Wakilii

LSZ v Zimbabwe (Communication 321 of 2006)

African Commission on Human and Peoples' Rights · [2016] ACHPR 10 · 2016 Communication Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights challenging constitutional amendment ousting court jurisdiction over property acquisition
Decision
Communication struck out for failure to prosecute on the merits after admissibility was determined

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission declared the Communication admissible, finding it had competence to hear the matter and that the ouster clause in Zimbabwe's Constitutional Amendment (No. 17) Act rendered local remedies unavailable. However, the Commission struck out the Communication for lack of diligent prosecution after the Complainants failed to submit arguments on the merits despite repeated requests over several years.

Outcome

Communication struck out for failure to prosecute on the merits after admissibility was determined

Facts

On 26 April 2006, the Law Society of Zimbabwe and eleven other legal professional bodies and individuals filed a Communication with the African Commission challenging Zimbabwe's Constitutional Amendment (No. 17) Act. The Amendment, passed on 14 September 2005, introduced subsection 16B(3)(a) which ousted the jurisdiction of Zimbabwean courts to entertain challenges against executive decisions to compulsorily acquire property, particularly land. The Complainants argued this violated the African Charter by removing judicial oversight of government action and applying retrospectively. The Communication was declared admissible in May 2011 during the 49th Ordinary Session. Both parties were requested to submit arguments on the merits within 60 days. Despite multiple reminders from the Commission, including a final request on 18 May 2012, the Complainants failed to submit any arguments on the merits or request an extension of time. The Commission considered striking out the Communication at its 52nd Ordinary Session in October 2012 and gave the Complainants a final opportunity to provide proof of transmission of their merits submissions. No proof or submissions were provided.

Issues

  1. Whether the Communication is admissible under Article 56 of the African Charter on Human and Peoples' Rights.
  2. Whether the African Commission has competence rationae materiae and rationae personae to determine the Communication.
  3. Whether the Complainants have locus standi to institute the Communication.
  4. Whether the requirement to exhaust local remedies under Article 56(5) applies where domestic legislation ousts the jurisdiction of courts.
  5. Whether the Communication should be struck out for lack of diligent prosecution on the merits.

Orders

  • Communication declared admissible.
  • Communication struck out for lack of diligent prosecution.

Rules and key headnotes

African Commission Jurisdiction — Competence Rationae Materiae and Rationae Personae
The African Commission has competence rationae materiae to entertain a Communication where it alleges violations of personal rights to own property and other human rights guaranteed and protected in the African Charter, as such allegations raise material elements which may constitute human rights violations.
Locus Standi — Actio Popularis Approach Before African Commission
The African Commission has adopted the actio popularis approach which allows everyone including non-victim individuals, NGOs and pressure groups with interest to file a Communication, provided they allege the violation of a recognized Charter right, without needing to show that they personally have any specific rights that have been violated.
Admissibility — Compatibility with Constitutive Act and African Charter
A Communication satisfies the compatibility requirement under Article 56(2) of the African Charter where it is brought against a State party to the African Charter, alleges prima facie violations of rights protected by the Charter, and is brought in respect of violations that occurred after ratification or where violations that began before ratification have continued after ratification.
Exhaustion of Local Remedies — Ouster of Jurisdiction Exception
Complainants will not be required to exhaust local remedies where legislative or administrative provisions operate to oust the jurisdiction of ordinary courts from taking up cases both at first instance and on appeal, as in such circumstances local remedies will be held as unavailable and non-existent.
Striking Out — Lack of Diligent Prosecution on Merits
Where a Communication has been declared admissible and the Complainant fails to submit observations on the merits within the stipulated period, fails to respond to multiple requests from the Commission for submissions, and fails to request an extension of time, the Commission may strike out the Communication for lack of diligent prosecution.

Legislation cited (15)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 45(2)
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 56(1)
  • African Charter on Human and Peoples' Rights Article 56(2)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • Constitutive Act of the African Union Article 3(g)
  • Constitutive Act of the African Union Article 3(h)
  • Constitutive Act of the African Union Article 4(b)
  • Constitution of Zimbabwe Constitutional Amendment (No. 17) Act subsection 16B(3)(a)
  • Constitution of Zimbabwe Section 24

Cases cited (18)

  • Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
  • Associated Newspapers of Zimbabwe v Minister of Information
  • Communication 307/05
  • Baes v Zaire (Communication 31 of 1989)
  • Constitutional Rights Project and Others v Nigeria (Communication 109 of 1993)
  • Bakweri Land Claims Committee v Cameroon (Communication 260 of 2002)
  • Zimbabwe Lawyers for Human Rights and Associated Newspapers of Zimbabwe v Republic of Zimbabwe (Communication 284 of 2003)
  • Anuak Justice Council v Ethiopia (Communication 299 of 2005)
  • Katangese Peoples' Congress v Zaire (Communication 75 of 1992)
  • Kevin Mgwanga Ngumne and Others v Cameroon (Communication 266 of 2003)
  • Prince J.N Makoge v USA (Communication 5 of 1988)
  • Frederick Korvah v Liberia (Communication 1 of 1988)
  • John K. Modise v Botswana (Communication 97 of 1993)
  • Seyoum Ayelle v Togo (Communication 35 of 1989)
  • Muthuthurin Njoka v Kenya (Communication 142 of 1994)
  • Civil Liberties Organisation v Nigeria (Communication 129 of 1994)
  • International PEN and Others (on behalf of Ken Saro-Wiwa Jr) v Nigeria (Communications 137/94, 139/94, 154/97 and 161/97)
  • Zimbabwe Human Rights NGO Forum v Zimbabwe (Communication 245 of 2002)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

LSZ v Zimbabwe (Communication 321 of 2006) [2016] ACHPR 10 (1 February 2016)
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.