Zimbabwe on the 4th February 2003. He made a court appearance on 5 February 2003 and subsequently left Zimbabwe on the same day and never returned. The Respondent State argues that, the Complainant left his wife and child in Zimbabwe. It states further, the fact that he returned to Zimbabwe cast doubts to the claim that he feared for his life, and that these are not actions of a man whose life is in danger. The State states that the complainant was never under threat from the time he was released from police custody. Regarding the fact that the Complainant's family remained in Zimbabwe, the Commission states that it is not relevant for determination of the issue of availability of remedies or otherwise, for the simple reason that the family was not, and ought not to have been implicated or held responsible for the action of the Complainant. In fact the State has a duty to protect the family under Article 18 of the Charter. 65. This sequence of facts in this complaint distinguishes the Complainant case from the Jawara case, which found that "in the mind of any right thinking person returning to the country at that material moment, for whatever reason, would be risky to his life." 66. The question, which remains to be answered, is whether or not the remedies were available, and further if they were available, were they effective? The African Commission is of the view that the Complainant was apprehensive of the integrity of the Respondent State's ability to render justice. In the view of the Commission, this was not an unjustified apprehension by the Complainant. The state has not stated whether it had taken any measures to investigate the Complainant's allegations against torture. It has not denied the allegations either, thus it cannot be expected to have inspired confidence in the complainant not to flee for the second time on the 5th February 2003. The two day presence by the complainant in Zimbabwe, much as they might appear to be actions of a person, other than "a right thinking person," in the view of the Commission, did not negate the constructive exhaustion of remedies rule. 67. The Complainant stated that he is no longer in Zimbabwe where the remedies would be sought and that he fled the country against his will, because the remedies could not be pursued without impediments and hence unavailable. The Commission needs to determine in the present case, what would amount to be an impediment to pursue domestic remedies, to warrant being considered unavailable? 68. The Respondent State argued that NGOs, which had publicised the Complainants case and addressed letters to the President of Zimbabwe, would have prosecuted his case. It gave examples of the Ray Choto case, whereby he was successfully awarded damages by Zimbabwe courts pursuant to a claim made while outside Zimbabwe. Commenting on the Ray Choto case the Complainant stated that Zimbabwe suffers from non enforcement of judgements concerning cases decided by the Zimbabwe judiciary, including the Mark Chavunduka and Ray Choto case, a torture case, whereby police investigations ordered by the Supreme Court failed to proceed. The State did not refute this specific submission by the complainant. 69. On the other hand, the Complainant argues that the issue of exhausting local remedies in respect of this offence should not arise at all because torture is not an offence that is recognised by Zimbabwean law. The Complainant asserts that because torture is a heinous crime, to bring a case on the grounds of assault, which is the only offence available under the laws of the Respondent State, would amount to trivialising the gravity with which the African Commission has always regarded torture. The African Commission does not intend to address itself on this issue at his point in time, since it touches on the merits, which could only be discussed once it has determined whether or not this communication is admissible. 70. The African Commission is aware that Article 15(1) of the Constitution of Zimbabwe which forms part of the Declaration of Rights, and specifically prohibits torture. The said provision stipulates: that no person shall be subjected to torture or to inhuman or degrading punishment or other such treatment. 71. Article 24 of the same Constitution goes on to provide for the enforcement of its protective provisions, of which Article 15(1) is part. For purposes of this communication the relevant provisions would be Article 24 (1) and (4) and they provide: 1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress. 4) The Supreme Court shall have original jurisdiction -- (a) to hear and determine any application made by any person pursuant to subsection (1) or to determine without a hearing any such application which, in its opinion, is merely frivolous or vexatious; and (b) to determine any question arising in the case of any person which is referred to it pursuant to subsection (2); and may make such orders, issue such writs and give such directions as it may consider appropriate for the 6