AU Watch

Communication 305/05 – ARTICLE 19 and Others v Zimbabwe

TitleCommunication 305/05 – ARTICLE 19 and Others v Zimbabwe
PublisherAfrican Commission on Human and Peoples’ Rights
Publication Date24 November 2010
CountryZimbabwe
TopicsPersecution based on political opinion | Political situation | Rule of law / Due process / Procedural fairness

 

Summary of the Complaint

1. The Complaint is filed by ARTICLE 19, the Media Institute of Southern Africa
(MISA) of Zimbabwe, the Institute for Human Rights and Development in Africa,
Gerry Jackson and Michael Auret Jr. (herein after referred to as the Complainants)
against the Republic of Zimbabwe (the Respondent State) in accordance with Article
55 of the African Charter on Human and Peoples’ Rights (the Charter).

2. The Complainants aver that Capital Radio Private Limited (CRPL) is a private
company incorporated in the Respondent State seeking to provide broadcasting
services within Zimbabwe. They submit that despite repeated efforts, CRPL still
cannot broadcast in Zimbabwe due to legal restrictions and political opposition that
allows the state broadcaster to enjoy broadcasting monopoly.

3. It is further alleged that on 22 September 2000, the Supreme Court of
Zimbabwe ruled, in a matter in which CRPL challenged the constitutionality of this
monopoly, that Section 27 of the Broadcasting Act was unconstitutional on the
grounds that it was inconsistent with Section 20(1) of the Constitution of Zimbabwe
which guarantees the right of freedom of expression. The Supreme Court also struck
down Sections 14(1) and 14(2) of the Radio-communication Service Act (RSA) on
the same ground, and expressly pronounced that CRPL was legally entitled to
broadcast in Zimbabwe and in accordance with the law can import any broadcasting
equipment into Zimbabwe.

4. The Complainants aver that on 25 September 2000, the Respondent State
publicly responded to the ruling of the Supreme Court by stating that the public
broadcaster would continue its broadcasting monopoly and that a new legislation
would be enacted to regulate the broadcasting sector.

5. Despite the statements by the Respondent State and the Minister in particular,
CRPL proceeded to exercise its newly recognized right to broadcast. It imported
broadcasting equipment into Zimbabwe and began broadcasting a test signal on 28
September 2000 from an office in Eastgate shopping centre Harare.

6. However, the Directors of CRPL quickly realized that the location was not ideal
for broadcasting and thus, on the following day, 29 September, CRPL, relocated to Media Rights Agenda, Media Right Monitor, November 2000 No 5(11) p 22 

7. A music signal was set up on a broadcasting loop while the scope of the
coverage was tested and it was determined what additional equipment was required
for an improved signal.

8. Following the commencement of CRPL’s broadcast, the Respondent State is
reported to have stated a number of times in the media that CRPL was operating
illegally and referred to CRPL as a “pirate radio station”.4

9. On 1 October 2000, the Minister of State for Information stated in a Zimbabwe
Broadcasting Corporation (ZBC) telecast that he would be “taking appropriate action”
against CRPL.

10. On 3 October 2000, an article appeared in The Herald newspaper which
indicated that the Inspector Division of the Posts and Telecommunications
Corporation (PTC) considered that CRPL’s broadcasting service may be in breach of
Sections 12 and 13 of the Radio-communications Service Act (RSA).5

11. Following this, on 4 October 2000, CRPL applied to the High Court for an
order declaring that the RSA does not apply to CRPL’s broadcast service and to
restrain the Respondent State and police from interfering with its broadcasting on the
alleged violation of the RSA.6

12. On the same day, the Minister made an application to the High Court seeking
an interdict prohibiting CRPL from broadcasting on the basis that it was contravening
Sections 12 and 13 of the RSA. A search warrant was also issued by a magistrate on
4 October 2000 permitting the Assistant Police Commissioner to search CRPL’s
broadcasting premises and all related premises, and to seize its broadcasting
equipment.7

13. The police sought to exercise the search warrant that day, arriving at CRPL’s
broadcasting premises that afternoon. Upon the arrival of the police, CRPL made an
urgent ex-parte application to the High Court seeking a stay of execution of the
search warrant.

