April 30, 2007

A HISTORY OF HUMAN RIGHTS VIOLATION

(A paper presented at a seminar organised by the Youth for Human Rights Sweden, Stockholm, April 27 2007)

It should be understood from the onset that the question of human rights violation started with the occupation of Mashonaland- the country known now as Zimbabwe - way back in 1890. Beginning with BSAC occupation of the country, land was being confiscated and sold to settlers and private companies in a corrupt manner. In 1898, a British Order-in-council reiterated the principle of assigning land to Africans by creating the so-called Native Reserves. Between 1890 and 1913, Africans were driven into Native Reserves in violation of their rights.

More than a hundred separate reserves of vastly different sizes had been designated throughout the country by 1913.

The occupation of the country was carried out without reference to the rights of the Shona. It is precisely because of this land encroachments and cattle seizures that the Shona peoples and their allies waged a war, the First Chimurenga, between June 1896 and October 1897.

When negotiations failed to resolve the land issue and constitutional rights of the people of Zimbabwe during the 1960s, the African nationalist movements decided to take up arms to fight against British human rights violations. These violations were being perpetrated through the passing of diabolical legislative acts in parliament.

There was the Land Apportionment Act of 1930, which introduced the principle of racial segregation into land allocation throughout the country. Prior to this Act, the only racial element of official land allocation had been the creation of Native Reserves restricted to communal African occupation.

Then in 1901, the Southern Rhodesia Parliament passed the Master and Servants Act, which prohibited the formation of trade unions and allowed the bargaining for wages to be controlled by the employers. This was a fundamental human right violation.

The Industrial Conciliation Act of 1934 legalised the formation of white trade unions while excluding "natives" from the definition of "employees". As a consequence, Africans were forced to work for subsistence wages on white farms, mines and factories.

The Native Registration Act of 1936 required African men in towns to obtain additional documentation certifying that they were employed or seeking employment. The basic requirement was that all adult African males should carry registration certificates at all times. In other words, if one forgot one's ID card at home, one would end up in police custody.

The Subversive Activities Act (1950) and the Unlawful Organisations Act (1959) banned registered African political parties on spurious pretext.

The Law and Order (Maintenance) Act of 1960 was the centrepiece of black oppression under British colonial rule in Zimbabwe. It prevented opposition members from holding peaceful public demonstrations without prior permission from authorities. This exceptionally tough security law was used to imprison such leaders as the late Joshua Nkomo, Ndabaningi Sithole (also late) and Robert Mugabe, the incumbent Zimbabwean President.

The Emergency Powers (Censorship of Publications) of 1965 was established to muzzle newspapers that were opposed to the Unilateral Declaration of Independence on 11 November 1965. It also frequently banned importation of foreign materials for political or moral reasons.

The Victims of Terrorism (Compensation) Act of 1973 and the Indemnity and Compensation Act of 1975 were specific statutes of impunity meant to indemnify all government officials from prosecution for acts committed "in the line of duty".

It is ironic to mention here that the independence government, lead by Robert Mugabe, never found it expedient to repeal these diabolical laws when Zimbabwe gained independence from Britain in April 1980. Instead the ZANU (PF) government used these laws to deny its own citizens the basic human rights contained in the constitution of Zimbabwe.

For example, in 1994 the Judiciary found it repugnant that the Law and Order (Maintenance) Act should be kept on the statute books fourteen years after independence. Consequently, in February 1994, the Zimbabwean Supreme Court ruled that the 34-year old section of the Law and Order (Maintenance) Act that prevented opposition members from holding peaceful public demonstrations without prior permission from the authority was in conflict with the Zimbabwean Bill of Rights and should therefore be repealed.

Another example is the Native Registration Act, which has remained on the statute books since 1936. Today the Zimbabwe Republic Police (ZRP) have authority to demand that people produce their National Registration Card (a thin aluminium disc) on demand or face going to jail for a maximum of one year. The police frequently swoop on hundreds of people at a time and cart them off to the police station for deposit fines for not having their IDs with them. In March 1997, Chief Justice Gubbay, commending on the use of these laws, said that the law was tougher on people without their identity cards than it was on drivers without licences, even though the car was "a lethal machine".

In a ruling, the full bench of the Supreme Court concurred that for the ZRP to demand that people produce their IDs on demand violated the constitutional right to freedom of movement.

In the face of the war against dissidents in Matabeleland and parts of the Midlands during the early 1980s, the ZANU (PF) government reverted to similar legislation as the Rhodesian Front government specifically to cover atrocities committed during Operation Gukurahundi by the crack North Korean-trained Fifth Brigade. The Emergency Powers (Security Forces Indemnity) Regulations 1982 was passed to exonerate atrocities where almost 20,000 innocent civilians were massacred.

