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Executive
Summary of the Report of the Fact-finding Mission to Zimbabwe 24th
to 28th June 2002
African
Commission on Human and Peoples Rights (African Commission)
Date published unknown
Executive
Summary
Introduction
Following widespread reports of human rights violations in Zimbabwe,
the African Commission on Human and Peoples Rights (African Commission)
at its 29th Ordinary Session held in Tripoli from 23rd
April to 7th may 2001 decided to undertake a fact-finding
mission to the Republic of Zimbabwe from 24th to 28th
June 2002.
The state purpose
of the Mission was to gather information on the state of human rights
in Zimbabwe. In order to do so, the Mission sought to meet with
representatives of the Government of the Republic of Zimbabwe, law-enforcement
agencies, the judiciary, political parties and with organised civil
society organisations especially those engaged in human rights advocacy.
The method of the fact-finding team was to listen and observe the
situation in the country from various angles, listen to statements
and testimony of the many actors in the country and conduct dialogue
with the government and other public agencies.
Findings
- The Mission
observed that Zimbabwean society is highly polarized. It is a
divided society with deeply entrenched positions. The land question
is not in itself the cause of division. It appears that at heart
is a society in search of the means for change and divided about
how best to achieve change after two decades of dominance by a
political party that carried the hopes and aspirations of the
people of Zimbabwe through the liberation struggle into independence.
- There is
no doubt that from the perspective of the fact-finding team, the
land question is critical and that Zimbabweans, sooner or later,
needed to address it. The team has consistently maintained that
from a human rights perspective, land reform has to be the prerogative
of the government of Zimbabwe. The Mission noted that Article
14 of the African Charter states "The right to property shall
be guaranteed. It may only be encroached upon in the interest
of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws".
It appears to the Mission that the Government of Zimbabwe has
managed to bring this policy matter under the legal and constitutional
system of the country. It now means that land reform and land
distribution can now take place in a lawful and orderly fashion.
- There was
enough evidence placed before the Mission to suggest that, at
the very least during the period under review, human rights violations
occurred in Zimbabwe. The Mission was presented with testimony
from witnesses who were victims of political violence and others
victims of torture while in police custody. There was evidence
that the system of arbitrary arrests took place. Especially alarming
was the arrest of the President of the Law Society of Zimbabwe
and journalists including Peta Thorncroft, Geoffrey Nyarota, among
many others, the arrests and torture of opposition members of
parliament and human rights lawyers like Gabriel Shumba.
- There were
allegations that the human rights violations that occurred were
in many instances at the hands of ZANU PF party activists. The
Mission is however not able to find definitively that this was
part of an orchestrated policy of the government of the Republic
of Zimbabwe. There were enough assurances from the Head of State,
Cabinet Ministers and the leadership of the ruling party that
there has never been any plan or policy of violence, disruption
or any form of human rights violations, orchestrated by the State.
There was also an acknowledgement that excesses did occur.
- The Mission
is prepared and able to rule, that the Government cannot wash
its hands from responsibility for all these happenings. It is
evident that a highly charged atmosphere has been prevailing,
many land activists undertook their illegal actions in the expectation
that government was understanding and that police would not act
against them – many of them, the War Veterans, purported to act
as party veterans and activists. Some of the political leaders
denounced the opposition activists and expressed understanding
for some of the actions of ZANU PF loyalists. Government did not
act soon enough and firmly enough against those guilty of gross
criminal acts. By its statements and political rhetoric, and by
its failure at critical moments to uphold the rule of law, the
government failed to chart a path that signalled a commitment
to the rule of law.
- There has
been a flurry of new legislation and the revival of the old laws
used under the Smith Rhodesian regime to control, manipulate public
opinion and that limited civil liberties. Among these, the Mission’s
attention was drawn to the Public Order and Security Act, 2002
and the Access to Information and Protection of Privacy Act, 2002.
These have been used to require registration of journalists and
for prosecution of journalists for publishing "false information".
