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Zimbabwe Human Rights NGO Forum v Zimbabwe (Communication 245 of 2002)

African Commission on Human and Peoples' Rights · [2006] ACHPR 73 · 2006 Petition Granted (Partial Violation Found) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging human rights violations arising from political violence during Zimbabwe's 2000 constitutional referendum and parliamentary elections
Decision
Communication upheld in part; State found in violation of Articles 1 and 7(1) of the African Charter; remedial measures ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that Zimbabwe violated Articles 1 and 7(1) of the African Charter by enacting Clemency Order No. 1 of 2000, which granted amnesty for politically motivated crimes and foreclosed victims' access to judicial remedies. The Commission found that while most violations were committed by non-state actors (ZANU PF supporters and war veterans), the State could not be held directly responsible for those acts as it demonstrated due diligence in investigating and prosecuting some cases. However, the blanket amnesty prevented victims from seeking effective remedies and encouraged impunity.

Outcome

Communication upheld in part; State found in violation of Articles 1 and 7(1) of the African Charter; remedial measures ordered

Facts

Between February and June 2000, Zimbabwe held a constitutional referendum and parliamentary elections. Following the referendum defeat, widespread political violence erupted, primarily perpetrated by ZANU (PF) supporters and war veterans against perceived opposition supporters. The violence included killings, torture, rape, abductions, forced political re-education, destruction of property, and displacement of thousands. Over 550 schools were disrupted, and 82 deaths were reported by November 2001. Police allegedly failed to investigate complaints or arrest perpetrators. On 6 October 2000, the President issued Clemency Order No. 1 granting amnesty for politically motivated crimes committed during this period, excluding only murder, rape, robbery, and certain other serious offences. The Zimbabwe Human Rights NGO Forum brought this communication alleging systematic human rights violations.

Issues

  1. Whether the communication satisfied the admissibility requirements under Article 56 of the African Charter, particularly regarding exhaustion of local remedies and reliance on mass media reports.
  2. Whether the Clemency Order No. 1 of 2000 foreclosed available remedies and violated the State's obligations under the African Charter.
  3. Whether ZANU (PF) and the Zimbabwe Liberation War Veterans Association are non-state actors or organs of the State.
  4. Whether the State exercised due diligence to prevent, investigate, and punish human rights violations committed by non-state actors.
  5. Whether the State violated Articles 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, and 13 of the African Charter.

Orders

  • Communication declared admissible.
  • Republic of Zimbabwe found in violation of Articles 1 and 7(1) of the African Charter.
  • Zimbabwe directed to establish a Commission of Inquiry to investigate the causes of violence from February to June 2000.
  • Zimbabwe directed to bring those responsible for the violence to justice.
  • Zimbabwe directed to identify victims and provide just and adequate compensation.
  • Zimbabwe requested to report on implementation during presentation of its next periodic report to the African Commission.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Clemency Orders Foreclosing Criminal Remedies
Where a State issues a clemency order granting blanket amnesty for politically motivated crimes, thereby foreclosing criminal prosecution of perpetrators, victims are not required to exhaust local remedies as such remedies have been rendered unavailable by State action. The exception in Article 56(5) of the African Charter applies where the procedure for obtaining remedies would be unduly prolonged or impractical.
State Responsibility — Non-State Actors — Due Diligence Standard
A State may be held responsible for human rights violations committed by non-state actors not because of the acts themselves, but because of the State's lack of due diligence to prevent the violations or to respond to them as required by the African Charter. The due diligence standard requires States to prevent, investigate, and punish acts which impair rights recognised under international human rights law, and where possible, to restore violated rights and provide appropriate compensation.
State Obligations — Positive Duties to Respect, Protect, Promote, and Fulfil Rights
Article 1 of the African Charter imposes four levels of duties on States: (1) to respect rights by refraining from interference; (2) to protect right-holders against interference by others through legislation and effective remedies; (3) to promote the enjoyment of rights by raising awareness and building infrastructure; and (4) to fulfil rights by moving State machinery toward their actual realisation. States must organize governmental apparatus to juridically ensure the free and full enjoyment of human rights.
Amnesty Laws — Incompatibility with Human Rights Obligations — Right to Effective Remedy
Amnesty laws that absolve perpetrators of human rights violations from accountability violate victims' rights to an effective remedy under Article 7(1) of the African Charter. Where a State enacts legislation foreclosing access to any remedy available to victims and fails to establish alternative mechanisms to ensure perpetrators are punished and victims compensated, the State violates its obligations under Articles 1 and 7(1) and encourages impunity.
Executive Clemency — Limits Under International Human Rights Law
While executive clemency is recognised as an integral part of constitutional democracies, its exercise is not absolute and must comply with international human rights obligations. The African Commission has competence to determine whether domestic legislation, including clemency orders issued under constitutional authority, violates the African Charter. Where domestic law conflicts with international human rights law, the latter prevails.
Non-State Actors — Definition and Identification
Non-state actors are individuals, organisations, institutions, and other bodies acting outside the State and its organs. A political party, even the ruling party, and an association of war veterans are non-state actors distinct from government structures, notwithstanding that some government officials may hold positions in such organisations. The test is whether the organisation is part of State machinery or exercises State authority.
Right to Judicial Protection — Access to Courts — Article 7(1) of the African Charter
The protection afforded by Article 7(1) of the African Charter encompasses the right of every individual to access relevant judicial bodies competent to hear their causes and grant adequate relief. Adopting laws that foreclose this opportunity renders victims helpless and deprives them of justice. The right of access to judicial protection requires available and effective recourse for violations of rights protected under the Charter.

Legislation cited (16)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 10
  • African Charter on Human and Peoples' Rights Article 11
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Constitution of Zimbabwe Article 76
  • Constitution of Zimbabwe Section 24(1)
  • Clemency Order No. 1 of 2000 (Zimbabwe)

Cases cited (13)

  • Communications 147/95 and 149/96
  • Communication 221/98 Alfred B. Cudjoe/Ghana
  • Communication No 155/96
  • Communication 74/92
  • Velásquez-Rodríguez Case, Inter-American Court of Human Rights, Judgment of 29 July 1988
  • CFU v Minister of Lands & Others, 2000(2) ZLR 469(s)
  • Chavunduka & anor v Commissioner of Police 2000(1) ZLR 418 (S)
  • Jordan v United Kingdom (2003) 37 EHRR 2
  • X and Y v. Netherlands, 91 ECHR (1985) (Ser. A) at 32
  • Yick Wo v. Hopkins
  • Ex Parte Garland
  • Barrios Altos Case, Chumbipuma Aguirre y otros v. Perú, Inter-American Court of Human Rights, (Ser. C), No. 75 - Judgment of March 14, 2001
  • Hugo Rodríguez v. Uruguay, Communication No. 322/1988

Full judgment

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Zimbabwe Human Rights NGO Forum v Zimbabwe (Communication 245 of 2002) [2006] ACHPR 73 (25 May 2006)
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.