Paper by David Coltart: Zimbabwe: The establishment of independent and public enquiries

September 4, 1992

Zimbabwe: The establishment of independent and public enquiries

By David Coltart

Elimination and Terror: International Conference on Political Killings and ‘Disappearances’ organised by Amnesty International

4-6 September 1992

In the period since 1982 Zimbabwe has been the scene of some of the worst political killings and “disappearances” in Africa. Whilst the situation has undoubtedly improved since 1987, when the two opposing political factions of ZANU PF and ZAPU reconciled their differences under duress, very few of the perpetrators have been held accountable for their actions. This paper will concentrate on agenda topics 5 and 6, namely the crucial role impunity plays as a key factor why political killings and “disappearances” continue, and means of strengthening civilian judiciaries and legal systems.

TYPES OF POLITICAL KILLINGS AND DISAPPEARANCES IN ZIMBABWE SINCE 1982

There are four broad types of political killings and “disappearances” which have occurred in Zimbabwe since 1982 which are as follows:

1. Mass killings of civilians by the Army

In the first three months of 1983, in the Matabeleland region of Zimbabwe, hundreds, possibly thousands, of civilians, including women and children, were killed by soldiers of the Fifth Brigade of the Zimbabwe National Army. Estimates range from several hundred to as many as 10,000 people. A very conservative estimate is 1500[1]. Whilst the intensity of the killing waned after March 1983, sporadic killings of civilians by members of the Zimbabwe National Army continued in the Matabeleland region until the end of 1987.

2. Sporadic killings of civilians by political dissidents

Between July 1982 and December 1987 ex combatants loyal to Mr Joshua Nkomo’s opposition ZAPU party committed sporadic assassinations of civilians in the Matabeleland and Midland regions of Zimbabwe culminating in the massacre of 14 missionaries (including women and children) just south of Bulawayo in November 1987. Since the signing of the “Unity Accord” between President Mugabe’s ZANU PF and Joshua Nkomo’s ZAPU there have been no further killings of this nature.

3. Election related political killings

Both Zimbabwe’s post-independence parliamentary elections held in 1985 and 1990 have been characterised by violent political killings almost entirely at the hands of the ruling ZANU PF party and its supporters. Both in the run up to and in the aftermath of the 1985 elections opposition ZAPU functionaries and their relatives were murdered by ZANU PF supporters and Special Police Constabulary. The 1990 elections saw the ruling ZANU PF placing campaign advertisements in the Government-controlled television service with slogans such as “AIDS kills, so does ZUM – vote ZANU PF” (ZUM being the principal opposition party). The 1990 election also saw the attempted assassination of the Deputy leader of ZUM, Mr Patrick Kombayi, who was ambushed and shot several times by members of the Central Intelligence Organisation and the Police.

4. Sporadic suspected political killings and attempted political killings

In the last few years, there have been at least three suspected political killings of opposition politicians[2].

IMPUNITY OF OFFENDERS

Save for political dissidents who were captured and convicted of murder, all those responsible for the abovementioned political killings and “disappearances” have not been held accountable for their actions. For example:

  1. A special commission of enquiry to investigate allegations of atrocities committed by the Fifth Brigade was held between January and March 1984. Despite statements made by Sydney Sekeremayi, then Minister of State (Defence), in late 1983 that the Commission’s findings would be made public, the findings have never been made public. In the last few months mass graves have been discovered in Matabeleland and bodies have been found dumped down mine shafts. Coins and other personal items found with the bodies have established that the bodies were dumped during the time of the Fifth Brigade’s activities. Government had done everything in its power to stifle further investigations; for example, a local television documentary called “Outreach” which investigated the issue was prevented from being shown on national television on 3 July 1992.
  2. Government at times has announced wide ranging amnesties exonerating all those responsible for the killings. On occasions the President has pardoned individual members of the security forces; for example Robert Masikini of the CIO was released a few days after being sentenced to death in 1989 by the High Court for murdering a political detainee just outside Bulawayo.
  3. There has been a distinct lack of enthusiasm in the investigation of certain political killings and attempted political killings. For example Patrick Kombayi was shot several times in broad daylight in Gweru in 1990. It has taken two years for the docket to come to court. When the docket came it was not complete and it took the bravery and energy of the Public Prosecutor to complete the docket. The docket has now been recalled by the Attorney-General’s Office. It is suspected that the trial will be far too politically sensitive for it to go ahead. Likewise the recent death of Christopher Giwa in June 1992 (see footnote 2 above) was reported in a very matter-of-fact way as if there was nothing suspicious in the fact that he died when his vehicle drove into the back of an unlit stationary army vehicle left in the middle of a main road at night. Thus far at least the police have shown no enthusiasm to investigate whether Mr Giwa’s death was politically motivated.

