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Communication 351/2007 - Givemore Chari (represented by Gabriel Shumba) v. Zimbabwe

ACHPR Decision

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Summary of the Complaint1
Articlesalleged to have been violated3
Prayers4
Procedure4
The Law on Admissibility6
Submissionsof the Complainant6
Respondent State’s submissionson Admissibility9
The African Commission’s Analysis on Admissibility13
Decision of the African Commission on Admissibility24

Communication 351/2007 - Givemore Chari (represented by Gabriel Shumba) v. Zimbabwe

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Coercion / Duress
Competence of the Court
Cruel and Degrading Treatment
Damages and Compensation
Detention Facilities/Conditions
Enforced disappearance
Equality Before the Law
Freedom from Discrimination
Freedom of Assembly
Freedom of Association
Freedom of Expression / Digital Rights
Freedom of Movement
Human Rights Violations
Inadequate/Inappropriate Legal Provisions
Investigation
Non Compliance
Personal Liberty
Police Brutality and Offences
Reparations / Remedies
Right to Dignity
Right to Fair Trial
Right to Health
Right to Life
Right to Property
Right to Self-Determination
Right to Work
Torture and Ill Treatment

Case Head Notes: The Complainant states that the Victim is an unemployed male citizen of Zimbabwe who was 27 years old at the time the Complaint was submitted.He states further that in 2005, the Victim was the President of the Student Representative Council (SRC) of the Bindura University in the Mashonal and Province of Zimbabwe, which was highly critical of Government policies on higher education.

Country

Zimbabwe

Outcome: Ruled Inadmissible

Year Decided: Mar 1, 2012

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 14: Right to Property
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 7.1.b : Innocent Until Proven Guilty

Rights Violated (ACHPR Provisions)

None Indicated

Rights Not Violated (ACHPR Provisions)

None Indicated

Duration of Procedure

Nov 5, 2007 ~ Mar 1, 2012

Country Geolocation

Latitude: -19.015438

Longitude: 29.154857

Country Geolocation (linked ACHPR Decision): Zimbabwe

Primary Documents

achpreos11_351_07_eng.pdf
English
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African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

rticle 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal;

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 14The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Are compatible with the Charter of the Organization of African Unity or with the present Charter

Treaty

African Charter on Human and Peoples' Rights

Are compatible with the Charter of the Organization of African Unity or with the present Charter

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights

4.Are not based exclusively on news discriminated through the mass media,

Treaty

African Charter on Human and Peoples' Rights

4.Are not based exclusively on news discriminated through the mass media,

Treaty

African Charter on Human and Peoples' Rights

re sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,

Treaty

232/99 John D. Ouko v Kenya

ACHPR Decision

African Charter on Human and Peoples' Rights

Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

African Charter on Human and Peoples' Rights

Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Are compatible with the Charter of the Organization of African Unity or with the present Charter

Treaty

African Charter on Human and Peoples' Rights

Treaty

Communication 307/05 - Obert Chinhamo v. Zimbabwe

ACHPR Decision

African Charter on Human and Peoples' Rights

Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

15Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights

rticle 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

2.Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

2.Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights

Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal;

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

rticle 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

2.Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

308/05 Michael Majuru v Zimbabwe

ACHPR Decision

308/05 Michael Majuru v Zimbabwe

63.Black’s Law Dictionary definesrationae materaeas “by reason of the matter involved; in consequence of, or from the nature of, the subject-matter”. Whilerationae personaeis defined as “By reason of the person concerned; from the character of the person".

ACHPR Decision

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

1.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

Communication 333/06 - Southern Africa Human Rights NGO Network & Ors v. Tanzania

ACHPR Decision

African Charter on Human and Peoples' Rights (Banjul Charter)

2.Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter,

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,

Treaty

Communication 333/06 - Southern Africa Human Rights NGO Network & Ors v. Tanzania

ACHPR Decision

Communication 333/06 - Southern Africa Human Rights NGO Network & Ors v. Tanzania

51.This Commission notes that, one of its primary considerations under Article 56.2 is whether there has been prima facieviolation of human rights guaranteed by the African Charter. Furthermore, as was its position in Mouvement des réfugiés mauritaniens au Sénégal v Senegal, 5 the Commission is only concerned with whether there is preliminary proof that a violation occurred. Therefore, in principle, it is not mandatory for the Complainant to mention specific provisions of the African Charter that have been violated

ACHPR Decision

Communication 307/05 - Obert Chinhamo v. Zimbabwe

ACHPR Decision

Communication 307/05 - Obert Chinhamo v. Zimbabwe

ACHPR Decision

Communication 361/08 - J.E Zitha & P.J.L.Zitha (represented by Prof. Dr. Liesbeth Zegveld) v. Mozambique

