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An
overview of the human rights situation in Zimbabwe, with specific reference
to repressive legislation, impunity, the state of the administration of
justice and selective application of the law
Arnold
Tsunga, Chairman, ZIMRIGHTS and Executive Director of Zimbabwe Lawyers
for Human Rights (ZLHR)
February 20, 2004
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Outline of Repressive
Legislation
There are
a number of Acts of parliament that are extremely repressive that the
government has promulgated or reactivated in recent years. These include
The Broadcasting Services Act, The Access To Information And Protection
Of Privacy Act (AIPPA), The Public Order And Security Act, The Citizenship
Act, The Private Voluntary Organizations Act, The Electoral Act And Regulations,
The Labour Relations Act, The Miscellaneous Offences Act (MOA) and The
Presidential Powers Act. These Acts of parliament will be looked at very
generally in this paper to highlight repressive aspects of the respective
legislation that impinge on human rights activism.
The Broadcasting
Services Act virtually creates a monopoly on the part of the state
owned Zimbabwe Broadcasting Corporation to be the sole electronic broadcaster
in Zimbabwe. In reality it prevents independent electronic broadcasting
in Zimbabwe unless certain impossible conditionalities are met. It also
creates offences that are vindictive should one attempt to broadcast in
violation of the Act, such as fines of millions of dollars and the right
of the Minister of Information to confiscate or destroy the broadcasting
equipment of the offender. The Act infringes on the right to freedom of
expression without which right it is impossible for hrds to operate effectively.
The POSA is
arguably the most repressive piece of legislation in the history Zimbabwe’s
jurisprudence. It effectively bans any assembly without police permission,
which permission is rarely granted to NGOs, Civil Society, labour unions,
other human rights defenders or opposition parties. The Act allows police
to use force or to kill to disperse public gatherings. In terms of the
Act, the organizer of the public gathering is held personally civilly
and criminally liable for any consequences arising from the public gathering
or the police breaking the public gathering. The Act also outlaws criticism
of the President or gesturing in a manner that brings ridicule to, or
engenders feelings of hatred against, the President. Criticism of the
police is also banned and so is publication of anything that is likely
to engender feelings of hatred against the President.
POSA seriously violates
and undermines the rights to freedom of assembly, association, expression,
movement, and is not justifiable in a democratic society. Hrds cannot
efficiently operate without the enjoyment of such rights. Using POSA the
police have found it easy to arbitrary arrest and detain hrds with impunity.
The AIPPA seeks
to place journalists and journalism in Zimbabwe under the actual and effective
control of the Minister of Information in the President’s department.
Journalists must accredit with the Media Commission constituted by appendages
of the government if they are to practice journalism in Zimbabwe. Media
houses must register with the Media Commission or else they are deemed
to be operating unlawfully. The Act creates a minefield for journalists
and has been challenged in the Supreme Court in terms of its constitutionality
by the Associated Newspapers of Zimbabwe, the publishers of The Daily
News and The Daily News on Sunday. The Supreme Court made a ruling refusing
to give the Daily News audience on the basis that they had approached
the court with dirty hands in coming to the Supreme Court without first
registering in terms of AIPPA. This ruling has been extensively criticized
as showing that the Supreme Court played a complicity role in causing
a serious violation of the right to freedom of expression in Zimbabwe
because after its ruling, the Daily News which is the only independent
daily newspaper that was circulating in Zimbabwe was forcibly shut by
state agents and its equipment seized. Among some of the offences under
AIPPA are writing false statements or writing a story where there is a
real likelihood that it can be false, or engendering feelings of hatred
or hostility towards the President. This Act was signed into law six days
after the President claimed victory in the election in March 2002.
An unprecedented
number of journalists in the history of Zimbabwe’s journalism have been
arrested have been made under AIPPA. Since the closure of the Daily News,
the people of Zimbabwe have been subjected to unlimited doses of state
propaganda and hate messages. There are virtually no alternative views
that are broadcasts by the state media. In one case the High Court took
the fact of belief in hate messages as extenuation in a murder case where
ZANU PF youths pleaded that they killed another person genuinely believing
that they were involved in a war of acquiring land as a "third chimurenga".
AIPPA infringes on the right to freedom of expression, which is vital
for the building of democracy and the work of hrds.
