|
Introduction
Following widespread reports of human rights violations in Zimbabwe, the African
Commission on Human and Peoples Rights (African Commission) at its 29th Ordinary Session
held in Tripoli from 23rd April to 7th may 2001 decided to undertake a fact-finding mission to
the Republic of Zimbabwe from 24th to 28th June 2002.
The stated purpose of the Mission was to gather information on the state of human rights in
Zimbabwe. In order to do so, the Mission sought to meet with representatives of the
Government of the Republic of Zimbabwe, law-enforcement agencies, the judiciary, political
parties and with organised civil society organisations especially those engaged in human
rights advocacy. The method of the fact-finding team was to listen and observe the situation
in the country from various angles, listen to statements and testimony of the many actors in
the country and conduct dialogue with the government and other public agencies.
Findings
-
The Mission observed that Zimbabwean society is highly polarized. It is a divided society
with deeply entrenched positions. The land question is not in itself the cause of division. It
appears that at heart is a society in search of the means for change and divided about
how best to achieve change after two decades of dominance by a political party that
carried the hopes and aspirations of the people of Zimbabwe through the liberation
struggle into independence.
-
There is no doubt that from the perspective of the fact-finding team, the land question is
critical and that Zimbabweans, sooner or later, needed to address it. The team has
consistently maintained that from a human rights perspective, land reform has to be the
prerogative of the government of Zimbabwe. The Mission noted that Article 14 of the
African Charter states “The right to property shall be guaranteed. It may only be
encroached upon in the interest of public need or in the general interest of the community
and in accordance with the provisions of appropriate laws”. It appears to the Mission that
the Government of Zimbabwe has managed to bring this policy matter under the legal
and constitutional system of the country. It now means that land reform and land
distribution can now take place in a lawful and orderly fashion.
-
There was enough evidence placed before the Mission to suggest that, at the very least
during the period under review, human rights violations occurred in Zimbabwe. The
Mission was presented with testimony from witnesses who were victims of political
violence and others victims of torture while in police custody. There was evidence that the
system of arbitrary arrests took place. Especially alarming was the arrest of the President
of the Law Society of Zimbabwe and journalists including Peta Thorncroft, Geoffrey
Nyarota, among many others, the arrests and torture of opposition members of
parliament and human rights lawyers like Gabriel Shumba.
-
There were allegations that the human rights violations that occurred were in many
instances at the hands of ZANU PF party activists. The Mission is however not able to
find definitively that this was part of an orchestrated policy of the government of the
Republic of Zimbabwe. There were enough assurances from the Head of State, Cabinet
Ministers and the leadership of the ruling party that there has never been any plan or
policy of violence, disruption or any form of human rights violations, orchestrated by the
State. There was also an acknowledgement that excesses did occur.
-
The Mission is prepared and able to rule, that the Government cannot wash its hands
from responsibility for all these happenings. It is evident that a highly charged atmosphere
has been prevailing, many land activists undertook their illegal actions in the expectation
that government was understanding and that police would not act against them – many of
them, the War Veterans, purported to act as party veterans and activists. Some of the
political leaders denounced the opposition activists and expressed understanding for
some of the actions of ZANU PF loyalists. Government did not act soon enough and
firmly enough against those guilty of gross criminal acts. By its statements and political
rhetoric, and by its failure at critical moments to uphold the rule of law, the government
failed to chart a path that signalled a commitment to the rule of law.
-
There has been a flurry of new legislation and the revival of the old laws used under the
Smith Rhodesian regime to control, manipulate public opinion and that limited civil
liberties. Among these, the Mission’s attention was drawn to the Public Order and
Security Act, 2002 and the Access to Information and Protection of Privacy Act, 2002.
These have been used to require registration of journalists and for prosecution of
journalists for publishing “false information”. All of these, of course, would have a “chilling
effect” on freedom of expression and introduce a cloud of fear in media circles. The
Private Voluntary Organisations Act has been revived to legislate for the registration of
NGOs and for the disclosure of their activities and funding sources.
-
There is no institution in Zimbabwe, except the Office of the Attorney General, entrusted
with the responsibility of oversight over unlawful actions of the police, or to receive
complaints against the police. The Office of the Ombudsman is an independent institution
whose mandate was recently extended to include human rights protection and promotion.
It was evident to the Mission that the office was inadequately provided for such a task and
that the prevailing mindset especially of the Ombudsman herself was not one which
engendered the confidence of the public. The Office was only about the time we visited,
publishing an annual report five years after it was due. The Ombudsman claimed that her
office had not received any reports of human rights violations. That did not surprise the
Mission seeing that in her press statement following our visit, and without undertaking any
investigations into allegations levelled against them, the Ombudsman was defensive of
allegations against the youth militia. If the Office of the Ombudsman is to serve effectively
as an office that carries the trust of the public, it will have to be independent and the
Ombudsman will have to earn the trust of the public. Its mandate will have to be
extended, its independence guaranteed and accountability structures defined.
-
The Mission was privileged to meet with the Chief Justice and the President of the High
Court. The Mission Team also met with the Attorney General and Senior Officers in his
office. The Mission was struck by the observation that the judiciary had been tainted and
even under the new dispensation bears the distrust that comes from the prevailing
political conditions. The Mission was pleased to note that the Chief Justice was conscious
of the responsibility to rebuild public trust. In that regard, he advised that a code of
conduct for the judiciary was under consideration. The Office of the Attorney General has
an important role to play in the defence and protection of human rights. In order to
discharge that task effectively, the Office of the Attorney General must be able to enforce
its orders and that the orders of the courts must be obeyed by the police and ultimately
that the profession judgement of the Attorney General must be respected.
