AC M PR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility ' 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~ I ~ I o~ \'Ill MAN 4/yO f'/Q"" c~E.iAR/4'" " .o~ '. 71 Principles and Guidelines on the Right to a Fair Trial and Legal AssistaJl~# mX:A ioa principle A (5) (a). I ,i~[t .~ o~\. 72 Piersack f, ~\, 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. ('I 74 Ferrantelli and Santangelo v Italy ECtHR (7 August 19~6) Application 19874/92 pa\~~8~ ;t~ I ~\ ,~.>" g~ .:;! (l~~ en! p.u.llp. ~~.."'.d. ~O' <:J",0 (J rjl; Pa e d§'%~p.\~~ s:..l -~ Iy ?~ /"r " . OMME ET oE.S ;;<"'¢' -. -v..:;..~~-~,.~ ...

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