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New Constitution-making process - Index of articles
Pre-Referendum
statement
Zimbabwe Lawyers for Human Rights (ZLHR)
March 15, 2013
Zimbabwe Lawyers
for Human Rights (ZLHR), in accordance with its mandate of promoting
a culture of human rights and constitutionalism in Zimbabwe, has,
since the formation of the Inclusive
Government (IG), been carefully scrutinising the general environment
ahead of the National
Referendum on the draft constitution, set for Saturday 16 March
2013. It is vital to note that, not only is the country in a pre-referendum
period, but also a pre-election period. Thus the environment currently
prevailing serves concurrently as a telling indicator of the environment
ahead of national elections.
In this context,
the Board, on behalf of the membership of ZLHR, and in accordance
with long-held tradition and practice, now releases its pre-referendum
statement ahead of tomorrow’s polling exercise.
On compliance
with Article VI of the Global Political Agreement (GPA)
In relation
to Article VI processes subsequent to the public outreach exercise,
ZLHR concludes that:
- There was
a consistent failure by the Constitutional Parliamentary Committee
(COPAC) to adhere to the timelines stipulated in Article VI and
the process lagged severely behind time. A process that the IG
agreed would be completed in 18 months was extended to over 4
years, and timelines were violated with impunity.
- There was
a general lack of sufficient and timely information from COPAC
about the unfolding processes and developments and the general
population was largely unaware of progress.
- Civil society
organisations (CSOs) were largely sidelined throughout the process
as they failed to independently and actively participate in the
formal activities organised by COPAC. During the stages in which
they participated, such as the Second All-Stakeholders’
Conference, they did so largely as proxies of the three political
parties to the IG, and there was little to no room for alternative
input relating to issues that were of lesser concern to political
parties, but of vital importance to other societal stakeholders.
- The tampering
of the draft produced as a result of the outreach process by the
political parties to the GPA, and the subsequent finalisation
of the draft constitution (including the “parked”
issues) by the Principals was a process which was outside the
mandate of, and which violated, the agreed Article VI process.
- The fast-track
adoption of the draft by Parliament
without substantive debate, and the subsequent fast-track gazetting
of the draft and referendum date after periods of such long delays
in the earlier stages raises concerns and questions around the
democratic and popular nature of scrutiny and debate of the draft.
- Essentially
3 weeks were provided to disseminate, publicise and educate the
nation on the contents of a voluminous and intricate legal document.
The numbers of copies of the draft
constitution, translations, and the simplified COPAC version,
were insufficient to ensure comprehensive awareness of the draft.
Concerns have also been raised about the accuracy of the contents
of the simplified COPAC version as compared to the full draft,
as well as poor attendance at the sensitisation meetings carried
out by COPAC.
- COPAC representatives
utilised public and donor funds not only to sensitise and educate
the public on the contents of the draft, but also to actively
encourage the public to vote “YES”. In addition, pressure
was brought to bear on CSOs to sign a Memorandum of Agreement
(MoA) with COPAC in order to be allowed to carry out civic education
under threat of disruption of activities of those without a MoA.
Further, such organisations were made to agree to promote a YES
vote. Such practices are inconsistent with fundamental rights
and freedoms, and with democratic standards of civic education
that enlighten people without putting pressure on them to advocate
or vote for one position or another.
- Several
incidents of intimidation, arrest and vilification of those advocating
a NO vote were reported, and this is contrary to promotion of
a free environment in which dissenting opinions are encouraged
and welcomed.
On the legislative
environment persisting during the pre-referendum period
- The GPA
clearly stipulates that laws impacting negatively on fundamental
rights and freedoms of expression, assembly, association and movement
were to be amended to ensure a conducive legislative environment.
These undertakings were ignored, if not violated, with impunity.
- The position
taken by COPAC representatives, that they would encourage law
enforcement agents to “suspend” the application of
the Public Order
and Security Act to allow a conducive environment for education
and debate on the draft constitution to take place, was startling.
If there is an acknowledgement that such laws repress freedoms,
they should not be suspended, but done away with. The subsequent
disruption of civic debates on the draft constitution, and heavy-handed
police action to prevent political players – including the
Prime Minister himself – from carrying out such activities
is a clear indication that legislative and institutional reform
is not a government priority and such repressive laws will continue
to be used selectively by unreformed state institutions and actors
to prevent constitutional freedoms from being exercised due to
lack of political will and failure to censure heavy-handed action
whenever it occurs.
- The publicly-owned
but state-controlled media (print and electronic) did a disservice
to the nation by failing to provide programming and content that
enlightened people in a comprehensive and educative manner about
the contents of the draft constitution. There was inequality of
access to such media by representatives offering dissenting views.
Reform of the public broadcaster and state-controlled media remains
outstanding despite their urgency and the GPA requirement that
this is a priority for the IG.
