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Sigh
of relief to CSOs as Abel Chikomo is acquitted
Zimbabwe Human Rights NGO Forum
November 25, 2013
On Friday 22
November 2013 a Harare Magistrate Elijah Makomo set free Abel Chikomo.
Abel Chikomo, a journalist and lawyer by training is the executive
director of the Zimbabwe
Human Rights NGO Forum. Chikomo had been on trial for allegedly
running an “unregistered” organisation in contravention
of the Private
Voluntary Organisation (PVO) Act (Chapter 17:15). Chikomo was
acquitted after his lawyer, Selby Hwacha, of Dube Manikai and Hwacha
Attorneys and Board member of Zimbabwe
Lawyers for Human Rights applied for discharge at the close
of the State case after arguing that State prosecutors had failed
to establish a prima facie case against the human rights campaigner.
Chikomo was
first brought to court in 2011 on charges of running an ‘illegal’
organization after his organisation conducted a legitimate and lawful
survey on transitional justice in Harare’s Highfield suburb.
It took almost three years to bring him to trial. The case had been
postponed several times in a move seen as attempts to harass Chikomo
by keeping his life in limbo and interfering with his right to privacy
and exercise of his profession. Some of the postponements were on
14 & 28 October 2013, and prior to that on 11 July 2013, when
Chikomo had been served with summons by two police officers only
identified as Detective Gandidzanwa and Chipwanya to stand trial
on 01 August 2013 at Harare (Rotten row) Magistrates Court but on
1 August the case failed to take place. Yet again on Tuesday 19
November 2013 the trial was postponed to Friday 22 November after
a top government official, Sydney Mhishi, failed to show up in court
to testify as a State witness.
In acquitting Chikomo, the Magistrate noted that this was a case
that should not even have been brought before the court because
there was no evidence or merit.
In his defence the human rights campaigner stated that Section 2
of the PVO Act exempts “anybody or association of persons,
corporate or unincorporated the benefits from which are exclusively
for its own members. “He said the Zimbabwe Human Rights NGO
Forum is a forum, association and common law universitas (entity)
of 20 member organisations.
The law that governs registration of non-governmental organisations
in Zimbabwe
According to leading Zimbabwean legal experts we consulted, the
registration of non-governmental organizations (NGOs) in Zimbabwe
has been addressed through legislation since the colonial era; after
attainment of independence, this legislative tradition was maintained.
During the pre-independent Zimbabwe the Welfare Organisations Act
(1967) was the main legislation used to register NGOs. This instrument
was repealed by the Private Voluntary Organisations Act (“PVO
Act”).
However, there
are other ways in which NGOs can operate in Zimbabwe. For instance
NGOs can register as non-profit making or charity organizations,
trusts and common law universitas.
The Zimbabwe
Human Rights NGO Forum (NGO Forum) has been operating as a common
law universitas. The use of the membership form known as “universitas”
originates from common law practice of recognizing an organisation,
which has members, a constitution and activities that are entirely
for the benefit of its members. Such an entity is excluded from
registering under the PVO Act and is therefore not viewed as a PVO,
but as the corporate form “universitas”.
Therefore, the
Forum does not fall into the definition of PVOs as defined by the
PVO Act. Under the PVO Act, organizations that are registered will
be deemed to be Private Voluntary Organizations. PVOs are defined
as “Any body or association of persons, corporate or unincorporate,
or any institution, the objects of which include or are one or more
of the following that provides for the provision of all or any of
the material, mental, physical or social needs of persons or families;
the rendering of charity to persons or families in distress; the
prevention of social distress or destitution of persons or families;
the provision of assistance in, or promotion of, activities aimed
at uplifting the standard of living of persons or families; the
provision of funds for legal aid; the prevention of cruelty to,
or the promotion of the welfare of animals.”
In addition
to the Forum many other organisations in Zimbabwe exist under many
identities and carry out work which one might view as that of a
PVO. Examples include organisations registered as institutions under
the Health Professions Act or under the Psychological Practices
Act, but rendering help to persons in distress in the form of medical
counselling for victims of torture or organized political violence.
However, despite
different legal regimes that allows establishing and setting up
an NGO in Zimbabwe, their legal basis has always come under attack
from the government. The Forum was one of the victims of such attacks
on NGOs by the GoZ. The director of the NGO Forum Mr. Abel Chikomo
was therefore formally charged for operating in violation of the
Private Voluntary Organisations Act Chapter 17:05 (PVO Act) . The
prosecution case was based on the false premise that the NGO Forum
is a Private Voluntary Organisation (PVO) in terms of section 2
of the PVO Act and therefore bound to register under the Act.
Under the Zimbabwesn
law, the Forum is not a PVO. Its Constitution exhibits the qualities
and capacities necessary to form a common law universitas. For instance
Para 4 of the NGO Forum’s Constitution states that the NGO
Forum has perpetual succession and is capable of acquiring and owning
property and doing anything that bodies corporate may lawfully do.
Further that it is capable of suing and being sued in its own name.
