Briefing paper by the Zimbabwe Human Rights NGO Forum

  2.1. Background:  

As stated above, at the heart of the abuse of human rights in Zimbabwe, both before and since independence in 1980, is impunity for those who have committed crimes against humanity, torture and other gross violations. Violent criminals who do not receive retribution for their crimes will continue to commit violence for so long as they are not brought to justice. Survivors of endemic abuse and the relatives of those who have not survived continue to wait for the perpetrators to be brought to book, for reparations, and for the circle of violence to be broken. The vast majority of Zimbabweans want a decisive break from the vicious past, the creation of a state no longer tolerant of killing and maiming for political causes, and the guilty to be held accountable[v].

The right to justice for sufferers of gross human rights violations has been universally recognised since the end of World War II. In Zimbabwe, both prior to and after 1980, civil society activists striving for a more tolerant country have known it is essential to form collective alliances in order to advocate for the views of both direct and indirect targets of violent abuse.  If those who have borne the brunt of egregious state crimes are not brought squarely into the process then those individual victims will be marginalised and society as a whole will lack the impetus to create institutions to ensure that recurrence is avoided. Justice is an end in itself for those who have suffered injustice, but it is also the glue which can help people live more peacefully together, and a weapon against demagoguery and terror[vi].

It is in light of the above that The Zimbabwe Human Rights NGO Forum (the “Forum”) has put a lot of energy into reaching out to the survivors of human rights violations who remain inside Zimbabwe. While the campaign for accountability will continue to be driven from inside Zimbabwe, those outside are a vital constituency whose voice needs to be clearly heard. Many suffered greatly before leaving, and they are as deserving of justice as those who have remained in the country[vii]. The Forum and its nineteen member organisations and many other partners have a proud record of standing up for those trampled on by the state, and it is vital that this work continues until their aims have been achieved.

2.2 Transitional justice and peace-building campaign

Through its Transitional Justice work, the Forum has documented Zimbabweans’ human rights priorities, hopes and demands, and fed these into the on-going internal struggle. The Forum hopes that the people’s views would be factored into the painful transition towards democracy and peace. Similarly, those  in the Diaspora who wish to return may then do so, safe in the knowledge that there is indeed a real prospect of obtaining justice, including reparations, and even a measure of healing. The work has also included conflict transformation and peace-building in communities.

2.3 Public Interest Civil litigation

Through its public interest litigation and advocacy work, the Forum has represented victims of torture in domestic courts, regional and international bodies. Though immense barriers still remain, this has brought some measure of redress to torture victims and ameliorated further suffering. Through its campaigns, the government of Zimbabwe accepted some of the major recommendations during the United Nations Human Rights Council Universal Periodic Review on 15 March 2012.

2.4 Research and documentation

In addition the Forum’s The Research Unit has actively led the efforts of the Forum’s various members in researching, documenting and publishing incidents of gross violations of human rights in Zimbabwe, particularly those associated with organized violence and torture.  The Forum’s international liaison office has also been helping in this effort in addition to its dedicated roles of creating international synergies to ensure that Zimbabwe remains in the global spotlight and that domestic reforms are informed by international comparative experiences.

2.5 Additional collaborative projects

The Forum works collaboratively with its members and partners, who, each focus on different areas ranging from mass education and mobilisation by Zimbabwe Human Rights Association, representation of human rights defenders in criminal trials through a dedicated country-wide network of criminal defence lawyers by the Zimbabwe Lawyers for Human Rights, policy research by the Research and Advocacy Unit, media monitoring by the Media Monitoring Project, ZACRO etc. All these efforts done in collaboration with other organisations have kept the government in check against excesses and without these efforts, human rights violations especially mass atrocities such as the ones the country witnessed between March and June 2008, would have worsened. It is no surprise that of late the state authorities have been carrying out a sustained campaign against the efforts of human rights organisations involved in documentation of human rights violations as they are fearful that such information might be used against them in future.

On a very positive note, the Forum, its members and partners have campaigned for a new people-driven constitution. This was out of the recognition that writing a constitution is a key aspect in nation building. A nation comes together as a result of shared values and aspirations, and it is in the constitution that these values and aspirations are defined.

