MALABA CJ:
This is an appeal against the judgment of the High Court holding that
the Food and Agriculture Organisation (“the FAO”), an
international organisation, did not enjoy absolute immunity from
every form of legal process and execution in Zimbabwe.
The
issue on appeal is whether or not the court a quo was correct in
holding, on the authority of the decision in International Committee
of the Red Cross v Sibanda and Anor 2004 (1) ZLR 27 (S) (hereinafter
referred to as “the ICRC case”), that an international
organisation such as the FAO enjoys restrictive immunity in the same
manner as sovereign states and can be sued in local courts for breach
of contracts of employment.
The
Court holds that the FAO, like any other international organisation,
enjoys functional immunity which protects it from any legal process
and execution under the local legal system. The Court holds further
that the decision of the Supreme Court in the ICRC case supra, to the
extent that it held that an international organisation does not enjoy
functional immunity, is wrong. It must not be followed.
The
reasons for the decision now follow.
Factual
background
In
2004 the first respondent was employed by the FAO as an Emergency
Programme Officer. The FAO renewed the fixed term contracts for six
consecutive years. In January 2012 the FAO did not renew his contract
of employment, following the abolition of the post of Emergency
Programme Officer. There had also been allegations that he had
committed acts of misconduct.
The
first respondent challenged the termination of employment, alleging
that -
a.
he had a legitimate expectation that the contract would be renewed;
b.
the allegations of misconduct against him were false;
c.
the abolishment of his post was unilateral; and
d.
the termination without a severance package was unilateral and
unlawful.
In
November 2012 the dispute was taken for conciliation. The parties
failed to agree and, as a result, the conciliator issued a
certificate of no settlement. The first respondent sued the FAO in
the local courts. He made an application to the Labour Court,
claiming an order for payment of terminal benefits, and damages for
loss of future earnings and for emotional and psychological stress
resulting from untimely loss of employment. The total sum claimed
from the FAO was USD623,400.00. The first respondent also sought an
order to the effect that all references to the misconduct he was
alleged to have committed be expunged from his personal file held by
the FAO.
The
FAO took the view that it enjoyed absolute immunity from any legal
process instituted in the local courts. It did not respond to the
application or attend the proceedings before the Labour Court. The
court did not, mero motu, inquire into the question whether it had
jurisdiction to hear and determine a labour matter between an
international organisation, such as the FAO, and its erstwhile
employee. Consequently, the Labour Court issued a default judgment on
13 February 2014. The Labour Court ordered the FAO to reinstate the
first respondent in employment without loss of salary and benefits
from the date of termination of employment. If reinstatement was no
longer tenable, the FAO was ordered to pay damages in lieu of
reinstatement amounting to USD623 400.00. The court also ordered that
all references to the misconduct the first respondent was alleged to
have committed be expunged from his personal file held by the FAO.
On
28 April 2014 the first respondent filed an application at the High
Court for the registration of the order granted by the Labour Court
for the purposes of execution. On 23 June 2014, whilst the
application for registration of the order was pending hearing by the
High Court, the FAO's legal adviser addressed a letter from Rome,
Italy, the headquarters of the organisation, to the Registrar of the
High Court. The letter advised that the FAO enjoyed absolute immunity
from the jurisdiction of Zimbabwean courts. He explained that the
absolute immunity enjoyed by the FAO was in terms of a number of
international treaties to which Zimbabwe is a party. He made
reference to the Constitution of the FAO accepted by Zimbabwe in
1981, the Convention on Privileges and Immunities of Specialised
Agencies of the United Nations (1991) (“the Convention”) acceded
to by Zimbabwe in 1991, and the FAO Headquarters Agreement
establishing the Sub-Regional Office for Southern and Eastern Africa
(“the Headquarters Agreement”) signed between the FAO and
Zimbabwe in 1995.
The
FAO's legal adviser indicated that the FAO had not waived its
immunity under the treaties and the agreement. As a result, it was
not going to participate in proceedings before local courts or
respond to the allegations made by the first respondent. He explained
that the basis of the FAO's immunity under the treaties and the
agreement is that, as a big international organisation with a
membership of 194 member states, it must be able to function
independently and impartially without being subjected to the legal
system of each country. If that were to be the case, the FAO would
not effectively discharge its mandate for the benefit of all its
members.
