ZIMBABWE: CHOGM leaders reminded of Zimbabwean situation

* Workers' resistance `on the rise'
http://www.greenleft.org.au/back/2003/564/564p20.htm

* Two nights in a Zimbabwean jail
http://www.kubatana.net/html/archive/lab/031118md.asp?sector=LAB

* What alternative to violence?
http://www.kubatana.net/html/archive/opin/031119ij.asp?sector=OPIN

* Zimbabwe faces expulsion from IMF
http://news.bbc.co.uk/2/hi/business/3289599.stm

Crisis in Zimbabwe Coalition
Box CY434 Causeway, Harare

Phone/Fax: 747 817

Email: [email protected]

Crisis in Zimbabwe Coalition

Statement on the Occasion of the Commonwealth Heads of Government

Abuja, Nigeria 1-7 December 2003

Crisis in Zimbabwe Coalition (The Coalition) is a grouping of the major civic organisations in Zimbabwe, comprising 350 Zimbabwean non-governmental organisations. It was conceived in 2001 as a collective response by Zimbabwean civics to the multi-faceted crisis facing the country.

Zimbabwe’s economic, political and human rights situation continues to be of grave concern to its nationals, the region, and the wider international community. Indeed, the possibility of the re-admittance and attendance of, Zimbabwe to the December 2003 Abuja Commonwealth Heads of Government Meeting has occasioned controversy. It is our fervent belief that the lifting of Zimbabwe’s suspension from the Councils of the Commonwealth imposed on 19 March 2002 by the Commonwealth Chairpersons Committee on Zimbabwe is not essentially a matter of politics and foreign policy; rather it is an issue of principle, of normative values of human rights, democracy and adherence to international as well as national obligations.

It is not the objective of the Coalition to advocate for the international isolation of a country we so dearly love, but to ensure that the reasons for which it was suspended from the Commonwealth are resolved. With deep regret, we once again advice the international community that:

Ø laws that infringe freedom of expression have not been repealed but have become more repressive and were recently used to shut down the operations of, and arrest journalists working for, Zimbabwe’s only private daily newspaper, the Daily News;

Ø violent commercial farm invasions continue, albeit at a reduced scale, despite several proclamations that the acquisition exercise was concluded and there has been no effort to liase with the UNDP to create a viable land reform exercise; and that

Ø the government consistently undermines the rule of law, the independence of the judiciary, in addition to criminalizing all manner of dissent and expression of opinion that does not accord with the establishment.

Ø The recent and widely publicised unlawful arrest, detention and release after two days without charge, of heads of Civil Society leaders of organisations such as the Crisis Coalition, the National Constitutional Assembly, Combined Harare Residents Association, and the Zimbabwe Congress of Trade Unions illustrates Zimbabwe’s disregard for:

Ø basic human rights and rule of law;

Ø its undertakings to President Mbeki of South Africa and President Obasanjo over the repeal of freedom of expression adverse laws;

Ø its obligations under the Harare Commonwealth Declaration and the Millbrook Commonwealth Action Programme on the Harare Declaration; as well as

Ø other international obligations under the United Nations Charter on Human Rights and the African Charter on Human and People’s Rights, among others.

There exist other publicised and verifiable cases of gross human rights violations, such as the politicisation of food aid earmarked to relieve starvation. There are also cases of continued manipulation of the electoral system, and disregard for property rights.

Because our internal efforts to engage with the government in resolving the crisis have been rebuffed and criminalized, we demand that the international community continue to pressurise the Mugabe regime to enter into national dialogue with legitimate representation of the Zimbabwean citizenry. By adopting an arrogant attitude, the Zimbabwe government’s reaction to its suspension has been tainted by bad faith. It has weathered its year of suspension and now claims that it ought to be readmitted, without making any tangible efforts to resolve the issues which in the first place led to its suspension.

Zimbabwe is a willing party within the Commonwealth which is an association of sovereign countries, bound together by a value-laden set of core principles. Crisis Coalition, therefore, resolves that due to Zimbabwe’s intransigence and seeming contempt for the ideals held by the Commonwealth, its suspension should be extended. Zimbabwe should be readmitted, not because it has completed its time of suspension but because it has undertaken clear and verifiable steps towards resolving issues of concern raised by the Commonwealth.

