Our law should make it possible to recover from their personal capacity

For violations of human rights to stop in Zimbabwe, officials who violate people’s rights should be held to account, in their personal capacity. Tort law (the law of civil damages) in Zimbabwe should be strengthened. Punishment for human rights violations must make it possible to recover from the perpetrators’ account. Supposedly, these are criminal infractions, but stronger civil remedies could also complement our criminal code.

Last week the nation was plunged into uncertainty again when Joana Mamombe, a young opposition MP and two other MDC Youth Assembly members were “arrested” and then disappeared, apparently abducted by state agencies. Reports now indicate that they were tortured, sexually abused and then dumped in a rural community. The Zimbabwe Human Rights Commission has now confirmed this was a clear case of abduction followed by torture, inhuman and degrading treatment. This is not new.

It’s been five years since Itai Dzamara was forcibly disappeared undoubtedly by state agents. The same state agents remain on government payroll and refuse to tell the family what happened to him. It’s been decades since the murderers of Mabika and Chiminya, well known government intelligence officers were identified in court as having been the perpetrators of this heinous crimes. 

The state operators who brutalized and held Jestina Mukoko incommunicado have not been held to account. They knew that their actions were illegal, proceeded to violate her rights in an egregious way knowing that they would get away with it. In fact, damages won by Jestina are to be settled by taxpayer dollars. The officials who tortured Job Sikhala are known and continue to receive government protection and incomes. The officials who assaulted Nelson Chamisa in broad day light still roam our streets.

Army officers killed civilians in broad daylight in Harare on 01 August 2018. Chicanery was deployed during the Motlanthe commission; grotesque grandstanding and an attempt by the regime to wash itself of any blame. It was a spectacular failure. Findings clearly and correctly apportioned blame for the deaths to the army. Yet not only are the army officials who perpetrated these violations being protected, their commander then, Anselm Sanyatwe, is now an Ambassador. He was promoted and rewarded for these senseless acts.

In January 2019, armed state agents went on an assault and killing rampage in Harare’s western suburbs. Women and girls were raped, horrific acts. No-one has been arrested nor charged.

Many other opposition officials have been arrested on trumped up charges and detained on spurious charges for days, weeks and years even. They lost incomes, were exposed to harm and trauma at the instigation of senior government officials. Most are acquitted after going from office to office, prison to prison, court to court. They are acquitted because the state knows that they are innocent, but has used lawfare as a means to victimize opposition groups and civil society organizations.

Examples are too numerous to mention, but there might yet be a solution.  It is now time for parliament, courts and human rights activists to campaign for a Civil Damages/Torts Act that brings accountability to government officials who willingly violate human rights in an egregious way. Our tort law must make it possible to recover from the personal properties of officials who direct, promote, encourage or perpetrate human rights violations. This will bite. The current State Liabilities Act does not cut it. It is an unimaginative law that actually protects perpetrators in the guise of sovereign immunity.

If a few posh houses and cars of senior government officials are sold off to pay off survivors of the violations, this will stop. It cannot be that government coffers are used to pay off damages caused by errant individuals.

Senior government official can not be allowed to hide behind a dubious veil of sovereign immunity. The law should now make it possible for aggrieved citizens to recover from violators of these serious acts from their personal property and in their individual capacity. In this way, even if the government official changes parties, s/he remains liable individually for the acts that they perpetrated or directed.

Where a police officer directs the abduction of citizens, denies them access to their legal representative clearly violating Section 50 of the Constitution, such an officer cannot use his position in government as a defense. Neither should s/he be able to use ‘following orders’ as a defense.

Where malice is proven, it should be possible to recover damages severally from that police officer in his individual capacity, in addition to recovering from state coffers. It should be possible to recover and exhaust personal property first before tax payers’ funds are used to cover for people who, in a frolic of their own, directs or commands a violation of the law. 

Secondly, the law should make it possible to recover for punitive damages including pure economic loss. For example, when an official knows that he is making an illegal arrest, proceeds to make such an illegal arrest with malicious intention of wasting someone’s time and depriving them of their livelihoods and disrupting them of their freedom unjustly. Damages should include loss of income and potentially loss of profits connected to this disruption.

Our elites are known for their love of cushy homes and flashy cars. Some are running profitable side ventures and have accumulated billions in bank accounts. Making it possible for survivors of their egregious violence to pinch from their personal fiscus will give bite to laws that have so far been ignored because they were all bark.

Christopher Nyamandi, is an aid worker with experience from Afghanistan, Nigeria, Iraq, South Sudan and Sudan (Darfur). He writes in his personal capacity. Follow him at on Twitter at @chrisnyamandi