On
28 May 2014 the High Court granted the order for the registration of
the Labour Court's order for the purposes of execution. Pursuant to
the registration of the order, the first respondent caused two writs
of execution to be issued against the FAO's movable and immovable
property. The third respondent duly executed the first writ against
the movables, but stated in the return of service that the attached
property did not satisfy the debt. He proceeded to attempt to execute
the second writ against the FAO's bank account held with the second
respondent. The Head Legal Adviser for the second respondent refused
to have the funds transferred without a garnishee order.
Meanwhile
the appellant sought legal ways to protect the FAO's property from
execution. He issued a Ministerial Certificate in terms of s 14 of
the Privileges and Immunities Act [Chapter 3:03] (“the Act”), on
9 June 2014, attesting and certifying that the property of the FAO
enjoyed absolute immunity from any local legal process. The section
provides:
“If
in any proceedings any question arises whether any person is entitled
to any privilege or immunity in terms of customary international law
and usage, this Act or any other enactment, a certificate issued by
or under the hand of the Minister stating any fact relating to that
question shall be conclusive evidence of that fact.”
On
12 June 2014, the appellant wrote to the third respondent, requesting
him to stop execution of the writ. The third respondent responded to
the letter on 16 June 2014, advising that, in the absence of a court
order instructing him to stop execution, he was under an obligation
to execute the writ.
The
appellant made an application to the High Court for a provisional
order interdicting execution of the writ against the FAO's bank
account pending determination of the question whether or not the FAO
enjoyed absolute immunity from execution in Zimbabwe. The
application was granted on 27 June 2014.
Having
failed to execute the writ against the FAO's bank account due to
the absence of a garnishee order, the first respondent sought to
circumvent the effect of the provisional order of 27 June 2014. On 07
November 2014 he filed with the Registrar of the High Court a chamber
application for a garnishee order against the FAO, under case No. HC
9895/14. On 28 November 2014 the appellant filed a chamber
application for an order joining him as a party to the application in
case No. HC9895/14. The appellant sought to be joined in the
application for the garnishee order on the basis that he had a legal
interest as the Minister in charge of the administration of matters
relating to foreign affairs, including questions of immunity from
legal process and execution granted to international organisations
and sovereign states residing and operating in the country.
Notwithstanding
the fact that the appellant's application to be joined as a party
to the garnishee application was still pending hearing and
determination, the High Court granted the garnishee order on 31
December 2014. The order read as follows:
"1.
The application for a garnishee order is hereby granted.
2.
The second respondent is hereby ordered to garnish the first
respondent's bank account No. 8700223009400 held at Africa Unity
Square Branch, Cnr Nelson Mandela Avenue/Sam Nujoma Street, Harare
and/or other accounts which may be held with any other of the second
respondent's branches in Zimbabwe in the amount of US$623, 400.00
(six hundred and twenty-three thousand, four hundred United States
Dollars) together with the Sheriff of the High Court's costs in the
amount of US$31,310.00 (thirty-one thousand, three hundred and ten
dollars) and to forthwith transfer the moneys to the designated bank
account of the Sheriff of the High Court.
3.
The first respondent to pay costs of suit.” (My emphasis.)
The
granting of the garnishee order prompted the filing of an urgent
chamber application by the appellant in the court a quo on 13 January
2015. The appellant sought an interim order directing that, pending
the hearing and determination of the application in case No.
HC5213/14, the third respondent be interdicted from enforcing the
garnishee order.
On
23 January 2015 the President of Zimbabwe published a notice in the
Government Gazette, conferring on the FAO absolute immunity from
suit, legal process and execution.
Section
7 of the Act provides that:
“(1)
The President may, by notice in the Gazette, confer upon any
international or regional organisation or agency (hereinafter called
the organisation) specified in such notice all or any of the
privileges and immunities set out in Part I of the Third Schedule.”
Part
I of the Third Schedule to the Act lists the privileges and
immunities which may be conferred on an international organisation.
The list includes:
“1.
Immunity from suit and legal process.”