Another piece of legislation promulgated by the Rhodesian Parliament in 1976 is the Criminal Procedure and Evidence Act which allowed a Cabinet Minister to issue a certificate barring the disclosure of certain information in public. The Minister of State for National Security, in an unprecedented move on 10 February 2003, issued a certificate to protect a key State witness from disclosing details of the agreement between his firm and the government citing national security concerns. This was at the treason trial of the leader of the Movement for Democratic Change (MDC), Morgan Tsvangirai and two senior party officials, during which the independence government was seeking to prevent defence lawyers from cross-examining Ari Ben-Menashe on the nature of the contract he signed with the government.

This legislation was promulgated specifically to deal with cases involving freedom fighters during the 1970s war of liberation. The High Court judge, Judge President Justice Paddington Garwe said, "In the Rhodesian context, the intention was to prevent any further enquiry on the part of the court, but the situation has now changed. The Constitution of Zimbabwe now has a Bill of Rights.... I am satisfied that in appropriate cases the court can make inquiries ..."

There is a volume of evidence that human rights are being violated in Zimbabwe. In many instances where the courts rule in favour of the plaintiff, the government chooses to ignore such rulings. Evidence to this observation is revealed by the response of the office of the Attorney-General and the police on political killings, abductions and torture since 2000. Questions Zimbabweans ask are: What progress had there been in the case of the abduction and torture of the late Mark Chavunduka and Ray Choto (The Zimbabwe Standard journalists)? The High Court had issued no less than three orders declaring the detention of the two journalists to be unlawful and ordering their release and yet the authorities defied the orders by refusing to release them.

What was the status of the killers of Talent Mabika and Tichaona Chiminya (MDC activists) who were clearly identified in the High Court? What happened to the killers of David Stevens and other farmers such as Gloria and Martin Olds, gunned down in cold blood? Does the public have confidence that where there had been victims of political violence, the police could investigate impartially and take appropriate action?

In Zimbabwe, there is all the evidence of a suborned judiciary after members got huge spoils from expropriated land. The judiciary and the justice delivery system no longer guarantee enjoyment of universally recognised human rights and fundamental freedoms.

In October 1990 after 25 years in existence, the state of emergency was repealed. However, Zimbabwe remains in a permanent state of emergency because of the existence of the Presidential Powers (Temporary Measures) Act which allows the President to assume legislative powers on behalf of Parliament even in circumstances that do not warrant decrees. Using these powers on the 27th November 1998, the President suspended parliamentary powers for six months and amended the Labour Relations Act to make strike action illegal. This was after the ZCTU had organised highly successful job stayaways on the 11th and 18th of November.

Abusing the Presidential Powers (Temporary Measures) Act intended for use in circumstances of emergency Mugabe deployed troops, tanks and jets in the DRC in 1998. He did not even bother to come to Parliament to debate the pros and cons of this issue of national interest.

The use of these presidential powers has the net result of suspending fundamental constitutional provisions leading to the violation of human rights.

It is interesting to note that in reaction to the Supreme Court challenge of the Law and Order (Maintenance) Act, President Mugabe, in 2002, signed into law the Public Order and Security Act (POSA) to replace the 1960 Act. It was said to be an "improvement" on its predecessor. However, most observers did not agree with that opinion. It might have appeared to be an improvement simply because the political circumstances had changed - the colour of the oppressors is now black. Therefore, there was no way the two could have been identical. The previous act was authored to protect the privileges of a white minority who did not need the black vote to remain in power. The current one was aimed at protecting the privileges of a black minority dependent on black voters for sustenance. But the spirit of the Bill remained identical to the former. It was an instrument for the repression and denial of opportunity to the politico-economically-powerless majority.

As proof of further evidence of its displeasure with criticism, the Zimbabwean government passed a new information Bill in 2002. The legislation, the Access to Information and Protection of Privacy Act (AIPPA), was designed ostensibly to make public officials and institutions they represent more accountable to the taxpayer, protect personal privacy and regulate Zimbabwe's media operations. In essence the Act barricades from public scrutiny information held by government.

The existence of POSA, which prohibits meetings of four or more people to discuss civic affairs without permission from the police and AIPPA, which muzzles the media, creates a minefield for human rights defenders and newspaper proprietors alike. Since the promulgation of AIPA, four newspapers have been banned for being outspoken on matters of corruption in government circles.

A piece of legislation hurried through Parliament in 2002, the General Laws Amendment, disenfranchised a large number of Zimbabwean citizens who were declared to be "foreign citizens", and deprived certain categories of postal voters of their right to cast the ballot. About three million Zimbabweans live in South Africa and thousands are economic refugees in the UK and the USA. This Act also banned voter education by anyone other than ZANU (PF), among other restrictive provisions.

These laws have been used effectively to shrink the democratic space in which human rights defenders operate against the background of numerous arbitrary arrests and detentions of activists.

