In recent months, Zimbabwe has attracted global attention due to increased reports of human rights violations. These increased abuses have seen the hashtag #ZimbabweanLivesMatter trending on social media.
On 30 July media reports indicated that Tawanda Muchehiwa, a nephew to popular investigative journalist Mduduzi Mathuthu was allegedly abducted by State security agents in what is suspected to have been an effort to draw out and get more information about his uncle Mduduzi. Muchehiwa was found 4 days later with evidence of serious assault and torture. He has since published the story of what happened to him which includes gory details of torture, cruel inhumane degrading treatment such as continued assault over days, being forced to drink his own urine, and much more.
Around 27 August footage emerged online from CCTV cameras near the spot where Muchehiwa was allegedly abducted showing how the abduction occurred. Since then, ZimLive has reported that the number plates on one of the vehicles used by the abductees shows that it was a vehicle hired out by Impala Car Rental, a vehicle rental company operating in Zimbabwe. Since then there has been calls on social media for Impala Car Rental to divulge the name(s) of the person(s) who hired the vehicle as well as their CCTV footage of the said person(s). Impala Car Rental has since issued a statement in which it expresses its non-involvement in the alleged violations and commits to cooperate with law enforcement.
In light of these recent events, this article seeks to analyse the human rights obligations that a company such as Impala has, the potential liability it may have and the potential recourse a victim may have.
Corporate Accountability for Human Rights Obligations in Zimbabwe
Section 44 of the Constitution of Zimbabwe Amendment (No.20) provides that all persons including juristic persons have a duty to respect, protect, promote and fulfil the rights and freedoms set out in the Constitution. These rights include the right to dignity (section 51), right to personal security (section 52) and the freedom from torture, cruel, inhumane and degrading treatment (section 53), which rights where allegedly violated in the case of Muchehiwa. It is worth noting that the violations alleged by Muchehiwa are ‘gross human rights violations’ and as such have greater protections than other rights, for example the right to dignity and the freedom from torture inhumane and degrading treatment are – in terms of section 86(3) of the Constitution – rights that are absolute and cannot be limited by any law, person, institution or any circumstance.
In contrast, the right to privacy which shields whoever rented the alleged ‘abduction car’ from Impala, provided for under section 57 of the Constitution of Zimbabwe is not an absolute right. This means, according to section 86 of the Constitution, the right to privacy can be limited “in terms of a law of general applicability as long as the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom taking into account all relevant factors” including those specifically listed under section 86.
The assessment of whether the limitations espoused under section 86 apply in the Impala case is a factual and legal analysis which can only be made by the courts. Any extra-judicial decision to divulge information pertaining to a private agreement even in cooperation with an investigation may amount to an arbitrary violation of the right to privacy. Hence, law enforcement agents or private prosecutors (in the event of private prosecution) would need a warrant to access information pertaining to the hire of the alleged ‘abduction vehicle’ from Impala Car Rental.
The need for due process must be emphasised, because allowing a private company to divulge information on its own volition sets a bad precedent that may allow future breaches of privacy for the purposes of violating other rights. Unintended consequences of allowing extra-judicial sharing of private information may include arrest and imprisonment of activists and journalists as was the case in the 2008 Yahoo! Case which saw journalists Wang and Shi each being sentenced to 10 years’ imprisonment on evidence from private emails disclosed by Yahoo!. Once the need for due process is dispensed with, what can stop a private company such as Econet, for example, from providing information which may lead to victimisation of human rights defenders? Due process must always be followed.
The use of Impala Car Rental’s vehicle in the commission of alleged human rights violations against Muchehiwa raises the question, whether or not Impala may be liable for the human rights violations. As stated above, section 44 of the Constitution of Zimbabwe provides that non-juristic persons such as Impala have human rights obligations. As such, it may be liable for human rights violations. The extent and scope of the constitutional obligations of business have not been interpreted by the courts as no cases have been brought before the Constitutional Court of Zimbabwe asserting the obligations of business yet. However, when interpreting the provisions of the Declaration of Rights in Constitution, section 46 provides that the court must take into account relevant international law and all treaties and Conventions to which Zimbabwe is a party. Further, section 46(1)(e) provides that the courts may also consider relevant foreign law.
International law on Corporate Complicity in Human Rights Violations
Under international law a legal action intended to hold a corporate accountable for human rights violation can be based on either:
- direct participation of a corporate or its actors in human rights violations or
- being complicit in the human rights violations.
Under international law whether one pursues a civil or criminal law remedy the enquiry into whether a corporation is complicit in human rights violations involves an analysis of three key factors which are; i. causation/contribution, ii. knowledge/foreseeability and iii. proximity. The burden of proof required may differ depending on whether it is a civil or criminal matter. In terms of causation/contribution, the analysis will focus on whether a company’s conduct enables, facilitates or exacerbates the human rights violations. This can be through directly enabling or facilitating the violations, through conduct which ‘builds up generally the capacity of the perpetrator’ e.g. hiring out equipment to be used in committing human rights violations or through receiving economic benefit from the human rights violations e.g. companies in apartheid South Africa which helped the government create the apartheid system from which they benefitted through cheap labor.
In the case of Impala, this would require an analysis of whether or not the violations would have occurred without Impala’s role of supplying/hiring out a vehicle to the alleged perpetrators. The enquiry would not end here but also seek to establish whether or not Impala knew what the vehicle would be used for and if so knowingly enabled the violation or, even without such knowledge whether in the context Impala should have known the risk of enabling human rights violations but was willfully blind to such risk. The aspect of proximity relates to the degree of closeness a company has to the perpetrators or the victims in the sense that the degree of closeness may give an indication on whether or not the corporation should have known that its conduct would enable human rights violations.
As the case of Tawanda Muchehiwa’s abduction and the involvement of Impala Car Rental company unfolds it is important to emphasize the human rights obligations of corporations and the potential civil and criminal liability of corporations and corporate actors where they are complicit in human rights violations – particularly gross human rights violations.
Elizabeth Mangenje Bamu is a Legal Advisor at the International Commission of Jurists and an advocate for Business and Human Rights. All opinions expressed in this paper are her personal views.