Otto Saki asserts that the case of Zimbabwe has provided an excellent example of the flaws and the achievements of Africa’s own system for defending its citizens’ human rights against attacks from their own governments.
The situation in Zimbabwe has continued to degenerate and attract widespread attention. The African Commission on Human and Peoples’ Rights (the commission, hereafter) is an intergovernmental organisation which has been seized with several appeals about violations of human rights over freedom of expression, torture, politically motivated violence, undermining of the judiciary and independent national mechanisms and forced evictions under the guise of clean-up campaigns. There have been interventions over breaches and affronts against the African Charter on Human and Peoples’ Rights (the charter, hereafter) to which Zimbabwe is a party. The level, nature and extent of intervention by the commission have been argued over, particularly its mandate, how it is carried out and nature of its recommendations. States parties, including Zimbabwe, have abused or utilised what would be ordinarily institutional formulation of the commission and charter at the expense of the progressive development of African jurisprudence and institutions.
While Africa is perceived to have the worst human rights abuses, its human rights mechanisms either remain heavily inadequate or, as in most cases, are deliberately and overtly undermined by state actions. This undoubtedly makes a mockery of the efforts of those who provide their services as commissioners and as judges before the African Court on Human and Peoples’ Rights (the court, herafter). The commission has gone through a remarkable phase of growth and has experienced its fair share of challenges, but it is safe to say its value as an African institution is second to none. For some states it has become a ‘source of marvel’ and for others a ‘source of pain’, but one cannot at this juncture wish the commission away.
Sessions of the commission
The work of regional and sub-regional intergovernmental human rights institutions remain very closely knitted with the work of human rights organisations, and Zimbabwe is no exception. Through the granting of observer status, organisations are recognised not only by the commission but effectively by the African Union. Currently, more than seven organisations with observer status before the commission have been involved in the implementation of the charter in Zimbabwe. The commission’s work on Zimbabwe gained significant momentum during its 31st session, when Zimbabwe topped the agenda during the NGO forum. As a result the government of Zimbabwe agreed to accept a fact-finding mission into its human rights record. The African NGO Forum met ahead of the commission and adopted the first statement on Zimbabwe. The commission was further seized of the communication from the Zimbabwe Human Rights NGO Forum, making it the first substantial communication on Zimbabwe.
With the commission’s decision to send a fact-finding mission, Harare became more and more aggressive in its public stance on human rights organisations and the commission itself. This marked the beginning of increased verbal attacks on the commission and the commissioners, sadly with the African Union providing little or no defence, at least publicly, of the work of the commission. This made it possible for some to assume that the attacks on the commission were justified whereas in fact they were uncalled for and completely inappropriate.
Fact-finding mission to Zimbabwe
The commission conducted its first fact-finding mission to Zimbabwe from 24 to 28 June 2002. Several meetings were held with government ministries, notably home affairs and justice, members of the judiciary, human rights advocates and lawyers, as well various civil society organisations.
When the report was presented to the government of Zimbabwe, unparalleled attacks and criticisms of the commission were published: The Herald, a state-controlled newspaper, wrote on 6 July 2004: ‘According to the sources, the [African Commission] report was similar to reports produced by the British-funded Amani Trust, which is well-known for its anti-Zimbabwe stance and falsifying the situation in the country.’ An editorial in The Sunday Mail on 11 July stated: ‘Reading through the [African Commission’s] report one detects the hand of a known Zimbabwean lawyer and the Amani racists.’
In another related diatribe the papers bemoaned:
Pan-Africanists who want to take seriously the Organisation of African Unity (OAU) and its successor, the AU, find the debate over the fraudulent report quite confusing and demoralising because of the failure of the African journalists, especially, to go beyond the shallow events in the story: that is, that the African Commission on Human and People’s Rights held some hearings and produced a fraudulent report with the assistance of the British, other donors and some racist (non-governmental organisations) NGOs. What is missing from the story is the fact that this report is the latest in a series of lies, especially about and against Zimbabwe.
Several other statements were later made by government spin doctors, attacking the work of the commission.
The report of the fact-finding mission was adopted by the commission in its 17th Activity Report. The government of Zimbabwe created unprecedented havoc when the report was being adopted by the Executive Council of Ministers, and effectively the African Union. Zimbabwe was allowed to provide additional responses to the report, which was eventually adopted by the African Union, along with Zimbabwe’s response, almost three years later. The findings of the commission remain largely unimplemented and rights are being further undermined.