Although far from perfect the new constitution, which recently became law marks a huge improvement on the old constitution with significant improvements to most aspects of the bill of rights. Interestingly there are a number of sunset clauses, such as a gradual transition in the composition of a new constitutional court. The current ruling elite are deeply concerned that if they lose political power in the short term, domestic courts will be used against them. However, importantly, even they recognize that there needs to be a transition over time to a more independent judiciary than currently exists[viii].

3.       Measures Government needs to adopt

3.1    Restoration of rule of law

Despite the new constitution, the overall situation is still far from perfect. As mentioned above, there are on-going human rights abuses, including the selective application of the law, massive corruption, tight control of the electronic media, and the military’s open support for ZANU PF.

The Government needs to strengthen the national structures that protect human rights, in particular the right to life, and reduce the involvement of the security sector in policing in order to reduce the use of force in the country. Each and every loss of life, particularly during the 2008 presidential elections and even during the disturbances in the diamond fields in the east of the country should be investigated with rigor, and each and every perpetrator should be apprehended and tried. Pursuing this objective will serve not only to decrease impunity, but also to restore the value that society attaches to life. State authorities must discharge both their constitutional and legislative obligations. The need to achieve justice for all as soon as possible should be the guiding star of all policy and other reforms as it is based on the sanctity of life, upon which all other rights are contingent.

In  advancing these initiatives, there is much Zimbabwe could learn from  Guatemala which recently made  history by becoming the first country in the world to convict a former head of State for genocide in its own national court[i], though , the conviction was subsequently quashed by the Constitutional court.

However these efforts ought to be complimented by the establishment of a Truth, Justice and Reconciliation Commission since establishment of truth and justice is necessary for sustainable peace and stability. Kenya’s current efforts offer an ideal benchmark in that regard.

3.2 Security sector reform

Zimbabwe must give full support to the security sector reforms as these are vital if the country hopes to have truly peaceful elections in future and to thrive in future. If army and police officers continue to openly support political parties and punish those who do not, then a free society will never be created. The whole notion of democracy depends on people being able to vote freely and unfortunately in Zimbabwe, the electorate as a whole has never been quite able to do so.  There must be clear standards for the military and security sector. This could be achieved through a robust implementation of clause 208 of the new constitution which prohibits members of the security services — the Defence Forces, the Police and the Prison Service — from being active members of political parties.  In fact it may not be necessary to enact legislation to enforce this clause, because police officers are already prohibited from participating in politics [section 9 as read with para 48(2) of the Schedule to the Police Act] and if members of the Defence Forces and Prison Service involve themselves in politics after the new constitution is published it will presumably amount to a breach of their conditions of service.

There are currently diffusive views on this issue, with some in the government feeling that ‘While there is need for re-alignment, in approaching the issue of the security sector, there is a need to address some of the concerns which some within this sector might have such as fear of prosecution’[x].

3.3 Ratification of the Rome Statute

Zimbabwe has not yet ratified the Rome Statute on the International Criminal Court.  Because of the country’s past there is little chance that the Rome Statute will be ratified in the short term. Those responsible for crimes are fearful that ratification will bring prosecutions on their own heads.

Several reasons have been given for non-ratification.  According Senator David Coltart, Minister for Education, Sports and Culture “Zimbabwe will eventually ratify but in our experience I think that there are lessons for us all. Zimbabwe has had a complicated history – although it does not excuse the serious breaches of law of the last 30 years in post-independence Zimbabwe, one cannot ignore the context and influence of the serious human rights abuses which occurred in the 20 years immediately preceding independence. In other words in countries where there has been a long history of human rights abuses it is more difficult to achieve a peaceful and sustainable transition to democracy. All of us need to be more patient and determined in our efforts to obtain ratification”.

He continued “Indeed and ironically a focus on ratification of the Rome Statute for some countries in transition can impede the chances of a peaceful transition. That was certainly the case in Zimbabwe. I have no doubt that had we made this a principal focus of our negotiations or indeed of our legislative agenda over the last few years, we would not have stabilized Zimbabwe”.

In other words whilst most of us human rights activists within Zimbabwe are pushing for ratification,  the Senator and others are of the view that they could not allow that long term necessity to derail the process of transition. In other words it was important not to allow perfection to become the enemy of the good. The attainment of democracy is a process not an event.

What lies ahead and what needs to be done to get a country like Zimbabwe to ratify?

