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SUMMARY OF FACTS
1. The communication is submitted by the Zimbabwe Human Rights NGO Forum, a
coordinating body and a coalition of twelve (12) Zimbabwean NGO human rights
based in Zimbabwe.
2. The complainant states that in February 2000, the country held a
Constitutional Referendum in which the majority of Zimbabweans voted against
the new government drafted Constitution.
3. The complainant is alleges that following the Constitutional Referendum
there was political violence, which escalated with farm invasions, by war
veterans and other landless peasants. That during the period between
February and June 2000 when Zimbabwe held its fifth parliamentary elections,
ZANU (PF) supporters engaged in a systematic campaign of intimidation aimed
at crushing support for opposition parties. It is alleged that violence was
deployed by the party as a systematic political strategy in the run up to
the Parliamentary elections.
4. The complainant also alleges that in the 2 months before the
Parliamentary elections scheduled for 24th and 25th June 2002, political
violence targeted especially white farmers and black farmers workers,
teachers, civil servants and rural villagers believed to be supporting
opposition parties.
5. Such violence included dragging farm workers and villagers believed to be
supporters of the opposition from their homes at night, forcing them to
attend re-education sessions and to sing ZANU (PF) songs. The Complainant
alleges that men, women and children were tortured and there were cases of
rape. Homes and businesses in both urban and rural areas were burnt and
looted and opposition members were kidnapped, tortured and killed.
6. It is also alleged that ZANU (PF) supporters invaded numerous secondary
schools; over 550 rural schools were disrupted or closed as teachers, pupils
and rural opposition members numbering 10,000 fled violence, intimidation
and political re-education. Other civil servants in rural areas such as
doctors and nurses were targeted for supposedly being pro-Movement for
Democratic Change (MDC). Nyamapanda border post was closed for 2 days as
civil servants fled ZANU (PF) supporters. Bindura University was closed by a
student boycott after ZANU (PF) members were asked to produce a list of MDC
supporters and one MDC supporter was kidnapped and assaulted by ZANU (PF)
supporters/members posing as MDC.
7. It is also alleged that numerous activists including Morgan Tsvangirai –
President of the main opposition party the MDC, Grace Kwinjeh, a journalist
and a human rights activist, the Daily News Editor - Geoff Nyarota, an
Anglican Priest - Tim Neill, MDC candidate from Chimanimani - Roy Bennet,
Robin Greaves, a Nyamandlovu farmer and other farmers received death
threats.
8. The complainant alleges that there were reports of 82 deaths as a result
of organised violence between March 2000 and 22nd November 2001.
9. The complainant also allege that following the elections, MDC contested
the validity of the outcome of the elections in 38 constituencies won by
ZANU (PF) and this prompted another wave of violence.
10. The complainant claims that human rights abuses were reported in most of
those cases that were brought before the High Court. However, those
individuals that testified in the elections challenges before the Harare
High Court, were subjected to political violence on returning home and thus
forcing some to refrain from testifying and others to flee their homes due
to fear of being victimized.
11. The complainant also states that in some cases MDC supporters were also
responsible for minor assaults against some ZANU (PF) stalwarts.
12. The complainant alleges that various officials of the ruling ZANU (PF)
party condoned the use of violence for political gains and quotes statements
made by President Mugabe, Josaya Hungwe of Masvingo Province, the Minister
of Foreign Affairs - Stan Mudenge, war veterans Andrew Ndhlovu and Edmon
Hwarare that reinforced the ongoing violence.
13. The complainant also alleges that the primary instigators of this
violence were war veterans who operated groups of militias comprising of
ZANU (PF) youth and supporters. They also allege that the State was involved
in this violence through Zimbabwe Republic Police (ZRP), the Zimbabwe
National Army (ZNA) and the Central Intelligence Organisation (CIO)
specifically through facilitating farm invasions.
14. The complainant states that prior to the June 2000 parliamentary
elections, the ZRP on numerous occasions turned a blind eye to violence
perpetrated against white farmers and MDC supporters. It is alleged that the
police forces have generally failed to intervene or investigate the
incidents of murder, rape, torture or the destruction of property committed
by the war veterans. Furthermore, a General Amnesty for Politically
Motivated Crimes gazetted on 6th October 2000 absolved most of the
perpetrators from prosecution. While the Amnesty excluded those accused of
murder, robbery, rape, indecent assault, statutory rape, theft, possession
of arms or any offence involving fraud or dishonesty very few persons
accused of these crimes have been prosecuted.
COMPLAINT
15. The complainant alleges a violation of Articles 1, 2, 3, 4, 5, 6, 9, 10,
11 and 13 of the African Charter on Human and Peoples' Rights.
PROCEDURE
16. The communication was received at the Secretariat of the Commission on 3
January 2002.
17. On 8 January 2002 the Secretariat acknowledged receipt of the
communication and informed the complainant that the matter would be
scheduled for consideration by the Commission at its 31st Session.
18. During its 31st ordinary session held from 2 - 16 May 2002 in Pretoria,
South Africa, the African Commission examined the complaint and decided to
be seized of it.
19. On 29th May 2002 the parties to the communication were informed of the
Commission’s decision and requested to forward their submissions on
admissibility to the Secretariat within 3 months.
20. At its 32nd Ordinary Session held from 17 - 23 October 2002 in Banjul,
The Gambia, the African Commission examined the communication and decided to
defer its consideration on admissibility to the 33rd Ordinary Session and
the parties to the communication were informed accordingly.
21. At its 33rd Ordinary Session held from 15 - 29 May 2003, in Niamey,
Niger, the African Commission heard oral submissions from both parties to
the communication and decided to defer its decision on admissibility to the
34th Ordinary Session.
22. On 10th June 2003, the Secretariat of the African Commission wrote
informing the parties to the communication of the African Commission’s
decision and requested them to forward their written submissions on
admissibility within 2 months.
23. At its 34th Ordinary Session held in Banjul, The Gambia from 6 - 20
November 2003, the African Commission examined the communication and decided
to declare the communication admissible.
24. By letter dated 4 December 2003, the parties to the communication were
informed of the African Commission’s decision and requested to submit their
written submissions on the merits within 3 months.
25. At its 35th Ordinary Session held in Banjul, The Gambia from 21 May - 4
June 2004, the African Commission examined the communication and decided to
defer it to the 36th Ordinary Session for further consideration.
26. By Note Verbale dated 15th June 2004, and by letter bearing the same
date, the Secretariat of the African Commission informed the parties
accordingly.
27. At its 36th Ordinary Session held from 23 November - 7 December 2004, in
Dakar, Senegal, the African Commission considered the communication and
deferred its decision to the 37th Ordinary session.
28. By Note Verbale of 16 December 2004 and by letter of 20 December 2004,
the Secretariat informed the State and the complainant respectively of the
decision of the African Commission.
29. At its 37th Ordinary Session held in Banjul, The Gambia, from 27 April
to 11 May 2005, the African Commission deferred consideration of the
communication due to lack of time.
30. By note verbale dated 24 May 2005 the State was notified of the decision
of the African Commission. By letter of the same date the Secretariat of the
African Commission notified the complainant.
31. At its 38th ordinary session held from 21 November to 5 December 2005,
the African Commission differed consideration on the merits to the 39th
session.
32. By Note Verbale of 15 December 2005 and by letter of the same date, the
Secretariat of the African Commission notified both parties of the African
Commission’s decision.
33. At its 39th Ordinary Session held from 11 - 25 May 2006, the African
Commission considered the communication and found the Republic of Zimbabwe
in violation of certain provisions of the African Charter.
34. By Note Verbale of 29 May 2006 and by letter of the same date, both
parties were notified of the African Commission's decision.
35. The Commission took a decision on the merits of the communication during
its 39th Ordinary Session, which was held from 11th to 25th May 2006 in
Banjul, The Gambia.
LAW
ADMISSIBILITY
36. The law relating to the admissibility of communications brought pursuant
to Article 55 of the African Charter is governed by the conditions
stipulated in Article 56 of the African Charter. This Article lays down
seven (7) conditions, which generally must be fulfilled by a complainant for
a communication to be declared admissible.
37. In the present communication, the Respondent State submitted that the
communication should be declared inadmissible by virtue of the fact that the
communication did not satisfy the requirements contained in Articles 56(4)
and (5) of the African Charter.
38. Article 56(4) of the African Charter provides that:
"Communications... received by the Commission shall be considered if they:
are not based exclusively on news disseminated through the mass media."
39. The Respondent State alleged that the statement of facts submitted by
the complainant was based on information disseminated through the mass media
which information should be considered cautiously. They submit that the
statements recorded by the complainant in Appendix 1 are tailor-made to suit
press reports. The State indicated that an illustration of such a case was
when an independent newspaper, the Daily News on 23 April 2002 published a
story furnished by one Mr. Tadyanemhanda stating that his wife Brandina
Tadyanemhanda had been decapitated by ZANU (PF) members in front of her
children for the sole reason that she was a supporter of the MDC Party,
noting that the story was later found to be false. That Mr. Tadyanemhanda’s
son, Tichaona Tadyanemhanda was listed as one of those persons whose death
was reported to have occurred as a result of the political violence that
took place from March 2000 to 30 November 2001. The Respondent State
concluded that, as indicated by the Police, the death of Tichaona
Tadyanemhanda was never political.
40. The Respondent State maintained that during the period prior to, during
and following the Referendum, there was a concerted effort by the
"so
called independent press" and the international press to publish false
stories in order to tarnish Zimbabwe's image. The State thus submitted that
the media reports in Appendix 2 of the complainant's submissions were not
meant to buttress the accounts of eyewitnesses but that the statement of
facts by the complaint was a presentation of the contents of newspaper
articles.
41. In their submissions to the African Commission, the complainant stated
that the communication was not based solely on reports gathered from the
press. They asserted that Appendix 1 contained statements made by victims,
while Appendix 4 was a judgment of the High Court of Zimbabwe and Appendix 2
contained selected extracts of media reports and the information therein had
been provided in order to buttress the statements made by victims. According
to the complainant, the newspaper reports were meant to corroborate the
direct evidence provided by the victims.
42. The African Commission has had the opportunity to review the documents
before it as submitted by the complainant. While it may be difficult to
ascertain the veracity of the statements allegedly made to the complainant
by the alleged victims, it is however evident through the judgment of the
High Court of Zimbabwe that the communication did not rely
"exclusively on
news disseminated through the mass media" as the Respondent State would like
the African Commission to believe.
43. Besides, this Commission has held in Communications 147/95 and 149/96
[[FN1], that "while it would be dangerous to rely exclusively on news
disseminated through the mass media, it would be equally damaging if the
African Commission were to reject a communication because some aspects of it
are based on news disseminated through the mass media. This is borne out of
the fact that the Charter makes use of the word "exclusively". Based on this
reasoning, the African Commission is of the opinion that the communication
is not based "exclusively on news disseminated through the mass media. The
operative term being "exclusively".
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[FN1] Jawara v The Gambia [(2000) AHRLR 107 (ACHPR 2000)].
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44. The other provision of the Charter in contention between the parties is
Article 56(5) of the African Charter. This sub article provides that …communications
… received by the Commission shall be considered if they:
are sent after exhausting local remedies, if any unless it is obvious that
this procedure is unduly prolonged
45. The Respondent State submitted in this regard that the complainant
failed to exhaust domestic remedies by virtue of failing to pursue the
alternative remedy of lodging a complaint with the Office of the Ombudsman,
which is mandated to investigate human rights violations. The African
Commission holds that the internal remedy to which Article 56(5) refers
entails remedies sought from courts of a judicial nature, and the Office of
the Ombudsman is certainly not of that nature.[FN2]
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[FN2] Communication 221/98, Cudjoe v Ghana [(2000) AHRLR 127 (ACHPR 1999)].
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SPECIFIC CASE OF TALENT MABIKKA
46. With respect to the case of Tichaona Chiminya and Talent Mabika
(Appendix 4), the complainant claimed that they attempted to access domestic
remedies as shown by the record of the High Court. In this case, the Judge
ordered the transmission of the record of proceedings to the Attorney
General with a view to instituting criminal proceedings against the
murderers of Tichaona Chiminya and Talent Mabika. The complainant stated
that as at when the communication was lodged to the African Commission, no
such prosecution had taken place.
47. The African Commission is in possession of a copy of the proceedings of
the High Court of Zimbabwe relating to the Buhera North Election challenge
and where Justice Devitte made an order with respect to the case of Chiminya
and Mabika. From the proceedings, the High Court ordered that
"in terms of
Section 137 of the Act, the record of evidence must be transmitted by the
Registrar to the Attorney General ‘with a view to the institution of any
prosecution proper to be instituted in the circumstances’ and the attention
of the Attorney General is drawn to the evidence on the killing of Chiminya
and Mabika." The High Court Order was made on 2 March and 26 April 2001 and
the complainant argued that at the time of bringing the communication, about
8 months later, on 3 January 2002, there had been no prosecution of the
suspected murderers.
48. The Respondent State argued that the order made by the High Court called
upon the Attorney General to exercise his powers under Article 76 of the
Constitution of Zimbabwe to direct the police to carry out investigations
and depending on the outcome of those investigations prosecute the case. The
Respondent State submitted that the Attorney General received the docket
relating to the killing of Chiminya and Mabika from the police and that it
was evident from the docket that it had been opened the very day that the
incident in question had happened and that the recording of statements on
the case had commenced immediately. However, after perusing the docket, the
Attorney General referred the docket back to the police with directions on
what further investigations should be conducted into the matter before the
matter could be prosecuted. The Respondent State submitted that as at when
the communication was submitted to the African Commission, the matter was
still being investigated and that the Police had recorded 23 statements from
witnesses.
49. The African Commission is of the view that with respect to the alleged
murder of Chiminya and Mabika, the matter was still before the courts of the
Respondent State and cannot be entertained by it.
50. However, the Commission is of the opinion that there are no domestic
remedies available to all the persons referred to in Appendix 1, who as
victims, were effectively robbed of any remedies that might have been
available to them by virtue of Clemency Order No 1 of 2000. The Clemency
Order granted pardon to every person liable to criminal prosecution for any
politically motivated crime committed between 1 January 2000 and July 2000.
The Order also granted a remission of the whole or remainder of the period
of imprisonment to every person convicted of any politically motivated crime
committed during the stated period.
51. In terms of the Clemency Order, "a politically
motivated crime" is defined as:
"Any offence motivated by the object of supporting or opposing any political
purpose and committed in connection with: The Constitutional referendum held
on the 12th and 13th of February 2000; or the general Parliamentary
elections held on 24th and 25th June 2000; whether committed before, during
or after the said referendum or elections."
52. The only crimes exempted from the Clemency Order were murder, robbery,
rape, indecent assault, statutory rape, theft, possession of arms and any
offence involving fraud or dishonesty.