The Electoral Act
and regulations made thereunder have been used to prevent hrds NGOs and
Civil society from effective participation in the electoral process through;
- Banning Civil Society,
NGOs and hrds from election monitoring
- Banning Civil Society,
NGOs, and hrds from participating independently in civic education on
electoral processes
- Giving too many
arbitrary and discretionary powers to the Minister of Justice to make
regulations governing the conduct of elections. This has been abused
to create an uneven playfield in elections including making laws a few
days and in instances hours before elections.
The PVO Act
has been used to threaten NGOs involved in human rights work to register
with the Ministry of Public Service Labour and Social Welfare or risk
prosecution. Once they register with the Ministry, then the Ministry would
have a say in the Board matters of the NGOs as well as in matters of their
funding. This threat remains hanging over NGOs and hrds. For example the
Ministry of Labour Social Welfare have written to ZLHR insisting that
they must register in terms of the PVO Act and this is seen as a preliminary
towards clamping down on the organization.
The Citizenship
Act has been used to deprive in some cases people of their citizenship.
It is not possible as a hrd to function properly when there is a threat
that you could lose your citizenship as a result of your human rights
activism. The case of Juddith Todd is a case in point. Even the Supreme
Court appeared to have become an unwitting tool of pressurizing the hrd
in this case as it gave Judith Todd 48 hours to renounce a citizenship
of New Zealand that she has never claimed having been born and grown in
Zimbabwe all her life!
The new labour
Relations Act (LRA) criminalizes strike action on the part of workers.
Used in combination with POSA it attempts to paralyse labour movements.
It introduces criminal and civil sanctions against the organiser. It therefore
infringes on the work and rights of labour movements. As Solomon Sacco
observes in his critique of the LRA "In fact, to ensure that the
Act had caught everyone in it dragnet, it first sets out those who would
normally be involved in a collective action such as individual employees,
trade unions and employers’ organisations and then proceeds to say that
if anyone not in that list "recommends, advises, encourages, threatens,
incite, commands, aids or procures" any unlawful collective action
he is also guilty of the offence. Therefore anyone who has anything to
do with an unlawful collective action is guilty of a very serious offence."
The MOA is
used in conjunction with POSA to create a minefield for human rights activists
and ordinary citizens. Virtually any conduct that causes offence to the
police in their absolute discretion can result in anyone being arrested
for contravening the MOA. One of the wide offences that the MOA creates
is that of conduct that is likely to result in a breach of the peace.
In real life application, the police have been able to interpret in their
own unfettered discretion and depending on what is convenient at a particular
time, any human behaviour to be conduct that is likely to result in a
breach of the peace. Zimbabwe Lawyers For Human Rights’ experience has
been that in the majority of cases where human rights activists have been
targeted for persecution, the state initially charges them with violation
of POSA and if they meet with resistance, they normally downgrade the
charges to violation of a section of the MOA.
The Presidential
Powers Act (PPA) allows the President of Zimbabwe to make regulations
in circumstances when it appears to the President that-
- a situation has
arisen or is likely to arise which needs to be dealt with urgently in
the interests of defence, public safety, public order, public morality,
public health, the economic interests of Zimbabwe or the general public
interest; and
- the situation cannot
adequately be dealt with in terms of any other law; and because
of the urgency, it is inexpedient to await the passage through Parliament
of an Act dealing with the situation;
In practice the PPA
has been used by the President to appropriate to himself the powers of
the legislature while at the same time ousting the jurisdiction of the
court to grant bail. For example using Statutory Instrument I37\04 the
President legislated that where there is no prima facie case against
an accused person in certain cases including charges under POSA, a court
can order her/his detention despite there being no prima facie case, and
a suspect cannot be granted bail for 7 days from the date when the detention
is so ordered. The President further legislated that where there is a
prima facie case, the court shall order that the suspect be held
in custody for a period of 21 days and cannot be granted bail for 14 days
after the detention is ordered. Such arbitrary legislation, which has
been severely criticised creates a minefield for human rights activists
and predictions are that this legislation which appears to be patently
unconstitutional will be used increasingly against hrds and opposition
politicians as Zimbabwe approaches the 2005 general elections. This type
of legislation has been used to undermine the judiciary and in cases to
apparently "fix" political opponents within and without ZANU
PF. In other cases the President has used these powers to legislate legislation
that allows for forcible expropriation of movable farming equipment without
compensation and to provide for regulations governing elections in which
he or his party is a contestant, a few hours before the election.
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