Following the forced evictions of May 2005, the United Nations dispatched a special envoy on human settlement, while the African Union hurriedly sent in its Special Rapporteur on Internally Displaced Persons, Refugees and Asylum Seekers. The government of Zimbabwe would not allow the special rapporteur to carry out any field visits, arguing that proper procedures of the African Union had not been followed. The African Union envoy spent a week in ‘solitary confinement’ in his hotel, an unfortunate development given the importance of regional institutions.
Communications and special mechanisms
The various mechanisms under the commission, including the special rapporteurs on human rights defenders and on freedom of expression, have responded to the apparent increase in attacks on human rights defenders, women activists and journalists. However, the problem with these mechanisms, as in similar systems, is the failure to provide adequate human and financial resources to follow through most of the appeals. Governments have to a large extent taken the urgent appeals seriously, and the Zimbabwe government seems to have responded to most of the appeals, though it is arguable whether the responses addressed the issues raised or merely created excuses for continued violations under the guise of maintaining law and order.
The commission conducted a hearing on Zimbabwe under Article 46 of the charter, which allows the commission to use any mechanism to investigate human rights in a state party. In its usual display of disdain for any practical and critical work of the commission, the delegation from Zimbabwe refused to participate in the meeting, citing unfair practices and procedural irregularities. It is interesting to note that during the same session the delegation from Zimbabwe was distributing print editions of New African magazine and two reports produced by the Zimbabwe Republic Police (ZRP). The credibility of the national police and in particular its intelligence gathering have been challenged.
It is arguable that, after the communications submitted on Nigeria during the military regime, Zimbabwe currently has the largest number of communications before the commission. The subjects of the petitions range from freedom of expression, to forced evictions, the independence of national institutions such as the judiciary, extra judicial and summary killings, torture, and inadequate legislative and constitutional mechanisms.
Victories before the commission
Working with the commission has been simultaneously challenging and rewarding. Of the communications submitted, at least one has been concluded in which the government of Zimbabwe was found to have violated provisions of the charter. In April 2006, the commission issued provisional measures in respect of the forced evictions, directing the government to take urgent and appropriate measures to obviate the general deterioration of the health of terminally ill individuals who due to forced evictions carried out under Operation Murambatsvina had no access to anti-retroviral treatment. The government was also asked to ensure that school-age children were able to sit their final exams, and to provide shelter and medical treatment for the elderly and the sick.
While the procedures of the commission badly need reform, it is critical to note the importance of its decisions on the admissibility of a communication. In no fewer than four separate incidents, the commission has ruled communications submitted from Zimbabwe as admissible. These decisions provide irrefutable evidence of the inadequacies of human rights protection in Zimbabwe; they also imply the absence of effective domestic remedies for the rights violations alleged in the communications. Such decisions are an indictment of the judiciary as well as an unequivocal indicator that the judiciary and the justice delivery system in Zimbabwe no longer guarantee enjoyment of universally recognised human rights and fundamental freedoms.
In Communication 245/02, Zimbabwe Human Rights NGO Forum/Republic of Zimbabwe, the commission made recommendations about the election- related violence of 2000 and 2002 as well as the violence orchestrated during the chaotic land reform. In a statement the NGO Forum noted that the:
Commission found the Government of Zimbabwe in violation of articles 1 and 7 of the African Charter. This means that the Government of Zimbabwe had violated the right to protection of the law and that it failed to put in place measures to ensure the enjoyment of these rights by Zimbabweans. The endorsement of the decision by the African Union is recognition by African Heads of States that there are human rights violations in Zimbabwe.
Political interference and undermining the work of the commission
With civil society and human rights organisations recording such public success, the government of Zimbabwe has begun to pay more attention to the commission. With like-minded countries that have equally poor human rights records, it attacks, undermines and ridicules the work of the commission, through subterfuge and unfounded interpretation of the rules of procedure of the African Union and the commission. Such procedural theatrics caused the delays in the publication of the report of the fact-finding mission of 2002, as well as the decision of Communication 245/05. With the latter, the government of Zimbabwe made submissions to the commission well after the completion of all inquiries and hearings. Of concern are the African Union leadership’s acquiescence and conspicuous silence; to a large extent the African Union has failed to support the commission from government attacks. The non-implementation of the commission’s recommendations remains a paramount concern.
Lessons for Africa
The commission is a creation of the African Union, with a mandate to monitor, promote and protect the rights enshrined in the charter, the same charter which makes it mandatory to implement legislative and administrative mechanisms to deliver the rights in the charter. Because signing up to the charter and similar instruments are voluntary acts, limiting a nation’s sovereignty, the commission has a unique status and neither seeks to undermine national institutions such as courts, nor replace them. Zimbabwe has regressed from a country that was hailed as the symbol of progress and development to the antithesis of every principle of development, human rights adherence, promotion and protection.