The greatest danger of the current situation is that Government, from the President down to individual security officers, have acted with impunity and with no threat of sanctions there is every chance that the political killings experienced in the last 10 years will continue in the future. Even more worrying is the fact that the intensity of the political killings and disappearances in Zimbabwe has usually been in direct proportion to the threat to Government’s hold on power. The history of post-independence Zimbabwe has shown that when the ZANU PF government feels it has a firm grip on power the level of violence diminishes; likewise when its power is threatened violence increases. As recently as Sunday 28 June 1992 President Mugabe was reported in the Sunday Mail as urging “party members to be prepared to meet violence with violence”. He also warned: “Don’t dare to talk about the armed struggle because we fight better”. These statements have to be seen in the context of opposition groups pleading for peaceful democratic change. With ZANU PF’s popularity waning by the month there must be a very real danger that the number of political killings and “disappearances” will increase especially in the run up to the 1995 elections. It is thus a matter of urgency that consideration be given to make Government responsible so that the perpetrators are brought to justice. One of the most vital components in bringing people to justice is the establishment of independent public enquiries. What needs to be done in Zimbabwe before the independent and public enquiries can make human rights violation as accountable for their actions? There are two broad problems in this regard: (1) the problem of getting sufficient evidence together to place before an independent enquiry; and (2) the problem of ensuring that the enquiry is not simply an end in itself.

ANALYSIS OF FACTORS HAMPERING INDEPENDENT AND PUBLIC ENQUIRIES

1. Media

The Zimbabwean Government has literally been able to get away with murder because the internal media has not had the ability to expose fully what has actually gone on in the country. Indeed in many respects people outside the country are better informed about the details of the Fifth Brigade atrocities and other political killings. The 1984 Commission of Enquiry into the Fifth Brigade activities has never been published. Recently press freedom has loosened up and at least one monthly magazine has resuscitated the investigation itself. The July 1992 edition of Horizon Magazine details incidents which occurred in the Tsholotsho region of Matabeleland. Had magazines such as these been operation at the time when the atrocities took place no doubt there would have been internal exposure of what was happening and more pressure on Government not only to investigate but to act on the results of the enquiry.

However the Government still controls the entire electronic media and all the daily newspapers. They have other means to curtail the activities of independent monthlies and weeklies. The danger is always there that Government will once again crack down on independent newspapers.

Recommendations

(a)    Local newspapers and magazines need to be supported through external funds and international protests when attempts are made to close them down either directly or indirectly.

(b)   International human rights groups should make every effort to ensure that incidents such as the Fifth Brigade activities in Matabeleland are not allowed simply to be forgotten.

(c)    Continued pressure should be brought through the international press media to keep the focus on atrocities like these until the perpetrators are brought to book.

(d)   A variety of other measures can be employed and more support needs to be given to supporting films such as “The Killing Fields” to portray, dramatically, events which have occurred; such pressure should be kept up with the specific goal of coercing Government to establish independent public enquiries into such incidents.

2. Amnesties

Whilst the amnesty declared by the Zimbabwean Government in 1988 was no doubt a sensible move to bring dissident problems to a speedy conclusion it has meant that the atrocities committed by both sides during those years have not been fully investigated. The amnesty was a necessary evil, the price to pay for bringing an end to the carnage and it was right that the culprits should not face criminal charges if that was what was necessary to prevent any further lives being lost. However the amnesty was of such wide application that people who committed the most horrendous acts have subsequently been promoted and now hold high office in the Zimbabwean security forces. The danger is that because they acted with impunity in the past they could feel that they could act with impunity in future.

