HERBERT CHITEPO LAW SCHOOL

INTERNATIONAL HUMANITARIAN LAW

M223881
STUDENT NUMBER
INTERNATIONAL HUMANITARIAN LAW
MODULE NAME AND CODE LLB225

MR MUSEBENZI
NAME OF SUPERVISOR /
MODULE CO-ORDINATOR

STUDENT NAME MUDZVITI OTILIA

2 OCTOBER 2023
DATE SUBMITTED

UNDERTAKING:

1. I declare that this research paper is my own work and that I have not copied the
work of another student or author.
2. I declare that the written work is entirely my own except where other sources are
acknowledged.
3. I declare that I understand that collaboration in the writing of this assignment or
the copying of another student’s work constitutes cheating for which I may be
excluded from the University.
4. I certify that this research paper has not been submitted in this or similar form in
another module at this or any other University.
NAME: ____OTILIA MUDZVITI__________________________
SIGNATURE: __O.M____________________________

DATE: ___02 / 10___________________ 2023

Assignment Question
Lovemore and Terrence are nationals of Zimbabwe who are secondary school teachers.
They teach at Muzondo Secondary in Chivi and they have been at this school for many
years. They own agricultural plots that are adjacent to each other along the Harare-
Beitbridge road. They own these pieces of land under registered title. They bought them
from a white farmer called Humberstone before the land reform programme in Zimbabwe.
They ordinarily reside at their plots especially during school holidays. They also carry out
small scale farming since the plots are only 30 hectares in size. The government decided to
dualise the Harare -Beitbridge road. However, in order for dualisation to happen, there was
need to encroach into Lovemore and Terrence’s plots and permanently acquire about 5
hectares from each of them. The government clearly indicated that it would acquire the
land without compensation. The two teachers resisted the move. Pursuant to the resistance
their plots were gazetted for land acquisition under the Land Acquisition Act. They
challenged the acquisition of the land in the High Court. One of the arguments which the
state raised was that the court has no jurisdiction in the matter. The two teachers refused to
vacate the land and they were arrested for violating a section of the Land Acquisition Act
which requires that a former owner of gazetted land should vacate the land within 90 days
of receiving such a notice. They were tried and convicted. They appealed against both
sentence and conviction. Their appeal was heard seven days from the date of its noting. The
judgement in the matter was reserved indefinitely. A senior government official commented
that people should not be worried about the two political activists as they were sponsored
by foreigners and that the government will do everything in its power to make sure that
they will not get compensation. When schools opened Loveness and Terrence failed to
report for duty on the basis of financial incapacitation. They were threatened with dismissal
for failure to report for duty. Their argument was that they were earning less than $40 USD
per month hence were incapacitated to report for work. The two believed that the state had
failed in its responsibility to respect, fulfil and protect their rights.
 Democratic as it is, Zimbabwe recognise the rights of individuals as stated in its
constitution. Zimbabwe is part of many treaties which deals with the protection of
human rights. The legal issues which can be brought by the teachers is the labour
right. Under rare circumstances, the government may be able to buy your property
from you for a fair price, but without your consent. This is called expropriation, and it
means the taking of private property for public use. Terrence and Lovemore can ask
the court of law to study the issues of the court to see if it was just or unjust.

Initially, every employee has a right to demonstrate or strike if they see necessary for
example if the see that the money is too small for their labour. Section 65 (3) of the
constitution states that, except for members of the security services, every employee
has the right to participate in collective job action, including the right to strike, sit in,
withdraw their labor and to take other similar concerted action, but a law may restrict
the exercise of this right in order to maintain essential services1. Workers are of the
opinion that if negotiations fail each party should be allowed to use the power at their
disposal. The only weapon the employee can use is the right to strike. This shows
that the man had a right to strike as enshrined in the constitution. Section 7 of
the National Labour Relations Act states in part, “Employees shall have the right to
engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection.” Strikes are included among the concerted activities
protected for employees by this section. Section 13 also concerns the right to strike 2.
The use of the constitution and the labour act can make the claim valid. Article 15 of
the African Charter states that every individual shall have the right to work under
equitable and satisfactory conditions, and shall receive equal pay for equal work.
This shows that Terence and Lovemore had the right to ask for the increment of their
pay.