The importance of supra-national institutions in enforcing universal and regional human rights standards remains critical. The weakness inherent in these institutions is an indictment of leadership in Zimbabwe – and in Africa. It remains the prerogative of every progressive citizen of Africa to safeguard these institutions from individuals who have bestowed upon themselves powers to govern, misgovern, build and destroy. Such powers, if unchecked and curtailed by invoking celebrated universal human rights standards, will lead us to bondage and slavery under our kith and kin. That day will indeed be a sad day for humanity and Africa.
* Otto Saki is a lawyer with Zimbabwe Lawyers for Human Rights
* Please send comments to firstname.lastname@example.org or comment online at www.pambazuka.org
For references and notes, see link below.
1 Other regional bodies which have attempted or are in the process of taking up the situation in Zimbabwe include the Southern African Development Community (SADC), through their organ on politics, security and defence. The SADC Tribunal is yet to be seized of matters from Zimbabwe.
2 30 May 1986.
3 Zimbabwe Lawyers for Human Rights (ZLHR), Human Rights Trust of Southern Africa (SAHRIT), Media Monitoring Project of Zimbabwe (MMPZ), Media Institute of Southern Africa (MISA) Zimbabwe, Zimbabwe Human Rights Association (ZimRights), Zimbabwe Association of Doctors for Human Rights (ZADHR), and Zimbabwe Human Rights NGO Forum (NGO Forum).
4 Regard is had to the work of other regional and international NGOs which have been advocating for reforms and protection of rights in Zimbabwe and in some instances providing platforms within their own ‘spheres’ to air and give space to the work of Zimbabwe-based organisations.
5 31st ordinary session of the commission, 2-16 May 2002, Pretoria, South Africa.
6 Currently there are more than 13 communications on Zimbabwe before the commission, some of which will be dealt with below. However, no substantive discussion of the communications will be made since most of them are still pending.
7 See statement by the Zimbabwe Human Rights NGO Forum: <http://www.hrforumzim.com/press/forum_on_ACHRP_report.html>, last accessed 21 August 2007.
8 The delegation was headed by Commissioner Barney Pityana and Commissioner Jainab Johm with Ms Fiona Adolu, legal officer.
9 Arnold Tsunga, Tafadzwa R Mugabe ZLHR, ‘Zim NGO Bill: dangerous for human rights defenders - Betrays High Degree of Gvt Paranoia and Contempt for the Regional and International Community’, 28 July 2004. Senior government and ruling party officials have made statements which have incited violence, condoned torture, and encouraged hatred. See report by the Zimbabwe Human Rights NGO Forum: ‘Their words condemn them: the language of violence, intolerance and despotism in Zimbabwe’ <http://www.hrforumzim.com/special_hrru/Condemned_by_their_own_words.pdf>. See also The Herald on 6 July 2004: ‘AU Rejects Damning Report on Zimbabwe’, Minister of Foreign Affairs said to have ‘objected to the presentation of the report saying Zimbabwe had not been afforded the right of reply to the damning allegations as per requirement on such matters’, adding that ‘The Council of Ministers of the AU comprising the Foreign Ministers of the 53 AU member states, had decided that the commission had not solicited the response of the member state concerned whose response should have been included. The Minister asserts that the commission did not observe protocol as it allegedly sent the report to the Ministry of Justice, Legal and Parliamentary Affairs and not the Ministry of Foreign Affairs’.
10 Dr Tafataona Mahoso wrote in The Sunday Mail of 18 July 2004.
11 The summary of the report is available at <http://www.achpr.org/english/activity_reports/activity17_en.pdf>, last accessed 21 August 2007. The 17th activity report covers the 34th and the 35th ordinary sessions of the commission held from 6-20 November 2003 and from 21 May to 4 June 2004 respectively in Banjul, The Gambia.
12 The report was adopted at the sixth ordinary session 24-28 January 2005 in Abuja Nigeria with Zimbabwe’s response annexed.
13 Rule 33 of the Rules of Procedure of the African Union categorises the various types of decisions the African Union can issue and this definition is very relevant to decisions or findings of the commission, Categorisation of Decisions. Rule 33, 1, The decisions of the assembly shall be issued in the following forms: a) regulations: these are applicable in all member states which shall take all necessary measures to implement them; b) directives: these are addressed to any or all member states, to undertakings or to individuals. they bind member states to the objectives to be achieved while leaving national authorities with power to determine the form and the means to be used for their implementation; c) recommendations, declarations, resolutions, opinions etc: these are not binding and are intended to guide and harmonise the viewpoints of member states. 2. The non-implementation of regulations and directives shall attract appropriate sanctions in accordance with Article 23 of the Constitutive Act. However a counter argument can be advanced that the Article 1 of the charter provides ‘that states shall take necessary legal and administrative…’ indicating the peremptory nature of the provisions of the charter.
