TORTURE IN ZIMBABWE, PAST AND PRESENT
211
Zimbabwe and the foreign country concerned.
The extradition of persons in
connection with purely political crimes is not prohibited.212 Under Part II, the
Minister of Home Affairs in consultation with the Minister of Foreign Affairs may
publish an order in the Government Gazette designating any foreign country, and
can either make the order with conditions, in which case the provisions of the Act
are modified, or if no conditions are made, then the provisions of the Act stand.
Unlike extradition under Part I, extradition under Part II is subject to the doublecriminality rule and to the rule that political offences are non-extraditable. 213
Extraditions under Part II were based largely on the Commonwealth Scheme
Relating to the Rendition of Fugitive Offenders Within the Commonwealth, agreed
upon at the Commonwealth Law Ministers Meeting held in London in 1966, as
subsequently reviewed, especially at the Harare Commonwealth Law Ministers
Meeting in 1986. Since Zimbabwe left the Commonwealth the precise legal
arrangement is not clear. Generally, extradition proceedings are initiated by a
request from the foreign state, which can lead to a hearing in the Magistrates Court
to decide whether a warrant of arrest should be issued, or, if the person is in
custody, whether bail should be granted. The final decision, however, rests with the
Minister as to whether the person whose extradition is being sought is surrendered
to the foreign state or not. 214
C.
Practice
Zimbabwe has not been called upon to exercise universal jurisdiction, although the
Ethiopian government apparently requested the extradition of Mengistu Haile
Mariam, the former ruler of Ethiopia to stand trial in that country for crimes against
humanity. Mengistu fled to Zimbabwe in May 1991 when his government was
overthrown, and he has been living in luxury in Harare ever since. To date
Zimbabwe has provided a safe haven for the ex-dictator who ruled Ethiopia from
1974-1991, during which period tens of thousands of his countrymen were
imprisoned, tortured or killed as counter-revolutionaries.
VI.2 .
A.
Claiming Reparation for Torture Committed in 3 rd Countries
Legal Action Against Individual Perpetrators
The general rule is that the High Court has unlimited civil jurisdiction over all
persons within Zimbabwe where the cause of action arose in the country. 215 Where
211
Section 3 (2) (a).
212
Ibid.
213
Sections 14 (2) (b) and Section 15 (b) and (c).
214
Adrian de Borboun SC in his paper Litigation human rights in Zimbabwe: Past, present and future (above, fn.
21) at p. 113 draws attention to an incident after Independence as follows:
The very first case that was heard by
the Supreme Court under the [Lancaster House] Constitution of Zimbabwe got the whole subject of human rights
off to a bad start. A man named Mandirwhe had been arrested by State security officers and surrendered to officials
in Mozambique without any formal extradition proceedings. He in fact spent twenty-one months in all in custody in
Mozambique. A writ of habeas corpus was sought, and the trial judge referred to the Supreme Court asking it to
determine what measures should be taken to secure the enforcement of the Declaration of Rights with regard to
Mandirwhe. The Supreme court declined to exercise its jurisdiction on the grounds that the High Court could still
make an effective order without having any constitutional order determined. See Mandirwhe v Minister of State
1986 (1) ZLR 1 (A);1981 (1) SA 750 (ZA)
215
Civil jurisdiction is governed by the common law as modified by High Court Act (Chapter 7:06). The civil
jurisdiction of the Magistrates Court is governed by the Magistrates Court Act (Chapter 7:10).
42
Select target paragraph3
Add to table of contents