All of these, of course, would have a "chilling effect"
on freedom of expression and introduce a cloud of fear in media
circles. The Private Voluntary Organisations Act has been revived
to legislate for the registration of NGOs and for the disclosure
of their activities and funding sources.
- There is
no institution in Zimbabwe, except the Office of the Attorney
General, entrusted with the responsibility of oversight over unlawful
actions of the police, or to receive complaints against the police.
The Office of the Ombudsman is an independent institution whose
mandate was recently extended to include human rights protection
and promotion. It was evident to the Mission that the office was
inadequately provided for such a task and that the prevailing
mindset especially of the Ombudsman herself was not one which
engendered the confidence of the public. The Office was only about
the time we visited, publishing an annual report five years after
it was due. The Ombudsman claimed that her office had not received
any reports of human rights violations. That did not surprise
the Mission seeing that in her press statement following our visit,
and without undertaking any investigations into allegations levelled
against them, the Ombudsman was defensive of allegations against
the youth militia. If the Office of the Ombudsman is to serve
effectively as an office that carries the trust of the public,
it will have to be independent and the Ombudsman will have to
earn the trust of the public. Its mandate will have to be extended,
its independence guaranteed and accountability structures defined.
- The Mission
was privileged to meet with the Chief Justice and the President
of the High Court. The Mission Team also met with the Attorney
General and Senior Officers in his office. The Mission was struck
by the observation that the judiciary had been tainted and even
under the new dispensation bears the distrust that comes from
the prevailing political conditions. The Mission was pleased to
note that the Chief Justice was conscious of the responsibility
to rebuild public trust. In that regard, he advised that a code
of conduct for the judiciary was under consideration. The Office
of the Attorney General has an important role to play in the defence
and protection of human rights. In order to discharge that task
effectively, the Office of the Attorney General must be able to
enforce its orders and that the orders of the courts must be obeyed
by the police and ultimately that the profession judgement of
the Attorney General must be respected.
- The Mission
noted with appreciation the dynamic and diverse civil society
formations in Zimbabwe. Civil society is very engaged in the developmental
issues in society and enjoys a critical relationship with government.
The Mission sincerely believes that civil society is essential
for the upholding of a responsible society and for holding government
accountable. A healthy though critical relationship between government
and civil society is essential for good governance and democracy.
Recommendations
In
the light of the above findings, the African Commission offers the
following recommendations -:
- On National
Dialogue and Reconciliation
Further
to the observations about the breakdown in trust between government
and some civil society organisations especially those engaged
in human rights advocacy, and noting the fact that Zimbabwe is
a divided society, and noting further, however, that there is
insignificant fundamental policy difference in relation to issues
like land and national identity, Zimbabwe needs assistance to
withdraw from the precipice. The country is in need of mediators
and reconcilers who are dedicated to promoting dialogue and better
understanding. Religious organisations are best placed to serve
this function and the media needs to be freed from the shackles
of control to voice opinions and reflect societal beliefs freely.
- Creating
an Environment Conducive to Democracy and Human Rights
The
African Commission believes that as a mark of goodwill, government
should abide by the judgements of the Supreme Court and repeal
sections of the Access to Information Act calculated to freeze
the free expression of public opinion. The Public Order Act must
also be reviewed. Legislation that inhibits public participation
by NGOs in public education, human rights counselling must be
reviewed. The Private Voluntary Organisations Act should be repealed.
- Independent
National Institutions
Government
is urged to establish independent and credible national institutions
that monitor and prevent human rights violations, corruptions
and maladministration. The Office of the Ombudsman should be reviewed
and legislation which accords it the powers envisaged by the Paris
Principles adopted. An independent office to receive and investigate
complaints against the police should be considered unless the
Ombudsman is given additional powers to investigate complaints
against the police. Also important is an Independent Electoral
Commission. Suspicions are rife that the Electoral Supervisory
Commission has been severely compromised. Legislation granting
it greater autonomy would add to its prestige and generate public
confidence.
