Zim should compensate violence victims –– Tribunal
http://www.theindependent.co.zw/
Thursday, 13 January 2011 18:47
Paidamoyo Muzulu
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.