Africa and Aboriginal Tuesdays: AU Fact-Finding Mission Report On Zimbabwe by Eddie Cross

This is the executive summary of the AU Report on Zimbabwe in June 2002. It
was the result of a short visit by an AU team that was co-ordinated by the
Ministry of Justice in Zimbabwe. The full report was sent to the Government
in November 2003 and no response was provided up to the recent Summit in
Addis. As a result the Human Rights Commission of the AU circulated the
report to the meeting of Foreign Ministers where it was adopted. Zimbabwe
now has 7 days to respond before the full report is published. I see that
this is the 4th report to which the Zimbabwe government has not responded as
it is required to do under the AU Charter.

This is an astonishing document - it is comprehensive and accurate and by no
means sensationalist. It is damming. It could not have come out at a worse
time for the Mugabe regime - now under intense pressure to conform to the
SADC norms for elections in the region. Some reforms have been announced -
more are expected. It may be that Zanu will be forced to hold the March 2005
elections under conditions that are dramatically altered from those it
expected when it planned the electoral strategy.

Eddie Cross
12th July 2004
egcross@africaonline.co.zw

****

Executive Summary of the Report of the
Fact-finding Mission to Zimbabwe
24th to 28th June 2002

INTRODUCTION

Following widespread reports of human rights violations in Zimbabwe, the
African Commission on Human and Peoples Rights (African Commission) at its
29th Ordinary Session held in Tripoli from 23rd April to 7th may 2001
decided to undertake a fact-finding mission to the Republic of Zimbabwe from
24th to 28th June 2002.

The stated purpose of the Mission was to gather information on the state of
human rights in Zimbabwe. In order to do so, the Mission sought to meet with
representatives of the Government of the Republic of Zimbabwe,
law-enforcement agencies, the judiciary, political parties and with
organised civil society organisations especially those engaged in human
rights advocacy. The method of the fact-finding team was to listen and
observe the situation in the country from various angles, listen to
statements and testimony of the many actors in the country and conduct
dialogue with the government and other public agencies.

FINDINGS

1. The Mission observed that Zimbabwean society is highly polarized.
It is a divided society with deeply entrenched positions. The land question
is not in itself the cause of division. It appears that at heart is a
society in search of the means for change and divided about how best to
achieve change after two decades of dominance by a political party that
carried the hopes and aspirations of the people of Zimbabwe through the
liberation struggle into independence.

2. There is no doubt that from the perspective of the fact-finding
team, the land question is critical and that Zimbabweans, sooner or later,
needed to address it. The team has consistently maintained that from a human
rights perspective, land reform has to be the prerogative of the government
of Zimbabwe. The Mission noted that Article 14 of the African Charter states
"The right to property shall be guaranteed. It may only be encroached upon
in the interest of public need or in the general interest of the community
and in accordance with the provisions of appropriate laws". It appears to
the Mission that the Government of Zimbabwe has managed to bring this policy
matter under the legal and constitutional system of the country. It now
means that land reform and land distribution can now take place in a lawful
and orderly fashion.

3. There was enough evidence placed before the Mission to suggest
that, at the very least during the period under review, human rights
violations occurred in Zimbabwe. The Mission was presented with testimony
from witnesses who were victims of political violence and others victims of
torture while in police custody. There was evidence that the system of
arbitrary arrests took place. Especially alarming was the arrest of the
President of the Law Society of Zimbabwe and journalists including Peta
Thorncroft, Geoffrey Nyarota, among many others, the arrests and torture of
opposition members of parliament and human rights lawyers like Gabriel
Shumba.

4. There were allegations that the human rights violations that
occurred were in many instances at the hands of ZANU PF party activists. The
Mission is however not able to find definitively that this was part of an
orchestrated policy of the government of the Republic of Zimbabwe. There
were enough assurances from the Head of State, Cabinet Ministers and the
leadership of the ruling party that there has never been any plan or policy
of violence, disruption or any form of human rights violations, orchestrated
by the State. There was also an acknowledgement that excesses did occur.

