«L’OBSERVATOIRE EL OBSERVATORIO pour la Protection des Défenseurs para la Protección de los Defensores de des Droits de l’Homme Derechos Humanos ...»
Much of the period in the run up to the elections in 2008 was characterised by continued economic stagnation and decline, the continued selective application of repressive laws such as the Public Order and Security Act, together with the criminalisation of public gatherings and meetings under the newly enacted Criminal Codification and Reform Law Act, which carries stiffer penalties and sentences.
Those defenders most frequently arrested, tortured or threatened, such as trade unionists, lawyers, journalists, students, religious leaders and women activists, have been upholding civil and political as well as economic, social or cultural rights. Human rights defenders who are exposing the daily violations or seeking justice for victims of human rights violations committed by the State security apparatus have also been particularly targeted.
Few attacks against human rights defenders are investigated and even fewer result in convictions. As a result, arrest, torture and intimidation of human rights defenders have increased in large part of the country due to the failure to investigate and punish those responsible.
The Zimbabwe State’s responsibility for attacks against human rights defenders is usually direct, although, in some cases, war veterans, youth gangs and ZANU-PF supporters have reportedly been responsible. For instance, as the mission wound up its mission in February 2008, the war veterans and ZANU-PF youths abducted and tortured teachers who are members of the Progressive Teachers Union who were protesting at the poor conditions affecting teachers and school children in Zimbabwe. The beatings took place at the ZANU-PF headquarters in Harare. This typifies the electoral operating environment facing human rights defenders in Zimbabwe.
From reports, meetings and testimonies obtained by the mission there is an established pattern of systematic violations and attacks against human rights defenders in Zimbabwe by both the State apparatus and ZANU-PF supporters. It seems evident that both the State agents and its collaborators have adopted specific strategies and measures to silence or restrict the activities of human rights defenders. These strategies and measures vary from one region to another. For example, in Matabeleland region, disappearances, abductions followed by torture or extrajudicial killings and frequent death threats are more common patterns than in Harare and Mutare. Similarly, strategies and measures taken against students and religious leaders are different from those against the lawyers, journalists and trade unionists.
The most alarmingly common patterns of violations that have been established are as follows:
1. Legal sanctions and restrictive legislations Legal sanctions and selective application of repressive legislations are frequently used against human rights defenders to incriminate them or to hinder and restrict their ability to conduct their activities. It is evident that the Public Order and Security Act (POSA), the Access to Information and Protection of Privacy Act (AIPPA), the Broadcasting Services Act (BSA), the Miscellaneous Offences Act (MOA) and the Financial Regulation Act are the pieces of repressive legislation that are used extensively to erode the universally recognised rights and fundamental freedoms in Zimbabwe especially the freedoms to assembly, association and of movement.
In its 2003 report “Systematic repression of human rights defenders in Zimbabwe” as well as in its last annual reports, the Observatory has already analysed these very restrictive laws, which for many of their provisions violate the provisions of the International Covenant on Civil and Political Rights (ICCPR), the African Charter of Human and Peoples’ Rights (ACHPR) and the UN Declaration on Human Rights Defenders
• The Public Order and Security Act (POSA), adopted in January 2002, has since become one of the favourite tools of the Zimbabwean Government to suppress dissent and criminalise the legitimate exercise of freedoms of expression, association and assembly. The Act prohibits a wide range of speech acts. In particular, article 16 (2) prohibits any statement likely to “engender feelings of hostility towards, or causing hatred, contempt or ridicule of the President, as well as any statement considered abusive, indecent, obscene or false” about the President.
Likewise, article 15 prohibits “publishing or communicating false statements prejudicial to the State”, as well as any statement “adversely affecting the economic interests of Zimbabwe, or undermining public confidence in a law enforcement agency”. The extremely vague wording of such articles has encouraged a more frequent recourse to those provisions, which are in any circumstances contrary to the Zimbabwean Constitution in its section 20, which guarantees freedoms of expression and information. The Act has repeatedly been used against journalists, human rights activists and trade union activists.
POSA also constrains freedoms of association and assembly. In addition to requiring the organisers of any public meeting to inform the local police of a meeting four days in advance (the police being allowed to cancel it altogether for the sake of “public order” - a provision systematically used against opposition parties and human rights defenders, though never on the ruling party meetings), article 19 also prohibits any act that “forcibly disturbs the peace, security or order of the public or any section of the public; or invades the rights of other people; [or intends] to cause such disturbance or invasion or realising that there is a risk or possibility that such disturbance or invasion may occur”. The combination of the requirement to inform public venues and the vagueness of the provision amounts to an arbitrary and selective limitation of freedom of assembly.
• The Access to Information and Protection of Privacy Act (AIPPA), passed in March 2002 and amended in 2003, allows in effect for the authorities to exercise close political supervision on all media operating in Zimbabwe.
