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political detainees hostages to demands for a general amnesty? -
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.
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.
Reports that an Amnesty Deal is being Considered
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
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.
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."
Report mentions a Possible Amnesty dating back to 1980
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.
Procedures for a General Amnesty
1. By the passing
of appropriate legislation through Parliament.
2. By the granting
of pardons by the President
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
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].
Powers to Pardon Individuals
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
to Talk of a General Amnesty
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.
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."
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."
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
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.
Routes to National Healing
come from Church representatives and victims of State organised
transitional government needs to first allow a national debate
on how the people of Zimbabwe want the transitional justice issues
to be handled,"
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."
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."
can never be a shortcut to national healing"
healing process has to be fair, just, democratic and inspired
by the need to create a sustainable foundation for a democratic
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."
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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