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Celebrating
minor victories? Zim at African Commission on Human and Peoples'
Rights
Otto Saki
Extracted from Pambazuka News 328
November 15, 2007
http://pambazuka.org/en/category/comment/44417
The situation
in Zimbabwe has continued to degenerate and attract widespread attention.
The African Commission on Human and Peoples' Rights (the commission,
hereafter) is an intergovernmental organisation which has been seized
with several appeals about violations of human rights over freedom
of expression, torture, politically motivated violence, undermining
of the judiciary and independent national mechanisms and forced
evictions under the guise of clean-up campaigns. There have been
interventions over breaches and affronts against the African Charter
on Human and Peoples' Rights (the charter, hereafter) to which
Zimbabwe is a party. The level, nature and extent of intervention
by the commission have been argued over, particularly its mandate,
how it is carried out and nature of its recommendations. States
parties, including Zimbabwe, have abused or utilised what would
be ordinarily institutional formulation of the commission and charter
at the expense of the progressive development of African jurisprudence
and institutions.
While Africa is perceived
to have the worst human rights abuses, its human rights mechanisms
either remain heavily inadequate or, as in most cases, are deliberately
and overtly undermined by state actions. This undoubtedly makes
a mockery of the efforts of those who provide their services as
commissioners and as judges before the African Court on Human and
Peoples' Rights (the court, herafter). The commission has
gone through a remarkable phase of growth and has experienced its
fair share of challenges, but it is safe to say its value as an
African institution is second to none. For some states it has become
a 'source of marvel' and for others a 'source
of pain', but one cannot at this juncture wish the commission
away.
Sessions
of the commission
The work of
regional and sub-regional intergovernmental human rights institutions
remain very closely knitted with the work of human rights organisations,
and Zimbabwe is no exception. Through the granting of observer status,
organisations are recognised not only by the commission but effectively
by the African Union. Currently, more than seven organisations with
observer status before the commission have been involved in the
implementation of the charter in Zimbabwe. The commission's
work on Zimbabwe gained significant momentum during its 31st session,
when Zimbabwe topped the agenda during the NGO forum. As a result
the government of Zimbabwe agreed to accept a fact-finding mission
into its human rights record. The African NGO Forum met ahead of
the commission and adopted the first statement on Zimbabwe. The
commission was further seized of the communication from the Zimbabwe
Human Rights NGO Forum, making it the first substantial communication
on Zimbabwe.
With the commission's
decision to send a fact-finding mission, Harare became more and
more aggressive in its public stance on human rights organisations
and the commission itself. This marked the beginning of increased
verbal attacks on the commission and the commissioners, sadly with
the African Union providing little or no defence, at least publicly,
of the work of the commission. This made it possible for some to
assume that the attacks on the commission were justified whereas
in fact they were uncalled for and completely inappropriate.
Fact-finding
mission to Zimbabwe
The commission
conducted its first fact-finding mission to Zimbabwe from 24 to
28 June 2002. Several meetings were held with government ministries,
notably home affairs and justice, members of the judiciary, human
rights advocates and lawyers, as well various civil society organisations.
When the report
was presented to the government of Zimbabwe, unparalleled attacks
and criticisms of the commission were published: The Herald, a state-controlled
newspaper, wrote on 6 July 2004: 'According to the sources,
the [African Commission] 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 country.' An editorial
in The Sunday Mail on 11 July stated: 'Reading through the
[African Commission's] report one detects the hand of a known
Zimbabwean lawyer and the Amani racists.'
In another related diatribe
the papers bemoaned:
Pan-Africanists
who want to take seriously the Organisation of African Unity (OAU)
and its successor, the AU, find the debate over the fraudulent report
quite confusing and demoralising because of the failure of the African
journalists, especially, to go beyond the shallow events in the
story: that is, that the African Commission on Human and People's
Rights held some hearings and produced a fraudulent report with
the assistance of the British, other donors and some racist (non-governmental
organisations) NGOs. What is missing from the story is the fact
that this report is the latest in a series of lies, especially about
and against Zimbabwe.
Several other statements
were later made by government spin doctors, attacking the work of
the commission.
The report of
the fact-finding mission was adopted by the commission in its 17th
Activity Report. The government of Zimbabwe created unprecedented
havoc when the report was being adopted by the Executive Council
of Ministers, and effectively the African Union. Zimbabwe was allowed
to provide additional responses to the report, which was eventually
adopted by the African Union, along with Zimbabwe's response,
almost three years later. The findings of the commission remain
largely unimplemented and rights are being further undermined.
Following the
forced evictions of May 2005, the United Nations dispatched a special
envoy on human settlement, while the African Union hurriedly sent
in its Special Rapporteur on Internally Displaced Persons, Refugees
and Asylum Seekers. The government of Zimbabwe would not allow the
special rapporteur to carry out any field visits, arguing that proper
procedures of the African Union had not been followed. The African
Union envoy spent a week in 'solitary confinement' in
his hotel, an unfortunate development given the importance of regional
institutions.
