Oops! We Blew it! Zimbabwe’s supreme court backtracks earlier international law decision

22 February 2019 · Carmel Rickard

TOP courts rarely revisit their own decisions and own up to being wrong. But Zimbabwe’s supreme court has done exactly that, finding that a key section of a 2004 judgment was wrong. Not just that: the mistake has had to be admitted under the watchful eye of the world’s international organizations, all of whom were potentially affected by the outcome. To make matters even more sensitive, one of the judges who concurred in the earlier decision has now been the author of the correction, none other than the president chief justice, Luke Malaba.

Read new judgment here

Read overturned judgment here

WRITING for a five-member Supreme Court, Zimbabwe’s Chief Justice Luke Malaba does not pull any punches about that country’s top court having made a mistake. A critical section of the 2004 judgment “is wrong”, he declares, adding: “It must not be followed.”

In his newly-authored decision he does not mention, however, that he was part of the three-person bench that made the mistake in the first place. Obviously, this is a case of having to eat humble-pie, something that top courts are notoriously keen to avoid. Not just that, the admission was made with the eyes of all the world’s international organizations keenly watching for what had become inevitable: a backtrack of epic proportions.

The new case concerns a staff member of the UN’s Food and Agriculture Organisation (FAO) in Zimbabwe. When his contract was not renewed, Michael Jenrich challenged the decision and the dispute ended in the labour court. Among his claims: an order for terminal benefits, damages for loss of future earnings and for emotional and psychological stress. In all, he claimed more than USD623 000 and asked that any references to allegations of misconduct against him be struck from his FAO file.

“The FAO took the view that it enjoyed absolute immunity from any legal process instituted in the local courts,” writes Justice Malaba, and it therefore opted out of all the whole case. It did not respond to the application nor did it attend the labour court proceedings. On the other hand, the labour court did not question off its own bat whether the FAO was correct and whether the court actually had jurisdiction. Instead, it issued a default judgment in 2014, ordering the FAO to reinstate Jenrich or pay the full damages he had claimed, and expunge his file.

This decision sparked a whole raft of further litigation and action. Among these, the sheriff seized some property from the FAO but, not finding enough value to satisfy the debt, the sheriff then attempted to execute against the FAO’s bank account. This led to an application for a garnishee order on the account, granted by the high court, and then to the subsequent intervention by the minister of foreign affairs trying to convince the court that it was making a mistake.

In a key moment however, the high court decided that the FAO enjoyed only “restrictive immunity” which meant that the labour dispute between the organization and an employer could be heard and decided by the local courts. Explaining that conclusion, the high court said it was bound by a 2004 decision of the supreme court to that effect. The earlier decision, involving the International Committee of the Red Cross, held that an international organization enjoyed “restrictive immunity”.

Some 14 years later those words came back to haunt the present supreme court and the judges agreed that in international law the initial decision was incorrect. Before making that finding however, the court indulged in some blame-sharing.

Although it not obligatory, it was still “desirable” for an international organization with immunity to participate in proceedings against it, even if only to point out to the court that it had no jurisdiction, said the chief justice. “That would not only show respect for the local courts” but would also help the court to consider the jurisdictional issue more mindfully. And besides, it would save a lot of time and expense if a plea on jurisdiction was upheld right at the start.

The minister should also have intervened much earlier to inform the courts of the legal position: namely, that Zimbabwe had “accorded the FAO absolute immunity against legal process and execution” in terms of a convention and headquarters agreement.

Just in case anyone missed the point, the chief justice said it again: the FAO ought to have informed the state of the processes instituted by its former staffer in the labour court and the state should have joined the labour court case and pointed out to the judge that the FAO enjoyed immunity.

The chief justice then spent a number of pages quoting experts to explain the legal position of international bodies such as the FAO and the reason for their particular kind of immunity. He also quoted cases from the supreme courts in Uganda and Tanzania illustrating how the courts of these countries implemented the immunity principles.

All the more embarrassing, surely, against the background of the property seized and the garnishee order granted by the court, were the quotations the CJ included from the 1991 convention between Zimbabwe and the FAO. These included a provision that such agencies should enjoy “immunity from every form of legal process” unless they expressly waived immunity. And that the premises of these agencies were “inviolable” and “immune from search … confiscation” and any other “form of interference” even by judicial action.

“By acceding to the Convention, Zimbabwe bestowed on the FAO absolute immunity from the date of accession by virtue of customary international law,” he said, before going on to quote other legal routes through which the FAO had been granted immunity by Zimbabwe.

Judgments in other jurisdictions had also explained that courts had consistently held that employment related issues lay at the heart of an international organisation’s immunity. As such organisations could only carry out their functions through their employees, “labour disputes have been held to lie at the core” of the immunity given such organisations from employee-related litigation in local courts.

In conclusion the court unanimously agreed that the earlier case “was wrongly decided” on the question of restrictive immunity applicable to international organisations. “The decision is overruled.”

Setting aside the high court judgment against the FAO, the judges add, “The decision in the (2004 case) … is hereby overruled for the reason that it is wrong at law.”

Carmel Rickard

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