ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility I I I i this argument, the Complainant refe~s to the decision of the Supreme Court of Zimbabwe in 5 v Ndhlovu, where it held that:38 The freedom [from] torture, cruel, inhumal or ~egrading punishment and treatment is not confined to punishments which are [in their nature inhuman or degrading. It also extends to punishments which are' grossly disproportionate': those which are inhuman or degrading in their disproportionality to the seriousness of the offence, in I that no one coul4 possibly have thought that the particular offence would have attracted such a penalty... l 94. The Complainant argues that in applyi g the above principles to the facts of the present Communication, there c~n I be no dq;u;ptc:tllatthe sentence of 15 ~?nths imprisonme~t with l~~our, }~;'?'"whic~~;}pm~nths was conditionally suspended, IS grossly dispropC)rtl~~~te to\t~e senousness of the offence committed by the victim. ·~(;:):;~t:;:,,/;L;".. .r'', ._ .....,',. ,.".~ L"£""'''''' ,'<:: t... " "'\j'<" 95. The Complainant submits that bY)nli~sing\vi.}effecll~/~Jt:prison sentence ~:_;!~ when other forms of puni~~enf ::'~,o.,Uld):;;havebee::"" ppropriate, Parliament failed to guard aga~~t an exce§'si\Fedevotions 0 the cause of deterrence. Hence, the COIfwlainaflt~'£:~.ntends~t99:~ Parliament did not give due regard to mitigatil1g'i~~ctors, a~~1\t~., Victim. acted in the heat of the moment and in respqn§e4tdt~§xere_(l1tb~'~£·~,t.ion. T,he Complainant submits ,<-.;_.;y~ t'"M I -"',,'f ~~~\ ., that if these factors- were con$J~~red, it wqH!gy,have greatly reduced the Victim's moral blamewotthines"si);:Itt~erefotE(submits that this omission amounts to a vi~ia tion of Articles '4~i>,J 5 of the African Charter. . _-i :_.~...... '- 0 _.-. '\. ••• ", ',j-'6" Alleged violation o(At;ticles 6 of th~ Affi~an Charter vJtim 96. The C;'~Pli!inant :dbmly;:< thaf~e was subjected to an unlawful and arB~1i.ary;>'" ~~; on 9'Oc-tober 2002,[asthe charges brought against him were fals~i,It §:;r 'i111:~~,:",t~'tt following the arrest of the Victim, his lawyers were deni~a.,:gtcesst6{ruin and threatened with violence. "';;', ,"' I 97. The ComplaiB:fl,ptalleges that after sdffering humiliation and abuse, the Victim and other arrested persons were eventually taken to court and accused of violating the Electoral Ac~ by taking photographs within a hundred (100) meters of the polling sta~on. The Complainant submits that there was no evidence to sustain the charge, hence the State never proceeded with the matter. However,lthe Complainant contends that the action~ of the Respondent Stat~ a~d its!failure to stop the arbitrary a~r~~_~!_ detentIO~s and assa~lt o~the VI.chmat rhe hand~ of.Sta~ea~en~~te~~_, to an arbitrary deprivation of liberty and security In violahO}?;,W~~~t121WI6r ('o~\ of the African Charter. l!_! ....... <~\\ O :f1 (~,' ul ~Gl Ii __________ .r __ '1(.) ·,\,'-O'W)) 0 Ii 385 v Ndhlovu (1998) 2 SA 702 ZSC at 715 G - I ': ~ ,,-=,,,# ~::; » ;"'" ~ b1 i' I,) ~ ~ o ~ p.U-llA,g:- \\~gc. 4"RICP,\~~ '~ "" 0 ~ ~ ~0'X'v ""0M 1:,'5 'i' t/' "",'~ ME ET 0 ;;p." ..,~ en ~ .q

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