Law historians will find striking similarities and continuities between Rhodesia and Zimbabwe in respect of the political leadership's relationship and attitude towards the law and legality wherein the law is seen and consistently used as a tool of political and social repression and also frequently manipulated to grant wide discretionary powers to executive organs.

The cumulative effect of this systematic undermining of the rule of law has been so overwhelming that it has become evident that there is one law for the "povo" (the common citizen) and another for the political elite. When the allies and friends of the political elite are prosecuted and convicted by the courts, the presidential power of pardon is used to place them beyond the reach of the law or punishment.

Another area of human rights violation in Zimbabwe is the provision of food. This is regarded as a basic human right. It is incumbent upon the government to provide food for all its subjects irrespective of their political, religious or other affiliation. There is overwhelming evidence that the ZANU (PF) government has provided food aid to supporters while denying it to perceived adversaries. In a report titled "Not Eligible: The Politicization of Food in Zimbabwe", the American Human Rights Watch, documents cases of food deprivation in 2003. The International Covenant on Economic, Social and Cultural Rights reaches further than basic rights benchmarking to outline specific provisions about the right to food.

Zimbabwe acceded to the Covenant in 1991, and is thus bound to recognise everybody's right to adequate food, to act to ensure that this right is realised fairly and as widely as possible, and to co-operate with the international community to ease domestic hunger.

The use of food as a political tool is both morally abhorrent and violates international law. The government should impress upon the leadership of all political parties that it is prohibited for politicians and party supporters either to use food to influence or reward constituents and voters, or to withhold access to food as a reprisal for perceived political opposition.

In a report in January 2005, the African Commission on Human and People's Rights criticised Zimbabwe for enforcing repressive media and security laws, failing to guarantee the independence of the judiciary and allowing politics to influence the work of police and state agents. For example, in carrying out Operation Murambatsvina in May 2005, the police repeatedly failed to act within the law, ignored court orders, beat people and destroyed their property. Operation Murambatsvina/Restore Order or Drive Out Filth rendered homeless up to 700,000 of its citizens and affected, in one way or the other, a further 2.4 million when authorities demolished "illegal" homes and structures housing the informal sector.

The state has over the past decade adopted a laager mentality in which it has tried to close off potential channels of dissent. The psyche of the ZANU (PF) government has been tuned to achieve conformity and deal ruthlessly with balking sections of society, hence the enactment of draconian laws like Posa and Aippa. Members of Women of Zimbabwe Arise (Woza) are routinely rounded up, beaten and detained at police stations for demonstrating against poor service delivery by the city municipalities.

Armed police swooped on the Zimbabwe Congress of Trade Unions (ZCTU) leadership on 13 September 2006 as they prepared to march to present a petition to the Finance Minister at Parliament and the offices of the Employers' Confederation of Zimbabwe in Harare. There was all the evidence of an elaborate plan to deal with civil unrest that was only manifest in the insecure minds of a paranoid regime. Even before there was a march, the ZCTU leaders were arrested and taken to Matapi police station. As soon as they were in the Matapi police station, the Zimbabwe Republic Police severely tortured the arrested trade unionists, including ZCTU President Lovemore Matombo and Secretary-General Wellington Chibebe, leaving some with fractured limbs.

What Zimbabweans and the international community witnessed on September 13 was a classic case of brutality. Those who intended to march never moved an inch, yet the police resorted to excessive force on what could arguably be regarded as bystanders in Harare's streets.

Furthermore, events of 11 March 2007 again showed the brutality of the Mugabe regime. The world watched with horror and outrage as the Zimbabwe Republic Police cracked down on innocent and law-abiding civilians. Among the arrested was Morgan Tsvangirai, the leader of the MDC, who was brutally tortured while in police custody and suffered severe head injuries. Lovemore Madhuku, the leader of the National Constitutional Assembly, was reported to have suffered a broken arm and numerous other wounds. Grace Kwinje, MDC Deputy Secretary for International Affairs was savagely assaulted and sustained a split right ear lobe. Many of their other colleagues in the Save Zimbabwe Campaign coalition were hospitalised.

Public control, as an essential part of public service, targets the growth of acceptable habits of citizenship and public behaviour; not physical attacks on people's heads and other bodily limbs. Internationally, governments compete to look after their own citizens and would do anything to protect their people from either their officials or from external enemies. Events of those fateful days (13 September 2006 and 11 March 2007) showed that the greatest threat to national security and public order resides within ZANU (PF) and some sections of the police force. Their panic attitude and desire to follow unreasonable orders from politicians are the major sign of national backwardness in crowd control and intolerance to freedom of assembly.

In the face of this evidence, African states have remained conspicuously silent and have not demonstrated the political will to respond to the human rights crisis in Zimbabwe. At the same time, the government routinely does not respond to the charges of civic and human rights groups. It denies the country is facing a humanitarian crisis.