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SUMMARY OF FACTS
1. The communication is submitted by the Zimbabwe Lawyers for Human Rights
and the Institute for Human Rights and Development in Africa (Complainants)
and deals with the Zimbabwean Government’s (Respondent) failure to expedite
administration of justice, the functioning of the judiciary and alleged
violation of the right to participate in government.
2. The Complainants allege that in the 2000 General Elections that took
place in Zimbabwe the results of 40 constituencies were contested and the
court was petitioned to invalidate the results. It is alleged that Movement
for Democratic Change (MDC), the main opposition party file petitions to
invalidate results in 38 constituencies, the ZANU (PF), the ruling party
filed one petition and the Zimbabwe Union of Democrats (ZUD) filed one
petition.
3. The Complainants also allege that in an attempt to prevent the filing of
petitions the President of the Republic of Zimbabwe passed a regulation
giving him a wide variety of power in order to alter electoral laws as he
sees fit. Further reasons for this action were to eliminate the jurisdiction
of the courts from entertaining election petitions. According to the
complainants, the Electoral Act (Modification) No. 3 Notice of 2000
Statutory Instrument 318/2000 (Annexure 1) passed by the Respondent had the
effect of legalising the outcome of the elections and oust the jurisdiction
of the courts from hearing the petitions.
4. The MDC challenged the Regulation in the Supreme Court, and the Court
held in its favour stating that “the notice effectively deprived them of
that rights…The right of unimpeded access to courts is of cardinal
importance for the adjudication of justiciable disputes”. This ruling opened
the way for the filing of election petitions in 40 constituencies.
5. According to the Complainants, in spite of the ruling, the Supreme Court
has failed to provide meaningful redress to the petitioners. They claim that
by delaying to address the grievances the Courts have deprived the
petitioners of the right to protection of the law, and have their matter
heard within a reasonable time by an independent and impartial court and
invariably, the citizens’ right to participate in their government.
6. The Complainants further allege that by failing to respect their own
judgments, the judiciary and the Courts have proved ineffective in providing
meaningful and practical redress which would constitute an effective remedy
at national level. Thus, according to the complainants, the State has
undermined the independence of the judiciary contrary to Article 26 of the
Charter.
7. The Complainants hold that failure of the judiciary to expeditiously deal
with the election petitions is not only in contravention of international
norms but contrary to domestic laws of the country, in particular, Rule 31
of the Electoral (Applications, Appeals and Petitions) Rules 1995, (SI
74A/95) which states that “the Registrar and all parties to any stated case,
petition or application referred to in these rules shall take steps
necessary to ensure that the matter is dealt with as quickly as possible”.
8. The Complainants annexed to the communication the different classes of
petitions that were submitted to the Court. 7 petitions presented by
political parties have not been addressed and no decisions have been made
concerning them; in addition, any efforts made to have the petitions
addressed have been met with reluctance and indifference on the part of the
Court. Furthermore, 11 petitions have been dismissed by the High Court; and
any appeals made in regards to the dismissal of the petitions have not been
resolved.
COMPLAINT
9. The Complainants allege that the Respondent has violated articles 1, 2,
3, 7 (1) (a), (d), 13(1), and 26 of the African Charter on Human and
People’s Rights.
PROCEDURE
10. The complaint was received at the Secretariat of the African Commission
on 6 October 2004.
11. On 12 October 2004, the Secretariat wrote to the Complainants
acknowledging receipt of the complainant and informing them that it will be
considered at the Commission’s 36th Ordinary Session.
12. At its 36th Ordinary Session the African Commission considered the
communication and decided to be seized thereof.
13. By Note Verbale of 13 December 2004 and letter of the same date the
Secretariat informed the Parties of the Commission’s decision.
14. By letter dated 3 February 2005, the Complainant submitted its arguments
on admissibility and by letter dated 22 February 2004, the Secretariat
acknowledged receipt of the complainant’s submissions.
15. By Note Verbale dated 22 February 2005, the Secretariat transmitted the
Complainant’s submission to the Respondent State and informed the latter
that the African Commission would like to receive its arguments by 13 March
2005.
16. By letter of 14 March 2005, the Office of the Attorney General of
Zimbabwe requested the African Commission to defer consideration of the
communication to its 38th Ordinary Session as it had not had time to prepare
the responses.
17. By letter of 18 March 2005 addressed to the Attorney General, the
Secretariat granted the State an extension of thirty days and requested it
to submit its arguments by 18 April 2005.
18. At its 37th Ordinary Session held in Banjul, The Gambia, the African
Commission deferred consideration on admissibility of the communication
pending the Respondent State’s submission of its arguments.
19. By Note Verbale of 24 May 2005, the Respondent State was notified of the
Commission’s decision and requested to submit its arguments within three
months of the notification. By letter of the same date, the complainant was
notified of the Commission’s decision.
20. By Note Verbale of 2 September 2005, the Respondent State was reminded
to send its arguments of admissibility of the communication.
21. By Note Verbale of 18 October 2005, the Respondent State was reminded to
send its arguments of admissibility of the communication before 31 October
2005.
22. On 1 November 2005, the Secretariat received a Note Verbale from the
Respondent State indicating that the latter’s submissions with regards to
six communications brought against it were ready for submission but due to
logistical problems beyond its control, the transmission of the submissions
had been slightly delayed.
23. On 23 November 2005 the Zimbabwean delegation attending the 38th
Ordinary Session of the Commission handed the Respondent State’s response on
the communication. The Secretariat was informed that a copy had been given
to the complainants, and the latter confirmed receipt thereof.
24. At its 38th ordinary session held from 21 November to 5 December 2005,
the African Commission considered the communication and decided to declare
it admissible.
25. By Note Verbale of 15 December 2005 and by letter of the same date, the
Secretariat of the African Commission informed both parties of the African
Commission’s decision and requested them to submit their arguments on the
merits within three months.
26. By letter of 21 December 2005, the Complainant acknowledged receipt of
the Secretariat’s letter of 15 December and indicated that it will furnish
its arguments on the merits “within the procedurally stipulated period”.
27. By Note Verbale of 6 March 2006 and by letter of the same date the
Secretariat of the African Commission reminded both parties to submit their
arguments on the merits before 31 March 2006.
28. By letter dated 19th April 2006, the Secretariat received the
submissions of the complainant on the merits of the communication. The
Secretariat was informed that the State had equally been served with the
same.
29. During the 39th ordinary session of the African Commission, the
Secretariat received the submissions of the Respondent State.
30. At its 39th Ordinary Session held from 11 – 25 May 2006 in Banjul, The
Gambia, the African Commission considered the communication and deferred
further consideration on the merits to its 40th ordinary session because the
State’s submissions were received late.
31. By Note Verbale of 29 May 2006 and by letter of the same date both
parties were notified of the Commission’s decision.
32. At its 40th session, the African Commission deferred consideration of
the communication to its 41st session due to lack of time.
33. At its 41st ordinary session the African Commission deferred
consideration of the communication to its 42nd session to allow the
Secretariat more time to prepare the draft decision.
