ZIMBABWE LAWYERS FOR HUMAN RIGHTS

1. History of organation and its vision and objectives

1.1 Brief History

Zimbabwe Lawyers for Human Rights (ZLHR) is a membership organisation composed

of lawyers which was started in 1996 as an effort to foster and encourage the growth and

strengthening of human rights at all levels of Zimbabwean society through observance of

the rule of law. Arnold Tsunga, Otto Saki and Irene Petras were the founding members.

Arnold Tsunga was founding director but he handed over the mantle to Irene Petras at the

end of 2007 to join the International Commission of Jurists in Geneva as the Africa

Director.

From 1996 to 2002, ZLHR “operated as a loose association on an ad hoc basis

responding to significant rule of law related human rights violations as and when they

took place.” (ZLHR Annual Report, 2006 page 4). Due to increasing demand for its

services and as a result of the recommendations of a 2001 evaluation by HIVOS and a

strategic planning workshop in 2002, a secretariat was put in place in July 2002 to ensure

the smooth operations of the organisation. According to ZLHR‟s 2003 Annual Report,

the HIVOS evaluation “made specific recommendations on institutional transformation in

order to make ZLHR leaner, less bureaucratic and more effective and efficient in

responding to the (political and socio-economic) environmental needs.” Apart from

establishment of a full time secretariat, the institutionalisation of ZLHR included creation

of a Board to give policy direction to the secretariat. The Board reports to the members

at annual general meetings. The programmes undertaken by ZLHR at the formation of its

secretariat were:

Human Rights Defenders (HRD)

Public Interest Litigation incorporating International Litigation Project (ILP)

Strategic Litigation and the Anti-Impunity Drive (AID)

Public Education (Human Rights Training)

HIV/AIDS, Human Rights and Humanitarian Law

Capacity Building.

1.2 Vision and Mission of ZLHR

The vision of ZLHR is “a just and democratic society in Zimbabwe with a culture of

respect of the rights of women, men and children while the mission is to, “promote and

protect human rights through a sustainable programme of litigation, unique legal support

services, education and strengthened participation by key stakeholders influencing a

culture of respect for human dignity and rights, tolerance and democracy in Zimbabwe.

1.3 Objectives of ZLHR

The objectives of the organisation are:

To strive to protect, promote deepen and broaden the human rights provisions in

the constitution of Zimbabwe.

To strive for the implementation and protection in Zimbabwe of international

human rights norms as contained in important conventions such as but not

limited to the universal declaration of human rights, the International Covenant

on Civil and Political rights, the International Covenant on Social and Cultural

Rights, the United Nations Convention on the Elimination of all forms of

Discrimination Against Women, the United Nations Convention on the Rights of

the Child, and the African Charter on Human and People‟s Rights.

To strive for the adoption of a Southern African Human Rights Charter and the

establishment of a Southern African Court of Human Rights.

To endeavour to find common ground with and to work alongside other

Zimbabwean groups, organisations, activists and persons who share a broadly

similar concern for and interest in human rights.

To liaise and work with other human rights groups wherever situated but

particularly in Southern Africa and especially those closely linked to the legal

profession.

1.4 Organisational Structure of ZLHR

1.4.1 Organogram

The organogram of Zimbabwe Lawyers for Human Rights is as follows:

1.4.2 Membership

ZLHR‟s current membership consists of over 170 legal practitioners and law students

with an interest in, and affinity for, human rights protection and promotion drawn from

around Zimbabwe. Membership is steadily increasing. Members have been and continue

to remain key to all activities of the organisation and many members have contributed

positively to the various projects and the outputs. Views and aspirations of the members

are always given consideration. In the event of dissenting views, the majority decision

prevails. For example, the organisation was divided on whether to participate in the

ongoing constitutional reform process or not. The majority view to abstain from the

General Membership

Board

Executive Director (head of Secretariat)

Finance and Office Programme Coordinator

Administrator Programme Officers

Support Staff

process was respected. It was further agreed that members were free to participate in

their personal capacities if they so wished.

