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ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility I I I i this argument, the Complainant refe~s to the decision of the Supreme Court of Zimbabwe in 5 v Ndhlovu, where it held that:38 The freedom [from] torture, cruel, inhumal or ~egrading punishment and treatment is not confined to punishments which are [in their nature inhuman or degrading. It also extends to punishments which are' grossly disproportionate': those which are inhuman or degrading in their disproportionality to the seriousness of the offence, in I that no one coul4 possibly have thought that the particular offence would have attracted such a penalty... l 94. The Complainant argues that in applyi g the above principles to the facts of the present Communication, there c~n I be no dq;u;ptc:tllatthe sentence of 15 ~?nths imprisonme~t with l~~our, }~;'?'"whic~~;}pm~nths was conditionally suspended, IS grossly dispropC)rtl~~~te to\t~e senousness of the offence committed by the victim. ·~(;:):;~t:;:,,/;L;".. .r'', ._ .....,',. ,.".~ L"£""'''''' ,'<:: t... " "'\j'<" 95. The Complainant submits that bY)nli~sing\vi.}effecll~/~Jt:prison sentence ~:_;!~ when other forms of puni~~enf ::'~,o.,Uld):;;havebee::"" ppropriate, Parliament failed to guard aga~~t an exce§'si\Fedevotions 0 the cause of deterrence. Hence, the COIfwlainaflt~'£:~.ntends~t99:~ Parliament did not give due regard to mitigatil1g'i~~ctors, a~~1\t~., Victim. acted in the heat of the moment and in respqn§e4tdt~§xere_(l1tb~'~£·~,t.ion. T,he Complainant submits ,<-.;_.;y~ t'"M I -"',,'f ~~~\ ., that if these factors- were con$J~~red, it wqH!gy,have greatly reduced the Victim's moral blamewotthines"si);:Itt~erefotE(submits that this omission amounts to a vi~ia tion of Articles '4~i>,J 5 of the African Charter. . _-i :_.~...... '- 0 _.-. '\. ••• ", ',j-'6" Alleged violation o(At;ticles 6 of th~ Affi~an Charter vJtim 96. The C;'~Pli!inant :dbmly;:< thaf~e was subjected to an unlawful and arB~1i.ary;>'" ~~; on 9'Oc-tober 2002,[asthe charges brought against him were fals~i,It §:;r 'i111:~~,:",t~'tt following the arrest of the Victim, his lawyers were deni~a.,:gtcesst6{ruin and threatened with violence. "';;', ,"' I 97. The ComplaiB:fl,ptalleges that after sdffering humiliation and abuse, the Victim and other arrested persons were eventually taken to court and accused of violating the Electoral Ac~ by taking photographs within a hundred (100) meters of the polling sta~on. The Complainant submits that there was no evidence to sustain the charge, hence the State never proceeded with the matter. However,lthe Complainant contends that the action~ of the Respondent Stat~ a~d its!failure to stop the arbitrary a~r~~_~!_ detentIO~s and assa~lt o~the VI.chmat rhe hand~ of.Sta~ea~en~~te~~_, to an arbitrary deprivation of liberty and security In violahO}?;,W~~~t121WI6r ('o~\ of the African Charter. l!_! ....... <~\\ O :f1 (~,' ul ~Gl Ii __________ .r __ '1(.) ·,\,'-O'W)) 0 Ii 385 v Ndhlovu (1998) 2 SA 702 ZSC at 715 G - I ': ~ ,,-=,,,# ~::; » ;"'" ~ b1 i' I,) ~ ~ o ~ p.U-llA,g:- \\~gc. 4"RICP,\~~ '~ "" 0 ~ ~ ~0'X'v ""0M 1:,'5 'i' t/' "",'~ ME ET 0 ;;p." ..,~ en ~ .q

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Communication 298/05 - Roy Bennett (Represented by Zimbabwe Lawyers for Human Rights) v. Zimbabwe

