Violence perpetrators must pay for 2008 abuses
http://www.theindependent.co.zw/
Thursday, 04 August 2011 17:33
By Arnold Tsunga
ZIMBABWE achieved its Independence in 1980 after a brutal war during which
widespread and serious human rights atrocities were committed. The new Prime
Minister, Robert Mugabe, called for reconciliation and forgiveness and no
one was prosecuted for the atrocities.
A few years later, Mugabe’s government was involved in gross human rights
violations during the Gukurahundi campaign in Matabeleland and Midlands
Provinces, during which about 20 000 people are believed to have been
killed. In 1987, a Unity Accord was signed between the ruling Zimbabwe
African National Union Patriotic Front (Zanu PF) and the opposition Zimbabwe
African People’s Union (Zapu), bringing an end to the violence. Once again,
the government called for reconciliation and national healing and no one was
prosecuted for these extra-judicial killings and enforced disappearances.
But the cycle of violence did not end. Zimbabwe has experienced spikes in
organised violence and torture, particularly around elections. It has become
obvious that Zanu PF uses targeted organised violence and torture against
unarmed civilians as a primary method of power retention. After the March
2008 elections that Mugabe lost to Morgan Tsvangirai, the leader of the
Movement for Democratic Change (MDC-M), the country saw an escalation in
orchestrated violence with reports showing that hundreds of unarmed
civilians were extra-judicially killed while some disappeared as Zanu PF
tried desperately to cling to power.
Despite the fact that the election violence was highly publicised, no
meaningful prosecutions or investigations have occurred domestically to an
uncooperative government. Impunity has been a central feature accompanying
the organised violence and torture against unarmed civilians. It is
therefore critical that any process towards transitional justice and
national healing is predicated on an unequivocal goal of breaking the cycle
of impunity rather than letting “bygones be bygones”.
After the March 2008 elections, Zanu PF either directly ordered or, at a
minimum, allowed groups of Zanu PF youths and political members, acting on
the orders of the military, to commit crimes against members of the MDC and
other opposition political parties.
Between 200 and 500 unarmed civilians perished as a result of the execution
of this policy of politically motivated and targeted killings. Because of
the involvement of the state apparatus in the targeted executions, no
prosecutions or meaningful investigations have been recorded. Impunity
prevails.
For the purposes of effective transitional justice and national healing, it
is important that investigations into these killings are conducted promptly
to ensure that “as much evidence as possible is obtained that otherwise
might degrade or be destroyed in the intervening period”.
The investigations need to obtain as much information as possible concerning
the crimes, perpetrators and victims so as to be prepared for the widest
possible range of future prosecutions, commissions or panels of inquiry.
This is the only way in which the country can break the cycle of impunity
that is so necessary for effective transitional justice and national
healing.
Enforced disappearances were also a feature of the 2008 violence. In
practice, the “act of enforced disappearance typically involves the
abduction, arrest or detention of an individual — usually a perceived
political opponent — by members of a state-sponsored military group, and a
deliberate denial by authorities of any knowledge of the victim’s arrest,
whereabouts, or condition: the individual effectively vanishes.”
According to criminal law expert Wayne Jordash: “Enforced disappearances
have become increasingly recognised as a crime throughout much of the world.
It is considered a crime against humanity and can be prosecuted as one at
the International Criminal Court”.
Many human rights groups have evidence that suggests that supporters of the
MDC were routinely abducted, detained and tortured by individuals associated
with Zanu PF political structures in 2008. In this context, any process of
transitional justice and national healing in Zimbabwe must deal head on with
the phenomenon of enforced disappearances so that a new state is built on a
national value system that is intolerant of enforced disappearances.
The political, military and police involvement in the enforced
disappearances and extra-judicial executions that were part of a widespread
and systematic attack against a civilian population in Zimbabwe constitute a
crime against humanity.
Human rights groups and communities are therefore encouraged during the
documentation of these serious violations to identify the suspected
perpetrators, their precise role in the commission of the crimes and
attribute roles and responsibility to specific individuals, where
appropriate. Those responsible for planning, ordering, instigating, aiding
or abetting, or otherwise facilitating the crimes ought not to evade
responsibility.
Senior officials can be punished for acts committed by their subordinates
that they failed to prevent or punish through command responsibility.
According to Jordash, command responsibility holds that just because crimes
“were committed by a subordinate… (this).… does not relieve his superior of
criminal responsibility if s/he knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior
failed to take the necessary and reasonable measures to prevent such acts or
to punish the perpetrators.”
Jordash argues further that through the principle of joint criminal
liability, the prosecution of individuals who act in furtherance of a common
plan, design or purpose, which amounts to a crime in international law, is
possible. The individuals can be found guilty of crimes, which emanate from
acts committed in furtherance of this agreement.
Tsunga is the Director of the Africa Programme of the International
Commission of Jurists. He is indebted to the research and information
provided by Wayne Jordash — an international criminal law expert in the
UK. — Openspace.