A further problem is that the President of Zimbabwe pardoned certain individuals who did not fall in terms of the amnesty. For example Robert Masikini, a member of the Central Intelligence Organisation referred to above, was released just days after he had been convicted of murder and sentenced to death. This ad hoc application of the amnesty seriously undermined the courts and respect for the rule of law. The President, in pardoning Masekini after the trial had been concluded, effectively undermined respect for the court and respect for the general principle of independent and public enquiries into human rights violations. People should be encouraged to fear the sting of an independent public enquiry; if human rights violators know that they can go through an enquiry only to be pardoned, and thereafter promoted, much of the impact of the enquiry will be lost.

Recommendations

(a)    General amnesties should only be declared where absolutely necessary; for example where an amnesty is one of the only ways of brining civil conflict to an end then it should be considered.

(b)   However, where general amnesties are announced it is suggested that they should apply only to criminal prosecutions and should not prevent public enquiries taking place; perpetrators of human rights violations need to feel the stigma attached to their conduct even if they do not face criminal sanctions; likewise Government employees responsible for human rights violations should face some sanctions on their careers; in other words Government employees whose criminal activities are exposed in public enquiries should be dismissed or refused promotion.

(c)    Government should be discouraged from pardoning human rights violators after they have been convicted by the criminal justice system.

3. Police Investigations

One of the fundamental reasons why there have been very few prosecutions in Zimbabwe of human rights violators has been because the police either do not have the will themselves to investigate human rights violations or their investigations are interfered with by politicians. Both these hindrances have blighted the investigation of the Patrick Kombayi case referred to above. The police were very reluctant to investigate their colleagues. Eventually it was left to a public prosecutor (a lawyer) from a separate ministry to flesh out the docket. Had it not been for the drive and energy of this one man the case would have been stillborn. Notwithstanding the man’s drive and energy, when the matter was due to come before the High Court at Bulawayo in June this year, suddenly the docket was recalled by the Attorney-General and Minister of Home Affairs for “further investigation”. Court officials in Bulawayo suspect that because the case could involve Vice-President Muzenda, Government is using all means within its disposal to prevent the case from coming to court.

Likewise the deaths, following suspicious road traffic accidents, of Amos Dlamini, Mr Christopher Giwa and others have not resulted in any serious police investigations. They have all been treated as routine road traffic accidents without any special investigations being undertaken. The situation has been compounded by the fact that there is little tradition of respect for human rights within the Zimbabwean police. The vast majority of the police were either trained in the colonial era (and spent much of their time in paramilitary units) or ex combatants. Violence for many of them is second nature; in the Zimbabwean context they know that Government came to power through the barrel of a gun and presumably they are not surprised or concerned when Government tries to hold on to power through the barrel of a gun.

It goes without saying that the independent and public enquiries in the form of criminal proceedings will not even get off the ground without an independent, motivated and professional police force.

Recommendations

(a)    In Zimbabwe the Legal Resources Foundation has since 1989 conducted Law Enforcement Agencies lecture programmes on human rights. These programmes have been designed to re-educate police officers regarding international standards of justice and respect for human rights. In these courses police officers are not only encouraged to investigate matters in an impartial fashion by they are also designed to encourage police to resist political interference in their investigations. The courses need to be continued and strengthened to encourage the police to investigate political killings and “disappearances”.

(b)   Even if a criminal matter is sub judice the press can maintain pressure on the police to investigate fully the matter. If the police are regularly questioned by the media as to how their investigations are progressing or whether investigations have been commenced at all there is more likelihood of an enquiry taking place. Towards the end of 1988 a local newspaper in Zimbabwe exposed a corruption scandal; whilst the example is obviously not directly relevant to political killings the fact is that criminal convictions resulted from the corruption scandal because the press did not let go of the issue. Regrettably the press has not pursued many issues in Zimbabwe concerning political killings and disappearances and as a result there has never been sufficient pressure on the police to start investigations or to bring their investigations to a conclusion. The local and international press need to keep pressure on the police to ensure that political killings are properly investigated.

4. Ombudsman

Most of the political killings and disappearances in Zimbabwe have been perpetrated by members of the army, Central Intelligence Organisation and police. Regrettably in Zimbabwe the Ombudsman is specifically excluded from investigating any complaint involving these three arms of Government. As indicated above it is sometimes very difficult for the police to investigate their own members even with the best will in the world. Family and friends of the victims of political killings and disappearances often lack courage, the necessary stature in society and finance to mount their own investigations. The Office of the Ombudsman is used very effectively in the investigation of relatively uncontroversial matters. If the Office of the Ombudsman was strengthened and the Ombudsman’s powers extended there is no doubt that another channel of independent and public enquiry would be opened up.

