Zimbabwe Human Rights NGO Forum v The Government of Zimbabwe SADC Tribunal Case No. 5/2008

The Zimbabwe Human Rights NGO Forum has taken the Government of Zimbabwe to the SADC tribunal alleging breach of the SADC treaty and its various protocols and the matter is to be heard on 22 April 2009. Zimbabwe is a party to the SADC Treaty and has various obligations under that Treaty which it is expected to respect, promote and fulfil. Under the SADC Treaty, the SADC Tribunal was created by a Protocol. The Tribunal has jurisdiction over matters brought before it by individuals against member states or amongst member states.

In May 2008, the Zimbabwe Human Rights NGO Forum brought an application against the Government of Zimbabwe (GoZ) before the SADC Tribunal on behalf of twelve of its clients. The application was brought in terms of Articles 4(c) and 6. The GoZ is alleged to have breached its obligations under the treaty. Article 4(c) refers to the state’s obligation to act in accordance with the principle of “Human rights, democracy, and the rule of law”. Under Article 6 the
state has an obligation to:

“…adopt adequate measures to promote the achievement of the objectives of SADC, and shall refrain from taking any measure likely to jeopardise the sustenance of its principles, the achievement of its objectives and implementation of the provisions of (the) treaty”

The averment of failure to comply with the above obligations arises from the fact that the GoZ’s has failed to comply with court orders handed down in the cases of the above-mentioned clients thus rendering domestic remedies
ineffective. The victims represented in the application are all victims of violence and torture perpetrated on them by state agents including the police and the army. Civil litigation was pursued by the Forum and in the majority
of them judgments sounding in money was entered in favour of the Forum’s clients. Others were consent orders which were agreed to by the parties.

However the GoZ either failed and/or neglected to pay the judgment debts altogether or in the cases where it was paid, the payment was done after lengthy delays thus rendering the compensation amount useless due to inflation. This was compounded by the prohibitive legislative terms such as Section 5 of the State Liabilities Act Chapter [8.14] which does not permit the attachment of state property in execution of a court judgment. Thus it means effectively, there is no remedy at all available.

In response in its counter application and Heads of Arguments filed with the Tribunal, the GoZ has raised some technicalities in a bid to have the matter thrown out as per its draft order filed of record. The first of its arguments is
that the Forum has failed to comply with the rules and procedures of bringing a complaint before the Tribunal in that it filed statements of facts rather than sworn affidavits. The second is that the Forum has no express authority in the
form of Powers of Attorney from the clients it seeks to represent in the Tribunal and the final argument questions the standing (locus standi) of the Forum and its competency to bring this application. All these issues have been addressed in the Heads of Arguments filed by the Forum. The Forum seeks to have the compensatory amounts sought by the victims reviewed to reasonable amounts and also to have legislative interventions to guarantee value of compensation sounding in money and amendments to the State Liabilities Act. The case has been set down for hearing on Wednesday
the 22nd of April 2009 at the Tribunal Seat in Windhoek, Namibia.

Design and development supported by HURIDOCS.