Landmark SADC torture ruling

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 countrys High Court.

The victims Barry Gondo, Kerina Gweshe, Nyaradzai Katsande, Peter Chirinda, Phanuel Mapingure, Ruth Manika, Sophia Matasva, Trust Shumba and Mercy Magunje had previously successfully claimed compensation in the High Court of Zimbabwe but the government of Zimbabwe 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 Zimbabwes State Liabilities Act, which protects the Zimbabwe governments 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 Peoples 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 ruling could open the floodgates for other victims of police and army brutality who have failed to get fair hearings in Zimbabwean courts. 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 has been paid so far while the lawyers of nine of the 11 remaining victims have been forced to turn to the SADC Tribunal.

The victims allegedly 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 Zimbabwes world-record inflation.

Gauntlett further asked that the compensation should be adjusted since Zimbabwe had introduced the US dollar and the South African rand as currencies. In Gweshes case, she was awarded damages of Z$10 million in March 2006 by former High Court judge Justice Rita Makarau after she sued then Defence Minister Sydney Sekeramayi for Z$50 million for the assault she and her husband suffered at their Glen View home at the hands of soldiers during the Final Push demonstration organised by

Prime Minister Morgan Tsvangirais MDC-T party in June 2003.

Due to the hyperinflation experienced in Zimbabwe over the past years, the original compensation amounts laid down years ago by the Zimbabwe high court would today be worth next to nothing. According to the SADC Tribunal ruling, the Harare government should pay Gondo US$5 650 000, Gweshe US$810 000, Katsande US$133 144, Chirinda US$3 264 000, Mapingure US$950 000, Manika US$8 552, Matasva US$4 850 000, Shumba US$1 085 000 and Magunje US$9 030.

It also ruled that the government must pay interest on each of the awards from the date of the original High Court judgments.

The oldest judgment was the one for Katsande which was handed down in February 2003, followed by Chirinda in August of the same year and Shumba in 2004.