308/05 : Michael Majuru / Zimbabwe
Summary of Facts
1. The Complainant, Michael Majuru (hereinafter called the Complainant), submitted this
communication against the Republic of Zimbabwe, (hereinafter called the Respondent State), a State
Party to the African Charter on Human and Peoples’ Rights ( the African Charter). The Complainant is
a citizen of the Respondent State and is currently residing in the Republic of South Africa.
2. The Complainant submits that the Respondent State has committed gross violations of human
rights and fundamental freedoms against him through acts committed by the Minister of Justice, Legal
and Parliamentary Affairs and the Central Intelligence Organisation (CIO) under the Office of the
President and Cabinet.
3. The Complainant alleges further that in committing the gross violations, the aforementioned
organisations, individuals and organs of the state were acting in the course and scope of their
employment as Respondent State’s agents.
4. The Complainant submits further that his rights were abused because of his role as a presiding
judge in a case in which the Associated Newspaper Group of Zimbabwe (ANZ), a publishing house in
the Respondent State, sought to challenge, before the Administrative Court, the Respondent State’s
act on banning ANZ from publishing its two newspapers, the Daily Newsand the Daily News on
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Sunday. The matter was lodged before the Administrative Court on or about 23 September 2003 and
he presided over the matter.
5. The Complainant states that following his decision in favour of the ANZ, he became a target of
human rights abuses brought upon him by agents of the Respondent State and recounts the
chronology of events that depict incidents in which the Respondent State allegedly violated his human
rights.
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6. The first incident is reported to have occurred on or about 24 September 2003. It is alleged that
the Minister of Justice, Legal and Parliamentary Affairs, the Hon. Patrick Chinamasa invited the
Complainant’s workmate, who was also a judge at the Administrative Court (Justice Chipo Machaka)
to his office to issue instructions that the matter relating to the ANZ case that was to be presided over
by the Complainant should be conducted in a manner that the said Minister was going to dictate.
Justice Machaka was instructed by the Minister to convey these instructions to the Complainant, with
an order that Complainant should comply with such orders.
7. It is further alleged that the Minister also instructed that the Administrative Court should delay the
court proceedings until February 2004, noting that the ANZ did not deserve impartial treatment by the
Judiciary because it was a front of western nations and ‘other imperialists’. Secondly, Justice Machaka
is alleged to have been told that if the ANZ were granted its application for urgent appeal hearing and
thereafter allowed publication at that stage this would jeopardise continuing negotiations between
ZANU PF and the Movement for Democratic Change (MDC), (the biggest opposition party in
Zimbabwe), which according to the Minister, had reached a delicate stage. As proof of this delicate
relationship between ZANU PF and MDC, Justice Machaka was shown a draft constitution agreed
upon between the two parties and some other supporting documents.
8. The Complainant submits that the he disregarded the aforesaid instructions and upon considering
the ANZ’s application on its merits ruled in favour of the ANZ by granting the application for an urgent
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appeal hearing on or about 27 September 2003. From 15 to 19 October 2003, the Complainant
presided over the appeal hearing between the two parties. He adjourned the matter for judgement to
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24 October 2003.
9. Subsequently, the Complainant states that he was summoned by Enoch Kamushinda, a
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suspected member of the CIO for a meeting at Kamushinda’s office on 22 October 2003. This
information was conveyed through another CIO operative with instructions that the Complainant
should dismiss the ANZ appeal. As a reward for dismissing the ANZ appeal, Kamushinda promised
the Complainant a fully developed farm in Mashonaland West Province.
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10. The Complainant further states that on 23 October 2003 at around 21:00 hours, the Minister of
Justice, Legal and Parliamentary Affairs Hon. Patrick Chinamasa, telephoned and enquired from the
Complainant whether he had finalised the judgement in the ANZ matter and what decision he had
reached. The Complainant advised him that he was in the process of finalising the judgement and that
he was going to allow the appeal. The Complainant states that the Minister expressed his displeasure
with the said decision and further attempted to unduly influence and/or threaten the Complainant.
11. The Complainant claims that he went ahead to deliver the judgement in favour of ANZ at about
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1600 hours on 24 November 2003. Subsequently, at about 2130 hours, Hon. Chinamasa in an angry
telephone call to the Complainant, accused the latter of pre-determining the matter and berated him
for delivering a judgement dictated by British agents and other imperialist forces.
12. Subsequently, the Media and Information Commission (MIC) appealed to the Supreme Court
against the decision of the Administrative Court. ANZ on the other hand decided to approach the
Administrative Court seeking an order that its original decision be rendered operative notwithstanding
the institution of an appeal by the MIC.
13. The Complainant claims that upon the lodging of this application by the ANZ, the Complainant
was placed under immense pressure from agents of the Respondent State urging him to desist from
dealing with the matter. The Complainant claims that the Respondent sent members of the CIO to
track, trial and monitor the Complainant’s movements and interactions with other people.
14. The Complainant alleges that on several occasions he was approached by Ben Chisvo, a
suspected CIO informer, a former ruling ZANU PF Councillor of the City of Harare and also a war
veteran. Chisvo sought to persuade the Complainant to rescue himself from presiding over the matter,
claiming that the case was serious and sensitive and that President Mugabe did not want the ANZ to
be registered. Chisvo further indicated that the President had set up a team led by a senior assistant
commissioner of Zimbabwe, Changara, to monitor the proceedings in the ANZ matter and confirmed
that the Complainant was being monitored by state security agents.
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15. On 23 November 2003, at around 2300 hours, the Complainant received a telephone call from
Chisvo in which he claimed that his car had had a puncture close to the Complainant’s residence and
requested for assistance. Upon meeting the Complainant, Chisvo demanded to know whether the
former would preside over the ANZ matter or excuse him as previously ordered. The Complainant
informed Chisvo that he would be presiding over the ANZ matter.
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16. The Complainant further alleges that, on 24 November 2003, following the Complainant’s
postponement on the ANZ matter upon the request of the two parties to the case, he received a
telephone call from Hon. Chinamasa at around 21:00 hours. The Complainant states that the Minister
alleged that he had information linking the Complainant to British agents and other imperialists and
that the Complainant was under investigation for these alleged links with the British agents and
imperialists. The Minister also indicated that he was aware through his informants that the ANZ was
going to succeed in the second matter which was pending before the Complainant and advised him
that the Minister of Justice had also phoned her ordering her to meet him at his office the following
morning. She informed the Complainant that the Minister wanted to be advised on how the
Complainant intended to decide the ANZ matter in order for him to brief the Cabinet that morning.