In addition, the two teachers can raise the issue violation of their rights since they
are entitled to compensation. Section 295 (3) of the constitution states that, any
1
constitution
2
National Labour Relations Act
indigenous Zimbabwean whose agricultural land was acquired by the State before
the effective date is entitled to compensation from the State for the land and any
improvements that were on the land when it was acquired. Any person whose
agricultural land was acquired by the State before the effective date and whose
property rights at that time were guaranteed or protected by an agreement
concluded by the Government of Zimbabwe with the government of another country,
is entitled to compensation from the State for the land and any improvements in
accordance with that agreement. If there is no compensation then it leaves an
impression that force was used.

The process that was fair on the two man was that of expropriation. In almost all
countries, governments have legal authority to acquire land for public needs,
including roads, schools and other public infrastructure, as long as they compensate
affected landholders. This process is commonly referred to as expropriation. But in
many countries, weak expropriation laws open the door for governments and
companies to take land for private interests without adequately compensating and
resettling displaced people. Common examples of expropriations include situations
where a municipality wants to widen a road, or where a school decides that an
addition to its facilities is necessary. Under these circumstances, the municipality or
the school will serve a notice of application to the registered owners of the property,
and the property owners can then request a hearing to determine whether the
expropriation is fair and reasonable. Eventually, the relevant provincial ministry either
approves or rejects a proposed expropriation Courts must also consider international
law as reflected in, among others, the international conventions on human rights. In
most modern jurisdictions, land owners have a constitutional right to compensation.

The two teachers can raise an issue of jurisdiction of the high court, the high court
can try any matter except for constitutional matters or criminal matters committed by
the president. The Administrative court was given the jurisdiction over land or issues
to do with the public. Section 171 of the constitution of Zimbabwe states that, The
High Court has original jurisdiction over all civil and criminal matters throughout
Zimbabwe; has jurisdiction to supervise magistrates courts and other subordinate
courts and to review their decisions; may decide constitutional matters except those
that only the Constitutional Court may decide; and has such appellate jurisdiction as
may be conferred on it by an Act of Parliament. An Act of Parliament may provide for
the exercise of jurisdiction by the High Court and for that purpose may confer the
power to make rules of court. An Act of Parliament may provide for the High Court to
be divided into specialized divisions, but every such division must be able to exercise
the general jurisdiction of the High Court in any matter that is brought before it. This
clearly shows that the high court had jurisdiction.

One of the legal issues Terrence and Loveness must make is the violation of The
violation of the right to property section 71 of the constitution states that subject to
section 72, every person has the right, in any part of Zimbabwe, to acquire, hold,
occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either
individually or in association with others. They can raise a point of abitrallity showing
the land was taken fully.

In conclusion, the legal issues that Terrance and Loveness brought to the court of
law should be in line with the constitution since it is the most binding. Any law or
statute contrary to it is invalid.
Discuss the prospects of taking the matter to the African Commission on Human and
People’s Rights. (10 marks)

The African Commission on Human and Peoples Rights is a body which is tasked on
the recognition and protection of human and people’s rights within the region. The
duty of the African commission on human and people rights is undertaking studies
on African problems in the field of human and people’s rights , dissemination of
information and rules aimed at solving legal problems relating to rights and freedom .
They protect human rights in accordance with the charter and the interpretation of
the charter. The commission draws their inspiration from various African instrument
like the United Nations Charter and the Universal Declaration on Humans rights.
Taking the matter to the African Commission on Human right leads to a good final
decision. This is so because the ACHPR is an impartial body and it make sure that
justice is saved.

The matter will be taken to the African court on Human and Peoples right, by taking
the matter there, it will be thoroughly investigated. The ACHPR deals mainly on
human rights so with the help of the UN charter it tries to figure out the rights of the
people or persons involved. Governments are encouraged to protect and respect the
rights of their people.

The ACHPR tries to solve the right which was violated and tries to interpret it. If the
right is vague they try to find the meanings which can be given to them. In The Social
and Economic Rights Action Centre and the Centre for Economic and Social Rights
v s Nigeria (SERAC case) the complainants alleged that the Nigerian government
violated the right to health and the right to a clean environment as recognized under
Articles 16 and 24 of the African Charter by failing to fulfil the minimum duties
required by these rights. This, the Complainants alleged, the government did by: (i)
directly participating in the contamination of air, water and soil and thereby harming
the health of the Ogoni population; (ii) failing to protect the Ogoni population from the
harm caused by the Nigerian National Petroleum Company (NNPC) in a consortium
with Shell Petroleum Development Corporation. 3The government in this case was

3
The SERAC case
found guilty for violating the right of the people. In this case the government can be
blamed for violating Lovemore and Terrences right to property.

