Minister of Foreign Affairs v Michael Jenrich; Standard Chartered Bank Zimbabwe; Sheriff of Zimbabwe

In 2004, the first respondent (Michael Jenrich) was employed by the Food and Agriculture Organisation (FAO) as an Emergency Programme Officer under fixed-term contracts renewed for six consecutive years. In January 2012, the FAO did not renew his contract, citing abolition of his post and allegations of misconduct. Jenrich challenged the termination, claiming legitimate expectation of renewal, false misconduct allegations, and unlawful termination without severance. After failed conciliation, he sued the FAO in the Labour Court claiming USD 623,400 in damages and terminal benefits. The FAO, claiming absolute immunity, did not participate in proceedings. The Labour Court granted a default judgment ordering reinstatement or damages. Jenrich obtained registration of the order and writs of execution against FAO property and bank accounts. The FAO's legal adviser wrote from Rome asserting absolute immunity under the Convention on Privileges and Immunities of Specialised Agencies (1991), the FAO Constitution (1981), and the FAO Headquarters Agreement (1995). The Minister of Foreign Affairs issued a Ministerial Certificate under s 14 of the Privileges and Immunities Act certifying FAO's absolute immunity and sought to interdict execution. The High Court dismissed the Minister's application, holding that the FAO enjoyed only restrictive immunity based on the Supreme Court decision in ICRC v Sibanda.

• Whether international organisations such as the FAO enjoy absolute (functional) immunity or restrictive immunity from suit, legal process and execution
• Whether the doctrine of restrictive sovereign immunity applicable to foreign states under customary international law extends to international organisations
• Whether the decision in International Committee of the Red Cross v Sibanda 2004 (1) ZLR 27 (SC) was correctly decided in extending restrictive immunity to international organisations
• Whether the FAO Headquarters Agreement (1995) was binding on Zimbabwe without domestication by Act of Parliament
• Whether employment disputes fall within the scope of functional immunity enjoyed by international organisations

1. The appeal is allowed with costs. 2. The judgment of the High Court is set aside and substituted with: (a) The application is granted with costs; (b) It is declared that the FAO enjoys absolute immunity from every form of legal process and execution in Zimbabwe; (c) The garnishee order issued on 31 December 2014 is declared invalid and set aside; (d) The writs of execution issued against the FAO's property are declared invalid and set aside. 3. The decision in International Committee of the Red Cross v Sibanda & Anor 2004 (1) ZLR 27 (SC) is overruled to the extent that it extended restrictive immunity applicable to sovereign states to international organisations.

International organisations enjoy functional immunity that is absolute in scope, distinct from the restrictive sovereign immunity applicable to foreign states. Functional immunity is based on enabling international organisations to carry out their universal mandates independently without being subjected to the varying legal systems of host states where they operate. The immunity derives from the constituent instruments of the organisation and agreements with host states, and is part of customary international law incorporated into Zimbabwean law by s 326 of the Constitution. Employment disputes lie at the core of functional immunity because compliance with employment laws of numerous member states would be impossible. International organisations are immune from suit, legal process and execution in local courts for acts related to their functions, and such disputes must be resolved through internal mechanisms established by the organisation. The restrictive immunity doctrine applicable to sovereign states (distinguishing between acts jure imperii and jure gestionis) does not apply to international organisations because the grounds for their immunity differ fundamentally—sovereign immunity is based on equality between states (par in parem non habet imperium) while functional immunity is based on the necessity for organisations to discharge their mandates.

The Court commented that while international organisations are not obliged to participate in proceedings to assert immunity, it is desirable for them to do so to show respect for local courts and prevent unnecessary proceedings. The Court also noted that the State (through the Minister of Foreign Affairs) should intervene early to inform courts of immunity granted to international organisations. The Court emphasized that courts must raise immunity issues mero motu as preliminary matters, as jurisdiction is fundamental and without it a court has no power to proceed. The Court noted that had the FAO participated or had the courts raised immunity mero motu at the outset, the issue would have been resolved earlier. The Court observed that international organisations establish internal dispute resolution mechanisms to ensure justice for aggrieved parties who would otherwise be without remedies due to functional immunity, and that the dispute between the FAO and the first respondent should have been dealt with according to such mechanisms established under the Convention and the FAO Constitution.

This is a landmark judgment in Zimbabwean and Southern African international law that definitively establishes the distinction between restrictive sovereign immunity (applicable to foreign states) and absolute functional immunity (applicable to international organisations). The judgment overruled the Supreme Court's previous decision in ICRC v Sibanda, which had incorrectly extended the restrictive immunity doctrine to international organisations. The case clarifies that international organisations enjoy absolute immunity from local court jurisdiction for acts related to their functions, including employment disputes, to enable them to discharge their mandates independently without being subject to the varying legal systems of member states. It affirms that functional immunity derives from the constituent instruments of international organisations and relevant agreements with host states, and is incorporated into domestic law as customary international law under s 326 of the Constitution. The judgment has important implications for the relationship between international organisations and local courts, and for remedies available to employees of such organisations, who must pursue disputes through internal mechanisms rather than local courts.