REDRESS/AMANI
the defendant is a resident (an incola) and the plaintiff is a non-resident (a
perigrinus) the defendant can apply for an order that the plaintiff furnishes security
for costs. Where the plaintiff is a resident and the defendant is not, and the cause
of action arose within Zimbabwe, the High Court will have jurisdiction if there has
been an attachment of the defendants property or person to found jurisdiction. If
both parties are non-residents (perigrini) there would need to be an additional
jurisdictional fact as well.216
B.
Legal Action Against a Foreign State
The general rule is that foreign States are immune from the jurisdiction of
Zimbabwe courts, but this is restrictive or partial immunity and not absolute
immunity, that is, it does not apply to commercial matters or where the immunity
has been waived.217
C.
Practice
No case is known in which a claim has been brought in Zimbabwe against an
individual or a foreign State for damages in relation to torture or ill treatment
committed outside of the country.
VII. CONCLUSION
For the last few years Zimbabwe civil society and international NGOs have played a
central role in documenting and publicising nationally and internationally the
ongoing gross and systematic human rights violations. They have also analysed the
reasons for the violations and the fundamental structural and other weaknesses in
the legal system, the body politic and the institutions of Government and
administration generally, and they have proposed solutions and reforms. The
current crisis itself in part grew out of civil societys efforts to galvanize
Zimbabweans into challenging Zanu-PFs abuse of the Constitution.218
While the current political impasse continues there appears to be little prospect of
breaking the cycle of human rights violations, and even when it is eventually
broken, there will be an urgent need for radical reforms in many areas. One
institution which requires specific attention is the Zimbabwe Republic Police (ZRP).
More will be needed than rebuilding the professionalism and reversing the
Zanunisation of the ZRP. The fact is that the ZRP, as did the pre-Independence
police force from which it developed, has always routinely resorted to brutality and
torture to a greater or lesser extent in the course of ordinary policing, and not only
during the maintenance of law and order at critical political stages in the countrys
history, such as at present. Until and unless this problem is acknowledged and
resolutely challenged, the scourge of torture and other violations at the hands of
216
In delict it might be that medical expenses were incurred in Zimbabwe, or future loss of earnings, even though
the cause of action arose outside of the country. As to which system of private international law (choice of law)
would be applied it would probably be lex loci delicti. CF Forsyth, Private International Law, 3 rd Ed., Juta & Co 1996,
p. 316.
217
Barker McCormac v Government of Kenya 1983 (2) ZLR 72 (S).
218
From the mid-90s civil society organisations began to work with the Zimbabwe Congress of Trade Unions (ZCTU)
to campaign for a new Constitution which would entrench human rights and curtail presidential power. Out of this
alliance grew the National Constitutional Assembly (NCA), to oppose the Governments Constitutional Referendum,
and later the MDC itself.
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