Sections 38-42 of AIPPA provide for the establishment of a Media and Information Commission (MIC), whose board is appointed by the Minister of Information. The MIC is responsible for the now mandatory registration of all media and journalists operating in Zimbabwe (section 66). This also holds true for foreign journalists. Once issued, the licence is valid one for one year and renewable at the discretion of the MIC.
Furthermore, under section 65 of the Act, the MIC can take action against any journalist who publishes information deemed to “threaten the interests of defence, public safety, public order, the economic interests of the State, public morality or public health”. AIPPA has been used to systematically curtail freedom of expression and limit access to information in Zimbabwe. The Broadcasting Services Act (BSA) allows for close governmental control of the entire broadcasting sector.
In September 2000, Capital Radio, a private radio station, filed a suit with the Supreme Court against the then Broadcasting Act, arguing that it was unconstitutional, as it contravened Section 20 of Zimbabwe’s Constitution which guarantees freedoms of expression and information. The Court ruled in favour of Capital Radio and declared that the Act was unconstitutional. In response, however, the Government passed the Presidential Powers (Temporary Measures) Broadcasting Regulations, which were to become the BSA. Those temporary measures were replaced in 2001 by the BSA.
• The Miscellaneous Offences Act (MOA). The MOA has been used extensively as an instrument to harass human rights defenders in cases where the police did not suspect that a human rights defender had committed an offence and yet the police would be determined to use the law as a pretext to trample on the rights and freedoms of human rights defenders. The Act had an offence in terms of which human rights defenders would be charged with conduct that would likely result in a breach of the peace. From 2003 to 2007, when the Act was amended or repealed, section 7 of the MOA was used more than any other legislation to arrest and detain human rights defenders. In 2007, the relevant section of the MOA was replaced by Section 37(1)(a)(i)(ii) of the Criminal Law Codification and Reform Act Chapter 9:23, which criminalises “Participating in gathering with intent to promote public violence, breaches of the peace or bigotry” As will be seen below, this section of the Criminal Codification and Reform Act is now one of the main legislative tools selectively applied to target human rights defenders.
• The Financial Regulation Act and the Price Control Act Human rights defenders, including, among others, lawyers, journalists and political opponents, are the usual victims of these Acts. These legislations restrict the ability of human rights groups to operate foreign currency accounts freely. In its fiscal review, the Government decreed that all foreign currency of NGOs in commercial bank accounts had to be compulsorily deposited with the Reserve Bank of Zimbabwe (RBZ). The commercial banks would maintain what the government referred to as “window transactions” but they would not be allowed to hold the actual cash in the bank. Any NGO wanting to spend its money would then apply to the Reserve Bank through its commercial bank to be allocated its foreign currency. Such application would contain a breakdown of details of exactly what this money is needed for and where it would be spent. The human rights organisations experience on this new process has been that in addition to create another method of gathering intrusive information about the activities of NGOs, the Reserve bank has also used administrative details or incompetence to delay the processing of transactions especially of targeted NGOs in a manner where they have literally sabotaged activities. This, besides rendering the human rights organisations ineffective, has also created a potential conflict between NGOs and their funding partners when perceptions of incapacity to deliver begin to be raised. The Executive Director of Zimbabwe Lawyers for Human Rights (ZLHR) told the mission that her organisation was waiting in some instances for over two months before there could be any movement on their applications to use their own money and this posed a peculiar but grave danger to programming.
The Government has also used the Price Control Act as a tool to attack some human rights defenders, especially those working in private legal firms, doing extensive pro bono work of defending other human rights defenders in the courts. The most notable case is that of the legal firm Bere Brothers in Mutare who were raided many times by the price control team on allegations that they were charging above what the Government wanted them to charge for their services. A partner in the firm, Mr. Zviuya, told the chargés de mission that they were very distressed by the aggressive raids that were done against them between June and September 2007 under the guise of price controls. He informed that hoards of uniformed and non-uniformed people would invade their office at a time and harass the lawyers, their staff and clients and cause severe pandemonium, accusing the legal firm of trying to sabotage the Government.
2. Arrest, police assault, acts of torture (sometimes leading to death) and arbitrary detentions Police assaults and brutality followed by arrests usually happen after peaceful demonstrations and protests. The police usually target protest leaders - particularly students and trade unionists. The mission was provided with countless evidence and stories of police brutality, arrest and subsequent torture against the leaders of peaceful demonstrations. Moreover, an increasing number of human rights defenders have been placed in arbitrary detention, in violation of article 9 of the International Covenant on Civil and Political Rights and article 6 of the African Charter on Human and Peoples’ Rights.
3. Surveillance visits and breakdown of offices
One of the common tactics used by the Central Intelligence Organisation (CIO) to intimidate human rights defenders and spread fear among them is to put human rights defenders (HRDs) under surveillance, making frequent surveillance visit to their offices and bugging of their telephone line. For instance, between March 16 -18, 2007, CIO officers made surveillance visits to the offices of ZLHR at least seven times. Similar incidents were experienced by the National Congress of Trade Unions when the CIO broke down their offices and confiscated books documents and other resources from their office in Mutare.