AU Watch

294/04 Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) / Zimbabwe
Title294/04 Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) / Zimbabwe
PublisherAfrican Commission on Human and Peoples’ Rights
Publication Date3 April 2009
CountryZimbabwe
TopicsFreedom of expression | Freedom of information | Freedom of speech

Summary of Facts
1. The communication is submitted by the Zimbabwe Lawyers for Human Rights and the Institute for
Human Rights and Development in Africa (the Complainants) on behalf of Mr Andrew Barclay
Meldrum (the victim). It alleges that Mr Meldrum’s rights of freedom of expression and freedom to
disseminate information were violated by the Republic of Zimbabwe (the Respondent).

2. It is stated by the Complainants that Mr Andrew Barclay Meldrum’s an American citizen was legally
admitted into Zimbabwe in October 1980 and settled permanently until 2003 when he was deported. It
is alleged that the Ministry of Home Affairs of Zimbabwe on 10 February 1980 issued Mr Meldrum with
a permanent residence permit which allowed him to work as a journalist and since then he has been a
foreign correspondent for the Mail and Guardian, a paper published in the United Kingdom.

3. The Complainants state that on 7 May 2002, Mr Meldrum published an article in the Daily
News (an independent paper that has been closed by the Respondent State) on the internet version of
the Mail and Guardian. As a result of the publication, the Complainants claim Mr Meldrum was
charged with “publishing falsehood” under section 80 (1) (b) of the Access to Information and
Protection of Privacy Act, (AIPPA). Mr Meldrum was found not guilty on 15 July 2002. The
Complainants state that on 7 May 2003, the Supreme Court of Zimbabwe declared section 80 (1) (b)
of the AIPPA unconstitutional in the case of Lloyd Zvakavpano Mudiwa v The State.

4. It is further alleged that immediately after his acquittal, Mr Meldrum was requested to report to the
Immigrations Department Investigations Unit and was served with a deportation order issued in terms
of section 14 (i)g of the Immigrations Act. Mr Meldrum appealed the deportation order within 24 hours
to the Ministry of Home Affairs as required by the Immigrations Act. Meanwhile, an application
challenging the deportation order was filed by his lawyers in the High Court. On 17 July 2002, the High
Court ordered that Mr Meldrum should be allowed to stay in the country until the Supreme Court had
dealt with all the constitutional matters raised in the matter.

5. The Complainants allege further that on 16 May 2003, Mr Meldrum was summoned to the
Immigration Department where he was informed that he could no longer work as a journalist. He was
informed that he had not been accredited in terms of the Access to Information and Protection of
Privacy Act. Mr Meldrum informed the immigration authorities that he had filed an application to the
Supreme Court and pending the outcome he should be allowed to practice journalism as provided by
the Act. The Immigration authorities then informed him that they had a deportation order issued by the
Ministry of Home Affairs which empowered them to deport him forthwith without disclosing the reason
for the deportation. Mr Meldrum was then forced into a car and taken to the airport.

6. They claim that an urgent appeal was filed in the High Court to interdict the deportation order and
to compel the State to bring Mr Meldrum before the High Court by 1530hrs that same day. But at
15:30hrs, the State Counsel appeared in court without Mr Meldrum. The High Court gave another
order prohibiting the State from deporting Mr Meldrum. At about 2000hrs, the State Counsel informed
the Court that Mr Meldrum could not be located. The High Court issued another order for the release
of Mr Meldrum and this order was served on the immigration authorities by Mr Meldrum’s lawyer who
had to drive to the airport for that purpose. In spite all these efforts and Court orders, the State
defiantly deported Mr Meldrum.

Complainant
7. The Complainants allege that the Respondent State has violated Articles
2, 3, 7.1.a, 7.1.b, 9, 12.4 and 26 of the African Charter on Human and Peoples’ Rights.

Procedure
8. The complaint was received at the Secretariat of the African Commission on 6 October 2004.

9. On 12 October 2004, the Secretariat wrote to the Complainants acknowledging receipt of the
complaint and informing them that it will be considered at the Commission’s 36th Ordinary Session.

10. On 13 December 2004, the Secretariat wrote a letter to inform Parties that at its 36th Ordinary
Session held from 23 November to 7 December 2004, in Dakar, Senegal, the African Commission
considered the above mentioned communication and decided to be seized thereof.

11. On 3 February 2005, the Complainants transmitted their arguments on admissibility.

12. On 22 February 2005, the Secretariat acknowledged receipt of the Complainants’ arguments on
admissibility and inform them that the communication will be considered on admissibility at the
37th Ordinary Session of the African Commission scheduled to take place from 27 April to 11 May
2005 in Banjul, The Gambia.

13. The Secretariat of the African Commission wrote a Note Verbale to the Respondent State
transmitting Complainants’ submissions on admissibility and reminding the Respondent State that the
Secretariat is yet to receive their submission on admissibility.

14. A fax message was received by the Secretariat on 14 March 2005, from the Respondent State
requesting a postponement of consideration of the communication on admissibility to the 38th Ordinary
Session.

15. The Secretariat acknowledged receipt of the above mentioned fax and forwarded the decision of
the 36th Ordinary Session of the African Commission to the Ministry of Foreign Affairs by Note Verbale
dated 13 December 2004 and urged the Respondent State to submit on admissibility so that a
decision could be taken at the next session of the African Commission.

