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Zimbabwe
Submission to the Commonwealth Ministerial Action Group
January 30, 2002
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Key Sections

Summary

Recommendations to the Commonwealth

Background: "Firm Action Against Violence and Intimidation"- Zimbabwe's Abuja Commitment

Freedom of Expression

Law Reform and the Rule of Law

Organized Violence by State Agents and Ruling Party Supporters

APPENDIX: THE ABUJA AGREEMENT



Law Reform and the Rule of Law

As with the new legislation on Access to Information and Protection of Privacy, the Zimbabwe government seems often to proceed on the assumption that if it enacts a law-however much it curtails rights- then this constitutes the "rule of law," and that outside bodies will be more reluctant to criticize behavior that falls, apparently, within Zimbabwean law, as distinct from acts of violence that fall clearly outside it.

Amendments to the Land Acquisition Act

A clear case in point is the amendments to the Land Acquisition Act (originally passed in 1992) enacted in November 2001. The Supreme Court had ruled that the government's "fast track" land resettlement program had failed to comply with the procedural guarantees set out in the Act.41 These included a right of appeal to a judicial authority against an administrative decision to designate land for compulsory acquisition. It was only when that appeal had been heard (and dismissed) that acquisition and resettlement could go ahead. Meanwhile, the reality was that land occupations were continuing with complete disregard for the law. The Supreme Court had also ruled, in December 2000, that the fast track programme had failed to comply with the procedures for land acquisition set out in Section 16 of the constitution.42 The government took a dual approach: both to revisit the Supreme Court decision with a favorably composed bench, and to amend the law to remove the right of appeal.

The amendments to the Land Acquisition Act were brought into effect by recourse to the president's special prerogative under the Presidential Powers (Temporary Measures) Act. This act was passed not long before Parliament finally lifted a twenty-five-year state of emergency in 1990. At the time, the rationale for these powers was to deal with matters threatening the very life of the nation. International standards governing the use of emergency powers have clearly established that special powers that may be needed in situations of genuine emergency may not be used as a normal means of governance. In practice, the president's power to enact six-month temporary legislation without taking it to parliament has been used whenever the government wanted quick action without parliamentary scrutiny, on almost any issue. (For example, the 2001 Broadcasting Services Act was preceded by almost identical presidential regulations.)

The Land Acquisition Act amendments allow the government to start subdividing land and resettling people as soon as an acquisition order has been issued. Previously an acquisition order had to be confirmed by a judicial body, the Administrative Court. A landowner also had the right of appeal to a higher court against the decision of the Administrative Court. This amendment was backdated to May 23, 2000, with the intention of retrospectively legalizing land seizures that did not comply with the requirements of the act. Both aspects are fundamentally at odds with generally accepted principles of due process and the rule of law (including section 18 of the Zimbabwean constitution), which prescribe that a law may not have retroactive effect and that a person may have the right to seek a judicial remedy for grievances. The amendments also create an offence of interfering with the land seizures, carrying a maximum penalty of two years imprisonment.

In December 2001, the Supreme Court ruled again on the fast-track land reform, one year after it had declared the process unconstitutional.43 Chief Justice Chidyausiku refused an application from the Commercial Farmers Union to recuse himself on the grounds that he had previously made public political statements on the land reform issue. The CFU also argued that two of the judges had been beneficiaries of the government's acquisition of commercial farms. By a majority of four to one, the court ruled that the government had taken adequate steps to deal with violence on commercial farms. Chief Justice Chidyausiku said that to expect the government to bring about a totally crime-free environment on commercial farms would be "inconsistent with the concept of the rule of law and its practical application." The four judges who ruled in favour of the government were all appointed in the last few months, since the resignation of Chief Justice Gubbay after threats to his life. Three senior judges were not appointed to hear this case, while the one who did, Justice Ahmed Ebrahim, delivered a dissenting judgement. Ebrahim concluded that the court was simply revisiting the judgment already made by the Supreme Court under Chief Justice Gubbay. He also found that with the persistence of haphazard squatting and violence, it was impossible to say that the rule of law had been restored to the commercial farming areas.44

The chairman of the Bar Council, Advocate Adrian de Bourbon SC, said that the judgment marked the end of the rule of law in Zimbabwe. De Bourbon was advocate for the Commercial Farmers' Union in the case and was strongly rebuked by the court for the manner in which he had applied for the Chief Justice's recusal. The court said that it was the "first and last time" that such "contempt" would go unpunished.45 The court had nothing to say about the repeated failure by the government, police, and war veterans militia to observe and enforce court judgments and injunctions restraining them from squatting and violence on commercial farms.

Public Order and Security Act

In January Parliament passed a new Public Order and Security Act to replace the Law and Order Maintenance Act (LOMA), sections of which the Supreme Court had ruled were unconstitutional. In November 2001, the Supreme Court dismissed charges of terrorism and incitement to public violence against MDC leader Morgan Tsvangirai, under sections 51 and 58 of the Law and Order Maintenance Act. The court found these provisions unconstitutional in terms of section 20, the protection of the right to freedom of expression.46 In a speech in September 2000, Tsvangirai had urged Mugabe to leave office peacefully, raising the possibility of his violent overthrow if he did not.