The
proceedings relating to the questions whether the appellant should be
joined as a party in the application for the order of execution
against the FAO's property and whether the FAO enjoyed absolute
immunity from suit, legal process and execution were nonetheless
entertained by the court a quo.
The
appellant argued that both the Convention and the Headquarters
Agreement granted the FAO absolute immunity. That gave the FAO the
right not to be sued by anyone, including erstwhile employees, in the
courts in Zimbabwe.
The
first respondent raised two points in limine.
Firstly,
he argued that the appellant had no locus standi to represent the
FAO. He said that the FAO should have appeared in court on its own to
establish its immunity and oust the court's jurisdiction. The point
was dismissed by the court a quo on the basis that the FAO did not
need to participate in the proceedings to enforce its immunity. The
court could mero motu have raised the issue of immunity. The court
also found that the appellant had locus standi because the issue of
the FAO's immunity involved the exercise of the power of the State
to grant immunity to foreign Governments and international
organisations.
Secondly,
the first respondent argued that the agreement between Zimbabwe and
the FAO was not binding on Zimbabwe, as it had not yet been
domesticated. The point was also dismissed, on the basis that the
Headquarters Agreement became binding on Zimbabwe on 23 July 1996.
The
first respondent's argument on the merits was that the FAO, as an
international organisation, enjoyed restrictive immunity. The
proposition advanced was that the courts of host nations have
jurisdiction to hear and determine disputes arising from commercial
activities (acts jure gestionis) in which the organisation would be
involved. The case of Barker McCormac (Pvt) Ltd v Government of Kenya
1983 (2) ZLR 72 (SC) was invoked as the authority for the
proposition. At p 79G 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.”
The
court a quo decided that the FAO enjoyed restrictive immunity, which
meant that the labour dispute between it and its erstwhile employee
could be heard and determined by the local courts. In making the
finding the Judge said that he was bound by the decision of the
Supreme Court in the ICRC case supra.
Whilst
writing for a three-member Bench of the Supreme Court in the ICRC
case supra, SANDURA JA at 31H-32A said:
“In
my view, 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 applies
to it. 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.”
The
scope of the doctrine of sovereign immunity had been set out at 31D-E
in these words:
“…
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, he 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
court a quo found that the facts in the ICRC case supra were similar
to those of the case before it. It said:
“The
ICRC case supra involved a labour dispute between an international
organisation and its employees. This case also involves a labour
dispute between an international organisation and its employee. It is
therefore on all fours with the ICRC case supra. The Supreme Court
held that an international organisation only enjoys restrictive
immunity, and therefore does not have immunity in cases of a labour
nature such as the one before me. The Supreme Court's decision in
[the] ICRC case supra, is therefore binding on this Court and must be
followed.”
The
court a quo dismissed the appellant's application for a provisional
order, on the reasoning that it was based on an erroneous view that
the FAO enjoyed absolute immunity from legal process and execution.
The effect of the ruling was that the first respondent could execute
the garnishee order.
The
appellant was aggrieved by the court a quo's decision. He appealed
to the Supreme Court on the following grounds:
“Grounds
of appeal
1.
The court a quo erred in law in failing to find that under customary
international law the FAO enjoys absolute immunity from every form of
legal process and also from execution within the territory of the
Republic of Zimbabwe, in terms of the two agreements establishing its
immunity.
2. The court a quo erred in law in failing to find that immunity from
legal suit and process is distinguishable from execution.
3.
The court a quo erred in law in failing to find that the granting of
immunities to the FAO on 25 January 2015 in terms of the provisions
of the Privileges and Immunities Act [Chapter 3:03] intervened to
prevent any form of execution taking place against the property and
assets of the FAO.”
The
appellant's argument
In
motivating the appellant's grounds of appeal, Mr Uriri argued that,
unlike sovereign States which enjoy restrictive immunity in terms of
customary international law, the FAO enjoys functional immunity as an
international organisation. He argued that functional immunity is
necessary if an international organisation such as the FAO is to
achieve its mandate. Functional immunity is derived from the
international instruments in terms of which such organisations are
established. The terms on the nature and scope of the immunity to be
enjoyed by the international organisations are invariably adopted and
reproduced in the agreements between the international organisations
and the host nations.