Soon after the telephone call from Justice Machaka, the Minister telephoned the Complainant once
again ordering that they meet the following morning at his office at 0800 hours.
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17. On 25 November 2003, the Complainant met with the Minister as instructed. The Minister
wanted to know what the Complainant’s decision in the ANZ matter would be but the Complainant
declined to inform stating that he had not yet heard the parties’ arguments on the matter and was
therefore in no position to know the outcome. The Complainant alleges that the Minister informed him
that the Police Commissioner Augustine Chuchuri had approached him previous night with information
that the Complainant was under investigation for colluding with British agents over the ANZ matter and
was considering arresting him.
18. The Minister is also reported to have shown the Complainant the Herald newspaper which carried
an article on its front page alleging that the Complainant was under probe over the ANZ matter. The
Minister also produced an affidavit, which he said had been obtained from Chisvo by the Police
Commissioner. In the said affidavit, Chisvo had made statements to the effect that the Complainant
had informed Chisvo that the ANZ matter was predetermined.
19. The Complainant claims that as a result of such sustained and relentless pressure he had no
other option but to excuse himself from the matter. Notwithstanding the recusal, the Complainant
remained under surveillance by state security agents.
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20. The Complainant states that on 1 December 2003, he received a telephone call from a member
of the legal fraternity and the Police informing him that the Respondent State was fabricating a case
against him and that he was to be arrested and incarcerated on unspecified charges as punishment
for defying the Respondent’s orders.
21. The Complainant alleges that fearing for his safety and security; he decided to go into hiding until
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9 December when he fled to South Africa, where he remains in exile.
22. The Complainant submits that he is not the only member of the Judiciary who has been
persecuted but that there is a systematic, consistent and sustained pattern of interference with the
Judiciary by the Executive in the Republic of Zimbabwe.
Complaint
23. The Complainants allege that Articles 3, 5, 8, 9, 14, 15, 16, 18 and 26 of the African Charter on
Human and Peoples’ Rights have been violated.
24. The Complainant requests that the African Commission should:1.
Urge the Respondent State to institute an inquiry and investigation that should result in the
Government of Zimbabwe bringing those who perpetrated the violations to justice;
2.
Order the Respondent State to pay compensation for the physical pain, psychological trauma,
loss of earnings and job and access to family suffered by the Complainant.
Procedure
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25. The Communication is dated 2 November 2005 and was sent by email to the Secretariat, and
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was received on 8 November 2005.
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26. On 17 November 2005, the Secretariat acknowledged receipt of the Communication and
informed the Complainant that the communication would be scheduled for consideration by the African
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Commission at its 38 Ordinary Session.
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27. At its 38 Ordinary Session held from 21 November to 5 December 2005 m Banjul, The
Gambia, the African Commission considered the communication and decided to be seized of it.
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28. By Note Verbale dated 8 December 2005, the Secretariat transmitted a copy of the
communication to the Respondent State by DHL and requested it to forward its submissions on
admissibility within 3 months. The Complainant was also requested to send his submissions on
admissibility within 3 months.
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29. By letter and Note Verbale dated 20 March 2006, the parties to the communication were
reminded to forward their written submissions on admissibility of the communication.
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30. On 3 April 2006, the Secretariat received submissions on admissibility of the communication
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from one Gabriel Shumba. By letter dated 12 April 2006, the Secretariat of the African Commission
wrote to Gabriel Shumba informing him that the communication had been brought before the African
Commission by Michael Majuru who had never made any indication to the African Commission that
Gabriel Shumba could make representations on his behalf. This letter was also copied to the
Complainant Michael Majuru.
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31. As at the 40 Ordinary Session there had been no reply from the Complainant. The
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communication was therefore deferred to the 41 Ordinary Session pending the reply of the
Complainant and Mr Shumba, as well as the Respondent State's submission on admissibility.
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32. By letter and Note Verbale dated 11 December 2006, written to the Complainant and
Respondent State respectively, the parties were informed by the Secretariat, about the decision of the
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African Commission during its 40 Session, to consider the admissibility of the communication during
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its 41 Session. The parties were asked to send their submissions on admissibility within 3 months of
receiving the letters.
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33. The Complainant sent an email on 18 December 2006, confirming that Zimbabwe Exiles Forum
to which Gabriel Shumba is the Executive Director are his agents in the matter and that the Secretariat
should acknowledge submissions made by them.
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34. By Note Verbale dated 4 January 2007, the Secretariat reminded the Respondent State of the
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Commission’s decision during its 40 Ordinary Session, and asked them to make their submissions on
admissibility within 3 months of receipt of the notification. Another reminder by way of a Note Verbale
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dated 10 April 2007 was also sent to the Respondent State.
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35. On 24 April 2007, the Secretariat received the Respondent State’s submission on admissibility.
The Respondent State’s submission was forwarded to the Complainant by email and he was asked to
make additional submissions (if any), in order to address some important points which were raised by
the Respondent State in its submission.
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36. During its 41 Ordinary Session, the African Commission decided to defer consideration of the
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communication to its 42 Ordinary Session for its decision on admissibility.
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37. By letter ACHPR/LPROT/ COMM/308/2005/ZIM/TN dated 20 July 2007 and by Note Verbale
ACHPR/LPROT/COMM/308/2005/ZIM/RE, with the same date, the parties were informed of the
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decision of the African Commission to defer consideration of the communication to its 42 Ordinary
Session.
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38. At its 42 Ordinary session held in Brazzaville, Republic of Congo, the Commission considered
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this communication and decided to defer further consideration into the 43 Ordinary Session due to
lack of time.
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39. By Note Verbale of 19 December 2007 and letter of the same date, the Secretariat of the
Commission notified both panics of the Commission’s decision.
Law
Admissibility
Complainant’s submission on admissibility
40. The Complainant submitted that he has local standing before the African Commission as the
communication is brought by himself, a citizen of Zimbabwe, the Respondent State in this matter.
