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Are political detainees hostages to demands for a general amnesty? - Peace Watch
Veritas
February 26, 2009

There has been talk over the past two weeks that political detainees and civil rights activists will only be released as part of a general amnesty being demanded by ZANU-PF and the security force commanders. This would certainly explain the delays that that have dogged efforts to get them freed. The political detainees whose release is the subject of purported amnesty negotiations were picked up while a national unity government was being negotiated. So far the police have not produced enough evidence to bring them to trial. This raises the question whether they were picked up deliberately to be used as hostages in a subsequent amnesty deal. This would entail a lopsided trade of a few seemingly innocent people picked up specially for the purpose against all those involved in perhaps up to 30 years of State organised or condoned violence.

There needs to be public debate on the subject of a general amnesty and civil society could take the lead in facilitating this process and in making sure it includes victims of State violence and their families. It is hoped that politicians will listen to these voices before making any deals. A general amnesty would not only affect the present detainees, but all people and the families who have been subjected to political violence - murders, torture, beatings, rape, property destroyed, forced evictions, etc. In addition to those who are recorded, there are estimated to be many hundreds over the last thirty years who have never been accounted for and there, are the dead who have never been identified and buried.

For some years now the MDC have been talking of establishing a Truth, Justice and Reconciliation Commission. It was on the MDC Election Manifesto that they would bring in such a Commission - not on political party lines but on national lines as an essential step to restore community trust and national healing.

A general amnesty might ease frictions in the corridors of power of an inclusive government in the short run, but this needs to be weighed against the long term dangers of condoning a culture of impunity. And even in the short term it may cause problems. Victims of violence or their families may take to "settling scores" outside the legal framework which a Truth, Justice and Reconciliation Commission would set up. There are already indications that this is happening in some areas.

Media Reports that an Amnesty Deal is being Considered

Please note these reports are taken from various media agencies. We have included the web links for those interested in reading the complete articles. They quote unnamed sources so it is impossible to check on their sources. We are citing extracts because even if they are not 100% accurate they call attention to what should be a matter of public debate.

• "You want Bennett, give us immunity security chiefs demand" 7 February 2009 www.nehandaradio.com "Zimbabwe's security chiefs fearing prosecution for crimes against humanity are trying to use the arrest and detention of Deputy Agriculture Minister designate Roy Bennett, former television anchor Jestina Mukoko and 30 other political prisoners as bargaining chips to secure their own immunity from prosecution.
• Commissioner-General of Police wants charges dropped www.thezimbabwetimes.com In a circular [claimed to have been seen by the Zimbabwe Times] dated 10th February, and addressed to all provincial commanders, Police Commissioner Chihuri ordered the dropping of all murder cases committed during the run-up to the controversial 27th June election. The report said that the beneficiaries of this 'amnesty wish', if granted, will be ZANU PF supporters, among them youths, top war veterans and government officials.
• The Mugabe regime has moved swiftly to stop all investigations into murders committed by Zanu (PF) agents, including the police, army and militia, before during and after the March and June 2008 elections. 18 February 2009 www.thezimbabwean.co.uk This article quotes Chihuri's circular as saying "Please be advised that all murder cases committed during the run up to the presidential election run-off and have not been finalised be dropped immediately. The decision has been made in the spirit of promoting national healing in view of the inclusive government."

One Report mentions a Possible Amnesty dating back to 1980

Mugabe party said to be seeking amnesty Feb. 19, www.marketwatch.com Zimbabwe President Robert Mugabe's ruling Zanu-PF party reportedly is seeking an amnesty deal, an opposition leader's wife says. Heather Bennett told CNN members of Mugabe's Zanu-PF party offered to release imprisoned opposition leaders in exchange for a promise of amnesty for any crimes between Zimbabwe's independence in 1980 and 2009.

Legal Procedures for a General Amnesty

1. By the passing of appropriate legislation through Parliament.

2. By the granting of pardons by the President

The President's power to grant pardons is found in section 31I of the Constitution. It is not one of his personal prerogatives, to be exercised at his sole discretion. It must be exercised on the advice of the Cabinet. This has always been the position [Constitution, section 31H(5)] and it is reiterated in the IPA [Article 20.1.3(g), now incorporated in Schedule 8 to the Constitution - "The President . . . (g) grants pardons . . . on the advice of the Cabinet"]. "On the advice of the Cabinet" means he can only act in accordance with a Cabinet decision. So if there is a General Amnesty, both MDCs must agree to it.

Note: It is sometimes suggested that a pardon can only be granted to someone who has already been convicted of a crime. That is not so. The Constitution clearly states that pardons may be granted "to any person concerned in or convicted of a criminal offence". Such a pardon protects a person from being subsequently picked up and charged for the same offence [Criminal Precedence and Evidence Act].

Presidential Powers to Pardon Individuals

The President can also grant pardons for specific individuals by name [as apposed to categories of persons under a General Amnesty]. He could invoke these powers to pardon people like Roy Bennett, Jestina and other named detainees]. This would ensure their release without a criminal record.

Reactions to Talk of a General Amnesty

Roy Bennett has reportedly said he would rather face trial than be part of any deal that would see individuals who committed crimes against humanity walk scot-free and that he would want to see individuals that perpetrated crimes against humanity made to account for their actions. Bennett's lawyer, Trust Maanda, confirmed his client's position.

Okay Machisa, National Director of ZimRights, said it was a travesty of justice to let perpetrators of political violence off the hook. He said that those suspected of abuses should stand trial. "ZimRights believes that anyone who violates and abuses human rights should be brought to court and only the courts can provide judgement. . . . The new inclusive government . . . should ensure that transitional justice is delivered."

Reverend Useni Sibanda, National Director of Zimbabwe Christian Alliance, a network of church and civic bodies, said a blanket amnesty was "no medicine for healing the nation."

Amnesty International's stance is that to break the culture of impunity there is need to establish facts about violations of human rights that have occurred, investigate those violations, bring suspected perpetrators to justice, and provide victims and their families with reparation, in the form of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Pius Wakatama, Church Elder, warned that an amnesty could spark a backlash, leading to further violence. "Sweeping issues under the carpet will create a simmering volcano that will erupt soon. Most of the victims, if they discover that the courts will not deliver justice to them there, will resort to their own means of gaining justice".

There is a consensus among all countries that have suffered under State organised violence whether in Latin America, Asia, Europe, Africa, that cultures of impunity fostered by general amnesties lead to more violence.

Other Routes to National Healing

These suggestion come from Church representatives and victims of State organised violence.

• "The transitional government needs to first allow a national debate on how the people of Zimbabwe want the transitional justice issues to be handled,"
• "The victims need to be involved from the onset" The people that [Chihuri] has [reportedly] ordered to be forgiven should ask for that forgiveness from the victims. It is not just an issue of murder - pre-and post-election violence involved in most cases rape [and] destruction of property and this was done by people in the same neighbourhood."
• "The process of healing a nation involves truth telling, confession, forgiveness, justice and then reconciliation . . . the country need(s) to know who committed these offences, under what circumstances and who ordered that these offences be committed."
• "there can never be a shortcut to national healing"
• "The healing process has to be fair, just, democratic and inspired by the need to create a sustainable foundation for a democratic Zimbabwe."
• "The healing process must satisfy the 'weak' in voice, in the most remote part of the country, and should be people driven rather than be an elite pact."
• "There is therefore an urgent need to set up a truth, justice and healing commission that will be given the mandate and framework to deal with election violence and also [to] include violence that has occurred since 2000."

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