14. The High Court heard the application immediately and granted the stay of
execution, holding that the search warrant was invalid for a number of reasons.8
In particular, the Court declared that there was no possibility of CRPL breaching
Sections 12 and 13 of the RSA as these provisions did not apply to CRPL and, in any
case, these provisions were no longer enforceable since the Supreme Court had

15. The stay of execution of the search warrant was valid until 4:30pm of 5
October 2000. CRPL’s lawyers at the Monomotapa Plaza reminded the police of the
existence of the High Court order prohibiting the execution of the search warrant. In
the evening of 5 October, the police raided CRPL’s broadcasting studio and seized
its broadcasting equipment. This brought CRPL’s broadcasting to an end.

16. The police also surrounded the homes of the Directors of CRPL on 4 October
2000 in order to execute the search warrant. On the advice of their lawyer, the CRPL
Directors went into hiding at this point. The Directors’ homes continued to be
surrounded and monitored for a number of days. The police camped outside Mr
Auret’s family home for a week and executed their search warrant on Ms Jackson’s
home during the week following 4 October.

17. Finally, in the afternoon of 4 October 2000, an emergency temporary
legislation was enacted under the Presidential Powers (Emergency Regulations)
Act.9
The Regulations introduced a broadcast regulatory regime imposing a
requirement to obtain a broadcast license and designating the Minister of State for
Information as the licensing authority. The Regulations further provided that
broadcasting licenses would only be granted in response to a call for a license
application made by the Minister.

18. The Regulations were not gazetted, and so did not become legally
enforceable, until 5 October 2000.

19. After the raid on the CRPL’s broadcasting premises, the Respondent State
held a press conference on 5 October 2000, where they displayed the broadcasting
equipment confiscated from the CRPL.10 At this press conference, the Minister of
Information stated that CRPL did not qualify for a broadcasting license under the
Regulations.11

20. On 5 October 2000, the High Court ordered the police to return the
confiscated equipment, which had been unlawfully seized. In addition to this order,
Gwaunza J made a declaration confirming that Sections 12 and 13 of the RSA had
no application to CRPL’s functioning or broadcasting. The declaration also stated that
CRPL should desist from broadcasting for ten days in order that its site and
equipment (once returned) could be inspected and that CRPL should be granted a
frequency.12

21. On 6 October 2000, CRPL’s lawyer Mr Antony Brookes went to CRPL’s
broadcasting premises to oversee the return of the confiscated equipment by the

22. On or about 16 October 2000, the High Court held the Assistant
Commissioner of Police in contempt of court for the raid on the evening of 4
October.16 Neither the Assistant Police Commissioner nor the Police Commissioner
denied that the stay of execution of the search warrant had been defied.

23. On 3 November 2000, CRPL’s lawyers wrote a letter of demand to the Police
Commissioner seeking the return of the equipment, except the transmitter unit, which
had been seized on 6 October 2000 and indicating that if this equipment was not
returned, court proceedings would be initiated.17 No response to the letter of demand
was received.

24. On 8 November 2000, CRPL applied to the High Court for the return of the
equipment seized on 6 October 2000, apart from the transmitter unit. The High Court
ruled in CRPL’s favour and ordered the return of the equipment within two days.18

25. CRPL was not allocated a frequency or granted a broadcasting license. No
broadcasting licenses were issued during the six month life span of the Regulations,
thus keeping in place the State broadcast monopoly which had been ruled
unconstitutional by the Supreme Court. 

