AU Watch

Communication 306/05 – Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe

TitleCommunication 306/05 – Samuel T. Muzerengwa and 110 Others (represented by Zimbabwe Lawyers for Human Rights) v Zimbabwe
PublisherAfrican Commission on Human and Peoples’ Rights
Publication Date1 March 2011
CountryZimbabwe

 

Summary of the Complaint

1. The Complaint is filed by the Zimbabwe Lawyers for Human Rights (the
Complainant) on behalf of one Samuel T. Muzerengwa and 110 families (the
victims), against the Republic of Zimbabwe (the Respondent State).

2. The Complainant alleges that on 16 December 1998, the Buhera Rural District
Council at a Council meeting decided that Samuel T Muzerengwa’s village
(hereinafter the “Wakarambwa Village”) was situated in the lands of another
village called Nyararai Village headed by Mungofa Gotora. In its decision the
Council resolved that the Wakarambwa’s village should immediately move out of
the land it occupied. No alternative land was provided even though the decision
to evict was reached in terms of the Rural District Act (29:13) which allows the
District Councils of each district to allocate land to individuals who are resident or
originate from that district, if there is an unoccupied land.

3. The Complainant avers that the dispute of ownership of the said land dates back
to the colonial era, when the land had been declared a quarantine land, and was
reserved for livestock grazing. Residents of Nyararai Village hail from the family
of the paramount chieftaincy of Nyashanu, which is the reigning family in the
Buhera area. In 1975, the head of the Nyararai Village applied to the District
Administrator and the Ministry of Local Government to establish a sub chieftaincy.
The request was granted and they proceeded to establish the Nyararai Village.
Furthermore, the Complainant claims that during this period, families of the
Wakarambwa Village had already settled in the area or as it were, they
encroached on the land, which was reserved for Nyararai Village.

4. With a view to decide on the dispute that ensued between the two families over
the ownership of the land, the Buhera Rural District Council held three meetings.
During the first meeting the members of the Council failed to reach a decision and
decided to visit the area and analyze the maps of the same. When they went to
inspect the land the Wakarambwa’s refused to have the land inspected, and this
was found to be in violation of the procedure of the Buhera District Council.
Accordingly, at the next meeting the Council after taking into consideration a
number of issues ruled that the Wakarambwa Village headed by Samuel
Muzerengwa had unlawfully occupied and encroached into the land of Nyararai
Village. The Council also resolved to evict the petitioners and instructed the
complainant to seek court orders to the same. 

5. The Complainant submits that armed with the Council’s resolution, the Gotora
family approached the magistrate’s court and obtained an eviction order. The
Wakarambwa Village decided to challenge the eviction order by seeking a review
of the same in the High Court and Supreme Court. In both instances the case
was dismissed on technicalities and the decision to evict the Wakarambwa family
stood. The Courts did not order or direct the State through the Buhera District
Council to make alternative arrangements for the Wakarambwa families who
were now being considered as illegal settlers. This effectively rendered the
petitioners homeless.

6. The Complainant avers that the President of the Republic of Zimbabwe, under
the Communal Lands Act48, is the guardian of the land and can intervene in land
disputes, and can vary, set aside or reverse any decision or make such order he
deems just. The Complainant submits that on 6 March 2003 an appeal was made
to the President but no formal acknowledgement of receipt of the appeal has
been received.

7. As a result of the failure of the courts and the Executive of the country to provide
an effective remedy to the disputes surrounding ownership, the court orders were
enforced, despite the fact that the Wakarambwa Village had not been given
alternative land to settle. The Complainant alleges that the manner in which the
evictions were carried was inhuman, unfair and disproportionate.

8. The Complainant claims that the evictions did not meet international standards
on forced evictions; that there was no compensation or restitution for destroyed
properties; and no alternative land was provided for the affected families. The
Complainant submits that from 1999 to 2003 the Republic of Zimbabwe was
engaged in a land reform and resettlement exercise, but despite the fact that they
were literally landless and homeless in their own country, they were not
considered suitable candidates or beneficiaries during this programme.

Articles alleged to have been violated
9. The Complainant alleges violations of Articles 1, 2, 3, 5, 10(1), 13(1) and (3),
14, 16, 17, 18(1) and (4), 21 and 22 of the African Charter on Human and Peoples’ Rights.

Procedure:
10. The Complaint dated 22 August 2005 was received at the Secretariat of the
African Commission on 29 August 2005.

11. On 27 September 2005, the Secretariat received amicus curiae brief from the
Centre on Housing Rights and Evictions in support of the Complaint.

12. 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.

