Human Rights in Zimbabwe

Testimony of Neil Hicks
Director, Human Rights Defenders' Protection Project,
Human Rights First

before the House International Relations Sub-committee for Africa
February 27, 2002

Introduction

Chairman Royce and Ranking Member Payne, Human Rights First, an independent non-governmental organization that promotes respect for international human rights standards around the world, welcomes this opportunity to present it concerns about human rights violations in Zimbabwe at this time. The situation in Zimbabwe has reached crisis point, as the breakdown in the rule of law threatens a catastrophe that will have a devastating impact on the region as a whole. The international community, led by Zimbabwe's neighbors in southern Africa, must impress upon the Zimbabwean government of President Robert Mugabe the absolute imperative of observance of the democratic process in the forthcoming presidential elections, and of full respect for the basic human rights that belong to all Zimbabweans.

The outcome of the presidential elections in Zimbabwe, to be held on March 9 and 10, is crucial to the future of the country and of the entire southern African region. The consequences of ignoring the crisis in Zimbabwe are great; not just for the Zimbabwean people, but for the whole region, which faces increasing destabilization and negative economic impact. Zimbabwe stands on the brink of a catastrophe and the international community must act to prevent the total collapse of the rule of law and avert a humanitarian crisis.

A volatile mix of factors renders the current situation in Zimbabwe highly dangerous. Should President Robert Mugabe declare himself the winner of the March presidential elections, in the face of clear evidence of vote rigging and subversion of the electoral process by the president and his supporters in the Zanu-PF party, these elements risk causing an explosion with devastating consequences. Our efforts, even at this late stage, should be directed at ensuring that this worst case scenario is averted. One way of doing this is for the international community as a whole to make clear that an election tainted by further gross irregularities will have no credibility, and that any attempt by President Mugabe to remain in office by illegitimate means will not be accepted. If the election is stolen by the incumbent, it must be made clear that there will be no benefit for him and his supporters, and that he would be leading his people into further privation and instability.

Escalating State Repression

Over the preceding months, President Mugabe has erected a highly repressive system of governance in Zimbabwe. Several aspects may be briefly noted:

• An atmosphere of fear and violence has been created, to cow the opposition and force people to vote for President Mugabe. Political violence has increased significantly in the past weeks and months. Supporters of the opposition Movement for Democratic Change (MDC) are physically attacked on a regular basis by groups of Zanu-PF and associated militias. (A chronology of recent incidents of political violence is appended to this testimony.) In January alone, sixteen political killings were reported, and the total for February looks likely to be similar. Abductions and beatings are commonplace, along with the destruction of property. Several MDC offices have been ransacked and burnt down.
  
  
• Violence and threats of violence are not limited to members or supporters of the MDC. Human rights organizations and individual activists have been subjected to a variety of forms of attack and persecution. Independent journalists are under intense pressure and have been attacked and forced to leave the country. The offices of the main independent newspaper have been attacked. Judges have also been the targets of threats and intimidation, forcing several to resign. The independence of the judiciary has been seriously compromised as President Mugabe has installed new judges who will rubber-stamp his policies and legislation. Election observers from southern African states and from the Commonwealth, in Zimbabwe to monitor the elections, have witnessed violence and have themselves come under attack.
  
  
• The parliamentary process has also been subverted and legislation passed that muzzles the opposition and all forms of dissent. Electoral rules have been passed that effectively prevent thousands of Zimbabweans from exercising their right to vote (by prohibiting postal votes and requiring forms of proof of residency that many do not possess).
  
  
• The Public Order and Security Act (POSA), forced through Parliament in January 2002, is arguably the most repressive piece of legislation that has been seen in Zimbabwe's entire history. The Act is now being used on a daily basis to prevent the MDC from holding rallies, to prosecute journalists who criticize the government, to intimidate human rights organizations that seek to expose torture and other human rights violations committed by the security forces, and to justify forcible action by the police in a range of contexts. The terms of the POSA clearly violate a number of international and regional conventions to which Zimbabwe is a party, as well as being contrary to the rights contained in the Zimbabwean constitution.

The Public Order and Security Act

Human Rights First considers that several provisions of the POSA violate fundamental human rights and freedoms protected by international law and the Constitution of Zimbabwe. The provisions of the new law appear designed to mute criticism of the government, and of the President, in the run up to the elections, as well as to prepare the ground for suppressing dissent in the event of the election being stolen by the incumbent president.

The POSA amends three existing statutes and replaces the Law and Order (Maintenance) Act. In a memorandum that accompanied the Bill in its passage through the parliament, it is stated that its provisions are intended to "protect public order and security in Zimbabwe while paying regard to the fundamental freedoms of assembly, association and expression laid down in Chapter III of the Constitution." In addition to the detailed constitutional provisions on freedom of expression, assembly and association, Zimbabwe is also bound by the International Covenant on Civil and Political Rights (ICCPR), since its accession to that treaty in 1991, and the African Charter on Human and Peoples' Rights. Human Rights First believes that the terms of the POSA do not strike an appropriate balance between respect for basic rights the need to maintain public order and, instead, breach the standards contained in articles 19, 21 and 25 of the ICCPR, articles 9, 11 and 13 of the African Charter, and articles 11, 20 and 21 of the Constitution.