ACHPR Decision

African Charter on Human and Peoples' Rights (Banjul Charter)

5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,

Treaty

Communication 307/05 - Obert Chinhamo v. Zimbabwe

ACHPR Decision

Communication 361/08 - J.E Zitha & P.J.L.Zitha (represented by Prof. Dr. Liesbeth Zegveld) v. Mozambique

ACHPR Decision

Communication 361/08 - J.E Zitha & P.J.L.Zitha (represented by Prof. Dr. Liesbeth Zegveld) v. Mozambique

108. 108.Therefore, local remedies could have been exhausted by the victim, the Complainant or any other person. The African Commission is thus not convinced that the Complainant or the victim in the present Communication attempted, to exhaust local remedies, and was unable to exhaust those remedies because they were not available, effective or sufficient. The African Commission is of the view that the measures taken by the second victim as stated above in paragraph 102, to deal with the matter, do not fall within the purview of the African Commission’s meaning of domestic remedies. The African Commission, therefore, is of the opinion that local remedies were not attempted.

ACHPR Decision

147/95_149/96 Sir Dawda K. Jawara v Gambia (The)

ACHPR Decision

299/05 Anuak Justice Council v Ethiopia

ACHPR Decision

275/03 Article 19 v Eritrea

ACHPR Decision

299/05 Anuak Justice Council v Ethiopia

58. The Complainant's submissions also demonstrate that it is apprehensive about the success of localremedies either because of fear for the safety of lawyers, the lack of independence of the judiciary or themeagre resources available to the judiciary. Apart from casting aspersions on the effectiveness of localremedies, the Complainant has not provided concrete evidence or demonstrated sufficiently that theseapprehensions are founded and may constituted [sic] a barrier to it attempting local remedies. In the view ofthis Commission, the Complainant is simply casting doubts about the effectiveness of the domesticremedies. This Commission is of the view that it is incumbent on every complainant to take all necessarysteps to exhaust, or at least attempt the exhaustion of, local remedies. It is not enough for the complainantto cast aspersion on the ability of the domestic remedies of the State due to isolated or past incidences. Inthis regard, the African Commission would like to refer to the decision of the [UN] Human Rights Committeein A v. Australia16 in which the Committee held that "mere doubts about the effectiveness of local remedies... did not absolve the author from pursuing such remedies".17 The African Commission can therefore not7 declare the communication admissible based on this argument. If a remedy has the slightest likelihood tobe effective, the applicant must pursue it. Arguing that local remedies are not likely to be successful,without trying to avail oneself of them, will simply not sway this Commission

ACHPR Decision

275/03 Article 19 v Eritrea

65.As regards who is required to exhaust local remedies, the African Charter is clear. It indicates in Article 56.1 that the authors of the communication must indicate their identity even if they claim anonymity. This presupposes that domestic remedies are to be exhausted but by the authors. In the consideration of communications, the African Commission has adopted an actio popularis approach where the author of a communication need not know or have any relationship with the victim. This is to enable poor victims of human rights violations on the continent to receive assistance from NGOs and individuals far removed from their locality. All the author needs to do is to comply with the requirements ofArticle 56. The African Commission has thus allowed many communications from authors acting on behalf of victims of human rights violations. Thus, having decided to act on behalf of the victims, it is incumbent on the author of a communication to take concrete steps to comply with the provisions ofArticle 56 or to show cause why it is impracticable to do so.

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

71/92 : Rencontre Africaine pour la Défence des Droits de l'Homme (RADDHO) v Zambia

10. The rule requiring the exhaustion of local remedies as a condition of the presentation of an international claim is founded upon, amongst other principles, the contention that the respondent state must first have an opportunity to redress by its own means within the framework of its own domestic legal system, the wrong alleged to have been done to the individual.

ACHPR Decision

71/92 : Rencontre Africaine pour la Défence des Droits de l'Homme (RADDHO) v Zambia

12. When the Zambian government argues that the communication must be declared inadmissible because the local remedies have not been exhausted, the government then has the burden of demonstrating the existence of such remedies. The government of Zambia attempts to do so by referring to the Immigration and Deportations Act which provides for appeal of expulsion orders. The government states that actions for loss of property likewise can be brought under Zambian law.

ACHPR Decision

Communication 307/05 - Obert Chinhamo v. Zimbabwe

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

Rules of Procedure of the African Commission on Human and People's Rights

107 Decision on AdmissibilityOnce it has considered the positions 1. of the parties, the Commission shall make a decision on the admissibility of the Communication and the Secretary shall inform the parties accordingly. Once a Communication has been 2. declared admissible, the Commission shall inform the parties and defer the Communication to the next session for consideration on the merit. The Commission’s decisions on the 3. inadmissibility of Communications shall be notified to the parties and attached to its Activity Report.

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