43. The Complainants therefore argue that, ‘one can safely conclude that the failure by the
government of Zimbabwe to respect court orders thereby denying local remedies to victims of human
1
rights violations amounts to constructive exhaustion of local remedies’.
44. The Complainants urged the Commission to draw inspiration from the Inter-American Court
decision on the same principle, which states as follows; “…when remedies are denied for trivial
reasons or without examination on merits, or if there is proof of the existence of a practice or policy
tolerated by the government, the effect of which is to impede persons from invoking internal remedies
that would normally be available to others, resort to such remedies becomes a senseless formality.”
Respondent State’s arguments
45. The Respondent State relies on two grounds:
1. Disparaging language (Article 56(3))
46. The Respondent State submits that the language used in the communication is disparaging to
the Republic of Zimbabwe, in particular, the Department of Immigration in Zimbabwe and, as such, the
communication should be considered inadmissible. The Respondent State claims that the language
used to describe the deportation and events preceding the deportation of the Complainant expose the
State and the Department of Immigration of Zimbabwe to unnecessary ridicule. It argues that
international attention garnered by the Land Reform Programme, is exacerbated by such disparaging
statements are [sic], among other things, that there is no rule of law in Zimbabwe, court orders are not
enforced and crimes against humanity are committed by high ranking State officials.
2. Exhaustion of local remedies (Article 56(5))
47. Concerning Article 56.5, the Respondent State submits that the Complainants have not
attempted to exhaust local remedies and, as such, the communication should be considered
inadmissible. According to the Respondent State, the victim, while still resident in the Republic of
Zimbabwe, approached the local courts on a number of occasions seeking redress. The State argues
that the victim does not, however, need to be physically in Zimbabwe in order to avail himself of
available domestic remedies. That he can instruct his lawyers from wherever he is and the relevant
action can be done through his lawyers. The State argues further that his lawyers could, for instance,
make issue of the alleged contempt of court by Immigration Officials, and also push for the revocation
of the deportation order and subsequent reinstatement of the victim’s residence permit.
48. Consequently, the Respondent State argues that the communication does not meet the
requirements of Articles 56.3 and56.5 and should be declared inadmissible.
49. During its oral submission, the Respondent State submitted that following discussions with the
Complainants, it decided to abandon its argument of disparaging language, but maintains the issue of
non-exhaustion of local remedies.
Decision
50. When the parties made oral submissions before the Commission, the Respondent State
submitted that, it had decided to abandon the argument on disparaging language but maintained the
grounds on issue of non-exhaustion of local remedies. The Commission takes note of that submission,
and would not make a ruling on Article 56.3, since the parties are not at issue on the question of
disparaging language.
51. Both parties made submissions on Article 56.5 regarding the question of non-exhaustion of local
remedies. The Commission has stated in previous decisions, (see paragraph 39 above) that the
principle of exhaustion of domestic remedies, presupposes existence of effective judicial remedies.
Administrative or quasi-judicial remedies which do not operate impartially are considered as