13. On 15 December 2005, the Secretariat of the African Commission notified the
Respondent State of this decision and requested it to forward its written
submissions on the Admissibility of the matter. The Secretariat also enclosed a
copy of the above mentioned amicus curiae brief from the Centre on Housing
Rights and Evictions which was submitted in support of the present Complaint.

14. On 30 January 2006, a similar notice was sent to the Complainant requesting
them to forward their written submission on Admissibility.

15. On 1 May 2006, the Secretariat received the written submissions of the
Complainant on Admissibility.

16. At its 39th Ordinary Session, the African Commission considered the
Communication and decided to defer it to its 40th Ordinary Session pending
additional information from both parties. The parties were notified accordingly.

17. At its 40th Ordinary Session the African Commission considered this
Communication and deferred consideration of the matter to the 41st Ordinary
Session.

18. On 24 November 2006 the Respondent State submitted supplementary
information on the Admissibility of the Communication.

19. At its 41st Ordinary Session, the Commission deferred consideration of the
Communication to its 42nd Ordinary Session. During this Session the parties
made their oral submissions before the Commission.

20. By Note Verbale and letter dated 8 July 2007 the Secretariat notified the
Respondent State and the Complainant of the deferment of the Communication
and further invited the parties to forward additional submissions on Admissibility,
if any.

21. During its 42nd Ordinary Session held in Brazzaville, Republic of Congo, the
Commission decided to defer the case to the 43rd Ordinary Session. 

22. By Note Verbale of 19 December 2007 and letter of the same date, the
Secretariat notified both parties of the Commission’s decision.

23. During its 43rd Ordinary Session the Commission considered the Communication
and decided to defer the decision on Admissibility to its 44th Ordinary Session
which was scheduled to be held in Abuja, Nigeria from 10 – 24 November 2008.

24. By a Note Verbale and letter dated 22 October 2008 the Secretariat notified the
parties of the decision of the Commission.

25. During its 44th, 45th and 46th Ordinary Sessions the Commission decided to defer
its decision on Admissibility and the parties were accordingly notified of the
decisions.

26. 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.

27. 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.

28. During its 48th Ordinary Session the African Commission considered and deferred
its decision on Admissibility of the Communication to its 49th Ordinary Session to
allow the Secretariat incorporate the comments made by the Commission.

29. By Note Verbale and letter dated 13 December 2010 the Respondent State and
the Complainant were informed of the abovementioned decision of the
Commission.

The Law on Admissibility
Complainant’s Submission on Admissibility
30. The Complainant submits that the Complaint fulfills the requirements of Article
56 of the African Charter.

31. The Complainant submits that Articles 56(1) and (2) of the Charter are complied
with as the authors of the Communication are identified and do not seek
anonymity and as the Complaint alleges infringement of provisions of the
Charter by a State Party thereto. 

32. Regarding Articles 56(3) and (4) of the Charter, the Complainant avers that the
Complaint is not written in disparaging or insulting language and is not based on
news disseminated in the mass media, as the information provided is based on
court and council records.

33. The Complainant also submits that the Communication clearly lays down the
processes through which the petitioners sought necessary remedies locally but
failed to obtain them. After being served with the initial eviction order from the
Magistrates Court the Wakarambwa Village took the case on review to the High
Court and on appeal to the Supreme Court, where they lost in both courts on
technicalities, thereby the decision to evict was upheld.

34. The Complainant further submits that the petitioners have tried to appeal to the
President to reverse the decision under Section 8(4) and (5) of the Communal
Lands Act.

35. The Complainant avers that the petitioners made the application to the
President on 6 March 2003 but no formal acknowledgment of receipt or
response thereto has ever been received. The Complainant submits that since
the President has chosen not to respond to the “plea” by the petitioners, they
have no option than to turn to regional institutions such as the Commission.

36. Accordingly, the Complainant submits that local remedies have been exhausted
as per Article 56(5) of the African Charter.
37. Concerning Article 56(6), the Complainants are of the view that the Complaint
was filed within a reasonable time after exhaustion of local remedies.
38. On Article 56(7) the Complainant argues that the requirement has been
satisfied as the matter has not been dealt with by, nor is it pending before any
other international body.

39. Based on the above submission the Complainant urges the Commission to
declare the Communication Admissible.

Respondent State’s Submission on Admissibility
40. The Respondent State submits that the petitioners, in 1993, moved into the area
in dispute without authority, effectively invading the said land. It further alleges
that subsequent to the petitioning by the Nyararai village against the invasion, the
Community Court, the District Court, and the High Court decided in favour of
Nyararai village. The Supreme Court, on the other hand, made it clear that
although the Buhera District Council had erred in proceeding to determine the
dispute, “it is common cause that the First Respondent (Buhera District Council)
has jurisdiction to determine land disputes in terms of the Communal Lands Act.”
It further held that if the petitioners had been aggrieved by the Council resolution,
they could appeal against the decision to the President of Zimbabwe in terms of
Section 8(4) of the Communal Lands Act.