Regarding compatibility, the Complainant submitted that the communication raises a prima
facie violation of the African Charter committed by the Respondent State. He submitted further that the
evidence he has submitted reveals that the communication is not based exclusively on news
disseminated by the mass media, adding that it is based on first hand evidence - including reports by
reputable human rights organisations.
41. On the exhaustion of local remedies, the Complainant submitted that the onus is on the State to
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demonstrate that remedies are available, citing the Commission’s decisions in the cases of and , .
The Complainant added that he remedy in his particular circumstance is not available because he
cannot make use of it that he was forced to flee Zimbabwe for fear of his life and that of his immediate
family. Because of his work as a judge of the Administrative Court. That he fled to the Republic of
South Africa following threats of arrest and unspecified harm by the Respondent State.
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42. The Complainant drew the Commission’s attention to its decision on , where the Commission
held that a Complainant’s inability to pursue local remedies following his flight for fear of his life to
Benin, and was subsequently granted asylum was sufficient to establish a standard for constructive
exhaustion of local remedies. He concluded by noting that considering the fact that he was no longer
in the Respondent State’s ternary where remedies could be sought. And that he fled the country
against his will due to threat to his life; remedies could not be pursued without impediments.
43. The Complainant also challenged the effectiveness of the remedies noting that remedies are
effective only where they offer a prospect of success. He claimed the Respondent State’s reaction to
court rulings that go against it is well documented by reputable international and African NGOs, noting
that the Respondent State treats court rulings that go against it withindifference and disfavour, and
that he does not expect that in his case, any decision of the court would be adhered to. He said there
was a tendency in the Respondent State to ignore court rulings that went against it and added that the
Zimbabwe Lawyers for Human Rights had documented at least 12 instances where the State had
ignored court rulings since 2000. He cited the ruling of the High Court in the Commercial Farmers
Union, the Mark Chavunduka and Ray Choto cases, where, in the latter case, the duo were allegedly
abducted and tortured by the army. He concluded that given the prevailing circumstances and the
nature of his complaint and the Respondent State’s well publicised practice of non-enforcement of
court decisions, his case had no prospect of success if local remedies were pursued and according to
him, not worth pursuing. Finally, the Complainant submitted that he could not have exhausted local
remedies as any such exhaustion would have to comply with the States Liabilities Act which prevents
the Complainant from suing the Respondent State after the expiration of two months of the date of the
incident complained of, no prior notice has been given.
44. The Complainant further submitted that the communication was submitted 22 months after the
violation because he hoped that the situation in the country would improve to enable him utilise
domestic remedies. He said there is instead a deterioration of the situation and hope of improvement
is highly unlikely in the near future, adding that “continuing to wait whilst the Complainant is
undergoing tremendous psychological torture and suffering attributable to his persecution will
undoubted cause irreparable harm”. The Complainant added that since he fled to South Africa he has
been undergoing psycho-therapy and was not in a position to submit his communication to the
Commission.
45. The Complainant indicated other reasons that prevented him from submitting his complaint on
time, including the fact that the judiciary abides by a code of conduct in terms of which they do not
ordinarily speak out and take positions against the establishment, noting that out of eight or so
members who have left Zimbabwe because of persecution, he is the only one who was speaking out.
He added that he was afraid for the lives of members of his immediate family that were at risk of
persecution because of him and that he was unable to submit immediately for want of resources and
facilities, noting that the submission was made possible through the assistance and support of well
wishers.
46. Finally, Complainant further submitted that the communication had not been before any other
international body for settlement as required by Article 56.7.
Respondent State’s submission on admissibility
47. The Respondent State briefly restated the facts of the communication and indicated that it will
attend to the matters of fact, pertaining to the complaint “in order to put the communication in proper
perspective”. The State submitted that the Complainant was appointed to the Office of Administrative
Court President in terms of Section 79 of the Constitution at Zimbabwe, read together with the
Administrative Court Act. The State added that while performing his functions as a Magistrate,
Presidents of the Administrative Court are not judges, noting that in essence, the Complainant was not
a judge.
48. According to the State, the Complainant was supposed to be in a court in Bulawayo, but due to
his poor health and his relationship with the Minister of Justice, he was appointed to the Administrative
Court in Harare. The State noted that Complainant was a sick man throughout his whole duration at
the court and added that “in fact from the time of his appointment as a Court President, the
Complainant used to travel to South Africa to seek medical attention”.
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49. The State claims that Complainant applied for two weeks vacation from 9 to 31 December
2003 and went to South Africa for medical attention. That he then tendered his resignation on
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14 January 2004. The State observed that even though the letter has a Zimbabwean address, an
examination of the delivery slip showed that it had been dispatched from South Africa. The State
concluded that the above circumstances which show how Complainant left the country do not amount
to forced flight as he claims.
50. The State questioned why Complainant would take steps to regularise his absence from office by
applying for vacation leave and tender his resignation to the Minister who was threatening him.
Without producing any document title, the State added that it is apparent from the documents
available that he was maintaining dialogue with a government which he claims was persecuting him.
The State observed further that the letter of resignation even showed the address Complainant was
residing and “assuming the government of Zimbabwe really wanted his life, it would have used the
address he had volunteered to track him”. The State concluded by stating that the truth is that
[the] “Complainant was never threatened by anyone, anywhere both within and outside Zimbabwe”.
51. On the admissibility of the communication, the State argued that the communication be declared
inadmissible for non-compliance with the provisions of Articles 56(2), (5) and (6) of the Charter.
52. The State argued that the communication is not compatible as required by Article 56.2 of the
Charter, as it makes general allegations without substantiating, adding that, for a complaint to be
compatible with the Charter or the Constitutive Act, it must prove a prima facie violation of the Charter.
According to the State, the facts raised in the communication do not raise any violation of the Charter,
noting that “basically the facts and issues in dispute do not fall within the rationae personae of the
jurisdiction of the Commission”.
53. On the exhaustion of local remedies under Article 56.5, the State submitted that local remedies
were available to the Complainant, citing section 24 of the Constitution of Zimbabwe which provides
the course of action to be taken where there is human rights violation. The State added that there is
no evidence to prove that the Complainant pursued local remedies. The State further indicated that in
terms of Zimbabwe law, where one is engaged in acts that violate the rights of another person, that
other person can obtain an interdict from the court restraining the violator from such act.