Mr
Uriri argued that the agreements governing the immunity enjoyed by
the FAO in Zimbabwe are the Convention, acceded to by Zimbabwe in
1991, and the 1995 Headquarters Agreement, approved by
Parliament
in 1996.
In
addition, Mr Uriri contended that the ICRC case supra, on which the
court a quo relied to reach its decision, is wrong to the extent that
it extended the immunity applicable to sovereign States to
international organisations. The rationale for the decision was that
the Legislature could not have intended to bestow greater immunity
on international organisations than that enjoyed by sovereign States.
He submitted that the justification for the decision overlooked the
purpose for which absolute immunity is granted to international
organisations such as the FAO.
The
first respondent's argument
Mr
Drury, for the first respondent, argued that the issue for
determination was whether the international treaties and the
agreement under which the FAO claimed immunity from suit, legal
process and execution under the local legal system are binding on
Zimbabwe. He said the relevant law is s 327 of the Constitution,
which in relevant part provides:
“327
International conventions, treaties and agreements
(2)
An international treaty which has been concluded or executed by the
President or under the President's authority –
(a) does not bind Zimbabwe until it has been approved by Parliament;
and
(b)
does not form part of the law of Zimbabwe unless it has been
incorporated into the law through an Act of Parliament.…
(6)
When interpreting legislation, every court and tribunal must adopt
any reasonable interpretation of the legislation that is consistent
with any international convention, treaty or agreement which is
binding on Zimbabwe, in preference to an alternative interpretation
inconsistent with that convention, treaty or agreement.”
He
argued that the 1995 Headquarters Agreement between the FAO and
Zimbabwe was not domesticated through the enactment of an Act of
Parliament, as required by s327 of the Constitution. He contended
that approval of the agreement by Parliament was not enough. The
agreement was therefore not binding and enforceable on the first
respondent because an agreement or treaty that has not been given the
force of law cannot bind the parties.
Mr
Drury further argued that the FAO could not have been granted
immunity before 25 January 2015, when the Government published a
Gazette conferring on it immunity in terms of s 7 of the Act.
Mr
Drury also argued that the doctrine of restrictive immunity
applicable to foreign sovereign states was correctly extended to
international organisations by the court a quo. Consequently, the
dispute which gave rise to the execution of the FAO's property was
a labour dispute which does not fall within the category of acts jure
imperii. The FAO was therefore not immune from the legal processes
instituted against it.
Issue
for determination
The
issue for determination is whether international organisations such
as the FAO enjoy restrictive immunity or functional immunity.
Before
addressing the issue, it is necessary to comment on the effect of the
decision by the FAO not to take part in the court proceedings to
raise the immunity it claims as a shield against the jurisdiction of
the local courts.
It
is a recognised principle of procedural law that matters of
jurisdiction must be raised and determined expeditiously as
preliminary issues at the commencement of court proceedings. Local
courts are under the obligation to respect this principle, which is
part of international law of financial remedies.
Had
the FAO participated in the proceedings, the issue of its immunity
would probably have been resolved by the lower courts. Despite such
convenience, the FAO was not obliged to take part in the proceedings.
The courts that were seized with the matter ought to have raised the
issue of the FAO's immunity mero motu. In the Barker McCormac (Pvt)
Ltd case supra at 92 G-H GEORGES JA (as he then was) said:
“It
can be argued that a municipal court has jurisdiction over a claim by
reason of the nature of the claim and that such jurisdiction is
barred only when the defendant raises the issue of sovereign
immunity. On the other hand, it can be argued that the jurisdiction
is barred once it appears on the record that the defendant can raise
the issue of sovereign immunity and that the court should not proceed
unless satisfied that the defendant consents or that the claim does
not fall within the category of claims in regard to which sovereign
immunity can be raised.”
It
is desirable for an international organisation that enjoys immunity
to participate in proceedings instituted against it, if only to draw
the attention of the court to the bar against its jurisdiction
arising from the immunity enjoyed. That would not only show respect
for the local courts, but also prevent at an early stage the
consequences of a situation where the court is not mindful of acting
mero motu to decide the question of jurisdiction. Unnecessary and
costly proceedings would be averted if the plea against jurisdiction
is upheld at the beginning of court proceedings.
