ZLHR pre-referendum statment
15 March 2013
PRE-REFERENDUM STATEMENT
Zimbabwe Lawyers for Human Rights (ZLHR), in accordance with its mandate of
promoting a culture of human rights and constitutionalism in Zimbabwe, has,
since the formation of the Inclusive Government (IG), been carefully
scrutinising the general environment ahead of the National Referendum on the
draft constitution, set for Saturday 16 March 2013. It is vital to note
that, not only is the country in a pre-referendum period, but also a
pre-election period. Thus the environment currently prevailing serves
concurrently as a telling indicator of the environment ahead of national
elections.
In this context, the Board, on behalf of the membership of ZLHR, and in
accordance with long-held tradition and practice, now releases its
pre-referendum statement ahead of tomorrow’s polling exercise.
ON COMPLIANCE WITH ARTICLE VI OF THE GLOBAL POLITICAL AGREEMENT (GPA)
• In relation to the national outreach process, ZLHR stands by the
findings of the Independent Monitoring Mechanism in which it jointly
participated with the Zimbabwe Election Support Network and the Zimbabwe
Peace Project under the ZZZICOMP banner.
In relation to Article VI processes subsequent to the public outreach
exercise, ZLHR concludes that:
• There was a consistent failure by the Constitutional Parliamentary
Committee (COPAC) to adhere to the timelines stipulated in Article VI and
the process lagged severely behind time. A process that the IG agreed would
be completed in 18 months was extended to over 4 years, and timelines were
violated with impunity.
• There was a general lack of sufficient and timely information from
COPAC about the unfolding processes and developments and the general
population was largely unaware of progress.
• Civil society organisations (CSOs) were largely sidelined throughout
the process as they failed to independently and actively participate in the
formal activities organised by COPAC. During the stages in which they
participated, such as the Second All-Stakeholders’ Conference, they did so
largely as proxies of the three political parties to the IG, and there was
little to no room for alternative input relating to issues that were of
lesser concern to political parties, but of vital importance to other
societal stakeholders.
• The tampering of the draft produced as a result of the outreach process
by the political parties to the GPA, and the subsequent finalisation of the
draft constitution (including the “parked” issues) by the Principals was a
process which was outside the mandate of, and which violated, the agreed
Article VI process.
• The fast-track adoption of the draft by Parliament without substantive
debate, and the subsequent fast-track gazetting of the draft and referendum
date after periods of such long delays in the earlier stages raises concerns
and questions around the democratic and popular nature of scrutiny and
debate of the draft.
• Essentially 3 weeks were provided to disseminate, publicise and educate
the nation on the contents of a voluminous and intricate legal document. The
numbers of copies of the draft constitution, translations, and the
simplified COPAC version, were insufficient to ensure comprehensive
awareness of the draft. Concerns have also been raised about the accuracy of
the contents of the simplified COPAC version as compared to the full draft,
as well as poor attendance at the sensitisation meetings carried out by
COPAC.
• COPAC representatives utilised public and donor funds not only to
sensitise and educate the public on the contents of the draft, but also to
actively encourage the public to vote “YES”. In addition, pressure was
brought to bear on CSOs to sign a Memorandum of Agreement (MoA) with COPAC
in order to be allowed to carry out civic education under threat of
disruption of activities of those without a MoA. Further, such organisations
were made to agree to promote a YES vote. Such practices are inconsistent
with fundamental rights and freedoms, and with democratic standards of civic
education that enlighten people without putting pressure on them to advocate
or vote for one position or another.
• Several incidents of intimidation, arrest and vilification of those
advocating a NO vote were reported, and this is contrary to promotion of a
free environment in which dissenting opinions are encouraged and welcomed.
ON THE LEGISLATIVE ENVIRONMENT PERSISTING DURING THE PRE-REFERENDUM PERIOD
• The GPA clearly stipulates that laws impacting negatively on
fundamental rights and freedoms of expression, assembly, association and
movement were to be amended to ensure a conducive legislative environment.
These undertakings were ignored, if not violated, with impunity.
• The position taken by COPAC representatives, that they would encourage
law enforcement agents to “suspend” the application of the Public Order and
Security Act to allow a conducive environment for education and debate on
the draft constitution to take place, was startling. If there is an
acknowledgement that such laws repress freedoms, they should not be
suspended, but done away with. The subsequent disruption of civic debates on
the draft constitution, and heavy-handed police action to prevent political
players – including the Prime Minister himself – from carrying out such
activities is a clear indication that legislative and institutional reform
is not a government priority and such repressive laws will continue to be
used selectively by unreformed state institutions and actors to prevent
constitutional freedoms from being exercised due to lack of political will
and failure to censure heavy-handed action whenever it occurs.
• The publicly-owned but state-controlled media (print and electronic)
did a disservice to the nation by failing to provide programming and content
that enlightened people in a comprehensive and educative manner about the
contents of the draft constitution. There was inequality of access to such
media by representatives offering dissenting views. Reform of the public
broadcaster and state-controlled media remains outstanding despite their
urgency and the GPA requirement that this is a priority for the IG.
