state agents. The relatives of the deceased persons were unable to sue for
adequate compensation for the wrongful deaths since that remedy is not
recognized under Zimbabwean law. The Complainant has also attached
documentation to prove the deaths.
53. In addition, the Complainant extensively quotes the remarks by Professor
Geoff Feltoe, a leading authority on tort law in Zimbabwe. The
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Complainant also makes reference to authors and case law from the
English jurisdiction showing how they changed their law, which was
similar to Zimbabwean law, in order to correct this anomalous and
inequitable position of the law. The Respondent State has not undertaken
similar action through Parliament and thus the inequitable position
remains. It is submitted that in the circumstances of this case there are no
available domestic remedies for the Complainant to exhaust.
54. The Complainant adds that in order to meet its burden of proof under the
domestic remedies rule, the Respondent State in the present case needs to
produce evidence of the availability and accessibility of the domestic
remedies in practice. The Respondent State will need to relate any remedy
that it alleges to the circumstances of this case, showing clearly how the
remedy might provide adequate redress in the circumstances of the case.1
55. The Respondent State does not deny the fact that there is no domestic
recourse available to the Complainant, but rather argues that the latter is
seeking for the passing of a law that does not exist in any jurisdiction in
the world and that the Complainant should lobby other organizations that
share its views so that such a legislation could be adopted. The assertion
by the Respondent State that the question of remedies to parents has no
legal basis because the Draft Principles are not yet law is unfounded.
1
See Communication 458/91 - Mukong v Cameroon (1991)
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