14 Several reasons which have not been substantiated were given including the procedural irregularities and miscommunication between Harare and Addis Ababa. However this mission came in the wake of the government of Zimbabwe having been heavily reprimanded for its human rights practices by the commission. See for instance: <http://news.amnesty.org/index/ENGAFR460232005>.
15 See <http://www.achpr.org/english/Press%20Release/press%20release_Zimbabwe2_en.htm>, last accessed 19 August 2007, <http://www.achpr.org/english/Press%20Release/press%20release_Zimbabwe_en.htm last>, accessed 19 August 2007.
16 During the session of the commission, the human rights situation has been highlighted extensively including reports from special rapporteurs. See ‘The Work of Special Rapporteurs at the African Commission on Human and Peoples Rights’ by Otto Saki (unpublished article written for Open Space, OSISA).
17 See the commission’s 22nd activity report, item 90, available at: <http://www.achpr.org/english/activity_reports/activty22_eng.pdf>. Article 46 states that ‘the commission may resort to any appropriate method of investigation; it may hear from the secretary general of the Organisation of African Unity or any other person capable of enlightening it.
18 The web edition is still accessible from: <http://www.africasia.com/services/specials/topics.php?topic=Zimbabwe>, last accessed 2 September 2007. The ZRP authored ‘detailed’ reports of acts of violence carried out by ‘Civil Society Opposition Forces in Zimbabwe A Trail of Violence Volume 1’ <http://www.moha.gov.zw/violencereport1.pdf>. The first volume mentioned ZLHR, but did not make any specific reference to the work of the lawyers group. Ms Petras, the executive director of ZLHR, requested that the government retract the obviously malicious statements. In response the government through ZRP produced another report focusing on ZLHR called ‘Opposition Forces in Zimbabwe The Naked Truth Volume 2’ <http://www.moha.gov.zw/violencereport2.pdf>. The Zimbabwe Human Rights NGO Forum has produced a report in response to state reports: ‘At Best Falsehood at Worst a Lie’, <http://www.hrforumzim.com/special_hrru/At_best_a_falsehood_at_worst_a_lie.pdf>, last accessed 2 September 2007.
19 Fact-finding mission report recommended that institutions such as the police are ideally supposed to be professional. It is worth recalling that some of the units of the police used to gather intelligence were condemned by the commission and recommendations stating that ‘Every effort must be made to avoid any further politicisation of the police service.... 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.’ It is important to extract a recent opinion in The Herald: ‘Nothing wrong with police, army being partisan’, by Godwills Masimirembwa <http://www.herald.co.zw/inside.aspx?sectid=23989&cat=10>.
20 ZLHR has submitted at least eight cases, with several other national and international organisations having submitted at least either other communications. Since most of them are still pending before the commission, details of the communications will not be reproduced. For a brief analysis and summary of the cases see also ‘Litigating before the African Commission on Human and Peoples Rights’, by Arnold Tsunga and Otto Saki.
21 Operation Murambatsvina/ Drive Out the Filth/ Restore Order was described in the report by the UN Special Envoy on human settlements issues in Zimbabwe that it ‘was carried out in an indiscriminate and unjustified manner, with indifference to human suffering, and, in repeated cases, with disregard to several provisions of national and international legal frameworks. Immediate measures need to be taken to bring those responsible to account, and for reparations to be made to those who have lost property and livelihoods.’ The report was equally attacked by the government of Zimbabwe <www.unhabitat.org/downloads/docs/1664_96507_ZimbabweReport.pdf> last accessed August 2007.
22 ZLHR, SAHRIT/ Republic of Zimbabwe Request for Provisional Measures under Rule 111 of the Rules of Procedure of the Commission.
23 See the full statement by ZLHR, ‘African Commission Adopts Key Resolution on the Human Rights Situation and Hands Down Decisions in Several Cases against the Government of Zimbabwe’ <http://www.zlhr.org.zw/media/releases/jan_04_06.htm>, last accessed August 2007.
24 On 16 March 2007, the African Union issued a statement on Zimbabwe: ‘The Chairperson of the commission, Alpha Oumar Konare, has followed with great concern the recent developments in Zimbabwe. The Chairperson of the commission recalls the need for the scrupulous respect for human rights and democratic principles in Zimbabwe, in accordance with the AU Constitutive Act. He urges all concerned parties to commence a sincere and constructive dialogue in order to resolve the problems facing Zimbabwe.’