Zitha and Another v Republic of Mozambique (Communication 361 of 2008)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The African Commission held that enforced disappearance constitutes a continuing violation of human rights and declared itself competent ratione temporis to examine the matter. However, the Commission declared the communication inadmissible for failure to comply with Article 56(5) and Article 56(6) of the African Charter. The complainants failed to exhaust or attempt to exhaust local judicial remedies, and the communication was submitted 13 years after the complainants could have seized the Commission, which was deemed unreasonable.

Outcome

Communication declared inadmissible

Facts

Mr Jose Eugency Zitha, a Mozambican medical student, was arrested on 26 October 1974 by order of the Minister of Home Affairs of the Transition Government of Mozambique, Mr Armando Guebuza. He was detained at FRELIMO Armed Forces headquarters in Boane without being informed of the reasons for his arrest. His family was not notified. After five days, his son, Prof. Pacelli L.J. Zitha (the second victim), discovered his father's detention. The first victim was later transferred to Cadeia Judiciaria in Maputo. Around the beginning of 1975, the second victim met his father for the last time. The first victim then disappeared from the prison. An article from the Tanzania Daily News of 23 April 1975 indicated that the first victim was paraded in public at Nachinqwea Prison in southern Tanzania on 21 April 1975. Since then, there has been no trace of the first victim. The second victim fled Mozambique to France in 1983 due to fear of persecution, lived there until 1994, then moved to the Netherlands in 1995. He made several attempts to find information about his father's whereabouts, including writing letters to Mozambican presidents and attempting to engage lawyers, but received no response or assistance.

Issues

1. Whether the African Commission is competent ratione temporis to consider allegations of human rights violations that occurred before the African Charter came into force for Mozambique.
2. Whether enforced disappearance constitutes a continuing violation of human rights.
3. Whether the complainants exhausted local remedies as required by Article 56(5) of the African Charter.
4. Whether the communication was submitted within a reasonable period as required by Article 56(6) of the African Charter.

Orders

• Communication declared inadmissible for non-compliance with Article 56(5) and Article 56(6) of the African Charter.
• Notice of the decision to be given to the parties.
• Decision to be published in the 30th Activity Report of the African Commission.

Rules and key headnotes

Legislation cited (24)

• African Charter on Human and Peoples' Rights Article 2
• 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(1)(d)
• African Charter on Human and Peoples' Rights Article 56
• African Charter on Human and Peoples' Rights Article 56(1)
• African Charter on Human and Peoples' Rights Article 56(2)
• African Charter on Human and Peoples' Rights Article 56(3)
• African Charter on Human and Peoples' Rights Article 56(4)
• African Charter on Human and Peoples' Rights Article 56(5)
• African Charter on Human and Peoples' Rights Article 56(6)
• African Charter on Human and Peoples' Rights Article 56(7)
• African Charter on Human and Peoples' Rights Article 65
• Constitution of the People's Republic of Mozambique 1975 Article 33
• Constitution of the People's Republic of Mozambique 1975 Article 35
• Criminal Procedure Code Article 308
• Criminal Procedure Code Article 312
• Criminal Procedure Code Article 315
• Criminal Procedure Code Article 337
• Decree-Law No.21/75 Article 6
• Law no. 3/86
• Law no.6/89
• Law no.12/78 Article 42

Cases cited (19)

• Forum of Conscience v Sierra Leone (Communication 223 of 1998)
• Institute for Human Rights and Development (on behalf of Jean Simbarakiye) v Democratic Republic of Congo (Communication 247 of 2002)
• Sir Dawda K. Jawara v The Gambia (Communications 147 of 1995 and 149 of 1996)
• Curtis Francis Doebbler v Sudan (Communication 236 of 2000)
• Legal Assistance Group and Others v Zaire (Communications 25 of 1989, 47 of 1990, 56 of 1991 and 100 of 1993)
• Krishna Achutan (on behalf of Aleke Banda) and Others v Malawi (Communications 64 of 1992, 68 of 1992 and 78 of 1992)
• Lawyers for Human Rights v Swaziland (Communication 251 of 2002)
• Emgba Louis Mekongo v Cameroon (Communication 59 of 1991)
• Commission Nationale des Droits de l'Homme et des Libertes v Chad (Communication 74 of 1992)
• Inter-American Court on Human Rights (IACHR), Velasquez v. Honduras, 29 July 1988,Series C No.4, para. 155
• European Court of Human Rights (ECHR), Cyprus v. Turkey, Application no. 25781/94, Judgment d.d.10 mei 2001
• Moiwana Village v. Suriname, Inter- American Court of Human Rights, Inter-Am. Ct. H.R. (ser. C) No. 124, at 1 ( 15 June, 2005)
• Ovelario Tames v. Brazil, IACHR Report N? 19/98, Case No. 11.516, 21 February, 1998
• Blake v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 36, at 1 (2 July 1996)
• Liesbeth Zegveld & Mussie Epherm v Eritrea (Communication 250 of 2002)
• Institute of Human Rights and Development in Africa and Interights v Mauritania (Communication 242 of 2001)
• Article 19 v the State of Eritea
• Darfur Relief and Documentation Centre v Republic of Sudan (Communication 310 of 2005)
• Southern Africa Human Rights NGO Network and Others v Tanzania (Communication 333 of 2006)

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