Wakilii

Nyikadzino v Zimbabwe (Communication 340 of 2007)

African Commission on Human and Peoples' Rights · [2014] ACHPR 3 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging torture and human rights violations by state agents
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 comply with Articles 56(5) and 56(6) of the African Charter. The Commission held that the complainant failed to exhaust local remedies, finding that the victim could have been represented by a lawyer to pursue domestic remedies despite being in exile. The Commission rejected arguments that fear of persecution, lack of judicial independence, and non-implementation of court orders excused the failure to exhaust local remedies, holding that the complainant should have attempted to pursue available remedies rather than casting aspersions on their effectiveness based on isolated incidents.

Outcome

Communication declared inadmissible

Facts

On 14 April 2006, Nixon Nyikadzino was forcibly abducted in Harare by suspected members of Zimbabwe Military Intelligence. During the abduction, he was interrogated about his involvement with the National Constitutional Assembly, a constitutional reform organization. He was subjected to severe torture including physical assault, sexual humiliation, forced consumption of a lit cigarette, and being urinated upon. The assailants threatened to kill him and warned him against involvement in governance and human rights issues. He was eventually thrown from the vehicle approximately 47 kilometers from Harare. He walked 17 kilometers to a police roadblock but did not report the torture for fear of further victimization. Medical examination confirmed extensive injuries including hair removal, hemorrhages, and bite marks. The victim subsequently fled Zimbabwe and went into exile in South Africa. The Zimbabwe Human Rights NGO Forum filed a communication with the African Commission on 8 May 2007, one year after the incident.

Issues

  1. Whether the communication is compatible with the African Charter on Human and Peoples' Rights under Article 56(2).
  2. Whether the complainant exhausted local remedies as required by Article 56(5) of the African Charter.
  3. Whether the communication was submitted within a reasonable period as required by Article 56(6) of the African Charter.
  4. Whether the victim's flight from Zimbabwe for fear of his life excuses the failure to exhaust local remedies.
  5. Whether the alleged lack of independence of the Zimbabwean judiciary renders local remedies ineffective.
  6. Whether the alleged non-implementation of court orders by Zimbabwean authorities renders local remedies ineffective.

Orders

  • Communication declared inadmissible for non-compliance with Article 56(5) and 56(6) of the African Charter.
  • Notice of the decision to be given to the parties in accordance with Rule 107(3) of the Rules of Procedure.
  • Decision to be attached to the 32nd Activity Report.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Representation by Legal Practitioner
Where national law permits a person to be represented by a legal practitioner in court proceedings without being physically present, the requirement to exhaust local remedies is not excused by the victim's flight from the country for fear of persecution, as the complainant or another person could pursue the remedies on the victim's behalf.
Admissibility — Exhaustion of Local Remedies — Burden of Proof
Having decided to act on behalf of a victim, it is incumbent on the author of a communication to take concrete steps to comply with the exhaustion of local remedies requirement, and local remedies could be exhausted by the victim, the complainant, or any other person.
Admissibility — Effectiveness of Local Remedies — Judicial Independence
Allegations that a domestic court system lacks independence and is subject to political pressure do not warrant a finding that local remedies are ineffective where the complainant has not attempted to pursue those remedies and where there is evidence that domestic courts have ruled in favor of victims in similar cases, even if implementation of those decisions was lacking.
Admissibility — Exhaustion of Local Remedies — Likelihood of Success
If a remedy has the slightest likelihood to be effective, the applicant must pursue it; arguing that local remedies are not likely to be successful without trying to avail oneself of them will not sway the Commission to waive the exhaustion requirement.
Admissibility — Exhaustion of Local Remedies — Non-Implementation of Court Orders
It is not enough for a complainant to conclude that because the state failed to comply with a court decision in one instance, it will do the same in their own case; each case must be treated on its own merits, and the complainant should attempt to exhaust local remedies rather than merely anticipating the outcomes of court proceedings.
Admissibility — Prima Facie Case — Rationae Materiae Jurisdiction
A prima facie violation of the African Charter is established when the facts presented in the complaint show that a human rights violation has likely occurred, and where such a prima facie case is proved, the African Commission has rationae materiae jurisdiction to entertain the case.
Admissibility — Reasonable Time — Article 56(6)
The requirement under Article 56(6) that communications be submitted within a reasonable period is tied to the exhaustion of local remedies requirement, such that where local remedies have not been exhausted, the reasonable time requirement is automatically not met.

Legislation cited (19)

  • African Charter on Human and Peoples' Rights Art.1
  • African Charter on Human and Peoples' Rights Art.2
  • African Charter on Human and Peoples' Rights Art.4
  • 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.10
  • African Charter on Human and Peoples' Rights Art.56
  • African Charter on Human and Peoples' Rights Art.56(1)
  • African Charter on Human and Peoples' Rights Art.56(2)
  • African Charter on Human and Peoples' Rights Art.56(3)
  • African Charter on Human and Peoples' Rights Art.56(4)
  • African Charter on Human and Peoples' Rights Art.56(5)
  • African Charter on Human and Peoples' Rights Art.56(6)
  • African Charter on Human and Peoples' Rights Art.56(7)
  • Constitution of Zimbabwe s.24(1)
  • High Court Act (Zimbabwe) Chapter 7:06 s.50(1)
  • High Court Act (Zimbabwe) Chapter 7:06 s.51
  • Supreme Court Act (Zimbabwe) Chapter 7:05
  • Legal Practitioners Act (Zimbabwe) Chapter 27:07

Cases cited (16)

  • Frederick Korvah v Liberia (Communication 1 of 1988)
  • Dr Abd Eldayem AE Sanussi v Ethiopia (Communication 14 of 1988)
  • Sir Dawda K. Jawara v The Gambia (Communications 147 of 1995 and 149 of 1996)
  • Rights International v Nigeria (Communication 215 of 1998)
  • John D. Ouko v Kenya (Communication 232 of 1999)
  • Constitutional Rights Project v Nigeria (Communication 60 of 1991)
  • Akdivar and Others v Turkey (Application No. 21893 of 1993)
  • Mentes and Others v Turkey (Application No. 58 of 1996)
  • Chavhunduka v Commissioner of Police and Another [2001] 1 ZLR 481 (S)
  • Samuel T. Muzerengwa and 110 Others v Zimbabwe (Communication 306 of 2005)
  • Mr. Obert Chinhamo v Zimbabwe (Communication 307 of 2005)
  • J.E. Zitha & P.J.L Zitha v Mozambique (Communication 361 of 2008)
  • Article 19 v Eritrea (Communication 275 of 2003)
  • Anuak Justice Council v Ethiopia (Communication 299 of 2005)
  • Michael Majuru v Zimbabwe (Communication 308 of 2007)
  • Givemore Chari v Republic of Zimbabwe (Communication 351 of 2007)

Full judgment

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

Nyikadzino v Zimbabwe (Communication 340 of 2007) [2014] ACHPR 3 (4 June 2014)
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.