53. The complainant averred that the exceptions in the Clemency Order were a
hoodwink; that even where reports were made by victims of criminal acts not
covered by the Clemency Order, arrests were never made by the police neither
were investigations undertaken and therefore there was no prosecution of the
perpetrators of the violence, concluding that, the Clemency Order was
constructively, a blanket amnesty.
54. The complainant argued further that it could not challenge the Clemency
Order in a court of law because the President of Zimbabwe, who was
exercising his prerogative powers in terms of the Constitution of Zimbabwe,
ordered it.
55. Additionally, the complainant argued at the 33rd Ordinary Session of
this Commission, that it was not possible to exhaust domestic remedies
during the period in question because there was pervasive violence; and
gross and massive human rights violations took place on a large scale and
more particularly, politically motivated violence. The complainant referred
the African Commission to Justice Devitte’s judgment in CFU v Minister of
Lands & Others, 2000(2) ZLR 469(s), in which the Judge summarized the extent
of the violence that transpired during the period that the communication
covered. In that judgment Justice Devitte stated that: "Wicked things have
been done, and continue to be done. They must be stopped. Common law crimes
have been, and are being, committed with impunity. The Government has
flouted laws made by parliament. The activities of the past nine months must
be condemned."
56. Furthermore, the complainant argued that the violence was extended to
some members of the Judiciary. The complainant submitted that during the
time in question, some members of the judiciary were threatened, several
magistrates were assaulted while presiding over politically sensitive
matters and several Supreme Court judges were forced to resign. According to
the complainant, there were instances where persons approached the courts
and sought to interdict the government of Zimbabwe or the persons who had
forcefully settled themselves on private properties; court orders were
granted but subsequently they were ignored because the government of
Zimbabwe said it could not allow itself to follow court decisions that went
against government policy. The complainant asserted that in the overall
context of such a situation there was no realistic hope of getting a firm
and fair hearing from judicial system that had been so undermined by the
Respondent State.
STATE PARTY’S RESPONSE
57. Responding to the complainant’s submission relating to the effect of the
Clemency Order, the Respondent State submitted that the victims of the
criminal acts covered by the Clemency Order could have and could still
institute civil suits and sought to be compensated, which according to the
Respondent State, would be more beneficial to the victims than the
imprisonment of the perpetrators of the crimes.
58. In its oral submissions during the 33rd Ordinary Session of the African
Commission, the Respondent State argued that the complainant could have
sought alternative remedies under Section 24(1) of the Constitution of
Zimbabwe. This provision accords aggrieved persons the right to seek redress
from the Supreme Court where it is alleged that the Declaration of Rights
has been, is being or is likely to be contravened in relation to them.
59. The Respondent State also submitted that the complainant had the right
and could have challenged the legality of the Clemency Order in Court. The
Respondent State argued that there had been cases in Zimbabwe where persons
had challenged the legality of the prerogative of the President and that
such a challenge was before the courts of Zimbabwe. The Respondent State
argued that challenging the legality of Clemency Order would have eventually
paved the way for prosecuting the persons that committed those criminal acts
covered by the Clemency Order; therefore by neglecting to challenge the
legality of the President’s prerogative, the complainant had failed to
exhaust local remedies. The Respondent State argued further that until the
courts in Zimbabwe rule otherwise on the matter of the legality of the
presidential prerogative, the complainant could still utilise the courts in
Zimbabwe to challenge the legality of the Clemency Order.
60. With respect to the situation prevailing during the period in question,
the Respondent State admitted that of the numerous cases reported to the
police, only a small percentage of the murder cases were committed to the
High Court. The Respondent State argues that, at the time its criminal
justice system could not have been expected to investigate and prosecute all
the cases and ensure that remedies were given, bearing in mind the
considerable number of cases that were reported.
61. The situation notwithstanding, the Respondent State argued that the
complainant could have attempted to ask the Attorney General to invoke his
powers under Section 76(4a). Section 76(4a) of the Constitution of Zimbabwe
mandates the Attorney General to "require the Commissioner of Police to
investigate and report to him on any matter which, in the Attorney General’s
opinion, relates to any criminal offence or alleged or suspected criminal
offence, and the Commissioner of Police shall comply with that requirement". The Respondent State argued that except in the case of Tichaona Chiminya and
Talent Mabika, the complainant had made no attempts to request the Attorney
General to invoke Section 76(4a) in relation to the reported cases neither
did they seek to find out from the Attorney General what course of action
had been taken with respect to those cases.
62. The Respondent State also submitted that if all else was not possible,
the complainant could have instituted private prosecutions against those
persons alleged to have committed crimes and had not been prosecuted by the
State in accordance with Section 76(4) of the Constitution of Zimbabwe.
AFRICAN COMMISSION’S DECISION ON ADMISSIBILITY
63. The complainant in this communication states that during the period in
question, the criminal acts that were committed ranged from assault, arson,
theft, torture, kidnap, torture, murder etc and these acts were directed
towards persons perceived to be or known as supporters of the opposition and
as such were politically motivated.
64. The African Commission holds the view that by pardoning
"every person
liable for any politically motivated crime..." the Clemency Order had
effectively foreclosed the complainant or any other person from bringing
criminal action against persons who could have committed the acts of
violence during the period in question and upon which this communication is
based. By so doing, the complainant had been denied access to local remedies
by virtue of the Clemency Order [FN3].
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[FN3] Communications 54/91, 61/91, 98/93, 164-196/97, 210/98, Malawi African
Association and Others v Mauritania [(2000) AHRLR 149 (ACHPR 2000)]
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65. Exhaustion of local remedies does not mean that the complainants are
required to exhaust any local remedy, which may be impractical or even
unrealistic. Ability to choose which course of action to pursue when wronged
is essential and clearly in the instant communication the one course of
action that was practical and therefore realistic for the victims to pursue
– that of criminal action was foreclosed as a result of the Clemency Order.
66. The Respondent State also submitted that the complainant failed to
exhaust domestic remedies when they did not challenge the legality of the
President’s prerogative to issue a Clemency Order.
67. The African Commission is of the view that asking the complainant to
challenge the legality of the Clemency Order in the Constitutional Court of
Zimbabwe would require the complainant to engage in an exercise that would
not bring immediate relief to the victims of the violations. The African
Commission is aware that the situation prevailing in Zimbabwe at the time in
question was perilous and therefore required the State machinery to act fast
and firmly in cases such as this in order to restore the rule of law. To
therefore ask victims in this matter to bring a constitutional matter before
being able to approach the domestic courts to obtain relief for criminal
acts committed against them would certainly result into going through an
unduly prolonged procedure in order to obtain a remedy, an exception that
falls within the meaning of Article 56(5) of the African Charter.
68. It is argued by the Respondent State that before bringing this matter to
the African Commission, the complainant could have utilised the available
domestic remedies by requesting the Attorney General to invoke his powers
under Article 76(4a) or undertaken private prosecution of the persons
alleged to have committed the said criminal acts under Article 76(4).
69. The African Commission believes that the primary responsibility for the
protection of human rights in a country lies with the government of that
country. In the instant case, the international community in general and the
African Commission paid particular attention to the events that took place
in the run up to the referendum in Zimbabwe in February 2000 right up to the
end of and after the Parliamentary elections of June 2002. The Respondent
State was sufficiently informed and aware of the worrying human rights
situation prevailing at the time.
70. The responsibility of maintaining law and order in any country lies with
the State specifically with the police force of that State. As such, it is
the duty of the State to ensure through its police force that where there is
a breakdown of law and order, the perpetrators are arrested and brought
before the domestic courts of that country. Therefore any criminal processes
that flow from this action, including undertaking investigations to make the
case for the prosecution are the responsibility of the State concerned and
the State cannot abdicate that duty. To expect victims of violations to
undertake private prosecutions where the State has not instituted criminal
action against perpetrators of crimes or even follow up with the Attorney
General what course of action has been taken by the State as the Respondent
State seems to suggest in this matter would be tantamount to the State
relinquishing its duty to the very citizens it is supposed to protect. Thus,
even if the victims of the criminal acts did not institute any domestic
judicial action, as the guardians of law and order and protectors of human
rights in the country, the Respondent State is presumed to be sufficiently
aware of the situation prevailing in its own territory and therefore holds
the ultimate responsibility of harnessing the situation and correcting the
wrongs complained of [FN4].
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[FN4] Malawi African Association and Others v Mauritania. See also
communications 48/ 90, 50/91, 52/91, 89/93, Amnesty International and Others
v Sudan [(2000) AHRLR 297 (ACHPR 1999)
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71. It is apparent to the African Commission that the human rights situation
prevailing at the time this communication was brought was grave and the
numbers of victims involved were numerous. Indeed the Respondent State
concedes that its criminal justice system could not have been expected to
investigate and prosecute all the cases reported and ensure that remedies
are given. This admission on part of the Respondent State points to the fact
that domestic remedies may have been available in theory but as a matter of
practicality were not capable of yielding any prospect of success to the
victims of the criminal assaults.
72. Thus, for the reasons outlined above, the African Commission declares
this communication admissible and in coming to this conclusion, would like
to reiterate that the conditions laid down in Article 56(5) are not meant to
constitute an unjustified impediment to access international remedies. As
such, the African Commission interprets this provision in light of its duty
to protect human and peoples' rights and therefore does not hold the
requirement of exhaustion of local remedies to apply literally in cases
where it is believed that this exercise would be impractical or futile.
THE LAW - MERITS
COMPLAINANT’S SUBMISSIONS ON THE MERITS
ALLEGATION OF VIOLATION OF ARTICLE 1 OF THE AFRICAN CHARTER
73. The complainant submitted that in terms of Article 1 of the African
Charter, the obligation of States Parties to respect the rights enshrined in
the Charter entails an obligation to refrain from conducts or actions that
contravene or were capable of impeding the enjoyment of the rights and by so
doing ensuring that human rights were protected. The complainant submitted
further that to recognise the rights and duties enshrined in the African
Charter, States Parties also committed themselves to respect those rights
and to take measures to give effect to them [FN5].
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[FN5] Communication 204/97, Mouvement Burkinabé des Droits de l’Homme et des
Peuples v Burkina Faso [(2001) AHRLR 51 (ACHPR 2001)] and Communication
74/92, Commission Nationale des Droits de l’Homme et des Libertés v Chad
[(2000) AHRLR 66 (ACHPR 1995)].
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74. The complainant went on to say that this duty pertains to the regulatory
functions of the Member State to prevent violations of rights by both State
agents and other persons or organisations that were not State agents. This,
according to the complainant, may necessitate the adoption of legislative,
policy and administrative measures to prevent unwarranted interference with
the enjoyment of these rights. Such measures include investigating
allegations of violations as well as prosecuting and punishing those
responsible for violations contained in the African Charter [FN6].
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[FN6] See Velásquez Rodriguez, Inter-American Court of Human Rights,
judgment of 29 July 1988 paragraphs 160 – 167.
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75. It is submitted by the complainant that in the present communication
State agents were directly involved in committing serious human rights
violations such as in the case of the extra judicial execution of Tichaona
Chiminya and Talent Mabika in Manicaland Province by an officer of the
Central Intelligence Organisation.
76. It is also claimed that violent acts were carried out by State agents
acting under the guise of public authority. According to the complainant,
there were instances where police officers refused to record and investigate
complaints of victims of various abuses thereby removing the protection of
the law from the victims. Annexed to the communication as appendix one were
statements allegedly made by alleged victims of violence stating that they
made reports to the police but no action was taken, neither was any arrests
made. Most of them claimed the Police refused to investigate their
complaints because they were in the opposition MDC party.
77. The complainant averred that the Government of Zimbabwe failed to
provide security to members of opposition political parties thereby allowing
serious or massive violations of human rights, adding that, the law
enforcement agents on several occasions failed to intervene to prevent
serious violations of human rights. The complainant argued that it is the
primary responsibility of the Government of Zimbabwe to secure the safety
and the liberty of all of its citizens and to conduct investigations into
allegations of torture, murder and other human rights violations [FN7].
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[FN7] Communication 74/92, Commission Nationale des Droits de l’Homme et des
Libertes v Chad
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78. Regarding the Clemency Order No 1 of 2000 granting a general amnesty for
politically motivated crimes committed in the period preceding the June 2000
general elections, the complainant submitted that by failing to secure the
safety of its citizens and by granting a general amnesty, the Respondent
State had failed to respect the obligations imposed on it under Article 1 of
the African Charter. Any violation of the provisions of the African Charter
automatically means a violation of Article 1 of the African Charter and that
goes to the root of the African Charter [FN8] since the obligations imposed
by Article 1 of the African Charter are peremptory [FN9].
--------------------------------------------------------------------------------
[FN8] Jawara v The Gambia.
[FN9] Communication 211/98, Legal Resources Foundation v Zambia.
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ALLEGATION OF VIOLATION OF ARTICLE 2 OF THE AFRICAN CHARTER -
NON-DISCRIMINATION
79. The complainant alleged a violation of Article 2 of the African Charter
which provides that "every individual shall be entitled to the enjoyment of
the rights and freedoms recognised and guaranteed in the present Charter
without distinction of any kind such as race, ethnic group, colour, sex,
language, religion, political or any other opinion, national and social
origin, fortune, birth or any status".
80. The complainant submitted further that the Respondent State denied the
victims their rights as guaranteed by the African Charter on the basis of
their political opinions, and by so doing, the Respondent State violated
Article 2 of the African Charter.
81. Article 2 of the African Charter guarantees enjoyment of the rights
enshrined in the African Charter without distinction of any kind including
political opinion [FN10] and the African Commission has held that the rights
guaranteed in Article 2 are an important entitlement as the availability or
lack of them affects the capacity of one to enjoy many other rights [FN11].
--------------------------------------------------------------------------------
[FN10] Malawi African Association and Others v Mauritania
[FN11] Legal Resources Foundation v Zambia.
--------------------------------------------------------------------------------
ALLEGATION OF VIOLATION OF ARTICLE 3(2) OF THE AFRICAN CHARTER
82. The complainant also alleged a violation of Article 3(2) of the African
Charter which provides that "every individual shall be entitled to equal
protection of the law."
83. The complainant asserted that the police selectively enforced the law to
prejudice victims of gross violations of human rights. The complainant
argued that the statements appended as appendix one to the communication
revealed that the police refused to record and investigate complaints filed
by the victims in violation of Article 3(2) of the African Charter.
84. The complainant requested the African Commission to have due regard to
the Zimbabwe Supreme Court case of Chavunduka & anor v Commissioner of
Police [FN12] when interpreting Article 3(2) of the African Charter, noting
that the request was based on the African Commission’s own jurisprudence
which states that in interpreting the African Charter, the African
Commission may have regard to principles of law laid down by States Parties
to the African Charter and African Practices consistent with international
human rights norms and standards. [FN13] In the Chavunduka matter, the
Supreme Court held that the police have the public duty to enforce the law.
Consequently the entitlement of every person to the equal protection of the
law embraces the right to require the police to perform their public duty in
respect of law enforcement. This includes the investigation of an alleged
crime, the arrest of the perpetrator and the bringing of him or her before a
court.
