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ZLHR bring Roy Bennet's plight to the attention of the African Commission On Human and Peoples Rights
Zimbabwe Lawyers for Human Rights (ZLHR)
April 27, 2005

27 April 2005

Mr. Germain Baricako
Secretary African Commission
On Human and Peoples Rights
48 Kairaba Avenue
Fajara
THE GAMBIA

RE: Communication under Article 55 of the African Charter, Request for Provisional Measures in terms of Rule 111

Complainants Zimbabwe Lawyers for Human Rights on behalf of Roy Bennett and the Republic of Zimbabwe

Dear Sir

The above matter refers and our correspondence of the 3rd of February 2005 refers. We kindly request the Commission to attend to the request for provisional measures by the complainants in this matter. The requested provisional measures are as follows:

1. His immediate release from prison
It is the submission of the complainants that the continued incarceration of Roy Leslie Bennett, a former opposition Member of Parliament, on the orders of the (since dissolved) Parliament wherein the majority ruling party members voted for his imprisonment is a violation of Article 7(1) (a) of the African Charter. Roy did not appear before an independent competent and impartial tribunal where principles of natural justice were applied, he appeared before a parliamentary committee, which presented recommendations to Parliament. The majority of the house, consisting of the ruling party, then approved the recommendations. As a member of the opposition who has been subjected to constant state harassment, intimidation and violence against his person and family, Roy was at the mercy of the ruling party. The decision to incarcerate Roy was based on the majority vote in Parliament along party lines. The ruling party ZANU Pf voted for the imposition of a custodial sentence of an effective 12 months imprisonment with hard labour for contempt of Parliament for an assault on two sitting Members of Parliament. If he had been convicted by an ordinary criminal court of law a sentence of not more than a month or a fine of not more than US$25 or ZW$200 000 would have been imposed. Further the decision by the Parliament to imprison Roy Bennett was held by the courts not to be questionable or reviewable as it was in terms of parliamentary privileges, which give Parliament the powers to sit as a court and face no judicial scrutiny of their decisions. The fact that the Parliament of Zimbabwe has powers to deprive a citizen of his liberty without due process and to further oust the jurisdiction of courts to review or appeal against such a decision is obviously a contravention of the Charter.

The Commission in the case of the Constitutional Rights Project in respect of Akamu and Others vs. Nigeria 60/91 ruled that the prohibition of judicial review of the decisions of special tribunals and lack of judicial appeal for judgments of these tribunals violate the right of an appeal to competent national organs against acts violating fundamental rights as guaranteed by Article 7(1) (a) of the African Charter. The fact that Roy is in custody based on the decision by an incompetent and partial tribunal, which has obviously deprived him of his fundamental rights and liberties, warrants the Commission to recommend the immediate release of Roy.

Further he is incarcerated in appalling conditions of overcrowding, inadequate food and sanitary facilities, and the location is such that it is difficult for his lawyers and families to visit. He cannot pursue any legal action to restore his property and businesses as will be illustrated below.

The unlawful sentence and incarceration has the potential of barring Roy from participating in civic affairs as a citizen of Zimbabwe and in particular the right to be nominated and stand for Parliament. Even if it is to be argued that the Parliament of Zimbabwe has such wide unfettered powers to imprison an individual for contempt of Parliament, such powers if put to the test of compliance with the provisions of the Charter, will not stand as they are clearly inconsistent with Article 7 of the Charter in respect of the right to be tried and appeal by and to a competent, independent national tribunal as provided by the Charter.

2. Return of dispossessed equipment and vacation of invaded properties, compensation of equipment and properties that have been destroyed.
The right to protection of property is guaranteed under Article 14 of the Charter and it should not be encroached upon without due regard to the law. Charleswood Estate and Mawenje Lodges which are part of the property that is owned by Roy Bennett and Bennett Brothers (Pvt) Ltd, have been unlawfully occupied, invaded, and properties destroyed by state sponsored individuals and government-backed companies in contravention of several court orders. Even where private individuals were involved the State deliberately failed to protect the complainant. The High Court and the Magistrates' Courts ordered that the invasion and occupation of the property, owned by Roy, was in contravention of the laws of the land and should cease forthwith. The orders are listed below:

• 1st May 2001 High Court issued a provisional order barring State from acquiring Charleswood Estate
• 16th of May 2001, a government notice of intention to acquire the estate was set aside by the High Court as the farm was protected by the Export Processing Zones Act. The High Court confirmed this decision on the 20th of January 2003.
• 8th April 2003, an order was issued by the High Court by which the State and its functionaries particularly the police, army and Intelligence operatives who had participated in the invasions were interdicted from threatening, abusing, intimidating, harassing, assaulting the employees of the State. This order was again ignored.
• 18th of November 2003 another order was issued by the Magistrates' Court interdicting State officials and one army Sergeant Nasho from setting foot on the farm and directed the functionaries in unlawful occupation of the farm to vacate.
• 25th of February 2004, another High Court order was issued giving Roy leave to remain and proceed with his farming on Charleswood Estate.

These courts orders were disobeyed and disregarded as the plundering on the properties continued unabated. The properties were and are protected in terms of the Export Processing Zones Act and the Zimbabwe Investment Centre Act, which outlaw any expropriation or compulsory acquisitions of properties, which are within the category of export processing zones. The properties were acquired through loans he had received from banks and one of the loans (by the Commercial Bank of Zimbabwe) was only paid off in January 2004. These facts are contrary to State representatives' unfounded allegations that Roy acquired the properties through land grabbing and plundering during the colonial era or as an inheritance from his forefathers.

Cases of torture and extra judicial killings were conducted on his property; some of the acts of torture were conducted in full view of the public as a deterrent to those who resisted the process of land invasions. A photograph of one of the deceased a farm worker at Charleswood Estate is attached as Annexure 1. Photographic evidence of the effects of torturous assaults are attached as Annexure 2. The extra judicial killings were never investigated despite reports being made to the police. There is need for the government to urgently investigate these incidents of violence, torture and extra judicial killings as any further delays will render any criminal prosecutions close to impossible. Until this is done, the perpetrators and instigators of such violence and killings (some of whom are known within the communities) will continue to be left to roam the villages with impunity and be at liberty to commit further crimes.

Several of his properties were destroyed, cars were burnt, livestock were maimed and killed ruthlessly, his farm workers were forcibly ejected from the property and their belongings destroyed or razed to the ground as evidenced in Annexure 3 and 4. Many of the families, which had been forcibly ejected from Charleswood Estate, were forced to sleep in barns and market stalls as evidenced in Annexure 5.

The complainants pray that the Commission recommends the following provisional measures to the Government of Zimbabwe:

a) The immediate release of Roy Bennett from imprisonment
b) That all those unlawfully occupying Charleswood Estate and the other properties of Roy Bennett vacate them with immediate effect,
c) The return of the farm labourers into their dwellings,
d) The return of all the equipment which was unlawfully possessed,
e) The compensation for all the destroyed properties and all the killed livestock as per their value,
f) The investigation of the extra judicial killings, torture, rapes, destruction of property and other violations of rights of all affected people lawfully residing on the farms,
g) To respect, enforce, and obey all court orders,
h) To forthwith stop the political persecution of Roy Bennett and allow him to participate in the civic affairs of the nation without interference.

Yours faithfully

Arnold Tsunga
Director
Zimbabwe Lawyers for Human Rights

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