• Other repressive laws continued to be abused and selectively applied
against targeted CSOs and human rights defenders (HRDs) during the
pre-referendum period. It is disturbing to note an increase in the
criminalisation of free speech through the abuse of insult laws, and the
reliance on the Broadcasting Services Act to stifle lawfully operational
alternative media and voices. In relation to the latter, the Zimbabwe
Republic Police (ZRP) has, since the beginning of the year, arbitrarily
sought to “ban” alternative sources of media – namely short-wave radios.
This has been followed by the confiscation of radios from CSOs and
communities that have been searched or found to possess such gadgets. This
unlawful confiscation of radios is directly linked to the closing up of
access to diverse information and leads to a situation where people in
communities are not able to get any alternative sources of information as
they cannot afford to buy newspapers, and in most cases there is no
frequency for state controlled broadcasting. This is a blatant violation of
the right to freedom of expression and access to information.
ON THE ROLE AND READINESS OF THE ZIMBABWE ELECTORAL COMMISSION (ZEC)
• The ZEC was not consulted prior to the referendum date being set.
Although they have worked comprehensively to prepare for rolling out the
poll, the short notice will impact its readiness to fully manage the
referendum process and ensure adequate resources to carry out its
constitutionally mandated duties.
• New referendum regulations were gazetted shortly before the date of the
referendum, and included provisions altering some key aspects of the
observation process in a manner that impacts good practices.
• The failure by ZEC to abide by the principles of natural justice and
its refusal to accredit observers from Zimbabwe Peace Project and ZimRights
adversely affected preparations by such organisations and observers ahead of
referendum day and drew time and attention away from proper preparation for
the referendum – both by ZEC and the affected organisations due to ongoing
negotiations and litigation. They were essentially found guilty before trial
by a body not qualified or empowered to act in such a manner.
• The reduction in numbers of international observers and refusal to
accredit those not considered “friendly” was also problematic. What better
way to shame potential “detractors” than to invite them and allow them to
see democracy at work?
ON THE OPERATING ENVIRONMENT FOR CIVIL SOCIETY ORGANISATIONS AND HUMAN
RIGHTS DEFENDERS
• The ongoing and intensifying clampdown on CSOs and HRDs ahead of the
referendum remains a matter of the greatest concern and has impacted
negatively on the pre-referendum environment. The assault on CSOs has been
strategic, intentional, well-planned, well-resourced and implemented. It has
targeted organisations carrying out lawful activities that, for unknown
reasons, appear to be a threat to certain institutions and actors. These
include mobilisers, civic educators, human rights monitors, and service
providers.
• Since November 2012, police have, amongst others, raided premises of 5
major CSOs, namely Counseling Services Unit, Zimbabwe Human Rights
Association, Zimbabwe Peace Project, Zimbabwe Election Support Network, and
Radio Dialogue. These searches have been conducted in terms of search
warrants that are broad, vague and subject to legal challenge. As a result
of these searches, personnel and Board members have been charged with
varying offences that range from operating unregistered organisations,
committing forgery, fraud and other related offences which beggar belief. A
total of 358 HRDs from CSOs have either been harassed through interrogation,
arrest and detention, although subsequently being released without charge in
the majority of cases since November 2012. Only 18 out of the 358 HRDs from
CSOs have been charged and taken to court. In most cases taken to court, the
prosecutors have declined to prosecute.
• The ZRP has used several public platforms, including an appearance in
Parliament and press conferences to intimidate and issue threats and false
information against CSOs – some named, and some unnamed. The GPA requirement
for reform of such institutions and actors, and a cessation of
politically-motivated attacks, has been largely ignored.
• The state-controlled media and aligned outlets have stepped up their
defamatory and false publications against these same CSOs as part of the
sustained assault. Hate speech and incitement against CSOs and HRDs has
become alarming, and has the potential to escalate out of control due to
slow processes of achieving legal redress and general impunity of such state
media practitioners and media houses.
CONCLUDING REMARKS
One of the greatest challenges in the run up to the referendum has been the
preoccupation of the three political parties to the IG with ensuring that
the draft constitution is accepted in the national plebiscite. This has
caused the IG to render secondary other key reforms and processes outlined
in the GPA. These include substantive legislative and institutional reform
as well as the stemming of bad administrative practices and the escalating
impunity for violations of laws and current constitutional safeguards. In
particular, the assault on civil society must be comprehensively addressed
if the country is not to lose its only remaining independent voice ahead of
critical elections.
ZLHR believes that, in spite of the challenges that have faced this
constitution-making process, a step forward has been taken in terms of
generating debate and a greater interest in constitutional matters, as well
as debate around issues of constitutionalism. The process has taken place in
an extremely difficult environment, but nevertheless, there is a general
willingness and interest in the pursuit of a better constitution for
Zimbabwe and this must be encouraged and kept alive. However, the key issues
of concern remain – that we have an environment that has been less than
conducive to free debate, agents who continue with their old practices of
violating fundamental rights and freedoms with impunity, and preventing the
sharing and dissemination of information. An inch has not been moved towards
correcting this and this will adversely impact the efforts towards a free
and fair election if it is not addressed urgently and with political will.
–ENDS–