--------------------------------------------------------------------------------
[FN12] 2000 (1) ZLR 418 (S).
[FN13] Communication 218/98 – Civil Liberties Organisation and Others v
Nigeria [(2001) AHRLR 75 (ACHPR 2001)]; communication 225/98, Huri-Laws v
Nigeria [(2000) AHRLR 273 (ACHPR 2000)]. See also art 61 of the African
Charter
--------------------------------------------------------------------------------
ALLEGATION OF VIOLATION OF ARTICLE 4 OF THE AFRICAN CHARTER
85. The complainant alleged a violation of Article 4 of the African Charter.
Article 4 of the African Charter provides that "human beings are inviolable.
Every human being shall be entitled to respect for his life and the
integrity of his person. No one may be arbitrarily deprived of this right".
86. The African Commission considers that the right enshrined in Article 4
"is the fulcrum of all other rights. It is the fountain through which other
rights flow, and any violation of this right without due process amounts to
arbitrary deprivation of life".[FN14]
--------------------------------------------------------------------------------
[FN14] Communication 223/98, Forum of Conscience v Sierra Leone [(2000)
AHRLR 293 (ACHPR 2000)].
--------------------------------------------------------------------------------
87. The complainant claimed that numerous people were victims of
extra-judicial or summary executions, attacks or attempted attacks against
their physical integrity and acts of intimidation. Documents attached by the
complainant to support this claim include the judgment of the High Court of
Zimbabwe in the Buhera North Election Petition; a list of persons who died
between March 2000 and 31 December 2001 as a result of what it believed was
politically motivated violence and extracts of newspaper articles.
88. The complainant submitted further that some of the executions were
carried out by ZANU (PF) supporters and war veterans but also that
extra-judicial or summary executions carried out by any other State agents
such as an officer of the Central Intelligence Organisation are also a
violation of Article 4 of the African Charter.
89. The complainant further asserted that whether all levels of the
Government were aware of the acts complained of or that such acts were
outside the sphere of the agent's authority or violated Zimbabwean law was
irrelevant for the purpose of establishing whether the respondent State was
responsible under international law for the violations of human rights as
alleged in the communication. The complainant maintained that the State is
required under Article 1, to take all reasonable measures to ensure that
people within its jurisdiction were treated in accordance with international
human rights norms and standards [FN15].
--------------------------------------------------------------------------------
[FN15]Velásquez Rodriguez paras 170, 177 and 183.
--------------------------------------------------------------------------------
90. Furthermore, the complainant averred that the right to life read
together with the State's general obligation required by implication that
there should be some form of effective official investigation when there has
been an extra-judicial execution. This obligation is not confined to cases
where it has been established that the killing was caused by an agent of the
State [FN16].
--------------------------------------------------------------------------------
[FN16] Sabuktekin v Turkey (2003) 36 EHRR 19.
--------------------------------------------------------------------------------
91. The complainant referred the Commission to the European Court decision
in Jordan v the United Kingdom [FN17] which stated that "an effective
official investigation must be carried out with promptness and reasonable
expedition. The investigation must be carried out for the purpose of
securing the effective implementation of domestic laws, which protect the
right to life. The investigation or the result thereof must be open to
public scrutiny in order to secure accountability. For an investigation into
a summary execution carried out by a State agent to be effective, it may
generally be regarded as necessary for the person responsible for the
carrying out of the investigation to be independent from those implicated in
the events. This means not only a lack of hierarchical or institutional
connection but also a practical independence".
--------------------------------------------------------------------------------
[FN17] Jordan v United Kingdom (2003) 37 EHRR 2
--------------------------------------------------------------------------------
92. The complainant submitted that in the present communication there were
no effective official investigations carried out in cases of extra-judicial
or summary executions noting that this was because the very police which was
implicated in failing to intervene and stop the murders were responsible for
carrying out the investigations. The complainant referred the African
Commission to its jurisprudence in several cases brought against Sudan with
respect to the situation pertaining in that country between 1989 and 1993.
In those communications, the African Commission held that
"investigations
into extra-judicial executions must be carried out by entirely independent
individuals, provided with the necessary resources, and their findings must
be made public and prosecutions initiated in accordance with the information
uncovered" [FN18].
--------------------------------------------------------------------------------
[FN18] Amnesty International and Others v Sudan. See also resolution 1989/65
of 24 May 1989 of the Economic and Social Council of the United Nations
--------------------------------------------------------------------------------
ALLEGATION OF VIOLATION OF ARTICLE 5 OF THE AFRICAN CHARTER
93. The complainant also alleged a violation of Article 5 of the African
Charter which provides that
"every individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his legal status. All
forms of exploitation and degradation of man particularly slavery, slave
trade, torture, cruel, inhuman or degrading punishment and treatment shall
be prohibited."
94. The complainant submitted that ZANU (PF) supporters acting in concert
with war veterans subjected their victims to severe mental and physical
suffering. They abducted and force-marched farm labourers to camps for
political re-education meetings and to attend ZANU (PF) rallies as in the
case of Robert Serengeti, Fungai Mafunga, Chamunorwa Steven Bitoni, Tazeni
Chinyere, Champion Muleya, Bettie Muzondi and Misheck Muzondi. According to
the complainant, while in the political re-education meetings, some of the
farm workers were asked to produce ZANU (PF) membership cards and where they
failed to produce ZANU (PF) membership cards they were interrogated about
their involvement with opposition political parties. It is alleged that they
were further ordered to lie prone and to roll in the mud while water was
poured over them and that victims reported being subjected to severe
beatings with various objects such as sticks, sjamboks, open hands, axe
handles and hosepipes. Petros Sande for example, is alleged to have
testified that he was ordered to stick his penis in the sand and imitate
sexual positions until he masturbated. When he failed to perform to his
assailants' satisfaction his penis was hit with a stick.
95. The complainant provided information about persons who alleged to have
been subjected to ill-treatment and stated that the victims of these
atrocities reported to the police but in many of the cases the police made
no effort to arrest or investigate the reports. Other victims were issued
with death threats if they reported while others such as Sekai Chadeza
feared reprisals and so they declined to report the assaults to the police.
96. The complainant submitted that all the above examples reveal a violation
of Article 5 of the African Charter by the Respondent State and referred the
African Commission to its jurisprudence in International Pen et al (on
behalf of Ken Saro-Wiwa Jnr)/Nigeria [FN19] where it held that
"the
prohibition in Article 5 included not only actions which cause serious
physical or psychological suffering, but also actions which humiliate the
individual or force him or her to act against his will or conscience." According to the complainant, the prohibition of torture, cruel, inhuman and
degrading treatment is absolute [FN20] and one of the most fundamental
values of a democratic society. [FN21].
--------------------------------------------------------------------------------
[FN19] [(2000) AHRLR 212 (ACHPR 1998)]. See also communication 224/98, Media
Rights Agenda v Nigeria [(2000) AHRLR 262 (ACHPR 2000)]. See also the
definition of torture in art 1 of the Declaration on the Protection of All
Persons from Being Subjected to Torture, Other Cruel, Inhuman or Degrading
Treatment or Punishment adopted by the General Assembly of the United
Nations in resolution 3452(XXX) of 9 December 1975 and art 1 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment of 1984.
[FN20] Huri-Laws v Nigeria.
[FN21] Lorse v Netherlands (2003) 37 EHRR 3.
--------------------------------------------------------------------------------
ALLEGATION OF VIOLATION OF ARTICLE 6 OF THE AFRICAN CHARTER
97. The complainant also alleged a violation of Article 6 of the African
Charter which provides that "every individual shall have the right to
liberty and to the security of his person. No one may be deprived of his
freedom except for reasons and conditions previously laid down by law. In
particular, no one may be arbitrarily arrested or detained".
98. The complainant submitted that the victims in the communication were
abducted and kidnapped and held in detention for a whole night at camps
established by war veterans and ZANU (PF) supporters mainly because they
held differing political opinions. The complainant asserted that kidnapping
of a person is an arbitrary deprivation of their liberty [FN22].
--------------------------------------------------------------------------------
[FN22] See Velásquez Rodriguez, para 155.
--------------------------------------------------------------------------------
99. The complainant further submitted that the African Commission has held
that detaining a person on account of their political beliefs, especially
where no charges are brought against them renders the deprivation of liberty
arbitrary and where government maintains that no one is presently detained
without charge does not excuse past arbitrary detentions [FN23]. The
complainant makes reference to the decision of the European Court of Human
Rights in Ibilgin v Turkey [FN24] where it stated that "any deprivation of
liberty must not only have been effected in conformity with the substantive
and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrary
detention."
--------------------------------------------------------------------------------
[FN23] Communications 140/94, 141/94, 145/95 Constitutional Rights Project
and Others v Nigeria [(2000) AHRLR 227 (ACHPR 1999)].
[FN24] Bilgin v Turkey (2003) 35 EHRR 39.
--------------------------------------------------------------------------------
100. The complainant stated that arbitrary deprivation of liberty often
involve an element of suffering or humiliation which also amounts to cruel,
inhuman or degrading treatment [FN25].
--------------------------------------------------------------------------------
[FN25] Huri-Laws v Nigeria. See also Lorse v Netherlands (2003) 37 EHRR 3.
--------------------------------------------------------------------------------
ALLEGATION OF VIOLATION OF ARTICLES ARTICLE 9, 10 AND 11 OF THE AFRICAN
CHARTER
101. The complainant further alleged a violation of Articles 9, 10 and 11 of
the African Charter averring that there is a close relationship between
these rights [FN26].
Article 9 of the African Charter provides:
(1) Every individual shall have the right to receive information
(2) Every individual shall have the right to express and disseminate his
opinions within the law
Article 10 of the African Charter provides:
(3) Every individual shall have the right to free association provided that
he abides by the law.
Subject to the obligation of solidarity provided for in Article 29, no one
may be compelled to join an association.
Article 11 of the African Charter provides:
Every individual shall have the right to assemble freely with others. The
exercise of this right shall be subject only to necessary restrictions
provided for by law, in particular those enacted in the interest of national
security, the safety, health, ethics and rights and freedoms of others
--------------------------------------------------------------------------------
[FN26] International Pen and Others (on behalf of Saro-Wiwa) v Nigeria.
--------------------------------------------------------------------------------
102. The complainant alleged that the victims in the present communication
were abused because they held and sought to impart political views and
opinions that were unfavourable to those of the Respondent State. It is
alleged that they were forced to attend all night rallies where they were
given information on why they should support ZANU (PF) and not the
opposition MDC. Furthermore, the victims were forced to surrender their
parties' campaign materials and were prevented from communicating to others
their parties' policies.
103. The complainant submitted further that freedom of expression is a basic
human right vital to an individual's personal development and political
consciousness. It is therefore one of the essential foundations of a
democratic society and one of the basic conditions for its progress [FN27].
--------------------------------------------------------------------------------
[FN27] Media Rights Agenda and Others v Nigeria [(2000) AHRLR 200 (ACHPR
1998)], Constitutional
Rights Project and Others v Nigeria [(2000) AHRLR 227 (ACHPR 1999)],
communication 212/98, Amnesty International v Zambia [(2000) AHRLR 325
(ACHPR 1999)]; See also Thoma v Luxembourg (2003) 36 EHRR 21
--------------------------------------------------------------------------------
104. According to the complainant, the persecution of real or perceived
members of opposition political parties in an attempt to undermine the
ability of the opposition to function amounted to an infringement [FN28] of
Article 10 of the African Charter and of persons because they belong to
opposition political parties amounted to a violation of Article 9 of the
African Charter.[FN29]
--------------------------------------------------------------------------------
[FN28] See Yazar, Karatas, Aksoy & People's Labour Party (HEP) v Turkey
(2003) 36 EHRR 6.
[FN29] Amnesty International and Others v Sudan.
--------------------------------------------------------------------------------
ALLEGATION OF VIOLATION OF ARTICLE 13(1) OF THE AFRICAN CHARTER
105. The complainant equally alleged a violation of Article 13(1) of the
African Charter which provides that "every citizen shall have the right to
participate freely in the government of his country, either directly or
through freely chosen representatives in accordance with the provisions of
the law".
106. It is submitted by the complainant that the alleged victims were abused
because of their political opinions and affiliations, while some of the
victims were members of political parties others were not affiliated to any
political party but were assumed to support the opposition and therefore
subjected to abuse.
107. The complainant argued that the right of people to participate in the
government of their countries is not limited to the casting of votes. In
addition to voting for representatives of their choice, people participate
in the government of their country through uninhibited, robust and wide open
communication on matters of government, politics and public issues [FN30]
and by freely associating and forming associations for political ends,
adding that, there must always be a general capacity for citizens to join,
without interference, in associations in order to attain various ends.
[FN31].
--------------------------------------------------------------------------------
[FN30] See New York Times v Sullivan 376 US 254 (1964) at 270; Reynolds v
Times Newspapers Ltd [2001] AC 127.
[FN31] Communication 101/93, Civil Liberties Organisation (in respect of Bar
Association) v Nigeria [(2000) AHRLR 186 (ACHPR 1995)].
--------------------------------------------------------------------------------
STATE PARTY’S SUBMISSION ON THE MERITS
108. The State contended that there were many allegations in the
Communication intended to give an impression of serious or massive violation
of human rights which Zimbabwe proved to be false. The State indicated that
there were many cases alleged to have been reported yet the Police did not
have records of such cases. The State also noted that complainant did not
avail any proof to the Commission that reports had been made to the Police,
neither did complainant submit any medical reports of the injuries sustained
by some of its clients as a result of the severe and life threatening
assaults allegedly perpetrated on the victims.
109. The State also submitted that the complainant exaggerated the number of
deaths some of which were in fact as a result of natural causes and other
causes not related in any way to political violence during the period in
question. That complainant even included people who were still alive and
still had not submitted proof of the death of any of the 74 deceased
persons. The State recognized its responsibility under the Charter to assist
the Commission in arriving at the truth, provided the information on which
cases had been reported, their reference numbers both Police and Court and
progress made in the investigation of the matters in order to bring justice
to the victims.
110. The State also drew the Commission's attention to the fact that in the
complainant’s Submissions on Merits, they abandoned a number of allegations
and had made brazen submissions in respect of some of the allegations. The
State noted that with regards to freedom of expression for example,
complainant's submissions had always been centered on freedom of the media
and the enactment of laws such as the Access to Information and the
Protection of Privacy Act (AIPPA). However, in its Submissions on Merits it
does not make any reference to these allegations other than making reference
to paragraph 58 of the Report of the UN Special Rapporteur on
Extra-judicial, Summary or Arbitrary Execution E/CN.4/2002/74 and paragraph
634 of E/CN.4/2002/74/Add.2, paragraphs 109-121 of E/CN.4/2002/75/Add.2.
According to the State it should therefore be taken that complainant has
abandoned its allegations in this regard.
