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Zimbabwe Lawyers for Human Rights v Republic of Zimbabwe (Communication 298-05)

African Commission on Human and Peoples' Rights · [2022] ACHPR 23 · 2022 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication alleging human rights violations under the African Charter on Human and Peoples' Rights
Decision
Communication upheld; violations of the African Charter established

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the Communication was admissible despite being filed while an appeal was pending before the Supreme Court of Zimbabwe, applying Article 56(5) flexibly where the Victim faced imminent imprisonment. On the merits, the Commission found violations of Articles 2 and 3 of the African Charter. The land expropriation policy itself was not discriminatory, but the manner of seizure—involving violence linked to a Presidential speech targeting the Victim by name and political affiliation—violated Article 2. The Commission found further violations relating to fair trial, property rights, and State responsibility for failing to protect the Victim from violence by non-State actors.

Outcome

Communication upheld; violations of the African Charter established

Facts

Roy Bennett, an opposition Member of Parliament in Zimbabwe, was convicted of contempt of Parliament and sentenced to 12 months imprisonment with hard labour following a physical altercation with a ruling party Minister during a parliamentary debate in May 2004. Bennett had purchased farmland in Chimanimani after independence and developed it into a productive coffee estate. From 2000 to 2005, Bennett and his family endured attacks including the killing of two employees, rape of female employees, assault, and threats from persons suspected to be State agents or ruling party supporters. President Mugabe publicly named Bennett in a speech stating his land would be taken due to his opposition party support. Bennett's farm was ultimately expropriated under Zimbabwe's Land Reform Programme without compensation, despite multiple court orders in his favour which the State failed to implement. Bennett was imprisoned while his appeal against the Parliamentary conviction was pending before the Supreme Court.

Issues

  1. Whether the Respondent State violated Article 2 of the African Charter by discriminating against the Victim on the basis of race, colour, and political opinion.
  2. Whether the Respondent State violated Article 3 of the African Charter by denying the Victim equal protection of the law.
  3. Whether the Respondent State violated Articles 4 and 5 of the African Charter by subjecting the Victim to torture, cruel, inhuman or degrading treatment.
  4. Whether the Respondent State violated Article 6 of the African Charter by arbitrarily arresting and detaining the Victim.
  5. Whether the Respondent State violated Article 7 of the African Charter by denying the Victim a fair hearing before an independent and impartial tribunal.
  6. Whether the Respondent State violated Articles 10, 11 and 13 of the African Charter by interfering with the Victim's rights to freedom of association, assembly and political participation.
  7. Whether the Respondent State violated Article 14 of the African Charter by expropriating the Victim's property without adequate compensation.
  8. Whether the Respondent State violated Article 18 of the African Charter by failing to protect the Victim's family from violence.
  9. Whether local remedies were exhausted as required by Article 56(5) of the African Charter.

Orders

  • Communication declared admissible.
  • Violations of Articles 2 and 3 of the African Charter found.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Flexible Application
Article 56(5) of the African Charter requiring exhaustion of local remedies must be applied with flexibility and without excessive formalism. Where a Communication is filed while an appeal is pending but the Commission only considers it after conclusion of that appeal, and where the applicant faced imminent risk to liberty, there is substantial compliance with the exhaustion requirement.
Admissibility — Burden of Proof — Availability of Remedies
The burden of proving that effective and sufficient local remedies exist rests on the Respondent State. A remedy is available only if the applicant can pursue it without impediment, effective if it offers a prospect of success, and sufficient if capable of redressing the complaint. Where domestic courts have ruled that Parliament's decisions as a sui generis court are not subject to judicial review for fair trial guarantees, the State has not shown that effective remedies exist.
Discrimination — Legitimate State Policy — Manner of Implementation
A State policy of land reform to redress historical imbalances is not inherently discriminatory where it pursues a legitimate public interest and is provided for by law. However, where the implementation of that policy involves violence against an individual linked to a Presidential speech targeting that person by name and political affiliation, the manner of implementation violates Article 2 of the African Charter prohibiting discrimination on grounds of political opinion.
State Responsibility — Non-State Actors — Due Diligence
A State may be held responsible under international human rights law for violations perpetrated by non-State actors where the State fails to exercise due diligence to prevent the violations or respond to them as required. Where a State fails to investigate crimes, prosecute perpetrators, or enforce court orders protecting victims from ongoing violence, the State is complicit in the violations.
Fair Trial — Parliamentary Privilege — Compatibility with Charter
Where a Parliament exercises jurisdiction to try and sentence an individual for contempt, imposing criminal penalties including imprisonment, the proceedings must comply with fair trial guarantees under Article 7 of the African Charter. A domestic constitutional provision permitting Parliament to act as judge in its own cause does not exempt the State from its obligations under the African Charter.

Legislation cited (10)

  • African Charter on Human and Peoples' Rights Articles 1, 2, 3, 4, 5, 6, 7(1)(a), 10, 11, 13, 14, 18, 26
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 57
  • Privileges, Immunities and Powers of Parliament Act s.21
  • Privileges, Immunities and Powers of Parliament Act s.16(1)
  • Privileges, Immunities and Powers of Parliament Act s.16(3)
  • Constitution of the Republic of Zimbabwe 1980 s.15(1)
  • Constitution of the Republic of Zimbabwe 1980 s.63
  • Constitutional Amendment (No 17) Act 2005 s.16B(2)
  • Land Acquisition (Amendment) Act 2002 s.5(1)

Cases cited (17)

  • Chinhamo v Zimbabwe (Communication 307/2005)
  • Interights v Namibia
  • Kenyan Section of the ICJ v Kenya
  • Akdivar v Turkey (1996) ECtHR (Application No 21893/93)
  • Jawara v The Gambia (2000) ACHPR
  • Rencontre Africaine pour la Defence des Droits de l'Homme v Zambia (1997)
  • De Wilde, Ooms and Versyp v Belgium (1972) ECtHR
  • Ringeisen v Austria (1971) ECtHR (Application no 2614/65)
  • Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa v Zimbabwe
  • S v Ndhlovu (1998) 2 SA 702 ZSC
  • Mutasa v Makombe (1998) 1 SA 397 ZSC
  • Roy Bennett v Emmerson Dambudo Mnangagwa and 6 others (SC 75/05)
  • Sudan Human Rights Organization and Centre on Housing Rights and Evictions (COHRE) v Sudan
  • Germany v Poland (The Factory at Chorzow case)
  • Association of Victims of Post Electoral Violence v Cameroon (Communication 272/03)
  • Constitutional Rights Project v Nigeria (Communication 140/94, 141/94, 145/95)
  • The Nubian Community in Kenya v The Republic of Kenya (Communication 317/2006)

Full judgment

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

Zimbabwe Lawyers for Human Rights v Republic of Zimbabwe (Communication 298-05) [2022] ACHPR 23 (9 March 2022)
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.