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Commercial Farmers' Union of Zimbabwe

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ZLHR pre-referendum statment

ZLHR pre-referendum statment

15 March 2013
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 
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.
•    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 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.

•    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.

•    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?

•    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 
•    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.

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.



Constitution Watch 27/2013 of 13th May 2013 [New Constitution Bill Passed by House of Assembly & Sent to Senate]   CONSTITUTION WATCH 27/2013 [13th May

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