54. On the effectiveness of the remedies, the State submitted that the Constitution provides for the
independence of the judiciary in the exercise of its mandate in conformity with both the UN Principles
on an Independent Judiciary and the African Commission’s Guidelines on the Right to Fair Trial.
55. The State dismissed the Complainant’s argument that his case is similar to those brought by Sir
Dawda Jawara / The Gambia and Rights International (on behalf of Charles Baridorn Wiwa) / Nigeria,
adding that in the latter cases, there was proof of real threat to life, the State went further to indicate
instances where the government has implemented court decisions that went against it.
56. The State further indicated that in terms of Zimbabwe law, it is not a legal requirement for a
Complainant to be physically present in the country in order to access local remedies, adding that both
the High Court Act and the Supreme Court Act permit any person to make an application to either
court through his/her lawyer. The State added that in the Ray Choto and Mark Chavhunduka case, the
victims were tortured by State agents and they applied for compensation while they were both in the
United Kingdom and succeeded in their claim. The State concluded that the Complainant is not barred
from pursuing remedies in a similar manner.
57. The State further submitted that since his resignation, the government of Zimbabwe continues to
pay the Complainant his pension benefits and argued that the excuse raised by the Complainant of
lack of resources to enable him submit his complaint on time is therefore without merit adding that he
could have instructed his counsel in Zimbabwe to attend to his claim on his behalf.
58. According to the State, the Complainant sought to mislead the Commission by claiming that
under the State Liabilities Act, claims against the State are prescribed within a period of sixty days.
The State indicated that section 6 of the Act is clear that the sixty days is in respect of a notice of
intention to sue. The Act prescribes that a summons against [the] State in certain matters must be
delivered sixty days after the notice of intention to sue, and according to the State, this would actually
work well for the Complainant, adding that the period of proscription of claims is three years and
Complainant’s claim was not yet three years and thus not prescribed.
59. The State also submitted that the complaint does not conform to Article 56.6 of the Charter
indicating that the communication should be lodged within a reasonable time after exhaustion of local
remedies, but where Complainant realises that local remedies shall be unduly prolonged, he/she must
submit the complaint to the Commission immediately. According to the State, although the Charter
does not specify what constitute a reasonable time, the Commission should get inspiration from the
other jurisdictions, including the Inter-American Commission which has fixed six months as reasonable
time, adding that even the draft protocol merging the African Court of Justice and the African Court on
Human and Peoples’ Rights provides for six months.
60. The State argued that the communication was submitted 22 months after the alleged violation,
which according to the State “was filed well out of time”. On Complainant’s submission that he had
been seeking psycho therapy treatment, the State argued that [the] Complainant had been the centre
of attraction in South Africa since 2004, demonising the Respondent State, adding that articles
published by [the] Complainant in the South African press do not show someone with a psychological
ailment. The State added that no proof had been given of the alleged treatment or an expert diagnosis
of how such condition was acquired. On [the] Complainant’s claim that he had no resources, the State
argued that he had his pension benefits which he could have used to submit his complaint to the
Commission.
61. The State concluded its submissions by noting that “no cogent reasons have been given for the
failure to pursue local remedies or remedies before the Commission within a reasonable time”, and as
such the communication should be declared inadmissible.
Competence of the African Commission
62. In the present communication, the Respondent State raises a question regarding the competence
of the African Commission to deal with this communication. The State avers that: “... basically the facts
and issues in dispute do not fall within the rationae materae and rationae personae of the jurisdiction
of the Commission”. This statement thus challenges the competence of the African Commission to
deal with this communication. The Commission will thus, first deal with the preliminary issue of its
competence raised by the Respondent State.
63. Black’s Law Dictionary defines rationae materae as “by reason of the matter involved; in
consequence of, or from the nature of, the subject-matter”. While rationae personae is defined as “By
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reason of the person concerned; from the character of the person".
64. Given the nature of the allegations contained in the communication, such as allegations of
violation of personal integrity or security, intimidation and torture, the Commission is of the view that
the communication raises material elements which may constitute human rights violation, and as such,
it has competence rationae materae to deal with the matter, because the communication alleges
violations to human rights protected in the Charter. With regards to the Commission's
competencerationae personae, the communication indicates the name of the author, an individual,
whose rights under the African Charter, the Respondent State is committed to respecting and
protecting. With regards to the State, the Commission notes that Zimbabwe, the Respondent State in
this case, has been a State Party to the African Charter since 1986. Therefore, both the Complainant
and the State have locus standi before the Commission, and the Commission thus has
competence rationae personae to examine the communication.
65. Having decided that it has competence rationae materae and rationae personae, the African
Commission will now proceed to pronounce on the admissibility requirements and the contentious
areas between the parties.
Decision of the African Commission on admissibility
66. The admissibility of communications before the African Commission is determined by the
requirements of Article 56 of the African Charter. This article provides seven requirements which must
all be met before the Commission can consider and declare a communication admissible. It one of the
conditions/requirements is not met the Commission shall declare the Communication inadmissible,
unless the Complainant provides justifications why any of the requirements could not be met.
67. ln the present communication, the Complainant avers that his complaint meets the requirements
under Articles 56 (1) to(4), (6) and (7). He admits that he did not attempt to comply with the
requirement provided under Article 56.5 dealing with the exhaustion of local remedies, but added that
given the nature of his case, and the circumstances under which he left the Respondent State, and is
living in South Africa, the exception rule under this sub-section of Article 56, should be invoked.
68. The State on the other hand argues that the Complainant thus not complied with the provisions
of Articles 56 (2), (5) and(6) of the Charter, and urges the Commission to declare the communication
inadmissible, based on non-compliance with these requirements.
69. The African Commission will thus examine each of the provisions under Article 56 of the African
Charter, whether it is disputed of not, as the African Commission has a responsibility to ensure that
every requirement in Article 56 has been fulfilled before admitting a communication.