34. By note verbale of 10 July and letter of the same date, both parties to
the communication were notified of the Commission’s decision.
35. At its 42nd Ordinary Session held in Brazzaville, Republic of Congo from
15 – 29 November 2007, the African Commission considered the Communication
and decided to defer its decision on the merits due to lack of time.
36. By Note Verbale of 19 December 2007, and by letter of the same date,
both parties to the Communication were notified of the Commission’s decision.
THE LAW ADMISSIBILITY
SUBMISSIONS ON ADMISSIBILITY
37. The Respondent state argued that the communication be declared
inadmissible claiming it does not meet the requirements of Articles 56 (2),
(3), (4) and (5).
38. Article 56(2) stipulates that the communication should be in conformity
with the Charter of the OAU and the African Charter on Human and Peoples’
Rights. According to the State, and quoting from the African Commission’s
Information Fact Sheet No. 3 – Communication Procedure, the author of a
communication should make precise allegations of facts attaching relevant
documents, if possible, and avoid making allegations in general terms. The
State avers that the complaint is written in general terms and does not make
any precise allegations. The State notes further that the complainants
simply alleged that the state has violated the Charter without stating the
rights violated, where the violation took place and the date on which the
violation took place and that the complainants did not provide the names of
the victims.
39. The Complainants submit that four years after the elections the Supreme
and High Court have failed to provide a speedy and effective remedy. That
the High Court initially allocated three judges to handle the matters. One
of the judges resigned citing threats after he had ruled in favour of the
opposition. The three judges were replaced and the matters have not been
completed. That the violations that occurred during the election period have
not been addressed for over four years.
40. The Complainants on the other hand aver that the communication details
infringements of the provisions of the African Charter on Human and Peoples’
Rights and according to them, a prima facie violation of human rights, and
argued that the communication fulfilled the condition under Article 56 (2)
of the Charter.
41. With respect to Article 56 (3), the State argues that the communication
is written in disparaging language directed at the State of Zimbabwe and its
Judiciary. It indicates that the complainants allege a failure of the State
to guarantee the independence and competent functioning of the judiciary,
and that the government has failed to observe the principle of separation of
powers. The state argues further that the communication alleges that a judge
resigned under pressure after ruling in favour of the MDC. The state added
that none of the judges have been victimized or resigned as a result of
their judgment and concluded that the complaint is a misrepresentation of
facts and full of false information which are insulting to the State and its
judiciary – aimed at bring the State into disrepute and therefore does not
conform with the provisions under Article 56 (3) of the African Charter. The
complainants aver that the communication is not written in an insulting or
disparaging language, that no disparaging or insulting language of the
government of the Republic of Zimbabwe or any institutions under the
Organisations of African Unity has been used and as such it conforms to
Article 56 (3).
42. The State further argues that the communication is based on information
disseminated through the mass media or author’s imaginations and as such not
be admitted as stipulated under Article 56(4) which stipulates that
communications should not be exclusively based on news disseminated through
the mass media. The State adds that the communication does not state who was
discriminated against or in which case a party was discriminated and by
which judge, as a result the complaint is illusory and should not be
admitted. The complainants on their part argue that the communication has
been compiled from affidavits and applications from the High and Supreme
Court of Zimbabwe.
43. On the exhaustion of local remedies, the State argues that the
complainants have not exhausted the local remedies available to them, noting
that all election petitions are dealt with speedily and that all the
petitions referred to by the complainants were dealt with, some were
dismissed and some were withdrawn. The State indicates that it did nothing
to frustrate the process as alleged by the complainants noting that in cases
of any frustration, the parties to the petition can approach the Judge
President or the Chief Justice and the government has no role to play in
election petitions. The State notes that most of the petitions to the High
Court were dealt with in 2001; some were appealed to the Supreme Court. The
Complainants argue that the exception to the rule on the basis of unduly
prolonged procedure applies in this case. They argue that the delays in the
finalisation of the petitions by the Supreme and High Courts were
unreasonable and warrants, according to the Complainants, invoking of the
exclusionary rule to the exhaustion of local remedies as they are
non-existent.
COMMISSION’S DECISION ON ADMISSIBILITY
44. In its jurisprudence the African Commission on Human and Peoples’ Rights
(the Commission) has articulated a framework for allocating the burden of
proof between complainants/petitioners and Respondent states. For purposes
of seizure the complainant needs only to present a prima facie case and
satisfy the conditions laid down in Article 56 of the Charter for
admissibility. Once this has been done, the burden then shifts to the
Respondent state to submit specific responses and evidence refuting each and
every one of the assertions contained in the complainant’s submissions.
45. In the present communications, the Complainants submit that the
admissibility conditions in Articles 56 of the African Charter on Human and
Peoples’ Rights have been fulfilled while the State argues that some have
not been, in particular Article 56 (2), 3, 4 and 5. Regarding the
compatibility of the communication as provided in Article 56(2), the African
Commission notes that the communication establishes a prima facie violation
of the provisions of the African Charter and is thus compatible with both
the Constitutive Act and the African Charter. The communication alleges
unreasonable delays in dealing with election petitions and as a consequence
a violation of the right to fair trial under Article 7 (1) (d) and to
participate of government under Article 13 of the Charter. It is hard to
find the incompatibility invoked by the State.
46. Article 56 (3) requires that the communication is not written in an
insulting or disparaging language. The State argues that by stating that the
State has failed to guarantee the independence and competent functioning of
the judiciary, and that the government has failed to observe the principle
of separation of power, the complainants have used disparaging language. The
state argues further that the communication alleges that a judge resigned
under pressure after ruling in favour of the MDC. The state concludes that
the complaint is a misrepresentation of facts and full of false information
which are insulting to the State and its judiciary – aimed at bring the
State into disrepute and therefore does not conform to the provisions under
Article 56 (3).
47. A fundamental question that has to be addressed in the present
communication is how far one can go in criticizing the judiciary or State
institutions generally in the name of free expression, and whether the
statement made by the complainant constitutes insulting or disparaging
language within the meaning of Article 56 (3) of the African Charter. Indeed,
the communication invites the Commission to clarify the ostensible
relationship between freedom of expression and the protection of the
reputation of state institutions.
48. The operative words in sub-paragraph 3 in Article 56 are disparaging and
insulting and these words must be directed against the State Party concerned
or its institutions or the African Union. According to the Oxford Advanced
Dictionary, disparaging means to speak slightingly of… or to belittle…. and
insulting means to abuse scornfully or to offend the self respect or modesty
of…
49. The judiciary is a very important institution in every country and
cannot function properly without the support and trust of the public.
Because of the importance of preserving public trust in the judiciary and
because of the reticence required for it to perform its arbitral role,
special safeguards have been in existence for many centuries to protect the
judiciary against vilification. One such protective device is to deter
insulting or disparaging remarks or language calculated to bring the
judicial process into ridicule and disrepute.