5. The Mission is prepared and able to rule, that the Government
cannot wash its hands from responsibility for all these happenings. It is
evident that a highly charged atmosphere has been prevailing, many land
activists undertook their illegal actions in the expectation that government
was understanding and that police would not act against them - many of them,
the War Veterans, purported to act as party veterans and activists. Some of
the political leaders denounced the opposition activists and expressed
understanding for some of the actions of ZANU PF loyalists. Government did
not act soon enough and firmly enough against those guilty of gross criminal
acts. By its statements and political rhetoric, and by its failure at
critical moments to uphold the rule of law, the government failed to chart a
path that signalled a commitment to the rule of law.

6. There has been a flurry of new legislation and the revival of the
old laws used under the Smith Rhodesian regime to control, manipulate public
opinion and that limited civil liberties. Among these, the Mission's
attention was drawn to the Public Order and Security Act, 2002 and the
Access to Information and Protection of Privacy Act, 2002. These have been
used to require registration of journalists and for prosecution of
journalists for publishing "false information". All of these, of course,
would have a "chilling effect" on freedom of expression and introduce a
cloud of fear in media circles. The Private Voluntary Organisations Act has
been revived to legislate for the registration of NGOs and for the
disclosure of their activities and funding sources.

7. There is no institution in Zimbabwe, except the Office of the
Attorney General, entrusted with the responsibility of oversight over
unlawful actions of the police, or to receive complaints against the police.
The Office of the Ombudsman is an independent institution whose mandate was
recently extended to include human rights protection and promotion. It was
evident to the Mission that the office was inadequately provided for such a
task and that the prevailing mindset especially of the Ombudsman herself was
not one which engendered the confidence of the public. The Office was only
about the time we visited, publishing an annual report five years after it
was due. The Ombudsman claimed that her office had not received any reports
of human rights violations. That did not surprise the Mission seeing that in
her press statement following our visit, and without undertaking any
investigations into allegations levelled against them, the Ombudsman was
defensive of allegations against the youth militia. If the Office of the
Ombudsman is to serve effectively as an office that carries the trust of the
public, it will have to be independent and the Ombudsman will have to earn
the trust of the public. Its mandate will have to be extended, its
independence guaranteed and accountability structures defined.

8. The Mission was privileged to meet with the Chief Justice and the
President of the High Court. The Mission Team also met with the Attorney
General and Senior Officers in his office. The Mission was struck by the
observation that the judiciary had been tainted and even under the new
dispensation bears the distrust that comes from the prevailing political
conditions. The Mission was pleased to note that the Chief Justice was
conscious of the responsibility to rebuild public trust. In that regard, he
advised that a code of conduct for the judiciary was under consideration.
The Office of the Attorney General has an important role to play in the
defence and protection of human rights. In order to discharge that task
effectively, the Office of the Attorney General must be able to enforce its
orders and that the orders of the courts must be obeyed by the police and
ultimately that the profession judgement of the Attorney General must be
respected.

9. The Mission noted with appreciation the dynamic and diverse civil
society formations in Zimbabwe. Civil society is very engaged in the
developmental issues in society and enjoys a critical relationship with
government. The Mission sincerely believes that civil society is essential
for the upholding of a responsible society and for holding government
accountable. A healthy though critical relationship between government and
civil society is essential for good governance and democracy.

RECOMMENDATIONS

In the light of the above findings, the African Commission offers the
following recommendations -:

On National Dialogue and Reconciliation

Further to the observations about the breakdown in trust between government
and some civil society organisations especially those engaged in human
rights advocacy, and noting the fact that Zimbabwe is a divided society, and
noting further, however, that there is insignificant fundamental policy
difference in relation to issues like land and national identity, Zimbabwe
needs assistance to withdraw from the precipice. The country is in need of
mediators and reconcilers who are dedicated to promoting dialogue and better
understanding. Religious organisations are best placed to serve this
function and the media needs to be freed from the shackles of control to
voice opinions and reflect societal beliefs freely.

Creating an Environment Conducive to Democracy and Human Rights

The African Commission believes that as a mark of goodwill, government
should abide by the judgements of the Supreme Court and repeal sections of
the Access to Information Act calculated to freeze the free expression of
public opinion. The Public Order Act must also be reviewed. Legislation that
inhibits public participation by NGOs in public education, human rights
counselling must be reviewed. The Private Voluntary Organisations Act should
be repealed.