- Other repressive
laws continued to be abused and selectively applied against targeted
CSOs and human rights defenders (HRDs) during the pre-referendum
period. It is disturbing to note an increase in the criminalisation
of free speech through the abuse of insult laws, and the reliance
on the Broadcasting
Services Act to stifle lawfully operational alternative media
and voices. In relation to the latter, the Zimbabwe Republic Police
(ZRP) has, since the beginning of the year, arbitrarily sought
to “ban”
alternative sources of media, namely short-wave radios. This has
been followed by the confiscation of radios from CSOs and communities
that have been searched or found to possess such gadgets. This
unlawful confiscation of radios is directly linked to the closing
up of access to diverse information and leads to a situation where
people in communities are not able to get any alternative sources
of information as they cannot afford to buy newspapers, and in
most cases there is no frequency for state controlled broadcasting.
This is a blatant violation of the right to freedom of expression
and access to information.
On the
role and readiness of the Zimbabwe Electoral Commission (ZEC)
- The ZEC
was not consulted prior to the referendum date being set. Although
they have worked comprehensively to prepare for rolling out the
poll, the short notice will impact its readiness to fully manage
the referendum process and ensure adequate resources to carry
out its constitutionally mandated duties.
- New referendum
regulations were gazetted shortly before the date of the referendum,
and included provisions altering some key aspects of the observation
process in a manner that impacts good practices.
- The failure
by ZEC to abide by the principles of natural justice and its refusal
to accredit observers from Zimbabwe Peace Project and ZimRights
adversely affected preparations by such organisations and observers
ahead of referendum day and drew time and attention away from
proper preparation for the referendum – both by ZEC and
the affected organisations due to ongoing negotiations and litigation.
They were essentially found guilty before trial by a body not
qualified or empowered to act in such a manner.
- The reduction
in numbers of international observers and refusal to accredit
those not considered “friendly” was also problematic.
What better way to shame potential “detractors” than
to invite them and allow them to see democracy at work?
On the
operating environment for civil society organisations and human
rights defenders
- The ongoing
and intensifying clampdown on CSOs and HRDs ahead of the referendum
remains a matter of the greatest concern and has impacted negatively
on the pre-referendum environment. The assault on CSOs has been
strategic, intentional, well-planned, well-resourced and implemented.
It has targeted organisations carrying out lawful activities that,
for unknown reasons, appear to be a threat to certain institutions
and actors. These include mobilisers, civic educators, human rights
monitors, and service providers.
- Since November
2012, police have, amongst others, raided premises of 5 major
CSOs, namely Counseling
Services Unit, Zimbabwe
Human Rights Association, Zimbabwe
Peace Project, Zimbabwe
Election Support Network, and Radio
Dialogue. These searches have been conducted in terms of search
warrants that are broad, vague and subject to legal challenge.
As a result of these searches, personnel and Board members have
been charged with varying offences that range from operating unregistered
organisations, committing forgery, fraud and other related offences
which beggar belief. A total of 358 HRDs from CSOs have either
been harassed through interrogation, arrest and detention, although
subsequently being released without charge in the majority of
cases since November 2012. Only 18 out of the 358 HRDs from CSOs
have been charged and taken to court. In most cases taken to court,
the prosecutors have declined to prosecute.
- The ZRP
has used several public platforms, including an appearance in
Parliament and press conferences to intimidate and issue threats
and false information against CSOs – some named, and some
unnamed. The GPA requirement for reform of such institutions and
actors, and a cessation of politically-motivated attacks, has
been largely ignored.
- The state-controlled
media and aligned outlets have stepped up their defamatory and
false publications against these same CSOs as part of the sustained
assault. Hate speech and incitement against CSOs and HRDs has
become alarming, and has the potential to escalate out of control
due to slow processes of achieving legal redress and general impunity
of such state media practitioners and media houses.
Concluding
remarks
One of the greatest
challenges in the run up to the referendum has been the preoccupation
of the three political parties to the IG with ensuring that the
draft constitution is accepted in the national plebiscite. This
has caused the IG to render secondary other key reforms and processes
outlined in the GPA. These include substantive legislative and institutional
reform as well as the stemming of bad administrative practices and
the escalating impunity for violations of laws and current constitutional
safeguards. In particular, the assault on civil society must be
comprehensively addressed if the country is not to lose its only
remaining independent voice ahead of critical elections.
ZLHR believes
that, in spite of the challenges that have faced this constitution-making
process, a step forward has been taken in terms of generating
debate and a greater interest in constitutional matters, as well
as debate around issues of constitutionalism. The process has taken
place in an extremely difficult environment, but nevertheless, there
is a general willingness and interest in the pursuit of a better
constitution for Zimbabwe and this must be encouraged and kept alive.
However, the key issues of concern remain – that we have an
environment that has been less than conducive to free debate, agents
who continue with their old practices of violating fundamental rights
and freedoms with impunity, and preventing the sharing and dissemination
of information. An inch has not been moved towards correcting this
and this will adversely impact the efforts towards a free and fair
election if it is not addressed urgently and with political will.
Visit the ZLHR
fact
sheet
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