70. The requirements under Article 56 of the Charter are meant to ensure that a communication is
properly brought before the Commission, and seek to sieve frivolous and vexatious communications
before they reach the merits stage. Thus declaring a communication admissible does not mean the
Slate Party concerned has violated the provisions of the Charter. It simply means that the
communication meets the requirements necessary for it to be considered on the merits. As indicated
earlier, for a communication to be declared admissible, it must meet all the requirements under Article
56. Therefore, it a party contends that another party has not complied with one of the requirements,
the Commission must pronounce itself on the contentious issues between the parties, as well as the
non-contentious issues.
71. Article 56.1 of the African Charter provides that communications will be admitted if they indicate
their authors, even if they request anonymity. In the present case the author of this communication is
identified as Michael Majuru, he has also not requested that his identity be hidden. The respondent
State has also been cleared identified as the Republic of Zimbabwe. Therefore the provision of Article
56.1 has been adequately complied with.
72. Article 56.2 of the African Charter provides that a communication must be compatible with the
Charter of the OAU (now Constitutive Act of the African Union) or with the African Charter on Human
and Peoples’ Rights In the present communication, the Respondent State argues that the
communication does not comply with this requirement. The State asserts in this regard that, for a
complaint to be compatible with the Charter or the Constitutive Act, it must prove a prima
facie violation of the Charter.
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73. Compatibility denotes ‘in compliance’ or ‘in conformity with’ or ‘not contrary to’ or ‘against’. In the
present communication, the Complainant alleges among others, violations of his right to personal
integrity and being subjected to intimidation, harassment and psychological torture lie alleges further
that agents of the intelligence service of the Respondent State constantly harassed him and prevented
him from exercising his duties freely. These allegations do raise a prima facieviolation of human rights.
In particular, the right to the security of the person or personal integrity and the fight to work under
satisfactory condition as stipulated in the Charter. In the jurisprudence of this Commission,
Complainants need not specify which articles of the Charter have been violated, or even which right is
being invoked, so long as they have raised the substance of the issue in question. That, in the view of
the Commission, has been established in this case. Based on the above, the African Commission is
satisfied that the requirement of Article 56.2 of the African Charter has been sufficiently compiled with.
74. Article 56.3 of the Charter provides that a communication will be admitted if they are not written in
disparaging or insulting language directed against the State concerned and its institutions or to the
Organisation of African Unity (now the African Union). In the present case, the communication sent by
the Complainant, does not, in the view of the, African Commission, contain any disparaging or
insulting language, and as a result of this, the requirement of Article 56.3 has been fulfilled.
75. Article 56.4 of the Charter provides that the communication must not be based exclusively on
news disseminated through the mass media. This communication was submitted by the Complainant
himself and gives an account of his personal experience with the law enforcement agents of the
Respondent State. As a result of this, the requirement of Article 56.4 has also been met.
76. Article 56.5 of the Charter provides that a communication will be admitted only after all local
remedies have been exhausted. The Respondent State contends that the Complainant has not
brought his case before the courts of the State in compliance with this provision of the Charter. The
State argues that there are sufficient and effective local remedies available to the Complainant in the
State, and the Complainant has not sought these remedies before bringing the present communication
before the Commission. On the other hand, the Complainant argues that since he had to flee the
country due to fear for his life, he could not come back to the country to pursue these local remedies.
77. The rationale for the exhaustion of local remedies is to ensure that before proceedings are
brought before an international body, the State concerned must have the opportunity to remedy the
matter through its own local judicial system. This prevents the international tribunal from acting as a
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court of first instance, rather than as a body of last resort.
78. Three major criteria could be deduced from the practice and Jurisprudence of the Commission in
determining compliance with this requirement namely: the remedy must be available,
effective and sufficient.
79. ln , the Commission stated that “a remedy is considered available if the petitioner can pursue it
without impediment: it is deemed effective if it offers a prospect of success, and it is found sufficient if
it is capable or redressing the complaint”. In , which both parties have cited, the Commission held
that “the existence of a remedy must be sufficiently certain, not only in theory but also in practice,
failing which, it will lack the requisite accessibility and effectiveness. … Therefore, if the applicant
cannot turn the judiciary of his country because of fear for his life (or even those of his relatives), local
remedies would be considered to be unavailable to him”.
80. The Complainant in the present communication on claims that he left his country out of fear for
his life due to intimidation, harassment and undue influence in the exercise of his duties. The
Complainant has also alleged a history of non-compliance with the orders of the court of the
Respondent, and alleges that a human rights NGO in Zimbabwe - the Zimbabwe Lawyers for Human
Rights, has documented 12 cases since the year 2000, where the State has ignored court rulings that
go against it. According to the Complainant, it is noteworthy that although local remedies may be
available in the Respondent State, there is no assurance of its effectiveness or its implementation due
to the fact that if the court rules in favour of the Complainant, there is no guarantee that the ruling will
be complied with by the State.
81. The Complainant cited the African Commission’s decisions in the Jawara case and the cases
7
8
of Alhassan Abubakar v Ghana . and Rights International v Nigeria in which he said the Commission
found that the Complainants in these cases could not be expected to pursue domestic remedies in
their country due to the fact that they had fled their country and were in fact residing outside their
country at the time the communications were brought before the Commission.
82. Having studied the Complainant’s submissions, and comparing it with the above cases cited in
support of his claim, this Commission is of the opinion that the above cases cited by the Complainant
are not similar to his case. In the Jawara case for example, the Complainant was a former Head of
State who had been overthrown in a military coup. Mr Jawara alleged that after the coup, there
was, “blatant abuse of power by.... the military junta”. The military government was alleged to have
initiated a reign of terror, intimidation and arbitrary detention. He further alleged the abolition of the Bill
of Rights as contained in the 1970 Gambia Constitution by Military Decree No. 30/31, ousting the
competence of the courts to examine or question the validity of any such Decree. The communication
alleged the banning of political parties and of Ministers of the former civilian government from taking
part in any political activity. The communication further alleged restrictions on freedom of expression,
movement and religion. These restrictions were manifested, according to the Complainant, by the
arrest and detention of people without charge, kidnappings, torture and the burning of a mosque.
83. In the case, the Commission concluded that “the Complainant in this case had been overthrown
by the military, he was tried in absentia former Ministers and Members of Parliament of his
government have been detained and there was terror and fear for lives in the country. There is no
doubt that there, was a generalised fear perpetrated by the regime as alleged by the Complainant.