ACHPR Decision

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Type of Document

Decision

Keywords

Cruel and Degrading Treatment
Damages and Compensation
Equality
Equality Before the Law
Freedom from Discrimination
Freedom of Association
Freedom of Expression / Digital Rights
Freedom of Opinion
Investigation
Land Expropriation
Land Rights
Participation in Government
Personal Liberty
Protection of Family and Vulnerable Groups
Right to Fair Trial
Right to Property
Torture and Ill Treatment

Case Head Notes: During a parliamentary debate, the Victim was verbally assaulted by the Minister of Justice and became so upset that he pushed the Minister of Justice to the ground. A parliamentary committee was established to try the Victim for contempt of Parliament, and the Victim was found guilty of contempt and sentenced to 12 months in prison with hard labour. The Complainant states that the trial was a continuation of a targeted campaign against the Victim, in which attacks were made on his farm and against him, his wife, and the workers on his farm. Additionally, the Complainant states that the Victim had his land confiscated by the Respondent State. The Commission found a violation of Article 2, stating that even though the perpetrators, who invaded the Victim's land, were not acting in pursuance of the government's policy, the fact that their actions were linked to the President's speech, where he singled out the victim for his political views, established a sufficient link between the actions of the Respondent State's discriminatory stance against the Victim's political views, and the harm suffered by the Victim, to constitute a violation of Article 2. The Commission found violations of Articles 3 and 5 because the Respondent State failed to investigate and try the perpetrators who assaulted the Victim and his wife. The Commission found a violation of Article 6 stating that detaining the Victim without allowing him access to a legal representative of his choice violated Article 6. The Commission found a violation of Article 7 stating that, in the Parliamentary hearing, the Chairperson exercised the dual function of being the Complainant and the adjudicator, contravening the appropriate safeguards of natural justice that should have been followed. The Commission found violations of Articles 10, 11 and 13, stating that the President's speech, which targeted the Victim because of his political association and opinion, motivated the attacks against the Victim, and therefore contravened his right to freedom of expression, association and participation in government. The Commission found a violation of Article 14 stating that, while the Respondent State may legitimately expropriate land in support of public interest, a key requirement is that there must be appropriate and timely compensation and, in the present case, the delay in compensation, and the manner in which the land was confiscated, violated Article 14. The Commission found a violation of Article 18 because the Respondent State failed to investigate and prosecute the perpetrators of the attack against the victim and his family, and further because it was the speech of the President that incited the attacks against the Victim. The Commission found that the Respondent State's failure to protect the Victim's Charter rights also means that Article 1 was violated. The Commission requested the Respondent State to pay fair and adequate compensation to the victim for the acquisition of his property, and the loss of his equipment and livestock, in accordance with the principles guiding expropriation of private property under international law. The Commission also requested the Respondent State to independently investigate and punish all non-State actors responsible for the attacks against the Victim and his family and to report back to the Commission on the measures taken to implement the recommendations.

Country

Zimbabwe

Outcome: Decided on Merits

Year Decided: Mar 9, 2022

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 7.1: Right to be Heard
ACHPR 1: General Obligations
ACHPR 10: Right to Freedom of Association
ACHPR 11: Right to Freedom of Assembly
ACHPR 13: Right to Participate in Government
ACHPR 14: Right to Property
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 2: Freedom from Discrimination
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 7.1.a: Right to Sue for Remedy before a Competent Tribunal

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 1: General Obligations
ACHPR 10: Right to Freedom of Association
ACHPR 10.1: Freedom of association
ACHPR 11: Right to Freedom of Assembly
ACHPR 13: Right to Participate in Government
ACHPR 13.1: Right to participate freely in government
ACHPR 14: Right to Property
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 2: Freedom from Discrimination
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

Duration of Procedure

Feb 3, 2005 ~ Mar 9, 2022

Country Geolocation

Latitude: -19.015438

Longitude: 29.154857

Country Geolocation (linked ACHPR Decision): Zimbabwe

Primary Documents

Roy Bennett (Represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe.pdf
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African Human Rights CLA 2.0

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Communication 298/05 - Roy Bennett (Represented by Zimbabwe Lawyers for Human Rights) v. Zimbabwe

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