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Political abductees, violence on farms and rule of law - Peace Watch
Veritas
June 10, 2009

State revives prosecution of Alec Muchadehama

On Tuesday Alec Muchadehama, the defence lawyer in the political abductee case now before the High Court, was served with a summons requiring him to stand trial at the magistrates court on Thursday 17th June on a charge of obstructing or defeating the course of justice. This came only a week after a magistrate refused to remand Mr Muchadehama on the identical allegations, saying that the State had failed to establish a reasonable suspicion that Mr Muchadehama had committed the alleged offence. Lawyers for Human Rights have criticised the State for blatantly seeking to intimidate and harass him and prevent him from executing his professional duties by reviving charges against him while he is acting in an important case. [They served papers on him at the court instead of his offices where they were addressed.] "The office of the Attorney General could be better utilizing resources and energies clearing up the backlog of cases which have unnecessarily filled up our prisons and prosecuting real, rather than imaginary criminals."

Trial of Political Abductees: Defence Seeks Referral to Supreme Court

The High Court trial did not start on Monday. It was postponed for a day to allow the presiding judge, Justice Uchena to consider the defence lawyer Alec Muchadehama's request for a referral to the Supreme Court to determine:

• whether the abductees' abduction/ kidnapping constituted unlawful deprivation of liberty in violation of section 13(1) of the Constitution
• whether the torture of the abductees constituted inhuman and degrading treatment in violation of section 15(1) of the Constitution
• whether the applicants, as victims of enforced disappearances, can lawfully be prosecuted and whether the abductees can be compelled to go on trial in circumstances where their appearance at court was facilitated by a criminal act of kidnapping/ abduction authorized or sanctioned by the State or officials of the State.
• the defence application also requested the Supreme Court to direct the Attorney General to order the Commissioner-General of the Police to institute a comprehensive and diligent investigation of the offences alleged to have been committed against each abductee with a view to prosecuting all perpetrators of the alleged offences before the abductees' possible prosecution.

Argument on this request was heard on Tuesday and Wednesday. Mr Muchadehama argued that to proceed with the criminal trial would be an infringement of the defendants' constitutional right to protection of the law and that under section 24(2) of the Constitution, the referral must be granted unless the judge considers the questions raised "merely frivolous or vexatious". The prosecutor argued against this on technicalities that were later proved to be based on incorrect facts and then fell back on the submission that the application was frivolous and vexatious without elaborating. Mr Muchadehama countered this by pointing out the gravity of the human rights violations which had occurred. The trial is adjourned until Monday 22nd June when judgment will be given.

Equal protection of the law essential to peace

Impartial application of the law is essential to establishing a just and peaceful society. This is emphasised in the preamble to the Inter-party political agreement. But there have been too many cases where the law has turned a blind eye instead of protecting citizens. In many cases of violence, especially dating from the pre- and post-election time last year, the perpetrators have never been arrested or brought to trial, and the victims have never received justice or restitution.

The recently released Human Rights NGO Forum report lists 872 incidents of state organised or state condoned violence during the first four months of this year, including 198 cases of unlawful detention, 198 cases of unlawful arrest, 4 cases of torture and 210 cases of political discrimination, intimidation and victimisation. The Forum states that the report is based on reports that are meticulously documented but by no means exhaustive. It also calls on the government "to bring to an end impunity for perpetrators of all human rights abuses and to ensure the rule of law is upheld" and on the police "to exercise restraint when dealing with unarmed protestors, as well as to treat all citizens fairly and within the confines of the law in the discharge of their duties." The HR Forum cases include cases of assault, kidnapping, etc. of farmers and farm workers.

No excuse for violation of citizens' rights to protection of the law

Neither in Zimbabwean law nor in international law does the fact that a matter is "political" or "politically sensitive" justify departures from the State's duty protect its citizens. In carrying out a political policy or even in the exercise of enforcing a court order, the law must be followed: "Every public officer has a duty towards every person in Zimbabwe to exercise his or her functions as a public officer in accordance with the law and to observe and uphold the rule of law." [Constitution, section 18(1a).] Public officers include all members of the Public Service, the Police Force and the Defence Forces. A public officer failing in this duty can be taken to court in his personal capacity and sued for damages caused by his failure.

This is highly relevant to the current wave of farm invasions because the use of violence or threats of violence in the course of such invasions is unlawful. To force a sitting occupier off a farm is unlawful, even if the invader claims a right to the land as the holder of an offer letter or some other authority issued by the Government. The only lawful method of removing a sitting occupier from the land is by following due process of law - i.e., by getting an eviction order from the courts and for that order to be enforced by proper authority - the deputy sheriff or messenger of court, with the assistance of the police if necessary. Nothing in the legislation underpinning the land reform programme says otherwise.

