241. Importantly, the Court observes that whilst such attacks and the climate of
fear they create constitute violations of PWA right to dignity under Article 5
of the Charter, in order for such violations to be attributable to the
Respondent State, the latter must have failed to perform due diligence by
failing to take necessary steps to prevent the violation or provide the victims
with reparations.70
242. In this regard, the Court notes its earlier finding that the Respondent State
has failed to exercise due diligence in preventing attacks, investigating them
as well as prosecuting offenders and sentencing them accordingly.
243. In light of the foregoing, the Court finds that the Respondent State violated
Article 5 of the Charter by failure to take necessary steps to prevent the
violation of the rights of PWA.
E. Alleged violation of the right to an effective remedy
244. The Applicants argue that even though Article 7 of the Charter provides for
the right to have one’s cause heard, it should be read jointly with the
Commission’s Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa. In this regard, they aver that everyone has the
right to an effective remedy by competent national tribunals for violation of
rights protected under the Constitution, national laws or the Charter.
245. In reference to Article 2(3)(b) of ICCPR, the Applicants submit that the right
to effective remedy includes claiming such a remedy before a competent
judicial, administrative or legislative authority. Furthermore, citing the
Commission’s case of Zimbabwe Human Rights NGO Forum v. Zimbabwe,
the Applicants aver that the protection under Article 7 of the Charter is not
limited to arrested and detained persons but also envisions the right of every
individual to access the relevant judicial bodies competent to hear the cases
and grant reliefs.
70
ACHPR, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Communication Number 245/20, § 143.
56