Some research notes. Indiginization Regulations Recourse to International Law.
The Zimbabwe government appears to have the mistaken belief that sovereignty gives them full protection against international crimes. Many of these crimes arise from the violation of The Universal Declaration of Human Rights and other international instruments that set out the human rights that include civil and political rights, as well as economic, social and cultural rights and form part of international law. By simply producing laws and constitutional amendments that legalise locally international crimes I believe merely provides protection within the country’s boundaries…. In today’s Global Village it is very difficult for society to exist in isolation.
“indigenous Zimbabwean” [any person who before 18th April 1980 was disadvantaged by unfair discrimination on the grounds of his or her race, any descendant of such a person, and any company, association, syndicate or partnership in which such persons hold the controlling interest or are the majority of the members]. This is clearly a distinction as to race and clearly implies (as read with the rest of the Act and regulations) that any person who before 18th April 1980 was advantaged by unfair discrimination on the grounds of his or her race, and any descendant of such a person will be disadvantaged by unfair discrimination by this legislation on the grounds of his or her race. Now in terms of the constitution discrimination black against white or women against men is regarded as “fair discrimination”. It is therefore unlikely for any recourse within the sovereign bounds….
However
Non-discrimination is one of the most accepted principles of international human rights. The government should treat society without discrimination on grounds of race, colour, creed, age, gender or political persuasion, and to cultivate a positive approach to diversity as a factor for change. Everyone is entitled to enjoy human rights irrespective of their colour, race, gender, religion, ethnic, social or national origin, political or other opinion, property, poverty, disability, birth, lack of citizenship, sexual preference, or other status, for example, severe illness such as HIV / AIDS. Decisions on the conditions for promotion, the availability of products or the allocation of supplier contracts should be taken without discrimination or regard to arbitrary preferences. The state should respect everyone’s right to own property, alone or in association with others and should fairly compensate property owners for their intellectual and physical property. Recruitment, training and promotion should be based on qualifications, skills and experience and not on any of the following criteria: race, colour, gender, religion, political affiliation, nationality or social origin.
Human rights are acknowledged as being universal, that is they apply everywhere, and inalienable, which means that they cannot be taken away from the person even with his or her agreement.
An organization may be regarded as complicit if it in some way authorizes, tolerates or knowingly ignores abuses committed by a connected organization or Zimbabwe state agents that do not respect human rights.
While case law is developing that is clarifying the legal liability of private organizations or businesses for complicity in international crimes most of what society, business and human rights advocates understand as complicity goes beyond its present legal definition and application.
Example
Let us say A Another owns a business in Zimbabwe and because he/she is regarded as non-indigenous because of colour, race, ethnic, social or national origin, has to part with the majority shareholding to comply with racist laws. Because rights are inalienable A Another may consent to part with the majority shareholding without losing rights under international law. Realistically recourse will have to be outside the sovereign bounds and this should be made possible because human rights are acknowledged as being universal, that is they apply everywhere.
Let us say the transaction requires the services of a bank. For a bank to be complicit the key word appears to be “knowingly”. It should therefore be merely incumbent upon A Another to ensure potential for legal liability of the bank for complicity in international crimes arising from these services is recognized and understood.
Extracted from an e-mail from Standard Chartered Bank Zimbabwe. “Standard Chartered Bank (“SCB”) is incorporated in England with limited liability by Royal Charter 1853, under reference ZC18. The Principal Office of SCB is situated in England at 1 Aldermanbury Square, London EC2V 7SB. In the United Kingdom, SCB is authorised and regulated by the Financial Services Authority under FSA register number 114276.”
Extracted from The Economist “Governments are taking an ever keener interest: in Britain, for example, the 2006 Companies Act introduced a requirement for public companies to report on social and environmental matters.”
Recently published International Standard ISO 26000 – Social Responsibility standard. This is a guidance standard and of special interest is the “responsible for the wider sphere of influence”. What this essentially means as it effects Zimbabwe and the indig regs (as I understand it) is – to comply with this standard organizations may be risk averse as violation of human rights is not in their business interest. I queried the “compliance with law” with the ISO executive. In the event, like we may have in Zimbabwe, local laws are in violation of international laws, especially those on human rights, which law prevails – they replied International Law prevails.
Kind Regards
Tony Lampard