Tachiona v. Mugabe
| Citation | 169 F.Supp.2d 259 |
| Decision Date | 30 October 2001 |
| Docket Number | No. 00 CIV. 6666(VM).,00 CIV. 6666(VM). |
| Court | U.S. District Court — Southern District of New York |
| Parties | Adella Chiminya TACHIONA, on her own behalf on behalf of her late husband Tapfuma Chiminya Tachiona, and on behalf of all others similarly situated, Efridah Pfebve, on her own behalf and on behalf of her late brother Metthew Pfebve, Elliot Pfebve, on his own behalf and on behalf of his brother Metthew Pfebve, Evelyn Masaiti, on her own behalf, Maria Del Carmen Stevens, on her own behalf, on behalf of her late husband David Yendall Stevens, and on behalf of all others similarly situated, Plaintiffs, v. Robert Gabriel MUGABE, in his individual and personal capacity, Zimbabwe African National Union-Patriotic Front, Stan Mudenge, Jonathan Moyo, and Certain Other Unknown Named Senior Officers of ZANU-PF, Defendants. |
Plaintiffs (hereinafter referred to collectively as "Plaintiffs") are citizens of Zimbabwe. They brought this suit as a class action in their own names and on behalf of other similarly situated Zimbabweans who Plaintiffs claim have suffered from wrongful actions they attribute to defendants. Plaintiffs' claims are lodged against Robert Gabriel Mugabe (hereinafter "Mugabe"), who is the President of Zimbabwe; Stan Mudenge (hereinafter "Mudenge"), Zimbabwe's Foreign Minister; and Jonathan Moyo, Minister for Information and Publicity of Zimbabwe; as well as against the Zimbabwe African National Union-Patriotic Front ("ZANU-PF"), the Zimbabwe government's ruling political party of which Mugabe is First Secretary and President, and Mudenge and Moyo are senior officers. As jurisdictional and substantive grounds for their action Plaintiffs invoke the Alien Tort Claims Act ("ATCA"),1 the Torture Victim Protection Act ("TVPA"),2 the general federal question jurisdictional statute,3 and fundamental norms of international human rights law.4
The principles at issue in this case hold ancient roots. They trace to a time when the concept of the sovereign embodied a dual meaning. It stood for both the abstract nation and the corporeal person of its ruler: the State was the monarch and the monarch was the State. The echoes of that notion resound most prominently in words that issue from the ancien régime, when perhaps not at all in haughty jest, but in a pointed reflection of then perceived reality, France's King Louis XIV, in his enduring remark "L'état, c'est moi", proclaimed the state and himself synonymous.
Old ideas die hard. And so, the core of the controversy now before the Court tests the residual vigor of a political and legal legacy of sovereign antiquity. At issue is whether and to what degree the duality that was once assumed as a truism of sovereignty, as though emanating from divine right, may still survive as a binding equation in a doctrine of sovereign immunity for a foreign head-of-state that would preclude this Court, as the United States Government here urges, from extending jurisdiction over the foreign government leaders here, no matter how grievous or unofficial the wrongs they are called upon to answer.
Conversely, Plaintiffs advance a more expansive theory. In essence, they posit that the concept of sovereignty has evolved, and that with it the traditional principles governing sovereign immunity changed, the world of these ideas over time scooped by the arcs of new realities above them, yielding ground to a modern age that, both in symbol and in fact, has witnessed "Diadems drop, and Doges surrender."5 According to this view, in the ensuing progress of events and enlightened principles, the Court may find enough support to ground its exercise of judicial power over the foreign officials here.
In the final analysis, as this Court concludes, the instant case is one in which hopes outpace remedy, personal demands for justice run higher than the availability of full and immediate legal recourse in this forum. The progression of the legal precepts and theories Plaintiffs here invoke, despite critical strides marked in recent years, still trails behind human aspirations and has some time and way to go to close the gap. Consequently, on the circumstances now before the Court, the measure of justice necessarily is gauged on a scale some may feel does not fully reckon all that is seen and unseen, and whose standards may account, perhaps disproportionately, for things not altogether discernible. Nonetheless, for the reasons described below the Court accepts the State Department's Suggestion of Immunity on behalf of Mugabe and Mudenge and dismisses the action as to them. Plaintiffs' motion for entry of a default judgment against ZANU-PF, however, is granted.
The complaint asserts that the ZANU-PF led by President Mugabe and the other individual defendants acting in their personal capacities and as senior officers of ZANU-PF, planned and executed a campaign of violence designed to intimidate and suppress its burgeoning but peaceful political opposition, the Movement for Democratic Change ("MDC"). Specifically, Plaintiffs charge that defendants' lawless conduct included "murder, torture, terrorism, rape, beatings, and destruction of property ...."7 For reasons discussed below and critical to the legal dispute at hand, Plaintiffs stress that the violent deeds associated with this campaign were all perpetrated by defendants and other agents of ZANU-PF acting individually, not by the government of Zimbabwe nor by Mugabe and Mudenge carrying out any public mandate or official duties. The complaint and supporting materials graphically depict acts of brutality this campaign inflicted upon its intended victims.
For present purposes, the Court accepts the uncontested assertions that the violence and wrongs Plaintiffs allege fall squarely within the conduct encompassed by the ATCA and TVPA and proscribed by universally recognized human rights norms.8 On this basis, the Court adopts as findings of fact that, by reason of their support for the MDC, Tapfuma Chiminya, Metthew Pfebve, and David Stevens were all extrajudicially murdered; Metthew Pfebve and David Stevens were tortured; Efridah Pfebve and Evelyn Masaiti were attacked and beaten; and all of the named and unnamed Plaintiffs were in other ways terrorized by operatives of ZANU-PF operating in concert with or significantly aided by high-ranking Zimbabwe government officials acting under color of state law.
The actions taken against these individuals were part of an organized political campaign that occurred during the four-months preceding Zimbabwe's June 2000 Parliamentary elections. The violent drive was implemented, according to Plaintiffs, by ZANU-PF members who were trained and directed from the highest levels of ZANU-PF, and who acted pursuant to Mugabe's orders given through ZANU-PF's chain of command. Moreover, this effort was designed to intimidate all of ZANU-PF's political opposition through harassment, physical attacks and even assassination of targeted individuals.
The specific acts that comprise this conduct are set forth in considerable detail in the complaint and related documents in the record. For example, Plaintiffs assert that private individuals occupying a ZANU-PF vehicle attacked MDC members in a car on their way from filing a report with the police concerning a beating of another MDC member. After severely beating the three occupants of the car, the attackers then doused two of the occupants with gasoline and set them on fire. The ZANU-PF vehicle and the perpetrators remained at the scene while the victims burned. In addition, police officers in a vehicle nearby stopped at a distance and, though observing the MDC car in flames and the burning people, made no effort to stop the attack or the ZANU-PF vehicle when it fled from the scene. Instead, after the ZANU-PF vehicle had departed, the police sought, but were too late, to render assistance to the victims. One of the individuals who died in the attack was the late husband of the lead plaintiff in this case.
In support of their factual assertions, and as confirmation of the concerted violence and lawlessness portrayed by the incidents described in the complaint, Plaintiffs cite to...
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...in an age of globalisation.”).Alexander v. Sandoval, 532 U.S. 275, 288 (2001).See, e.g., Tachiona v. Mugabe (Tachiona I), 169 F. Supp. 2d 259 (S.D.N.Y. 2001), reconsideration denied, Tachiona ex rel. Tachiona v. Mugabe (Tachiona II), 186 F. Supp. 2d 383 (S.D.N.Y. 2002), aff’d inpart, rev’d ......
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