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This article participates on the following special index pages:
Post-election violence 2008 - Index of articles & images
Attacking
the last line of defense: Lawyers defending human rights defenders
Zimbabwe Lawyers for Human Rights (ZLHR)
June 10, 2008
Regrettably it has become
commonplace to hear of regular and increasingly frequent attacks
against members of the legal profession, both in the private sector,
and those within the public service in Zimbabwe. The incidents -
which have ranged from denial of entry into police stations, denial
of access to clients, verbal and physical attacks on lawyers and
prosecutors attending police stations, pointing of weapons at lawyers,
surveillance of lawyers, their homes and activities, arrest and
detention of lawyers, threats and attacks against the families of
lawyers, death threats, and public physical assaults on lawyers
amounting to torture, cruel, inhuman and degrading treatment - have
been well documented and are a matter of public record.
However, in recent weeks,
the operating environment for members of the legal profession, more
particularly human rights lawyers, has been shrunk to the extent
that it is becoming almost impossible for them, as officers of the
court, to perform their professional duties and functions.
On Friday 30
May 2008, Zimbabwe Lawyers for Human Rights (ZLHR) was advised by
its network partner, the Southern Africa Litigation Centre (SALC),
that it had received Mr. Andrew Makoni in its offices in Johannesburg,
South Africa. He had fled the country after receiving credible information
to the effect that he was on a list of human rights lawyers targeted
for imminent assassination for representing members of the Movement
for Democratic Change (MDC). This information had allegedly been
independently verified from two separate sources to two other lawyers,
and has also been publicized by the African Bar Associations (incorporating
the SADC Lawyers' Association, the East African Law Society
and the West African Bar Associations, as well as the global legal
body, the International Bar Association). He, or other human rights
lawyers, were to be "made an example" to dissuade other
lawyers from taking up the defence of targeted human rights defenders
in the run-up to the presidential election run-off, and in the face
of escalating human rights violations in several provinces.
SALC further advised
that it had addressed urgent letters to the Minister of Justice,
Legal & Parliamentary Affairs, the Commissioner-General of Police,
the Director of the Central Intelligence Organization, and the Acting
Attorney-General, setting out the allegations, reminding them of
their constitutional obligations to protect lawyers, and requesting
a response and action to protect all lawyers in the country. SALC
has not yet received a response. Mr. Makoni represents a wide range
of human rights defenders, with leaders and members of the MDC forming
the foundation of his legal practice.
A week later, reports
reached ZLHR that human rights lawyer, Mr. Harrison Nkomo, had also
been forced to leave the country after receiving the same information
and believing that his life was under threat. He is also currently
reported to be in South Africa. Mr. Nkomo represents media practitioners
as well as leaders and members of the MDC.
On 9 June 2008,
ZLHR was advised that various individuals had gathered around the
vehicle of Mr. Alec Muchadehama outside his legal practice in Harare,
and were waiting for him to emerge from his office. Vehicles were
parked at the exits of the building, as well as outside his home.
Realizing that these were not ordinary police officers sent to arrest
him, he immediately went into hiding. He, too, represents a significant
number of human rights defenders, including MDC leaders and members,
and assorted civil society organizations, including the National
Constitutional Assembly, the Zimbabwe
Congress of Trade Unions, and the Christian Alliance (whose
case he was attending when his office and home were surrounded).
These are the most recent
examples of a deeply disturbing clampdown on the legal profession,
but are not the only cases to have been reported recently to ZLHR.
Lawyers who have left the jurisdiction have also been reported to
have alleged that "mass arrests" are being planned in
the final weeks before the election run-off, and that human rights
lawyers are considered as being a "barrier" to ensuring
that targeted individuals remain in custody while the election is
ongoing.
The Constitution
of Zimbabwe in its Declaration of Rights, section 13(3), guarantees
a person who is arrested or detained the right to "obtain
and instruct without delay a legal representative of his own choice
and hold communication with him". The African Charter on Human
and Peoples' Rights (to which Zimbabwe is a State Party),
and the African Union's Principles and Guidelines on the Right
to Fair Trial and Legal Assistance in Africa ("the Principles
and Guidelines"), both reaffirm these rights.
The Principles and Guidelines
further stipulate that every accused person has the right to an
effective defence and representation, and that the independence
of lawyers shall be guaranteed. In particular, the state is obliged
to ensure that lawyers:
are able to perform all
of their professional functions without intimidation, hindrance,
harassment or improper interference;
are able to travel and
to consult with their clients freely both within their own country
and abroad;
shall not suffer, or
be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognized professional
duties, standards and ethics
Lawyers also "shall
enjoy civil and penal immunity for relevant statements made in good
faith in written or oral pleadings or in their professional appearances
before a judicial body or other legal or administrative authority",
and "shall not be identified with their clients or their clients'
cause as a result of discharging their functions" (our emphasis).
Where the security of lawyers is threatened as a result of discharging
their functions, they shall be adequately safeguarded by the authorities.
Similar safeguards have
been laid out in various United Nations (UN) instruments (to which
Zimbabwe is a State Party) and expanded particularly in the UN Basic
Principles on the Role of Lawyers, of which the state is well aware
as a member of the UN.
Zimbabwe Lawyers for
Human Rights (ZLHR) wishes to warn of the dire consequences ahead
for human rights defenders, civic organizations and legitimate political
party leaders and members as a result of the clampdown on lawyers.
Such targeting of lawyers - even the mere allegation that there
exists a "list" of lawyers for elimination - has a chilling
effect on all members of the legal profession and, by implication,
on the affected individuals whose rights they seek to protect.
We urge our members to
remain committed to the representation of all human rights defenders,
no matter their political persuasion, in compliance with their constitutional
obligations. At the same time, we urge them to exercise vigilance
and extreme caution in relation to their security, and to immediately
report all threats of attack and/or actual attacks to the responsible
authorities, to the Law Society of Zimbabwe and to ZLHR, as well
as SADC diplomatic representatives and regional observers in Zimbabwe.
ZLHR further issues an
urgent call for the following, as a matter of extreme urgency:
An immediate cessation
by members of the police, army and central intelligence and/or other
individuals or organs acting on their behalf or with their knowledge
or acquiescence, of plans to commit acts and/or ongoing acts of
intimidation, threat, attack, abduction (enforced disappearance)
and/or extra-judicial execution of members of the legal profession,
their families, or work colleagues.
That the Minister of
Justice, Legal & Parliamentary Affairs, the Commissioner-General
of Police, the Director of the Central Intelligence Organization,
and the Acting Attorney General provide a public undertaking that
all members of the legal profession will be properly protected by
the authorities in compliance with their constitutional, regional
and international law obligations, and will be allowed to continue
representing all and any clients who call upon their services without
fear or favour.
That the authorities
respond immediately to the claims made by SALC, other regional and
international law bodies, and affected human rights lawyers and
advise of what action is being taken to ensure that members of the
legal profession are guaranteed their constitutional rights, including
the right to life, and safety and security of their person. That
regional observer missions currently in the country, and those following,
urgently take up this grave matter with the relevant authorities
and provide public assurances and information of their interventions
to the legal profession in this regard.
That the SADC mediator,
President Thabo Mbeki, immediately and diligently investigates this
state of affairs and makes a public statement on action taken, information
received, and steps which will be taken to ensure the safety of
the legal profession and their clients, as well as reduce the threats
to peace and security in Zimbabwe and the region in the run-up to
the presidential election run-off, and beyond 27 June 2008.
Visit the ZLHR
fact
sheet
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