THE Zimbabwe Human Rights Forum has taken the government to the Sadc Tribunal alleging breach of the regional bloc’s treaty and various protocols after the state failed to enforce local courts’ rulings on the assault and torture of 12 people by the police and army between 1998 and 2003.
According to the forum, the circumstances under which the acts of violence against Gabriel Kawara, Barry Gondo, Joyce Mwachindaka, Kerina Gweshe, Lameck Sengare, Peter Chirinda, Fanuel Mapingure, Ruth Manika, Sophia Matasva and Trust Shumba occurred qualify them as instances of torture under international law.
The instances of violence and torture range from severe assaults (with batons, boots and clenched fists) to bullet wounds (causing spinal injury and permanent paraplegia) and the death of a breadwinner.
Consequent on these acts of violence and torture, the victims were represented by the forum in separate domestic court proceedings and damages were successfully claimed against the government.
The forum, in its heads of argument asking the Sadc Tribunal to compel the state to uphold the High Court rulings, said: “The averment of failure to comply with the above obligations is drawn from the fact that the state has failed to comply with court orders of the above mentioned client 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.”
The human rights organisation argued that the state either failed 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 useless due to inflation.
The forum said the situation was compounded by the prohibitive legislative terms such as Section 5 of the State Liabilities Act which does not permit the attachment of state property in execution of a court judgment.
“The applicant’s case is that the respondent has violated articles 4(c) and 6(1) of the Sadc Treaty by failing to ensure that effective remedies were available to the victims, and thus failing to act in accordance with the principles of human rights; and implementing measures likely to jeopardise the principles of human rights and referred to in the Sadc Treaty,” reads the application.
However, the state in its opposing papers argued that the human rights lawyers were not a party to the cases that it had brought before the tribunal.
“It is not the aggrieved party in the cases that it has referred to this honourable tribunal,” the state papers read. “The matters referred to by the respondents are cases that were between the state and the judgment debtors and in those matters the present respondent acted as the agent.”
The state said without the specific authority from the judgment debtors the forum cannot substitute for the victims of the assault and torture.
“In fact what is clear from the proceedings is that the respondent is acting without the judgment debtors mandate and therefore it has no locus standi,” argued the state, adding that the forum in its papers did not show that either its board or membership resolved that it approaches the tribunal for the relief it was seeking.
Both parties presented their argument on the initial objections raised by the state on Wednesday in Windhoek, Namibia, and the tribunal reserved judgment.
BY LUCIA MAKAMURE