16. In this respect, the Secretariat requested the Respondent State if they could make their
submissions on admissibility with respect of all pending communications by 18 April 2005. The
Secretariat also asked the Respondent State to inform it whether the government of Zimbabwe would
like to make oral submissions, so that it can advise the Complainants and the Members of the
Commission accordingly.

17. During its 37th Ordinary Session, held from 27 April to 11 May 2005, in Banjul, The Gambia, the
African Commission considered the said communication and deferred consideration thereof to its
38th Ordinary Session pending the Respondent State’s submissions of its arguments on admissibility.
18. On 24 May 2005, the Secretariat informed both parties about the Commission’s decision. The
Secretariat also reminded the Respondent State that it had not submitted its submissions on
admissibility requested it to do so before 15 October 2005 so that the Commission could decide on the
admissibility at its forthcoming session.

19. On 13 October 2005, the Secretariat reminded to the Respondent State to submit its argument on
admissibility, for consideration during the 38th Ordinary Session to be held from 21 November to 05
December 2005 in Banjul, The Gambia.

20. On 31 October 2005, the Respondent State informed the Secretariat that the transmission of its
submissions would be slightly delayed.

21. During the 38th Ordinary Session, the Respondent State finally submitted its arguments on
admissibility.

22. On 14 December 2005, the Secretariat wrote to both parties informing them that at its
38th Ordinary Session held from 21 November to 05 December 2005, in Banjul, The Gambia, the
African Commission considered the communication and declared it admissible.

23. The Secretariat also informed both parties that the African Commission would consider the
communication on the merits at its forthcoming session, and requested them to forward their
arguments on the same.
24. On 04 April 2006, the Secretariat sent a reminder to both parties to submit their arguments on the
merits.
25. On 26 July 2006, the Secretariat wrote to both parties informing them that, at its 39th Ordinary
Session held from 11-25 May 2006, in Banjul, The Gambia, the African Commission considered the
communication and decided to defer its decision on the merits at its 40th Ordinary Session to be held
from 15-29 November 2006 in Banjul – The Gambia.

26. On 3 November 2006, the Secretariat wrote a reminder to the Respondent State to request its
submissions on the merits of the case, as soon as possible.

27. On 26 November 2006, the Secretariat received the Complainant’s submissions on the merits
and the Secretariat was informed that the Respondent State has been duly served a copy of the
submission.

28. On 08 December 2006, the Secretariat informed both parties that at its 40th Ordinary Session
held from 15-29 November 2006 in Banjul-The Gambia, the African Commission considered the
communication and decided to defer its decision on the merits to its 41st Ordinary Session scheduled
from 16-30 May 2007 in Ghana, in order to allow the Respondent State to submit its arguments on the
merits.

29. The Secretariat of the African Commission wrote a reminder to the Respondent State to submit
its arguments on the merits before 10 of May so that the Commission could take a decision at its
41st Ordinary Session.

30. At its 41st Ordinary Session held in Accra-Ghana from 16 to 30 May 2007, the African
Commission considered the communication and decided to defer its decision on the merits to its
42nd Ordinary Session, in order to receive the Respondent State’s arguments.
31. The Secretariat wrote reminders on 25 June 2007 and 25 September 2007 to the Respondent
State to submit the requested arguments on merits latest by 15 October 2007 for consideration during
the 42nd Ordinary Session held from 14 to 28 November 2007.

32. On 19 December 2007, the Secretariat wrote to inform both parties that at its 42nd Ordinary
Session held from 15 to 28 November 2007 in Brazzaville, Congo, the African Commission considered
the communication and decided to defer its decision on the merits to its 43rd Ordinary Session, in order
to receive the Respondent State’s arguments.

33. On 19 March 2008, the Secretariat informed both parties about the decision and reminded the
Respondent State to submit its arguments on the merits in order to allow the Commission to take a
decision on the matter.

34. At its 43rd Ordinary Session, the Commission considered the communication and decided to defer
its decision on the merits to its 44th Ordinary Session.
35. At its 44th Ordinary Session held from 10-24 November 2008, in Abuja, Nigeria, the African
Commission deferred consideration of the communication due to lack of time.

Decision on admissibility
The Complainant’s arguments
36. The Complainant had argued the complaint had complied with Article 56.3, because the
information was based on court records and affidavits.

37. Regarding Article 56.5, the Complainants submit that the victim was not given the opportunity to
exhaust the local remedies that were available to him, and that the High Court had ordered on many
instances that he be allowed to stay in the country until a decision was made on the constitutional
issues, which he had raised in an application pending before the Supreme Court. Complainants submit
that in terms of Section 24 of the Zimbabwe Constitution, any issues that pertain to the Zimbabwean
Bill of Rights are referred to the Supreme Court, as the court of first instance on alleged case of
human rights infringements. They argue that the deportation of the victim by the Immigration
Department was in contempt of court orders, which had stayed his deportation.

38. That the victim could not have pursued any other remedies other than approach the courts for a
vindication of his rights. They argue that the fact that he was given an opportunity on one occasion to
appeal to the Minister of Home Affairs, who is responsible for immigration, does not at all prove the
availability and effectiveness of local remedies, since the decision of the Minister ‘is and was more of a
review by a quasi judicial individual government official or functionary, who is not obliged to make
considerations in accordance with legal rules which in all fairness takes away the very principles of
natural justice and due process of the law (sic) which are covered under Article 7 of the Charter’.