We recommend that the following steps need to be taken:

Ø an end to political violence and intimidation;

Ø a repeal of repressive legislation and unjust laws;

Ø the opening of political space, including access to the print and broadcast media;

Ø addressing the economic and humanitarian crisis;

Ø the development of a people driven Constitution that entrenches democratic, just and accountable government, as a prerequisite to new elections;

Ø the establishment of an electoral and legal framework that ensures free and fair elections.

Additionally, the Coalition believes that in order to achieve genuine national unity, there is need for a transitional government under a transitional Constitution

The Coalition further suggests the following options on the Zimbabwe question:

Ø Should the Mugabe regime continue in its failure to comply with the conditions set down for Zimbabwe’s readmission to the Commonwealth then the issue of expulsion should be considered;

Ø It is important for the two African Nations at the forefront of attempts to mediate the crisis in Zimbabwe namely, Nigeria and South Africa to forge an alternative and democratic African voice against the abuses in Zimbabwe. The African Community of Nations has for too long allowed the authoritarian Mugabe regime to set the parameters of the debate on the Zimbabwean crisis, and in so doing allowed the gross violation of human rights in the country to be relegated to secondary status.

The Coalition lauds all countries that have expressed dismay and concern at Zimbabwe’s continued repression of its nationals and calls on all member states of the Commonwealth to pressure the Zimbabwe government towards the resolution of the crisis.

POLITICAL VIOLENCE REPORT
OCTOBER 2003
27 November 2003
A report by the Zimbabwe Human Rights NGO Forum