26. Upon the expiry of the Regulations in April 2001, the Respondent State
enacted the Broadcasting Services Act 2001 (the Act), carrying over many of the
provisions from the Regulations. The Parliamentary Legal Committee issued two
reports – one regarding the Regulations19 and the other regarding the Bill20 – both of
which declared several provisions of the Regulations and the Bill to be
Unconstitutional. The Speaker of Parliament dismissed the report on the Bill on a
technicality and the Bill was passed without amendment.21

27. CRPL then initiated proceedings in the Supreme Court to challenge the
Constitutionality of the Broadcasting Services Act. Accordingly, in June 2001, CRPL
applied to the Supreme Court to rule that key operative provisions of the Act were unconstitutional on the basis of being inconsistent with Section 20(1) of the Zimbabwean Constitution, guaranteeing the right of freedom of expression.

28. There was a significant delay in hearing the matter In the interim, the
Broadcasting Authority of Zimbabwe (BAZ), which was established by the Act, made
a call for satellite television license applications in 2002, although formally this fell
within the Minister’s ambit, not that of the BAZ. Four license applications were
received but all were rejected.22 This was the first ever call for license applications
under the Regulations or the Act.

29. The Supreme Court handed down its judgment on 19 September 2003, ruling
that the majority of the contested provisions were either constitutional or that CRPL
did not have standing to challenge them.23 The Court held four of the seventeen
challenged provisions to be unconstitutional.

30. At the time of the Supreme Court’s judgment, the Zimbabwean Government
enacted the Broadcasting Services Amendment Act 2003 (Amendment Act). The
Amendment Act repealed Section 6 of the Act (which designated the Minister as the
broadcast licensing authority). The Amendment Act did not, however, repeal any of
the other provisions which the Supreme Court had ruled were unconstitutional.

31. A second call for applications, this time for both radio and television, was
made in March 2004. This would have been the first ever opportunity for CRPL or
other aspirant radio broadcasters to apply for a license. Once again, all of the
applications were denied.24 It was announced in May 2005 that Munhumutape
African Broadcasting Corporation (MABC) was short listed by the BAZ for further
consideration for a license but in August 2005 the BAZ denied MABC’s application.

32. In September 2004, the Zimbabwean Government enacted subordinate
legislation outlining the schedule of broadcast license fees for broadcasting
licenses.26 These license fees were prohibitively expensive given the increasingly
difficult economic situation in Zimbabwe and hence constituted a further barrier to the
feasibility of private broadcasting in Zimbabwe. The license fee for a 10-year national
commercial radio broadcasting license was set at ZM$ 672 million (approximately
US$ 159,620 at the time) coupled with a ZM$ 5 million (US$ 1,187) non-refundable
application fee, and a frequency fee of ZM$ 800,000 (US$ 190) per month. For a 10-
year national commercial television license, the fee was ZM$ 840 million ( US$
199,525), along with the application fee. For a local commercial radio license, the
fee was ZM$ 14 million (US$ 3,325).

33. By the time this Communication was filed before the Commission no private
broadcasting license have been granted in Zimbabwe, leaving in place the State
broadcasting monopoly.
Articles alleged to have been violated:

34. The Complainants allege violation of Articles 1, 2 and 9 of the African
Charter.27
Procedure:

35. The Complaint dated 18 August 2005 was received at the Secretariat of the
African Commission on Human and Peoples’ Rights (the Secretariat) on 19 August
2005.

36. The Secretariat acknowledged receipt of the same on 22 August 2005.

37. An amended version of the Complaint, dated 6 October 2005, was received by
the Secretariat on 11 October 2005. On 11 October 2005, the Secretariat wrote to
the Complainants acknowledging receipt thereof.

38. At its 38th Ordinary Session held from 21 November to 5 December 2005 in
Banjul, The Gambia, the African Commission considered the communication and
decided to be seized thereof.

39. On 15 December 2005, the Secretariat notified the Respondent State of this
decision and requested it to forward its written submissions on the Admissibility of the
matter.