This created an atmosphere not only in the mind of the author but also in the minds of right thinking
people that returning to his country at that material moment, for whatever reason would be risky to his
life. Under such circumstances, domestic remedies cannot be said to have been available to the
Complainant”. The Commission finally noted that, “it would be an affront to common sense and logic to
require the Complainant to return to his country to exhaust local remedies”.
84. In the case, it should be recalled that Mr Alhassan Abubakar was a Ghanaian citizen who was
arrested by the Ghanaian authorities in the 1980s for allegedly cooperating with political dissidents. He
was detained without charge or trial for over 7 years until his escape from a prison hospital on
th
19 February 1992 to Cote d’lvoire. After his escape, his sister and wife who had been visiting him in
Cote d’lvoire, were arrested and held for two weeks in an attempt to get information on the
Complainant's whereabouts. The Complainant’s brother informed him that the police have been given
false information about his return, and have on several occasions surrounded his house, searched it,
and subsequently searched for him in his mother’s village.
85. In the early part of 1993, the UNHCR in Cote d’lvoire informed the Complainant that they had
received a report on him from Ghana assuring that he was free to return without risk of being
prosecuted for fleeing from prison. The report further stated that all those detained for political reasons
had been released. [The] Complainant on the other hand maintained that there is a law in Ghana
which subjects escapees to penalties from 6 months to 2 years imprisonment, regardless of whether
the detention from which they escaped was lawful or not. On the basis of the above, the Commission
held that “considering the nature of the complaint it would not be logical to ask the Complainant to go
back to Ghana in order to seek a remedy from national legal authorities. Accordingly, the Commission
does not consider that local remedies are available for the Complainant”.
9
86. In Rights International , the victim, a certain Mr Charles Baridorn Wiwa, a Nigerian student in
Chicago was arrested and tortured at a Nigerian Military Detention Camp in Gokana. It was alleged
rd
that Mr Wiwa was arrested on 3 January 1996 by unknown armed soldiers in the presence of his
rd
mother and other members of his family and remained in the said Military detention camp from 3 to
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9 January 1996. While in detention, Mr Wiwa was horsewhipped and placed in a cell with forty-five
other detainees. When he was identified as a relative of Mr Ken Saro Wiwa he was subjected to
various forms at torture. Enclosed in the communication was medical evidence of Mr Wiwa’s physical
torture. After 5 days in the detention camp in Gokana, Mr Wiwa was transferred to the State
Intelligence Bureau (SIB) in Port Harcourt. Mr Wiwa was held from 9-11 January 1996, without access
to a legal counsel or relatives, except for a five minutes discussion with his grandfather. On
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11 January 1996, Mr Wiwa and 21 other Ogonis were brought before the Magistrate Court 2 in PortHarcourt, charged with unlawful assembly in violation of Section 70 of the Criminal Code Laws of
Eastern Nigeria 1963. Mr Wiwa was granted bail, but while out on bail some un-known people
believed to be government agents abducted him and threatened his life by forcing him into a car in
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Port-Harcourt. On the advice of human rights lawyers, Mr Wiwa fled Nigeria on 18 March 1996 to
Cotonou Republic of Benin, where the UN High Commissioner for Refugees declared him a refugee.
th
On September 17 1996, the US government granted him refugee status and he has been residing in
the United States since then.
87. In this case, the African Commission declared the communication admissible on grounds that
there was lack of available and effective domestic remedies for human rights violations in Nigeria
under the military regime. It went further to assert that“the standard for constructive exhaustion of
domestic remedies is satisfied where there is no adequate or effective remedy available to the
individual. In this particular case, Mr Wiwa was unable to pursue any domestic remedy following his
flight for fear of his life to the Republic of Benin and the subsequent granting of refugee status to him
by the United States of America”.
88. The present communication brought by Mr Michael Majuru should also be differentiated
10
from Gabriel Shumba v Republic of Zimbabwe . In the Shumba case, the Complainant alleged that,
he, in the presence of 3 others, namely Bishop Shumba, Taurai Magayi and Charles Mutama was
taking instructions from one of his clients, a Mr John Sikhala, in a matter involving alleged political
harassment by members of the Zimbabwe Republic Police (ZRP). Mr John Sikhala is a Member of
Parliament from the Movement for Democratic Change (MDC), which is an opposition party in
Zimbabwe. At about 11:00 pm riot police accompanied by plain-clothes policemen and personnel
identified to be from the Central Intelligence Organisation (CIO) stormed the room and arrested
everyone present. During the arrest, the Complainant’s law practising certificate, diary, files,
documents and cell phone were confiscated and he was slapped and kicked several times by, among
others, the Officer in Charge of Saint Mary’s Police Station.
89. The Complainant and the others were taken to Saint Mary’s Police Station where he was
detained without charge and denied access to legal representation. He was also denied food and
water. The Complainant claimed that on the next day following his arrest he was removed from the
cell, a hood was placed over his head and he was driven to an unknown location where he was led
down what seemed like a tunnel to a room underground. The hood was removed, he was stripped
naked and his hands and feet were bound in a foetal position and a plank was thrust between his legs
and arms. While in this position, the Complainant was questioned and threatened with death by about
15 interrogators. The Complainant further alleged that he was also electrocuted intermittently for 8
hours and a chemical substance was applied to his body. He lost control of his bodily functions,
vomited blood and he was forced to drink his vomit. The Complainant submitted a certified copy of the
medical report describing the injuries found on his body. Following his interrogation, at around 7pm of
the same day, the Complainant was unbound and forced to write several statements implicating him
and several senior MDC members in subversive activities. At around 7:30pm he was taken to Harare
Police Station and booked into a cell. On the third day of his arrest, his lawyers who had obtained a
High Court injunction ordering his release to court were allowed to access him. The Complainant was
subsequently charged under section 5 of the Public Order and Security Act that relates to organising,
planning or conspiring to overthrow the government through unconstitutional means. He then fled
Zimbabwe for fear of his life.
90. In the above cases, there is one thing in common - the clear establishments of the element of
fear perpetrated by identified state institutions fear which in the case, the Commission observed that “it
would be reversing the clock of justice to request me complainant to attempt local remedies”.
