Nixon Nyikadzino v Zimbabwe
A remedy is considered available if the petitioner can pursue it without
impediment; it is deemed effective if it offers a prospect of success and it is found
sufficient if it is capable of redressing the complaint.
59. According to the Respondent State in Communication 307 /05, the African Commission
dealt with the burden of proving torture and the reasons why local remedies could not
be exhausted, as resting with the Complainant. The Respondent State further submits
that it is only when he or she discharges this burden that it shifts to the Respondent State
to show what remedies are available and whether they are effective and sufficient.
60. The Respondent State contends that the Complainant has failed to satisfy the
requirement of Article 56(5) of the Charter.
61. Concerning Article 56(6) of the Charter, the Respondent State avers that the
Communication should have been lodged within a reasonable period from the time local
remedies are exhausted, or from the time the Commission is seized with the matter.
Where the Complainant realizes that local remedies would be unduly prolonged, he or
she must submit the Complaint to the Commission immediately.
62. The Respondent State submits that the alleged violations took place on 14 April 2006
and yet the Communication was filed with the Commission on 3 May 2007, a year later.
Although the Charter does not prescribe what constitutes a reasonable time, the
Respondent State contends, other jurisdictions have clear indications to that effect. The
Inter-American Commission has interpreted the period to be six months, while the
Protocol merging the African Court of Justice and the African Court for Human Rights
also prescribes six months as a reasonable period. Taking into consideration, the
intended harmonization of the Rules of Procedure of the Commission with those of the
African Court of Justice, the Respondent State urges the Commission to embrace the
period stated therein.
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11 th Extraordinary Session of the ACHPR
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