• Close collaboration between the ICC and SADC. Ideally membership of SADC should include an understanding that there will be a common position regarding membership of international bodies such as the ICC since Zimbabwe is in a minority of SADC countries which have not ratified.
• Appointment of more African judges and staffers to the ICC to counter the African perception that the ICC is a western creation meant to persecute Africa leaders; super powers such as the USA, Russia and China should also ratify to reverse this perception.

 3.4 Cooperation with international and regional mechanisms  

As a state member of the United Nations and party to various international treaties, Zimbabwe also needs to fully cooperate with the international community. The recommendations accepted during the universal periodic review, for example ratification of the United Nations Convention against Torture and criminalising torture, should be fully implemented. The involvement of members of civil society in this process is crucial.

Zimbabwe needs to continue to engage the United Nations Human Rights Council (“UNHRC”) mechanisms to ensure a greater protection of human rights and implement necessary reforms. For instance, Zimbabwe should be encouraged to respond to the visit requests by various UN special mandate-holders (such as the Special Rapporteur on Torture) and follow through on some of the key recommendations made by the OHCHR during the High Commissioner’s visit in May 2012 in particular the repeal and amendment of repressive laws.

Zimbabwe needs to take decisive steps to adhere to regional commitments, for example ratification of the protocol to the African Charter establishing the African Court which is meant to compliment the jurisdiction of the African Commission on Human Rights.

Similarly Zimbabwe could benefit from international expertise and comparative best practice in instituting reforms towards creating a society that respects the right to life, for example ICRtoP’s International Coalition for the responsibility to protect toolkit.

3.5 Educational measures[xi]

Educational measures should be adopted to guarantee non repetition. This must include current efforts of institutional reform such as the re-training or re-education of public authorities, which aim to change institutionalised attitudes and behaviour. These should not be limited to the institutions which have committed the worst civil and political violations (such as the police, military, security and prison services), but should be implemented in every sector of society, in particular in the educational sector, to effect long-term societal reform.  This will hopefully address the current pressing need  to identify the societal causes of violations perpetrated in Zimbabwe both before and after independence, to redress the extensive harm caused to victims and Zimbabwean society and, perhaps most importantly, to prevent future violations.

The educational measures mentioned above will clearly overlap with state development programmes in relation to the right to education.  Any reparations body that is developed in the future must therefore develop a close working relationship with the Ministry of Education, as well as civil society organizations working in this field; educational measures such as human rights education in schools will essentially rely on the Ministry of Education and teachers for effective delivery. Educational measures could also prove beneficial to the education sector however, for example by improving teaching skills where reparation programmes include teacher-training workshops on human rights and conflict resolution.

Educational measures ensuring non-repetition must be implemented in all sectors of Zimbabwean society, not just in the education sector. Thus, essential to non-repetition, and in order to ensure the first pillar of transitional justice of ‘justice’ or ‘accountability’ for victims for example, the security sector and judiciary must be re-trained to actively protect human rights in accordance with international ethical codes of conduct.

Civil Society Organisations like The Legal Resources Foundation (LRF), a not-for-profit organisation, implemented a number of human rights training programmes for the police, prison officers, and judiciary and secondary school teachers in the 1990s. Despite achieving some positive outcomes, particularly in the prisons at that time, the programmes struggled to implement long-term change. In relation to the police recruits training programmes, the LRF experienced particular difficulties in ‘moving from knowledge to changed attitude to changed behaviour’, concluding that knowledge (of international human rights instruments for example), in and of itself, ‘achieves very little in terms of changed… behaviours.’  Changing behaviours requires both time and political will. The LRF was unfortunately restricted by insufficient funding and political support, and was therefore unable to carry out programmes on a regular basis as part of the core training of the police (and the rest of the security sector). Instead, they were limited to carrying out short superficial workshops and, as a result, trainees were only able to pay lip-service to international human rights and ethical norms and their implementation.

More recently, tentative efforts have been led by the Zimbabwe Human Rights NGO Forum , Heal Zimbabwe Trust and other organisations  in relation to peace-building, security sector reform and conflict resolution training.

The educational measures recommended for the public at large and for the educational sector will thus complement other reform measures, promoting non-repetition of gross human rights violations in Zimbabwe through both a top-down approach of institutional reform, and a bottom-up approach of empowering the public to effectively monitor the state’s adherence to its international human rights law obligations.