In as far as the interaction of the secretariat and Board is concerned, the fact that both

secretariat and board comprises of legal practitioners creates a meeting of the minds such

that there is mostly consensus in the implementation of the organisation‟s policies.

1.4.3 Management structure

The management structure comprises of the executive directorship, regional Managers,

programmes coordinator, programme managers. The office bearers are as follows:

Name Position

Irene Petras Executive Director

Kucaca Phulu Regional Manager (Matebeleland & Midlands)

Trust Maanda Regional Manager (Manicaland & Masvingo)

Tafadzwa Mugabe Programmes Coordinator

Rangu Nyamurundira Programme Manager - Public Interest Litigation

Dzie Chimbga Programme Manager - International Litigation

Zviko Chadambuka Project lawyer-P I L

Roselyn Hanzi Programme Manager-Institutional Reform

Programme Manager-Human Rights Defenders

(post vacant)

Connie Nawaigo Project lawyer-Human rights training & public

education

Tinashe Mundawarara Programme Manager HIV, Human rights & Law

Project

Blessing Nyamaropa Project Lawyer (Satellite Office)

Kumbirai Mafunda Communications Officer

Pearce Janga Finance Manager

1.4.4 Board

After the September 2009 Board elections the Board now stands as follows:

Andrew Makoni –Chairperson- (Partner with Mbidzo, Muchadehama and Makoni)

Josphat Tshuma- (Senior Legal Practitioner with Webb Low and Barry Legal

Practitioners)

Tinoziva Bere (Senior Partner Bere with Brothers Legal Practitioners)

Beatrice Mtetwa (Senior Partner with Mtetwa and Nyambirai Legal Practitioners.

Selby Hwacha- Chairperson Finance Committee- (Founding member of ZLHR as well as

founding member of a law firm called Dube, Manikai and Hwacha Legal Practitioners.)

Jacob Mafume (Advisor on human rights , good governance and democracy)

Sarudzayi Njerere –Deputy Chairperson- (Partner with the law firm Honey and

Blackenberg)

Precious Chakasikwa (Partner with the law firm Kantor and Immerman)

Reginald Chidawanyika (Partner with Chitere Chidawanyika Legal Practitioners)

David Hofisi (4th year law student with the University of Zimbabwe who completed his

studies in December 2010)

1.4.5 Sub offices

Zimbabwe Lawyers for Human Rights has sub-offices in Bulawayo and Mutare for wider

reach and spread of programmes.

1.5 Resources

ZLHR has substantial human, financial and infrastructural resources although it is still

facing some challenges in this area.

1.5.1 Human resources

ZLHR‟s human resource base is dominated by legal practitioners. There are 9 lawyers

running the various programmes offered by ZLHR and of these 4 are female. The support

staff is female dominated with 3 manning the front office while others are personal

assistants of the Director and Programmes Coordinator.

1.5.2 Financial resources

Zimbabwe Lawyers for Human Rights is one organisation which has a wide selection of

funders which include; HIVOS, Australian Aid, the Netherlands Embassy, NORAD,

PACT, Trocaire, CIDA, the United States Embassy, the Swiss Government, the British

Embassy, OSISA, Danida, NED, Amnesty International and Frontline.

1.6 Current programmes of ZLHR

1.6.1 Public interest litigation (P I L) Project

Public interest litigation is one of the ways ZLHR utilises to protect, promote, deepen and

broaden human rights provisions enshrined in the Constitution of Zimbabwe in an effort

to restore:

respect for the rule of law;

public confidence in the justice delivery system;

professionalism in policy-making and other state organs;

accountability in the public sector.

It also works towards the depoliticisation of state institutions and the improvement of the

human rights situation in Zimbabwe.

The project provides legal aid services in strategic cases that raise constitutional issues or

have a wider human rights impact. It also pursues cases of impunity to impose personal

accountability to state actors like the police, intelligence service and other public

officials. The litigation is undertaken by members of ZLHR who are experts in litigation

and have the right of appearance in all Zimbabwean courts. The lawyers are

geographically spread throughout Zimbabwe and this gives the organisation capacity to

react speedily to violations, no matter how remote the area in which they occur.

