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Zimbabwe Lawyers For Human Rights and Another v Republic of Zimbabwe (Communication 294 of 2004)

African Commission on Human and Peoples' Rights · [2009] ACHPR 98 · 2009 Communication Granted 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 violations of the African Charter arising from deportation of a journalist
Decision
Communication upheld; Zimbabwe found in violation of multiple Charter provisions; recommendations issued for remedial action including rescission of deportation order and restoration of victim's residence status

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, 2, 3, 7.1.a, 7.1.b, 9, 12.4, and 26 of the African Charter by deporting journalist Andrew Meldrum in defiance of multiple High Court orders staying his deportation. The Commission found that the deportation constituted discrimination based on national origin, denied due process and the right to be heard, violated freedom of expression, and undermined judicial independence. The Commission applied the principle of constructive exhaustion of local remedies, finding that Zimbabwe's active frustration of court orders rendered further pursuit of domestic remedies a senseless formality.

Outcome

Communication upheld; Zimbabwe found in violation of multiple Charter provisions; recommendations issued for remedial action including rescission of deportation order and restoration of victim's residence status

Facts

Andrew Barclay Meldrum, an American journalist, was legally admitted to Zimbabwe in 1980 and held permanent residence. In May 2002, he published an article and was charged with publishing falsehoods under the Access to Information and Protection of Privacy Act. He was acquitted in July 2002, and the relevant statutory provision was later declared unconstitutional by the Supreme Court. Immediately after acquittal, immigration authorities served him with a deportation order. His lawyers obtained High Court orders staying the deportation pending determination of constitutional matters before the Supreme Court. In May 2003, immigration authorities informed Meldrum he could no longer work as a journalist and forcibly deported him despite multiple High Court orders prohibiting deportation and requiring his production before the court. State counsel appeared in court without Meldrum and claimed he could not be located, but proceeded with deportation in defiance of court orders.

Issues

  1. Whether the deportation of Mr Meldrum violated his right to equality before the law and non-discrimination under Articles 2 and 3 of the African Charter.
  2. Whether the deportation in defiance of court orders violated Mr Meldrum's right to have his cause heard and the presumption of innocence under Article 7.1.a and 7.1.b of the African Charter.
  3. Whether the deportation violated Mr Meldrum's right to freedom of expression and to receive and disseminate information under Article 9 of the African Charter.
  4. Whether the deportation of a legally admitted non-national without due process violated Article 12.4 of the African Charter.
  5. Whether the Respondent State's failure to comply with court orders violated its duty to guarantee the independence of the courts under Article 26 of the African Charter.
  6. Whether the Complainants were required to exhaust local remedies before bringing the communication to the African Commission.

Orders

  • Communication declared admissible.
  • Republic of Zimbabwe found to have violated Articles 1, 2, 3, 7.1.a, 7.1.b, 9, 12.4 and 26 of the African Charter.
  • Respondent State to take urgent steps to ensure court decisions are respected and implemented.
  • Respondent State to rescind the deportation orders against Mr Andrew Meldrum to allow his return to Zimbabwe if he wishes, restoring his permanent residence status.
  • Respondent State to ensure the Supreme Court finalises determination of Mr Meldrum's application on denial of accreditation.
  • In the alternative, Respondent State to grant accreditation to Mr Meldrum to resume practice of journalism.
  • Respondent State to report to the African Commission within six months on implementation of recommendations.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Constructive Exhaustion
Where a State actively frustrates a complainant's access to domestic judicial remedies by disregarding court orders and deporting the victim in defiance of restraining orders, the principle of constructive exhaustion of local remedies applies and the requirement to exhaust domestic remedies under Article 56.5 of the African Charter is satisfied.
Non-Discrimination — Deportation Based on National Origin
Although States have the right to regulate entry, exit and stay of foreign nationals, a State's right to expel individuals is not absolute and is subject to restraints including a bar against discrimination based on national origin; deportation of a legally resident non-national under circumstances where a national would not face similar treatment constitutes discrimination in violation of Article 2 of the African Charter.
Equality Before the Law — Equal Treatment Under Similar Conditions
The right to equality before the law under Article 3.1 of the African Charter means that individuals legally within a State's jurisdiction should expect equal treatment under similar conditions and that existing laws must be applied in the same manner to all persons subject to them; judges and administration officials may not act arbitrarily in enforcing laws, and factual patterns that are objectively equal must be treated equally.
Equal Protection of the Law — Due Process
Equal protection of the law under Article 3.2 of the African Charter means that no person or class of persons shall be denied the same protection of the laws enjoyed by other persons in like circumstances; where a State denies a party the opportunity to seek protection of the courts and denies due process key to ensuring remedy, it violates Article 3.2.
Right to Be Heard — Access to Competent Jurisdiction
The right to have one's cause heard under Article 7.1.a of the African Charter requires that victims have unfettered access to competent jurisdiction; where competent authorities put obstacles preventing victims from accessing competent tribunals, including by deporting a person before a scheduled hearing to prevent them from being heard, the State violates Article 7.1.a.
Deportation of Non-Nationals — Due Process Requirements
Under Article 12.4 of the African Charter, a non-national legally admitted in a State Party's territory may only be expelled by virtue of a decision taken in accordance with the law; while the Charter does not bar deportations per se, it requires deportations to take place in a manner consistent with due process of law, and deportation in disregard of court orders staying the deportation violates Article 12.4.
Independence of the Judiciary — State Duty to Comply with Court Orders
Article 26 of the African Charter imposes a duty on State Parties to guarantee the independence of the courts; it is a vital requirement in a state governed by law that court decisions be respected by the State, and refusal to comply with court orders undermines the independence of the courts and violates Article 26.

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 7.1.a
  • African Charter on Human and Peoples' Rights Article 7.1.b
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 12.4
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 27.2
  • African Charter on Human and Peoples' Rights Article 56.3
  • African Charter on Human and Peoples' Rights Article 56.5
  • African Charter on Human and Peoples' Rights Article 60
  • Access to Information and Protection of Privacy Act (Zimbabwe) s.80(1)(b)
  • Immigration Act (Zimbabwe) s.14(1)(g)
  • Immigration Act (Zimbabwe) s.20(2)
  • Constitution of Zimbabwe s.24

Cases cited (10)

  • Lloyd Zvakavpano Mudiwa v The State
  • Constitutional Rights Project vs. Nigeria
  • Godinez Cruz v Honduras
  • Legal Defence Centre v The Gambia (Communication 219/98)
  • Union Interafricaine des Droits de l'Homme and Others v Angola (Communication 159/1996)
  • Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa v Republic of Zimbabwe (Communication 293/2004)
  • Brown v Board of Education of Topeka, 347 US 483 (1954)
  • John D Ouko v Kenya (Communication 232/99)
  • Rencontre Africaine pour la Defense des Droits de l'Homme v Zambia (Communication 71/92)
  • Purohit and Moore v The Gambia (Communication 241/2001)

Full judgment

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Zimbabwe Lawyers For Human Rights and Another v Republic of Zimbabwe (Communication 294 of 2004) [2009] ACHPR 98 (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.