of violation and date of submission as practiced
in the Inter-American Human Rights System. The Complainant states that
it has only been less than four months since the violations occurred,
3
Supreme Court Ruling, (132-2000).
4
Justice system eroded by state non-compliance available at www.allaafrica.com.
8
starting from 14 January 2003. According to the Complainant therefore,
the Communication is submitted within a reasonable time.
34. With regards to Article 56(7) of the African Charter, the Complainant
states that the matter has not been brought before any international organ,
and therefore the Communication fulfils Article 56(7) of the African
Charter.
Respondent State’s submissions on Admissibility
35. According to the Respondent State, the Communication does not comply
with Articles 56(2), 56(5) and 56(6) of the African Charter and should be
declared inadmissible.
36. With respect to Article 56(2) of the African Charter, the Respondent State
argues that the facts raised in the Communication are vague and not
adequate to prove a prima facie case. The Respondent State submits that
according to the Complainant, the Victim was allegedly arrested and
detained by the police on several occasions, without supplying evidence
of the dates and place of such detention.
37. The Respondent State also submits that, according to the Complainant,
the Victim was allegedly punched with clenched fists, kicked, and beaten.
Further, that the Victim allegedly jumped out of a moving vehicle and
sustained serious injuries. However, it is the Respondent State‟s
contention that no medical reports were submitted in support of these
allegations by the Complainant.
9
38. Furthermore, still substantiating on the vagueness of the Complaint, the
Respondent State submits that the Complainant describes the Victim as a
student leader who was involved in peaceful marches to the general
welfare of students in the country, and at the same time describes him as a
Human Right Lawyer who was representing members of the MDC Party
in legal matters.
39. According to the Respondent State, the facts in the Communication lack
clarity and consistency and do not fall within the rationae materiae of the
African Commission.
40. As far as Article 56(5) is concerned, the Respondent State refers to the
Complainant‟s submissions that the Victim could not exhaust local
remedies because he was forced to flee the country. While quoting Section
24(1) of the Constitution of Zimbabwe, the Respondent State submits that this
Section is clear to the effect that anyone who believes that his or her rights
are being violated can approach the Supreme Court for redress. Section
24(1) of the 2009 Constitution of Zimbabwe provides that:
If any person alleges that the Declaration of Rights has been, is being or is
likely to be contravened in relation to him (or, in the case of a person who
is detained, if any other person alleges such a contravention in relation to
the detained person), then, without prejudice to any other action with
respect to the same matter which is lawfully available, that person (or
that other person) may, subject to the provisions of subsection (3), apply
to the Supreme Court for redress.
41. The Respondent State submits that it is not a legal requirement for a
Complainant to be physically present in the country in order to access
10
local remedies. It notes that Chapter 7.06 of the High Court Act, and Chapter
7.05 of the Supreme Court Act permits any person to make his application to
either Court through his or her legal representative. Furthermore, the
Respondent State notes Section 50(1) of the High Court Act which provides
that “Every person shall be entitled to be present if he so wishes at the hearing of
his trial, action or appeal.” According to the Respondent State therefore, the
Victim,5 could have sought local remedies from the authorities in
Zimbabwe without being physically present in the jurisdiction, instead of
opting to approach the African Commission directly.
42. The Respondent State cites the African Commission‟s decision in Mr.
Obert Chinhamo v Zimbabwe6, where the Commission ruled that where
national laws so provide, it would not be necessary for an applicant to be
present in the jurisdiction to personally make an application to the courts.
The Respondent State therefore argues that the Victim‟s absence from the
country did not inhibit his freedom to make an application to the
Constitutional Court for redress.
43. The Respondent State further submits that, contrary to the Complainant‟s
submissions that local remedies are not available and effective, it has
discharged its onus to prove that remedies are not only available, but also
effective. According to the Respondent State, there is no indication in the
Complaint that the conduct of State Officials was such that it impeded the
Complainant
from
exhausting
local
remedies,
adding
that
the
Complainant never even made an attempt to exhaust them.
5
Who is referred to as the Complainant by the Respondent State in this Communication.
6
Communication 307/07- Mr. Obert Chinhamo v Zimbabwe (2007) ACHPR.