50. The freedom to speak one’s mind and debate the conduct of public affairs
by the judiciary does not mean that attacks, however scurrilous, can with
impunity be made on the judiciary as an institution or on individual
officers. A clear line cannot be drawn between acceptable criticism of the
judiciary and statements that are downright harmful to the administration of
justice. Statements concerning judicial officers in the performance of their
judicial duties have, or can have, a much wider impact than merely hurting
their feelings or impugning their reputations. Because of the grave
implications of a loss of public confidence in the integrity of the judges,
public comment calculated to bring the judiciary into disrepute and shame
has always been regarded with disfavour.
51. In determining whether a certain remark is disparaging or insulting and
whether it has dampened the integrity of the judiciary, or any other State
institution, the Commission has to satisfy itself whether the said remark or
language is aimed at unlawfully and intentionally violating the dignity,
reputation or integrity of a judicial officer or body and whether it is used
in a manner calculated to pollute the minds of the public or any reasonable
man to cast aspersions on and weaken public confidence on the institution.
The language must be aimed at undermining the integrity and status of the
institution and bring it into disrepute.
52. To this end, Article 56 (3) must be interpreted bearing in mind Article
9 (2) of the African Charter which provides that “every individual shall
have the right to express and disseminate his opinions within the law”. A
balance must be struck between the right to speak freely and the duty to
protect state institutions to ensure that while discouraging abusive
language, the African Commission is not at the same time violating or
inhibiting the enjoyment of other rights guaranteed in the African Charter,
such as, in this case, the right to freedom of expression.
53. The importance of the right to freedom of expression was aptly stated by
the African Commission in Communications 140/94, 141/94, 145/94 against
Nigeria [FN1] when it held that freedom of expression is
A basic human right, vital to an individual’s personal development and
political consciousness, and to his participation in the conduct of public
affairs in his country. Individuals cannot participate fully and fairly in
the functioning of societies if they must live in fear of being persecuted
by state authorities for exercising their right to freedom of expression.
The state must be required to uphold, protect and guarantee this right if it
wants to engage in an honest and sincere commitment to democracy and good
governance.
--------------------------------------------------------------------------------
[FN1] Constitutional Rights Project, Civil Liberties Organisation and Media
Rights Agenda/Nigeria, 13th Annual Activity Report of the OAU, 1999–2000,
para. 36.
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54. Over the years, the line to be drawn between genuine criticism of the
judiciary and insulting language has grown thinner. With the advancement of
the politics of human rights, good governance, democracy and free and open
societies, the public has to balance the question of free expression and
protecting the reputation of state institutions such as the judiciary. Lord
Atkin expressed the basic relationship between the two values in Ambard v
A-G of Trinidad and Tobago (1936) 1 All ER 704 at 709 in the following words:
But whether the authority and position of an individual judge or the due
administration of justice is concerned, no wrong is committed by any member
of the public who exercises the ordinary right of criticizing in good faith
in private or public act done in the seat of justice. The path of criticism
is a public way…Justice is not a cloistered virtue: she must be allowed to
suffer scrutiny and respectful even though outspoken comments of ordinary
men.
55. In the present communication, the Respondent State has not established
how by stating that the government has failed to observe the principle of
separation of power and that a judge resigned under pressure after ruling in
favour of the MDC, the complainant has brought the judiciary and the
government into disrepute. The State hasn’t shown the detrimental effect of
this statement on the judiciary in particular and state institutions as a
whole. There is no evidence adduced by the State to show that the statements
were used in bad faith or calculated to poison the mind of the public
against the government and its institutions.
56. The African Commission does not therefore believe there has been any use
of disparaging or insulting language against the government of the Republic
of Zimbabwe or any of its institutions or the African Union. The African
Commission is also of the view that the communication complies with Article
56(4) which stipulates that communications should not be exclusively based
on news disseminated through the mass media. The present communication has
been compiled from affidavits and applications from the High and Supreme
Court of Zimbabwe.
57. Regarding Article 56 (5) relating to the exhaustion of domestic remedies
the Complainants argue that the exception to the rule on the basis of unduly
prolonged procedure should apply. They argue that the delays in the
finalisation of the petitions by the Supreme and High Courts was
unreasonable and warrants, according to the Complainants, the invoking of
the exclusionary rule to the exhaustion of local remedies as they are
non-existent.
58. What constitutes unduly prolonged procedure under Article 56 (5) has not
been defined by the African Commission. There are therefore no standard
criteria used by the African Commission to determine if a process has been
unduly prolonged, and the Commission has thus tended to treat each
communication on its own merits. In some cases, the Commission takes into
account the political situation of the country, in other cases, the judicial
history of the country and yet in others, the nature of the complaint.
59. The subject matter of the present communication is the validity of
election results. Election results are supposed to be released as quickly as
possible so as to enable those vying for office to know the outcome. In most
jurisdictions, because of the very nature of elections, mechanisms are put
in place to ensure that the results are released as expeditiously as
possible and that whatever petitions are submitted by disgruntled
contestants, they are dealt with speedily.
60. The exception under Article 56 (5) requires that the process must not
only be prolonged but must have been done so “unduly”. Unduly means,
“Excessively” or “unjustifiably”. Thus, if there is a justifiable reason for
prolonging a case, it cannot be termed “undue”, for example, where the
country is caught in a civil strife or war, or where the delay is partly
caused by the victim, his family or his representatives. While the
Commission has not developed a standard for determining what is “unduly
prolonged”, it can be guided by the circumstances of the case and by the
common law doctrine of a “reasonable man’s test”. Under this test, the court
seeks to find out, given the nature and circumstances of a particular case,
how any reasonable man would decide.
61. Thus, given the nature of the present communication, would a reasonable
man conclude that the matter has been unduly prolonged? For all intents and
purposes, the answer would be yes. More than four years after the election
petitions were submitted, the Respondent State’s courts have failed to
dispose of them and the positions which the victims are contesting are
occupied and the term of office has almost come to an end.
For the above reasons, the African Commission holds that the communication
meets the exception rule under Article 56 (5) and the other requirements of
Article 56, and thus declares it admissible.
SUBMISSIONS ON THE MERITS
COMPLAINANT’S SUBMISSIONS
62. The Complainants submit that the State Party has violated articles 1, 2,
3, 7(1)(a), (d), 13 and 26 of the African Charter on Human and Peoples'
Rights, and further that the violations were as follows:
(a) the right to equal protection of the law under Articles 2 and 3 based on
the fact that the law courts failed to decide on the election petitions
within a reasonable time and that the petitioners were discriminated against
on the protection of law due to the political opinions which were expressed
in the petitions;
(b) the right to be heard and tried within a reasonable time by an impartial
court or the tribunal under Article 7 as the Zimbabwe courts failed to
provide a remedy to the election petitions;
(c) the right of every citizen to participate freely in the government of
his country either directly or through freely chosen representatives in
accordance with provisions of the law under Article 13 by enacting laws that
curtailed freedoms such as association, assembly and expression ; and
(d) the duty of the State to guarantee the independence of the courts and
the establishment and improvement of appropriate national institutions
entrusted with the promotion and protection of the rights and freedoms
guaranteed by the Charter under Article 26 based on the fact that the
principle of separation of powers was not duly observed as one of the judges
resigned and fled the country citing threats after he ruled in favour of the
opposition.