91. In the communication under consideration however, Mr Michael Majuru alleges that he fled the
country for fear of his life, that he was intimidated and harassed by the Minister of Justice and by
suspected state agents. He also indicated that he received “a telephone call from a sympathetic
member of the legal fraternity and the police that the Respondent State was fabricating a case against
him and that he was to be arrested and incarcerated on unspecified charges as punishment for
defying the Respondent’s orders”.
92. In this communication, it is clear that the Complainant has simply made general accusations and
has not corroborated his allegations with documentary evidence, sworn affidavits or testimonies of
others. He claims the Minister sent an Instruction through a colleague of his but there is no way of
ascertaining this fact. The applicant was the President of the Administrative Court, and has not show
how the instruction purportedly sent by the Minister through the Complainant’s colleague, who the
Commission is not told the kind of influence he had over the Complainant, could have or did intimidate
him. Apart from the direct telephone call the Complainant claims he received from the Minister on
23rd October and 24th November 2003, all the alleged threats intimidations and harassment he claims,
were perpetrated by persons he suspects were government agents. Most of his allegations are
unsubstantiated. For example, he indicated in paragraph 2.5.4.7 of his submissions that “the Minister
expressed his displeasure with the said decision and further attempted to unduly influence and/or
threaten the Complainant”. He fails to show how this attempted influence or threat by the Minister was
carried out.
93. It is further observed by the Commission that the alleged threat or pressure claimed by the
Complainant to have been meted by Enoch Kamushinda, who the complainant himself refers to as a
suspected Central Intelligence Organisation (CIO) operative, has not been substantiated: neither has
the purported pressure and entrapment alleged to have been made by Mr Ben Chisvo who according
to the Complainant, is a suspected CIO informer. Furthermore, the Complainant alleged he received a
telephone call from a sympathetic member of the legal fraternity and the police that the Respondent
State was fabricating a case against him, and that he was to be arrested and incarcerated on
unspecified charges as punishment for defying the Respondent’s orders. All the above allegations are
not substantiated take the latter for example, what if the “sympathetic member of the legal
fraternity” was a hoax? What if he was acting on his own or wanted to benefit from the misfortune of
the Complainant? His or her name is not even known.
94. It is not possible for the Commission to determine the level of intimidation or harassment that is
needed to instil fear in a person to force that person to flee for their life. However, in the instant case,
there is no concrete evidence to link the Complainant’s fear to the Respondent State.
95. It is therefore the opinion of the Commission that the Complainant has not sufficiently
demonstrated that his life or those of his close relatives were threatened by the Respondent State,
forcing him to flee the country, and as such, cannot hold that the Complainant left the country due to
threats and intimidation from the State.
96. However, the question is, having left the country, could the Complainant still have exhausted
local remedies or better still is he required to exhaust local remedies?
97. The first test that a local remedy must pass is that it must be available to be exhausted. The
11
word “available” means “readily obtainable”, [/quote]“accessible”[/quote] ; or “attainable, reachable
on call, on hand ready, present; … convenient, at one’s service, at one’s command, at one’s disposal,
12
at one’s beck and call” . According to the African Commission, a remedy is considered to be
available if the petitioner can pursue it without impediments or if he can make use of it in the
13
circumstances of his case. In the present communication, the question to be asked is whether there
were remedies available to the Complainant even from outside the Respondent State?
98. The State indicates that in terms of its laws, a Complainant need not be physically present in the
country in order to access local remedies, adding that both the High Court Act and the Supreme Court
Act permit any person to make an application to either court through his/her lawyer. In support of this,
the State cited the Ray Choto and Mark Chavhundukacase where the victims were tortured by state
agents and they applied for compensation while they were both in the United Kingdom and succeeded
in their claim. The State concluded that the Complainant is not barred from pursuing remedies in a
similar manner. The State further argues that since his resignation, the government of Zimbabwe
continues to pay the Complainant his pension benefits which he could have used to instruct his
counsel in Zimbabwe to attend to his claim on his behalf.
99. The Complainant does not dispute the availability of local remedies in the Respondent State, but
argues that in his particular case, having fled the country for fear of his life, and now out of the country,
local remedies are not available to him.
100. The African Commission holds the view that having failed to establish that he left the country
involuntarily, and the view of the fact that in Zimbabwe law, one need not be physically in the country
to access local remedies; the Complainant cannot claim that local remedies were not available to him.
101. The Complainant argues that even if local remedies were available, they were not effective
because the State has the tendency of ignoring court rulings taken against it, citing among others, the
High Court decision in the Commercial Farmers Union and the Ray Choto and Mark
Chavhunduka cases, and added that the Zimbabwe Lawyers for Human Rights has documented at
least 12 instances where the state has ignored court rulings since 2000.
102. The Rules of Procedure of the African Commission provide that “the Commission shall
14
determine questions of admissibility pursuant to Article 56 of the Charter” .. Generally the rules
require applicants to set out in their submissions the steps taken to exhaust domestic remedies. They
must provide some prima facie evidence of an attempt to exhaust local remedies. The Human Rights
Committee has stated that the mere fact that a domestic remedy is inconvenient or unattractive, or
does not produce a result favourable to the petitioner does not, in itself, demonstrate the lack of
15
16
exhaustion of all effective remedies. In the Committee’s decision on A v Australia , it held that
[quote]“mere doubts about the effectiveness of local remedies or prospect of financial costs involved
17
did not absolve the author from pursuing such remedies” . In Article 19 v Eritrea, the Commission
held that “it is incumbent on the Complainant to take all necessary steps to exhaust, or at least attempt
the exhaustion of 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”. The European Court of Human
Rights on its part has held that even if the applicants have reason to believe that available domestic
remedies and possible appeals will be ineffective, they should seek those remedies since “it is
generally incumbent on an aggrieved individual to allow the domestic courts the opportunity to develop
18
existing rights by way of interpretation”.1
103. From the above analysis, this Commission is of the view that the Complainant ignored to utilise
the domestic remedies available to him in the Respondent State, which had he attempted, might have
yielded some satisfactory resolution of the complaint.