11
44. In its contention of the Communication‟s non-compliance with Article
56(6), the Respondent State avows that according to the Complainant‟s
submissions, the alleged violations took place between October 2005 and
May 2006, while the Communication was received by the Commission on
5 November 2007, which add up to seventeen (17) months after the
alleged violations. The Respondent State notes that, the Complainant also
refers to 14 January 2003 as the date on which the alleged violations took
place, making the period even longer than the time period in contention.
45. The Respondent State submits that although the African Charter does not
prescribe what constitutes a reasonable time, other jurisdictions have clear
indications
to
interpretation
that
of
effect.
reasonable
The
time
Respondent
State
mentions
given
the
Inter-American
by
the
Commission and the Protocol merging the African Court of Justice and the
African Court for Human Rights which both prescribe a period of six (6)
months. It is the State‟s submission that given the modern era of
communication where various modes are available, it would not require
the Complainant
seventeen (17) months or more to submit the
Communication, taking into account the gravity of the alleged violations.
46. In light of the above, the Respondent State submits that if calculation is
made from 14 January 2003, when the alleged violations are supposed to
have taken place, the delay is clearly unreasonable. The Respondent State
adds that, where calculation is made with effect from 2005, seventeen (17)
months cannot also be considered reasonable under the circumstances.
12
The African Commission’s Analysis on Admissibility
47. The Admissibility of Communications within the African Commission is
governed by the requirements of Article 56 of the African Charter. These
requirements
are
cumulative
and
must
all
be
satisfied
for
a
Communication to be Admissible. If one of the requirements is not met,
the African Commission will declare the Communication inadmissible,
unless the Complainant provides sufficient reasons why any of the
requirements could not be met.
48. In the Communication before the African Commission, the Complainant
avers that apart from Article 56(5) of the African Charter, all the other
requirements under Article 56 have been complied with. The Respondent
State however argues that the Complainant has not complied with Articles
56(2), 56(5) and 56(6) of the African Charter.
49. Since the Respondent State does not dispute compliance with the other
sub-articles under Article 56 of the African Charter, the African
Commission will proceed to analyze only the contentious Articles, so as to
establish whether the Communication complies with these Articles or not.
50. Article 56(2) of the African Charter provides that “A Communication should
be compatible with the Charter or the Constitutive Act of the African Union.” In
substantiating compliance with Article 56(2) of the African Charter, the
Complainant alleges that the Respondent State has violated the Victim‟s
right to physical integrity, fair trial, freedom of association, property,
work, protection against torture and arbitrary detention, guaranteed by
Articles 4, 5, 6, 7(b) and 14 of the African Charter.
13
51. The Respondent State on the other hand, submits that the facts raised in
the Communication are vague and not adequate to establish a prima facie
case. It is also the Respondent State‟s contention that „The facts in the
Communication lack clarity and consistency and do not fall within the rationae
materiae of the Commission.’
52. Before establishing whether there has been compliance with Article 56(2)
of the African Charter by the Complainant, the African Commission finds
it necessary to explain the concept of its rationae materiae jurisdiction
mentioned by the Respondent State.
53. Rationae materiae is one of the four aspects of compatibility with the
African Charter under Article 56(2). It is a substantive requirement which
validates a Complaint when a right set out in the African Charter has been
violated. Hence, a Communication will be inadmissible if it does not fall
within the framework of the rationae materiae of the African Commission.
In other words, if it does not provide prima facie violation of the African
Charter.
54. In Michael Majuru v Zimbabwe, the African Commission relied on Black‟s
law dictionary to define rationae materae, stating its meaning to be, “By
reason of the matter involved; in consequence of, or from the nature of, the
subject-matter.7”
55. In the present Communication, the Respondent State argues that the facts
do not present a prima facie case because the Complainant submits that the
Victim was allegedly arrested and detained by the police on several
occasions, without supplying evidence of the dates and place of such
7
Communication 308/2005- Michael Majuru v Zimbabwe (2008) ACHPR para 63.
14
detention, as well as medical reports in support of the injuries allegedly
sustained.
56. Contrary to the Respondent State‟s contention, the Complainant explains
the violations committed against the Victim in paragraphs 2 to 10 of his
allegations above, which lead to the conclusion that the Victim‟s rights
under Articles 4, 5, 6, 7(b) and 14 of the African Charter have been
violated by the Respondent State.