OVERVIEW

Zimbabwean citizens’ enjoyment of freedom of expression and association remains extensively curtailed. Widespread national, regional and international calls for the Zimbabwe Government to respect these freedoms and protect them through their law enforcement arm, the Zimbabwe Republic Police (ZRP), have evidently been unfruitful. The apparent attempt by the Zimbabwe Government to restrict the right to freedom of expression and association has manifested itself in the continuous harassment of human and labour rights activists through arrests whenever they attempt to peacefully demonstrate. The frequent arrest of National Constitutional Assembly (NCA) Chairman Dr Lovemore Madhuku and other NCA members, in particular, appears to have become a regular form of harassment.
Sections of the Public Order and Security Act (POSA) and the Miscellaneous Offences Act (MOA) are being continuously and consistently used to impede freedom of expression, movement and association. This was clearly manifested in the arrest of over 170 members of the Zimbabwe Congress of Trade Unions (ZCTU) on 8 October 2003 demonstrating over high taxation and violations of trade union and human rights. Approximately 150 members of the NCA were arrested on 22 October 2003 for participating in a demonstration to call for a new democratic constitution. Members of both groups were charged either with violating sections of POSA or of MOA. These arrests also display the contempt for labour rights which has also been accommodated under POSA and MOA. The Congress of South African Trade Unions noted, in a statement released on 8 October 2003, as “regrettable that the Zimbabwe government sees trade unions as one of its main opponents…Instead of understanding that workers are duty bound to protest against attacks on their living standards, it sees them as antagonists.”
The Human Rights Forum deplores the excessive use of force by members of the Zimbabwe Republic Police when effecting arrests. EG, QD, SZ, NM, PN, TT, LK, KM, NK, TC, MG, VN, LM, CJ, TS, SM and OM were demonstrating, with other NCA members when they were all reportedly assaulted with baton sticks by the riot police at the time of their arrest. The assaults took place in the centre of Africa Unity Square in full view of members of the public and signify the level of impunity and lack of accountability of the ZRP.
We further note with concern the prevailing climate of impunity for certain police officers who are alleged perpetrators of human rights violations. This selective impunity for perpetrators of human rights violations within the ZRP has simply had the effect of perpetuating further human rights violations. BM was arrested for his participation in the NCA demonstration of 22 October 2003. The victim claims that he was held in his own cell and was forced to stand on one leg for prolonged periods. He also alleges that he was forced to stand on his head with the poster he had been seen carrying covering his face, while two policemen slapped him in the face. The victim claims that one Detective Inspector Dhowa instructed 15 members of the riot police to each give him 10 strokes while he lay in a prone position before he was taken to join the other demonstrators. He further claims that he was forced to face the wall and was given another 80 strokes by the police using baton sticks. He asserts that he was forced to polish the policemen’s shoes using his hat and then tear into 50 pieces the NCA T- Shirt he was wearing. He claims that he was forced to sleep in a wet cell and that he sustained severe bruises on the buttocks. He was later taken to join the other demonstrators in their cell.
Detective Inspector Henry Dhowa has been implicated in several incidents of torture in the past, prior to his deployment as part of a UN peace-keeping force in Prizren, Kosovo. However no action was been taken against him for incidents perpetrated in 2002 before his departure nor upon his return. These allegations are regrettable as they suggest that the impunity enjoyed by Detective Inspector Henry Dhowa allows him to continue to perpetrate torture against those taken into custody at Harare Central Police Station.
The Human Rights Forum strongly condemns the harassment and alternatively the arrest of individuals when they attempt to report an incident in which they have in fact been the victim. This can have no other outcome than the establishing a culture in which Zimbabwean citizen’s, acting on their diminished faith in the police force, desist from reporting crimes committed against them.
On 18 October 2003, 3 MDC youths were allegedly shot by one Advocate Chihota a tenant at their offices in Harvest House, Harare. The police officers who attended to the scene reportedly spent an hour searching for “hidden guns” before emerging with Chihota who was not handcuffed. Instead the police indicated that they would charge the 3 youths with attempted murder and claimed that the youths had “shot themselves” with Chihota’s gun.” Prior to this incident on 12 October 2003, human rights lawyer, Beatrice Mtetwa was assaulted as she attempted to report an attempted car-jacking perpetrated against her. The police officers from Borrowdale Police Station in Harare accused Mrs Mtetwa of being under the influence of alcohol and yet failed to conduct a breathalyser test. As the World Council Of Churches noted in a letter to the Minister of Justice, Legal and Parliamentary Affairs, Patrick Chinamasa, “the case of Mrs Mtetwa is not an isolated incident of police excesses. There have been several such incidents resulting in grave and serious human rights violations of human rights defenders.”
Alleged perpetrators such as members of the infamous ZANU PF “Top Six” gang from Chinhoyi, including Saidi and Josephat Chiweshe, have also been involved in numerous incidents of political violence in the past. In October 2003 the gang was active in the intimidation, victimisation and assault of MDC members that effectively resulted in ZANU PF candidates being elected unopposed in 13 wards in Chinhoyi as well as to the post of Executive Mayor. It is particularly discouraging to note that the police, who maintain that they had received no report of such incidents , were allegedly present and watched with acquiescence as ZANU PF members assaulted MDC members at the venue of the Nomination Court in Chinhoyi and prevented them from entering the building. In one incident the police were allegedly the perpetrators of an assault on an MDC member who wished to enter the Nomination Court. GK, MDC Administrator for Mashonaland West Province and other MDC supporters, were reportedly surrounded and assaulted by the “Top Six” gang (ZANU PF supporters) with fists, booted feet, iron bars and broomsticks. GK had gone to the Nomination Court to pay the nomination fee for the aspiring MDC candidate in the upcoming Mayoral Elections.
The MDC Mayoral candidate for Chinhoyi, Edeline Huchu, ultimately withdrew her candidature from the elections following an attack on her at her home. ZANU PF supporters allegedly attacked Edeline, assaulting both her and her uncle. One of the assailants, Saidi, a member of the “Top Six” gang, reportedly threatened EH and told her that she would never become the Mayor of Chinhoyi. Among the assailants were Domie, Josephat Chiweshe, Paddington and Gwemba. After assaulting her, the group reportedly demanded that she give them her nomination papers, which she denied being in possession of. The Zanu PF supporters also allegedly assaulted officials from the Registrar General's Office for accepting the nomination papers for MDC candidates. It is further alleged that the ZANU PF supporters then seized the papers and took them away.
Following the closure of Nomination Courts on 28 October 2003, the Registrar-General's Office declared Zanu PF candidates unopposed winners in one mayoral and 13 urban wards in Chinhoyi, a mayoral seat in Marondera and 7 rural District Council wards. Zanu PF's Risipa Kapesa, won the Chinhoyi mayoral seat "unopposed" while in Marondera, Ralph Chimanikire, was declared the mayor after the MDC "failed" to nominate a candidate. Violence was also reported surrounding the holding of the Nomination Court for the Kadoma Central parliamentary by-election. CT was barred from entering the Nomination Court by a group of about 400 ZANU PF supporters when he had accompanied the MDC candidate to present his papers for the Kadoma Central Parliamentary seat. A fight is said to have ensued between the two party supporters. CT fled, but the assailants reportedly caught up with him. He claims that he was assaulted with iron rods on the back and was kicked in the jaw with booted feet until he lost consciousness. He asserts that his assailants took him to a nearby sewage, assaulted and dumped him there. He later received treatment at a local hospital where he was admitted and discharged on the following day as the hospital was being patrolled by ZANU PF youths. Additionally ZANU PF supporters at the Kadoma Nomination Court allegedly assaulted RK when he had accompanied the MDC candidate to present his Nomination papers. He was reportedly stoned on his head, right shoulder and left forearm.
“According to reports by ZESN long term monitors, the sight of ruling party supporters barricading nominations courts is now a familiar one in many elections. The nomination courts have almost become a sacred ground where only the very brave may enter.” Violence surrounding the process of nomination prior to the conduct of elections was also widely reported in July during the run-up to the August Local Government Elections. Although the opposition parliamentary candidate for Kadoma Central was eventually registered, the highly polarised political environment and attendent violence will undoubtedly have an impact on the ability of the electorate to exercise their right to vote freely and fairly. Based on the events of October 2003 it is the Human Rights Forum’s contention that persisting conditions in Zimbabwe do not yet “adequately allow for a free expression of will by the electors.”