In
the Barker McCormac (Pvt) Ltd case supra, the Government of Kenya did
not participate and was not criticised for that conduct. The court
raised the issue of its immunity mero motu and decided it.
Jurisdiction is everything. Without it, a court has no power to take
one more step. Where a court acts without jurisdiction, its decision
amounts to nothing. Jurisdiction must be acquired before judgment is
given. It is for the court to satisfy itself that it has the
authority to decide the matter litigated before it.
Inasmuch
as the FAO was not obliged to participate, the appellant should have
intervened earlier, to inform the courts that it had accorded the FAO
absolute immunity against legal process and execution in terms of the
Convention and the Headquarters Agreement. This would have ensured
that the issue of the FAO's immunity was dealt with in limine litis
as required by law.
According
to the Advisory Opinion by the International Court of Justice in the
case of Curamaswamy ICJ Reports, 1999, para 63 at p 88, the court
said:
“By
necessary implication, questions of immunity are therefore
preliminary issues which must be expeditiously decided in limine
litis. This is a generally recognised principle of procedural law,
and Malaysia was under an obligation to respect it. The Malaysia
courts did not rule in limine litis on the immunity of the Special
Rapporteur … . As indicated above, the conduct of an organ of a
State - even an organ independent of the executive power - must be
regarded as an act of the State. Consequently, Malaysia did not act
in accordance with its obligations under international law.”
The
FAO ought to have informed the State of the processes which had been
instituted by its former employee in the Labour Court. In turn, the
State, through the appellant, would have joined the Labour Court
proceedings and brought to the attention of the court the fact that
the FAO enjoyed immunity, to ensure that the court determined initio
litis the nature and scope of the immunity enjoyed by the FAO.
Whether
international organisations enjoy sovereign immunity or functional
immunity
It
is a principle of public international law that international
organisations enjoy functional immunity from suit, process and
execution issued under the laws of the host countries where they
operate. Originally, the doctrine of sovereign immunity under public
international law guaranteed absolute immunity to foreign States and
their property against the jurisdiction of the courts of a host
nation. However, due to the fact that States began to involve
themselves in many private commercial transactions, sovereign
immunity became restricted to acts of the sovereign that were
properly sovereign. This was done to prevent a situation where a
State would rely on sovereign immunity to avoid commercial
obligations to the host nation, its citizens or companies.
The
evolution of the doctrine of sovereign immunity from absolute to
restrictive immunity is explained by C.F. Forsyth in Private
International Law at p 180 as follows:
“Foreign
sovereigns and diplomatic representatives are accorded a special
status in terms of public international law and that status serves to
exclude the jurisdiction of local courts. At common law it was clear
that, in principle, foreign sovereigns and their property were immune
from suit in South African courts. This flowed from the public
international law principle of the equality of sovereign states: par
in parem non habet imperium. As sovereign states in the second half
of the twentieth century began to involve themselves in many
commercial activities pressure grew to restrict this immunity to the
acts of the sovereign that were properly sovereign (acts iure
imperii) but not to non-sovereign or commercial activities (acts iure
gestionis). In the late 1970s the southern African courts followed
the lead of English courts and began to recognise this distinction
and to deny states sovereign immunity in commercial cases. States
could no longer avoid their ordinary commercial obligations by
relying on the doctrine of sovereign immunity.”
In
International Law, A South African Perspective, J. Dugard at p 241
writes to the effect that the doctrine of restricted immunity in
respect of the commercial activities of sovereign States has probably
acquired the status of customary international law. The learned
author says:
“This
appears from the adoption by the General Assembly of the United
Nations in 2004 of a United Nations Convention on Jurisdictional
Immunities of States and their Property prepared by the International
Law Commission. It approves restricted immunity in respect of
commercial activities and asserts in its preamble 'that the
jurisdictional immunities of States and their property are generally
accepted as a principle of customary international law'.”
