THE NAMIBIAN-based Sadc Tribunal has adjudged that Zimbabwe is undermining the rule of law and violating the founding principles of the bloc by refusing to pay compensation to nine victims of state-sponsored violence and torture over the past decade.
The judgment was handed down by Justice Arrirange Govindasamy Pillay in Windhoek in a December 2010 case brought by Barry Gondo and eight others against the government of Zimbabwe.
Gondo and the others argued that the governmnet was refusing to pay them damages that were awarded by the Zimbabwe High Court after they had succesfully sued it after they were beaten up and tortured by security agents.
“We hold, therefore…that the Respondent (government) is in breach of Articles 4 (c) and 6 (1) of the treaty in that it has acted in contravention of various fundamental human rights, namely the right to an effective remedy,” the Tribunal ruled, and “the right to have access to an independent and impartial court or tribunal and the right to a fair hearing.”
The judgment also ordered an adjustment of the awards made to the victims by the High Court and that this should be done under the supervision of the Tribunal’s Registrar. An award of costs was also made against the government in favour of the applicants’ lawyers.
Zimbabwe, which did not defend the case in Windhoek, has argued that the State Liability Act protects its assets from being attached in trying to enforce a judgement debt. Section 5 (2) of the Act makes it impossible for the applicants to receive their damages from the state rendering their relief academic.
The Tribunal ruled the section unconstitutional citing a South African Constitutional Court judgement in Nyathi vs the State.
The “State Liability Act is a relic of the legal regime which was pre-constitutional and placed the state above the law,” Pillay ruled.
“A state that operated from the premise that ‘the king can do no wrong.
“That state of affairs ensured that the state and, by parity reasoning, its officials could not be held accountable for their actions.”
The nine victims, through their lawyer, JJ Gauntlett SC, were trying to recover Z$18 million awarded to them by the courts between February 2003 and January 2007 in separate judgments by the High Court against the state security agents.
The Zimbabwe initially raised techncal objections to the application citing procedural irregularities. The matter was heard for the first time on April 22 2009. However, the Tribunal overruled Zimbabwe’s objections and went on to hear the merits of the case.
The case was heard on June 1 2010. The government on the other hand did not respond to the application and the Tribunal proceeded to hand down its judgment.
Zimbabwe Human Rights NGO Forum (the Forum) applauded the Tribunal’s judgment hailing it as progressive.
“We applaud the Tribunal for handing down a progressive decision which acknowledges the need for an urgent reform of repressive pieces of legislation,” it said in a statement.
“The decision is significant as it provokes debate on the implications of Section 5(2) of the State Liabilities Act on fundamental human rights such as the right to equality before the law and the right to an effective remedy.
“It highlights the need to assess and reform various other pieces of legislation, apart from the overtly anti-democratic and repressive ones like Posa and Aippa, to ensure full protection of human rights.”
The Forum added that the ruling “confirmed what Zimbabwean civil society orgnisations have been saying over the years –– that one of the country’s main challenges is the flagrant disregard of court orders by the state and the absence of the rule of law”.
The Forum implored the government to respect the rule of law and to honour its obligations under international law.
This is the second major case Zimbabwe has lost at the Sadc Tribunal after the Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe case No. 2 of 2007.
In that case, commercial farmers who had lost their farms during the chaotic land reform argued that reforms were racist in nature and that the state was not undertaking the programme in accordance with Zimbabwe’s laws.
Government, through Justice minister Patrick Chinamasa, refused to enforce the judgement argung that the Sadc Tribunal was not properly constituted.
However, foreign governments recognise their jurisdiction and a future democratic government in Zimbabwe will almost certainly uphold their rulings.