111. The Respondent State informed the Commission that the Government of
Zimbabwe had taken appropriate and effective measures to ensure that those
who perpetrated the ascertainable violations specified in the communication
been brought to book and as such had provided effective remedy to the
aggrieved. The State indicated a number of measures taken to bring those
accused of perpetrating violence to justice, including investigations
conducted by the police, amendment of relevant legislation and the payment
of compensation to victims.
REGARDING THE VIOLATIONS OF SPECIFIC PROVISIONS OF THE CHARTER, THE
RESPONDENT STATE NOTED AS FOLLOWS
112. As regards allegations of violation of Article 1 of the African
Charter, the Respondent State pointed out that it unreservedly accepts that
its obligations under the Charter are to respect, protect and promote the
rights guaranteed under the Charter. By respecting the rights, Zimbabwe was
required to refrain from interfering with the enjoyment of the rights. The
respondent state indicated that the State had enacted the necessary policy
and legislation, had made provision for effective remedies and taken the
necessary administrative measures to ensure that its people enjoy their
rights.
113. The State contended that the Communication is essentially to determine
whether the alleged violations of human rights can be imputed to the
Government of Zimbabwe since the Complainant averred that the Government
planned, committed or otherwise aided and abetted a campaign of terror and
this was based on the perceived interlink between the Government, ZANU (PF)
and the war veterans.
114. The State noted that it is responsible for the acts of its organs and
officials undertaken in their official capacity and for their omissions even
when these organs act outside the sphere of their authority or violate
internal law. [FN32] The underscoring factor, according to the State, is
that any such violation is imputable to the State only when the act is by a
public authority which uses its authority to perpetrate the violation.
[FN33] The import of paragraph 172 of Velasquez Rodriguez Case is that even
where the State agent acts outside his/her authority or violates the law,
the agent must have held himself/herself to be exercising his authority as a
State agent. In any other circumstance, the illegal act can only be
imputable to a State if there is lack of diligence to prevent or respond to
the violation as required by the Charter. The State concluded that where a
State agent is on a frolicking of his own and commits acts considered of
violation of rights, such acts will not be imputed to the State.
--------------------------------------------------------------------------------
[FN32] See Velásquez Rodriguez paras 169 – 170.
[FN33] As above, para 172.
--------------------------------------------------------------------------------
115. The State further noted that whilst Article 1 extends the obligation of
a State Party to investigate acts of violation of rights guaranteed under
the Charter, the duty to investigate, such as the duty to prevent, is not
breached merely because the investigation does not produce a satisfactory
result, admitting however, the investigations must be undertaken in a
serious manner and not as a mere formality. Referring to the Rodriguez Case,
the State noted that the Inter-American Court of Human Rights was clear to
what extent a State may become responsible for cases not intentionally or
directly imputable to the State. The Court observed that:
an illegal act which violates human rights and which is initially not
directly imputable to a state (for example, because it is an act of a
private person or because the person responsible has not been identified)
can lead to international responsibility of the state not because of the act
itself, but because of the lack of due diligence to prevent the violation or
to respond to it as required by the Convention.
116. The State emphasised that there is a clear distinction between the
Government of Zimbabwe and ZANU (PF). The State maintained that whilst ZANU
(PF) is the ruling party, the actions of the party cannot be attributed to
the Government of Zimbabwe and added further that the actions of the war
veterans cannot equally, be attributed to the Government of Zimbabwe. The
Respondent State acknowledged that President Mugabe is the Patron of the war
veterans, but that did not in any way imply that war veterans were
controlled by the Government of Zimbabwe. ZANU (PF) is a political party and
the war veterans (either individually or as an association) are not State
organs. Therefore, according to the State, their illegal acts cannot be
imputable to the Government of Zimbabwe. Neither can it be said that the
violence alluded to in the Communication was an orchestrated policy of the
Government of Zimbabwe. Submissions by complainant in this regard are
palpably untenable and should be disregarded, submitted the State.
117. The State concluded by noting that it was improper to impose liability
on the Government of Zimbabwe, or any Government for that matter, for
actions of persons or organisations who were not part of the State
machinery. The State's liability in such a situation should only attach
where the State fails to exercise the duty to protect the rights, welfare
and interests of the people diligently or acts in complicity with such
persons.
118. With regards to allegations of violation of Article 4, the right to
life, the State noted that extra-judicial, arbitrary or summary executions
are, under international law, generally attributable to State organs and
officials in the ordinary exercise of governance. They entail, among other
things, disregard of due process of the law by State entities or officials.
The State referred to the Principles on the Effective Prevention and
Investigation of Extra - Legal, Arbitrary and Summary Executions Recommended
by Economic and Social Council Resolution 1989/65 of 24 May 1989 and the
U.N. Manual on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions (U.N. Doc. G/ST/CS DHA/12 (1991) which
provide for definitions of extra-Legal, Arbitrary and Summary Executions.
119. The State noted further that apart from the case of Chiminya and Mabika
out of the alleged seventy four (74) "extra-judicial executions", the
complainant did not give an account of how the others happened. Therefore,
the complainant's naked allegations did not assist in determining whether or
not the alleged deaths actually happened. To buttress this point, the State
argued that although complainant alleged that some of the victims were
severely assaulted with objects such as "sticks, sjamoks, open hands, axe
handles and hosepipes", not a single medical report was produced in support
of such severe assaults. The State called on the Commission to distinguish
the present Communication from Communications such as Amnesty
International/Sudan 48/90, Comite Loosli Bachelard/Sudan 50/91, Lawyers
Committee for Human Rights/Sudan 52/91 and Association of Members of the
Episcopal Conference of East Africa/Sudan 89/93 where the communication was
supported with not only personal accounts but also medical testimonies. The
State concluded that throughout the Communication, there was evidence that
the Complainant did not take steps to ascertain what had happened to the
matters that were reported to the police.
120. As regards Joseph Mwale, who was alleged to have killed Chiminya and
Mabika, and who was alleged to be a member of the Central Intelligent
Organisation, the Respondent State submitted that his actions could not be
imputed to the State as the alleged acts could not be said to have been
committed in his official capacity, in other words, using their authority in
the normal course of their duty. The death of Chiminya and Mabika, according
to the State, was a case of an allegedly intentional and illicit deprivation
of another's life which can and must be recognised and addressed in terms of
the criminal law as murder.
121. Furthermore, the Respondent State submitted that the alleged or
perceived inaction of the Police in relation to all the alleged violations
cannot be said to be a contravention of the rights guaranteed by the Charter
and in particular Article 1. The State insisted that the Police were
deployed to deal with cases of violence and unrest, and to this end,
suspects were arrested, investigations conducted and prosecutions effected.
The State also reminded the Commission of the fact that the complainants had
submitted at the 33rd Ordinary Session that in most cases the alleged
victims of the alleged violence did not know who the perpetrators of the
violence were and therefore could not assist the Police in identifying the
perpetrators of the violence and in a large number of cases, the alleged
victims did not even report the alleged violations.
122. The State also drew the attention of the Commission to the fact that
some of the names of those alleged to have been assaulted did not appear in
the records of the Registrar General and therefore their existence was
questionable; that some of the deaths had been found not to have occurred at
all; that in some cases members of either ZANU (PF) or MDC were driven from
other areas to perpetrate acts of violence in different areas. (Alouis
Musarurwa Mudzingwa v Oswald Chitongo HH 73-2002); that some of the
individuals alleged to have died in politically motivated violence, died of
natural causes or other mishaps and not as a result of the alleged assaults
and some well before the period in issue. The State noted that all the above
came about as a result of investigations conducted by the Police following
reports in the Press; that in the bulk of the cases the perpetrators had
been identified, arrested, tried, convicted or acquitted and in some cases
matters were still pending before the courts; that in other instances the
police had carried out their investigations but had failed to identify the
culprits; and that in other instances the Attorney General declined to
prosecute due to lack of evidence.
123. The State submitted that given the concession by the Complainant and
the fact that there had been prosecutions of some of the culprits, the
Police had discharged their duties diligently in the circumstances, noting
that the fact that the investigations did not always produced results
satisfactory to the complainant did not amount to a breach of their duty.
The State concluded that the fact that the situation in the country had
stabilised was indicative of the Police's role in preventing further
violations and containing the situation.
124. In the case of Chiminya and Mabika, the State submitted that the
Attorney General had appraised the investigations conducted by the Police
and had since issued instructions to the Police for the arrest and
prosecution of Mwale and others for the murder of Chiminya and Mabika.
According to the State, general indications were that the investigations
were done in a professional and independent manner and had been effective.
125. The State concluded on this allegation by noting that in any event, the
question of an independent investigator does not arise as the alleged
executions could not in the strict sense be termed extra-judicial or summary
executions.
126. Regarding allegations of torture, Inhuman and Degrading Treatment, the
State noted that as in the case of extra-judicial or summary execution,
torture, inhuman or degrading treatment must be inflicted:
"...by or at the instigation of, or with the consent or acquiescence of a
public official or other person acting in an official capacity. (See Article
1 of the Conventions Against Torture and other Cruel, Inhuman and Degrading
Treatment, 1984".
127. To this end the State noted that ZANU (PF) and war veterans are not
synonymous with the Government of Zimbabwe and are not State institutions.
Torture or ill treatment of a citizen by another citizen who is not in
government service and/or whose behaviour is not sanctioned by government
does not fall within the definition of the Convention. The respondent State
argued that the Police investigated those cases that were reported and since
in most of the cases the alleged victims could not identify the
perpetrators, the Police could not pursue the matter any further.
128. On the allegation of arbitrary detention, the State submitted that its
submissions on the right to life and freedom from torture equally applied in
this context.
129. Regarding Freedom of Expression, Association and Assembly and
discrimination, the State distinguished the communication from Amnesty
International/Sudan 48/90, Comite Loosli Bachelard/Sudan 50/91, Lawyers
Committee for Human Rights/Sudan 52/91 and Association of Members of the
Episcopal Conference of East Africa/Sudan 89/93 noting that in the latter
cases government institutions perpetrated the violations. Although
complainant made reference to "parties", the list of persons assaulted was
either ZANU (PF) or MDC or they were said not to be affiliated to any
political party. The State pointed out that what was clear was that the
violation was not directly attributed to the Government. The State further
noted that the Government had taken the necessary measures to ensure that
those who have perpetrated the violations were brought to book. And that
there was no policy by the Government of Zimbabwe to trample on the rights
of any individual to freely associate with a political party of his or her
choice. The State reiterated the same argument with regard to allegations of
violation of the right to participate freely in one's government.
130. Regarding Equal Protection of the law, the State refuted the claim that
the alleged victims had been denied this protection in the manner and to the
extent averred by the complainant and denied that there was an outright
denial of Police protection for complainant's clients.
131. On the Clemency Order No. 1 of 2000, the Respondent State emphasised
that the prerogative of clemency or amnesty is recognised as an integral
part of constitutional democracies. To ensure that those who had committed
more serious offences did not go unpunished, the Clemency Order excluded
crimes such as murder, rape, robbery, indecent assault, statutory rape,
theft and possession of arms. The State further noted that a decision by the
Commission that the Clemency Order was an abdication of Zimbabwe's
obligations under the Charter would amount to undermining the whole notion
of the clemency prerogative worldwide adding that Clemency Orders are the
prerogatives of the Head of State and this discretion was exercised
reasonably under Clemency Order No 1 of 2000.
132. On the report issued by the Special Rapporteur on Extra-judicial,
Summary or Arbitrary Execution's Report E/CN.4/2001/9/Add.1, the State
submitted that her appeal to the Government of Zimbabwe was based on reports
that she had received on the alleged violation of human rights, and it was,
according to the State, apparent from the report that:
(i) the alleged violations were by the supporters of the ruling party and
war veterans and not by the Government of Zimbabwe; and
(ii) that Zimbabwe responded to the Special Rapporteur’s appeal that all
incidents were being investigated.
133. In conclusion, the State stated that the Special Rapporteur’s report
was supportive of its submissions that the Government of Zimbabwe did not
have a policy to violate the rights if its people and also that it took its
obligations on human rights seriously.
ISSUES FOR DETERMINATION AND DECISION OF THE AFRICAN COMMISSION ON THE
MERITS
134. The present communication raises several issues that must be addressed
by the African Commission to determine whether the Respondent State has or
has not violated the rights of the victims as alleged by the complainant.
The African Commission is called upon to determine:
what non-state actors are and whether the Zimbabwe African National
Union-Patriotic Front - ZANU (PF) and the Zimbabwe Liberation War Veterans
Association (War Veterans) can be termed non-state actors;
the extent of a State's responsibility for human rights violations or acts
committed by non-state actors; and
whether the Clemency Order No. 1 of 2000 resulted to a violation of the
Respondent State’s obligations under Article 1 of the Charter.
ISSUE ONE: WHAT ARE NON-STATE ACTORS UNDER INTERNATIONAL LAW?
135. Traditionally, international human rights law mostly talked to and
about national governments or States. The need to look beyond the State or
its agents as the primary subject of international law and the sole possible
actor capable of impairing the enjoyment of the human rights of others,
requires a term that captures the very many different kinds of individuals,
groups or institutions whose behaviour, actions or policies have an effect
on the enjoyment of human rights, and who can either be directly called to
answer by the international system or for whom the government will be called
to answer.
136. The term 'non-state actors' has therefore been adopted by the
international community to refer to individuals, organisations, institutions
and other bodies acting outside the State and its organs. They are not
limited to individuals since some perpetrators of human rights abuses are
organisations, corporations or other structures of business and finance, as
the research on the human rights impacts of oil production or the
development of power facilities demonstrates.[FN34]
--------------------------------------------------------------------------------
[FN34] See African Commission decision on communication 155/96, Social and
Economic Rights Action Centre (SERAC) and Another v Nigeria [(2001) AHRLR 60
(ACHPR 2001)].
--------------------------------------------------------------------------------
ISSUE TWO: ARE THE ZIMBABWE AFRICAN NATIONAL UNION-PATRIOTIC FRONT - ZANU
(PF) AND THE ZIMBABWE LIBERATION WAR VETERANS ASSOCIATION (WAR VETERANS)
NON-STATE ACTORS
137. By its submission of 23 February 2004, the complainant argued that the
Government of Zimbabwe planned, committed or otherwise aided and abetted a
campaign of terror and violence…and stated further that the War Veterans and
the supporters of the governing ZANU (PF) with endorsement and support of
the government unlawfully occupied commercial farms… which were turned into
torture and re-education camps. The complainant argued further that
"under
the current political arrangement in Zimbabwe, ZANU (PF) is government and
the government is ZANU (PF) and with respect to the war veterans, the
complainant submitted that "at all material times the government of Zimbabwe
exercised extensive de jure and de facto control over the war veterans", noting that the Chairperson of the Zimbabwe Liberation War Veteran
Association, Dr. Hunzvi made a statement in court to the effect that
President Mugabe had control over the war veterans. The complainant was
therefore implying that the ZANU (PF) and the War Veterans were either State
apparatus or were controlled by the Government. In its submission of 23
February 2004 the complainant argued further that even if it were found that
ZANU (PF) supporters and war veterans were not agents of the government,
read together with the general obligation under Article 1 of the African
Charter, the government could still be held liable for a violation of the
Charter, noting that under Article 1 of the Charter, the government is
required to take all necessary measures to ensure that people within its
jurisdiction are treated in accordance with international norms and
standards.