The
doctrine of restrictive sovereign immunity has become accepted
worldwide as a principle of customary international law. In the
Barker McCormac (Pvt) Ltd case supra the court accepted the doctrine
as being part of our law. In so holding, the court recognised the
incorporation of this principle of customary international law into
municipal law. Where therefore any sovereign State is sued in our
courts for public governmental acts, it can successfully plead
immunity. However, where a sovereign State is sued for private
commercial activities it cannot successfully plead or raise the
defence of sovereign immunity to avoid the fulfilment of its
obligations.
International
organisations also enjoy immunity from suit, process and execution
under the laws of their host countries. The immunity is, however,
different in scope from that enjoyed by foreign sovereign States.
According to Cedric Ryngaert, an Assistant Professor of International
Law, Leuven University; Institute for International Law, in Working
Paper No. 143 - December 2009 titled 'The Immunity of International
Organisations before Domestic Courts', the immunity enjoyed by
international organisations in terms of the customary international
law is generally absolute immunity covering their functions or
limited to their functions.
In
the case of Spaans v Iran-US Claims Tribunal 94 ILR 321, a dispute
arose between the Tribunal and an interpreter in its employment at a
point before negotiations for a host State Agreement between the
Tribunal and the Netherlands had been concluded. The Dutch Supreme
Court found that an international organisation enjoyed immunity from
the jurisdiction of the courts of its host State for acts within the
scope of the performance of its tasks by virtue of customary
international law.
The
grounds for granting immunity from suit, process and execution under
municipal law to foreign sovereign States have always been different
from those on the basis of which immunity has been granted to
international organisations. Unlike sovereign States whose immunity
arises from the principle of equality with the host nation,
international organisations enjoy immunity for the crucial purpose of
carrying out their functions. The restriction that has been put on
sovereign immunity cannot be extended to the immunity of
international organisations, because the purpose of the immunity they
enjoy has always been defined in terms of the nature and scope of
their functions as described in the instruments by which they are
established.
The
functional immunity of international organisations thus remains
absolute.
In
Eastern African Development Bank v Blueline Enterprises Limited, 2011
TZCA 1, the Tanzanian Court of Appeal explained in detail the reasons
why the immunity applicable to international organisations is
different from the restrictive immunity from local courts'
jurisdiction applied to foreign sovereign States. The court said:
“All
in all, Prof. Fimbo's argument, in our considered opinion, can only
hold water when viewed in relation to state immunity from
jurisdiction. It cannot be correct when it comes to international
organisations which have been granted immunity from legal processes
under their constitutive instruments. This is all because these are
two 'different legal institutions distinguishable with respect to
the fundamental grounds on which they are built and in regard to the
extent to which the immunity is recognised.'
See,
for instance, Felice Moreenstern, in his 'Legal Problems of
International Organisations' pp 5-10 and 'Immunity of
International Organisations and Alternative Remedies against the
United Nations', by Dr Reinsich, at a Seminar on State Immunity
held at the University of Vienna in 2006.
There
is no gainsaying that the traditional grounds for State immunity are
not always unqualifiedly valid for granting immunity to international
organisations. Sovereign immunity has always been premised on the now
historic view of par in parem non habet imperium or par in parem non
habet jurisdictionem, that is 'an equal power has no power over an
equal'. The same cannot be said of international organisations.
This is because they are creatures of sovereign States themselves. It
is these States which determine their legal status, capacities,
privileges and immunities as shown at the outset of this judgment…
.”
Explaining
the same concept, the Supreme Court of Uganda, in Concorp
International Ltd v East and Southern Africa Trade and Development
Bank, [2013] UGSC 18, also highlighted the rationale behind the
difference between the absolute immunity enjoyed by international
organisations and the restrictive immunity of sovereign States. It
held that:
“Sovereign
States derive their immunity from the principle of reciprocity. Under
this principle, the immunity is restricted to jure imperii (sovereign
acts) but does not extend to jure gestionis (non-sovereign acts).
On
the other hand, the immunity of international organisations, like the
respondent, is based on the principle of functionality. In other
words, the immunity encompasses all acts needed for the execution of
the functions and activities with which the relevant international
organisation is entrusted. Concrete determination of the scope of the
immunity is based on the respective treaties or charters establishing
each international organisation.”