40. On 30 January 2006, a similar notice was sent to the Complainants also
requesting them to forward their written submission on the Admissibility of the matter.
41. On 25 April 2006, the Secretariat received the written submissions of the
Complainants on Admissibility.

42. At its 39th Ordinary Session, the African Commission considered the
communication and decided to defer it to its 40th Ordinary Session pending the
Respondent State’s submission on Admissibility. The parties were notified
accordingly.

43. At its 40th Ordinary Session, the African Commission considered the
communication and deferred its decision thereof to the next session. The
Complainant sent in further submissions on the communication and the Respondent
State also made its submissions during the said session.

The Complainants also aver that the provisions of Article 9 of the African Charter should be read in light of the African Commission’s Declaration of Principles on Freedom of Expression in Africa (Declaration), with Principles I, II, III, V, VII and XVI having particular bearing on this communication. 

44. At its 41st Ordinary Session, the Communication was further deferred to the
42nd Ordinary Session for a decision on Admissibility and the parties were
accordingly informed of the decision by a Note Verbale and letter dated 8 July 2007.

45. During the inter-session, the Secretariat on examining the Respondent State’s
submission on Admissibility discovered that they had sent submissions on the merits
instead of submissions on Admissibility as requested.

46. By Note Verbale ACHPR/LPROT/COMM/305/ZIM/TN, dated 6 September
2007, the Secretariat informed the Respondent State of this and asked the later to
make submissions on Admissibility by 30 September 2007. The Secretariat also
informed the Respondent State that if it wishes the African Commission to proceed
on the Merits of the case, this should be indicated by the State.

47. During the 42nd Ordinary Session held from 15 – 28 November 2007 in
Brazzaville, Republic of Congo, the Commission considered the Communication and
decided to defer the decision on Admissibility to the 43rd Ordinary Session.
48. The parties were informed of the decision of the Commission by a Note
Verbale and letter dated 19 December 2007.

49. At its 43rd, 44th and 45th Ordinary Sessions the Commission considered the
Communication and deferred its decision on Admissibility as the Respondent State
did not submit its arguments on Admissibility.

50. By Note Verbale and letter dated 3 June 2009 the Secretariat informed the
parties of the deferment of the Commission’s decision on Admissibility to its 46th
Ordinary Session and further notified the Respondent State of the former’s decision
to proceed to decide on the Communication if it fails to submit its arguments on
Admissibility.

51. On 19 August 2009 the Secretariat received the Respondent State’s
submission on Admissibility of the Communication.

52. During its 46th Ordinary Session the Commission considered the
Communication and deferred its decision to the 47th Ordinary Session to enable the
Secretariat prepare a draft decision on Admissibility.

53. During its 47th Ordinary Session held in Banjul, The Gambia, from 12 to 26
May 2010, the African Commission decided to defer its decision on Admissibility to its
48th Ordinary Session.

54. In Note Verbale and letter dated 16 June 2010 the Respondent State and the
Complainants respectively were informed of the above decision of the African
Commission.

The Law on Admissibility
Complainants’ submission on Admissibility
55. The Complainants submit that they have met all the admissibility requirements
under Article 56 of the African Charter. They submit that the Communication
complies with Article 56(1) as the authors of the Communication are listed as Article 19, Gerry Jackson, Michael Auret Jr., Media Institute of Southern Africa and the Institute for Human Rights and Development in Africa.

56. Regarding Article 56(2) of the Charter, the Complainants submit that the
Communication alleges violation by the Respondent State of Articles 1, 2 and 9 of
the Charter. They submit that the Respondent State has violated Article 1 of the
Charter by failing to adopt measures to give effect to its obligations under Article 9 of
the Charter and this has the effect of denying the rights enshrined in this provision.
They also argue that the specific actions of the Respondent State, particularly the
Minister’s official statement that CRPL would never be granted a license because of
its predominately white ownership, discriminated against CRPL, thereby constituting
a violation of Article 2 of the Charter. They therefore submit that these allegations
establish a prima facie violation of the Charter and thus compatible with Article 56(2).