The following provisions of the POSA are of particular concern:

• Article 5, which renders "coercing or attempting to coerce the Government" a criminal offence, punishable by imprisonment for up to twenty years. In the same clause, "coercing" is defined to include "constraining, compelling or restraining" through "civil disobedience or resistance to any law, whether such resistance is active or passive." Anyone who engages in, advocates or organizes acts of civil disobedience, or threatens to do so, may be subject to prosecution under this clause.
  
  
• Article 15, which criminalizes "publishing or communicating false statements prejudicial to the State." A person may be fined or imprisoned for up to five years for publishing a false statement which carries the risk of promoting public disorder, or undermining public confidence in the police, armed forces, or prison services.
  
  
• Article 16, making it an offence to make a public statement with the intention to, or knowing there is a risk of "undermining the authority of or insulting" the President. This prohibition includes statements likely to engender "feelings of hostility towards" the President, cause "hatred, contempt or ridicule" of the President, or any "abusive, indecent, obscene or false statement" about him personally, or his office.
  
  
• Articles 23-31, regulating the organization and conduct of public gatherings. By these provisions, a senior police officer is designated as a "regulating authority" and given broad powers to issue directions concerning a public gathering, to disperse a gathering (using "reasonable force" if necessary), to prohibit a gathering, or even to prohibit all public gatherings in an area for up to three months.

These provisions contain unjustifiably broad measures of prior restraint. Their effect is to muzzle legitimate criticism of the government, prevent individuals and organizations from gathering together for peaceful political demonstrations or rallies, and put all persons who object to government policies and practices at risk of prosecution, should they seek to engage in, advocate or organize acts of peaceful civil disobedience.

The POSA has a particularly damaging impact on the legitimate activities of human rights defenders, whose work exposing violations of human rights by government agents or officials might easily fall into the category of "undermining public confidence" in the security forces, or of "undermining the authority of the President." Article 6(c) of the United Nations Declaration on Human Rights Defenders  provides that everyone has the right, indvidually and in association with others "to study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters."

The Human Rights Committee, which monitors the implementation of the ICCPR in all States parties to the Covenant, has recognized the crucial importance of the rights to freedom of expression, association and assembly in any democratic society. In its General Comment to article 25 of the ICCPR (on the right of all citizens to take part in the conduct of public affairs, to vote and be elected, and to have equal access to public service), the Committee states that:

"In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It requires the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organisations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticise and oppose, to publish political material, to campaign for election and to advertise political ideas."

Likewise, in several complaints brought through the mechanism contained in Optional Protocol I to the ICCPR, the Committee has emphasized that, "the freedoms of information and of expression are cornerstones in any free and democratic society. It is in the essence of such societies that its citizens must be allowed to inform themselves about alternatives to the political system/parties in power, and that they may criticize or openly and publicly evaluate their Governments without fear of interference or punishment, within the limits set by article 19, paragraph 3." (See Adimayo M. Aduayom, Sofianou T. Diasso and Yawo S. Dobou v. Togo, Communications 422/1990, 423/1990, 424/1990.) The Committee has also emphasized that restrictions on freedom of expression must meet a strict test of justification (See, e.g. Tae Hon Park v. Republic of Korea, Communication 628/1995).

The enactment of the POSA sends a message to mobs and militias who support the ruling Zanu-PF party that human rights defenders are criminals and legitimate targets of attack. Human Rights First has received continuing reports of violence and threats directed against human rights activists in Zimbabwe. For example, in December 2001, Johannes Mudzingwa, of the organization Zimrights, was physically assaulted by a group of war veterans and Zanu-PF supporters. Zimrights officials have been warned to cease their work or face the consequences. A mob ransacked the offices of Harare law firm, Gill, Godlington and Gerrans, which had represented a white farmer seeking the return of property from a retired general who had occupied his farm.

Particularly in the run up to the presidential elections, it is vital that all persons in Zimbabwe are able to engage in a free political debate and to express their views concerning the government and its policies. Members of the press, opposition candidates and leaders, human rights defenders and organizations, all must be able to contribute to the democratic process without fear of repercussions. The POSA further restricts the ability of those who advocate democratic change and progress towards increasing respect for human rights to make their voices heard.

Undermining the Electoral Process

All available indicators demonstrate that popular support for President Mugabe is low. Recent polling shows that the vast majority of Zimbabweans do not wish him in office for another term. In spite of increasing political violence, there is still a high expectation that peaceful change can occur in the country, through the democratic process. If the outcome of the election is perceived as unfair, there is likely to be deep frustration among the population and this frustration may be expressed through violence. Protests and expressions of dissatisfaction are also likely to be met with increased government-sponsored violence. Moreover, the subversion of democracy in Zimbabwe will likely influence other countries where democracy is under threat, such as Zambia and Malawi.