HERALD ATTACK ON THE ADMINISTRATIVE COURT CONTEMPTUOUS AND UNWARRANTED
Zimbabwe Lawyers for Human Rights

The Herald newspaper of 25 November 2003 contained a headline titled "Judge under probe- Majuru accused of making pre-determined judgements in ANZ, MIC legal wrangle" The paper thereafter goes on to give a report that cast serious aspersions about the professionalism of the President of the Administrative Court Mr Majuru in his dealing with the case involving the Associated Newspapers of Zimbabwe (ANZ) (publishers of the Daily News) and the Media Information Commission (MIC) purportedly relying on an affidavit of the MIC lawyer complaining of bias on the part of Mr Majuru.

Zimbabwe Lawyers for Human Rights (ZLHR) views the attack on the Administrative Court and on Mr Majuru by the government controlled newspaper as contemptuous, unwarranted and calculated to bring the administration of justice into disrepute. It is also part of a wider, deliberate, systematic and sustained general attack on the judiciary to manipulate it, reduce its independence and weaken national institutions of protection that are vital for the restoration of the rule of law and democracy. Mr Majuru is the latest victim among members of the legal profession to suffer an attack merely for doing his job as a judicial officer

Background information

The ANZ are publishers of the Daily News which is the only independent daily news paper in Zimbabwe. The other daily newspapers in Zimbabwe are The Herald and The Chronicle which are government owned and controlled and are generally believed to churn out government propaganda. For some time the Daily News has been the target of attack by the state or state organs.

On 11 September 2003 the Supreme Court of Zimbabwe made a ruling in the matter involving ANZ and MIC. Based on the controversial doctrine of "dirty hands" it refused to give ANZ audience on its constitutional challenge, instead ordering that the ANZ first comply with the challenged law before seeking judicial protection against it. This resulted in the ANZ failing to enjoy its constitutional right to the due protection of the law.

On 13 September 2003 the police forcibly forced the ANZ to stop publishing the Daily News and the Daily News on Sunday, its two publications.

On 15 September 2003 the ANZ submitted its application for registration as a media house with the MIC in compliance with the Supreme Court ruling.

On 16 September 2003 the police forcibly closed the ANZ offices, stopped management and workers entry into ANZ premises, occupied the ANZ premises (including the news room), forcibly occupied the premises housing the printing press and uplifted virtually all ANZ computer equipment to some undisclosed location.

On 17 September 2003 in a very legally sound and brave judicial decision a High Court judge Justice Omerjee ruled that the police conduct of forcibly occupying the premises of ANZ and seizing their equipment without a Court order was illegal and that there was nothing at law to prevent the ANZ from publishing the Daily News. The police were ordered to return the seized equipment and not to interfere with the ANZ. In particular Justice Omerjee ruled that the police " have no legal right to prevent the applicant or its employees from gaining access to the premises of the applicant and carrying on the business of publishing a newspaper." The MIC appealed against this decision to the Supreme Court in a determined effort to prevent the Daily News from being published.

On 19 September 2003 the MIC predictably refused to grant ANZ a licence to operate as a media house. The ANZ took this decision on review to the Administrative Court. This is where Mr Majuru who is the President of the Administrative Court first entered the scene.