104. Article 56.6 of the Charter 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 ...” The Respondent State
contends that the present communication on was not submitted on time by the Complainant, as
required by the African Charter.
th
105. The present communication was received at the Secretariat of the Commission on 8 November
nd
2005 (even though dated 2 November 2005). It was considered for seizure by the Commission in
November 2005, that is, two years after the Complainant allegedly fled from the country. The
Complainant never approached the courts of the Respondent State. He left the country in December
2003 and only seized the Commission twenty two months later. The Complainant submits without
substantiating that he had been undergoing psychotherapy while in South Africa, and also indicated
that he did not have the financial means to bring the case before the Commission. He also stated that
he had hoped the situation in the country would improve to enable him utilise domestic remedies but
there was instead a deterioration.
106. The Commission notes that the Complainant is not residing in the Respondent State and notes
further that the Complainant indicated that he was prevented from submitting his complaint on time,
because the judiciary abides by a code of conduct in terms of which they do not ordinarily speak out
and take positions against the establishment, noting that out of eight or so members who have left
Zimbabwe because of persecution, he is the only one who was speaking out. He added that he was
afraid for the lives of members of his immediate family that were at risk of persecution because of him.
107. The State on its part argues that “no cogent reasons have been given for the failure to pursue
local remedies or remedies before the Commission within reasonable time”. The State submits that the
communication was submitted 22 months after the alleged violation, which according to the State “was
filed well out of time”. On Complainant’s submission that he had been seeking psycho-therapy
treatment, the State argued that Complainant had been the centre of attraction in South Africa since
2004 demonising the Respondent State adding that articles published by the Complainant do not
show someone with a psychological aliment. The State added that no proof had been given of the
alleged treatment or an expert diagnosis of having such condition was acquired. On Complainant’s
claim that he had no resources, the State argued that he had his pension benefits which he could
have used to submit his complaint to the Commission.
108. The Charter does not provide for what constitutes “reasonable period”. However, the
19
Commission has the mandate to interpret the provisions of the Charter and in doing so; it takes
cognizance of its duty to protect human and peoples’ rights as stipulated in the Charter. The provisions
of other international regional instruments like the European Convention on Human Rights and
Fundamental Freedoms and the Inter-American Convention on Human Rights, are almost similar and
state that they “... may only deal with the matter ... within a period of six months from the date on
20
which the final decision was taken” , after this period has elapsed the Court/Commission will no
longer entertain the communication.
109. The Commission is urged in Articles 60 and 61 of the Charter to consider as subsidiary
measures to determine the applicable principles of law “other general or special international
instruments, laying down rules expressly recognised by member states of the African Union.” Going by
the practice of similar regional human rights instruments, such as the inter-American Commission and
Court and the European Court, six months seem to be the usual standard. This not withstanding, each
case must be treated on its own merit. Where there is good and compelling reason why a Complainant
could not submit his/her complaint for consideration on time, the Commission may examine the
complaint to ensure fairness and justice.
110. In the present communication, the arguments advanced by the Complainant as impediments for
his late submission of the complaint do not appear convincing. The complainant does not supply the
Commission with medical proof to indicate he was suffering from mental problems, he does not
indicate what gave him the impression that things might improve in Zimbabwe, alter he himself noted
in his complaint that since 2000 there has been documented evidence to show that things were
deteriorating, including the fact that the government does not respect court judgments. Even if the
Commission accepts that he fled the country and needed time to settle, or that he was concerned for
the safely of his relatives, twenty two (22) months after fleeing the country is clearly beyond a
reasonable man’s understanding of reasonable period of time. The African Commission thus holds
that the submission of the communication was unduly delayed and thus does not comply with the
requirements under Article 56.6 of the Charter.
Holding
111. Article 56.7 of the African Charter provides that the communication must not deal with cases
which have been settled by the States, in accordance with the principles of the United Nations, or the
Charter of the OAU or the African Charter. In the present case, this case has not been settled by any
of these international bodies, and as a result of this, the requirement of Article 56.7 has been fulfilled
by the Complainant. The African Commission finds that in the present communication, that is,
Communication 308/05 - Michael Majuru/Zimbabwe, the Complainant has not complied with subsections (5) and (6) of Article 56 of the African Charter, and thus declares the communication
inadmissible.
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Adopted at the 44 Ordinary Session of the African Commission on Human and Peoples’ Rights, 10 th
24 November 2008, Abuja, Nigeria.
Footnotes
1. Communication 71/92.
2. Communication 147/95 and 149/96.
3. Communication 215/98.
4. H C Black, JN Nolan-Haley & J R Nolan, Black’s Law Dictionary (6 Ed.) 1990, 1262-1263. St. Paul Minn. West
Publishing Co.
5. [sic]
6. See communications 25/89, 47/90, 56/91, 100/93 Free Legal Assistance Group and Others / Zaire; 74/92
Commission nationale des droits de l’Homme et libertés / Chad; 83/92, Jean Y Degli (on behalf of N
Bikagni)/Togo.
7. Communication 103/93.
8. Communication 215/98.
9. Communication 215/98.
10. Communication 288/04.
11. Webster’s Encyclopedic Unabridged Dictionary of the English Language 102 (1989).
12. Longman Synonym Dictionary 82 (1986).
13. Jawara v The Gambia, supra.
14. See 1995 Rules of Procedure of the African Commission on Human and Peoples' Rights, Article 116 of the
Rules of Procedure of the African Commission
15. Nos. 220/1987, T.K v France ; 222/1987, M.K. v France ; 306/1988, J.G. v The Netherlands, in 2 Report of the
Human Rights Committee 188, 122, 127, 130, 180, 182-83, UN Doc. A/45/40 (1990) hereinafter HRC 1990
Report].
16. Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997).
17. See also L Emil Kaaber v Iceland, Communication no. 674/1995. UN Doc. CCPR/C/58/D/674/1995 (1996).
See also Ati Antoine Randolph v. Togo, Communication No. 910/2000, UN Doc. CCPR/C/79/D/910/2000 (2003).
18. Philip Leach, Taking a case to the European Court of Human Rights, 79 (2001) (quoting Earl Spencer and
Countess Spencer v. United Kingdom, App. Nos. 28851/95, 28852/95 (Eur. Comm’n on H.R. 1998)).
19. Article 45.3 of the African Charter on Human and Peoples’ Rights.
20. Article 26 of the European Convention on Human Rights.