39. The Complainants further argue that the Commission has ruled that only remedies of a judicial
nature are considered to be effective remedies for acts of human rights violations. This, they rely on
the Commission’s decision in the Constitutional Rights Project vs. Nigeria where the commission ruled
that:
“the Civil Disturbances Act empowers the Armed Forces Ruling Council to confirm the penalties of the
Tribunal. This power is a discretionary, extraordinary remedy of a non-judicial nature. The object of the
remedy is to obtain a favour and not to vindicate a right. It would be improper to insist on the complaint
seeking remedies from a source, which does not operate impartially and have no obligation to decide
according to legal principles. The remedy is neither adequate nor effective”

40. The Complainants added that in the Constitutional Rights Projects case (supra) the Commission
stated further that the types of remedies that existed were of a nature that did not require exhaustion
according to Article 56.5.

41. It is also alleged that the victim was ordered to make representations to the Minister of Home
Affairs on why he should not be deported after being served with his deportation order. The
exhaustion of local remedies in this case would fall away as the Minister of Home Affairs being the
person responsible for the Immigration Department, the state arm which was responsible for infringing
on his rights, could not in any way proffer an effective remedy, the Complainants assert.

42. The Complainants submit that when the victim sought judicial protection of his rights, the
Immigration Department deported him regardless of the court orders, which stayed his deportation,
adding that the practice by the Respondent State to disobey courts orders has made it a
senseless [sic] for an aggrieved party to seek or obtain any form of remedy.

43. The Complainants therefore argue that, ‘one can safely conclude that the failure by the
government of Zimbabwe to respect court orders thereby denying local remedies to victims of human
rights violations amounts to constructive exhaustion of local remedies’.

44. The Complainants urged the Commission to draw inspiration from the Inter-American Court
decision on the same principle, which states as follows; “…when remedies are denied for trivial
reasons or without examination on merits, or if there is proof of the existence of a practice or policy
tolerated by the government, the effect of which is to impede persons from invoking internal remedies
that would normally be available to others, resort to such remedies becomes a senseless formality.”
Respondent State’s arguments

45. The Respondent State relies on two grounds:
1. Disparaging language (Article 56(3))

46. The Respondent State submits that the language used in the communication is disparaging to
the Republic of Zimbabwe, in particular, the Department of Immigration in Zimbabwe and, as such, the
communication should be considered inadmissible. The Respondent State claims that the language
used to describe the deportation and events preceding the deportation of the Complainant expose the
State and the Department of Immigration of Zimbabwe to unnecessary ridicule. It argues that
international attention garnered by the Land Reform Programme, is exacerbated by such disparaging
statements are [sic], among other things, that there is no rule of law in Zimbabwe, court orders are not
enforced and crimes against humanity are committed by high ranking State officials.
2. Exhaustion of local remedies (Article 56(5))

47. Concerning Article 56.5, the Respondent State submits that the Complainants have not
attempted to exhaust local remedies and, as such, the communication should be considered
inadmissible. According to the Respondent State, the victim, while still resident in the Republic of
Zimbabwe, approached the local courts on a number of occasions seeking redress. The State argues
that the victim does not, however, need to be physically in Zimbabwe in order to avail himself of
available domestic remedies. That he can instruct his lawyers from wherever he is and the relevant
action can be done through his lawyers. The State argues further that his lawyers could, for instance,
make issue of the alleged contempt of court by Immigration Officials, and also push for the revocation
of the deportation order and subsequent reinstatement of the victim’s residence permit.

48. Consequently, the Respondent State argues that the communication does not meet the
requirements of Articles 56.3 and56.5 and should be declared inadmissible.

49. During its oral submission, the Respondent State submitted that following discussions with the
Complainants, it decided to abandon its argument of disparaging language, but maintains the issue of
non-exhaustion of local remedies.

Decision
50. When the parties made oral submissions before the Commission, the Respondent State
submitted that, it had decided to abandon the argument on disparaging language but maintained the
grounds on issue of non-exhaustion of local remedies. The Commission takes note of that submission,
and would not make a ruling on Article 56.3, since the parties are not at issue on the question of
disparaging language.

51. Both parties made submissions on Article 56.5 regarding the question of non-exhaustion of local
remedies. The Commission has stated in previous decisions, (see paragraph 39 above) that the
principle of exhaustion of domestic remedies, presupposes existence of effective judicial remedies.
Administrative or quasi-judicial remedies which do not operate impartially are considered as
inadequate and ineffective. The Respondent State argues that the victim did not exhaust domestic
remedies. It argues that, the mere fact that the victim was outside the country could not stop the victim
instructing lawyers to approach the courts on his behalf i.e.; the victim did not require or need to be
inside the country to access the domestic remedy. The Respondent State submitted further that the
victim could have initiated contempt proceedings.

52. The Complainants submitted at length on the non-applicability of Article 56.5 and argued in
favour of invoking the principle of constructive exhaustion of local remedies. In summary, they submit
that the disregard by the Respondent State of various court orders prior to, and coupled with, the
deportation of the victim, denied him the opportunity to exhaust local remedies. Secondly they submit
that there were no domestic remedies to exhaust, since the judicial remedies had proved ineffective.
The appeal to the Minister was a non-judicial remedy, for purposes of addressing human rights
violation. Such a remedy does not fall within the scope of Article 56.5, it failed to comply with rules of
natural justice. In any case it was the Minister who had ordered the deportation, thus he could not be
expected to proffer any remedy to the victim.