- The Independence
of the Judiciary
The
judiciary has been under pressure in recent times. It appears
that their conditions of service do not protect them from political
pressure; appointments to the bench could be done in such a way
that they could be insulated from the stigma of political patronage.
Security at Magistrates’ and High Court should ensure the protection
of presiding officers. The independence of the judiciary should
be assured in practice and judicial orders must be obeyed. Government
and the media have a responsibility to ensure the high regards
and esteem due to members of the judiciary by refraining from
political attacks or the use of inciting language against magistrates
and judges. A Code of Conduct for Judges could be adopted and
administered by the judges themselves. The African Commission
commends to the Government of the Republic of Zimbabwe for serious
consideration and application of the Principles and Guidelines
on the Right to Fair Trial and Legal Assistance in Africa adopted
by the African Commission at its 33rd Ordinary Session
in Niamey, Niger in May 2003.
- A Professional
Police Service
Every
effort must be made to avoid any further politicisation of the
police service. The police service must attract all Zimbabweans
from whatever political persuasion or none to give service to
the country with pride. The police should never be at the service
of any political party but must at all times seek to abide by
the values of the Constitution and enforce the law without fear
or favour. Recruitment to the service, conditions of service and
in-service training must ensure the highest standards of professionalism
in the service. Equally, there should be an independent mechanism
for receiving complaints about police conduct. Activities of units
within the ZRP like the law and order unit which seems to operate
under political instructions and without accountability to the
ZRP command structures should be disbanded.
There were also reports that elements of the CIO were engaged
in activities contrary to the international practice of intelligence
organisations. These should be brought under control. The activities
of the youth militia trained in the youth camps have been brought
to our attention. Reports suggest that these youth serve as party
militia engaged in political violence, The African Commission
proposes that these youth camps be closed down and training centres
be established under the ordinary education and employment system
of the country. The Africa Commission commends for study and implementation
the Guidelines and Measures for the Prohibition and Prevention
of Torture, Cruel, Inhuman or Degrading Treatment or Punishment
in Africa (otherwise know as the Robben Island Guidelines)
adopted by the African Commission at its 32nd Ordinary
Session held in Banjul, The Gambia in October 2002.
- The Media
A
robust and critical media is essential for democracy. The government
has expressed outrage at some unethical practices by journalists,
and the Access to Information Act was passed in order to deal
with some of these practices. The Media and Ethics Commission
that has been established could do a great deal to advance journalistic
practices, and assist with the professionalisation of media practitioners.
The Media and Ethics Commission suffers from the mistrust on the
part of those with whom it is intended to work. The Zimbabwe Union
of Journalists could have a consultative status in the Media and
Ethics Commission. Efforts should be made to create a climate
conducive to freedom of expression in Zimbabwe. The POSA and Access
to Information Act should be amended to meet international standards
for freedom of expression. Any legislation that requires registration
of journalists, or any mechanism that regulates access to broadcast
media by an authority that is not independent and accountable
to the public, creates a system of control and political patronage.
The Africa Commission commends the consideration and applications
of the Declaration on The Principles of Freedom of Expression
in Africa adopted by the 32nd Ordinary Session
of the African Commission in Banjul, October 2002.
- Reporting
Obligations to the African Commission
The
African Commission notes that the Republic of Zimbabwe now has
three overdue reports in order to fulfil its obligations in terms
of Article 62 of the Africa Charter. Article 1 of the Africa Charter
states that State Parties to the Charter shall "recognise
the rights, duties and freedoms enshrined in the Charter and shall
undertake to adopt legislative or other measures to give effect
to them." Article 62 of the Africa Charter provides that
each State Party shall undertake to submit every two years "a
report on the legislative or other measures taken, with a view
to giving effect to the rights and freedoms recognised and guaranteed
by the present Charter." The African Commission therefore
reminds the Government of the Republic of Zimbabwe of this obligation
and urges the government to take urgent steps to meet its reporting
obligations. More pertinently, the African Commission hereby invites
the Government of the Republic of Zimbabwe to report on the extent
to which these recommendations have been considered and implemented.
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