138. In the opinion of this Commission, the ZANU (PF) is a political party
(the ruling party) in Zimbabwe and just like any other party in the country,
distinct from the government. It has an independent identity from the
government with its own structures and administrative machinery, even though
some of the members of the Zimbabwe Government - cabinet ministers, also
hold top ranking positions in the party. For example, President Robert
Mugabe is the President and First Secretary General of the Party. [FN35]
This Commission also holds that the War Veterans Association is a group of
ex-combatants of the Zimbabwe liberation struggle. President Mugabe was the
Patron during the period under consideration.
--------------------------------------------------------------------------------
[FN35] Seventeen members of the Zimbabwe cabinet are also members of the
ZANU (PF) Politburo, the decision making organ of the party.
--------------------------------------------------------------------------------
139. Given what this Commission will call the "mixed membership", it would
appear that there is a very thin line to be drawn between the Government and
the ZANU (PF), the Government and War Veterans and between the ZANU (PF) and
the War Veterans. There are members of government who are members of the
party and members of the party who are war veterans. However thin the line
of distinction may seem, it is not the view of the African Commission that
the ZANU (PF) and the Zimbabwe Liberation War Veterans Association are
structures of the Government or organs of the State. The complainant did not
supply the African Commission with documentary evidence to prove this
relationship. Even if President Mugabe is Patron of the War Veterans and
exercises control over the group, this does not make the war veteran
association part of government or State machinery.
140. It must also be noted that during oral submissions by both parties at
the 35th Ordinary Session of the African Commission, the complainant dropped
its argument that the ZANU (PF) and the Zimbabwe Liberation War Veterans
Association were structures of the government or organs of the State. The
complainant noted in its submission of 26 August 2004 that
"the assertion
that the Respondent State acquiesced to the gross violations of human rights
is based not on agency but a failure to effectively protect its citizens
from the harmful conduct of third parties". In the African Commission's view
therefore, the complainant has admitted not only that ZANU (PF) and the War
Veterans are not government structures or organs of the State, but is also
accepting the State's argument that it had nothing to do with their alleged
actions. The complainant is simply concerned with the fact that the State
has a responsibility to effectively protect its citizens from the harmful
conduct of third parties, a responsibility, which, according to the
complainant, the Respondent State failed to discharge. It is therefore the
view of the African Commission that both ZANU (PF) and the Zimbabwe
Liberation War Veterans Association are organisations outside the government
or State structures and as such, non-state actors.
141. Having established that ZANU (PF) and the Zimbabwe liberation War
Veterans Association are non-state actors, the Commission will proceed to
deal with the complainant's major concern
- the state's responsibility to
effectively protect its citizens from the harmful conduct of third parties
(non-state actors), can the violence and atrocities alleged to have been
committed by these non-state actors be attributed to the Respondent State or
put differently, can the Respondent State be held responsible for the
violations committed by these non-State actors?
ISSUE THREE: EXTENT OF A STATE’S RESPONSIBILITY FOR ACTS OF NON-STATE ACTORS
142. Article 1 of the African Charter is essential in determining whether a
violation of the human rights recognised by the Charter can be imputed to a
State Party or not. That Article charges the States Parties with the
fundamental duty to "recognize the rights... and undertake to adopt
legislative or other measures to give effect to them". Any impairment of
those rights which can be attributed under the rules of international law to
the action or omission of any public authority constitutes an act imputable
to the State, which assumes responsibility in the terms provided by the
African Charter.
143. Human rights standards do not contain merely limitations on State's
authority or organs of State. They also impose positive obligations on
States to prevent and sanction private violations of human rights. Indeed,
human rights law imposes obligations on States to protect citizens or
individuals under their jurisdiction from the harmful acts of others. Thus,
an act by a private individual and therefore not directly imputable to a
State can generate responsibility of the State, not because of the act
itself, but because of the lack of due diligence [FN36] to prevent the
violation or for not taking the necessary steps to provide the victims with
reparation.
--------------------------------------------------------------------------------
[FN36] In human rights jurisprudence this standard was first articulated by
a regional court, the Inter American Court of Human Rights, in looking at
the obligations of the state of Honduras under the American Convention on
Human Rights - Velásquez Rodriguez, ser C, No 4, 9 Human Rights Law Journal
212 (1988). The standard of due diligence has been explicitly incorporated
into United Nations standards, such as the Declaration on the Elimination of
Violence against Women which says that states should 'exercise due diligence
to prevent, investigate and, in accordance with national legislation, punish
acts of violence against women, whether those acts are perpetrated by the
state or by private persons'. Increasingly, UN mechanisms monitoring the
implementation of human rights treaties, the UN independent experts, and the
court systems at the national and regional level are using this concept of
due diligence as their measure of review, particularly for assessing the
compliance of states with their obligations to protect bodily integrity.
--------------------------------------------------------------------------------
144. The Inter-American Court of Human Rights has issued a judgment in the
case of Velásquez Rodríguez v Honduras [FN37] which articulates one of the
most significant assertions of State responsibility for acts by private
individuals. The Court stated that a State "has failed to comply with [its]
duty... when the State allows "private persons or groups to act freely and
with impunity to the detriment of the rights recognized by the Convention".
[FN38] In the same case, the Inter American Court reaffirmed that States are
"obliged to investigate every situation involving a violation of the rights
protected by [international law]". Moreover, the Court required Governments
to: "take reasonable steps to prevent human rights violations and to use the
means at its disposal to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to impose
the appropriate punishment and to ensure the victim adequate compensation."
[FN39] This represents an authoritative interpretation of an international
standard on State duty. The opinion of the Court could also be applied, by
extension, to Article 1 of the African Charter of Human and Peoples' Rights,
which requires States parties to "recognize the rights, duties and freedoms
enshrined in the Charter and ...undertake to adopt legislative and other
measures to give effect to them". Thus, what would otherwise be wholly
private conduct is transformed into a constructive act of State, "because of
the lack of due diligence to prevent the violation or respond to it as
required by the [African Charter]".
--------------------------------------------------------------------------------
[FN37] Series C, no 4, 9 Human Rights Law Journal 212 (1988).
[FN38] Velásquez Rodríguez para 176.
[FN39] As above, para 174
--------------------------------------------------------------------------------
145. The Inter-American Court of Human Rights in the Velàsquez Rodriguez
Case, thus affirmed that: "an illegal act which violates human rights and
which is initially not directly imputable to a State (for example, because
it is the act of a private person or because the person responsible has not
been identified) can lead to international responsibility of the State, not
because of the act itself, but because of the lack of due diligence to
prevent the violation or to respond to it as required by the Convention [or
the African Charter]".[FN40]
--------------------------------------------------------------------------------
[FN40] As above, para 172.
--------------------------------------------------------------------------------
146. The established standard of due diligence in the Rodriguez Case
provides a way to measure whether a State has acted with sufficient effort
and political will to fulfil its human rights obligations. Under this
obligation, States must prevent, investigate and punish acts which impair
any of the rights recognised under international human rights law. Moreover,
if possible, it must attempt to restore the right violated and provide
appropriate compensation for resulting damage.
147. In fact, international [FN41] and regional [FN42] human rights
standards expressly require States to regulate the conduct of non-state
actors containing explicit obligations for States to take effective measures
to prevent private violations of human rights. The doctrine of due diligence
is therefore a way to describe the threshold of action and effort which a
State must demonstrate to fulfil its responsibility to protect individuals
from abuses of their rights. A failure to exercise due diligence to prevent
or remedy violation, or failure to apprehend the individuals committing
human rights violations gives rise to State responsibility even if committed
by private individuals. This standard developed in regard to the protection
of aliens has subsequently been applied in regard to acts against nationals
of the State. The doctrine of due diligence requires the State to
"organize
the governmental apparatus, and in general, all the structures through which
public power is exercised, so that they are capable of juridically ensuring
the free and full enjoyment of human rights".[FN43]
--------------------------------------------------------------------------------
[FN41] The Covenant on Civil and Political Rights (ICCPR), in its art
2(3)(a), imposes a duty on each party to ensure an effective remedy to any
person whose rights or freedoms are violated, whether or not by persons
acting in an official capacity. Further, as far as the definition of torture
is involved, the Human Rights Committee in its general comment 20 on art 7
of the ICCPR stated that: 'It is the duty of the state party to afford
everyone protection through legislative and other measures as may be
necessary against the acts prohibited by art 7, whether inflicted by people
acting in their official capacity, outside their official capacity or in a
private capacity'. The Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW): Under art 2(e) states undertake
'all
appropriate measures to eliminate discrimination against women by any person, organization or
enterprise'. The CEDAW supervising Committee further stated that:
'Discrimination under the Convention is not restricted to action by or on
behalf of Governments.. Under general international law and specific human
rights Covenants, States may also be responsible for private acts if they fail to act with due
diligence to prevent violations of rights or to investigate and punish acts
of violence and for providing compensation'. Art 4(c) of the UN Declaration
on the Elimination of Violence Against Women obliges states to
'[E]xercise
due diligence to prevent, investigate and in accordance with national
legislation, punish acts of violence against women whether those acts are
perpetrated by the State or by private persons'.
[FN42] Arts 2, 3, 8 and 14 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms establish a positive obligation on the
state (including through legislative means). Art 1 of the American
Convention provides that 'the states parties to this Convention undertake to
respect the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction the free and full exercise of those
rights and freedoms, without any discrimination for reasons of race, colour,
sex, language, religion, political or other opinion, national or social
origin, economic status, birth, or any other social condition'.
--------------------------------------------------------------------------------
[FN43] Velásquez Rodríguez para 166.
--------------------------------------------------------------------------------
148. From the foregoing, can it be argued that the Respondent State’s
actions to deal with the allegations or the violence alleged to have been
committed by individuals and non-state actors during the period under
consideration meet the due diligence test?
149. To fully conceptualize a State's responsibility in terms of the due
diligence doctrine, it must be made clear who is responsible and to what
degree, where that responsibility arises from, towards whom such
responsibility exists, and how such responsibility is asserted. [FN44] Thus,
in this context, the task is not only to identify the responsibilities, but
also to reflect on whether and under what conditions the State can be
responsible for violations by private actors. The underlying aspect is that
it is up to States, and States alone, to carry out obligations established
by international human rights treaties.
--------------------------------------------------------------------------------
[FN44] In general, see the Dutch branch of Amnesty International and Pax
Christi International,
Multinational Enterprises and Human Rights, Utrecht, November 1998, ch III,
www.paxchristi.nl/mne.html (15 January 2002). Although any complete set of
peremptory human rights has not been agreed upon, discussions frequently
mention: genocide, crimes against humanity, piracy, torture, slavery, and
war crimes. See eg Bassiouni 'The sources and content of international
criminal law: A Theoretical Framework' in M Cherif Bassiouni International
Criminal Law (2 ed), vol I, 3-125, at 41, and Ian Seiderman Hierarchy in
international law: The human rights dimension (2001) 66-1
--------------------------------------------------------------------------------
150. State responsibility in general terms denotes a situation which occurs
following a breach by a State of its legal obligations. Such obligations can
be negative or positive, and can give rise to direct and indirect
responsibilities. [FN45] In all of its aspects therefore the question of
responsibility must also be related to the element of breach
- breach of a
duty to respect, protect, promote or fulfil the rights of persons under its
jurisdiction.
--------------------------------------------------------------------------------
[FN45] C Scott (ed) Torture as tort: Comparative perspectives on the
development of transnational human rights litigation (2001) 47-48
--------------------------------------------------------------------------------
151. In its decision in Communication No 155/96, [FN46] the African
Commission noted that internationally accepted ideas of the various
obligations engendered by human rights indicate that all rights - both civil
and political rights and social and economic - generate at least four levels
of duties for a State that undertakes to adhere to a rights regime, namely,
the duty to respect, protect, promote, and fulfil.
--------------------------------------------------------------------------------
[FN46] [(2001) AHRLR 60 (ACHPR 2001)].
--------------------------------------------------------------------------------
152. At a primary level, the obligation to respect entails that the State
should refrain from interfering in the enjoyment of all fundamental rights;
it should respect right-holders, their freedoms, autonomy, resources, and
liberty of their action. [FN47] At a secondary level, the State is required
to ensure others also respect their rights. This is what is called the
State's obligation to protect right-holders against other subjects by
legislation and provision of effective remedies. This obligation requires
the State to take measures to protect beneficiaries of the protected rights
against political, economic and social interferences. Protection generally
entails the creation and maintenance of an atmosphere or framework of an
effective interplay of laws and regulations so that individuals will be able
to freely realize their rights and freedoms. This is very much intertwined
with the tertiary obligation of the State to promote the enjoyment of all
human rights. The State should make sure that individuals are able to
exercise their rights and freedoms, for example, by promoting tolerance,
raising awareness, and even building infrastructures. The last layer of
obligation requires the State to fulfil the rights and freedoms it freely
undertook under the various human rights regimes. It is more of a positive
expectation on the part of the State to move its machinery towards the
actual realisation of the rights.
--------------------------------------------------------------------------------
[FN47] K Drzewicki 'Internationalization of human rights and their
juridization' in R Hanski and M Suksi (eds) An introduction to the
international protection of human rights: A textbook (1999) 31.
--------------------------------------------------------------------------------
153. In Communication 74/92, [FN48] the African Commission held that
governments have a duty to protect their citizens, not only through
appropriate legislation and effective enforcement but also by protecting
them from damaging acts that may be perpetrated by private parties. This
illustrates the positive action expected of governments in fulfilling their
obligation under human rights instruments. This obligation of the State is
further emphasised in the practice of the European Court of Human Rights, in
X and Y v. Netherlands. [FN49] In this particular case, the Court pronounced
that there was an obligation on authorities to take steps to make sure that
the enjoyment of the rights is not interfered with by any other private
person.
--------------------------------------------------------------------------------
[FN48] Commission Nationale des Droits de l’Homme et des Libertés v Chad
[(2000) AHRLR 66 (ACHPR 1995)].
[FN49] 91 ECHR (1985) (Ser A) at 3
--------------------------------------------------------------------------------
154. In the present communication, the Respondent State has an obligation to
make sure the rights of persons under its jurisdiction are not interfered
with by third parties. The State argues that during the riots the police
were deployed in areas where violence was reported and cases of alleged
abuses were duly investigated. The State added that however, due to the
circumstances prevailing at the time, the nature of the violence and the
fact that some victims could not identify their alleged perpetrators, the
police were not able to investigate all cases referred to them.