A variety of tactics are expected from President Mugabe, to ensure his victory in the elections. These include: the use of old, opaque ballot boxes, which are not entirely sealed; the prevention of polling agents from accompanying ballot boxes when they are transported from polling stations to counting stations; manipulation of the number and placement of polling stations, so that a minimum number are placed in the cities (where the MDC enjoys greatest support) and mobile stations are placed in rural areas where Zanu-PF is considered strong; the shipping of Zanu-PF supporters to polling stations in the cities, putting them at the front of voting queues to prevent MDC supporters from casting votes; the presence of army personnel inside polling stations to intimidate voters; the continued confiscation of identity cards from MDC supporters, so that they are unable to vote.

A Regional Humanitarian Crisis

Zimbabwe's economy has been devastated and famine is imminent. A severe drought has already ruined most crops in the south and threatens those in the north of the country. This situation, coupled with the sense of frustration and potential violence described above, could lead to thousands of starving people moving into neighboring countries in search of food. The New York Times reported on Sunday February 24, 2002 that already thousands of Zimbabwean refugees and migrants are attempting to cross into South Africa each week to escape from hunger and, in some cases, political persecution. This number will be multiplied many times over if election irregularities result in further political violence.

The International Response

The international community must recognize that this combination of factors threatens not only Zimbabwe, but also the entire region. The flow of refugees will have a serious impact upon South Africa, Botswana, Mozambique and Zambia. In addition, destabilization will have extremely negative consequences for investment in southern Africa, damaging the economies of many states.

In Zimbabwe, very real fears are already being expressed about vote-rigging and subversion of the electoral process. If the election is seriously flawed, it is imperative that the entire international community respond immediately and all states refuse to recognize the results.

African states must take the lead in speaking out clearly to condemn any failure by the Zimbabwean government to afford its people the right to choose their leader through free and fair elections in accordance with national, regional and international norms and standards. The United States must use its power and influence in Africa and with its allies around the world to assist the Zimbabwean population in averting a human rights and humanitarian calamity through observance of the democratic process and restoration of the rule of law.

The current crisis of human rights and the rule of law in Zimbabwe has been foreseeable for many months. The European Union and the United States government have responded late in the day, imposing targeted sanctions on President Mugabe and his immediate supporters. These measures are unlikely to be sufficient to alter the course of events, or to restore the damage that has already been done. The primary responsibility for the protection and promotion of human rights in Zimbabwe lies with the Zimbabwean government. If it continues to fail in its obligations, then neighboring states, especially South Africa, have a strong interest in ensuring that they do not become the victims of destabilization generated by their neighbor. Other powerful African states, like Nigeria, have a key role to play in making clear to the Zimbabwean government that they will not condone flagrant disregard of international standards. The promotion and protection of human rights is required by international law and is in the interests of all states. The price of continuing to ignore massive abuses of human rights is huge, and in the case of Zimbabwe that price will be paid by many countries in southern Africa, and the whole African continent. It is incumbent upon the United States to work with its partners in Africa to ensure that the rule of law is restored in Zimbabwe and that human rights are respected during and after the presidential election.

A framework exists for Zimbabwe's southern African neighbors who are members of the Southern African Development Community (SADC). The U.S. government must encourage SADC member states to work together to insist that President Mugabe respect the "Norms and Standards for Elections in the SADC Region," adopted by the SADC Parliamentary Forum in March 2001. In addition, the principles contained in the New Partnership for Africa's Development (NEPAD) initiative, concerning the promotion and protection of democracy and human rights, should be realized. SADC and other regional organizations must present a united front against the subversion of democracy and negation of the rule of law in Zimbabwe. If there is clear evidence that the presidential elections are seriously flawed, the results must not be recognized and, in these circumstances, any purported government must be isolated.

While the rule of law in Zimbabwe is collapsing, there remain many courageous individuals in the country, who struggle to promote human rights and fundamental freedoms. These persecuted individuals and organizations require urgent assistance and support from the international community. Any measures taken by the international community must be carefully targeted against those who violate international law so that the suffering of the Zimbabwean people is not further compounded. Regardless of what happens in the presidential elections, it is clear that there will be need for humanitarian assistance to Zimbabwe in the months ahead. Such assistance should not be held hostage to the political situation.

Nevertheless, until the people of Zimbabwe have a government that will respect their basic rights and freedoms, the prospects for economic recovery and regional stability remain bleak. Respect for human rights and the rule of law in Zimbabwe are essential to regional security and development.

APPENDIX

Political Violence in Zimbabwe Since January 30, 2002

This summary is taken from various news reports, and does not in any way represent the total number of acts of political violence being committed. The Zimbabwe Human Rights NGO Forum (a coalition of several local groups) continues to publish monthly reports documenting incidents. These can be found on www.kubatana.net.