41. Although the Complainant’s letter of appeal to the President indicates that the
appeal was also lodged at the Ministry of Local Government and National
Housing, the Ministry contends that the appeal cannot be traced.

42. According to the Respondent State the Communication does not reveal any
prima-facie violation of the rights and freedoms other than general averments of
violations of the African Charter.

43. The Respondent State submits that the land dispute is entirely between two
private persons or group of persons and that it suspects that the submission of
the Communication to the Commission is nothing more than a ploy to portray
the petitioners as victims of the clean-up operation “Murambatsvina” undertaken
by the Government in June 2005, as nowhere in the Complaint has it been
shown that the Government had a hand in the alleged “impoverishment” of the
Complainants.

44. The Respondent State holds that the evictions are not “forced evictions”
effected by the state but rather “legal evictions” carried out after following due
process of law.

45. According to the Respondent State, the evictions were carried out in terms of
the Communal Lands Acts read with the Regional, Town and Council Planning
Act, and that the Buhera District Council is an autonomous body corporate with
a distinct locus standi from the State of Zimbabwe and does not fall under the
direction and control of the Government. This according to the Respondent
State explains why in all the civil suits between the parties the Complainant
never cited any Government Minister or Government Organ.

46. The Respondent State further argues that the Complainants have not
exhausted local remedies as they have appealed to the President in terms of
Section 8(4) of the Communal Lands Act, which is an administrative (not
Executive) procedure to be exercised by the President, and from which, if still
aggrieved, they could approach the High Court for judicial review of the
President’s decision. The Respondent State further avers that the Supreme
Court could have been approached for relief on the basis of Section 24(2) of the
Constitution.

47. The Respondent State further submits that the Complainant portrays a picture
of the President who is not bound by anything but his unfettered discretion in
deciding the dispute, while the President like any other administrative body,
would be bound to follow the rules of natural justice. If these rules were not
followed, then the petitioners could always approach the courts for judicial
review. The State submits that the President’s powers in this instance are not
judicial but administrative and hence cannot undermine the powers of the
judiciary.

48. The Respondent State avers that at no point did the High Court and the
Supreme Court made a final determination on the merits of the case other than
being confined to the technical points that had been raised by either party. In
this case, the High Court ruled that the Buhera District was the proper forum to
deal with the dispute in terms of Section 8 of the Communal Lands Act and that
an appeal from the Council would lie with the President in terms of Section 8(4)
of the Act.

49. Although an appeal against the Council’s decision is claimed to have been filed
to the President, through the Ministry of Local Government, the Respondent
State submits that the said Ministry does not have the appeal.
50. Based on the above submission, the Respondent State avers that the
Communication is inadmissible.

The Commission’s Analysis on Admissibility
51. Article 56 of the African Charter provides seven requirements based on which
the African Commission assesses the admissibility or otherwise of
communications submitted to it.

52. Even though the Respondent State contests the Admissibility of the
Communication on the basis of only three provisions of the Charter, namely;
Articles 56(2), (5) and (6), the Commission will proceed to analyse all the seven
admissibility requirements provided under Article 56 of the Charter.

53. Article 56(1) of the Charter states that communications received by the
Commission should ‘indicate their authors even if the latter requests anonymity’.
In the present case the alleged victims are Samuel T. Muserengwa and 110
families, and the author of the Communication is Zimbabwe Lawyers for Human
Rights whose address is disclosed in the Communication. Neither the alleged
victims nor the author of the Communication has requested anonymity. The
Respondent State has not contested this fact. Thus, the Commission holds that
the Communication fulfils the requirement under Article 56(1) of the Charter.

54. The second requirement under Article 56(2) of the Charter requires
communications to be compatible with the Constitutive Act of the African Union
or with the African Charter. The Complainant in the present Communication
catalogues a number of rights guaranteed in the Charter alleged to have been
violated by the Respondent State. The Respondent State on the other hand
argues that the Complaint has failed to meet the requirement as it does not
establish a prima facie violation of rights and freedoms, or the basic principles
of the Constitutive Act of AU such as ‘freedom, equality, justice and dignity’.
The Respondent State submits that there is no prima facie case because the
dispute in question is between two private parties and does not involve the
State at all, and that the eviction was carried out by a non-state organ, in
execution of a court order.