155. The extent of a State's responsibility must not be determined in the
abstract. Each case must be treated on its own merits depending on the
specific circumstances of the case and the rights violated. This follows
therefore that, in choosing how to provide effective protection of human
rights, there are different means at a State’s disposal. [FN50] This is
still a disputed element but the International Court of Justice (ICJ) has
held due diligence in terms of "means at the disposal" of the State. [FN51]
Nevertheless, this need not be inconsistent with maintaining some minimum
requirements. [FN52] It could well be assumed that for non-derogable human
rights the positive obligations of States would go further than in other
areas.
--------------------------------------------------------------------------------
[FN50] Plattform 'Ärzte für das Leben' v Austria, (21 June 1988),
Publications of the European Court of Human Rights, Series A, vol 139, para
34: '...while it is the duty of the Contracting States to take reasonable and
appropriate measures to enable lawful demonstrations to proceed peacefully,
they cannot guarantee this absolutely and they have a wide discretion in the
choice of the means to be used'.
[FN51] Case Concerning United States Diplomatic and Consular Staff in Tehran
(US v. Iran), judgment, ICJ Reports 1980.
[FN52] B Smith State responsibility and the marine environment The rules of
decision (1988) 32.
--------------------------------------------------------------------------------
156. An analysis of the feasibility of effective State action must also be
undertaken. A finding that no reasonable diligence could have prevented the
event has contributed to denials of responsibility. [FN53] In the present
communication, the Respondent State contended that the Police did their best
to investigate the allegations brought to them.
--------------------------------------------------------------------------------
[FN53] Sornarajah 'Linking state responsibility for certain harms caused by
corporate nationals abroad to civil recourse in the legal systems of home
states', and T Meron Human rights and humanitarian norms as customary law
(1989) 159.
--------------------------------------------------------------------------------
157. Could the Respondent State have foreseen the violence and taken
measures to prevent it? Even though it is not always possible for a State to
know beforehand how a non-state actor is going to act, States have the
responsibility, not only to protect human rights, but also to prevent the
violation of human rights. The question to be addressed here is not
necessarily who violated the rights, but whether under the present
communication, the state took the necessary measures to prevent violations
from happening at all, or having realized violations had taken place, took
steps to ensure the protection of the rights of the victims.
158. A single violation of human rights or just one investigation with an
ineffective result does not establish a lack of due diligence by a State.
[FN54] Rather, the test is whether the State undertakes its duties
seriously. [FN55] Such seriousness can be evaluated through the actions of
both State agencies and private actors on a case-by-case basis.
--------------------------------------------------------------------------------
[FN54] Commission on Human Rights, fifty-second session, February 1996,
report of the Special Rapporteur on violence against women, its causes and
consequences, ‘Further promotion and encouragement of human rights and
fundamental freedoms, including the question of the programme and methods of
work of the Commission alternative approaches and ways and means within the
United Nations system for improving the effective enjoyment of human rights
and fundamental freedoms’, submitted in accordance with Commission on Human
Rights resolution 1995/85.
[FN55] As above.
--------------------------------------------------------------------------------
159. The due diligence requirement encompasses the obligation both to
provide and enforce sufficient remedies to survivors of private violence. In
general terms, the Human Rights Committee has held, for example, that the
existence of legal rules does not suffice to fulfil a condition of
reasonable measures. The rules must also be implemented and applied
(entailing for instance, investigations and judicial proceedings) and
victims must have effective remedy. [FN56] Thus, the existence of a legal
system criminalizing and providing sanctions for assault and violence would
not in itself be sufficient; the Government would have to perform its
functions to "effectively ensure" that such incidents of violence are
actually investigated and punished. For example, actions by State employees,
the police, justice, health and welfare departments, or the existence of
government programmes to prevent and protect victims of violence are all
concrete indications for measuring due diligence. Individual cases of policy
failure or sporadic incidents of non-punishment would not meet the standard
to warrant international action.
--------------------------------------------------------------------------------
[FN56] E Klein ‘The duty to protect and to ensure human rights under the
International Covenant on Civil and Political Rights’ in E Klein (ed) The
duty to protect and to ensure human rights (Colloquium, Potsdam, 1-3 July
1999) 2000.
--------------------------------------------------------------------------------
160. It follows from the above that, by definition, a State can be held
complicit where it fails systematically to provide protection of violations
from private actors who deprive any person of his/her human rights. However,
unlike for direct State action, the standard for establishing State
responsibility in violations committed by private actors is more relative.
Responsibility must be demonstrated by establishing that the State condones
a pattern of abuse through pervasive non¬-action. Where States do not
actively engage in acts of violence or routinely disregard evidence of
murder, rape or assault, States generally fail to take the minimum steps
necessary to protect their citizens' rights to physical integrity and, in
extreme cases, to life. This sends a message that such attacks are justified
and will not be punished. To avoid such complicity, States must demonstrate
due diligence by taking active measures to protect, prosecute and punish
private actors who commit abuses.
161. In the present communication, the State indicated measures that it took
to deal with the alleged human rights violations, including amendment of
legislation, arrest and prosecution of alleged perpetrators, payment of
compensation to some victims and ensuring that it investigated most of the
allegations brought to its attention. The complainant did not dispute these
actions claimed to have been taken by the Respondent State but contends
instead that the actions were not sufficient and were not taken early enough
to be diligent.
162. The question to be asked is whether these measures taken by the State
were sufficient for the Commission to come to the conclusion that the State
had discharged its duty?
163. The complainant did not dispute these actions claimed to have been
taken by the Respondent State but contended instead that the actions were
not sufficient and were not taken early enough to be diligent. The
complainant also did not demonstrate collusion by the State to either aid or
abet the non-state actors in committing the violence, and equally failed to
show that the State remained indifferent to the violence that took place.
This view is supported by the conclusion of the Report of the this
Commission's Fact -Finding Mission to the Respondent State which noted tha
"there were allegations that the human rights violations that occurred were
in many instances at the hands of ZANU PF party activists. The Mission [was]
however not able to find definitively that this was part of an orchestrated
policy of the government of the Republic of Zimbabwe. There were enough
assurances from the Head of State, Cabinet Ministers and the leadership of
the ruling party that there has never been any plan or policy of violence,
disruption or any form of human rights violations, orchestrated by the
State".
164. Given the above, the African Commission cannot find that with regards
to the violence perpetrated by the non-state actors, the Respondent State
failed to comply with its duty under Article 1 of the African Charter to
"...adopt other measures to give effect to [the rights]" and to that extent
cannot find the State to have violated Article 1 of the African Charter.
ALLEGATION OF VIOLATION OF SPECIFIC PROVISIONS OF THE AFRICAN CHARTER
165. Apart from alleging that the Respondent State has breached its
fundamental duty under Article 1 of the African Charter, the complainant
also alleged the violations of several other provisions of the African
Charter namely, Articles 2,3,4,5,9,10,11 and 13.
166. Before addressing itself to whether the State has violated any of the
provisions of the African Charter, the African Commission would like to rule
on the matter raised by the Respondent State that because the complainant
did not mention some of the rights during its submission on the merits, it
means they have abandoned their allegations of violation of those rights.
167. The African Commission would like to state that the failure by the
complainant to indicate the particular articles or the rights of the African
Charter alleged to have been violated is not fatal, to the extent of
regarding the communication inadmissible or unmeritorious. He or she does
not need to indicate the remedy sought. It is for the African Commission,
after consideration of all the facts at its disposal, to make a
pronouncement on the rights violated and recommend the appropriate remedy to
reinstate the complainant to his or her right.
168. With respect to allegations of violation of Article 2 and 3(2) -
complainant submits that the Respondent State denied the victims their
rights as guaranteed by the African Charter on the basis of their political
opinions. Article 2 of the African Charter provides that
"Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin,
fortune, birth or any status. Article 3(2) provides that
"every individual
shall be entitled to equal protection of the law".
169. Together with equality before the law and equal protection of the law,
the principle of non-discrimination provided under Article 2 of the Charter
provides the foundation for the enjoyment of all human rights. As Shestack
has observed, equality and non-discrimination “are central to the human
rights movement". [FN57] The aim of this principle is to ensure equality of
treatment for individuals irrespective of nationality, sex, racial or ethnic
origin, political opinion, religion or belief, disability, age or sexual
orientation. The African Commission has held in Communication 211/98 [FN58]
that the right protected in Article 2 is an important entitlement as the
availability or lack thereof affects the capacity of one to enjoy many other
rights.[FN59]
--------------------------------------------------------------------------------
[FN57] J Shestack 'The jurisprudence of human rights' in T Meron (ed) Human
rights in international law: Legal and policy issues (1984) 101.
[FN58] Legal Resources Foundation v Zambia.
[FN59] As above.
--------------------------------------------------------------------------------
170. Discrimination can be defined as applying any distinction, exclusion,
restriction or preference which is based on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, and which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise by all
persons, on equal footing, of all rights and freedoms. [FN60] From the
definition of discrimination provided above, we can conclude that a
universal 'composite concept of discrimination' can contain the following
elements, stipulates a difference in treatment, has a certain effect and is
based on a certain prohibited ground.
--------------------------------------------------------------------------------
[FN60] See Human Rights Committee general comment 18.
--------------------------------------------------------------------------------
171. The general obligation is on States Parties to the different human
rights treaties to ensure through relevant means that persons under their
jurisdiction are not discriminated on any of the grounds in the relevant
treaty. Obligations under international human rights law are generally
addressed in the first instance to States. Their obligations are at least
threefold: to respect, to ensure and to fulfil the rights under
international human rights treaties. A State complies with the obligation to
respect the recognised rights by not violating them. To ensure is to take
the requisite steps, in accordance with its constitutional process and the
provisions of relevant treaty (in this case the African Charter), to adopt
such legislative or other measures which are necessary to give effect to
these rights. To fulfil the rights means that any person whose rights are
violated would have an effective remedy as rights without remedies have
little value. Article 1 of the African Charter requires States to ensure
that effective and enforceable remedies are available to individuals in case
of discrimination.
172. The complainant in the present communication concedes in their
submission that the violence and alleged human rights violations were
carried out by non-state actors including supporters of ZANU (PF), the War
Veterans and some members of the MDC. The complainant has not shown that
there was any deliberate policy of the government to encourage this violence
and by so doing discriminate against persons holding an alternative
political view. The Respondent State provided the Commission with proof that
it did investigate some of the allegations and the complainant did not
challenge the fact the State investigated some of the allegations. Based on
the evidence before it, the African Commission could not establish whether
there was a discriminatory pattern in the way the police conducted
investigations on the alleged violations. However, the legislative and other
measures taken by the government to deal with the violence does not suggest,
in the opinion of the African Commission, a discriminatory pattern.
173. Sometimes a law may be neutral on its face, yet have a disparate impact
on a group of people due to its application. For example, in Yick Wo v.
Hopkins, [FN61] Justice Stanley Matthews commented on the disparity in law
enforcement by saying:
"though the law itself be fair on its face and impartial in appearance, yet,
if applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, and the
denial of equal justice is still within the prohibition of the [Charter]".
--------------------------------------------------------------------------------
[FN61] 118 US 356 (1886)
--------------------------------------------------------------------------------
174. For there to be equal protection of the law, the law must not only be
fairly applied but must be seen to be fairly applied. Paragraph 9 (3) (a) of
the Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms [FN62] provides that everyone must be given the
right to complain about the policies and actions of individual officials and
governmental bodies with regard to violations of human rights and
fundamental freedoms, by petition or other appropriate means, to competent
domestic judicial, administrative or legislative authorities or any other
competent authority provided for by the legal system of the State, which
should render their decision on the complaint without undue delay.
--------------------------------------------------------------------------------
[FN62] UN General Assembly resolution 53/144.
--------------------------------------------------------------------------------
175. The complainant in the present communication claims that the police
selectively enforced the law to the prejudice of the victims - that the
police refused to record and investigate complaints filed by the victims.
Due to the above behaviour of the Police, the complainant concludes that the
conduct amounted unequal protection of the law in a violation of Article
3(2) of the Charter. The State on its part holds that the police was
deployed in all areas where violence was reported and because of the
widespread nature of the violence and the scanty information provided to the
police by the victims, the police could not effectively investigate all the
allegations. The complainant provided unsigned statements to the Commission
of persons who reported their cases to the police but were either turned
away or the cases were not investigated.
176. While the African Commission cannot dispute the fact that the alleged
victims did complain to the police or that they made declarations to the
complainant about the alleged conduct of the police and while the African
Commission cannot confirm or deny the allegations against the police, the
fact that the declarations submitted by the complainant were not made under
oath or corroborated by sworn affidavits makes it difficult to ascertain
their authenticity. This Commission cannot accept the complainant's
submission that the newspaper articles attached to the communication as
appendix two corroborate the statements allegedly made by the alleged
victims. The African Commission can therefore not rely on these declarations
to conclude that the alleged victims were victimised, discriminated or
denied equal protection of the law.
177. With respect to allegations of violation of articles 4 and 5 of the
African Charter, the complainant alleges that extra-judicial executions and
torture were perpetrated by supporters of the ZANU (PF) and the war
veterans.
178. The Respondent State noted on the other hand that for it to be held
responsible, the violations must be inflicted [FN63] by or at the
instigation of, or with the consent or acquiescence of a public official or
other person acting in an official capacity [FN63].
--------------------------------------------------------------------------------
[FN63] See art 1 of the Conventions Against Torture and other Cruel, Inhuman
and Degrading Treatment, 1984
--------------------------------------------------------------------------------
179. Citing the UN Principles on the Effective Prevention and Investigation
of Extra - Legal, Arbitrary and Summary Executions, [FN64] the State noted
that generally extra-judicial executions are attributable to State organs
and officials in the ordinary exercise of governance. This is supported by
the U.N. Manual on the Effective Prevention and Investigation of
Extra-Legal, Arbitrary and Summary Executions. [FN65] The introductory
paragraph of the 1991 United Nations Manual provides that such executions
include: (a) political assassinations; (b) deaths resulting from torture or
ill-treatment in prison or detention; (c) death resulting from enforced
"disappearances"; (d) deaths resulting from the excessive use of force by
law-enforcement personnel; (e) executions without due process; and (f) acts
of genocide. The six circumstances of extra-judicial executions mentioned in
the UN Manual point to the fact that under international law, such
executions can only be carried out by the State or through its agents or
acquiescence.
--------------------------------------------------------------------------------
[FN64] Recommended by Economic and Social Council resolution 1989/65 of 24
May 1989.
[FN65] UN Doc G/ST/CS DHA/12 (1991).
--------------------------------------------------------------------------------
180. The UN Fact Sheet No.11 provides that the "situations of extrajudicial,
summary or arbitrary execution" which the Special Rapporteur is requested to
examine include all acts and omissions of State representatives that
constitute a violation of the general recognition of the right to life
embodied in the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. [FN66] This view is also supported
by the Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human
Rights and Fundamental Freedoms which stresses that the prime responsibility
and duty to promote and protect human rights and fundamental freedoms lie
with the State. [FN67] This is in line with Article 1 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which provides that
"the term "torture" means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity...".