-
The Mission noted with appreciation the dynamic and diverse civil society formations in
Zimbabwe. Civil society is very engaged in the developmental issues in society and
enjoys a critical relationship with government. The Mission sincerely believes that civil
society is essential for the upholding of a responsible society and for holding government
accountable. A healthy though critical relationship between government and civil society
is essential for good governance and democracy.
Recommendations
In the light of the above findings, the African Commission offers the following recommendations -:
On National Dialogue and Reconciliation
Further to the observations about the breakdown in trust between government and some civil
society organisations especially those engaged in human rights advocacy, and noting the fact
that Zimbabwe is a divided society, and noting further, however, that there is insignificant
fundamental policy difference in relation to issues like land and national identity, Zimbabwe
needs assistance to withdraw from the precipice. The country is in need of mediators and
reconcilers who are dedicated to promoting dialogue and better understanding. Religious
organisations are best placed to serve this function and the media needs to be freed from the
shackles of control to voice opinions and reflect societal beliefs freely.
Creating an Environment Conducive to Democracy and Human Rights
The African Commission believes that as a mark of goodwill, government should abide by the
judgements of the Supreme Court and repeal sections of the Access to Information Act
calculated to freeze the free expression of public opinion. The Public Order Act must also be
reviewed. Legislation that inhibits public participation by NGOs in public education, human
rights counselling must be reviewed. The Private Voluntary Organisations Act should be
repealed.
Independent National Institutions
Government is urged to establish independent and credible national institutions that monitor
and prevent human rights violations, corruptions and maladministration. The Office of the
Ombudsman should be reviewed and legislation which accords it the powers envisaged by
the Paris Principles adopted. An independent office to receive and investigate complaints
against the police should be considered unless the Ombudsman is given additional powers to
investigate complaints against the police. Also important is an Independent Electoral
Commission. Suspicions are rife that the Electoral Supervisory Commission has been
severely compromised. Legislation granting it greater autonomy would add to its prestige and
generate public confidence.
The Independence of the Judiciary
The judiciary has been under pressure in recent times. It appears that their conditions of
service do not protect them from political pressure; appointments to the bench could be done
in such a way that they could be insulated from the stigma of political patronage. Security at
Magistrates’ and High Court should ensure the protection of presiding officers. The
independence of the judiciary should be assured in practice and judicial orders must be
obeyed. Government and the media have a responsibility to ensure the high regards and
esteem due to members of the judiciary by refraining from political attacks or the use of
inciting language against magistrates and judges. A Code of Conduct for Judges could be
adopted and administered by the judges themselves. The African Commission commends to
the Government of the Republic of Zimbabwe for serious consideration and application of the
Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa adopted by
the African Commission at its 33rd Ordinary Session in Niamey, Niger in May 2003.
A Professional Police Service
Every effort must be made to avoid any further politicisation of the police service. The police
service must attract all Zimbabweans from whatever political persuasion or none to give
service to the country with pride. The police should never be at the service of any political
party but must at all times seek to abide by the values of the Constitution and enforce the law
without fear or favour. Recruitment to the service, conditions of service and in-service training
must ensure the highest standards of professionalism in the service. Equally, there should be an independent mechanism for receiving complaints about police conduct. Activities of units
within the ZRP like the law and order unit which seems to operate under political instructions
and without accountability to the ZRP command structures should be disbanded. There were
also reports that elements of the CIO were engaged in activities contrary to the international
practice of intelligence organisations. These should be brought under control. The activities of
the youth militia trained in the youth camps have been brought to our attention. Reports
suggest that these youth serve as party militia engaged in political violence, The African
Commission proposes that these youth camps be closed down and training centres be
established under the ordinary education and employment system of the country. The Africa
Commission commends for study and implementation the Guidelines and Measures for the
Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment
in Africa (otherwise know as the Robben Island Guidelines) adopted by the African
Commission at its 32nd Ordinary Session held in Banjul, The Gambia in October 2002.
The Media
A robust and critical media is essential for democracy. The government has expressed
outrage at some unethical practices by journalists, and the Access to Information Act was
passed in order to deal with some of these practices. The Media and Ethics Commission that
has been established could do a great deal to advance journalistic practices, and assist with
the professionalisation of media practitioners. The Media and Ethics Commission suffers from
the mistrust on the part of those with whom it is intended to work. The Zimbabwe Union of
Journalists could have a consultative status in the Media and Ethics Commission. Efforts
should be made to create a climate conducive to freedom of expression in Zimbabwe. The
POSA and Access to Information Act should be amended to meet international standards for
freedom of expression. Any legislation that requires registration of journalists, or any
mechanism that regulates access to broadcast media by an authority that is not independent
and accountable to the public, creates a system of control and political patronage. The Africa
Commission commends the consideration and applications of the Declaration on The
Principles of Freedom of Expression in Africa adopted by the 32nd Ordinary Session of the
African Commission in Banjul, October 2002.
Reporting Obligations to the African Commission
The African Commission notes that the Republic of Zimbabwe now has three overdue reports
in order to fulfil its obligations in terms of Article 62 of the Africa Charter. Article 1 of the Africa
Charter states that State Parties to the Charter shall “recognise the rights, duties and
freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures
to give effect to them.” Article 62 of the Africa Charter provides that each State Party shall
undertake to submit every two years “a report on the legislative or other measures taken, with
a view to giving effect to the rights and freedoms recognised and guaranteed by the present
Charter.” The African Commission therefore reminds the Government of the Republic of
Zimbabwe of this obligation and urges the government to take urgent steps to meet its
reporting obligations. More pertinently, the African Commission hereby invites the
Government of the Republic of Zimbabwe to report on the extent to which these
recommendations have been considered and implemented.
|
|
Related documents
- 28Kb < 1min (4 pages)
