Wakilii

Chinhamo v Zimbabwe (Communication 307 of 2005)

African Commission on Human and Peoples' Rights · Chinhamo v Zimbabwe (Communication 307 of 2005) [2007] ACHPR 80 (28 November 2007) · 2007 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication submitted to the African Commission on Human and Peoples' Rights alleging human rights violations by Zimbabwe
Decision
Communication declared inadmissible

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission declared the communication inadmissible for failure to exhaust local remedies under article 56(5) of the African Charter. The Commission held that the complainant failed to substantiate his allegations that he fled Zimbabwe involuntarily due to acts of the respondent state, and that local remedies remained available to him even from outside Zimbabwe. The Commission found that the complainant did not provide concrete evidence linking alleged threats and intimidation to state agents, did not report incidents to police, and failed to attempt available domestic remedies which could be pursued through legal counsel without physical presence in Zimbabwe.

Outcome

Communication declared inadmissible

Facts

Obert Chinhamo, an employee of Amnesty International Zimbabwe and human rights defender, alleged that on 28 August 2004 he was assaulted, arrested and detained by police while investigating human rights abuses at Porta Farm. He was arrested again on 2 September 2004 and charged with incitement of public violence; the case was withdrawn on 21 February 2005 for lack of evidence. Chinhamo alleged that provisions of the Public Order and Security Act were used to deny him access to Porta Farm and justify his arrest and detention. He claimed files were deleted from his laptop and Amnesty International reports disappeared from his office. He alleged that court remands were abused to deny him trial within a reasonable time, that he was detained in inhumane conditions causing him to develop health problems, and that after release on bail he was tracked by security agents and received death threats. Fearing for his life and that of his family, he fled to South Africa in January 2005 where he sought asylum. Zimbabwe refused to issue passports to his family members.

Issues

  1. Whether the communication is admissible before the African Commission on Human and Peoples' Rights.
  2. Whether the African Commission has competence rationae materiae and rationae personae to entertain the communication.
  3. Whether the communication is compatible with the African Charter on Human and Peoples' Rights.
  4. Whether the complainant exhausted local remedies as required by article 56(5) of the African Charter.
  5. Whether local remedies were available, effective and sufficient to the complainant.
  6. Whether the complainant's flight from Zimbabwe due to alleged fear for his life excused him from exhausting local remedies.
  7. Whether the communication was submitted within a reasonable time as required by article 56(6) of the African Charter.

Orders

  • Communication 307/05, Obert Chinhamo v the Republic of Zimbabwe, declared inadmissible for failure to fulfil the requirement under Article 56(5) of the African Charter.

Rules and key headnotes

Human Rights — Admissibility of Communications — Exhaustion of Local Remedies
A communication before the African Commission on Human and Peoples' Rights must satisfy all seven requirements under article 56 of the African Charter, including exhaustion of local remedies, unless the complainant provides justification why any requirement could not be met.
Human Rights — Competence of the African Commission — Rationae Materiae and Rationae Personae
The African Commission has competence rationae materiae where a communication alleges violations of human rights guaranteed in the African Charter, and competence rationae personae where both the complainant and respondent state have locus standi before the Commission.
Human Rights — Admissibility — Compatibility with the African Charter
For a communication to be compatible with the African Charter under article 56(2), it must raise a prima facie violation of human rights; complainants need not specify which articles have been violated so long as they raise the substance of the issue.
Human Rights — Exhaustion of Local Remedies — Availability, Effectiveness and Sufficiency
A remedy is considered available if the petitioner can pursue it without impediment, effective if it offers a prospect of success, and sufficient if it is capable of redressing the complaint. The existence of a remedy must be sufficiently certain in both theory and practice.
Human Rights — Exhaustion of Local Remedies — Exception for Fear of Life
Where an applicant cannot turn to the judiciary of his country because of fear for his life, local remedies may be considered unavailable; however, the complainant bears the burden of proving torture and describing each act of intimidation or harassment that instilled fear sufficient to prevent pursuit of local remedies.
Human Rights — Exhaustion of Local Remedies — Burden of Proof
A complainant alleging that fear for his life prevented exhaustion of local remedies must provide concrete evidence linking alleged threats and intimidation to state agents; general allegations without corroboration or documentary evidence are insufficient to establish that the state created a situation necessitating flight from the country.
Human Rights — Exhaustion of Local Remedies — Pursuit from Outside the Country
Where domestic law permits a complainant to access local remedies through legal counsel without being physically present in the country, and the complainant has failed to establish that he left the country involuntarily due to acts of the state, local remedies remain available and must be exhausted.

Legislation cited (16)

  • African Charter on Human and Peoples' Rights art.5
  • African Charter on Human and Peoples' Rights art.6
  • African Charter on Human and Peoples' Rights art.7
  • African Charter on Human and Peoples' Rights art.8
  • African Charter on Human and Peoples' Rights art.9
  • African Charter on Human and Peoples' Rights art.11
  • African Charter on Human and Peoples' Rights art.12
  • African Charter on Human and Peoples' Rights art.16
  • African Charter on Human and Peoples' Rights art.17
  • African Charter on Human and Peoples' Rights art.18
  • African Charter on Human and Peoples' Rights art.55
  • African Charter on Human and Peoples' Rights art.56
  • Public Order and Security Act (Zimbabwe)
  • High Court Act (Zimbabwe) Chapter 7:06
  • Supreme Court Act (Zimbabwe) Chapter 7:05
  • Criminal Code Laws of Eastern Nigeria 1963 s.70

Cases cited (18)

  • Rencontre Africaine pour la Défense des Droits de l'Homme v Zambia (Communication 71/92)
  • Jawara v The Gambia (Communication 149/96)
  • Rights International v Nigeria (Communication 215/1998)
  • Free Legal Assistance Group and Others v Zaire (Communication 25/89)
  • Commission Nationale des Droits de l'Homme et des Libertés v Chad (Communication 74/92)
  • Degli and Others v Togo (Communication 83/92)
  • Abubakar v Ghana (Communication 103/1993)
  • Gabriel Shumba v Republic of Zimbabwe (Communication 288/2004)
  • Article 19 v Eritrea (Communication 275/2003)
  • TK v France (Communication 220/1987)
  • MK v France (Communication 222/1988)
  • JG v The Netherlands (Communication 306/1988)
  • A v Australia (Communication 560/1993)
  • L Emil Kaaber v Iceland (Communication 674/1995)
  • Ati Antoine Randolph v Togo (Communication 910/2000)
  • Earl Spencer and Countess Spencer v United Kingdom, app nos 28851/95, 28852/95
  • Commercial Farmers Union case
  • Ray Choto and Mark Chavhunduka case

Full judgment

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Chinhamo v Zimbabwe (Communication 307 of 2005) [2007] ACHPR 80 (28 November 2007)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.