Recommendations

(a)    Ombudsmen should be allowed to investigate complaints against the police, Central Intelligence Organisation and the army.

(b)   Further international pressure should be brought to bear on Governments throughout the world to give further powers to quasi government investigatory bodies such as Ombudsmen and human rights commissions.

5. Legal Profession

Legal practitioners need to be more innovative in exposing and investigating political killings and “disappearances”. In Zimbabwe lawyers have been adept in using the civil court procedure to expose matters which should have been exposed, but have not been, in the criminal courts. For example lawyers acting for the Catholic Commission for Justice and Peace in Zimbabwe have petitioned the courts for orders presuming the death of people. The petitions contained detailed information regarding the persons killed and those responsible for the killings. The petitions then become matters of public record. Once orders have been handed down relatives can sue the individual perpetrators and Government for loss of support claims.

I am handling two such cases at present: for example Fraser Gibson Sibanda, a man in his 60s, was arrested by the police during a Sunday morning church service in November 1985. He was never seen again by his wife and children. Because his wife was never able to establish whether her husband was dead she could never sue anyone for damages for loss of support. In the Sibanda case affidavits were obtained from all those who witnessed his arrest (and some who were in detention with him). Once those affidavits became part of the court record it was very difficult for the police to rebut the evidence and they actually chose to remain silent. They did not have any other option; they could not deny the arrest and yet they could acknowledge liability. Proceedings are now being instituted on behold of Mrs Sibanda to claim fairly substantial damages against the Government. Regrettably in this case we did not have the names of the individual police officers responsible for the arrest. In other cases I have handled (related to detentions, not killings) I have cited police officers in their individual capacities and have sought to recover damages from them individually. If the same could be done in a killing or “disappearance” case it would obviously increase the deterrent effect of these civil actions by government employees concerned.

Recommendations

Lawyers in private practice and those working for human rights organisations should be encouraged to institute civil actions wherever possible to expose the conduct of government agents where those agents are reluctant to investigate and prosecute criminal charges.

6. Non-Governmental Organisations

One of the main reasons why the Fifth Brigade was able to conduct a reign of terror for so long and with impunity was because the people in the rural areas of Matabeleland has at the time very few structures through which they could channel reports of human rights violations. It is because of this as well that there has been so little public exposure of what happened from 1983 until the present time. The Catholic Church and its Catholic Commission for Justice and Peace were the only organisations to report effectively at the time and which have done their best to keep what happened in the public eye. If public enquiries are to take place in future it is important that religious and human rights groups establish structures or reporting mechanisms in remote areas so that any future atrocities can be responded to immediately. In this regard the Legal Resources Foundation is in the process of establishing legal advice centres throughout the rural areas of Zimbabwe. In Matabeleland three rural advice centres have been established to date and another two will be opened within the next six months. These advice centres are staffed by full-time paralegals who are trained to identify human rights abuses and to channel information back to the cities. In this way it is hoped that should any further human rights abuses take place similar to those which occurred in 1983, human rights organisations may be able to react much quicker with far more accurate information.

Recommendations

Support should be given to human rights organisations which are involved in setting up structures in remote areas which promote the efficient and affective flow of information from the remote areas to the cities and the media.

7. Individual Responsibility

At a press conference held in Harare on 1 July 1992 President Mugabe, speaking about President de Klerk’s responsibility for the Boipatong massacre in South Africa, said the following: “President de Klerk must have known to what use they (that is the Buffalo and Koevoet battalions of the South African Army) would be put when they were deployed to that region”. Unwittingly President Mugabe may have in that statement given weight to Lyal S Sunga’s argument contained in his recent book “Individual Responsibility in the International Law for Serious Human Rights Violations”.[3] He argues that there is an emerging general rule in international law which can be stated as follows:

“Any person who commits, or is an accomplice in any act amounting to serious human rights violations in international law shall be responsible and therefore liable to punishment, notwithstanding that the act committed is not a crime under domestic law, notwithstanding that the official was a head of state or public official, or that he or she acted pursuant to an order of his or her government or to an order of the superior.”