--------------------------------------------------------------------------------
[FN66] Fact Sheet no 11 (Rev1), Extrajudicial, Summary or Arbitrary
Executions.
[FN67] UN General Assembly resolution 5
--------------------------------------------------------------------------------
181. The above international human rights instruments support the State's
argument that extra-judicial executions and torture are caused by the State
or through its agents or acquiescence. In the present communication, the
complainant alleges that killings were committed by ZANU (PF) supporters and
war veterans. The Respondent State maintains that to fulfil its obligations
under international law, it investigated allegations of suspected deaths and
the perpetrators were charged with the criminal law crime of murder. Some of
them have been found guilty while some are still being prosecuted. The
complainant does not dispute the fact that such investigations had been
undertaken but argue they were not effective. From the above reasoning, the
Respondent State cannot be liable for extrajudicial executions as alleged by
the complainants, and accordingly cannot be said to have violated Article 4
of the African Charter.
182. In the specific case of the killing of Chiminya and Makiba, the
Respondent State in its oral submission at the 35th Ordinary Session of the
African stated that investigations into the murder was initiated immediately
and three of the alleged perpetrators, Webster Gwamba, Bernard Makuwe and
Morris Kainosi were arrested and remanded into custody and the Police was
still looking for Mr. Mwale. The State noted further that the three accused
have been charged and are awaiting trial. Based on the fact that the matter
is still before the Courts in Zimbabwe, the African Commission decided not
to make a decision on it at the admissibility stage. It will therefore not
pronounce on it at this stage as well.
183. Regarding the allegation of torture, the complainant did not adduce any
evidence to show that State organs were responsible or that the government
or State organs connived with ZANU (PF) supporters and War Veterans to
inflict pain on others. The State can also not be held responsible because
it has demonstrated that it investigated allegations brought to its
attention. Under international law, responsibility can lie directly to the
individuals and non-state actors for their acts.
184. Regarding allegations of arbitrary detention, the complainant argues
that the victims were abducted or kidnapped and detained by war veterans and
ZANU (PF) supporters. Article 6 of the African Charter provides for the
right to liberty and protection from arbitrary detention.
185. Under international law, arbitrary detention or arrest refers to
detention that is not consistent with due process of the law established by
the State or international human rights norms. The UN Working Group on
Arbitrary Detention in its opinion on the arbitrary detention of Dr. Wang in
Case No 10/2003 [FN68] declared that
"Wang, during his first five months in detention, did not have knowledge of
the charges, the right to legal counsel, or the right to judicial review of
the arrest and detention; and that, after that date, he did not benefit from
the right to the presumption of innocence, the right to adequate time and
facilities for defense, the right to a fair trial before an independent and
impartial tribunal, the right to a speedy trial and the right to
cross-examine witnesses".
--------------------------------------------------------------------------------
[FN68] Wang v People's Republic of China, regarding the continuing detention
of Dr Wang Bingzhang, and the past detentions of Yue Wu, and Zhang Qi. The
so-called 'Democracy Three' were kidnapped on the Vietnamese border and
taken by force into China, where they were subsequently detained by the
government.
--------------------------------------------------------------------------------
186. These fair trial procedures required by the UN are only available
within a State setup and a person held by other individuals or non-state
actors such as ZANU (PF) or the War veterans cannot be required to invoke a
violation of these fair trial requirements because they do not exist under
those circumstances. The situation would have been different if the
non-state actors were holding the victims on behalf of the State, but the
complainant has not shown such agency. The Respondent State can therefore
not be said to have violated article 6 of the African Charter because unlike
communications 140/94, 141/94 and 145/95 where the violations were
perpetrated by the policemen and security personnel of the Federal Republic
of Nigeria, the current communication alleges violations caused by
organisations and individuals not associated with the State. These
individuals and organizations can, under international law, be held
personally liable for human rights violations and under national law be
charged with common law offences. The State becomes liable only when it is
informed of such acts and it fails to take action, which in the present
instance, the State claimed to have investigated.
187. With respect to allegations of violation of Articles 9, 10, 11 and 13
of the African Charter guaranteeing freedoms of expression, association and
assembly, the right to participate freely in the government of one’s
country, respectively, the complainant argues that the victims were forced
by supporters of the ruling party to surrender their party campaign material
and that the victims were prevented from communicating to others. In
Communications 137/94, 139/94, 154/96 and 161/97 [FN69] the African
Commission held that there is a close relationship between the right to
freedom of expression and the rights to association and assembly. Because of
that relationship, the actions of the government not only violated the
rights to freedom of assembly and association, but also implicitly violated
the right to freedom of expression. In the above communications, the actions
that occasioned the violations were the direct consequence of the State
action. However, in the present communication, the violations alleged to
have been committed were done by individuals or organisations not directly
connected to the State Party. For this reason, the State cannot be said to
have violated Articles 9, 10, 11 and 13 of the African Charter.
--------------------------------------------------------------------------------
[FN69] International Pen and Others (on behalf of Saro-Wiwa) v Niger
--------------------------------------------------------------------------------
ISSUE FOUR:THE CLEMENCY ORDER AND THE RESPONDENT’S STATE’S HUMAN RIGHTS
OBLIGATIONS UNDER THE AFRICAN CHARTER
188. The complainant submits that by virtue of Clemency Order No 1 of 2000,
the victims of human rights abuses could not seek redress for the human
rights violations they suffered because they could not challenge the
Clemency order. The Clemency Order granted pardon to every person liable to
criminal prosecution for any politically motivated crime committed between
January and July 2000. The Respondent State emphasised that the prerogative
of clemency is recognised as an integral part of constitutional democracies.
To ensure that those who had committed more serious offences do not go
unpunished, the Clemency Order excluded crimes such as murder, rape,
robbery, indecent assault, statutory rape, theft and possession of arms. The
Respondent State further noted that a decision by the African Commission
that the Clemency Order is an abdication of Zimbabwe's obligations under the
African Charter would amount to undermining the whole notion of the clemency
prerogative worldwide.
189. The African Commission would like to first of all address the assertion
by the Respondent State that "a decision by the African Commission that the
Clemency Order is an abdication of Zimbabwe's obligations under the Charter
would amount to undermining the whole notion of the clemency prerogative
worldwide". This assertion by the Respondent State seems to imply that the
African Commission lacks the competence to make a determination on this
matter.
190. The African Commission was established to monitor and ensure the
protection of all human rights enshrined in the African Charter. It does
this through among other things, making sure that policies and legislation
adopted by States Parties to the African Charter do not contravene the
provisions of the African Charter. The fact that the doctrine of clemency is
universally recognized does not preclude the African Commission from making
a determination on it, especially if it is believed that its use has been
abused to the extent that human rights as contained in the African Charter
have been violated. The African Commission would also like to emphasise the
point that the African Charter is an International Treaty and it is
customary in international law that where domestic legislation, including a
national constitution is in conflict with international law, the latter
prevails. The African Commission is therefore competent to make a
determination on any domestic legislation, including a domestic legislation
in a constitutional democracy that grants the Executive absolute discretion.
191. Having concluded that it has the competence to rule on the question of
the Clemency Order, the African Commission would now determine whether the
Clemency Order as issued by the Respondent State violated the latter’s
obligation under the African Charter. The Clemency Order granted pardon to
every person liable to criminal prosecution for any politically motivated
crime committed between January and July 2000.
192. The Order also granted a remission of the whole or remainder of the
period of imprisonment to every person convicted of any politically
motivated crime committed during the stated period. In terms of the Clemency
Order, "a politically motivated crime" is defined as:
Any offence motivated by the object of supporting or opposing any political
purpose and committed in connection with
The Constitutional referendum held on the 12th and 13th of February 2000; or
The general Parliamentary elections held on 24th and 25th June 2000;
whether committed before, during or after the said referendum or elections".
193. The only crimes exempted from the Clemency Order were murder, robbery,
rape, indecent assault, statutory rape, theft, possession of arms and any
offence involving fraud or dishonesty.
194. The Clemency Order under review in the present communication relates to
a situation where non-state actors are alleged to have violated human
rights, a situation of genaralised violence which according to the state was
politically motivated, a situation which resulted in loss of life and
property. In a bid to reconcile the population the Respondent State passed
Decree No. 1 of 2000 adopting executive clemency to absolve perpetrators of
violence if the latter related to "any offence motivated by the object of
supporting or opposing any political purpose". The question for the African
Commission is to determine whether the clemency order in question is a
negation of the State’s responsibility under Article 1 of the African
Charter.
195. The term clemency is a general term for the power of an executive to
intervene in the sentencing of a criminal defendant to prevent injustice
from occurring. [FN70] The exercise of executive clemency is inherent in
many, if not, all constitutional democracies of the world. National
governments have chosen to implement clemency for a number of reasons. For
instance, executive clemency exists to afford relief from undue harshness or
evident mistake in the operation or enforcement of the criminal law. The
administration of justice by the courts is not necessarily always just or
certainly considerate of circumstances which may properly mitigate guilt. To
afford remedy, it has always been thought essential to vest in some
authority other that the courts, power to ameliorate or avoid particular
criminal judgments.[FN71]
--------------------------------------------------------------------------------
[FN70] A Madden 'Clemency for battered women who kill their abusers: finding
a just forum' 4 Hastings Women' LJ 1, 50 (1993).[FN71] L Ammons,
'Discretionary justice: A legal and policy analysis of a
governor's use of the clemency power in the cases of incarcerated battered
women' 3 JL & Policy 1, 30 (1994).
--------------------------------------------------------------------------------
196. Clemency embraces the constitutional authority of the President to
remit punishment using the distinct vehicles of pardons, amnesties,
commutations, reprieves, and remissions of fines. An amnesty is granted to a
group of people who commit political offences, e.g. during a civil war,
during armed conflicts or during a domestic insurrection. A pardon may
lessen a defendant's sentence or set it altogether. One may be pardoned even
before being formally accused or convicted. While a pardon attempts to
restore a person's reputation, a commutation of sentence is a more limited
form of clemency. It does not remove the criminal stigma associated with the
crime, it merely substitutes a milder sentence. A reprieve on its part
postpones a scheduled execution.
197. Clemency orders are not peculiar to Zimbabwe. These are resorted to the
world over generally in the interest of peace and security. In the history
of Zimbabwe, it is a well known fact that Clemency orders have been resorted
to as a process of easing tension and creating a new beginning. For
instance, at Independence in 1979/80, amnesty was resorted to by former
colonial regime in order to create an environment for the new independent
dispensation and to reduce the tension between the nationalists and the
former white rules. In the process, members of the former white regime who
had been guilty of massive killings were beneficiaries of clemency. In
another incident, following the civil war in the southern part of Zimbabwe
involving two former nationalists movements, ZANU (PF) and the opposition
(PF) ZAPU, an amnesty was resorted to in order to create an environment for
a Peace Accord in 1987, which brought about permanent peace to Zimbabwe. The
result was the release of several thousands of people including those who
were guilty of massive human rights violations including murder, treason,
and terrorism. Also generally, clemency is granted annually to serving
prisoners for the purpose of giving them a new beginning, including those
released on the humanitarian grounds.
198. Generally however, a Clemency power is used in a situation where the
President believes that the public welfare will be better served by the
pardon, or to people who have served part of their sentences and lived
within the law, or a belief that a sentence was excessive or unjust or again
for personal circumstances that warrant compassion. In all these situations,
the President exercises a near absolute discretion.
199. The reason the framers of national constitutions vest this broad power
in the executive branch is to ensure that the President would have the
freedom to do what he/she deems to be the right thing. In Ex Parte Garland,
[FN72] the US Supreme Court characterized the scope of Executive Clemency
thus:
the clemency power thus conferred is unlimited, with the exception (in the
case of impeachment). It extends to every offence known to the law, and may
be exercised at any time after its commission, either before legal
proceedings are taken, or during their pendency, or after conviction and
judgement. This power of the President is not subject to legislative
control. Congress can neither limit the effect of his pardon, nor exclude
from its exercise any class of offenders. The benign prerogative of mercy
reposed in him cannot be fettered by any legislative restriction.
--------------------------------------------------------------------------------
[FN72] 71 US (4 Wall) 333, 380 (1866).
--------------------------------------------------------------------------------
200. Over the years however, this strict interpretation of Clemency powers
have been the subject of considerable scrutiny by international human rights
bodies and legal scholars. It is generally believed that the single most
important factor in the proliferation and continuation of human rights
violations is the persistence of impunity, be it of a de jure or de facto
nature. Clemency, it is believed, encourages de jure as well as de facto
impunity and leaves the victims without just compensation and effective
remedy. De jure impunity generally arises where legislation provides
indemnity from legal process in respect of acts to be committed in a
particular context or exemption from legal responsibility in respect of acts
that have in the past been committed, for example, as in the present case,
by way of clemency (amnesty or pardon). De facto impunity occurs where those
committing the acts in question are in practice insulated from the normal
operation of the legal system. That seems to be the situation with the
present case.
201. There has been consistent international jurisprudence suggesting that
the prohibition of amnesties leading to impunity for serious human rights
has become a rule of customary international law. In a report entitled
"Question of the impunity of perpetrators of human rights violations (civil
and political)", prepared by Mr. Louis Joinet for the Sub-commission on
Prevention of Discrimination and Protection of Minorities, pursuant to
Sub-commission decision 1996/119, it was noted that "amnesty cannot be
accorded to perpetrators of violations before the victims have obtained
justice by means of an effective remedy" and that "the right to justice
entails obligations for the State: to investigate violations, to prosecute
the perpetrators and, if their guilt is established, to punish them"[FN73].
--------------------------------------------------------------------------------
[FN73] See E/CN.4/Sub.2/1997/20/Rev 1, paras 32 and 27.
--------------------------------------------------------------------------------
202. In his report, Mr. Joinet drafted a set of principles for the
protection and promotion of human rights through action to combat impunity,
in which he stated that "there can be no just and lasting reconciliation
unless the need for justice is effectively justified" and that
"national and international measures must be taken... with a view to
securing jointly, in the interests of the victims of human rights
violations, observance of the right to know and, by implication, the right
to the truth, the right to justice and the right to reparation, without
which there can be no effective remedy against the pernicious effects of
impunity".
The Report went on to state that
"even when intended to establish conditions conducive to a peace agreement
or to foster national reconciliation, amnesty and other measures of clemency
shall be kept within certain bounds, namely: (a) the perpetrators of serious
crimes under international law may not benefit from such measures until such
time as the State has met their obligations to investigate violations, to
take appropriate measures in respect of the perpetrators, particularly in
the area of justice, by ensuring that they are prosecuted, tried and duly
punished, to provide victims with effective remedies and reparation for the
injuries suffered, and to take acts to prevent the recurrence of such
atrocities".[FN74]
--------------------------------------------------------------------------------
[FN74] As above, principles 18 and 25.
