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Zimbabwe Lawyers For Human Rights and Another v Republic of Zimbabwe (Communication 284 of 2003)

African Commission on Human and Peoples' Rights · [2009] ACHPR 97 · 2009 Communication Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication before the African Commission challenging Zimbabwean Supreme Court's refusal to hear a constitutional challenge on the merits based on the 'clean hands' doctrine
Decision
Communication partly upheld; State directed to compensate complainants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the Zimbabwean Supreme Court's application of the clean hands doctrine did not violate Article 3 or 7 of the African Charter, as the doctrine constituted a preliminary ruling and the Court heard the complainants' cause. However, Zimbabwe violated Articles 9.2, 14, and 15 by forcibly closing the newspaper, seizing equipment, and preventing publication, actions disproportionate and unsupported by a court order, thereby infringing freedom of expression, property rights, and the right to work.

Outcome

Communication partly upheld; State directed to compensate complainants

Facts

Associated Newspapers of Zimbabwe (ANZ) published The Daily News, Zimbabwe's largest independent newspaper. In 2002, Zimbabwe enacted the Access to Information and Protection of Privacy Act (AIPPA), requiring media registration with the Media and Information Commission. ANZ challenged the Act's constitutionality before the Supreme Court but refused to register pending the challenge. On 11 September 2003, the Supreme Court declined to rule on constitutionality, stating ANZ must register before the Court would hear the matter, applying the equitable 'clean hands' doctrine. The next day, police forcibly closed the newspaper, seized equipment, and arrested officials. ANZ then applied for registration, but the MIC refused. The Administrative Court later set aside the MIC's refusal and ordered registration by 30 November 2003, but publication remained blocked. ANZ and Zimbabwe Lawyers for Human Rights submitted the communication to the African Commission on 12 November 2003, arguing violations of their Charter rights.

Issues

  1. Whether the language used in the communication was disparaging or insulting to Zimbabwe's judiciary within the meaning of Article 56.3 of the African Charter.
  2. Whether domestic remedies had been exhausted before the communication was submitted to the African Commission.
  3. Whether the Zimbabwean Supreme Court's application of the 'clean hands' doctrine to refuse to hear a constitutional challenge violated the complainants' right to equal protection of the law under Article 3 of the African Charter.
  4. Whether the Supreme Court's refusal to hear the constitutional challenge on the merits violated the complainants' right to have their cause heard under Article 7 of the African Charter.
  5. Whether the Zimbabwean State's seizure of the complainants' equipment and closure of their business premises violated their rights to freedom of expression, property, and work under Articles 9, 14, and 15 of the African Charter.

Orders

  • Communication declared admissible.
  • Republic of Zimbabwe found not in violation of Articles 3 and 7 of the African Charter.
  • Republic of Zimbabwe found in violation of Articles 1, 9.2, 14, and 15 of the African Charter.
  • Republic of Zimbabwe recommended to provide adequate compensation to the complainants for loss incurred.

Rules and key headnotes

Admissibility — Disparaging Language — Freedom of Expression — Criticism of Judiciary
A communication submitted to the African Commission is not inadmissible for disparaging language under Article 56.3 of the Charter where the language constitutes legitimate criticism of judicial conduct rather than vilification calculated to bring the judiciary into disrepute, and where the criticism is necessary to demonstrate the absence of an effective remedy.
Exhaustion of Local Remedies — Effectiveness of Remedies — Supreme Court Refusal
Domestic remedies are deemed exhausted where an applicant has approached the highest court of the land and the court declined to determine the matter on the merits, requiring the applicant to perform the very action being challenged, thereby rendering the remedy unavailable and ineffective in the circumstances of the case.
Clean Hands Doctrine — Constitutional Challenges — Human Rights
The equitable doctrine of clean hands is a controversial rule when applied in the sphere of public law, and caution is required when applying it in cases involving fundamental human rights; nevertheless, where a court applies the doctrine in a preliminary ruling but does not close its doors to the applicant, the right to have one's cause heard is not violated.
Right to Have Cause Heard — Article 7 of the African Charter — Preliminary Objections
The right to have one's cause heard under Article 7.1(a) of the African Charter is not violated where a court hears and pronounces upon a preliminary objection raised by the respondent, even if the court declines to hear the substantive matter on the merits, provided the court does not permanently close its doors to the applicant.
Equal Protection of the Law — Article 3 of the African Charter
To establish a violation of the right to equal protection of the law under Article 3 of the African Charter, a complainant must demonstrate that the respondent state treated the complainant differently from others in a similar situation or accorded favourable treatment to others similarly positioned; mere disagreement with a court's reasoning does not constitute unequal treatment.
State Action — Proportionality — Freedom of Expression — Property Rights — Right to Work
State action to enforce compliance with law must be proportionate to the breach; where a state forcibly closes a newspaper, seizes equipment, and prevents publication without first obtaining a court order, and where the action destroys the essence of the Charter rights of freedom of expression, property, and work, the state violates Articles 9.2, 14, and 15 of the African Charter regardless of whether the action was motivated by a court decision.

Legislation cited (17)

  • Access to Information and Protection of Privacy Act (AIPPA) s.66
  • Access to Information and Protection of Privacy Act (AIPPA) s.72
  • Access to Information and Protection of Privacy Act (AIPPA) s.79
  • Access to Information and Protection of Privacy Act (AIPPA) s.80
  • Access to Information and Protection of Privacy Act (AIPPA) s.83
  • Access to Information and Protection of Privacy Act (AIPPA) s.93
  • Constitution of Zimbabwe s.3
  • Constitution of Zimbabwe s.20
  • Constitution of Zimbabwe s.24
  • African Charter on Human and Peoples' Rights art.1
  • African Charter on Human and Peoples' Rights art.3
  • African Charter on Human and Peoples' Rights art.7
  • African Charter on Human and Peoples' Rights art.9
  • African Charter on Human and Peoples' Rights art.14
  • African Charter on Human and Peoples' Rights art.15
  • African Charter on Human and Peoples' Rights art.55
  • African Charter on Human and Peoples' Rights art.56

Cases cited (8)

  • Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda/Nigeria, 13th Annual Activity Report of the OAU, 1999-2000
  • Jawara v The Gambia (Communications 147/95-149/96)
  • Interights and Others v Mauritania (Communication 242/2001)
  • Zimbabwe Lawyers for Human Rights and IHRD v Zimbabwe (Communication 293/2004)
  • Brown v. Board of Education of Topeka, 347 U.S 483 (1954)
  • Ambard v A-G of Trinidad and Tobago (1936) 1 All ER 704
  • Argus Printing and Publishing Co Ltd v Esselen's Estate (1994) 2 SA
  • Association of Independent Journalists and Others vs. Minister of State for Information and Publicity and others

Full judgment

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Zimbabwe Lawyers For Human Rights and Another v Republic of Zimbabwe (Communication 284 of 2003) [2009] ACHPR 97 (3 April 2009)
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.