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An
overview of the human rights situation in Zimbabwe
Arnold, Tsunga,
Zimbabwe Lawyers for Human Rights (ZLHR)
April 29, 2005
http://www.legalbrief.co.za/article.php?story=20040429153819999
This report
was first published in Legal Brief Africa
Introduction
It is not possible to give an overview that covers the themes expected
in this paper without giving a broad background of the general human
rights environment in Zimbabwe first. I will therefore give a very
general but extensive background of the human rights situation in
Zimbabwe from about 2000 to date since this places current developments
in Zimbabwe into context.
General Background Information
It is necessary to superficially refer to the year 2000 because
that is when ZANU PF using its control over national resources initiated
a systematic, sustained and calculated process both legislatively
and non legislatively of trampling upon and curtailing basic fundamental
rights with the objective of retaining political power in Zimbabwe
through hook or crook. Unmitigated, nationwide politically motivated
organised violence and intimidation was started in earnest in 2000
and merely escalated systematically over the years right through
to the present date. In 2000, Zimbabwe had two politically important
electoral processes, the constitutional referendum which the Government
lost and the parliamentary election which ZANU(PF) claimed to have
narrowly won in controversial circumstances albeit allegations of
electoral irregularities, including politically motivated violence,
torture and intimidation. Indeed subsequent to the election results
the High Court has nullified results in 8 constituencies which is
a record in Zimbabwe. The significance of the results of these electoral
processes is that for the first time in the history of Zimbabwe,
the country found itself with a genuine and credible opposition
party with a realistic chance of winning a free and fair election
and thus dethroning ZANU (PF) from power. The elections were marred
by politically motivated violence with over 200-recorded deaths.
The government also engineered violent farm invasions which phenomenon
it conveniently termed a land reform programme or third chimurenga
to disguise the political motives. Soon the rural areas became virtually
inaccessible for human rights defenders ("hrds") after
non legislated militias war veterans and the youth brigade were
deployed to curtail freedom of movement, assembly, association,
and of expression. These militias remain deployed in virtually all-rural
areas and reports are that 5000 new recruits were trained and deployed
in the last few weeks in order to influence the 2005 parliamentary
elections. Certain areas became known to be no go areas for opposition
and hrds in general such as Mount Darwin North and South, Guruve
and Shamva, Uzumba Marambapfungwe, Mashonaland West Province and
Midlands province. In the final report on the Presidential election
of March 2002 the Zimbabwe Election Support Network (ZESN) reported
that; "the number of known militia bases were located as follows
in the provinces: Mashonaland Central (40); Matabeleland (29); Mashonaland
West (23); Masvingo (13); Bulawayo (13); Mashonaland East (9); Chitungwiza
(9); and Harare (5). In Masvingo the party militia was camped at
vice President Muzenda’s Paradise Motel"
Presently there is still no meaningful human rights activity in
virtually all rural areas in Zimbabwe and unless this issue is addressed
urgently, the information gap between urban and rural areas will
continue which will result in no meaningful changes in the election
results to patterns in future elections especially the impending
2005 Parliamentary Elections. Members of the judiciary were not
spared either from politically motivated violence as will be evident
in this paper.
The government conveniently linked and continues to link human rights
defenders and NGOs with the opposition Movement For Democratic Change
in order to ostracise them. Torture as a tool of repression was
used extensively with over 1000 documented cases in October 2002.
Teachers who fit the definition of hrds by virtue of their special
place in civilisation became targets of politically motivated violence
in 2002 with reports of violence against teachers being received
in 8 out of the 10 provinces. Over 35 schools were reported closed
in Masvingo province alone due to intimidation of teachers. 107
503 teachers were forced to pay protection fees. 20 994 teachers
were kidnapped, 15 659 assaulted/harassed, 14 442 displaced, and
4926 received death reports. Rape was also reported to have been
used as a weapon to fight political opponents by ZANU (P.F).
Arbitrary arrest and detention, kidnapping, selective prosecution,
denial of fair trial, degrading and inhuman prison conditions, promulgation
of repressive legislation such as The Public Order and Security
Act ( Cap 11:17) and The Access to Information and Protection of
Privacy Act (Cap 10:27) were other methods used to curtail enjoyment
of fundamental rights and also create a minefield for hrds.
Between 1 January 2002 and 14 April 2002 the total cumulative picture
of documented politically motivated violence was as follows; 54
deaths/executions; 48 schools closed; 229 threats/intimidation;
214 kidnappings; 29 disappearances; 5 rape cases; 241 property damages;
945 cases of torture; and 242 unlawful detentions.
The situation has not yet improved with torture, violence, intimidation,
and selective prosecution on the increase in 2003. The worrisome
factor of the new wave of torture being the involvement of members
of the armed forces who raid targeted victims including hrds in
the middle of the night. Job Sikhala and his lawyer Gabriel Shumba
who has since sought political asylum elsewhere were severely tortured
in a case well documented in the courts. State agents or die-hard
ZANU P.F activists have specifically targeted journalists, lawyers
and public prosecutors. Ordinary activists in communities have been
targeted as well throughout the country with MDC members routinely
arrested and tortured. About 400 of them were arrested in March
and April 2003 alone after the President encouraged state agents
to be ruthless with activists during his eulogy at the late Minister
of Transport Dr Swithum Mombeshora’ burial at the heroes acre. Members
and former members of the defence forces and the police have also
been specifically targeted for abuse in order to instill fear and
discipline to serving members and to make them more susceptible
to political control. The
political environment in which the hrds have worked since 2000 was
therefore very trying and dangerous. With a political environment
as volatile and unpredictable like the one prevailing in Zimbabwe
presently, the work of a hrd is therefore very risky and tricky.
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 Visit
the ZLHR fact
sheet
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