63. Regarding article 1, the communication alleges that the Respondent state
has failed to adopt legislative and administrative measures to give effect
to the provisions of the Charter. It is submitted that the fact that
elections that took place in Zimbabwe were organised in accordance with the
Constitution and the laws of Zimbabwe does not mean that the manner in which
those elections were conducted or their dispute were adjudicated do not
violate provisions of the Charter. The law itself (including the
constitutional provisions) can constitute the means whereby the rights
protected under the Charter are violated.
64. The Complainants rely on the jurisprudence of the Inter-American Court
on Human Rights in the case Velasquez Rodriguez where the Court held that:
“The obligation to ensure the free and full exercise of human rights is not
fulfilled by the existence of a legal system designed to make it impossible
to comply with this obligation… it also requires the government to conduct
itself so as to effectively ensure the free and full exercise of human
rights”.[FN2]
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[FN2] Velasquez Rodriguez case, Judgment of July 29, 1988.
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65. The Complainants also quote the advisory opinion delivered by the
Inter-American Court on Human Rights where the Court found that:
“… The fact that these are domestic laws adopted in accordance with the
provisions of the Constitution means nothing if they are the means through
which protected rights and freedoms are violated”.[FN3]
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[FN3] Inter-American Court on Human Rights Advisory Opinion 13/93 paragraph
26-27
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66. It is submitted that although the Respondent State has enacted laws that
make provisions for remedies, it has failed to render those remedies
efficient as the proceedings can be unduly prolonged as was the case in the
matter under consideration where “it failed to implement and uphold
electoral laws through reasonably expeditious resolution or other measures
that protect the rights of the citizens”.
67. The Complainants allege that the government of Zimbabwe has violated
article 1 of the Charter because the existing electoral laws are not
sufficiently certain, do not prevent candidates whose election is contested
from sitting in the parliament before the Courts rule on their cases, and do
not create any obligation upon the courts to determine the electoral
challenges brought before them within a fixed period. The Complainants also
rely on the jurisprudence of the Inter-American Commission on Human Rights,
in the case of Gustavo Arranza v Argentina where it held that:
“The absence of an effective remedy to violations of the rights recognised
by the Convention is itself a violation of the Convention by the State Party
in which the remedy is lacking. In that sense, it should be emphasised that,
for such a remedy to exist, it is not sufficient that it be provided for by
the Constitution or by law or that it be formally recognised, but rather it
must be truly effective in establishing whether there has been a violation
of human rights and in providing redress. A remedy which proves illusory
because of the general conditions prevailing in the country, or even in the
particular circumstances in a given case, cannot be considered effective”.[FN4]
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[FN4] 4 Case No. 10.087 (September 30, 1997)
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68. The communication further recalls the interpretation made by the African
Commission of article 1 in the case of Jawara v The Gambia, where the
Commission found that:
“Article 1 gives the Charter the legally binding character always attributed
to international treaties of this sort. Therefore a violation of any
provision of the Charter automatically means a violation of Article 1. If a
state party to the Charter fails to recognise the provisions of the same,
the is no doubt that it is in violation of the Article. Its violation
therefore goes to the root of the Charter.”
69. The Complainants note that the Respondent State’s failure to enact laws
that further the enjoyment of the rights and freedoms enshrined in the
Charter and its failure to provide real and efficient remedy in the events
of the violation of the same rights and freedoms amount to a violation of
article 1. It is further submitted that the failure of the judiciary to
decide promptly, effectively and meaningfully to the alleged violations of
rights and electoral irregularities is imputable to the State since the
Judiciary is a branch of the latter. The communication then quoted the
decision of the Inter-American Court on Human Rights in the aforementioned
Velasquez Rodriguez case, where it is stated that:
“This obligation implies the duty of the State party to organise all the
State apparatus and in general, all structures through which the exercise of
public power is manifested, in such a manner that they are able to legally
ensure the free and full exercise of human rights”.
70. The Complainants allege that the Respondent State cannot rely on its
domestic law to justify its failure to perform its obligations under the
Charter.
71. As for article 3 of the Charter, the communication recalls that equality
before and equal protection of the law means equality with regard to
interpretation, application and enforcement of the law. It emphasised that
rights are guaranteed to all regardless of one’s political opinion.
72. The Complainants note that successful petitions before Zimbabwean courts
would have granted the opposition Movement for Democratic Change (MDC) a
large majority in Parliament “should be taken into consideration by the
judiciary in terms of the urgency with which the matters were disposed of”.
It is submitted that the MDC was victim of discrimination by the judiciary,
although such discrimination might have been caused by the lack of resources
or manpower to deal with the petitions. The lack of resources and manpower,
it is alleged, cannot dispense the state from its obligation to respect and
protect the rights enshrined in the Charter.
73. According to the authors of the communication, since the successful
disposition of the petitions would have drastically altered the composition
of Parliament, the failure of the Judiciary to deal promptly with those
petitions is tantamount to the absence of equality before the law and equal
protection of the law for victims of human rights violations.
74. The Complainants allege that the inordinate delay in dealing with
petitions constitute a violation of Article 7 (1) (d), as that affects the
right to have one’s case heard within a reasonable time (right to due
process of law). The Complainants quote the United Nations Human Rights
Committee (HRC) General Comment No 13, where the HRC held that the right to
have one’s case heard within a reasonable time includes not only the time by
which the trial should start, but also the time by which it should end and
the judgment rendered both in first instance and on appeal.
75. In the Complainants’ view, the right to due process of law was violated
in the matter before the Commission as the courts have failed to rule on the
electoral petitions within a reasonable period of time. It is also alleged
that appeal to the High Court and the Supreme Court was ineffective. The
communication recalls the approach of the African Commission to the right to
appeal adopted in its decision on Amnesty International, Lawyers Committee
for Human Rights v Sudan, where the Commission held that:
“The right to appeal being a general and non-derogable principle of
international law must, where it exists, satisfy the conditions of
effectiveness. An effective appeal is one that, subsequent to the hearing by
the competent tribunal of first instance, may reasonably lead to a
reconsideration of the case by superior jurisdiction, which requires that
the latter should, in this regard, provide all necessary guarantees of good
administration of justice”
76. The authors of the Communication further denounce the lack of the
independence of the judiciary in Zimbabwe. They cite the report of the
Special Rapporteur on the Independence of Judges and Lawyers submitted with
the United Nations Commission on Human Rights Resolution 2002/43,[FN5] and
conclude that the “absence or weakening of institutions whose mandate is to
provide remedies in instances of violations supports the assertion of
petitioners of institutions that are not competent to render real and
effective remedies, contrary to the intentions of the drafters of the
Charter under Articles 7 and 26”.
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[FN5] E/CN.4/2003/65/Add.1.25 February 2003.
