The case for Zim human rights trials
http://www.theindependent.co.zw/
Thursday, 17 March 2011 15:17
By Pedzisai Ruhanya
FROM the Nuremburg and Tokyo trials after World War II, the International
Criminal Tribunal on the Former Yugoslavia, the Truth Commission Hearings in
South Africa to the International Criminal Tribunal for Rwanda, human rights
trials have been the major policy innovation for more than half a century
designed to halt immense human rights violations by dictators.
In the case of Zimbabwe, particularly in this transitional period, the main
justification for such trials is that punishment is necessary to deter human
rights violations as the country grapples with a violent past and the urgent
need to transit to a democratic society by organising a violence-free
electoral process and outcome.
Given the history of successful human rights trials in post-war Germany,
Europe and elsewhere, human rights trials during and after the transition in
Zimbabwe will lead to improvements in the observance and protection of human
rights.
Human rights trials are rarely merely retributive, as some have argued. The
purpose is not only to punish perpetrators but to use this punishment to
deter future violations.
Human rights trials are required in Zimbabwe because war veterans and
members of their militias are encouraged to believe they are immune from
legal responsibility for their actions.
They are fortified in this belief by amnesties granted to them by the
government, in particular an amnesty granted in October 2000 which pardoned
all politically-motivated crimes committed in the run-up to that year’s
elections, except crimes of murder, rape and fraud.
This was a retrogressive policy by the Zanu PF government because it
encouraged impunity and denied justice to the victims of human rights
violations.
Impunity is the failure in law and practice of holding perpetrators of
violations accountable mainly through the justice system. Zimbabweans,
especially those belonging to opposition parties, have been victims of both
de facto and de jure impunity, which has led to egregious human rights
violations beginning with the Matabeleland and Midlands massacres in the
1980s, to the 1985, 1990 elections, 1995, 2000, 2002 and 2005 polls, and the
repression associated with the land reform programme.
The failure to prosecute Zanu PF activists and members of the securocracy
for these gross violations encourages these elements to commit crimes in
future. Resultantly, this has led citizens to lose faith in the security
forces and the criminal justice system, especially after the purging of the
bench by the Zanu PF government.
The perpetrators in the eras mentioned enjoyed de facto immunity from
prosecution since more often than not the police turned a blind eye to their
activities. This has happened each time Zimbabwe goes for national elections
or when the opposition and civic society protest against perceived bad
governance.
This is precisely what happened after the violent June 2008 presidential
election run-off where more than 200 opposition supporters were allegedly
murdered while hundreds were abducted and tortured, or abused in various
ways.
The situation in Zimbabwe is worsened by de jure impunity, where laws or
regulations providing impunity strengthen the impact of de facto impunity by
making it difficult or impossible to bring to the justice system
perpetrators of human rights violations.
Articles 7 and 18 of the Global Political Agreement, which deal with
restorative and retributive transitional justice respectively, have proved
to be impotent.
To compound matters, the police and the Attorney General (AG)’s Office
continue to be accused of selectively applying the law against members of
Zanu PF’s oppositionand civic society.
This follows the arrest of MPs from Prime Minister Morgan Tsvangirai’s-led
MDC.
Energy minister and MP for Makoni Central Elton Mangoma, Copac
co-chairperson and MP for Nyanga North Douglas Mwonzora, Mazowe MP Shepherd
Mushonga and Roger Tazviona (Zhombe MP), have been arrested on suspiciously
trumped-up charges.
As a result, law enforcement agents are seen as increasingly partisan to the
extent that Zanu PF’s opponents expect almost no protection from the law. A
case in point is the disruption of the All Stakeholders Constitutional
Conference by Zanu PF supporters and war veterans in Harare in the presence
of the police in July 2009, and the violent beatings of opposition
supporters and disruptions of Copac meetings in Harare in August 2010.
Prior to the formation of the GNU, police officers who tried to carry out
their duties professionally were forced to resign or were transferred.
The perpetrators of violent activities were encouraged by leading members of
the then ruling Zanu PF party, who repeatedly claimed that the MDC would
never be allowed to come to power in Zimbabwe and that a war would be waged
against it.
Thus in December 2000 President Robert Mugabe told a Zanu PF congress that
commercial farmers had “declared war” on the people of Zimbabwe, that the
white man was “not indigenous” to Africa and was part of an “evil alliances”.
“We must continue to strike fear into the heart of the white man, our real
enemy,” he said.
These sentiments were echoed by other prominent members of the ruling party.
This is the legacy of impunity that the GNU must address in order to foster
justice in the country.
The African Charter on Human and People’s Rights places the obligation on
states to ensure protection of the rights enunciated in the charter and for
individuals to have human rights violations against them presided over by
competent national institutions such as the courts.
Equally, the International Covenant on Civil and Political Rights (ICCPR),
to which Zimbabwe is signatory, requires that states adopt measures,
including the legal route, to protect the fundamental rights of citizens.
The UN Human Rights Committee, an independent body made up of experts whose
role is to monitor compliance with the ICCPR, has observed that a state’s
failure to investigate and bring perpetrators to justice, especially with
respect to crimes such as killings, torture and ill-treatment, is a
violation of the ICCPR.
Zimbabwe has violated its state obligations under international human rights
laws and it is the role of civic society organisations that have an observer
status in Geneva to report on Zimbabwe’s violations.
The other way of combating impunity in Zimbabwe is to have criminal
prosecutions of human rights violators to deter them from committing those
crimes again.
The United Nations Security Council could be lobbied to refer the Zimbabwean
case to the International Criminal Court for criminal prosecution.
This requires the identification of the perpetrators of human rights
violations and submission of their names to The Hague.
This is how Libyan leader Colonel Muammar Gaddafi and his cronies are being
investigated. It is a method worth pursuing in order to halt egregious human
rights violations as the country prepares for elections.