3.6 Creating a culture of tolerance and inclusion

In an insightful eulogy at the funeral of prominent Zimbabwean Mike Hove, David Coltart MP briefly retraced the historical context that provides a general insight on what went wrong in Zimbabwe. He recounts that, “In the 1950s when Mr Hove was a member of parliament we were starting out a more civilised path of respecting all our people, a trend which was abruptly derailed when radicals and hardliners on both sides of the political spectrum chose violence to decide the contestation over power. It is shameful that we as whites treated great men and women like Mr Hove, Enoch Dumbutshena and countless others as second class citizens. In doing so we squandered the opportunity of securing a peaceful transition to majority rule and condemned Zimbabwe to a brutal civil war which poisoned our nation, poison which persists to this day through men (on both sides let it be said) who have had their minds bent by a bloody war. As a result we have suffered 50 years of trauma. As I listened to the stories mourners related of this great man’s life I thought that it really is time for us to “Start again a little higher”, so that as a Nation we once again strive to achieve the ideals and principles that Mr Hove stood for. When we do so I have no doubt that all the promise, the “good things”, that our beloved Nation has will be realised”.

For the country to start again higher on the road to recovery, it is imperative to adopt inclusive approaches that take into account the fact that local civil societies are part of the political game. Empirical research evidence emphasises the importance of local communities in the reconstruction of governance in post-conflict societies. Local clans or tribes play an important role in the rebuilding of peaceful and secure governance. In conflict–ridden regions, local polities, composed of, and informally led by, tribal elders, “clan elders, local business people, local intellectuals, Muslim clergy, [and] neighbourhood groups” have played a pivotal role in reconstruction efforts.  The case in point here is Somalia, where they are transforming a clan-based militia into a national defence force[xii].

According to Menkhaus[v]  this reconstruction will benefit from “a high degree of legitimacy and local ownership”. In Zimbabwe, for example, ex-combatants, despite their role in the current crisis, have a grand narrative carrying a “traditional cultural repertoire” which can ease the reintegration of displaced peoples. In countries like Cambodia, Mayan rituals or Cambodian healers and mediums play an important role in “recreating symbolic links among members of a community and in reinterpreting the various violent ruptures suffered by the society.[xiv] Even though some external international organisations would argue that local communities do not replace the central government needed to create a peaceful and secure post conflict state,  African post-conflict countries can construct their own model of an organic state, composed of informal local polities rather than ill-adapted, top-down governance. The reconstruction of local polities is therefore an integral part of the process of reconstructing the State,[xv] especially in African countries composed of such a diversity of local cultures, clan and tribal communities.

Economic democratisation is also an essential part of this inclusion in order to avoid the societal strife that often feeds into mass atrocities. There is empirical evidence to suggest that African post conflict states “have begun moving away from colonially designed juridical statehood to fashion empirical formulas that respond to the messiness of their current realities,[xvi] creating “mediated states” via the process of indigenisation of governance. However in Zimbabwe this evidence has been used to support a culture of political patronage and social exclusion for certain groups, particularly the white community and those who are opposed or perceived to be opposed to government policies. There is therefore an urgent need to create a society that values all people based on equality and social inclusion, for example the educational measures suggested above should take into account all languages and the collective ethos (Ubuntu) which underpinned our traditional institutions [xvii].  In order to kick start this process we need a decisive break from the past and this should entail a full and unreserved apology by our leaders to the minority ethnic groups who have been wronged or socially excluded in the past.

This is not to deny the arrogance, exploitation, violence and humiliations that accompanied much of white rule in Rhodesia where basic human rights were denied and the system was rigged to promote the interests of a minority. However, at the same time, we should not buy into the simplistic interpretations and manipulations of that history, particularly where these are used to justify the unjust and defend the indefensible. Neither should we resort to cultural relativity to deny universal rights Zimbabweans need to choose principle over expediency and to know that values matter, morally and materially.[xviii] The above should be underpinned by an acknowledgement to learn from the past to influence the present and shape the future we all want to see, in order to create a compelling vision for the future which is more powerful than the pain of the past. This should be the basis for an ideal framework of hope for the Zimbabwe we all want.

