207.
Finally, the Complainants submit that the failure of the State to properly
inquire into the treatment of the Victims at the hands of the police and
prosecute the perpetrators also resulted in a violation of Article 5. The
Commission’s Guidelines and Measures for the Prohibition of Torture,
Inhuman and Degrading Treatment or Punishment in Africa (the Robben
Island Guidelines) in Article 19 provides that “[i]nvestigations into all
allegations of torture or ill-treatment, shall be conducted promptly, impartially
and effectively.” As was noted above, the State submits that the police opened
an official enquiry into the deaths, injuries and damage to public property and
that the evidence was sent to the GPA, but that the investigation was
eventually closed since they failed to identify the perpetrators.
208.
It is a well-known maxim in law that where there is a right there must also be
a remedy. As the Commission held in Communication 295/04 - Noah
Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by
Zimbabwe Human Rights NGO Forum) v Zimbabwe, “Human rights law and the
international law on State responsibility require that individuals should have
an effective remedy when their rights are violated, and that the State must
provide reparations for its own violations. States must ensure that victims'
families are able to enforce their right to compensation through judicial
remedies where necessary.” 60 Given the finding above in relation to the
investigations into the killings, the Commission finds that the investigations
into the other violations were also not sufficient or non-existent. Particularly,
there is no evidence given of investigations in relation to the separation of the
families.
209.
For these reasons, the Commission finds that the State had violated its
obligations in relation to Article 5 of the Charter.
Analysis of Article 6
210.
60
Article 6 of the Charter reads: "Every 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".
Para 127.
57