The
origins of sovereign immunity are clearly different from those of
functional immunity. A State has immunity in another State for the
simple reason that it is also a State. An international organisation,
on the other hand, enjoys immunity in a host State in respect of acts
related to its functions to carry out its mandate without limitations
by the laws of different host States where it operates. Complying
with the laws of all the Member States where the international
organisation operates to discharge an otherwise universal mandate
would be impossible.
The
functional immunity of international organisations is read from the
treaties and agreements signed by the host nation and the
organisation. Brownlie's Principles on Public International Law 8
Ed, p 171, articulates this point as follows:
“The
privileges and immunities of international organisations derive from
multiple sources. In the first place the constituent instrument of
the organisation will ordinarily contain at least a general provision
stating that the organisation and its personnel are to be accorded
immunity …. A further source of privileges and immunities are
separate multilateral agreements. The Convention on the Privileges
and Immunities of the United Nations is the example most frequently
identified as such, having inspired other similar instruments,
notably the Convention on the Privileges and Immunities of
Specialised Agencies. These may be further cemented by headquarters
agreements between the organisation and the host State ….”
Article
III of the Convention, acceded to by Zimbabwe in 1991, contains the
following provisions:
“SECTION
4
The
specialised agencies, their property and assets, wherever located and
by whomsoever held, shall enjoy immunity from every form of legal
process except in so far as in any particular case they have
expressly waived their immunity. It is, however, understood that no
waiver of immunity shall extend to any measure of execution.
SECTION
5
The
premises of the specialised agencies shall be inviolable. The
property and the assets of the specialised agencies, wherever located
and by whomsoever held, shall be immune from search, requisition,
confiscation, expropriation and any other form of interference,
whether by executive, administrative, judicial or legislative
action.”
The
provisions unequivocally guarantee absolute immunity to the FAO, its
property and assets from any form of legal process and execution. By
acceding to the Convention, Zimbabwe bestowed on the FAO absolute
immunity from the date of accession by virtue of customary
international law.
Further
to the Convention, the FAO signed the Headquarters Agreement with
Zimbabwe in 1995. Article VIII of that Agreement provides:
“Section
12
The
FAO, its property and assets, wherever located and by whomsoever
held, shall enjoy immunity from every form of legal process except
insofar as in any particular case the Director General shall have
expressly waived its immunity. It is however, understood that no
waiver of immunity shall extend to any measure of execution.
Section
13
The
property and assets of the FAO, wherever located and by whomsoever
held, shall be immune from search, requisition, confiscation,
expropriation and any other form of interference, whether by
executive, administrative, judicial or legislative action.”
The
agreement also guaranteed immunity to the FAO, its property and
assets. By signing it, Zimbabwe conferred such immunity upon the FAO.
It
is the latter agreement which the first respondent argues was not
domesticated and is therefore
not enforceable. This argument by the first respondent was misplaced.
The judgment of
the court a quo was not based on the determination of the question
whether the Headquarters Agreement
was domesticated or not. The judgment determined the question whether
sovereign immunity
applied to international organisations such as the FAO.
The
Headquarters Agreement was approved by Parliament in 1996. The former
Constitution of Zimbabwe in s 111B required all international
treaties, conventions and agreements entered into on behalf of
Zimbabwe to be approved by Parliament. Once the agreement was
approved by Parliament, it became binding on Zimbabwe.
The
argument advanced on behalf of the first respondent based on s 327
of the Constitution is misplaced because the section came into effect
in August 2013.
Functional
immunity is a principle of customary international law. Section 326
of the Constitution incorporates customary international law into
our law. It provides that:
“(1)
Customary international law is part of the law of Zimbabwe, unless it
is inconsistent with this Constitution or an Act of Parliament.
(2)
When interpreting legislation, every court and tribunal must adopt
any reasonable interpretation of the legislation that is consistent
with customary international law applicable in Zimbabwe, in
preference to an alternative interpretation inconsistent with that
law.”
The
provision is clear.
Customary
international law need not be incorporated into our law by or under
an Act of Parliament. It is part of our law by virtue of it being
customary international law. The only exception to the applicability
of customary international law is where its application is
inconsistent with the provisions of the Constitution of Zimbabwe or
an Act of Parliament.