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77. As regards article 13 of the Charter, the communication recalls the
importance of the right to political participation and insists, in the wake
of the Resolution on Electoral Processes and Participatory Governance
adopted by the Commission at its 19th Ordinary Session, that:
a. “Elections are the only means by which the people can elect
democratically the government of their choice in conformity to the African
Charter on Human and Peoples’ Rights”.
78. That position, it is alleged, was confirmed by the Commission in
Constitutional Rights Project & Another v Nigeria, where the Commission
found that:
“To participate freely in government entails, among other things, the right
to vote for the representative of one’s choice. An inevitable corollary of
this right is that the results of the free expression of the will of the
voters are respected; otherwise, the right to vote freely is meaningless. In
the light of this, the annulment of the election results, which reflected
the free choice of voters, is in violation of Article 13(1)”
79. The Complainants further submit that the right to freely participate in
government is also rendered meaningless if the judiciary fails to decide
expeditiously on the electoral disputes brought before it, since that allow
candidates whose elections are contested to sit in Parliament while the
petitions are still lis pendens. The Complainants quote the Inter-American
Commission on Human Rights according to which:
“the close relationship between representative democracy as a form of
government and the exercise of the political rights so defined, also
presupposes the exercise of other fundamental rights… the concept of
representative democracy is based on the principle that it is the people who
are the nominal holders of political sovereignty and that, in the exercise
of that sovereignty, elects its representatives, moreover, are elected by
the citizens to apply certain political measures, which at the same time
implies the prior existence of an ample political debate on the nature of
the policies applied – freedom of expression – between organised political
groups – freedom of assembly. At the same time, if these rights and freedoms
are exercised, there must be juridical and institutional systems in which
laws outweigh the will of leaders and in which some institutions exercise
control over others for the sake of guaranteeing the integrity of the
expression of the peoples’ will – rule of law. … Indeed any mention of the
right to vote and to be elected would be mere rhetoric if unaccompanied by a
precisely described set of characteristics that the elections are required
to meet” [FN6]
--------------------------------------------------------------------------------
[FN6] Report 01/90 on cases 9768, 9780 and 9828 Mexico paragraphs 411 and
42, Annual Report of the Inter American Commission 1989-1990.
--------------------------------------------------------------------------------
80. The Complainants pray the African Commission to follow the jurisprudence
of the Inter American Commission and to find the Respondent State to be in
violation of article 13(1) of the Charter.
81. Regarding article 26 of the Charter, the authors of the communication
recalls the comment made by the Commission in its 9th Annual Report, where
it declared that:
“Article 26 of the African Charter reiterates the right enshrined in article
7 but is even more explicit about State Parties’ obligations to ‘guarantee
the independence of the Courts and allow the establishment and improvement
of appropriate national institutions entrusted with the promotion and the
protection of the rights and freedoms guaranteed by the present Charter’.
While Article 7 focuses on the individual’s right to be heard, Article 26
speaks of the institutions which are essential to give meaning and content
to that right. This Article clearly envisions the protection of courts which
have traditionally been the bastion of protection of the individual’s rights
against the abuses of State Power”
82. The complainants are of the view that trials conducted in accordance
with the principles of due process of the law, and the conclusion of such
trials within a reasonable time, inter alia, are essential tenets of a
properly functioning judiciary. It is alleged that the failure by the
Respondent to decide on the election petitions within a reasonable time
contravenes Articles 13(1) and 26 of the Charter.
RESPONDENT STATE’S SUBMISSIONS ON THE MERITS
83. The Respondent State submitted that both parties to the election
petitions filed in the Zimbabwean courts were afforded equal protection of
the law evidenced by a reference to a number of decided cases. The State
denies that the Complainants were discriminated against on the basis of
political opinions expressed in the petitions.
84. The Respondent State submits further that in Sibangani Mlanda vs. Eleck
Mkandla HC 8228/00, the petitioner was a candidate for the Movement for
Democratic Change Party (MDC) in the general election of June 24 & 25, 2000.
The Respondent who was the candidate for Zimbabwe Africa national Union (Patriotic-Front)
(ZANU PF) won the parliamentary seat by 15, 932 votes while the petitioner
garnered 3,967 votes. The petitioner alleged corrupt practices during the
election and that the electorate was coerced to support and vote for the
Respondent and refrain from voting for him. He alleged that his campaign
team were abducted, tortured and their property burned and destroyed. The
Court held that it was grossly unfair for the Respondent to canvass for
votes and the election was set a side.
85. The State noted further, in spite of the political opinions expressed in
the petition suggesting that ZANU “PF” was a violent party which won
elections through violence, the Complainants were not discriminated upon by
the courts, and were afforded equal protection, as was evidenced with the
setting aside of the election result of the Gokwe North Constituency.
86. To buttress its argument that the Complainants were not discriminated,
the Respondent State drew the Commission’s attention to the case of Lameck
Nkiwane Muyambi vs. Jaison Kokerai Machaya HC 8226/00, where the petitioner
was an opposition member of the MDC while the Respondent was a candidate of
ZANU PF. The petitioner alleged that the Respondent and his party members
were guilty of corrupt practices leading to a wide range of violent
activities in the Constituency. The Court decided to set aside the election
results and ruled in favour of MDC. The State also indicated that in many
other cases involving election petitions, the Courts have ruled in favour of
the opposition, for example, Phioneas Chivazve Chiota vs. Registrar General
of Elections and Ben Tumbare Mutasa HC 8221/00, Moses Mope vs. Elliot Chauke
HC 110/01, and Edna Akino vs. Tobaiwa Muded N.O and Davison Tsopo and City
of Mutare HC 14490/99.
87. With respect to equal protection of the law, the Respondent State thus
submitted that since seven or more election petitions were ruled in favour
of the MDC, it is enough proof that the courts have not been biased towards
the ruling ZANU PF, and have applied the law objectively, thus affording the
petitioners equal protection of the law as guaranteed in Article 3 of the
African Charter and the Constitution of Zimbabwe.
The right to be heard and tried within a reasonable time by an impartial
court or tribunal under Article 7 (1) (d).
88. The Respondent State submitted that it has always afforded the
Complainants the right to be heard by impartial courts, and within a
reasonable time, adding that Zimbabwean courts have in several judgments
recognized this right.
89. The Respondent State contends that all the petitions filed in the High
Court and more recently, in the Electoral Court were heard within a
reasonable time, in accordance with Rule 31 of the Electoral (Application,
Appeal and Petition Rules 1995) which provides that: “The Registrar and all
parties to any case, petition or application shall take all steps necessary
to ensure that the matter is dealt with as quickly as possible.”
90. According to the State, parties to an election petition have a duty to
ensure the petition is determined quickly in accordance with Rule 31, adding
that in most of the cases brought before the courts, the Complainants failed
to expeditiously file papers to ensure the matters were dealt with quickly.
91. The State added further that in terms of Section 182 of the Electoral
Act [Chapter 2:13], “Every election petition shall be determined within six
months from the date of its presentation.”