4.       How delegates at this forum can help Zimbabwe

4.1 Delegates from super powers such as the USA, Russia and China should encourage their governments to lead by example, for example, they could do this by ratifying the Rome Statute and secondly creating an environment that is conducive for the exercise of fundamental freedoms. This might mean repealing laws that impinge on the free operation of NGOs operation. For example the recent Russian NGO law requiring close monitoring of NGOs lacks appropriate legal basis as according to international human rights law, the protection of sovereignty is not listed as a legitimate ground to restrict citizens’ freedom of association.

4.2 Embracing the consensual position adopted at the recently ended United Nations high-level panel on a post-2015 global development agenda that will also focus on protection of the rule of law, good governance and holding Governments to account (“the golden thread of development.”). This golden thread should be the basis for foreign bilateral relations. .

4.3 Increase diplomatic engagement with the Zimbabwean government to ensure that it complies with its regional and international commitments. This includes encouraging them to create an environment that is conducive for a free and fair election, implementation of the UPR recommendations and the need to consider accepting some of the recommendations that it rejected.

End Notes

[i] Please see speech delivered at 7th Consultative Assembly of Parliamentarians for the ICC and the Rule of Law, Rome. Italian Chamber of Deputies, 10th December 2012, by Senator David Coltart titled “Promoting the universality of the Rome Statute 10 years after its entry into force: Challenges for States and international Organisations and the role of Parliamentarians – a Zimbabwean perspective.”

[ii] The Rome Statute of the International Criminal Court was adopted on 1 July 2002 to establish the International Criminal Court, a permanent, international judicial body that can investigate and prosecute cases of genocide, crimes against humanity and war crimes. Not all governments are signatories to the Rome Statute, but Article VII of the Statute defines crimes against humanity (which unlike genocide requires no specific intent) as: Acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

[iii] The progressive erosion of the rule of law in independent Zimbabwe, Third International Rule of Law Lecture: Bar of England and Wales, Inner Temple Hall, London. Wednesday 9 December 2009. The Honourable Justice Anthony R Gubbay, Former Chief Justice of the Zimbabwean Supreme Court.

[iv] After the horrors of the Holocaust, Member States in the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on 9 December 1948. Article II defines the term “genocide” as: Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, including : (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

[v] Kevin Laue, Foreword to ‘Taking Transitional Justice to the Diaspora, Outreach Report, volume 1, 2012

[vi] ibid

[vii] To the extent that somewhere forcibly displaced they would fit under the definition of victims of crimes of humanity under the ICC

[viii]   David Coltart, ibid

[ix] http://www.un.org/apps/news/story.asp?NewsID=44918&Cr=guatemala&Cr1=#.UZTaqqJJ4wA

[x] Hon. Tendai Biti´s speech at Chatham House: Hall marks of potential political consensus on key issues?

25 April 2013

[xi] In building this section, acknowledgement is given to Illif, F, ‘’Educational Measures as Guarantees of Non-Repetition under International Law: A Necessary Form of Reparation for Victims of Gross Human Rights Violations in Zimbabwe ‘Essex University.

[xii] Abdhihakim Mohamud Haji Faqi, Minister of Defence, Somalia, “The Challenges of Transforming a Clan-based Militia into the Somali National Army”, Speech given at the Royal United Services Institute, Whitehall, London, 8 May 2013.

[xiii] Menkhaus, K., 2007. Governance without government in Somalia, International Security, 31(3), p74- 106.

[xiv] Pouligny, B., 2005. Civil Society and Post Conflict Peace building: Ambiguities of   International Programmes Aimed at Building “New Societies”. Security dialogue, 36(4), p495-510.

[xv] Romeo L., 2002. Local governance approach to social reintegration and economic recovery in     post- conflict countries: towards a definition and Rationale. Discussion Paper, Workshop on a Local Governance Approach to Post-Conflict Recovery, October 8, 2002. Institute of Public Administration and United Nations Development Programme: New York.

[xvi] Lawson and Rothchild quoted in Menkhauss

[xvii] See Marunda, E, Dr, Paper on the Africanisation of the Curriculum, 25 April 2013.

[xviii] Smoke and mirrors: another look at politics and ethnicity in Zimbabwe, Rhodes House, Oxford, 29 May 2012