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and fair elections a pipe dream?
Extracted from the IBA Human Rights Violations in Zimbabwe supplement
December 10, 2004
Mtetwa is an award winning Zimbabwean human rights lawyer.
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.
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.
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.
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
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
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.
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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