The Supreme Court has ruled that international organisations have absolute immunity from every form of legal process and execution in Zimbabwe, overturning its own 2004 position in which it ruled that international organisations have limited immunity.
In a 2004 matter between the International Committee of the Red Cross (ICRC), the Supreme Court ruled that international organisations enjoy limited immunity just as sovereign states and can be sued in local courts for breach of contracts of employment.
However, in today’s landmark ruling, Chief Justice Luke Malaba sitting with Justice Paddington Garwe, Justice Anne Mary Gowora, Justice Antonia Guvava and Justice Susan Mavangira made a far reaching judgement, declaring all international organisations immune from legal processes.
This followed an appeal by the Ministry of Foreign Affairs against a High Court order which held that the Food and Agriculture Organisation (FAO), an international organisation, did not enjoy absolute immunity from every form of legal process and execution in Zimbabwe.
The background to the matter is that in 2004, FAO employed Michael Jenrich as an Emergency Programmes Officer and renewed the fixed term contract for six consecutive years.
In January 2015, FAO did not renew Jenrich’s contract following the abolition of the post of Emergency Programmes Officer, amid allegations of misconduct.
Jenrich challenged the termination of his contract on the basis that he had a legitimate expectation that the contract would be renewed, the abolishment of his post was unilateral and the termination was unlawful.
The matter was taken for conciliation and FAO took the view that it enjoyed absolute immunity from any legal processes instituted in the local courts.
FAO absconded the proceedings which followed at the Labour Court in 2014 and a default judgement was subsequently handed down on the 13th of February.
The Labour Court ordered FAO to reinstate Jenrich without loss of salary and benefits from the date of termination of his contract and if reinstatement was no longer tenable FAO was ordered to pay him $623 000.
FAO’s Legal Advisor from Rome, Italy wrote to the Registrar of the High Court that the international organisation had not waived its immunity rights under the treaties and the agreement and it was not going to participate in the proceedings before the local courts or respond to the allegations raised by Jenrich because this would be tantamount to interference with its independence and impartiality in the discharge of its affairs.
Jenrich then sought an order of the court for execution of FAO’s property to recover his damages.
The High Court ruled in favour of Jenrich with the effect of activating garnishee order against FAO.
The minister of Foreign Affairs then sought legal ways of protecting FAO’s property from execution and issued a ministerial statement in terms of section 14 of the Privileges and Immunities Act chapter 3:03, attesting that FAO’s property enjoyed absolute immunity.
However, the High Court took a different view and ruled that FAO did not enjoy absolute immunity and its property could therefore be executed through a garnishee order.
The Ministry of Foreign Affairs then approached the Supreme Court, appealing against the High Court decision and the 5-member bench unanimously overruled the decision of the High Court.
Handing down the ruling, Chief Justice Malaba said each specialised agency such as FAO has provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of private character.
The mechanisms were specifically created to enable the organisation to deal with disputes arising out of contracts to which it is a party to ensure that justice could be done to aggrieved parties who would otherwise be without remedies due to immunity enjoyed by the organisation.
Accordingly, the court upheld the appeal lodged by the Minister of Foreign Affairs with costs, and set aside the order of the High Court.
The court declared that FAO enjoys absolute immunity from any form of legal process and execution in Zimbabwe and finally overruled the decision in the case of ICRC versus Sibanda and another 2004 ZLR 27 SC extending the principle of restrictive immunity applicable to sovereign states to international organisations on the basis that it is wrong at law.