A serious human rights violation in international law means any violation of human rights for which international law stipulates individual responsibility, including the following acts: war crimes, grave breaches “as defined in the 1949 Geneva Convention, genocide, torture, inhuman or degrading punishment and slavery”. In my view as long as Heads of Government and cabinets are allowed to get away with gross violations of human rights, such as what happened in Matabeleland in 1983, effective independent and public enquiries will never be able to be convened. This is particularly so in Zimbabwe where the course of time has shown that President Mugabe at the very least condoned what was going on in Matabeleland and possibly initiated and directed the operation, albeit from a distance.

Consider the following:

  1. The January 1992 edition of the Zimbabwe Defence Forces magazine celebrates the 10th anniversary of the setting up of the Fifth Brigade. It reveals that the Fifth Brigade was first mooted by then Prime Minister Mugabe in a 1980 trip to North Korea. Thereafter the unit was set up specifically to quell the internal dissent and North Korean instructors were purposely brought in to train the soldiers in effective methods of quelling internal dissent. At the end of 1982 then Prime Minister Mugabe was present at the passing out ceremony of the Fifth Brigade just weeks before they were deployed. At the passing out ceremony the defence force magazine recounts that Prime Minister Mugabe spoke to soldiers, spelt out their duties and handed over the brigade flag inscribed “Gukurahundi” (Shona word describing the whirlwind which precedes spring rains).[4]
  2. The Fifth Brigade were deployed into Matabeleland in 1983. In a speech to a rural Ndebele audience near Nkayi in Matabeleland in April 1983 Prime Minister Mugabe articulated Government strategy by saying:

“Where men and women provide food for the dissident, when we get there we eradicate them. We don’t differentiate when we find, because we can’t tell who is a dissident and who is not.”[5]

  1. On July 10 1983 in the Tsholotsho district, north of Bulawayo, a band of about 15 Fifth Brigades, identifiable by their uniforms and red berets, descended on a village on the Silongwe Line in Tsholotsho. They herded some two dozen people into a thatched roof hut and set it on fire. 21 people were burned alive, including 9 women and 6 children.[6]
  2. Given these facts and these statements it is no wonder that the results of the Commission of Enquiry into the 1983 atrocities have been kept quiet. The Fifth Brigade was Prime Minister Mugabe’s brainchild, was sent into the area with his specific blessing and mandate and even while it was there, he, as Head of State, supported their strategy.
  3. Ironically President Mugabe himself in last week’s press conference has acknowledged the responsibility that leaders have for the actions of their subordinates. If President de Klerk must have known what his Buffalo Battalion would do in South Africa and be held accountable for their actions likewise President Mugabe needs to be held accountable for the actions of the Fifth Brigade in 1983. Indeed if anything President Mugabe is more culpable; President de Klerk has at least denied responsibility and called for peace whereas the then Prime Minister Mugabe ratified the conduct of Fifth Brigade and even today persists in using inflammatory language (as indicated above in the statement of President Mugabe as reported in the Sunday Mail on 26 June 1992).

Undoubtedly the majority of the mass political killings throughout the world are the result of executive orders. Ad hoc political killings can be blamed on over-zealous individual policemen and soldiers. Sustained mass political killings and “disappearances” very rarely happen without, at the very least, tacit approval of the Head of State. As long a public enquiries fail to identify and prosecute the initiators of such actions, the real culprits will get away with impunity. It is obviously very difficult to encourage the setting up of enquiries that will trace the blame to the Head of State. It is only international collective action that can make this a reality.

Recommendations

(a)    Where Heads of State are linked to political killings and “disappearances” they should be treated as pariahs on all international trips. Pressure should be brought to bear on host governments not to host such leaders. International organisations, such as the Commonwealth Secretariat and the United Nations, should be lobbied by international human rights groups to investigate and censure such leaders.

(b)   Consideration should be given to setting up international commissions of enquiry to investigate specifically the responsibility of governments and Heads of State for political killings and “disappearances”.