92. According to the Respondent, in order to give effect to this law, it has
set up an Electoral Court to have petitions dealt with within six months,
which the State considers as a reasonable time. However, the MDC is
challenging the composition of the Electoral Court which, as a result of
that challenge, has delayed petitions before Court, and it can therefore not
be said that the judiciary itself has been reluctant to deal with petitions
expeditiously.
93. It is further submitted by the State that it is the duty of the parties
to avail the witnesses and apply for a set down date within the 6 months
prescribed by law. Incase of any frustrations, the concerned party can
approach the Judge President or Chief Justice for redress. The Complainants,
according to the State, have failed to show, the specific frustrations faced,
if any, in having the election petitions set down for hearing and what steps
the petitioners undertook to have the matters expeditiously dealt with.
Instead the Complainants have only resorted to allegations that the
judiciary has been reluctant to deal with, and finalizing the petitions
before it.
94. The Respondent State submits that the Government has no role in the
determination of election petitions thus it is untrue to allege that it
frustrated the petitioners in the hearing of their petitions. The State
added that most petitions filed in the High Court in 2001 were heard and
judgments delivered to the parties within six months.
95. To substantiate the above argument, the State cited a number of cases
that were disposed of within six months, including Lucia Makesea vs. Isaiah
Shumba HC 8070/00, Phineas Chivazve Chiota vs. Registrar General of
Elections and Ben Tumbare HC 8221/00 which was set down for hearing on 18th
July 2001 and judgment delivered on January 23, 2002; Godfrey Don Mumbamarwo
vs. Saviour Kasukuwere set down on 9th July 2001 and judgment delivered on
January 17th 2002; Moses Mare vs. Elliot Chauke HC 8068/00 judgment
delivered on June 20, 2001 and; Patrick Tsumele vs. Aaron Baloyi HC 8072/00
judgment delivered on June 21, 2001.
96. More recently after setting up of the Electoral Court, petitions have
been disposed of in six months. In cases decided by the High Court, the
loosing parties appealed to the Supreme Court. The Supreme Court heard most
of the appeals and the MDC lost in some of the cases, such as Hove vs. Joram
Gumbo with respect to the Mberengwa West Constituency. Some cases were
dismissed as the appellants were not willing to prosecute their cases, for
example, Mazurani vs. Mbotekw, with respect to the Zvishavane Constituency
and Mumbamarwo vs. S Kasukuwere with respect to the Mt Darwin Constituency.
97. According to the Respondent State, in the above cited cases the
petitioners were asked by the Supreme Court to file their heads of argument
but they failed and the cases were subsequently dismissed under Rule 44 of
the Supreme Court Rules for non-compliance with court rules. The same
applies to Order 238 Rule 2 (b) of the High Court Rules.
98. The State added that the petitioners have over time withdrawn petitions
after realizing the weaknesses of their cases and paid wasted costs to the
Respondents acknowledging their fault for bringing uncommitted and
misconceived petitions. This was the case with respect to Elphas
Mukonoweshuro vs. Ben Mahofa Case No. EP 11/05; Aaron Chinhara vs. Lovemore
Mupukuta EP 20/05; Eileen Heather Dorothy Bennet vs. Samuel Undenge Case No.
EP 11/05; Evelyn Masaiti vs. Mike Nyambuya EP 18/05; Hilda Suka Mafudza vs.
Patrick Zhuwawo 16/05 and; Ian Kay vs. Sydney Tigere Sekeremayi Case No. EP
16/05.
99. It is further submitted by the State that in the above mentioned
circumstances the Government did not frustrate the petitioners in pursuing
legal recourse according to the law. In fact, it is the petitioners who did
not pursue their petitions expeditiously.
100. Further in terms of the Practice Directions of the Supreme Court,
Practice Direction No. 1 of 1993 reported in the Zimbabwe Law Reports pages
241 (5) the Supreme Court as per Gubbay CJ directed that:-“If in any
particular case, whether of a criminal nature, a delay in obtaining judgment
should occur which is considered inordinate the aggrieved party or his legal
practitioner is invited to bring such delay to the attention of the Chief
Justice or the Judge President if it be in respect of a High Court matter,
and to the Chief Magistrate, if it be a magistrates Court matter. Upon
receipt of such notification the Chief Justice, the Judge President or the
chief Magistrate whoever has been addressed to will proceed to investigate
the complaint, and provided he is satisfied that in all circumstances the
delay is unreasonable, will apply his best endeavors to obviate it.”
101. The Respondent State submits that the Communication does not indicate
if at any point the various Complainants addressed the issue of delays to
the Judge President or Chief Justice, and if that was so whether the Judge
President and the Chief justice did nothing after receiving the complainant.
The complainant’s allegations are unsubstantiated and thus ought to be
dismissed as unfounded.
102. Thus, in the opinion of the State, the judiciary and indeed relevant
provisions of laws enable petitions to be concluded within a reasonable time
contrary to the complainant allegations.
103. Concerning allegations of violations of Article 13, the Respondent
State denied that the Republic of Zimbabwe violated Article 13 by enacting
laws curtailing freedoms of association, assembly and expression hence
violating the rights of citizens to participate in governance issues and to
exercise their right to a referendum in a transparent and conducive
environment.
104. The State submitted that the Complainants simply aver that the
Government has passed such laws, but did not state the specific laws enacted.
Neither did they describe the human rights violations that took place, the
dates or place the violations occurred, nor provide the names of the victims
who suffered as a result of the enacted laws.
105. By making general and unsubstantiated allegations the Complainants are
being untruthful and their claims should not be accepted. The Government is
being called upon to “defend” itself in the dark which is very unfortunate.
106. Further, it is submitted that in terms of the African Commission’s
Information Sheet No. 3 on Communication Procedure, it is a requirement that
the author of the communication should make precise allegations of fact
attaching relevant documents and not general allegations. Hence the
Complainants have failed to prove a violation of Article 13.
107. With respect to allegations regarding violations of Article 26 of the
Charter, the Respondent State denied that it had violated this Article. It
denied that the Government failed to guarantee the independent functioning
of the judiciary. It submitted that the judiciary of Zimbabwe has always
been independent and free from executive interference, adding that this was
evidenced by the fact that the election petitions filed in the courts
resulted in the Courts setting aside the election results where
irregularities were found. This, according to the State, was regardless of
the party to which the petition belonged. The State added that quite a
number of petitions were ruled in favor of the opposition, a situation which
according to the State, would not have been so if there was executive
interference, as alleged by the Complainants.
108. On the issue of the legal status of the Judges, the State submits that
Section 79B of the Constitution of Zimbabwe states that members of the
judiciary “shall not be subject to the direction or control of any person or
authority”
109. On the issue of the removal of the Judges from office, the State drew
the Commission’s attention to Section 87 (1) of the Constitution of Zimbabwe
which provides that “Inability to discharge the functions of [the], whether
arising from infirmity of the body or mind or any other cause, or for
misbehavior is the only ground upon which dismissal may be authorized. The
words ‘any other cause’”, it is submitted, refer to medical causes or causes
not relating to the moral blameworthiness of the judge in question.