53. The Commission agrees with the Complainants’ arguments. The Commission is of the firm view
that immigration officials of the Respondent State had no basis in law to disregard court orders. The
Complainants referred the Commission to the Cordinez Cruz [sic] decision, on constructive exhaustion
of local remedies. The Commission has looked at the decision in terms of Article 60 of the Charter and
finds it very persuasive. The Commission has previously applied this principle too, where the
Complainant or victim is impeded from exhaustion of domestic remedies through the conduct of the
Respondent State.

54. The deportation of the victim in the case under consideration had been effected in the face of
several High Court orders, the Commission finds that to require the victim to pursue further judicial
remedies, when all efforts at seeking judicial remedies had been frustrated and ignored by the
Respondent State, would have amounted to a “senseless formality” in the true meaning of the words.
The remedy which would have granted protection to Mr Meldrum, namely the application pending in
the Supreme Court, was considered by the Respondent State’s immigration officials, as “trivial” and of
no legal consequence. The Respondent State had notice of the pending application in the Supreme
Court, and yet effected the deportation. It actively participated in impeding the victim from accessing
the remedy.

55. The Commission therefore holds that the conduct of the Respondent State brings this
communication within the scope of constructive exhaustion of remedies principle. By accepting the
applicability of the principle of constructive exhaustion of domestic remedies in this case, the
Commission distinguishes this case from its decision in communication 219/98 Legal Defence
Centre/The Gambia2 in which it declared the communication inadmissible for failure by a deportee to
exhaust local remedies, since the circumstances were not similar.

56. The decision in the Legal Defence Centre is distinguishable because in that case, no effort was
made to exhaust domestic remedies. In the case under consideration, the Respondent State was
actively engaged in frustrating the restraint orders obtained from the domestic court. The Commission
is aware that its decisions on admissibility must be based on the criteria under Article 56, it must
however reiterate that States Parties are obliged to respect their obligation to guarantee the
independence of the judiciary under Article 26 of the Charter. It is the view of the Commission
that Article 56.5 must be read in the context of the Article 26 of the Charter. A State which ignores its
duty to guarantee an independent judiciary fails to provide effective remedies to human rights
violations, and thereby undermines the protection of human rights under the Charter.

57. On these grounds, the African Commission declares the communication admissible.

Decision on the merits
Complainant’s submissions
58. The Complainants allege the violations of Articles 2, 3.1 and 3.2, 7.a, 9, 12.4 and 26 and 26 of
the African Charter.

59. Concerning alleged violations of Articles 2 and 3 of the Charter, the Complainants submitted that
the deportation of Mr Meldrum was based on vague and unsubstantiated reasons of a danger to public
order, national security and breach of his work permit.

60. The Complainants state that the allegations against Mr Meldrum were never proven in the
domestic courts, but the Respondent State proceeded to deport him despite numerous High Court
orders that he should not be deported, until the constitutional application for stay of deportation had
been heard.

61. The Complainants allege that the act of deportation constituted an unfettered exercise of
discretion by the Chief Immigration Officer, which was tantamount to indiscriminate action by state
authorities and violated the right equality before the law, therefore it is a violation of Article 2 of the
Charter.

62. The Complainants conclude that the deportation of Mr Meldrum was not in anyway motivated by
the desire to promote peace and security, neither was it to accomplish a given pressing social need, it
was to physically censor him from disseminating information within Zimbabwe.

63. The Complainants recall the jurisprudence of the Commission dealing with cases of expulsion of
non-nationals from State Parties to the Charter, in which concluded that deporting non-nationals
without providing them the opportunity to challenge their deportation before the courts, constitute
discrimination and inequality before the law. Article 2 of the Charter obligates State parties to ensure
that persons living in their territory, be they nationals or non nationals, enjoy the rights guaranteed in
the Charter

64. The Complainants argued that Mr Andrew Meldrum was arrested and charged under the Access
to information and Protection of Privacy Act (AIPPA), but the charges against him were subsequently
dismissed in court, and the State never appealed. Further, the sections of the Act which were deemed
to have breached were subsequently struck off and declared unconstitutional.

65. The Complainants submit that, in essence, the deportation of Mr Andrew Meldrum is unfounded
at law.

66. Concerning Articles 7.1.a and 7.1.b, the Complainants note that the failure by the Respondent
State to obey court judgments or orders constitutes a violation of the Charter and breaches the duty
and right to have independent and competent tribunals and courts mandated with the protection of
rights as provided in the Charter.

67. The Complainants submit further that the deportation order was a violation of the presumption of
innocence which is a doctrine well founded under the principles of natural justice as it gives an
accused person the opportunity to have his cause heard by an organ competent to determine such
guilt or innocence.

68. They argue that, when an individual, who has a vested interest in the matter, acts contrary to
principles of natural justice, and becomes the first and last institution of appeal, then decisions of such
an individual would be a violation of the Charter, in particular Articles 7.1.a and 7.1.b.

69. The Complainants emphasise that the Access to Information and Protection of Privacy Act allows
journalists to practice for six months whilst their accreditation applications were pending, and Mr
Meldrum was still within the transitional reprieve period and was, in terms of the Act, allowed to work
as a journalist while his application was pending.

70. The Complainants note further that the free practice of the profession of journalism and freedom
of expression ought to be interpreted to include freedom to impart and receive information, and this
was abrogated by the Respondent State.