A sitting occupier has a constitutional right, under section 18(1a) of the Constitution, to the protection of the State and its officials against unlawful violence and threats of violence. This is so, whether or not the occupier holds an offer letter or a High Court order in his favour and regardless of the merits of any dispute over the right to the land. Example: if a beleaguered victim of a farm invasion seeks assistance from the local police member in charge against unlawful violence and that protection is refused, the victim has a constitutional right to take civil action claiming damages from the member in charge in his personal capacity.

It is time the issue of violence being experienced by people on farms is separated out from the issue of land reform. Discussion of "farm invasions" frequently focuses exclusively on the rights and wrongs of the land reform programme and its disastrous effects on agricultural production, ignoring or dismissing the subversion of the rule of law, typically involving illegal self-help measures - violence, threatened violence, theft etc - taken by or on behalf of the new claimants to the land, all designed to drive out the sitting occupier.

Violence on farms since the IPA

The Inter-party Political Agreement acknowledged that while there was no going back on land reform, there should be a "comprehensive, transparent and non-partisan land audit" and that the parties would ensure "security of tenure to all land holders" [IPA, Article 5]. But this must also be set in the context of the Preamble to the IPA which, when referring to land, emphasises "the centrality of issues relating to the rule of law, respect for human rights, democracy and governance". Since the IPA was signed there has been a whole series of violent incidents on farms - against farmers and their workers:- shot/wounded/murdered, 5; assault cases, 36 (mainly farm employees); threats, 32; theft of property, 52 (crops/property/livestock); barricaded in house 7.

Typical reports on the situation on farms speak of the new claimants and their supporters taking the law into their own hands, frequently in direct defiance of High Court orders, and the police doing nothing - or nothing effective - about it. Recent examples:

Mr X had just obtained a High Court order allowing him to continue on his farm, but his tractor was vandalised and he was punched and smashed in the face with the butt of a shotgun. A complaint to police elicited an acknowledgement from an Assistant Commissioner that no-one is above the law, but nothing was done and no-one was arrested.

"This is the second consecutive day this week that I have been assaulted, and at least the eighth time since the 13th May 2009 by mainly the same people."

"I saw all my colleagues running for their lives as the situation became extremely violent. Everyone was being threatened and stone throwing began again. I was once struck on the back by a stone."

"Yesterday morning the invaders had been to the house of one of the workers . . . He is in hiding because of the high levels of intimidation being employed by the invaders. They told his family that they wanted to cut his lips off. Last night about midnight they came to the house of one of the main foremen and started beating him before abducting him. He is still missing. At time of writing his family do not know of his whereabouts."

"They threatened to eat the children".

Irrespective of the merits of each land dispute and who is the rightful occupier, any form of violence is in total contravention of human decency and dignity, against the Constitution and law of Zimbabwe, and against all international agreements which Zimbabwe has voluntarily entered into. We should also be looking at the serious humanitarian problems this violence is causing to thousands of poor farm workers - loss of livelihood and homes for large numbers of farm employees and their families, displacement from their homes where they have lived generations and where their ancestors are buried, loss of access to schooling and health clinics, etc

SADC Tribunal's holds Government in contempt of court

Judgment referred to SADC summit

On 5th June two Chegutu farmers asked the Tribunal to refer the Government's failure to comply with the Tribunal's judgment of 28th November 2008 to the SADC Summit. [The judgment had invalidated the seizure of their farms under the land reform programme and ordered the Government to protect their continued occupation of the farms.] The Tribunal granted the application, noting particularly the continued harassment of the applicants and also the repudiation of the judgment by the President and the Deputy Chief Justice and the launching fresh of prosecutions. It ruled that the harassment and failure to protect the two farmers and the repudiation of the judgement were in contempt of court. The question of enforcement of the judgment now stands referred to the SADC Summit, which is the only body with the power to decide on enforcement measures. The SADC Treaty allows the Summit to impose sanctions - or suspension from SADC membership - on a State that fails to abide by a decision of the Tribunal. [Note: This is the second such referral to the Summit. The Summit has yet to take any action on the Government's failure to honour the Tribunal's interim judgment in the same case, which was referred to the Summit in mid-2008.]

The history of this case supports a strong argument for our new Constitution to provide for the immediate domestication of treaties which the country has entered into. Otherwise a mockery is made of our solemn treaty obligations.

In another case before the Tribunal Luke Tembani, a commercial farmer since 1983, challenged the validity of a provision of the Agricultural Finance Corporation Act under which, without recourse to the courts, his farm was sold off at far below its value to pay off a debt owed to the AFC. The government opposed his application. The tribunal reserved judgment, but ordered the government to allow Mr Tembani to stay on his land until its decision is handed down.

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