21
LEGAL AVENUES TOWARDS JUSTICE FOR
ENFORCED DISAPPEARANCE IN AFRICA
PRACTICE NOTE 5
STRATEGIC LITIGATION OF ENFORCED
DISAPPEARANCES IN AFRICA
Civil Claims
Victims can also pursue civil litigation seeking to prevent enforced disappearances
and get a determination of responsibility, restitution, and other forms of reparation.
Civil claims have different procedural rules depending on the jurisdiction, but the
burden of proof in civil claims is generally lower than in criminal cases, requiring the
individual to prove by a balance of probabilities that violations occurred.
Case study: Disappearance of Jestina Mukoko (Zimbabwe)
Facts. In December 2008, Jestina Mukoko, a Zimbabwean journalist and human
rights activist, was forcibly disappeared from her home. A week after Jestina’s
disappearance, the Zimbabwean High Court ordered the police to conduct an
investigation, but the police did not comply with the court order. Jestina remained
disappeared for three months until she was released on bail.
Legal Action. Following Jestina’s release, Zimbabwe Lawyers for Human Rights
and Zimbabwe Peace Project took legal action against the State in relation to
Jestina’s disappearance. The State did not carry out any prosecution of individuals
responsible for Jestina’s disappearance.
Impact. In 2017, the High Court of Zimbabwe ruled that those who had illegally
arrested Jestina could be held liable in their own individual capacities. The High
Court ordered the Zimbabwean State to pay monetary compensation for the
abduction, incommunicado detention and torture that Jestina suffered at the
hands of State officials.
Human Rights Claims
Lawyers representing victims of enforced disappearance can also consider regional
and international human rights claims as avenues for strategic litigation. These
typically require that domestic proceedings have been exhausted in the national
jurisdiction, unless it can be shown that judicial remedies were not effective or that
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