The Gondo Case – background, ruling

DECISIONS BY THE SADC TRIBUNAL

THE GONDO CASE – ZIMBABWE

 

In December 2010, the Zimbabwean newspaper reported that the SADC Tribunal had awarded damages of nearly US$17 million to nine Zimbabwean torture victims, in a landmark ruling that yet again exposed Harare's flagrant disregard of the rule of law.

The judgement, handed down on 9 December 2010, followed a case in which the victims of organised violence and torture (OVT), assisted by the Zimbabwe Human Rights NGO Forum, sued the Zimbabwean government for failing to comply with the orders of the country’s High Court.

The victims were Barry Gondo, Kerina Gweshe, Nyaradzai Katsande, Peter Chirinda, Phanuel Mapingure, Ruth Manika, Sophia Matasva, Trust Shumba and Mercy Magunje.

All had previously successfully claimed compensation in the High Court of Zimbabwe but the government of Zimbabwe had refused or neglected to pay compensation.

Delivering judgement in Case No. SADC (T) 05/2008 (Gondo and 8 others vs the Government of Zimbabwe), presiding judge Ariranga Govindasamy Pillay said Zimbabwe has acted in contravention of various fundamental human rights.

“We hold, therefore, in light of the authorities quoted above, that the Respondent 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 right to have access to an independent and impartial court or tribunal and the right to a fair hearing,” Pillay said.

He also ruled that Section 5 (2) of Zimbabwe’s State Liabilities Act, which protects the Zimbabwe government’s internal property from being attached, was not only in contravention of the Treaty but also violated Article 3 (2) of the African Charter on Human and People’s Rights which provides that every individual is entitled to equal protection at law.

“We therefore hold and declare that section 5(2) of the Liability Act (Chapter 8:14) of the Respondent is in contravention of the fundamental rights to have an effective remedy; to have access to the courts; to be entitled to a fair hearing, to equality before the law and to equal protection of the law; in so far as it provides that property of the States may not form the subject-matter of execution, attachment or process to satisfy a judgment debt, the judgment said.

The case of originally 12 victims was brought before the SADC Tribunal in April 2009 via the Zimbabwe Human Rights NGO Forum. Only one victim had been paid while the lawyers of nine of the 11 remaining victims had been forced to turn to the SADC Tribunal.

The victims suffered bullet wounds, beatings and even paralysis as a result of the physical violence at the hands of the police and soldiers about eight years ago. Lawyer Jeremy Gauntlett told the bench of three judges that not only should the Zimbabwean government pay compensation to the victims but must also adjust the awards which were made during the heady days of Zimbabwe’s world-record inflation. 

The ruling could open the floodgates for other victims of police and army brutality who had failed to get fair hearings in Zimbabwean courts, the Zimbabwean said.

Government of Zimbabwe Undermining the Rule of Law, Violating Treaty – SADC Tribunal

Commenting on the ruling in a press release, the Zimbabwe Human Rights NGO Forum wrote:

“The Forum applauds the Tribunal for handing down a progressive decision which acknowledges the need for an urgent reform of repressive pieces of legislation. 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 rights 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 ruling also confirms what the Forum and other Zimbabwean civil society organisations 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 implores Government to respect the rule of law and to honor its obligations under international law in order to ensure the protection of its citizens’ right to an effective remedy and equality before the law.

The Tribunal further ordered an adjustment of the awards made to the victims by the High Court and that this shall be done under the supervision of the Tribunal’s Registrar. An award of costs was also made against the Government in favour of the Forum. This is a development worth noting as this award is made only in exceptional circumstances. This decision acknowledges the Forum’s contention that the Government of Zimbabwe persistently flouts orders granted by its own High Court. It was therefore in the interest of justice that a Government that relentlessly denies victims compensation to which they are entitled be so ordered to compensate and meet costs.

The punitive aspect of the decision is very progressive and most welcome.

Full text of the judgment is accessible on this link

December 2010