57. The African Commission noted in Southern Africa Human Rights NGO
Network and Others v Tanzania, that, “The primary consideration of the
Commission under Article 56(2) is whether there has been prima facie violation of
rights provided by the African Charter.”8 Thus, looking at the submissions of
both parties, albeit the Respondent State‟s argument that the allegations
made by the Complainant are vague and inconsistent, the African
Commission opines that these allegations establish a prima facie case. This
is because on the face of it, they reveal violations guaranteed by the
African Charter, and consequently fall within the rationae materiae of the
African Commission.
58. The African Commission therefore holds that Article 56(2) of the African
Charter has been complied with by the Complainant.
59. The second issue of contention in this Communication is the requirement
under Article 56(5) of the African Charter. This Article provides that
Communications should be “Sent after exhausting local remedies, if any,
unless it is obvious that this procedure is unduly prolonged.”
Communication 33/06- Southern Africa Human Rights NGO Network and Others v Tanzania
(2008) ACHPR para 51
8
15
60. In the instant Communication, the Complainant avers two reasons why
local remedies could not be exhausted which will be dealt with by the
African Commission consecutively.
61. Firstly, the Complainant states that due to the circumstances of the
Complaint, it is impossible for the Victim to exhaust local remedies. He
alleges that the Victim was forced to flee Zimbabwe, for fear of his life
after being tortured by the authorities in the Respondent State which was
provoked by his affiliation and activism as a human rights lawyer. Thus,
according to the Complainant, it would be impractical for the Victim to go
back to Zimbabwe and seek remedy from the national courts.
62. In response to the Complainant‟s argument that the Victim could not
exhaust local remedies because he fled the country, the Respondent State
submits that it is not a legal requirement to be physically present in the
country in order to access local remedies as provided in Section 24(1) of the
Constitution of Zimbabwe, Chapter 7.06, Section 50(1) of the High Court Act,
and Chapter 7.05 of the Supreme Court Act.
63. In perusing the Complainant‟s submissions, the African Commission
notes that there are no annexes in the Complaint as indicated by the
Complainant to support his submission, which makes it difficult to
ascertain the veracity of the allegations. It is noteworthy that several
correspondences have been made by the Secretariat to request for
additional information on Admissibility, as well as the annexes that were
said to have been attached to the Complaint. However, despite several
reminders, the Complainant has failed to respond. The African
Commission underscores that, evidence, including medical reports, names
16
of persons who committed the alleged violations, and testimony of
witnesses could corroborate the arguments put forward by the
Complainant.
64. However, in the absence of the annexes mentioned by the Complainant,
the Commission cannot help but agree with the Respondent State that the
Communication is vague. The reason being that the allegations are not
substantiated, and also do not provide enough ground to establish the
element of fear as claimed by the Complainant. This position was also
taken by the African Commission in Obert Chinhamo v Zimbabwe,9
whose facts are similar to the present Communication.
65. In Obert Chinhamo v Zimbabwe, the Complainant claimed that that he
left his country out of fear for his life due to intimidation, harassment and
torture. He described how he was treated while in detention, noting
amongst other things that he was denied food, and that the conditions in
the cells were bad – smelly, small, and that the toilets were overflowing
with urine and other human waste.10 The Commission ruled that the
Complainant simply made general allegations without corroborating
them with documentary evidence or testimony of others.11 The
Commission further held that the Complainant:
…has not shown…the danger he found himself in that necessitated his
fleeing the country. Without concrete evidence to support the allegations
made by the complainant, the Commission cannot hold the Respondent
State responsible for whatever harassment, intimidation and threats that
9
n 7 above.
10
Ibid, para 76.
11
n above.
17
the Complainant alleges he suffered, that made him flee the country for
his life.12
66. Furthermore, the Respondent State has argued that according to Section
24(1) of the Constitution of Zimbabwe (whose content has been verified by
the African Commission), the High Court and Supreme Court Act, the
Complainant need not be physically present in the country to access local
remedies. At this juncture, it is worth noting that in the Mark
Chavhunduka and Ray Choto Case, cited by the Complainant in its
submissions, the applicants applied to the Supreme Court for a
determination under Section 24 of the Constitution of Zimbabwe,13 meaning
that they were not physically present during the time of the application.
