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Zim
NGO Bill: dangerous for human rights defenders
Betrays High Degree of Gvt Paranoia
and Contempt For the Regional and International Community
Arnold Tsunga and Tafadzwa Mugabe, Zimbabwe Lawyers for Human Rights
(ZLHR)
July 28, 2004
Why the Government
of Zimbabwe would pass such Legislation
It is submitted that this new law is motivated by a number of factors,
some of which are
1) A desire by government
to restrict democratic space and reduce scrutiny of its human rights
record.
2) A desire by government to further limit enjoyment of universally
recognised rights and fundamental freedoms by the people of Zimbabwe.
3) To create a black out of news on Zimbabwe filtering out to the regional
and international community.
4) To reinforce an uneven playing field in matters of political governance
and maintain the status quo.
The immediate motivation
to fast track the bill into law before the 2005 Parliamentary Elections
seems to be particularly a vindictive and punitive response to the adverse
report by the African Commission on its fact finding mission to Zimbabwe.
Evidence that the
government was bent on targeting NGOs that they disliked first manifested
itself in real terms in September 2002 when the government placed adverts
in the local newspapers calling on NGOs to register in terms of the PVO
Act when it was not necessary for NGOs to do so in law and in fact. The
government has frequently accused local NGOs and hrds as working against
the interests of Africa and as agents of imperialism.7
The September 11 2002 events in the USA have also been taken advantage
of by the government to apply pressure on hrds in Zimbabwe. The use of
the word "terrorists" is now quite generous to include some
of the work of hrds in Zimbabwe. An example of government propaganda against
hrds and civil society comes in the form of an advert the Department of
Information in the Office of the President and Cabinet placed in the public
media after mass stayaways, which reads;
"On March
18 and 19, terrorists, thugs and lawless elements using brutal tactics
of Rhodesian Selous Scouts conspired with so called civil society, opposition
press, self-proclaimed human rights activists and some church groups
to unleash violence and thuggery on ordinary people under the guise
of mass action.
Where and what is the connection between human rights and the mass violence
of attempting to derail a passenger train ferrying innocent people?
That is sheer massive violence!
TIME NOW FOR ACTION AGAINST MASS VIOLENCE!"8
On 8 August 2003
the state controlled Media Information Commission's Dr Mahoso alleged
that MISA, by not registering under AIPPA "have defied legislation
and they too have the status of an outlaw".9
Further on 23 August 2003 the Justice Minister said NGOs ought to be accountable
to the state. This was because government perceived NGOs as partner of
the opposition.10 On 5 April 2004,
the state controlled The Herald reported that "the opposition MDC
was heavily funded by NGOs from its inception in 1999 and many church
leaders have been using the pulpit to further the ambitions of the opposition
party . . . The bill would require all churches and NGOs that come into
the country to follow the government structures when doing their work"
citing Minister Mangwana in support of the story.11
The recent adverse
report by the ACHPR on the Human rights situation in Zimbabwe is also
used as justification to clamp down on NGOs. According to the Herald of
6 July 2004 "the report was similar to reports produced by the British
funded Amani Trust, which is well known for its anti-Zimbabwe stance and
falsifying the situation in the county". The Sunday Mail of 11th
July 2004 carried a story on how the Zimbabwe Association of Doctors for
Human Rights (ZADHR) was a political outfit which was instrumental in
the compilation of the ACHPR's report on gross human rights abuses
in Zimbabwe12. Another state controlled
newspaper, The Sunday Mail of 11 July 2004 had its lead opinion state
that "Those who followed the debate regarding the selection of those
commissioners who visited Zimbabwe and the Secretariat staff will have
realised the dangers which would have emanated from the composition and
the likelihood of the Zimbabwean opposition and "NGO" sector
influencing the report or re-writing the report. Reading through the report,
one detects the hand of a known Zimbabwean lawyer and the Amani racists"13
. The comment in the 11 July 2004 edition of the Sunday Mail alleged that
Nordic NGOs and the British funded the African Commission.14
On 18 July 2004 the Sunday Mail reported that the Minister of Local Government
Public Works and National Housing had accused NGOs of creating parallel
governance structures in their areas of operation in an effort to help
the opposition to destabilise the country instead of fulfilling their
mandate.15
Implications
for NGOs
It is to be
noted that this is not the first time that the government of Zimbabwe
has promulgated a piece of legislation in order to curtail the work of
hrds and the organisations in which they work. The most infamous piece
of legislation that has similar provisions and purpose as the draft NGO
Bill is the Access to Information and Protection of Privacy Act (AIPPA)
which was promulgated on 15 March 2002 a few days after the disputed Presidential
election results were announced. The temptation to protest against this
bill, which the ANZ did in relation to AIPPA is high but the price like
in the ANZ can also be high. As Geof Feltoe16
noted
"after the
Access to Information and Protection of Privacy Act came into operation,
the ANZ believed that its fundamental rights would be seriously prejudiced
if it registered under the Act. It was of the opinion that if it subjected
itself to the controls contained in the Act its right to freedom of
expression would be drastically curtailed and it would be hamstrung
in disseminating information to its readers. It believed that the Minister
and the Commission responsible for applying the controls were partisan
and highly biased against the private media in general and the Daily
News in particular and that the controls would therefore be applied
in a biased and prejudicial way against it.