(c)    Related to “b” above, work must progress towards codifying a general rule stipulating individual responsibility of serious human rights violations. In particular urgent attention needs to be given to the implementation of the International Law Commission’s Code of crimes against the peace and security of mankind.[7]

CONCLUSION

From the above it will be apparent that independent and public enquiries can only come about in the first place if allegations of political killings and “disappearances” are brought forward by the media, the police, the legal profession and non-Governmental organisations. Zimbabwe has been blessed with an independent judiciary and accordingly has the necessary structures in place to conduct independent and public enquiries. However, much remains uncovered because of the weaknesses of the organisations and institutions mentioned above. No matter how strong, fearless and independent a nation’s judges are, they are powerless unless cases are brought to their attention. Likewise even if independent and public enquiries take place, if the Head of State or Government is allowed to negate the recommendations and effect of the enquiries, the perpetrators of political killings will know that they can act with impunity in future. It is thus fundamental that if independent and public enquiries are to be effective any interference by Heads of State or Government must be severely criticised and sanctioned by the international community. As has been stated above very often the root of the problem is the Head of State or Government itself and until the international community develops ways to punish the authors of political killings and “disappearances”, those political killings and “disappearances” will continue.

SUMMARY

Some of the worst political killings and disappearances in the last ten years in Africa have taken place in Zimbabwe, especially in the mid-1980s. These have included mass killings of civilians by the Army, sporadic killings of civilians by political dissidents, election related political killings and sporadic political assassinations.

Very few of those responsible for the political killings and “disappearances” have been held accountable for their actions. A Commission of Enquiry held in 1984 has never had its results published. Wide-ranging amnesties have exonerated those responsible for the killings and ad hoc Presidential pardons have exonerated certain individuals. The problem has been compounded by a reluctance by the police to investigate and prosecute political killings and “disappearances”. The entire situation is further aggravated by the fact that the Government itself has been responsible for instigating and exacerbating incidents of political killings and “disappearances”. In this environment it is difficult to launch enquiries and to make them effective.

Recommendations:

  1. The media needs to be strengthened and encouraged to investigate and report on political killings and “disappearances”.
  2. Government announced amnesties should only be declared where absolutely necessary and should be restricted to exonerated perpetrators from criminal charges alone.
  3. Programmes must be implemented to encourage police officers to investigate and prosecute political killings and “disappearances”.
  4. Powers of Ombudsmen and other quasi-Government investigatory bodies should be strengthened.
  5. Lawyers should be encouraged to be innovative in their methods designed to expose political killings and “disappearances”.
  6. Non-Governmental Organisations need to be encouraged to set up structures and reporting mechanisms in remote areas to enable the speedy and effective reporting of human rights violations.
  7. International organisations, the United Nations in particular, need to consider and implement the draft report of the International Law Commission entitled “Draft Code of Crimes against the Peace and Security of Mankind”.
  8. It must be recognised that often the root of the problem of political killings and “disappearances” is Heads of State themselves and Government. Until means are developed to sanction Heads of State and Governments which commit or allow political killings and “disappearances”, these political killings and “disappearances” will continue.
[1] Zimbabwe: Wages of War report on human rights. Published by Lawyers’ Committee for Human Rights 1987. Page 34.

[2] Christopher Giwa was, at the time of his death, the Secretary for Youth Affairs of the recently formed Forum for Democratic Reform. In the weeks before his death he had received various threats. On the night he died he was driving back to Harare on the main Mutare/Harare Road on his own in a passenger vehicle. According to the police, his vehicle rammed into the back of a stationery army vehicle which had been left in the middle of the main road without its lights on. There are two further puzzling aspects regarding the accident: firstly the huge army vehicle ended up upside down having been hit by a light passenger vehicle and, secondly, Giwa’s face was unmarked. Some of his family and members of the Forum for Democratic Reform feel that he was assassinated. To date there has been no detailed police investigation into his death. In 1991 two members of a Bulawayo based political group the Open Forum, Amos Dlamini and Mr Ncube, were killed in equally suspicious circumstances. Once again the police investigation into their deaths was minimal.

[3] Individual Responsibility in International Law for Serious Human Rights Violations by Lyal S Sunga: published by Martinus Nijhoff 1992.

[4] Zimbabwe Defence Forces magazine, Vol 7 No. 1 at pages 33 to 37.

[5] Lawyer’s committee for human rights: Wages of War page 38

[6] Lawyer’s committee for human rights: Wages of War page 38

[7] Lyal S Sunga page 169.