67. The Mark Chavhunduka and Ray Choto Case, according to this
Commission, just corroborates the argument raised by the Respondent
State that the Complainant (whether he/she is the Victim or not), can be
represented, without being physically present, in accordance with the
national laws of Zimbabwe.
68. Moreover, in J.E Zitha and P.J.L. Zitha (represented by Prof. Dr. Liesbeth
Zegveld) v Mozambique, the African Commission adopted the same
principle stating that, it has entertained many Communications from
authors on behalf of Victims. The African Commission also noted in that
same Communication that, “Having decided to act on behalf of the victims, it is
incumbent on the author of a Communication to take concrete steps to comply
12
n above.
13
See Zimbabwe: Chavunduka and Choto v. Zimbabwe · Article 19 available at
www.article19.org/.../zimbabwe-chavunduka-and-choto-v.-zimbabwe.
18
with the provisions of Article 56 (5) or to show cause why it is impracticable to do
so.”14
69. The facts in the instant Communication reveal that the Victim who has
fled the country is represented by the Complainant. In view of the
situation at hand, where the Victim is no longer in the country, the
representative of the Victim could have attempted to exhaust local
remedies on behalf of the Victim.
70. The above notwithstanding, even if the representative was not in a
position to exhaust local remedies for whatever reasons, any other person
could have represented the Victim in the local courts as required by
national laws. The African Commission therefore reasons, as was the case
in Obert Chinhamo v Zimbabwe that physical presence is not mandatory
to access local remedies, and so the Complainant cannot claim that local
remedies are not available to him.15 Hence, there was no attempt to
exhaust local remedies and the African Commission will not be swayed by
the fact that the Victim feared for his life.
71. With respect to the second ground submitted by the Complainant for not
exhausting local remedies, the Complainant indicates that domestic
remedies are not available and effective because there is no prospect of
success. He avers that due to the situation of the judicial system in
Zimbabwe, the availability of local remedies is not sufficiently certain,
which is aggravated by the prevailing trend of non-compliance with court
Communication 361/08- J.E Zitha & P.J.L.Zitha (represented by Prof. Dr. Liesbeth Zegveld) v
Mozambique, Para 108.
14
15
n 7 above para 82.
19
orders in the country. The Complainant states that in a number of
decisions rendered by the judiciary, particularly those concerning the
treatment of members of the opposition party, and matters affecting the
executive, there has been a deliberate practice of non-enforcement.
72. In response, the Respondent State argues that contrary to the
Complainant‟s submissions, it has discharged its onus to prove that
remedies are not only available, but also effective. It adds that there is no
indication that the conduct of State Officials impeded the Complainant
from exhausting local remedies, and that the Complainant did not attempt
to exhaust them.
73. An effective remedy according to the African Commission in Sir
DawdaK. Jawara v The Gambia must offer a prospect of success.16 The
African Commission has also held on several occasions that attempts must
be made to exhaust local remedies before concluding that they are not
available, sufficient and effective.
74. In Anuak Justice Council v Ethiopia17 for instance, when the Complainant
showed apprehension in exhausting local remedies, the African
Commission held that, “If a remedy has the slightest likelihood to be effective,
the applicant must pursue it. Arguing that local remedies are not likely to be
successful, without trying to avail oneself of them, will not simply sway the
Commission”. Similarly, in Article 19 v Eritrea,18 the Commission ruled
that “It is incumbent on the Complainant to take all necessary steps to exhaust,
16
Communication 147/95-149/96: Sir Dawda K. Jawara v The Gambia(2000), para 32.
17
Communication 299/05 – Anuak Justice Council v Ethiopia (2006) para. 58.
18
Communication 275/2003, Article 19 v The State of Eritrea (2007), para 65.
20
or at least attempt to exhaust local remedies. It is not enough for the complainant
to cast aspersion on the ability of the domestic remedies of the State due to isolated
incidences”.