The ANZ did not, however,
adopt the stance that it would simply ignore the new law and dare the
authorities to prosecute them. Instead it approached the Supreme Court
for a ruling upon the constitutionality of the law. Essentially it challenged
the provisions relating to the registration of newspapers and control
of newspapers by the government appointed Media and Information Commission.
It also raised objections to the requirement for registration that it
disclose its private business operations and financial details, and that
it submit the curricula vitae of all its managers and directors, and to
disclose the political affiliations."
The Supreme Court
ruled that the ANZ had openly defied the law by failing to register under
AIPPA as required and therefore had approached the Court with "dirty
hands". Consequently the Supreme Court refused to grant the ANZ
audience in the constitutional challenge and ruled that the ANZ was operating
outside the law. The Court operated on the basis that once a law is promulgated,
then there is a presumption that it is constitutional unless the Court
rules it to be unconstitutional. In the circumstances, citizens are compelled
to comply with such law even if they believe it to be unconstitutional
before they can be given audience to challenge it in the Supreme Court.
Thereafter the police promptly sealed off the premises of ANZ and its
printing press and forcibly stopped publications of the Daily News and
The Daily News on Sunday. In other cases, BSA was used to forcibly shut
Capital Radio, Joy TV and Mhunumutapa broadcasters leaving the state controlled
ZBC with the monopoly over electronic media. AIPPA was also used with
judicial sanction to close another independent newspaper, The Tribune.17
In the circumstances
if the bill is enacted into law, then the implications are that all NGOs
will have to register in terms of the NGO law, failing which they will
be closed. It will not matter that the NGOs view the registration requirement
as unlawful because in terms of the "dirty hands" doctrine,
they will be required to first register before they can be entitled to
challenge the legislation in a court of law. Further, failure to register
will open up senior employees and board members of unregistered NGOs to
personal criminal sanctions.
7 The Daily Mirror 23/04/03;
The Herald 23 April 2003;The Sunday Mail 20 April 2003 Financial Gazzette
24/April 2003.
8 The Daily Mirror 23/04/03; The Herald 23/04/03;The Sunday Mail 20/04/03
Financial Gazette 24/04/03
9 Zimbabwe Independent
August 8, 2003 p3
10 The Herald quoted the Minister of Justice Patrick Chinamasa as follows,
"NGOs should be accountable to the government of the day. We cannot
allow a situation where NGOs operate in our country like misguided missiles"
11 The Herald 5 April 2004 quoted Minister of Public Service Labour and
Social Welfare, Paul Mangwana as follows "Some NGOs and churches are
causing too much confusion in the country because they are converting their
humanitarian programmes into politics . . . The government cannot allow
that to happen, so we saying they should go under scrutiny where we revise
all the modalities of their operations in the country"
12 The news paper reported that "The Zimbabwe Association of Doctors
for Human Rights, an obscure political group of medical doctors has renewed
efforts to join the Zimbabwe Medical Association amid reports that ZADHR
was instrumental in the compilation of the African Commission on Human and
Peoples Rights report alleging human rights abuses in Zimbabwe . . . The
Zimbabwean government has accused some western governments, most notably
those of Britain and the USA, of working with lawyers, NGOs some journalists
in the privately owned press and civic groups to demonise the government
in efforts to effect an illegal regime change. The ZADHR is believed to
be one of the vehicles through which the forces are trying to spread malicious
reports about the human rights situation in the country"
13 The Sunday Mail quotes the ZANU PF senior member William G Nhara as saying
" Konare, a French and a latter-day USA protégé, is
dancing to the tune of his USA and EU masters . . . What is disturbing
about the early days of Konare in office is that he demonstrates a complete
naivety about African politics . . . There is an axis of neo-colonialism
permeating the structures of the AU and the real Africans, like Zimbabweans
should stand up and fight . . . The current axis of evil at the AU involve
Konare (Mali), Mazimaka (Rwanda) Deputy Chair, and Dr Vogt (Nigeria) Cabinet
Director . . . What has become apparent is the fact that Southern Africa
is of no consequence to the developments at the AU secretariat."
14 The state controlled Sunday Mail reported, "The language and conclusion
reached by the Commission are no different from that of Blair and his puppets
in this country."
15 The Sunday Mail of 18 July 2004 citing Minister Chombo had the headline
"Fall in Line or close, Govt tells NGOs. Unregistered and political
set-ups face stern action."
16 Geof Feltoe is a professor at law lecturing at the University of Zimbabwe.
17 On 23 July 2004, ZLHR issued a statement on the closure of the Tribune
Newspaper part of which read "The decision to uphold the Tribune's
closure by the courts is in this context regrettable and seriously undermines
the enjoyment by Zimbabweans of rights enshrined in the constitution and
international instruments that Zimbabwe has signed and ratified. That another
independent newspaper is forcibly closed within 1 year of the closure of
another in circumstances where a court judgement will be used as justification
therefor is a serious indictment on the independence of the judiciary in
Zimbabwe."
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