57. Regarding Article 56(3) of the Charter, the Complainants aver that the
Communication is written in a manner that is neither disparaging nor insulting to
either the Respondent State or the Organization of African Unity (now the African
Union).

58. With respect to Article 56(4) the Complainants submit that the Communication
is supported by firsthand experience of two of the Complainants, court rulings and
other pertinent documents, which are annexed to the Communication.

59. Concerning Article 56(5) of the Charter, the Complainants submit that the
Supreme Court handed down its judgment on 19 September 2003, ruling that most of
the impugned provisions it was challenging were either constitutional or that CRPL as
a prospective broadcaster, lacked standing to challenge them. According to the
Complainants, in respect of the provisions ruled constitutional (which constituted a
number of the key operative provisions of the broadcast regulatory regime), it is well
established that when the highest appellate court of a respondent state has
pronounced on an issue in contention, it is settled that the remedy is exhausted.28

60. According to the Complainants, the Supreme Court ruled that four out of the
seventeen provisions were unconstitutional.29 This limited ruling of unconstitutionality
would not, in their view, even if fully implemented, provide an effective solution to the 28 See for example A Concado Trindad The Application of the Rule of Exhaustion of Local Remedies in International Law: Its Rationale in the International Protection of Individual Rights 1983) p 58.

61. Furthermore, they aver that the Amendment Act largely ignored the Supreme
Court’s ruling on unconstitutionality and no further legislation has been enacted to
implement these rulings. Accordingly, the Complainants argue, the limited remedy
provided by the Supreme Court was rendered ineffective.

62. It is submitted that the Amendment Act responds to only one of the rulings of
unconstitutionality of the Supreme Court judgment, but even such minor compliance
with the Supreme Court’s judgment fails to address the fundamental issue of the
Minister’s ability to exert significant influence over the licensing process and the
broadcast regulatory regime. The Complainants are of the view that a broadcast
licensing process which is not independent of government control is inconsistent with
the right to freedom of expression, an argument which remains unaffected by both
the Supreme Court’s ruling and the Amendment Act.

63. The Complainants allege that by allocating formal regulatory responsibility to
the BAZ and at the same time reserving significant powers of intervention and
direction to the Minister, the Amendment Act fails to address the primary arguments
put forward both at the Zimbabwean Supreme Court and in the present
Communication.

64. In conclusion, the Complainants contend that by pursuing to completion the
Supreme Court proceedings, CRPL has exhausted available domestic remedies.
65. Concerning the Admissibility requirement under Article 56(6) of the Charter,
the Complainants submit that the Communication was filed before the Commission in
August 2005, but September 2003, the date on which the Supreme Court rendered
its judgment, should not be taken as the correct point for purposes of exhaustion of
local remedies, because according to the Complainants, it was reasonable to wait
and see how the Supreme Court judgment would be implemented and whether any
broadcasting license would be issued.

66. According to the Complainants, this is supported by the fact that a call for
application for satellite television broadcasting licenses had been made in 2002,
although all four applicants were in fact rejected. Furthermore, a call for national
radio and television broadcasting license applications as well as local commercial
radio licenses was made some months after the Supreme Court judgment, in March
2004, and the period for submitting radio license applications was extended until
January 2005. In May 2005, they submit, the BAZ announced that of the five
applicants, only one had been short-listed. In August 2005, it was announced that
even this applicant, MABC, would not be given a license.

67. Following the denial of all the applications after the March 2004 call, which
made it clear that the authorities were not implementing even the very flawed  broadcasting regime set out in the Act in good faith, the Complainants claim that they decided to file the Communication with the Commission

68. The Complainants also submit that this Communication has not been
submitted to any other international body in accordance with Article 56(7) of the
Charter.