55. It is important to explain what prima facie violation of rights and freedoms entail.
The term ‘prima facie’ means “on the face of it”; “so far as can be judged from
the first disclosure”; “a fact presumed to be true unless disproved by some
evidence to the contrary”.49 So, prima facie is a decision or conclusion that
could be reached from preliminary observation of an issue or a case without
deeply scrutinizing or investigating into its validity or soundness.

56. Therefore, one is presumed to have presented a prima facie case or shown a
prima facie violation of rights and freedoms under the Charter, when the facts
presented in the Complaint show that a human rights violation has likely
occurred. The Complaint should be one that compels the conclusion that a
human rights violation has occurred if not contradicted or rebutted by the
Respondent State.

57. In the case at hand the Complaint alleges a violation of Articles 1, 2, 3, 5, 10(1),
13(1) and (3), 14, 16, 17, 18(1) and (4), 21 and 22 of the African Charter
supported by court orders and other pertinent documents. The allegations in
this Communication are specific enough to establish a prima facie case.
Therefore, the present Communication is based on alleged violations of the
Charter and hence fulfills the ratione materiae requirement.

58. The ratione personae and ratio temporis requirements have also been met. The
Complainants, as indicated above in paragraph 51, have the standing to bring
the case before the Commission and hence meet the ratione personae
requirement, and the alleged human rights violations occurred within the period
of the Charter’s application to the State, which is also a fact that is uncontested
by the Respondent State confirming that the ratio temporis requirement is also
complied with. The last requirement under this provision is the ratione loci,
which provides that States Parties to the African Charter are responsible for
violations that occur within their territory. While whether the alleged violations
were committed by state actors directly or by private individuals is something
that would be looked into at the Merits stage, at this stage it suffice to proof that
the alleged violation occurred within the territorial jurisdiction of the Respondent
State, which according to the Commission the Complainant satisfactorily did.

59. The Commission thus holds that the Communication establishes a prima facie
violation of rights and freedoms in the Charter and thus complies with Article
56(2) of the Charter.

60. Article 56(3) provides that communications should not be written in disparaging or
insulting language directed against the State concerned and its institutions or to the
African Union. The Complainant claims that the Communication is not written in
disparaging or insulting language, which the Respondent State has not challenged.
So, the Commission holds that the Communication fulfils the requirement under
Article 56(3) of the Charter.

61. Article 56(4) provides that communications should not be based exclusively on
news disseminated through the mass media. The Complainant submits that the
Communication is based on courts and council records, not on news disseminated
by the mass media. The Respondent State does not deny the Complainant’s
assertion. Accordingly, the Commission is of the view that the Communication
complies with Article 56(4) of the Charter.

62. Article 56(5) of the Charter stipulates that communications should be ‘sent after
exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged’.

63. In human rights law it is important for a person whose rights have been violated to
make use of domestic remedies to right the wrong, rather than address the issue to
an international body.

64. “The rule is founded on the premise that the full and effective implementation of
international obligations in the field of human rights is designed to enhance the
enjoyment of human rights and fundamental freedoms at the national level ”and
this is supplemented by the fact that “local remedies are normally quicker, cheaper,
and more effective than international ones”.

65. The rationale behind the exhaustion of local remedies is that states should be given
the opportunity to address the issue before the matter is brought before
international treaty bodies. In the African human rights system, the Commission
has confirmed and reconfirmed this position in its decisions. In Free Legal
Assistance Group and Others v Zaire52 and Recontre Africaine pour la Defense des Droits de l’Homme v Zambia53 the Commission stated that the requirement of exhaustion of local remedies is founded on the principle that a government should have notice of human rights violation in order to have the opportunity to remedy such violations before being called before an international body.

66. Accordingly, the submissions of the parties in this case would be assessed in light
of the above.

67. The Complainant submits that after the eviction order the petitioners appealed
against the order in the High Court and then the Supreme Court, and both courts
dismissed the appeal. They later appealed to the President of the Republic and
received no response. The Complainant further submits that even though they
have appealed to the President, they were not required to, as executive remedies
are discretionary and non-judicial in nature. The Complainant accordingly submits
that all local remedies have been exhausted.

68. The Respondent State in response argues that the Complainant has not exhausted
local remedies as they have both administrative and judicial remedies left to
pursue. According to the Respondent State, the petitioners could appeal to the
President in terms of Section 8 of the Communal Land Act and could get
administrative, not executive, remedy which can redress their claims. If they are not
satisfied with the President’s decision, the Respondent State argues, they could
always take their case before the High Court for review as per the Administrative
Justice Act. The Respondent State further avers that the Supreme Court could
have been as well approached for relief on the basis of Section 24(2) of the
Constitution. The Respondent State is also of the view that the High Court and
Supreme Court never made a final determination of the matter on the basis of the
merits of the case.