110. On the issue of salaries payable to the judges, the State submits that
the salaries of judges may not be reduced during the tenure of office in
terms of the Constitution. This provision is meant to uphold the
independence of the judiciary.
111. On the issue of judicial proceedings, the State notes that all court
proceedings in Zimbabwe are carried out in open court in accordance with
Section 18 (10) and (14) of the Constitution. This includes the announcement
of the court’s decision and the reasons for the decision delivered at the
same time.
112. The Respondent State affirms that all election petitions were held in
open court, and that the State endeavored to guarantee the independence of
the courts.
113. The State concluded in the regard by submitting that in light of the
above mentioned provisions to guarantee the independence of the judiciary,
the Complainant’s assertion that a number of judges were victimized after
they ruled in favor of the MDC is denied.
114. The State cited the case of Justice Makarau who according to the State,
was re-appointed to the Electoral Court despite ruling against ZANU PF in
the Election Petitions, while Justice Ziyambi was promoted to the Supreme
Court. The State added that several petitions were decided in favour of the
MDC and none of the judges were victimized for the judgments.
115. The Respondent State submits that Mr. Morgan Tsvangira, the leader of
the opposition MDC was acquitted of the treason charges. The presiding judge,
Justice Paddington Garwe was not victimized for the decision and he remains
the Judge President of the High Court of Zimbabwe.
116. For all the judges who resigned from the bench, no specific reasons
were availed as is mandatory in law. None has openly stated if they resigned
because of political reasons.
117. The State submits that the Complainants make bold allegations to the
effect that one judge who ruled in favour of the MDC was victimized and fled
the country without naming the judge or giving proof for the reasons of his
resignation. Thus the complainants have failed to establish a case against
the Respondent State.
118. The Respondent State submits that the relief sought by the Complainants
is not sustainable because the Republic of Zimbabwe has complied with the
provisions of the African charter in letter and spirit by:
• Enacting laws which improve Electoral transparency;
• See Section 182 of the Electoral Act [Chapter 2:13];
• Rule 31 of the Electoral (Applications Appeals and Petitions) Rules 1995
Statutory Instrument 74A/95;
• Practice Directions of the Supreme Court No. 1 of 1993, relating to
complaints on delays;
• Constitution of Zimbabwe Section 87 (1), 79B, 18 (10 and (14);
• Zimbabwe Electoral Commission Act No. 22/04, which Act established the
Zimbabwe Electoral commission and independent Board responsible inter alia
of the preparation and conduct of elections in Zimbabwe;
• Setting up the Electoral Court.
THE AFRICAN COMMISSION’S DECISION ON THE MERITS
119. In this Communication, the Complainants alleged violation of Articles
1, 2, 3, 7(1) (a), (d) 13 (1) and 26 of the African Charter.
120. The Complainants allege that Article 2 was violated in the sense that
there was discrimination in the protection afforded and equality before the
law, and that this failure by the domestic courts to protect the rights of
the petitioners amounted to discrimination. The Complainants noted that if
the Courts had dealt with the petitions and finalised them as envisaged by
the petitioners, then the composition of Parliament would have been
different and this would have altered the balance of power. This, in the
opinion of the Complainants, is a ‘plausible ground for supporting the
assertion of non-equality in the protection of the law and discrimination’.
The Respondent State does not advance any arguments regarding the
allegations of discrimination, but noted that all the parties to election
petitions were afforded equal protection of the law.
121. To establish discrimination, it must be shown that, the Complainants
have been treated differently in the enjoyment of any of the Charter rights
by virtue of their race, ethnic group, colour, sex, language, religion,
political or any other opinion, national and social origin, fortune, birth
or any status.
122. The Complainants have failed to set forth with clarity any particular
instance in which they were denied the enjoyment of any of the Charter
rights by virtue of the reasons set forth in Article 2 of the African
Charter. The claim under this head therefore fails.
123. The Complainants also allege the violation of Article 3 of the African
Charter. This Article provides: ‘Every individual shall be equal before the
law, and every individual shall be entitled to equal protection of the law
“.According to the Complainants, since the successful disposition of the
petitions would have drastically altered the composition of Parliament, the
failure of the Judiciary to deal promptly with those petitions is tantamount
to the absence of equality before the law and equal protection of the law
for victims of human rights violations. The State on its part cited a number
of cases to demonstrate that both parties to the election petitions filed in
the Zimbabwean courts were afforded equal protection of the law, and denied
that the parties were discriminated against on the basis of political
opinions. In fact, this position is confirmed through the analysis the
Commission made on the list of different petitions that were cited in the
complaint submitted to the Commission. [FN7]
--------------------------------------------------------------------------------
[FN7] See paragraph 8 which refers to annex in the Communication, and also
paragraphs 84 and 86 herein above on petitions filed by both parties.
--------------------------------------------------------------------------------
124. Article 3 of the African Charter has two arms, one dealing with
equality before the law, that is, Article 3(1), and the other, equal
protection of the law, that is, Article 3(2). The most fundamental meaning
of equality before the law or equality under the law is a principle under
which each individual is subject to the same laws, with no individual or
groups having special legal privileges. On the other hand, equal protection
of the law under Article 3 (2) relates to the right of all persons to have
the same access to the law and courts and to be treated equally by the law
and courts both in procedures and in the substance of the law. It is akin to
the right to due process of the law, but in particular, applies to equal
treatment as an element of fundamental fairness.
125. In its decisions on Communication 211/98 - Legal Resources Foundation v/
Zambia, [FN8] the Commission makes this distinction even clearer by linking
the principle of discrimination to that of equal protection of the law. This
Commission held in that Communication that ‘Article 2 of the Charter abjures
(sic) discrimination on the basis of any of the grounds set out, among them
“language… national or social origin, birth or other status…” The right to
equality is very important. It means that citizens should expect to be
treated fairly and justly within the legal system and be assured of equal
treatment before the law and equal enjoyment of the rights available to all
other citizens. The right to equality is important for a second reason.
Equality or lack of it affects the capacity of one to enjoy many other
rights. For example, one who bears the burden of disadvantage because of
one’s place of birth or social origin suffers indignity as a human being…’
--------------------------------------------------------------------------------
[FN8] See para 63, communication 211/98. It is observed that the use of the
word ‘abjures’ could have been intended to mean ‘abhors’, hence the use of
the (sic) to show that it was an incorrect word.
--------------------------------------------------------------------------------
126. In terms of Article 60 of the Charter, this Commission can also be
inspired in this regard by the famous case Brown v. Board of Education of
Topeka,[FN9] in which the Chief Justice of the United State of America Earl
Warren argued that ‘equal protection of the law refers to the right of all
persons to have the same access to the law and courts and to be treated
equally by the law and courts, both in procedures and in the substance of
the law. It is akin to the right to due process of law, but in particular
applies to equal treatment as an element of fundamental fairness.[FN10]
--------------------------------------------------------------------------------
[FN9] 347 U.S 483 (1954)
[FN10] www.legal-explanations.com
--------------------------------------------------------------------------------
127. In order for a party to establish a successful claim under Article 3
(2) of the Charter therefore, it must show that, the Respondent State had
not given the Complainants the same treatment it accorded to the others. Or
that, the Respondent State had accorded favourable treatment to others in
the same position as the Complainants.
