AC
M
PR
African Commission on
Human and Peoples' Hiqhts
Human Rights our
Collective Responsibility
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have all such rights and privileges of a Jourt of record as may be necessary
for the purpose of summarily inquiring into and punishing the
commission of any act. .. As such, the <corrlmissionconsiders that the fact
that the Privileges Committee does Jot formally make decisions, but
makes recommendations does not dirinish the strict requirements of
adhering to procedural fairness. In light of the forgoing, the Commission
finds that the Privileges Committee ras indeed exercising a judicial
function in determining the Victim's guilt, and as such, it is bound by the
principles of fair trial that govern such Bodies and processes.
II
The Complainant argues that th~ applicatipn"of, the law by the
Privileges Committee was biased and retributive due .to.its composition.
The Principles and Guidelines on thel Right to: a Fair,::Trial and Legal
Assistance in Africa (Principles and Gfid~lines on.Pair: Trial)-,stip~lates
that for a tribunal to be deemed imparlicil>j~~'~4ecisi~1}.,must"oe.J?~ased
on
objective evidence, arguments andfacts presel}f~d before.it, without any
improper influence, inducement, thr:fts<,\\~;,;?orinter{erence.71 The
Commission in determining .the existclncef'qr' non-existence of bias has
previously adopted the subjective and bbje(:Hy~approach applied by the
ECtHR,72In Dawit Isaak v Republic of Erdrea the G,8~ssion noted that the
subjective approach s:eks to':ascertain the ~xiste~(leof bias by 'assessing
th: p~rsonal cOl}Yicti()?:1,of
'agi~en j~dge: i~}'a given =. while the
objective approach simply asks whether the same Judge offered
211.
guarantees SUffi~!e.nt o exclude ai~ylegiFmate doubt of impartiality.~
.
212. In the present: Communication, the application of the subjective
approach seems certain to taint: all members of parliament, including
members of ,MDC, 'fr()~~,:;.:~4judicati+g on matters of contempt of
Parliament by.any Member of Parliament, due to their party affiliations.
This approachis not a;pplicable in this i~stance, as it would have the effect
of robbing ..Parliament of the power to impose disciplinary measures and
govern its own internal affairs as autho~ised by sections 49 and 13 (2) (b)
of the 1980 Constitution of Zimbabwe. I
213. On the objective test, the ECtHR haJ held that in determining whether
there is a legitimate reason to fear that aJparticular body lacks impartiality,
what is decisive is whether the fear can be seen as objectively justified.P In
Demicoli v Malta the ECtHR examined I the. question of impartiality as it
concerned contempt of Parliament proceedings instituted againkthe~
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71 Principles and Guidelines on the Right to a Fair Trial and Legal AssistaJl~# mX:A
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principle A (5) (a).
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72 Piersack
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v Belgium ECtHR (1 October 1982) Applicati911 8692179 paras 30 and 31. ,if (]
73 Communication 428/12 - Dawit Isaak v Republic of Eritrea para 32.
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74 Ferrantelli and Santangelo v Italy ECtHR (7 August 19~6) Application 19874/92 pa\~~8~
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