75. Furthermore, the premise under Article 56(5) is to give the Respondent
State the opportunity to redress by its own means, within the framework
of its own domestic legal system, the wrong alleged to have been done to
the individual,19 before taking the matter to any international body. Thus,
if the Government argues that a Communication should be declared
inadmissible because local remedies have not been exhausted, it has the
burden to demonstrate that such remedies exist.20
76. In the instant Communication, the Respondent State contends that it has
discharged its onus to show that local remedies are available and effective,
making the burden shift on the Complainant to proof otherwise. In
exercising this burden, the Complainant cites the Cases of Commercial
Farmers Union v The Minister of Lands and Agriculture, land
Resettlement and others,21 and Mark Chavhunduka and Ray Choto v
Zimbabwe as examples to support his argument that the courts in the
Respondent State are ineffective because they do not comply or
implement their decisions.
The Complainant adds that Zimbabwe
Lawyers for Human Rights has documented at least 12 cases since 2000 in
which the State has ignored court rulings. Hence, due to the above
reasons, it is the Complainant‟s submission that the Victim has no
prospect of success in pursuing local remedies in the Respondent State.
19
Communication 71/92 RHADDO v. Zambia (1996) ACHPR para 10.
20
n above para 12.
21
Supreme Court Ruling,( 132-2000).
21
77. The African Commission was faced with a similar situation in Mr. Obert
Chinhamo v Zimbabwe,22 where the Complainant also argued that even if
local remedies were available, they were not effective because the
Respondent State has the tendency of ignoring court rulings taken against
it. . The African Commission held that “It is not enough for a Complainant to
simply conclude that because the State failed to comply with a court decision in
one instance, it will do the same in their own case. Each case must be treated on
its own merits”23.
78. Thus, granted that a remedy must offer a prospect of success, the
Commission can only conclude that it is indeed ineffective if there is proof
beyond reasonable doubt and balance of probability that the remedy,
despite its existence, would indeed not redress the violation(s) alleged.
Nonetheless, in the Communication in question, the Complainant has not
made any attempt to exhaust local remedies, short of saying that they are
not available or effective on the ground that the courts in the Respondent
State do not comply with their decisions.
79. Accordingly, apart from establishing that the evidence before this
Commission is not sufficient to provide clarity on the issues raised, the
Commission is also ascertaining that the Respondent State has not been
given the opportunity to investigate the allegations and provide redress
within its jurisdiction.
22
n 7 above para 83.
n 7 above para 84. See also Communication 308/07 – Michael Majuru v Zimbabwe (2008) ACHPR
paras 101 - 103
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80. Furthermore, the Complainant has not refuted the Respondent State‟s
assertion that it did not impede the Complainant from exhausting local
remedies. According to the African Commission therefore, the State has
discharged its burden to show that local remedies are available and
effective to address the alleged violations. In this regard, the Commission
stands to reason that the Complainant‟s failure to rebut the State‟s
argument that local remedies are available and/or effective, and the
absence of evidence substantiating the allegations portray a serious
element of doubt on the veracity of the Complainant‟s claims.
81. From the foregoing, the African Commission takes the view that available
remedies in the Respondent State have not been tested by the
Complainant. Thus, the requirement in Article 56(5) of the African Charter
has not been met.
82. The last issue of contention in this Communication is the requirement
under Article 56(6) of the African Charter which provides that
“Communications received by the Commission will be considered if they are
submitted within a reasonable period from the time local remedies are exhausted,
or from the date the Commission is seized with the matter…”
83. This Commission notes that the requirement under Article 56(6) of the
African Charter is tied to the requirement of exhaustion of local remedies
so much so that the point of departure of the reasonable time is from the
date of exhaustion of local remedies. In this regard, the African
Commission having ruled that local remedies have not been exhausted by
the Complainant in this Communication, it automatically follows that the
requirement under Article 56(6) of the African Charter is not met.
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Decision of the African Commission on Admissibility
84. Based on the above analysis, the African Commission decides:
i.
To declare the Communication inadmissible because
it does not comply with the requirements under
Article 56 (5) and (6) of the African Charter;
ii.
To give notice of this decision to the parties in
accordance with Rule 107 (3) of its Rules of
Procedure; and
iii.
To attach the decision to its 32nd Activity Report.
Done in Banjul, The Gambia, at the 11th Extra-Ordinary Session of the African
Commission held from 21 February to 1 March 2012
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