--------------------------------------------------------------------------------
203. In its General Comment No. 20 on Article 7of the ICCPR, the UN Human
Rights Committee noted that
"amnesties are generally incompatible with the duty of States to investigate
such acts; to guarantee freedom from such acts within their jurisdiction;
and to ensure that they do not occur in the future. States may not deprive
individuals of the right to an effective remedy, including compensation and
such full rehabilitation as may be possible". [FN75] In the case of Hugo
Rodríguez v. Uruguay, [FN76] the Committee reaffirmed its position that
amnesties for gross violations of human rights are incompatible with the
obligations of the State party under the Covenant and expressed concern that
in adopting the amnesty law in question, the State party contributed to an
atmosphere of impunity which may undermine the democratic order and give
rise to further human rights violations. The 1993 Vienna Declaration and
Programme of Action supports this stand and stipulates that "States should
abrogate legislation leading to impunity for those responsible for grave
violations of human rights such as torture and prosecute such violations,
thereby providing a firm basis for the rule of law"[FN77].
--------------------------------------------------------------------------------
[FN75] See Human Rights Committee general comment 20 (44) on article 7, para
15 (www.unhchr.ch/tbs/doc.nsf/view40?SearchView).
[FN76] Rodríguez v Uruguay, communication 322/1988, UN
DocCCPR/C/51/D/322/1988
(1994).
[FN77] See The Vienna Declaration and Programme of Action, Section II, para
60, at www.unhchr.ch/huridocda/huridoca.nsf/Sym. /A.CONF.157.23
--------------------------------------------------------------------------------
204. Importantly, the international obligation to bring to justice and
punish serious violations of human rights has been recognized and
established in all regional human rights mechanisms. The Inter-American
Commission and Court of Human Rights have also decided on the question of
amnesty legislation. The Inter-American Commission on Human Rights has
condemned amnesty laws issued by democratic successor Governments in the
name of reconciliation, even if approved by a plebiscite, and has held them
to be in breach of the 1969 American Convention on Human Rights, in
particular the duty of the State to respect and ensure rights recognized in
the Convention (article 1(1)), the right to due process of law (article 8)
and the right to an effective judicial remedy (article 25). The Commission
held further that amnesty laws extinguishing both criminal and civil
liability disregarded the legitimate rights of the victims' next of kin to
reparation and that such measures would do nothing to further
reconciliation. Of particular interest are the findings by the
Inter-American Commission on Human Rights that "amnesty" legislation enacted
in Argentina and Uruguay violated basic provisions of the American
Convention on Human Rights. [FN78] In these cases, the Inter-American
Commission held that the legal consequences of the amnesty laws denied the
victims the right to obtain a judicial remedy. The effect of the amnesty
laws was that cases against those charged were thrown out, trials already in
progress were closed, and no judicial avenue was left to present or continue
cases. In consequence, the effects of the amnesty laws violated the right to
judicial protection and to a fair trial, as recognized by the American
Convention and in the present case, the African Charter.[FN79]
--------------------------------------------------------------------------------
[FN78] Annual Report of the Inter-American Commission on Human Rights,
1992-1993.
[FN79] As above. See also J Edelstein, Rights, Reparations and
Reconciliation: Some comparative notes, seminar 6 July 1994.
--------------------------------------------------------------------------------
205. In Argentina, the national courts have found Argentina's Full Stop Law
[FN80] and the Due Obedience Law [FN81] as incompatible with international
law and in particular with Argentina’s obligations to bring to justice and
punish the perpetrators of gross human rights violations. This is because
these two pieces of legislation had been enacted to prevent from prosecution
low and high ranking military officials (government agents) who were
involved in human rights violations and disappearances during the 1970s and
1980s.
--------------------------------------------------------------------------------
[FN80] Law 23,429 of 12 December 1986.
[FN81] Law 23,521 of 4 June 1987. The Committee Against Torture took the
view , in respect of these laws, that the passing of the ‘Full Stop’ and
'Due Obedience' laws in Argentina by a
'democratically elected' government
for acts committed under a de facto government is 'incompatible with the
spirit and purpose of the Convention [against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment]' (Committee against Torture,
communications 1/1988, 2/1988 and 3/ 1988, Argentina, decision dated 23
November 1989, paragraph 9.)
--------------------------------------------------------------------------------
206. The Inter-American Court stated in its first judgment that states must
prevent, investigate and punish any violation of the rights recognized by
the Convention. [FN82] This has been re-emphasized in subsequent cases. In
the 'Street Children case', the Court reiterated
'that Guatemala is obliged
to investigate the facts that generated the violations of the American
Convention in the instant case, identify those responsible and punish them.'
[FN83] The Inter-American Court of Human Rights, in the Barrios Altos Case,
Chumbipuma Aguirre y otros v. Perú [FN84] held that amnesty provisions,
prescription and the exclusion of responsibility which have the effect of
impeding the investigation and punishment of those responsible for grave
violations of human rights, such as torture, summary, extrajudicial or
arbitrary executions, and enforced disappearances, are prohibited as
contravening human rights of a non-derogable nature recognized by
international human rights law. The Court held further that the self-amnesty
laws lead to victims being defenceless and to the perpetuation of impunity,
and, for this reason, were manifestly incompatible with the letter and
spirit of the American Convention. The Court concluded by stating that as a
consequence of the manifest incompatibility of the amnesty laws with the
Inter-American Convention on Human Rights, the laws concerned have no legal
effect and may not continue representing an obstacle to the investigation of
the facts of the case, nor for the identification and punishment of those
responsible.[FN85]
--------------------------------------------------------------------------------
[FN82]Velásquez Rodriguez para 166.
[FN83]Hilaire, Constantine and Benjamin et al, judgment of 21 June 2002,
Inter-Am Ct HR, (Ser C) no 94 (2002), ‘Street Children’ case, judgment of 26
May 2001, InterAm Ct HR, (Ser C) no 77 (2001), para 101 and operative clause
8.
[FN84] Caso Barrios Altos, Chumbipuma Aguirre y otros v Perú, Inter-American
Court of Human Rights, (Ser C), no 75 - judgment of 14 March 2001.
[FN85] Cited in the interim report on the question of torture and other
cruel, inhuman or degrading treatment or punishment, submitted by Sir Nigel
Rodley, Special Rapporteur of the Commission on Human Rights, in accordance
with para 30 of General Assembly resolution 55/89. Interim Report A/56/156,
3 July 2001.
--------------------------------------------------------------------------------
207. The European Court of Human Rights on its part has recognized that
where the alleged violations include acts of torture or arbitrary killings,
the state is under a duty to undertake an investigation capable of leading
to the identification and punishment of those responsible.[FN86]
--------------------------------------------------------------------------------
[FN86] European Court of Human Rights, Aksoy v Turkey, 18 December 1996,
para 98. See also, Aydin v Turkey app 23178/94, judgment of 25 September
1997, para 103; Selçuk and Asker v Turkey apps 23184/94 and 23185/94,
judgment of 24 April 1998, para 96; Kurt v Turkey app 24276/94, judgment of
25 May 1998, para 139; and Keenan v United Kingdom app 27229/95, judgment of
3 April 2001, para 122.
--------------------------------------------------------------------------------
208. The African Commission has also held amnesty laws to be incompatible
with a State's human rights obligations. [FN87] Guideline No. 16 of the
Robben Island Guidelines adopted by the African Commission during its 32nd
session in October 2002 further states that
'in order to combat impunity States should: a) ensure that those responsible
for acts of torture or ill-treatment are subject to legal process; and b)
ensure that there is no immunity from prosecution for nationals suspected of
torture, and that the scope of immunities for foreign nationals who are
entitled to such immunities be as restrictive as is possible under
international law'. [FN88]
--------------------------------------------------------------------------------
[FN87] See also Malawi African Association and Others v Mauritania and Degli
and Others v Togo [(2000) AHRLR 317 (ACHPR 1995)].
[FN88] Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The
Robben Island Guidelines), African Commission on Human and Peoples' Rights,
32nd Session, 1723 October, 2002, Banjul, The Gambia. See also Malawi
African Association and Others v Mauritania
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209. The UN Special Rapporteur on Torture has also expressed his opposition
to the passing, application and non-revocation of amnesty laws (including
laws in the name of national reconciliation, the consolidation of democracy
and peace, and respect for human rights), which prevent torturers from being
brought to justice and hence contribute to a culture of impunity. He called
on States to refrain from granting or acquiescing in impunity at the
national level, inter alia, by the granting of amnesties, such impunity
itself constituting a violation of international law. As the International
Criminal Tribunal for the former Yugoslavia Trial Chambers noted in the
Celibici and Furundzija cases, [FN89] torture is prohibited by an absolute
and non-derogable general rule of international law.
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[FN89] IT-96-21-A, 20 February 2001, Appeals Chamber; The Prosecutor v Anto
Furundzija (IT-95-17/1-T), Trial Chamber II, judgment, 10 December 1998 (121
ILR 218) 45, 47, 48, 49, 61, 316, 333, 334, 337, 340, 342, 402, 469.
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210. In the present communication, the African Commission has established
that most of the atrocities, including human rights vioations, were
pepetrated by non-state actors, that the State exercised due diligence in
its response to the violence – investigated the allegations, amended some of
its laws, and in some cases, paid compensation to victims. The fact that all
the allegations could not be investigated does not make the State liable for
the human rights violations alleged to have been committed by non-state
actors. It suffices for the State to demonstrate that the measures taken
were proportionate to deal with the situation, which in the present
communication, the State seemed to have shown.
211. However, this Commission is of the opinion that by passing the Clemency
Order No. 1 of 2000, prohibiting prosecution and setting free perpetrators
of "politically motivated crimes", including alleged offences such as
abductions, forced imprisonment, arson, destruction of property, kidnappings
and other human rights violatins, the State did not only encourage impunity
but effectively foreclosed any available avenue for the alleged abuses to be
investigated, and prevented victims of crimes and alleged human rights
violations from seeking effective remedy and compensation.
212. This act of the state constituted a violation of the victims' right to
judicial protection and to have their cause heard under Article 7 (1) of the
African Charter.
213. The protection afforded by Article 7 is not limited to the protection
of the rights of arrested and detained persons but encompasses the right of
every individual to access the relevant judicial bodies competent to have
their causes heard and be granted adequate relief. If there appears to be
any possibility of an alleged victim succeeding at a hearing, the applicant
should be given the benefit of the doubt and allowed to have their matter
heard. Adopting laws such as the Clemency Order No. 1 of 2000, that have the
effect of eroding this opportunity, renders the victims helpless and
deprives them of justice. To borrow from the Inter-American human rights
system, the American Declaration of the Rights and Duties of Man [FN90]
provides in Article XVIII that every person has the right to "resort to the
courts to ensure respect for [their] legal rights," and to have access to a
"simple, brief procedure whereby the courts" will protect him or her "from
acts of authority that … violate any fundamental constitutional rights." The
right of access is a necessary aspect of the right to "resort to the courts"
set forth in Article XVIII. [FN91] The right of access to judicial
protection to ensure respect for a legal right requires available and
effective recourse for the violation of a right protected under the Charter
or the Constitution of the country concerned.
--------------------------------------------------------------------------------
[FN90] American Declaration of the Rights and Duties of Man, O.A.S. Res.
XXX, adopted by the Ninth International Conference of American States
(1948), reprinted in Basic Documents Pertaining to Human Rights in the
Inter-American System, OEA/ Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).
[FN91] See generally, IACHR, resolutions 3/84, 4/84 and 5/85, cases 4563,
7848 and 8027, Paraguay, published in Annual Report of the IACHR 1983-84,
OEA/Ser L/V/II.63, doc 10, 24 Sept 1984, at 57, 62, 67 (addressing lack of
access to judicial protection in proceedings involving expulsion of
nationals; linking right to freely enter and remain in one’s own country
under article VIII of the Declaration to the rights to a fair trial and due
process under articles XVIII and XXVI). See also, report 47/
96, case 11.436, Cuba, in Annual Report of the IACHR 1996, OEA/Ser
L/V/II.95, doc 7 rev, 14 March 1997, para 91, (citing Annual Report of the
IACHR 1994, 'Cuba' at 162, and addressing failure of state to observe
freedom of movement of nationals under article II via denial of exit permits
from which no appeal is allowed). In the context of the American Convention,
see generally, IACHR, resolution
30/81, case 7378, Guatemala, in Annual Report of the IACHR 1980-81, OEA/ Ser
L/V/II.54, doc 9 rev 1, 16 Oct 1981, 60 at 62 (addressing denial of right to
judicial protection in expulsion of foreigner absent any form of due
process), report 49/99, case 11.610, Mexico, Annual Report of the IACHR
1998, OEA/Ser L/ V/II.102, doc 6 rev, 16 April 1999, vol II; see also Eur Ct
HR, Ashingdane case, Ser A no 93 (1985) para 55.
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214. In yet another jurisdiction, the Canadian Human Rights Charter [FN92]
provides a similar guarantee in section 24(1), which establishes that:
"[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the
circumstances". The effect of this right is to require the provision of a
domestic remedy which enables the relevant judicial authority to deal with
the substance of the complaint and grant appropriate relief where required.
In addition to the explicit rights to judicial protection, implementation of
the overarching objective of the Charter (ensuring the effectiveness of the
fundamental rights and freedoms set forth), necessarily requires that
judicial and other mechanisms are in place to provide recourse and remedies
at the national level.
--------------------------------------------------------------------------------
[FN92] The Canadian Charter of Rights and Freedoms, Ottawa, Canada, 17 April
1982.
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215. In light of the above, the African Commission holds that by enacting
Decree No. 1 of 2000 which foreclosed access to any remedy that might be
available to the victims to vindicate their rights, and without putting in
place alternative adequate legislative or institutional mechanisms to ensure
that perpetrators of the alleged atrocities were punished, and victims of
the violations duly compensated or given other avenues to seek effective
remedy, the Respondent State did not only prevent the victims from seeking
redress, but also encouraged impunity, and thus renaged on its obligation in
violation of Articles 1 and 7 (1) of the African Charter. The granting of
amnesty to absolve perpetrators of human rights violations from
accountability violates the right of victims to an effective remedy.[FN93]
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[FN93] See the African Commission’s Principles and Guidelines on the Right
to a Fair Trial
and Legal Assistance in Africa, para C(d).
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FOR THESE REASONS, THE AFRICAN COMMISSION
Holds that the Republic of Zimbabwe is in violation of Articles 1 and 7 (1)
of the African Charter;
Calls on the Republic of Zimbabwe to establish a Commission of Inquiry to
investigate the causes of the violence which took place from February
- June
2000 and bring those responsible for the violence to justice, and identify
victims of the violence in order to provide them with just and adequate
compensation.
Request the Republic of Zimbabwe to report to the African Commission on the
implementation of this recommendation during the presentation of its next
periodic report.
Adopted at its 39th Ordinary Session held from 11 - 15 May 2006 in Banjul,
The Gambia |
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