The Public Order and Security Bill was published shortly after the decision in the case against Tsvangirai, just before the parliamentary Christmas recess. As with other recent pieces of legislation, the government's drafters have taken no notice of Supreme Court rulings on the constitutionality of various provisions-indeed the new law goes further than any other law on the Zimbabwean statute book in restricting constitutional rights:

· People must give seven days' notice before holding any public protest. The police may prohibit a meeting or procession if a senior police officer believes it may lead to public disorder. The only right of appeal is to the Minister of Home Affairs, not to a judge. The police may ban demonstrations in a particular area for up to three months.
· There is a maximum ten-year prison sentence for anyone who disturbs the peace-an offence that is extremely broadly defined.
· Anyone who organizes a group that pressurizes the government through violence-or by activities such as boycotts or civil disobedience-could be liable to a twenty-year prison sentence.
· There is a maximum sentence of five years for anyone who communicates a false statement intending to undermine public confidence in a law enforcement or security service, the armed forces, the defence or economic interests of Zimbabwe, or an essential service. This is similar to the section of Law and Order Maintenance Act ruled unconstitutional by the Supreme Court.
· A person may be imprisoned for up to one year for a statement that engenders hostility, hatred, contempt, or ridicule towards the president.
· Those arrested on charges of subverting constitutional government, insurgency, banditry, sabotage, or terrorism and related offences may be held for up to seven days without charge. The normal period provided for in the Criminal Procedure and Evidence Act is forty-eight hours.
· The courts have no discretion to grant bail to those charged with certain serious offences. These include "subverting constitutional government" or inciting other to do so. This includes advocating boycotts or other forms of civil disobedience.
· It is compulsory to carry identity cards. The Supreme Court ruled in 1997 that citizens were not required to carry their identity card at all times, this being an interference with their constitutional right to freedom of movement.47

This extraordinary law clearly raises the prospect of blanket prohibitions on any form of public protest and the criminalization of the most routine political discourse. The police already use the investigation of trivial offences a means of constantly harassing the opposition. Now they will have the option of removing people from circulation for a week before any challenge can be mounted. The act contains several provisions on which the Supreme Court has already given clear constitutional rulings: on incitement, false statement, and identity cards.

Electoral Law

In late 2001 the government introduced a series of amendments to the Electoral Act. When parliament first voted on these, on 8 January 2002, a number of ZANU-PF members stayed away, with the result that the amendments were defeated. The government immediately reintroduced the amendments, and succeeded in passing them.

The amendments cover five areas, all of which have an extremely negative impact on the people's right to vote:

· the franchise
· monitors and observers
· voter education
· the voters' roll
· election materials.

Effective disenfranchisement of large sections of the population is perhaps the most serious of these. The intention is for the presidential election, unlike the referendum, to be held on the basis of parliamentary constituencies, although it is a national vote. This means that people may register and vote only in the parliamentary constituency where they live permanently and can fulfil newly stringent requirements to prove residence. This will disenfranchise anyone who is outside the constituency where they are resident-for example, because they have been forced out of their homes by political violence. Only diplomatic and military personnel will be allowed to vote by post, which will disenfranchise the hundreds of thousands of Zimbabweans living outside the country and who previously had the vote.

Election monitors, with the right to bring any irregularity to the attention of the relevant authorities, request that they be rectified, and report on the irregularity and any corrective measures to the Electoral Supervisory Commission (ESC), can only be "public servants"-that is, government employees-appointed by the ESC and trained by the Registrar-General's office. The ESC is directly appointed by the president (it is not an independent electoral commission), while the Registrar-General's office is the civil service body that is running the election. In past elections nongovernmental organizations have done an effective job in monitoring elections and intervening to correct abuses. The effect of the amendments would be to dispense with independent monitors. Foreign election observers, who can bring irregularities to the attention of the authorities at constituency level but have no right to request that they be addressed, can only attend the elections at the invitation of the Minister of Foreign Affairs. The president originally stated that whites will not be invited, while the Minister of Information has ruled out "enemies of the state." Under the threat of sanctions from the European Union, the government has indicated that it may accept observers from most European countries except Britain.

The effect of these amendments is to impose serious obstacles to credible independent scrutiny of the elections.

As in many countries, the electorate is highly dependent on independent civic organizations for information about the voting process, including matters such as how to make sure that their name is on the voters' roll. Under the proposed amendments, only the Electoral Supervisory Commission may carry out voter education. Nor can foreign funds be used for voter education, except by the ESC. The effect of this will be to deprive many Zimbabweans of vital information to enable them to exercise their right to vote.

The amendments give considerable new powers to the Registrar-General to alter or correct entries on the voters' roll. The Registrar-General's poor management of the voters' roll has been a source of controversy in past elections. The present incumbent is seen as a partisan political appointee and there are serious fears that this new power would be used to interfere with voting entitlement on ZANU-PF's behalf. Previous polls, including the 2000 parliamentary elections, have been marked by late publication of the voters' roll and consequent last-minute amendments.

The amendments contain provisions criminalizing posting of election materials on walls, trees, and buildings without the permission of the owner. The effect will be to make large-scale posting of campaign posters and handbills illegal.

The cumulative effect of these amendments make a free campaign and vote impossible.

41 See Zimbabwe Human Rights NGO Forum, Complying with the Abuja Agreement: Two Months Report, December 17, 2001, Appendix 2.

42 Ibid.

43 See Zimbabwe Human Rights NGO Forum, Complying with the Abuja Agreement: Two Months Report, December 17, 2001, Appendix 2.

44 Financial Gazette, December 6, 2001; Zimbabwe Independent, December 7, 2001.

45 Herald, December 4, 2001.

46 BBC News, November 20, 2001.

47 Elliot vs Commissioner of Police & Anor, (1997) 2 CHRLD 295.