69. In the present Communication after the eviction order from the Magistrate Court
the petitioners’ took their case to the High Court contending that the decision of the
Council should be reviewed.54 This was dismissed by Justice Ziyambi who did not
find any conduct which was reviewable on the part of the Council. The petitioners
appealed against the decision of the High Court to the Supreme Court and the
latter also dismissed the appeal. The Supreme Court stated that the appeal was
argued by the appellant (petitioners) on the wrong basis. The appeal was argued
on the basis that the first respondent’s (the Council’s) decision of 19 August 1998
was made in terms of Section 32 of the Regional, Town and Country Planning Act
(Chapter 29:12) which according to the Supreme Court had nothing to do with what
transpired in this case.

70. Based on the above, the Supreme Court adjudged that the appeal before the court
a quo to have the decision of the Buhera Rural District Council set aside on review
on the basis of non-compliance with the provisions of the Regional, Town and
County Planning Act was misconceived.55 The judgment of the Supreme Court
also indicates that even the counsel of the appellants conceded that the appeal has
no merit, which is also obvious from the reading of the judgment.

71. The Commission agrees with the Respondent State on the point that the domestic
courts were not given the opportunity to remedy the merits or substance of the
complaint. As indicated above the purpose of the rule of exhaustion of local
remedies is to enable states address alleged violations of human rights before
international bodies. In assessing whether states have been given this opportunity
it is of prime importance to make sure that they have been addressed on all the
substantive issues complained of and that the domestic procedures as provided by
the laws of the country have been properly pursued, unless they are apparently
unjust or prolonged.

72. In this Communication the issue for determination before the Commission is the
alleged unlawful eviction of the Muzerngwa’s and the human rights violations they
suffered as the result of such evictions. However, as the reading of the facts of the
case clearly indicate the local courts of the Respondent State were never
approached to rule on the issue of eviction and other human rights violations that
are allegedly caused by the evictions. The African Commission is convinced by the
Respondent State’s argument, which is not contested by the Complainant, that the
latter could have approached the Supreme Court on the basis of Section 24(2) of
the Constitution to get redress for the alleged human rights violations.

73. It is true that the High Court and Supreme Court have been approached and both
of them ruled against the petitioners. It should however, be noted that the Courts
did not rule on the merits of the case but on both instances dismissed the case on
technicalities. The reason the courts were not able to deal with the merits is
because the courts were approached to rule on procedural matters and thus failed
to raise the substantive issues before the domestic courts.

74. The African Commission is in agreement with the Complainant that appealing to
the President is not a judicial remedy as it is discretionary in nature and therefore
they are not expected to pursue it. Notwithstanding this fact the Commission is of
the opinion that the issue before it, that is, the eviction of residents of the
Wakarambwa village, has not been decided upon by the domestic courts of the
Respondent State. What the High Court and Supreme Court were called upon to
do was to review the decision of the Buhera District Council and not to rule on the
substance of the case.

75. For the aforementioned reasons the Commission finds that this Communication
does not comply with Article 56(5) of the Charter.

76. From the above ruling it follows that the filing of the Communication by the
Complainant is premature and has not observed the requirement under Article
56(6) of the Charter.

77. Regarding the requirement that a communication must not be considered if it has
already been settled before other international bodies, the Complainant claims that
the present Communication has neither been dealt with nor is it pending before any
other international body. The Respondent has also not challenged this assertion.
Consequently, the Commission holds that the Complainants have satisfied the
requirement under Article 56(7).

78. Obiter dictum: in line with its well established jurisprudence the African Commission
considered the amicus curiae brief submitted by the Centre on Housing Rights and
Evictions56 in support of the Complainants submissions. However, the Commission
notes that the amicus curiae brief submitted by the Centre on Housing Rights and
Evictions does not address itself on Admissibility.

Decision of the Commission on Admissibility
79. In view of the above the African Commission on Human and Peoples’ Rights
decides:
I. To declare the Communication Inadmissible because it does not
comply with the requirements of Article 56(5) and (6) of the African
Charter;
II. To give notice of this decision to the parties in accordance with Rule
107(3) of the New Rules of Procedure (RoPs)
III. To inform the Complainants of their right to resubmit the
Communication before the Commission after exhausting local
remedies in accordance with Rule 107(4) of the RoPs;
IV. To include this decision in its Report on Communications.

Done in Banjul, The Gambia, during the 9th Extra-Ordinary Session of the African
Commission on Human and Peoples’ Rights held from 23 February to 3 March
2011.s