The PVO Act
is viewed as draconian and outdated; “there is good reason
to consider that certain provisions of the PVO Act, which was passed
in 1966 at the height of apartheid, are unconstitutional. Section
6 of the Act seems to violate the freedom of assembly and association
enshrined in section 58 as read with section 86 of the new the Constitution
of Zimbabwe. Section 21(3) of the old Constitution, which was operational
when Chikomo was charged did say that the mere fact that registration
is required of an association does not amount to a violation of
section 21(1) unless one can show that it is not reasonably justifiable
in a democratic society.”
It can therefore
be deduced from the NGO Forum case that the establishment and registering
of NGOs in Zimbabwe is at the whims and caprices of the State officials
who can use the existing legislation to yield undesired effects.
Whether an organisation is or isn’t operating as a PVO and
then ought to register hinges on the matter of interpretation. This
is a serious infringement on the freedom of association and other
related freedoms, which requires that interpretation of the Bill
of Rights should be less strict to promote enjoyment of human rights.
Other
cases of grave concern
On 11 August
2012 police arrested
44 members of the Gays
and Lesbians of Zimbabwe (GALZ) after the launch of their annual
report on human rights violations. The Board Chairperson of GALZ,
just like the Forum Director, also faced charges of operating an
unregistered organisation.
On 7 March 2013,
police renewed their onslaught against prominent human rights campaigner
Jestina Mukoko by summoning her to report at Harare Central Police
Station for allegedly operating an “unregistered” organisation.
Detective Chief Inspector Run’anga and Chief Superintendent
Charles Ngirishi on Wednesday 06 March and 07 March 2013 telephoned
Mukoko’s lawyer, Beatrice Mtetwa, summoning her to report
at Harare Central Police Station to answer charges of running an
“unregistered” organisation.
However, Mtetwa advised Run’anga that the Zimbabwe
Peace Project’s board had resolved that it be represented
by Dr Solomon Zwana, the organisation’s chairperson and not
by Mukoko, since she is simply an employee of ZPP and that she could
not answer registration queries as she does not have board authority
to speak or act on behalf of ZPP. However, Run’anga insisted
that the police were interested in having Mukoko at their “offices”.
Mtetwa also advised Run’anga that ZPP is a registered organisation
and had provided its registration papers and Constitution to the
police last month.
Apart from the registration-related cases, Zimbabwe government’s
history of treating NGOs has a very dark underbelly. The cases are
too numerous to mention here but one that might be worth mentioning
here is the one relating to the Women
of Zimbabwe Arise, who have been harassed
for exercising this right at every turn. For example, on Friday,
September 20, more than 100 WOZA members staged a follow-on peaceful
demonstration in Zimbabwe’s second largest city, Bulawayo.
WOZA members marched to the main offices of The Chronicle, Bulawayo’s
largest state-owned daily newspaper, to present a petition to the
new Zanu-PF government that demanded an urgent review of civil servant
salaries, revival of the economy, and respect for basic constitutional
rights. Read more here.
Complaints raised
Serious concerns
have previously been raised on Zimbabwe’s reluctance to adhere
to international norms and standards relating to civil liberties.
On 27 February
2013, in Geneva, three United Nations Special Rapporteurs issued
a rare public joint statement urging the Government of Zimbabwe
to respect international human rights norms and standards pertaining
to freedoms of association, of peaceful assembly and of expression
in the run up to the constitutional referendum on 16 March and subsequent
elections which may take place next July. They did so after they
had received increasing numbers of reports about acts of intimidation
and harassment, physical violence and arrests against civil society
actors, mostly working on human rights issues.
In addition
the Forum, members and partners have raised these issues at the
African Commission. According to the Forum’s statement
to the African Commission on Human and Peoples’ Rights at
the recently 52nd Ordinary Session of the African Commission on
Human and Peoples’ Rights, civil society organisations stated
that: “The operating environment for human rights defenders
and civil society remains heavily constricted. Human rights defenders
are still viewed as enemies of the state working towards effecting
illegal regime change in the country. This has resulted in continued
attacks and persecution of the human rights defenders. It is our
view that this trend will continue, as it is government’s
effective tool to curtail democratic trends, since freedom of association
is a sin qua non to the full realization of a democratic and open
society.
In its statement dated 22 November 2013, after the acquittal of
Chikomo, Amnesty International joined the call by saying that the
acquittal was encouraging, but the fact that it comes after three
years of harassment is further confirmation that the police continue
to abuse the law to hamper the work of human rights defenders, Amnesty
International said. “Bringing unfounded criminal charges against
human rights defenders is one of the tools which have been consistently
used to harass and intimidate Zimbabwe’s civil society. The
Zimbabwean authorities must not let such conduct by police tarnish
the new government’s pledges to improve their human rights
record. They must act urgently to end the malicious use of spurious
charges and trials against human rights defenders, and publicly
denounce these practices.”, said Amnesty.
These sentiments
have been echoed by Frontline Defenders who in their statement also
dated 22 November 2013 says, ‘[They] welcomes this important
ruling and urges that the Zimbabwean authorities consider this judgment
before charging other human rights defenders under the PVO Act.
In a letter to President Robert Mugabe dated 4 September 2013, Human
Rights Watch also identified the need for the new government to
uphold activists’ rights to organize and operate freely without
government harassment, as one of the key priority areas.
Visit the Zimbabwe
Human Rights NGO Forum fact
sheet
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