71. It is alleged by the Complainants that Mr Meldrum had been charged [with] publication of
falsehoods, charges he was acquitted of in the Magistrate’s Court, against which the State never
appealed. They state further that the same provision of AIPPA under which Mr Meldrum [was]
charged, was declared unconstitutional by the Supreme Court.

The Complainants submit that the only way for the Respondent State to deter Mr Meldrum from the free practice of his profession was tobphysically censor him through an arbitrary act of deportation.

72. The Complainants consider that the response of the State to perceived, real or illicit threats to
national security, public order was disproportionate to the threat, if any, posed by the writings of Mr
Meldrum.

73. Referring to Article 12.4, the Complainants affirm that non-nationals admitted in any State Party
to the Charter should enjoy the same rights entitled to nationals. Thus, according to the Complainants,
the expulsion of Mr Meldrum did not satisfy the provisions of the Charter as it was arbitrary in so far as
it was improper, disproportionate and contrary to the law and the principles of natural justice.

74. Recalling the restriction on fundamental rights guaranteed by the Charter, the Complainants
affirm that the limitations are founded where the drafters of the Charter include clawback provisions
such as “in accordance with the law”, “abides by the law”, “within the law” and more clearly stated
under Article 27.2.

75. Relying on the principles of necessity and proportionality and referring to international
jurisprudence, the Complainants submit that the act of restriction of a right must not be arbitrary, unfair
or based on irrational considerations, but must be rationally connected to the objective, and should not
impair the right or freedom in question more than is necessary to accomplish a given objective or a
pressing social need.

76. Further, the Complainants argue that several international human rights instruments to which
Zimbabwe is a party recognise the importance of nondiscrimination in the pursuit and enjoyment of
human rights by nationals and non-nationals. The Complainants also submit that the deportation of Mr
Meldrum was in violation of Article 26, read together with Article 7 of the Charter. According to the
Complainants, Article 7 as has been ruled by the Commission gives meaning to the individual right,
whilst Article 26 emphasises on the importance of institutions which give effect to the right in Article 7.

77. The Complainants argue that Mr Meldrum was deported while his case was yet to be heard by
the Supreme Court sitting as a constitutional court, thus rendering the right to appeal in this instance
illusory. The Complainants submit that the Respondent State, through various organs had defied court
orders and allowed such actions to become “acceptable standard of deviation” from enforcing rights
guaranteed in the Charter.

78. The Complainants submit that Article 26 of the Charter was violated by pointing to the wanton
disregard of court orders by the Respondent State and non-state entities as clear evidence of the nonexistence of the rule of law, principles of natural justice, and presumption of innocence. For the
Complainants, these latest principles are elementary indicators of the existence of a proper functioning
judiciary, an executive which operates within the law, and a legislature which appreciates the essence
of separation of powers.

79. The Complainants argued that the actions of the Respondent State were a violation of Articles
9.1 and 9.2 of the Charter, which provides for freedom of expression, and the right to receive and
impart information. They claim that the deportation of Mr Meldrum deprived him of his rights, as well as
denying the general citizenry their rights to receive information.
80. The Complainants recall that the restrictions on freedom of expression under international law
have been examined under various tests of necessity, proportionality and achievement of a legitimate
objective, and request the Commission to apply the same tests to the present communication.
Respondent State’s submission

81. The Respondent State did not formally submit its arguments on the merits in spite of several
reminders. However, it should be noted that in its submission on admissibility dated 16 November
2005, the Respondent State also made arguments relating to the merits of the communication. The
African Commission here below summarises those arguments and considers them as the State’s
submissions on the merits of the present communication.

82. In relation to the alleged violation of Article 2, the Respondent State denies that the victim’s right
to equality before the law was violated. The State submits that the Complainant faced deportation
because of alleged violations of the terms of his Residence Permit which entitled him to stay in
Zimbabwe. According to the State, it is wrong to suggest that Mr Meldrum’s right to equality before the
law was violated because of his opinion and/or origin.

83. Concerning Article 3, the Respondent State submits that the victim was afforded protection of the
law, adding that it is on record that the victim approached local courts in Zimbabwe at least four times
prior to his deportation and that the matters were given due consideration.

84. With regards to the alleged violation of Article 7, the Respondent State submits that the victim
was not denied his right to appeal. The State argues that he made an application to the High Court
which, in turn, was referred to the Supreme Court, noting that the issues were still pending before the
Supreme Court at the time the victim left for the United Kingdom. The Respondent State argues that
the Complainant was at liberty to approach the courts, whenever he deemed it necessary to do so.

85. Concerning Article 9, the Respondent State submits that while the right to freedom of expression
is enshrined in theConstitution of Zimbabwe and contained in Article 9 of the African Charter, it would
be inappropriate for the victim to seek to enforce that right by way of publishing falsehoods. Moreover,
the State avers, publications of falsehoods are in direct contravention of the Access to Information and
Protection of Privacy Act (AIPPA).

86. On the alleged violation of Article 12.4, the Respondent State submits that Immigration Officials
responsible for Mr Meldrum’s deportation were guided by Section 14(1)(g) of the Immigration Act.
Under this law, the State argues, Mr Meldrum was declared a prohibited immigrant and the Chief
Immigration Officer revoked his Residence Permit in terms of Section 20(2) of Statutory
Instrument 195 of 1998. The decision to deport Mr Meldrum, according to the Respondent State,
cannot therefore be considered as outside of the provisions of the law as it was made by the Chief
Immigration Officer who was acting within the purview of the law governing the deportation of nonnationals, namely the Immigration Act.