69. For these reasons, the Complainants submit that the Complaint satisfies each
of the requirements for Admissibility.

Respondent State’s submission on Admissibility
70. The Respondent State contends that non-compliance with even a single
requirement under Article 56 of the Charter renders a Communication inadmissible,
and that Article 56(5) on exhaustion of local remedies has not been complied with by
the Complainants.

71. The State avers that the record shows that CRPL approached the Supreme
Court in 2000 in the case CRPL v Ministry of information, Posts and
Telecommunications SC99/2000 and was successful in having Section 27 of the
Broadcasting Act and Sections 14(1) and 14(2) of the Radio Communications
Services Act declared unconstitutional.

72. In the same year, the State submits, CRPL was granted an order by the High
Court of Zimbabwe to have its confiscated property returned to it, which was
accordingly returned. The Respondent State further submits that CPRL was ordered
not to carry out broadcasting services until properly licensed and in order for the
license to be issued and the air waves allocated, CPRL was required by the Court
order to submit its equipment and site for inspection. The latter was not done, and
hence, the State argues, CRPL itself has contributed to the failure to comply with the
full court order and that CRPL has not satisfied this requirement to date.n

73. The Respondent State submits that in 2002 CRPL approached the Supreme
Court, which as provided by the national law is the first court of instance in matters
relating to constitutional cases or matters relating to the Bill of Rights. The Court
considered the application on the merits and declared that Sections 6, 9(1), (2) & (3)
were unconstitutional, and declared Sections 8(1), (2) and (5), 11(4), 12(1)(f), 12(2),
12(3), 15, 16 and 22(2) constitutional. The Sections that were declared
unconstitutional, according to the Respondent State, were repealed or amended to
be in conformity with the Constitution. This record of proceedings, the Respondent
State argues, shows that CRPL was never without a remedy.

74. The Respondent State claims that having declared some sections of the RSA
unconstitutional, and the state having amended those provisions accordingly, its
broadcasting monopoly was removed and CRPL could have taken that opportunity,
but the latter failed to apply for a license on both the first and the second calls made
in 2002 and 2004 respectively. Previously, the Respondent State alleges, other
aggrieved parties in similar circumstances sought relief from the High Court and were
granted licenses as in Retrofit v Minister of Information, Posts and Telecommunications.

75. The Respondent State avers that if CRPL had applied for and was not granted
the license then it should have taken the matter to court as the remedy has been
proven not only to be available but effective.

76. With respect to Article 56(6) of the Charter the Respondent State submits that
even if the Commission were to find that local remedies were exhausted, the
Communication was submitted after an unduly prolonged period of time as it was
filed with the Commission after more than two years.

Commission’s Analysis on Admissibility
77. Article 56 of the Charter provides for seven requirements on the basis of which
the Admissibility or otherwise of Communications is determined. Accordingly, the
Commission proceeds to assessing the submissions of both parties against the
requirements under the said provision.

78. Although the Respondent State challenges the Admissibility of the present
Communication only on two grounds, that is Article 56(5) and (6) of the Charter, the
Commission finds it necessary to analyze the admissibility of the Communication
against all the seven requirements under Article 56 of the Charter.

79. Article 56(1) requires Communications to indicate the authors even if the latter
wants to remain anonymous. With respect to this requirement, the Complainants
have indicated their names as: Article 19, Gerry Jackson, Michael Auret Jr, Media
Institute of Southern Africa and the Institute for Human Rights and Development in
Africa together with their contact addresses. The Respondent State has not raised
any objection on this issue. Accordingly, since the Communication clearly lists the
names and contact details of the Complainants (authors), the Commission holds that
the Communication meets the requirement under Article 56(1) of the Charter.