128. In the present Communication, the Commission has examined the evidence
submitted by both parties and is of the view that the Complainants have not
demonstrated the extent to which the Courts treated the petitioners
differently from the Respondent State, or vice versa, to the extent that
their rights were violated. The Commission thus does not find the Respondent
State to have violated Article 3 of the African Charter.
129. The Complainants allege violation of Article 7 (1) (a) and (d) of the
African Charter. This Article provides: “Every individual shall have the
right to have his cause heard. This comprises: 1(a) ‘the right to an appeal
to competent national organs against acts violating his fundamental rights
recognised and guaranteed by conventions, laws, regulations and customs in
force’ and (d) ‘the right to be tried within a reasonable time by an
impartial court or tribunal.’
130. It should be noted that even though the matter before the Commission is
a civil matter, the principles enshrined under Article 7 (1) still apply in
the consideration of this matter, that is, the principles to have one’s
cause heard and the principle to have one’s matter decided within a
reasonable time.
131. The Complainants argue that the inordinate delay in dealing with
petitions affects the right to have one’s case heard within a reasonable
time (right to due process of law). They refer to General Comment No. 13 of
the United Nations Human Rights Committee (HRC) where the HRC held that the
right to have one’s case heard within a reasonable time includes not only
the time by which the trial should start, but also the time by which it
should end, and the judgment rendered both in first instance and on appeal.
In their view, the right to due process of law has been violated as the
courts have failed to rule on the electoral petitions within a reasonable
period of time. It is also alleged that appeal to the High Court and the
Supreme Court was ineffective.
132. On its part, the Respondent State cited several cases to demonstrate
that it has always afforded the Petitioners the right to be heard by
impartial courts or tribunals within a reasonable time. The Respondent State
contends further that all the petitions filed in the High Court and more
recently, in the Electoral Court were heard within a reasonable time. The
State cited Rule 31 of the Electoral (Application, Appeal and Petition rules
1995) Statutory Instrument 74A/95 and Section 182 of the Electoral Act [Chapter
2:13] and concluded that parties to an election petition have a duty to
ensure the petition is determined quickly, adding that in the present
situation, in most of the cases brought before the court, the Petitioners
failed to expeditiously file papers to ensure the matters were dealt with
quickly. The State further submitted that it set up an Electoral Court to
have petitions dealt with within a reasonable time. However, the MDC
challenged the composition of the Electoral Court which delayed the
petitions before it and it cannot therefore be said that the judiciary has
been reluctant to deal with petitions expeditiously.
133. Article 7 (1) (d) of the Charter imports two things; the right to be
heard within a reasonable time and the right to be heard by an impartial
tribunal. These are the issues which must be borne out by the evidence to
warrant the Commission’s findings of a violation thereof.
134. In respect of the first arm of this claim – the right to be tried
within a reasonable time, the Responded State conceded in its response to
delays in disposing with some of the claims, but emphasized that the delay
was occasioned by the Complainants who had failed to file processes
expeditiously before the Courts as required by the law and/or failed to file
their heads of arguments as required by the Supreme Court. These are not a
mere blanket denial of the allegations; they raise serious irregularities
against the Complainant’s averments, which were not controverter by the
Complainants.
135. In respect of the second arm of the claim – the right to be heard by an
impartial tribunal, the submission of the Respondent State and the evidence
before the Commission show that, the Courts had actually resolved some cases
in favour of the petitioners as against the ruling party (ZANU-PF), that the
Supreme Court had thrown out some cases in which the petitioners failed to
comply with the Court’s directives requesting them to file their heads of
arguments. There is no evidence to suggest that the Courts refused to
adjudicate on the Complainants cases as filed before the Courts, but did so
in respect of cases filed by the ruling party (ZANU-PF), or that the Court
failed or refused to grant the Complainants the relief sought, but did so to
other petitioners. This Commission does not therefore find any violation of
Article 7 (1) (d) of the Charter.
136. The Complainants also alleged violation of Article 13 (1) of the
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”.
137. The Complainants’ submissions in support of this allegation hinged on
their argument that the Courts failed to render judgment on the elections
petitions on time. According to the Complainant, the right to freely
participate in government is rendered meaningless if the judiciary fails to
decide expeditiously on the electoral disputes brought before it, since that
would allow for candidates whose elections are contested to sit in
Parliament while the petitions are still lis pendens. The Respondent State
on its part argued on the expeditious disposal of petitions by the High
Court, usually, within six months as stipulated by the law establishing the
Electoral Court.[FN11] The Complainants have not adduced any evidence before
this Commission to contradict the assertions of the State. It is thus the
findings of this Commission that the Complainants have failed to convince it
that there has been a violation of Article 13 (1).
--------------------------------------------------------------------------------
[FN11] See para 95 and 96 for details about these petitions in which the
judiciary disposed them within the prescribed time limit.
--------------------------------------------------------------------------------
138. The Complainants submitted further that violation of Article 7 (1) (d)
constitutes in one respect violation of Article 26 of the Charter. Article
26 of the Charter provides that:
“State Parties to the present Charter shall have the duty to guarantee the
independence of the Courts and shall allow the establishment and improvement
of appropriate national institutions entrusted with the promotion and
protection of the rights and freedoms guaranteed by the present Charter”.
139. According to the Complainants, the judiciary is weak and ineffective.
The Complainants argue that the judiciary in Zimbabwe is not independent and
further that judges who entered decisions against the government interest
were victimized. The Respondent State replied that the Judiciary in Zimbabwe
was independent and judges were not victimized for their decisions, adding
that one such judge was promoted to the Supreme Court.
140. The Respondent State submits that those judges who resigned never made
any public statement as to the cause of the resignations. For the
Complainants to link their resignations to victimization from the government,
without leading any evidence in support thereto, does in the view of the
Commission, amount to speculations.
141. The evidence before the Commission relating to the conduct of the
judiciary in respect of the petitions forming the basis of this
Communication does not show that the judiciary was influenced by other
institutions or persons in the discharge of its functions but acted with
full independence. The Commission does not therefore find a violation of
Article 26 of the Charter.
142. Relating to the issue of the violation of Article 1 of the Charter, the
Commission finds that the Respondent State did not violated any of the
rights, alleged by the complainants, and cannot therefore be held to have
violated Article 1 of the Charter.
In conclusion, the African Commission on Human and Peoples’ Rights finds
that the Respondent State has not violated Articles 1,2,3,7 (1) (a) and (d),
13 (1) and 26 of the African Charter as alleged by the Complainants.
Done at the 43rd Ordinary Session in Ezulwini, Kingdom of Swaziland, from 7
- 22 May, 2008 |
|