On 24 October 2003 Mr Majuru made a ruling setting aside the decision of the MIC on three grounds namely that, the MIC was improperly constituted and could not in its current composition issue out any valid licences or decisions, the MIC had acted outside its powers when it turned down the ANZ application, and that the MIC was biased especially through its Chairman against the ANZ. Mr Majuru also made a ruling that as far as the court was concerned ANZ had to be issued with a certificate of registration. The operative part of the judgement reads " Given the finding of bias that we have made, the unjustifiable delays that might be occasioned to the Applicant by a re-determination, and the fact that we are in as good a position to make the decision ourselves, we order that the Appellant be issued with a certificate of registration by the Respondent" Mr Majuru’s judgement was brave and well reasoned and contrary to some superior courts judgements, showed a marked degree of judicial activism in protecting the bill of rights and universally recognised human rights and fundamental freedoms.

ZLHR’s Observations

The position of the Administrative Court has therefore been always very clear in terms of the judgement quoted above. The suggestions that Mr Majuru has now suddenly prejudged the matter through an informal, incidental and fortuitous communication to a stranger asking for help in a street, is mischievous and calculated to damage the reputation of the Mr Majuru in both his personal and professional capacity. ZLHR is aware that the over riding motive is however that of maintaining and prolonging the closure of the Daily News and sustaining the institutional attack on the right to freedom of expression hook or crook. This has been achieved since Mr Majuru has been left with no alternative but to recuse himself from the matter. The recusal of Mr Majuru from the matter prolongs the matter and places the next president to deal with the matter under undue pressure. In fact the attack on Mr Majuru is a deliberate reminder to the judiciary by those forces within the state that do not believe in the rule of law, that they are at risk if they make rulings that are seen to be against the state or the ruling party. ZLHR is not surprised that given this operating environment a record number of judges of the Supreme Court and High Court have resigned since 2000. The pattern of events listed above on the ANZ case shows that the state is determined to ‘use the law’ to subvert justice and ensure that the Daily News does not get published again. It is extremely regrettable that the Supreme Court (which in any democracy should be the defender of justice, civil liberties and fundamental freedoms) is constantly referred to as the reason why the state continues to act in the manner that it does in preventing the people of Zimbabwe from enjoying their right to freedom of expression. If the MIC lawyer had been genuinely concerned at the conduct of Mr Majuru, his remedy will not have been to rush to the press, but to make an application for the president to recuse himself. He did not.

Recommendations

ZLHR draws the government’s attention to the following instruments that clearly spell out its obligations and responsibilities towards ensuring that the Judiciary remains free from political or other interference:

United Nations Basic Principles on the Independence of the Judiciary (1985), Article 1, which states:

"The independence of the judiciary shall be guaranteed by the state and enshrined in the Constitution or the law of the country. It is the duty of governmental or other institutions to respect and observe the independence of the judiciary."

United Nations Basic Principles on the Role of Lawyers (1990), Principle 17 which, states:

"Where the security of lawyers is threatened as a result of discharging their function they shall be adequately safeguarded by the authorities"

The Constitution of Zimbabwe, Section 79B, which states:

"In the exercise of judicial authority a member of the judiciary shall not be subject the direction or control of any person or authority…"

ZLHR also draws the government’s attention to the report of the Special Rapporteur on the independence of the judges and lawyers, Dato’ Param Cumaraswammy, submitted to the United Nations Human Rights Commission dated 10 January 2003 which has a recommendation as follows:

" With regard to Zimbabwe, the Special Rapporteur once again urges the Commission to consider and address appropriately its concerns about the deterioration in that country, inter alia with regard to the independence of the judiciary and its impact on the rule of law."

ZLHR further draws the government’s attention to the recommendations of the African NGOs Forum at the African Commission’s 33rd session in Niger which read in part that:

" The participants at the NGO Forum urge the African Commission on Human and Peoples Rights to recommend that the government of Zimbabwe;

take all necessary measures to ensure protection of lawyers, public prosecutors, magistrates, judges and to respect the independence of the judiciary."

ZLHR reiterates its grave concern at the upsurge in threats, harassment and intimidation of prosecutors, lawyers, magistrates and judges, particularly those handling human rights-related cases, and calls upon the government to comply with its obligations and responsibilities to guarantee the independence of the Judiciary and to ensure that adequate protection is offered to members of the legal fraternity in the exercise of their judicial functions. In particular all reports of subtle or direct threats, intimidation and harassment of the judges, magistrates, lawyers and public prosecutors must be promptly investigated and perpetrators prosecuted.

END

ZIMBABWE LAWYERS FOR HUMAN RIGHTS

25 November 2003