80. The second admissibility requirement provided under Article 56(2) states that
Communications should be compatible with the Constitutive Act of the African Union
(AU) or with the African Charter. The Complainants submit that the Respondent State
has violated Articles 1, 2 and 9 of the Charter. They have also briefly narrated the
series of events and acts that they allege have caused the violation of those
provisions of the Charter. The Respondent State however does not challenge the
Admissibility of this Communication on this ground. The Commission is of the view
that the facts described in this Communication reveal a prima facie violation of the
Charter, and the Communication is brought by persons within the jurisdiction of a
State Party to the Charter. Based on the above, the Commission is satisfied that the
requirement under Article 56(2) has been met.

81. Article 56(3) provides that for a Communication to be admissible it must not
be written in a language which is insulting or disparaging to the AU or the
Respondent State or its institutions. The Complainants contend that the
Communication is written in a manner that is neither disparaging nor insulting to
either the Respondent State or the OAU (present AU). The Respondent State is
again silent on this claim which is taken as acceptance. Having studied the
Communication, the Commission does not find it disparaging in any way. The
Commission therefore concurs with the Complainants that the Communication
complies with Article 56(3) of the Charter.

82. Article 56 (4) of the Charter requires Communications not to be based
exclusively on news disseminated by the media. The Complainants submit with
respect to this requirement that the Communication is based on personal
experiences and testimonies of two of the Complainants and the rulings and
proceedings of the High Court and Supreme Court of Zimbabwe. They have also
attached the relevant Acts, Parliamentary Legal Committee report and numerous
reports of NGOs. This claim is not contested by the Respondent State. Thus, the
Commission is of the view that this Complaint is not solely based on news
disseminated by the media and hence complies with Article 56(4) of the Charter.

83. Article 56(5) requires that Communications should be brought to the
Commission after exhausting all local remedies, if any, unless it can be shown that
the procedure of exhausting local remedies have been unduly prolonged. The
Complainants submit that CRPL challenged the constitutionality of seventeen
provisions of the Broadcasting Services Act 2001, and the Supreme Court in its 19
September 2003 judgment ruled that four out of the seventeen provisions of the Act
were unconstitutional, and the rest were found to be constitutional or that CRPL, as
a prospective broadcaster, lacked standing to challenge them.

84. The Supreme Court is the court of original and final jurisdiction on matters
relating to the constitutionality of laws and the Bill of Rights. No appeal lies from the
decision of the Supreme Court. Thus, having approached the Supreme Court of the
Respondent State the Complainants are still not satisfied with the judgment and
hence they were left with no other local remedy. It is the Commission’s view that with
respect to this communication, the Complainants have exhausted the domestic
remedies available to them.

85. The Respondent State’s argument that the repeal or amendment of certain
provisions that were found to be unconstitutional by the Supreme Court provided the
CRPL with domestic remedy is noted, but does not deny the fact that the
Complainants exhausted local remedies.

86. The Respondent State is of the view that after the ruling of the Supreme Court
and the subsequent amendment of the provisions of the regulatory framework found
to be unconstitutional, CRPL should have applied for a license using the two calls for
application made by BAZ in 2002 and 2004. According to the Respondent State, had
CRPL applied for, and not been granted a license then it should have taken the
matter to Court. The position of the Respondent State is that by not applying for a
license there is an available and effective domestic remedy left to be pursued.

87. The Commission wishes to state with respect to the above submissions by the
Respondent State that the matter before this Commission is the compatibility of the
provisions of the Broadcasting Services Act with the African Charter. The CRPL
petitioned the Supreme Court of Zimbabwe arguing that seventeen provisions of the
Act are unconstitutional (and restrict the enjoyment of freedom of expression). The
Supreme Court ruled that four of the seventeen provisions are indeed
unconstitutional. However, the Complainants are not satisfied with the decision of the
Supreme Court, nor are they satisfied with the measures taken by the State to
amend some of the provisions found to be unconstitutional. They have thus
approached the Commission challenging those same provisions as contravening
Articles 1, 2 and 9 of the African Charter. Nowhere in their submissions have the
Complainants indicated that they were before the Commission because they could
not apply for a license or that they have been denied a broadcasting license. The
State can therefore not rely on an issue that is not before this Commission to argue
that local remedies have not been exhausted. Therefore, this Communication has
complied with Article 56(5) of the Charter.