Independent National Institutions

Government is urged to establish independent and credible national
institutions that monitor and prevent human rights violations, corruptions
and maladministration. The Office of the Ombudsman should be reviewed and
legislation which accords it the powers envisaged by the Paris Principles
adopted. An independent office to receive and investigate complaints against
the police should be considered unless the Ombudsman is given additional
powers to investigate complaints against the police. Also important is an
Independent Electoral Commission. Suspicions are rife that the Electoral
Supervisory Commission has been severely compromised. Legislation granting
it greater autonomy would add to its prestige and generate public
confidence.

The Independence of the Judiciary

The judiciary has been under pressure in recent times. It appears that their
conditions of service do not protect them from political pressure;
appointments to the bench could be done in such a way that they could be
insulated from the stigma of political patronage. Security at Magistrates'
and High Court should ensure the protection of presiding officers. The
independence of the judiciary should be assured in practice and judicial
orders must be obeyed. Government and the media have a responsibility to
ensure the high regards and esteem due to members of the judiciary by
refraining from political attacks or the use of inciting language against
magistrates and judges. A Code of Conduct for Judges could be adopted and
administered by the judges themselves. The African Commission commends to
the Government of the Republic of Zimbabwe for serious consideration and
application of the Principles and Guidelines on the Right to Fair Trial and
Legal Assistance in Africa adopted by the African Commission at its 33rd
Ordinary Session in Niamey, Niger in May 2003.

A Professional Police Service

Every effort must be made to avoid any further politicisation of the police
service. The police service must attract all Zimbabweans from whatever
political persuasion or none to give service to the country with pride. The
police should never be at the service of any political party but must at all
times seek to abide by the values of the Constitution and enforce the law
without fear or favour. Recruitment to the service, conditions of service
and in-service training must ensure the highest standards of professionalism
in the service. Equally, there should be an independent mechanism for
receiving complaints about police conduct. Activities of units within the
ZRP like the law and order unit which seems to operate under political
instructions and without accountability to the ZRP command structures should
be disbanded. There were also reports that elements of the CIO were engaged
in activities contrary to the international practice of intelligence
organisations. These should be brought under control. The activities of the
youth militia trained in the youth camps have been brought to our attention.
Reports suggest that these youth serve as party militia engaged in political
violence, The African Commission proposes that these youth camps be closed
down and training centres be established under the ordinary education and
employment system of the country. The Africa Commission commends for study
and implementation the Guidelines and Measures for the Prohibition and
Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment
in Africa (otherwise know as the Robben Island Guidelines) adopted by the
African Commission at its 32nd Ordinary Session held in Banjul, The Gambia
in October 2002.

The Media

A robust and critical media is essential for democracy. The government has
expressed outrage at some unethical practices by journalists, and the Access
to Information Act was passed in order to deal with some of these practices.
The Media and Ethics Commission that has been established could do a great
deal to advance journalistic practices, and assist with the
professionalisation of media practitioners. The Media and Ethics Commission
suffers from the mistrust on the part of those with whom it is intended to
work. The Zimbabwe Union of Journalists could have a consultative status in
the Media and Ethics Commission. Efforts should be made to create a climate
conducive to freedom of expression in Zimbabwe. The POSA and Access to
Information Act should be amended to meet international standards for
freedom of expression. Any legislation that requires registration of
journalists, or any mechanism that regulates access to broadcast media by an
authority that is not independent and accountable to the public, creates a
system of control and political patronage. The Africa Commission commends
the consideration and applications of the Declaration on The Principles of
Freedom of Expression in Africa adopted by the 32nd Ordinary Session of the
African Commission in Banjul, October 2002.

Reporting Obligations to the African Commission

The African Commission notes that the Republic of Zimbabwe now has three
overdue reports in order to fulfil its obligations in terms of Article 62 of
the Africa Charter. Article 1 of the Africa Charter states that State
Parties to the Charter shall "recognise the rights, duties and freedoms
enshrined in the Charter and shall undertake to adopt legislative or other
measures to give effect to them." Article 62 of the Africa Charter provides
that each State Party shall undertake to submit every two years "a report on
the legislative or other measures taken, with a view to giving effect to the
rights and freedoms recognised and guaranteed by the present Charter." The
African Commission therefore reminds the Government of the Republic of
Zimbabwe of this obligation and urges the government to take urgent steps to
meet its reporting obligations. More pertinently, the African Commission
hereby invites the Government of the Republic of Zimbabwe to report on the
extent to which these recommendations have been considered and implemented.

Tuesday, July 13, 2004