In
casu, the first respondent did not bring to the attention of the
court any provision of the Constitution or Act of Parliament which is
inconsistent with the functional immunity granted to the FAO in terms
of the Headquarters Agreement.
For
the reason that international organisations can only carry out their
functions through employees, labour disputes have been held to lie
at the core of an international organisation's immunity from suits
in local courts by former or current employees in actions arising
from employment relationships.
In
Cynthia Brzak and Nasr Ishak v The United Nations, Kofi Annan, Wendy
Chamberline, Ruud Lubbers, 551 F. Supp. 2d 313 (2008), the court
stated that:
“The
courts have consistently held that employment related issues lie at
the core of an international organisation's immunity. For example,
in Mendaro v World Bank, 717 F.2d 610 (D.C.Cir.1983), the D.C.
Circuit held that, notwithstanding a broad waiver in the World Bank's
founding treaty, IOIA immunity protected the Bank from a Title VII
suit by a former employee who alleged that she had been the victim of
sexual discrimination and physical and verbal sexual harassment by
her coworkers. The Court excluded employment suits from the waiver,
observing that compliance with the employment policies of over 100
Member States would be 'nearly impossible', id. at 618-19, and
noting that 'one of the most important protections granted to
international organisations is immunity from suits by employees of
the organisation in actions arising out of the employment
relationship'. Id. at 615. See also Broadbent v Org. of Am. States,
628 F.2d 27, 35 (D.C.Cir.1980) (holding that [the] international
organisation's employment of plaintiff could not constitute
'commercial activity' under [the] restrictive theory of
immunity); Morgan v Int'l Bank for Reconstr. and Dev., 752 F.Supp.
492, 493 (D.D.C.1990) (holding that international organisations are
immune under IOIA and international law from suits 'arising out
[of] their internal operations').
For
similar reasons, the courts have consistently found that functional
immunity applies to employment-related suits against officials of
international organisations. See, e.g., De Luca, 841 F.Supp. at 536
(holding officials immune against claims that they, among other
things, initiated a retaliatory tax audit and forged plaintiff's
pay statement); Broadbent, 628 F.2d at 34 ('International officials
should be as free as possible, within the mandate granted by the
member states, to perform their duties free from the peculiarities of
national politics.'); D'Cruz v Annan, 2005 WL 3527153 (S.D.N.Y.
December 22, 2005) (holding that current and former U.N. officials
are immune under the General Convention and IOIA from employment
discrimination and retaliation claims).”
The
FAO has its own internal mechanisms for dealing with employment
related disputes. Article IX of the Convention provides that:
“Section
31
Each specialised agency shall make provision for appropriate modes of
settlement of:
Disputes arising out of contracts or other disputes of private
character to which the specialised agency is a party.”
The
reason why these mechanisms were created was 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 the immunity
enjoyed by the organisation. The dispute between the FAO and the
first respondent arising from the termination of employment should
have been dealt with according to the mechanisms established by the
organisation in terms of the Convention and its Constitution.
Disposition
The
ICRC case supra was wrongly decided to the extent that it held that
the principle of restrictive immunity is applicable to international
organisations. The decision is overruled.
The
judgment of the court a quo is wrong because it relied on the ICRC
case supra.
Accordingly,
the following order is made -
1.
The appeal is allowed with costs.
2.
The judgment of the court a quo is set aside and substituted with the
following:
“a.
The application is granted with costs.
b.
It is hereby declared that the FAO enjoys absolute immunity from
every form of legal process and execution in Zimbabwe.
c.
The garnishee order issued by this court on 31 December 2014 be and
is hereby declared invalid and set aside.
d.
Consequently, the writs of execution issued against the FAO's
property be and are hereby declared invalid and set aside.”
3.
The decision in the case of International Committee of the Red Cross
v Sibanda & Anor 2004 (1) ZLR 27 (SC), extending the principle of
restrictive immunity applicable to sovereign States to international
organisations, is hereby overruled for the reason that it is wrong at
law.
GARWE JA: I agree
GOWORA JA: I agree
GUVAVA JA: I agree
MAVANGIRA JA: I
agree
Civil Division of
the Attorney-General's Office, appellant's legal practitioners
Honey and
Blackenberg, first respondent's legal practitioners