88. Article 56(6) stipulates that a Communication should be submitted within a
reasonable period of time after exhausting local remedies or from the date the
Commission is seized with the matter.

89. In the present Communication the Supreme Court rendered its judgment on
25 September 2003 and the Complainants submitted the Complaint with the
Commission on 19 August 2005, which is almost two years after exhausting local
remedies.

90. The question here is, can this period be considered as ‘reasonable’ in terms of
Article 56(6) of the Charter?

91. Unlike the European Convention on Human Rights and Fundamental
Freedoms30 and the American Convention on Human Rights31, which provide a
specific time limit for the submission of communications, which is six months, the
African Charter only provides that Communications should be submitted ‘within a
reasonable period’ which is not defined. The Commission thus treats each case on
its own merit to ascertain the reasonableness of the time.

92. Thus, in Darfur Relief and Documentation Centre v Republic of Sudan 
the Commission stated that the lapse of two years and five months or twenty nine
months without any reason or justification was considered as unreasonable. The
Commission noted further that ‘where there is a good and compelling reason why a
Complainant does not submit his complaint to the Commission for consideration, the
Commission has a responsibility, for the sake of fairness and justice, to give such a
Complainant an opportunity to be heard’.  

93. In the present Communication, it took the Complainants two years after the
exhaustion of local remedies to bring the matter to the Commission. The reason advanced by the Complainants for this delay in submission is that they wanted to wait and see how the Supreme Court’s judgment would be implemented and whether any broadcasting licenses would be issued.

94. Is the reason advanced by the Complainants ‘good and compelling’? 

95. The issue brought before the Supreme Court by CRPL was that seventeen
provisions of the broadcasting regulatory regime (the BSA) were unconstitutional.
The Supreme Court held that four of the provisions were indeed unconstitutional and
the others were constitutional and that CRPL had no standing before the Court. The
Court’s decision was not appealable as the Supreme Court is the highest court in
Zimbabwe. CRPL was not satisfied with the Court’s ruling as it insisted that the
provisions restrict the enjoyment of freedom of expression. So why was it necessary
for the Complainants to ‘wait and see’ how the Supreme Court’s decision would be
implemented, and whether any broadcasting license would be issued?

96. The reason advanced by the Complainants for the delay is neither good nor
compelling. The CRPL itself did not apply for a license. It was ‘waiting to see’
whether others who applied would be granted the license. In any case the matter
before the Commission is not the refusal to grant licenses, it is rather the
incompatibility of provisions of the BSA with the African Charter. The Complainants
knew as far back as September 2003 that they had reached ‘a dead end’ at domestic
level. They could have within a reasonable time seized the Commission with the
matter. Waiting for two years with no compelling reason is not justifiable.

97. For the above reasons the Commission finds that the Communication was not
filed within a reasonable time after the exhaustion of local remedies and hence does
not comply with Article 56(6) of the Charter. 

98. Article 56(7) of the Charter states that a Communication submitted to the
Commission should not be one already settled by states involved according to the
principles of the Charter of the United Nations, or the Charter of the OAU or the
provisions of the African Charter. The Complainants submit that the Communication
has not been submitted to any other international body for settlement and the
Respondent State has not contested this claim. Thus, the Commission holds that the
Communication fulfils the requirement under Article 56(7) of the Charter.
Decision of the Commission on Admissibility

99. In view of the above, the African Commission on Human and Peoples’ Rights
decides:
i) To declare this Communication Inadmissible as it does not comply with
the requirement of Article 56(6) of the African Charter;
ii) To give notice of this decision to the parties; and
iii) To include this decision in its Report on Communications.


Done in Banjul, The Gambia, during the 48th Ordinary Session of the African
Commission, 10 – 24 November 2010