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VIII. Restoring the Rule of Law and Addressing Accountability under a New Government

In a country where millions are facing severe food shortages and where inflation is running at 2.79 quintillion percent—a country where half the population is uncertain where food will come from in the coming weeks—restoring the rule of law and addressing accountability may seem an elitist concern divorced from the priorities of ordinary people. But during 2008 Zimbabweans have shown their determination to challenge those in power and have demanded change through the ballot box. The reality is that over a long period of time, ZANU-PF has been transforming the institutions of justice into critical agents of repression and, in 2008, they have been deployed as shock troops in its resistance to change. The reform of the judiciary and the police is fundamental to the restoration of normality and respect for human rights not just in Zimbabwean political affairs, but also in the lives of ordinary Zimbabweans.

Zimbabwe has a history of violent elections since attaining majority rule in 1980. It also has a history of granting amnesty to perpetrators of political violence, who are invariably ZANU-PF supporters. Granting broad amnesties to those implicated deprives victims of the right to a remedy, sends a message that the government condones politically motivated crimes, and encourages rather than deters future political violence.

In 1988 the government of Zimbabwe issued Clemency Order Number 1, pardoning all people involved in human rights violations committed between 1982 and 1987, benefiting mainly state security forces.¹⁵⁵ In 1993 President Robert Mugabe granted amnesty to two state agents convicted of attempted murder of an opposition candidate—Patrick Kombayi who represented Zimbabwe Unity Movement in Gweru Urban—in the 1990 elections.¹⁵⁶ In 1995 President Mugabe again issued amnesty for all politically motivated crimes and human rights abuses, including beatings, arson, kidnapping and torture.¹⁵⁷ On October 6, 2000, following widespread political violence during parliamentary elections, President Mugabe pardoned those responsible for politically motivated crimes committed during the January-July 2000 campaign.¹⁵⁸

Although to date no formal amnesty has been granted for politically motivated crimes in the 2008 elections, the lack of judicial independence and the partisanship of the police already amounts to a de facto amnesty for ZANU-PF supporters who participated in political violence.

Zimbabwe’s power-sharing agreement was signed at a time when scores of victims of human rights abuses were seeking justice and accountability. In the preamble to the agreement, the parties dedicated themselves to permanently putting an end to polarization, divisions, conflict and intolerance that had characterized Zimbabwean politics and society.¹⁵⁹  On signing the agreement President Robert Mugabe said, “We are committed to the deal. We will do our best.” Prime Minister-designate Morgan Tsvangirai said, “l have signed this agreement because l believe it represents the best opportunity for us to build a prosperous Zimbabwe.”¹⁶⁰ In the text of the agreement, the parties further expressed determination to act in a manner that demonstrated respect for the democratic values of justice, fairness, openness, tolerance, equality, and respect for all persons and human rights.

Despite such words, it remains evident that ZANU-PF is continuing to use the justice administration system as a weapon against its perceived opponents—the MDC and critical elements of civil society. The institutions of repression remain intact and there is no evidence of change in the conduct and attitude of the police, senior judges or other security organs.

Sadly, the agreement was largely silent on the issue of justice. Crucially, it did not lay out clear steps or timelines for fundamental justice system reforms that would help restore fundamental human rights protections and the rule of law. Human Rights Watch has long called for justice-centered policies in Zimbabwe, and had hoped the power-sharing agreement would at least send a clear message to abusers on the likelihood of accountability and offer the hope of justice to victims of human rights violations.

In the end, the power-sharing agreement only made a passing reference to this central issue, noting the duty of all political parties and individuals to “respect and uphold the Constitution and other laws of the land, and adhere to the principles of the rule of law.”¹⁶¹

The main obstacle to implementing the agreement is the allocation of cabinet positions. Mugabe had unilaterally allocated all senior ministries—including Justice and Home Affairs, as well as Defense, Foreign Affairs and Finance—to ZANU-PF members. Human Rights Watch believes that ZANU-PF’s retaining control of the Justice and Home Affairs ministries would undermine any hope in Zimbabwe for genuine reforms for justice and accountability and an end to impunity.

Human Rights Watch urges members of the Southern African Development Community, the African Union and the wider international community to press ZANU-PF to make a clean break with the past and take clear and decisive steps that demonstrate commitment to judicial and police reform. Such steps are vital to restore fundamental respect for human rights in Zimbabwe. And this must happen before any lifting of targeted sanctions or resumption of non-humanitarian development assistance to the new government.

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