87. Concerning Article 26, the Respondent offers no argument in response to allegations made by
the Complainant.

Decision of the Commission on the merits
Alleged violation of Articles 2 and 3
88. The Commission has considered the submissions of both parties regarding the alleged violations
of the African Charter.

89. With respect to the alleged violation of Article 2 of the African Charter, the Complainants argue
that the deportation of Mr Meldrum was based on vague and unsubstantiated reasons of a danger to
public order, national security and breach of his work permit, adding that the deportation process gives
unfettered discretion to the Chief Immigration Officer, and this is tantamount to indiscriminate practices
by state authorities and erodes the right to equality before the law, therefore it is a violation of Article
2 of the Charter. The Complainants also argue that Article 2 guarantees against discrimination based
on national origin.

90. Article 2 of the African Charter provides that: Every individual shall be entitled to the enjoyment of
the rights and freedoms recognised and guaranteed in the present Charter without distinction of any
kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national
and social origin, fortune, birth or any status. Article 3.2 provides that “[e]very individual shall be
entitled to equal protection of the law”.

91. Discrimination can be defined as any act which aims at distinction, exclusion, restriction or
preference which is based on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status, and which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing,
of all rights and freedoms.

Article 2 of the African Charter stipulates the principle of non discrimination, which is essential to the spirit of the African Charter.

92. The Respondent State argued that Mr Meldrum was deported because he violated the terms of
his residence permit and therefore submit that Article 2 was not violated. The facts as presented by
the Complainants indicate that the victim, Mr Meldrum, was legally resident in the Respondent State,
his residential permit had not expired, and he had not been refused accreditation by the MIC. His
application contesting the denial of accreditation under AIPPA was still pending before the Supreme
Court. The High Court had ordered that he remain in the country until his application in the Supreme
Court is disposed of. It had issued a restraining order against his deportation. In short, he was [o]n allfours legally resident in the Respondent State.

93. The Respondent State did not give any details concerning the terms of the residence permit
which Mr Meldrum violated. The Commission is not satisfied by the reasons or explanations given by
the Respondent State. It is not very clear why he was deported. Given the circumstances, it can only
be concluded that he was deported because he was a non-national who had published what the
Respondent State considered to be falsehoods, which are not protected by the Constitution. In its
decision in the case between 7
, the African Commission held that
‘although governments have the right to regulate entry, exit and stay of foreign nationals in their
territories, and … although the African Charter does not bar deportations per se, the African
Commission reaffirms its position that a State’s right to expel individuals is not absolute and it is
subject to certain restraints, one of those restraints being a bar against discrimination based on
national origin’.

94. It would be interesting to know what the government would have done if Mr Meldrum was a
Zimbabwean. Surely, the Respondent State would not have deported its own national to another
country. The only logical reason the State deported him under then prevailing circumstances was
because he was a non-national. In the opinion of the Commission therefore, it appears that the victim
was targeted because he is not a national of the Respondent State, and this according to the
Commission constitutes a violation of Article 2 of the Charter.

95. With respect to Article 3 of the Charter, [the]Complainants submit that the deportation of Mr
Meldrum in defiance of the court orders amounted to a violation of Article 3 of the African
Charter. Article 3 guarantees fair and just treatment of individuals within the legal system of a given
country, whereby every individual is equal before the law and guaranteed equal protection of the law.
Given the treatment Mr Meldrum was exposed to, would it be argued as the Respondent State does,
that he was able to access the courts and therefore was given equal protection of the law?

96. The most fundamental meaning of equality before the law under Article 3.1 of the Charter is the
right by all to equal treatment under similar conditions. The right to equality before the law means that
individuals legally within the jurisdiction of a State should expect to be treated fairly and justly within
the legal system and be assured of equal treatment before the law and equal enjoyment of the rights
available to all other citizens. Its meaning is the right to have the same procedures and principles
applied under the same conditions. The principle that all persons are equal before the law means that
existing laws must be applied in the same manner to those subject to them. The right to equality
before the law does not refer to the content of legislation, but rather exclusively to its enforcement. It
means that judges and administration officials may not act arbitrarily in enforcing laws.

97. Factual patterns that are objectively equal must be treated equally. Thus, it is expected that if the
law requires that all those who publish offensive articles against the government be brought before a
judge for questioning, and if found guilty, sentenced or pay a fine, this law should apply to all those
subjected to it, including nationals and non nationals alike.

98. In the present communication, that does not seem to be the case, because the victim is a nonnational, the Respondent State chose not to treat him as it would have treated nationals. It is very
unlikely and impractical that if a Zimbabwean had published the same article the victim published,
he/she would have been treated the same way. In the opinion of the Commission therefore, the
Respondent State violated Article 3.1 of the Charter.

99. Equal protection of the law under Article 3.2 on the other hand, means that no person or class of
persons shall be denied the same protection of the laws which is enjoyed by other persons or class of
persons in like circumstances in their lives, liberty, property and in their pursuit of happiness.. It
simply means that similarly situated persons must receive similar treatment under the law.

