effect of ousting the Tribunal's ability to hear their applications to the Tribunal for the reference to the
Summit of Zimbabwe's refusal to implement the decision of the Tribunal. It therefore argues that the
Complainants could have filed their Communication immediately after August 2010, when their cause of
action arose, that is when the First Decision was taken, rather than waiting until 27thJuly, 2011, almost a
year after the last event which ousted the ability of the Tribunal to hear the matter, which period is not
reasonable.
62. In this regard, it urges the Commission to draw inspiration from and align with the practice and
jurisprudence of the European and Inter-American human rights system in finding "six months" a
reasonable time within which to file a Communication after exhausting local remedies.
63. Finally, on Article 56(7), Tanzania argues that the Communication deals with a case which is currently
being dealt with in another international/sub regional organ- SADC, and therefore the Communication has
no legs to stand on.
Complainant's Supplementary Submissions on Admissibility
64. The Complainant in his supplementary submission on Admissibility argues that the suggestion that the
legal processes to enforce rights under the African Charter should give way to ongoing political processes
was never one rooted in the principle of legal policy. He argues that the purported scrutiny or consideration
of the jurisdiction of the Tribunal by the Summit constituted an unlawful usurpation of the Tribunal's
exclusive jurisdiction - the very illegality complained of under the Communication. Furthermore, he
contends that such an argument would also mean that there would never be access to justice for a violation
of a continuous nature.
65. The Complainant argued further that the Communication is instituted against the Respondent States
not by "merely being a member of SADC"21 , but as decision-makers, who unanimously resolved to
suspend the Tribunal, and who are also all "members of the African Union, and accordingly, subject to the
jurisdiction of the Commission".22 He also submits that the case of Femi Falana vs. The African Union23
referenced by Tanzania is of no relevance to the Communication, of which the Commission has already
been seized, in relation to the fourteen Respondent States, while that of Efoua Mbozo'o Samuel vs. the
Pan African Parliament24 actually confirms the Commission and the Court's jurisdiction over the matter.
66. He further submits that the "exclusive jurisdiction" over the issue of the suspension of the Tribunal
which the State alleges is founded on the SADC Protocol, is required by the said Protocol (in Article 15(1)
to be exercised by the same Tribunal, whose jurisdiction has been ousted; being the violation of the African
Charter alleged by the Complainant/Victims. 25
67. Finally on the issue of jurisdiction, the Complainant disputes the argument of Tanzania that the
suspension of the Tribunal does not support a cause of action under the African Charter and asserts that,
while this is an issue to be dealt with on the merits, the facts alleged clearly indicate a violation of Articles 7
and 26 of the African Charter.
68. Regarding Tanzania's objection under Article 56(1) about the relevance of the second author, he
argues that Article 56(1) merely requires that the authors of a Communication be named.
69. The Complainant also argues that Tanzania's contention that the Communication transgressed the
Guidelines on Communications is misplaced, as the Guidelines are not immutable, and more importantly,
all material information has been clearly provided in the application/Communication.
70. The Complainant also disputes Tanzania's allegation that the language of the Communication does not
comply with Article 56(3), and asserts that all the terms identified as "vulgar" are "standard legal
terminology" and that Tanzania's contention that these words are "not...appropriate" and "too strong" fail to
establish the high threshold under Article 56(3). He also denies that the Communication includes
"speculations as well as extraneous matters with a political rhetoric touch". He asserts that the contents
complained of are not speculative but "incontrovertible, historical facts (borne out inter alia by documentary
evidence), deposed to under oath."26 He also asserts that the facts relate to Zimbabwe, which Tanzania
has opted to draw its own inferences from and the latter "cannot invoke its own inferences to stymie the
hearing on the merits".27 Furthermore, he states that the content of the Communication complained of, find
on a reasonable apprehension of bias, as individuals in the position of the Victims are routinely brought
before the Zimbabwean courts on criminal charges for seeking to exercise their rights as pronounced by
the Tribunal, and that as a result of the "impugned decision", these individuals have no other legal forum in
which to protect their rights.
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