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Free and fair elections a pipe dream?
Beatrice Mtetwa
Extracted from the IBA Human Rights Violations in Zimbabwe supplement
December 10, 2004

*Beatrice Mtetwa is an award winning Zimbabwean human rights lawyer.

As Zimbabweans plan to join other citizens of the world in marking Human Rights Day, much uncertainty exists as to whether the general public and human rights defenders will be allowed to commemorate this day unrestricted by police disruption. The trend in the last four years has been for the Government to deny citizens the right to assemble and express themselves freely. Activities of human rights groups have been carried out in restrictive conditions. In many cases it has been necessary for groups to obtain court orders in order that they could carry out public events which citizens living in democratic societies take for granted.

Litigation has failed
But the courts have not always provided a refuge for those whose rights are violated. In many cases, the obstructive approach of the Zimbabwean authorities towards human rights has, regrettably, been aided by the Supreme Court which, through its treatment of human rights cases, has reversed the many gains made during the early years of Zimbabwe’s independence. In the past four years, we have witnessed a failure to deal promptly with litigation that requires urgency where such litigation has human rights implications that are seen as being anti-government.

For many lawyers, taking cases of human rights abuses to the Supreme Court is no longer seen as a viable option because this court has demonstrated a disturbing averseness to upholding individual rights where this would conflict with Government policy.

Violations remain unpunished
As Zimbabwe prepares to elect a new parliament in March 2005 election petitions commenced in the year 2000 remain unconcluded in the courts, less than four months before the election. What this means is that perpetrators of political violence, electoral fraud and other serious election-related violations have remained in Parliament throughout their five year term. Any findings that might be made by the Courts now on their conduct is not likely to have any effect on them or the conduct of the next election.

Other human rights violators who carried out criminal acts in the last election have also escaped unpunished as most of them were the recipients of a Presidential amnesty. Those who did not qualify for such amnesty remained unprosecuted, even in the rare case where the Courts had specifically ordered that their cases be investigated and be prosecuted.

What this means is that perpetrators of political violence in the last Parliamentary election will be free to commit similar acts in the forthcoming elections, as there has been no sanction whatsoever for similar acts in the past. It is likely that those members of Parliament who have, as a result of the law’s inaction, remained in Parliament after committing acts of violence will not be deterred from employing similar methods to defeat their opponents in the forthcoming elections. Perpetrators of political violence, particularly during elections, probably calculate that political violence is a viable route to winning elections, because they are not likely to risk any definitive litigation or sanction that would result in serious consequences for them.

Little hope of fair elections in the future
The failure by the State and the Courts to deal decisively with the human rights abuses during past elections obviously does not bode well for free and fair elections in the future. Rather, the victims of election violence in the last Parliamentary election are less likely to fully participate in the forthcoming elections as there clearly are no guarantees that they will receive the full protection of the law if their rights to free political participation are infringed. Candidates who would have lost elections through violence and other illegal electoral practices in the last Parliamentary elections will not be motivated to participate in the forthcoming elections. Where they do participate and are subjected to violence and any other electoral malpractices, they are not likely to challenge such actions as such challenges have proved to be of academic interest only.

New legislation impedes election processes
Recently proposed legislation, including that related to elections, will not in any way improve Zimbabwe’s electoral processes, as the position of bodies that will be responsible for the elections remains in the hands of trusted political players. Severe limitations on voter education have been proposed, which will severely restrict access to information to voters to enable them to make informed choices. New NGO legislation will mean that there will be fewer civil society organisations allowed to work with the public in the forthcoming elections, with the result that there will be less information on any human rights abuses during the elections.

New strategies needed
As we celebrate Human Rights Day in Zimbabwe in 2004, the likelihood of a free and fair election seems extremely remote for the foreseeable future. The OAU and SADC principles governing democratic elections are likely to remain a pipe dream for Zimbabweans, particularly as regards the forthcoming general election. As the issue of a free and fair election is so closely intertwined with the enjoyment of all human rights, we are unlikely to see any improvement in the human rights situation in Zimbabwe in the foreseeable future. This is not to say that human rights defenders should stop or give up on their fight for the observance of human rights in our country. If anything, human rights defenders should be encouraged to consider new strategies for ensuring that human rights violations in Zimbabwe continue to be exposed to as wide an audience as is possible.

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