Guided by the previous cases, the ACHPR solve their matters binding to the charter.
In this case, article 14 of the African Charter on Human and Peoples' Rights,
however, provides that: "The right to property shall be guaranteed. It may only be
encroached upon in the interest of public need or in the general interest of the
community and in accordance with the provisions of appropriate laws4. The right of
governments to acquire land in the public interest is commonly recognized. Effective
protection of economic and social rights may require redistributive measures,
including measures which do not provide for full market value compensation for land
that is expropriated. The complete protection of existing property rights can only be
justified in a situation where everyone has a basic minimum for what they need to
maintain a decent standard of living. The ACHPR in this case have to interpret the
right that was violated and its limitations.

In the case of Centre on Housing Rights and Evictions (COHRE) v. Sudan, the
African Commission found that “[i]t doesn’t matter whether they had legal titles to the
land, the fact that the victims cannot derive their livelihood from what they possessed
for generations means they have been deprived of the use of their property under
conditions which are not permitted5 by Article 14 [right to property]” of the African
Charter on Human and Peoples’ Rights.

In conclusion, the prospects of taking the matter to the African Commission on

Human and Peoples Rights is that it will be solved fairly using the African charter in
order to protect people’s rights. Therefore, one can state that the prospects of taking
the matter to the ACHPR is to bring justice.

4
African charter on human and people’s right
5
COHRE v Sudan case
Distinguish between Charter and treaty-based systems for the protection of human
rights. In your answer, examine which system is preferable and give reasons for your
answer.(10 marks)

A treaty is a formally signed and validated agreement between states that lays out
specific rules on how the state will conduct its affairs on a particular issue.

The charter based system established provisions from the United Nations charter.
The charter requires public authorities to act in a manner that is compatible with
human rights. The charter based system applies to all 192 UN member states. A
treaty based system is created under the international human rights treaties. It is
made up of committees of independent experts. The main difference that should be
taken note of is the treaty based system requires consent, the issue of consensus is
the key in this system whereas in a charter based system all the United Nations
members are expected to protect human rights. In a treaty based system only those
states who have ratified to a particular treaty are bound to observe that part of the
treaty based system which they have explicitly agreed.

Treaty Bodies are made up of committees of independent experts, monitor

implementation of the core international human rights treaties. The charter-based
bodies include the Human Rights Council, Special Procedures, the Universal
Periodic Review and Independent Investigations 6. The Charter Act imposes
obligations on public authorities to consider relevant human rights when making a
decision. The Charter Act also requires public authorities to act in a manner that is
compatible with human rights. Treaty bodies are independent of governments, the
various bodies of the charter-based system have a strong governmental influence; at
high levels, the bodies are composed of governments.

Treaty based system derive their existence from provisions contained in a specific
legal instrument; hold more narrow mandates: the set of issues codified in the legal
instrument; address a limited audience, only those countries that have ratified the
legal instrument. Most importantly, they base their decision making on consensus.
Whereas, Charter based system derive their establishment from provisions

6
International human rights law Phona k.M Smith
contained in the Charter of the United Nations. Hold broad human rights mandates.
Address an unlimited audience. Take action based on majority voting.

The current charter based bodies are the human right council and its subsidiaries
including the universal periodic review working group and the advisory committee.
Previously, the charter based bodies were the commission on human rights and its
subsidiaries including the sub commission on the promotion and protection of human
rights. Nine UN human rights conventions have monitoring bodies to oversee the
implementation of the treaty provisions. The treaty bodies are composed of
independent experts and meet to consider State parties' reports as well as individual
complaints or communications. They may also publish general comments on human
rights topics related to the treaties they oversee. The treaty-based bodies tend to
follow similar.

The charter based system is the preferable one since it has the power to impose the
protection of human right to everyone. The United Nations charter has a more
binding obligation. This is so because it has different bodies which operates
differently eg the United Nation Human Council which deals with the protection of
human rights globally.

The universal periodic review mandates a universal periodic review of each state's
fulfilment of its human rights obligations and commitments. The Universal Periodic
Review manages this process. The disadvantages of treaty based is that it has
many treaties and some countries choose not to be part of them but in charter
based, once the country become part of it then it is obliged to abide to all rules.

In conclusion, charter based system is derived from the charter and is binding to the
majority whereas treaty based system is a system of independent expects which is
based on the issue of consent. The charter based system is better since it has
control over many countries thereby maintaining peace internationally since many
states abides to the same rules.
Reference

African charter

Constitution of Zimbabwe number 20 of 2013

Labour Act

International human rights law Rhona K. M smith

International human rights and humanitarian law 2019

United nation charter

Cases

COHRE v Sudan case

SERAC case