I
I
AC
R
African Commission on
Human and Peoples' Hiqhts
Human Rights our
Collective Responsibility
to be treated equally by the law and courts both in procedures and in the
substance of the law.52
The Complainant's arguments as presented under Articles 2 and 3
above are innately linked. At issue, therefore is the question of whether
the Victim has been treated unequallyl It is trite law that 'he who asserts
must prove', except in instances wher~ there exist facts especially within
the knowledge of the Respondent. The iComplainant, therefore, must show
that the Victim has been treated differently in the application of the law, or
in the degree of access he was afforde8 to in his recourse to the law. It is
not disputed that the ~Victim successfpll? took
befor~ th~ leg~l
system of the Respondent State and obtalneq..;.'!Sourt0r~~rs affirming hIS
right to remain on Charleswood e~tate.'/T~~:~,):.,~ssu~t~~\however
is the
Complainant's contention that despite t
const'¥t~P9if~1';:f':.;F~t~~~~,9
and
orders from the court, the Victim stil
multiF!~~violat1();rts:S6nhis
person, family and property.
"
182.
~~t~~~s~
183. The Commission has held;""ih Zim aBw'
Zimbabwe that human rights i~w 'i~~.~Jes a":
uman Right;>~;'NGOForum v
. ive obligation on States to
prevent and sanction Pr,i¥:~5,eviolati~fi~',gf hu
" .. hts.53 As such, an act
by a private individ,-,.'t~can~~i~ge~{,Pta.fE:i~,!~~:pons
. ity, not because of the
~~t
~~~~t
b::c~~:;;e:~$et!'{~~j~t
r~;Ib~~
t~:,~:e~i::m:i~la~:
standard of 'du,~:,diligence' encompa~~F,~a~ obligati()~ to marshal the full
apparatus of tl\e>State to prevert, InvestIgate, punish and compensate
where a violati6ry;ill.as occurred.P Hehce, State responsibility may arise
unde:t:';:tI:.:~ue .dii1g~~~,~~tand~Bla.f.or I inaction o~ inade~uate actio~ in a
range 'Qf,'.:SltuatIons,
'pa'J!£!~:!%~€l-gJ·ly
failure
to provide police protection to
:, -. . "" "
·-··"·":··:'·ic.·("·
I
p:e:enf:r.riv~te:yi()lence,
failur~ to inresti?ate or investigate adequately
killings by-private actors-and failure tl punish such perpctrators.v
The Commission notes the submission of the Respondent State in
paragraph 13'9.above, that investigations into the allegations raised by the
Complainant is still pending, as sufficient information has not been
received from the Victim, his witnesseslor even the accused, as they cannot
be located. The Respondent State h~s however failed to furnish any
information on the efforts or measures taken to obtain the necessary
184.
t.I
2ft.
u..~~
" Communkation 293/04 - Zimbabwe Lawyer. for Hu an Rights and Institute far Huma,n Ri ~~
Development in Africa v Zimbabwe para 124.
'r\E-IAR~ A.tvo,o"",
53 Communication 245/02 - Zimbabwe Human Rights NGO Forum v Zimbabwe para 14,,3,(~~O~'(_c'<'r ~o-<>'.
54A saove.
b
l
1<';;::'
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and B Clagett 'State Responsibility for hum n rights abuses by non-State Ici§>rs' 99~\.
American Society of International Law 299 at 302.
56 As above.
l\'~ ~
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55 S Farrior
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