156. An analysis of the feasibility of effective State action must also be undertaken. A finding that no
reasonable diligence could have prevented the event has contributed to denials of responsibility.53 In the
present communication, the Respondent State contended that the Police did their best to investigate the
allegations brought to them.
157. Could the Respondent State have foreseen the violence and taken measures to prevent it? Even
though it is not always possible for a State to know beforehand how a non-state actor is going to act, States
have the responsibility, not only to protect human rights, but also to prevent the violation of human rights.
The question to be addressed here is not necessarily who violated the rights, but whether under the
present communication, the state took the necessary measures to prevent violations from happening at all,
or having realized violations had taken place, took steps to ensure the protection of the rights of the victims.
158. A single violation of human rights or just one investigation with an ineffective result does not establish
a lack of due diligence by a State.54 Rather, the test is whether the State undertakes its duties seriously.55
Such seriousness can be evaluated through the actions of both State agencies and private actors on a
case-by-case basis.
159. The due diligence requirement encompasses the obligation both to provide and enforce sufficient
remedies to survivors of private violence. In general terms, the Human Rights Committee has held, for
example, that the existence of legal rules does not suffice to fulfil a condition of reasonable measures. The
rules must also be implemented and applied (entailing for instance, investigations and judicial proceedings)
and victims must have effective remedy.56 Thus, the existence of a legal system criminalizing and providing
sanctions for assault and violence would not in itself be sufficient; the Government would have to perform
its functions to "effectively ensure" that such incidents of violence are actually investigated and punished.
For example, actions by State employees, the police, justice, health and welfare departments, or the
existence of government programmes to prevent and protect victims of violence are all concrete indications
for measuring due diligence. Individual cases of policy failure or sporadic incidents of non-punishment
would not meet the standard to warrant international action.
160. It follows from the above that, by definition, a State can be held complicit where it fails systematically
to provide protection of violations from private actors who deprive any person of his/her human rights.
However, unlike for direct State action, the standard for establishing State responsibility in violations
committed by private actors is more relative. Responsibility must be demonstrated by establishing that the
State condones a pattern of abuse through pervasive non-action. Where States do not actively engage in
acts of violence or routinely disregard evidence of murder, rape or assault, States generally fail to take the
minimum steps necessary to protect their citizens' rights to physical integrity and, in extreme cases, to life.
This sends a message that such attacks are justified and will not be punished. To avoid such complicity,
States must demonstrate due diligence by taking active measures to protect, prosecute and punish private
actors who commit abuses.
161. In the present communication, the State indicated measures that it took to deal with the alleged
human rights violations, including amendment of legislation, arrest and prosecution of alleged perpetrators,
payment of compensation to some victims and ensuring that it investigated most of the allegations brought
to its attention. The Complainant did not dispute these actions claimed to have been taken by the
Respondent State but contends instead that the actions were not sufficient and were not taken early
enough to be diligent.
162. The question to be asked is whether these measures taken by the State were sufficient for the
Commission to come to the conclusion that the State had discharged its duty?
163. The complainant did not dispute these actions claimed to have been taken by the Respondent State
but contended instead that the actions were not sufficient and were not taken early enough to be diligent.
The complainant also did not demonstrate collusion by the State to either aid or abet the non-state actors in
committing the violence, and equally failed to show that the State remained indifferent to the violence that
took place. This view is supported by the conclusion of the Report of the this Commission's Fact-Finding
Mission to the Respondent State which noted that "there were allegations that the human rights violations
that occurred were in many instances at the hands of ZANU PF party activists. The Mission [was] however
not able to find definitively that this was part of an orchestrated policy of the government of the Republic of
Zimbabwe. There were enough assurances from the Head of State, Cabinet Ministers and the leadership of
the ruling party that there has never been any plan or policy of violence, disruption or any form of human
rights violations, orchestrated by the State."
164. Given the above, the African Commission cannot find that with regards to the violence perpetrated by
the non-state actors, the Respondent State failed to comply with its duty under Article 1 of the African
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