100. In its decision in Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and
Development [in Africa]/Republic of Zimbabwe10, this Commission relied on the Supreme Court
decision in Brown v. Board of Education of Topeka11, in which Chief Justice Earl Warren of the United
State of America argued that ‘equal protection of the law refers to the right of all persons to have the
same access to the law and courts and to be treated equally by the law and courts, both in procedures
and in the substance of the law. It is akin to the right to due process of law, but in particular applies to
equal treatment as an element of fundamental fairness. 


101. In order for a party therefore to establish a successful claim under Article 3.2 of the Charter, it
should show that the Respondent State had not given the Complainant the same treatment it
accorded to the others. Or that, the Respondent State had accorded favourable treatment to others in
the same position as the Complainant.

102. In the present communication, the Commission notes that the Respondent State treated the
victim in a manner which denied him the opportunity to seek protection of the courts. Due process
which was key to ensuring remedy to the deportation, and therefore the protection of the rights of the
victim were denied through the arbitrary actions of the Respondent State. The African Commission
therefore finds that the Respondent State violated Article 3.2 of the African Charter.
Alleged violation of Article 7 (1) (a) and (b)

103. The Complainants argue that the deportation of Mr Meldrum violated Article 7.1.a (a)
and 7.1.b. Article 7.1 of the Charter provides that ‘Every individual shall have the right to have his
cause heard. This comprises a) The right to an appeal to competent national organs against acts
violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and
customs in force; b) The right to be presumed innocent until proved guilty by a competent court or
tribunal.

104. Article 7.1 deals with the right to have one’s cause heard, which comprises, inter alia (a) the
right to appeal to competent national organs against acts violating their rights, and (b) the right to be
presumed innocent until proven guilty by a competent court or tribunal.

105. In the present communication, the victim went to the courts of the Respondent State. The courts
ruled in his favour against the deportation order. The victim petition the Supreme Court for
enforcement of his right to practice his profession after his accreditation was rejected, but before the
latter could hear the application, the Respondent State deported him. Could it be said that the victim’s
right to have his cause heard was violated by the Respondent State?

106. The right to have one’s cause heard requires that the victims have unfettered access to
competent jurisdiction to hear their case. A tribunal which is competent in law to hear a case must
have been given that power by law: it has jurisdiction over the subject matter and the person, and the
trial is being conducted within any applicable time limit prescribed by law. Where the competent
authorities put obstacles on the way which prevents victims from accessing the competent tribunals,
they would be held liable. These are the issues which must be borne out [sic] by the evidence to
warrant the Commission’s findings of a violation.

107. In the present communication, it is clear that the Respondent State did not want the victim to be
heard in the Supreme Court. To ensure that this happened, the Respondent State deported him out of
the country before the date scheduled for the hearing, thus effectively preventing him from being
heard. Admittedly, the victim could still have proceeded against the Respondent State from wherever
he was deported to, but by suddenly deporting him the Respondent State frustrated the judicial
process that had been initiated.

108. To this extent, the Respondent State is found to have violated Article 7.1.a of the African
Charter.

109. Regarding the allegations concerning the violation of Article 7.1.b, the Commission finds that the
deportation was effected in disregard of several High Court orders. The Immigration officers refused,
or failed to produce Mr Meldrum as was ordered by the Court. By doing so they denied him the right to
be heard by a competent and impartial tribunal. Instead they acted under the Immigration Act without
affording him an opportunity to defend himself. The actions of the Respondent State amounted to a
conclusion that Mr Meldrum was guilty of the allegations against him, contrary to the presumption of
innocence. The Commission finds that the conduct of the Respondent State amounted to a violation
of Article 7.1.b as alleged by the Complainants.

Alleged violation of Article 9
110. With respect to allegations of violation of Article 9 of the African Charter, guaranteeing freedoms
of expression, the Complainants submit that the deportation of Mr Meldrum deprived him of his rights
to receive information, and disseminate his opinions, as well as the right of the general citizenry to
receive information.

111. Article 9.1 of the African Charter provides that every individual shall have the right to receive
information. Article 9.2 states that “every individual shall have the right to express and disseminate his
opinions within the law”. Does the deportation of the victim violate his right to freedom of expression?

112. It should be recalled that the victim’s deportation arose from the publication of an article that the
Respondent State did not appreciate. The Respondent State resorted to deportation in order to silence
him, in spite [of] a court order that he can stays [sic] in the country. Admittedly, he is not prevented
from expressing himself wherever he was deported to, but vis-à-vis his status in the Respondent
State, which is a State Party to the African Charter, his ability to express himself as guaranteed
under Article 9 was violated.

Alleged violation of Article 12 (4)
113. In the same vein, the deportation of the victim by the Respondent State amounts to a violation
of Article 12.4 of the African Charter, which provides that “a non-national legally admitted in a territory
of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in
accordance with the law”.

114. The African Commission notes that the import of this provision under the African Charter is to
ensure that due process is followed before legally admitted non-nationals are expelled from a Member
State. In the Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des
Droits de l’Homme and Others v. Angola case13, the African Commission stated that although African
States may expel non-nationals from their territories, the measures that they take in such
circumstances should not be taken at the detriment of the enjoyment of human rights, and that while
the Charter does not bar a State’s right to deport non-nationals per se, it does require deportations to
take place in a manner consistent with the due process of law.