Communications
and special mechanisms
The various
mechanisms under the commission, including the special rapporteurs
on human rights defenders[15] and on freedom of expression, have
responded to the apparent increase in attacks on human rights defenders,
women activists and journalists. However, the problem with these
mechanisms, as in similar systems, is the failure to provide adequate
human and financial resources to follow through most of the appeals.
Governments have to a large extent taken the urgent appeals seriously,
and the Zimbabwe government seems to have responded to most of the
appeals, though it is arguable whether the responses addressed the
issues raised or merely created excuses for continued violations
under the guise of maintaining law and order.
The commission
conducted a hearing on Zimbabwe under Article 46 of the charter,
which allows the commission to use any mechanism to investigate
human rights in a state party. In its usual display of disdain for
any practical and critical work of the commission, the delegation
from Zimbabwe refused to participate in the meeting, citing unfair
practices and procedural irregularities. It is interesting to note
that during the same session the delegation from Zimbabwe was distributing
print editions of New African magazine and two reports produced
by the Zimbabwe Republic Police (ZRP). The credibility of the national
police and in particular its intelligence gathering have been challenged.
It is arguable
that, after the communications submitted on Nigeria during the military
regime, Zimbabwe currently has the largest number of communications
before the commission. The subjects of the petitions range from
freedom of expression, to forced evictions, the independence of
national institutions such as the judiciary, extra judicial and
summary killings, torture, and inadequate legislative and constitutional
mechanisms.
Victories
before the commission
Working with
the commission has been simultaneously challenging and rewarding.
Of the communications submitted, at least one has been concluded
in which the government of Zimbabwe was found to have violated provisions
of the charter. In April 2006, the commission issued provisional
measures in respect of the forced evictions, directing the government
to take urgent and appropriate measures to obviate the general deterioration
of the health of terminally ill individuals who due to forced evictions
carried out under Operation Murambatsvina had no access to anti-retroviral
treatment. The government was also asked to ensure that school-age
children were able to sit their final exams, and to provide shelter
and medical treatment for the elderly and the sick.
While the procedures
of the commission badly need reform, it is critical to note the
importance of its decisions on the admissibility of a communication.
In no fewer than four separate incidents, the commission has ruled
communications submitted from Zimbabwe as admissible. These decisions
provide irrefutable evidence of the inadequacies of human rights
protection in Zimbabwe; they also imply the absence of effective
domestic remedies for the rights violations alleged in the communications.
Such decisions are an indictment of the judiciary as well as an
unequivocal indicator that the judiciary and the justice delivery
system in Zimbabwe no longer guarantee enjoyment of universally
recognised human rights and fundamental freedoms.
In Communication
245/02, Zimbabwe
Human Rights NGO Forum/Republic of Zimbabwe, the commission
made recommendations about the election- related violence of 2000
and 2002 as well as the violence orchestrated during the chaotic
land reform. In a statement the NGO Forum noted that the:
Commission found the
Government of Zimbabwe in violation of articles 1 and 7 of the African
Charter. This means that the Government of Zimbabwe had violated
the right to protection of the law and that it failed to put in
place measures to ensure the enjoyment of these rights by Zimbabweans.
The endorsement of the decision by the African Union is recognition
by African Heads of States that there are human rights violations
in Zimbabwe.
Political interference
and undermining the work of the commission
With civil society and
human rights organisations recording such public success, the government
of Zimbabwe has begun to pay more attention to the commission. With
like-minded countries that have equally poor human rights records,
it attacks, undermines and ridicules the work of the commission,
through subterfuge and unfounded interpretation of the rules of
procedure of the African Union and the commission. Such procedural
theatrics caused the delays in the publication of the report of
the fact-finding mission of 2002, as well as the decision of Communication
245/05. With the latter, the government of Zimbabwe made submissions
to the commission well after the completion of all inquiries and
hearings. Of concern are the African Union leadership's acquiescence
and conspicuous silence;[24] to a large extent the African Union
has failed to support the commission from government attacks. The
non-implementation of the commission's recommendations remains
a paramount concern.
Lessons
for Africa
The commission is a creation
of the African Union, with a mandate to monitor, promote and protect
the rights enshrined in the charter, the same charter which makes
it mandatory to implement legislative and administrative mechanisms
to deliver the rights in the charter. Because signing up to the
charter and similar instruments are voluntary acts, limiting a nation's
sovereignty, the commission has a unique status and neither seeks
to undermine national institutions such as courts, nor replace them.
Zimbabwe has regressed from a country that was hailed as the symbol
of progress and development to the antithesis of every principle
of development, human rights adherence, promotion and protection.
The importance of supra-national
institutions in enforcing universal and regional human rights standards
remains critical. The weakness inherent in these institutions is
an indictment of leadership in Zimbabwe - and in Africa. It
remains the prerogative of every progressive citizen of Africa to
safeguard these institutions from individuals who have bestowed
upon themselves powers to govern, misgovern, build and destroy.
Such powers, if unchecked and curtailed by invoking celebrated universal
human rights standards, will lead us to bondage and slavery under
our kith and kin. That day will indeed be a sad day for humanity
and Africa.
* Otto Saki
is a lawyer with Zimbabwe
Lawyers for Human Rights
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