Immunity is a freedom from a legal duty, prosecution or penalty granted by government authority or statute in a state. In Zimbabwe, the question of which organizations enjoy immunity is governed by the Privileges and Immunities Act [Chapter 3:03].
Section 7(1) of the Act, which deals with the privileges and immunities of specified international organisations, reads as follows, in the relevant part:
“The President may, by notice in the Gazette, confer upon any international or regional organization or agency specified in such notice all or any of the privileges and immunities set out in Part I of the Third Schedule.”
The privileges and immunities set out in the said Part I of the Third Schedule include immunity from suit and legal process. As a first step once an organization or agency is specified in the notice by the President, prima facie it enjoys immunity but however the issue does not end there. The Supreme Court in the case of International Committee of the Red Cross (ICRC) v Sibanda and Anor SC 54/17 held that the mere specification of an organization in the notice does not shed any light on whether or not the immunity covers all suits and legal processes. It held further that in order to answer that question, it is necessary to examine the nature and extent of the immunity accorded a foreign sovereign in terms of international law.
On the international law arena, the issue concerning the immunity from suit and legal process accorded a foreign sovereign has been the subject of judicial pronouncements for many years. Thus, in Rahimtoola v H.E.H. The Nizam of Hyderabad & Ors [1957] 3 All ER 441 (HL) LORD DENNING said the following at 461 E-G:
“It is more in keeping with the dignity of a foreign sovereign to submit himself to the rule of law than to claim to be above it; and his independence is better ensured by accepting the decisions of courts of acknowledged impartiality than by arbitrarily rejecting their jurisdiction. In all civilised countries there has been a progressive tendency towards making the sovereign liable to be sued in his own courts notably in England by the Crown Proceedings Act, 1947. Foreign sovereigns should not be in any different position. There is no reason why we should grant to the departments or agencies of foreign governments an immunity which we do not grant our own, provided always that the matter in dispute arises within the jurisdiction of our courts and is properly cognizable by them.”
The above pronouncements by both LORD DENNING and many like judgments received the approval of the Supreme Court in Barker McCormac (Pvt) Ltd v Government of Kenya 1983 (2) ZLR 72 (S) at 79 G-H, 1983 (4) SA 817 (ZSC) at 821 F-G, where GEORGES JA (as he then was) said:
“I am completely satisfied therefore that the doctrine of sovereign immunity generally applied in international law is that of restrictive immunity. There are no decisions of courts of this country and no legislation inconsistent with that doctrine and it should be incorporated as part of our law.”
It is, therefore, clear that the doctrine of sovereign immunity applicable in this country is that of restrictive immunity as opposed to absolute immunity. In other words, a foreign sovereign would enjoy immunity from suit and legal process where the relevant act which forms the basis of the claim is an act jure imperii, i.e. a sovereign or public act. On the other hand, it would not enjoy such immunity if the act which forms the basis of the claim is an act jure gestionis, i.e. an act of a private law character such as a private citizen might have entered into.
The position in South Africa is the same. It was stated by CORBETT CJ in The Shipping Corporation of India Ltd v Evdomon Corporation & Anor 1994 (1) SA 550 (A) at 565 A-B as follows:
“The legal position in this country regarding the doctrine of sovereign immunity was carefully and comprehensively surveyed by the Full Bench of the Transvaal Provincial Division in the case of Inter-Science Research and Development Services (Pty) Ltd v Republica Popular de Mocambique (1980 (2) SA 111 supra). As this survey shows, South African Courts initially applied the doctrine of absolute immunity, but in the Inter-Science case the Court decided to follow the world-wide trend and to apply the restrictive doctrine.”
In line with the restrictive approach to immunity as opposed to absolute immunity, in ICRC v Sibanda (supra), the Supreme Court of Zimbabwe held that an international organisation, such as the ICRC, enjoys immunity from suit and legal process subject to the provisions of international law and the doctrine of restrictive immunity applied to it. It held further that it could hardly have been the intention of the Legislature to grant absolute immunity from suit and legal process to such an organisation when a foreign sovereign did not enjoy such immunity. Consequently it held that ICRC did not enjoy immunity from being sued out of an act of a contract of employment which, clearly, is an act of a private law character such as a private citizen might have entered into.
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