115. The African Charter’s requirement of due process as outlined above is also shared by similar
systems elsewhere. The Human Rights Committee under the International Covenant on Civil and
Political Rights, for instance, had expressed a similar concern over the treatment of aliens being
deported from Switzerland when it held the latter liable for degrading treatment and use of excessive
force resulting on some occasions in the death of the deportee during deportation of aliens.

The Committee recommended that Switzerland should “ensure that all cases of forcible deportation are carried out in a manner which is compatible with Article 6 and Article 7 of the Covenant” and that “restraint methods do not affect the life and physical integrity of the persons concerned”. 

116. Very clearly, the situation as presented by the Respondent State did not afford the victim due
process of law for protection of his rights. The Respondent State ignored the court orders that he be
allowed to stay in the country. The African Commission thus holds the Respondent State in violation of
the provisions of Article 12.4 of the African Charter.

Alleged violation of Article 26
117. With respect to the alleged violation of Article 26, the Complainants argue that by refusing to
comply with court decisions, the Respondent State not only violated Article 7, but also violated Article
26. Article 26 of the Charter provides that State Parties shall have the duty “…to guarantee the
independence of the courts…”. The Complainants argue further that the deportation is in violation
of Articles 7.a and 7.b as read together with Article 26 of the Charter, noting that Article 7 gives
meaning to the individual right, whilst Article 26 emphasises on the importance of ensuring the
independence and integrity of the institutions which give effect to the right in Article 7.

118. It is impossible to ensure the rule of law, upon which human rights depend, without
guaranteeing that courts and tribunals resolve disputes both of a criminal and civil character free of
any form of pressure or interference. The alternative to the rule of law is the rule of power, which is
typically arbitrary, self-interested and subject to influences which may have nothing to do with the
applicable law or the factual merits of the dispute. Without the rule of law and the assurance that
comes from an independent judiciary, it is obvious that equality before the law will not exist.

119. It is a vital requirement in a state governed by law that court decisions be respected by the
State, as well as individuals. The courts need the trust of the people in order to maintain their authority
and legitimacy. The credibility of the courts must not be weakened by the perception that courts can
be influenced by any external pressure.

120. Thus, by refusing to comply with the High Court orders, staying the deportation of Mr Meldrum
and requiring the Respondent State to produce him before the Court, the Respondent State
undermined the independence of the Courts. This was a violation of Article 26 of the African Charter.

Holding
121. In view of the above reasoning, the African Commission: holds that the Respondent State, the
Republic of Zimbabwe, has violated Articles 1, 2, 3, 7.1.a and 7.1.b, 9, 12.4 and 26 of the African
Charter.
The African Commission recommends that the Respondent State should:
a. Take urgent steps to ensure court decisions are respected and implemented;
b. Rescind the deportation orders against Mr Andrew Meldrum, so that he can return to Zimbabwe, if
he so wishes, being a person who had permanent residence status prior to his deportation. The status
quo ante to be restored;
c. Ensure that the Supreme Court finalises the determination of the application by Mr Meldrum, on the
denial of accreditation;
d. In the alternative, taking into account that the AIPPA has undergone considerable amendments,
grant accreditation to Mr Andrew Meldrum, so that he can resume his right to practice journalism; and
e. Report to the African Commission within six months on the implementation of these
recommendations.

 

Adopted during the 6th Extra-Ordinary Session of the ACHPR, Banjul, The Gambia, April, 2009.


Footnotes

1. As was established in the cases of Godinez Cruz vs. Honduras (Inter-American Court on Human Rights, Series
C No. 5 at 69, John D Ouko vs. Kenya (ACHPR Decision 232/99) and Rencontre Africaine pour la Defense des
Droits de l’Homme vs. Zambia (ACHPR Decision 71/92).
2. In communication 219/98 Legal Defence Centre/The Gambia, the victim, one Mr Sule Musa was deported by
the Gambian authorities to Nigeria. The Commission sought clarification during its 25th Ordinary Session, whether
the Complainant could have recourse to domestic remedies, to which no response was received. The
Commission declared the communication inadmissible, observing that;“…the victim does not have to be
physically present in a country to avail himself of available domestic remedies, such could be done by his
counsel… Rather than approach the Commission first, the Complainant ought to have exhausted available local
remedies in the Gambia…” (emphasis added). It must be stated here that the distinguishing factor relied by the
Commission in the Zimbabwe case is the role played by the State in impeding access to the local remedies
available.
3. Union Interafricaine des Droits de l’Homme and Others vs. Angola (2000) AHRLR 18[/url] (ACHPR 1997)
at para. 18
4. See para. 3 (supra)
5. See The [UN] Human Rights Committee, General Comment No. 18
6. See Communication 241/2001 – Purohit and Moore / The Gambia, para 49 .
7. 292/04, Communication 292/2004
8. See People v Jacobs, 27 California Appeal, 3d 246, 103 California Rep 536, 543, 14th Amendment, US
Constitution
9. See Dorsey v Solomon, DCMd., 435 F. Supp. 725.
10. Communication 293/2004
11. 347 US 483 (1954)
12. www.legal-explanations.com
13. Communication 159/1996
14. Id. Para 23[sic]
15. The UN Human Rights Committee, ICCPR, A/57/40 vol. I (2002) at para. 76 (13)
16. Ibid.
17. See the views expressed by K Ryan, in “Judges, Courts and Tribunals”, paper presented at the Australian
Judicial Conference Symposium on Judicial Independence and the Rule of Law at the Turn of the Century,
Australian National University, Canberra, 2 November 1996