PART A: Background to the African Regional Human Rights System
applicants the right to effective remedy. The Tribunal held that the provision in
question violated Articles 4(c) and 6(1) of the SADC Treaty, as the concept of rule of
law protected by the Treaty covers right to effective remedy, and therefore failure to
provide effective remedy to the applicants amounted to breach of state’s obligation
to uphold human rights principles and rule of law. In its judgement the Tribunal referred to jurisprudence on the right to effective remedy developed by the European
Court of Human Rights,151 the Inter-American Court of Human Rights,152 the African
Commission,153 the Constitutional Court of South Africa154 and The Human Rights
Committee’s General Comment No. 18 on Non-Discrimination.155 Although the
court upheld the applicants’ claim, awarding damages of nearly US $17 million to
the victims, Zimbabwean government refused to abide by the judgement.
In United Republic of Tanzania v. Cimexpan (Mauritius) Ltd, Cimexpan (Zanzibar) Ltd &
AjayeJogoo,156 a case concerning treatment of a Mauritian national during his deportation, the Tribunal relied on Article 1 of the 1984 Convention Against Torture in
its definition of torture and reaffirmed that international legal norms were more
than just a point of reference in its jurisprudence. Nevertheless, the court denied
jurisdiction to issue a preliminary ruling on legality of deportation order due to
lack of locus standi (the right or capacity to bring a legal action), as the applicant
failed to exhaust domestic remedies and his inability to substantiate the claim that
he had been subject to torture by any evidence. The court held that despite the fact
the applicant was deported, he could have accessed national courts and challenged
deportation order in his absence through his legal representatives.157
151 ECHR, Ramirez Sanchez v. France, App. No. 59450/00 (4 July 2006).
152 Advisory Opinion OC-9-87, Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8 of the
American Convention on Human Rights), Inter-American Court of H.R (6 October 1987).
153 ACHPR, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development in Africa
(on behalf of Andrew Barclay Meldrum) v. Zimbabwe, Comm. No. 294/04, 43rd Ordinary Session (22
May 2008).
154 Constitutional Court of South Africa, Nyathi v. MEC for Department of Health, Gauteng and Another Case,
CCT 19/07, ZACC 8 (2 June 2008).
155 HRC, General Comment No. 18 on Non-Discrimination, UN Doc. HRI/GEN/1/Rev.1 at 26 (1994).
156 SADCT, United Republic of Tanzania v. Cimexpan (Mauritius) LTD and Others, Case No. SADC (T) 01/2009
(11 June 2010).
157 Ibid. p. 6.
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