Some of the litigation undertaken in the public interest litigation programme include:

Litigation to protect and enforce fundamental freedoms, universal human rights

and constitutionally guaranteed rights. ZLHR through its members engages in

extensive litigation where constitutional rights and guarantees have been

contravened;

Anti-impunity litigation;

Selective justice related cases;

Citizenship related litigation; and

Litigation for indigent persons

1.6.2 International Litigation Project

Zimbabwe Lawyers for Human Rights has expanded its public interest litigation to

include cases that test the state‟s compliance or non-compliance with its obligations in

terms of international and regional instruments which it has signed and ratified, such as

the African Charter on Human and People‟s Rights, the International Covenant on Civil

and Political Rights, the International Covenant on Economic, Social and Cultural Rights,

the Convention on the Elimination of all Forms of Discrimination Against Women, and

the Convention on the Rights of the Child.

International litigation also focuses on cases where domestic remedies have been

exhausted or are inaccessible, and remedies are therefore sought through regional and

international tribunals such as the African Commission on Human and Peoples‟ Rights.

The litigation lends itself to international lobby and advocacy initiatives and this

minimises the impact of government‟s attempts to politicise human rights disputes.

1.6.3 Human Rights Defenders Project

The Human Rights Defenders Emergency Project is a network initiative which ZLHR

administers. Human Rights Defenders under distress are able to access emergency 24

hour legal services if they are attacked or arrested arising out of their work to defend and

advance human rights.. The organisation also runs a Rapid Reaction Unit which functions

along similar lines but where ZLHR members provide emergency legal assistance to

those in remote rural and outlying areas.

ZLHR defines a human rights defender as “any person who actively champions the

promotion of any of the constitutionally guaranteed rights and in the process becomes the

subject of attack by any organised group including but not exclusively state agents and

other functionaries.”

1.6.4 Institutional Reform

In its interactions with various state and non-state institutions, ZLHR has identified

institutional weaknesses in handling human rights matters. It has therefore held training

programmes to build the capacity of these institutions and to increase the awareness of

human rights and the need to observe these rights in the performance of the duties by

officers in these institutions.

For example, the constitution now provides for the establishment of a Human Rights

Commission but the detailed powers and operational circumstances of this Commission

needs to be provided for in an Act of Parliament. ZLHR has therefore drawn with a draft

Human Rights Act to provide a proper legal framework for this body. It has had a

workshop with Parliamentarians to discuss this draft legislation and the reasons why this

legislation is required. The organisation has also been engaging the police and prison

services providing human rights training so that these institutions get to act within the

confines of the law of Zimbabwe and in compliance with the human rights provisions in

regional and international human rights instruments.

1.6.5 Human Rights Training and Public Education

This programme seeks to increase the general awareness of human rights defenders of

their rights and freedoms through human rights training by ZLHR resource persons with

expertise in the field. It also highlights the subtle and direct attacks human rights

defenders face in the course of their duties and creates capacity for them to deal as ably

as possible with the risks that they face daily. Participants are drawn from the legal

fraternity, trade unions, human rights organisations, the civic community, church leaders,

student and youth movements, journalists and interested individuals from state

institutions. According to the outgoing executive director‟s address in 2007, since 2003

ZLHR provided free emergency legal aid to more than 1 000 men and women annually

who faced persecution in Zimbabwe due to their yearning for freedom and justice.

1.6.6 HIV/AIDS, Human Rights and Law Project

The project seeks to establish legal support services that will educate people affected by

HIV/AIDS about their rights, provide free legal services to enforce these rights, develop

expertise on HIV/AIDS-related legal issues and utilise means of protection available

juridically and administratively through the courts and relevant government and inter-

governmental institutions.

Among its objectives the project seeks to have consistent and systematic monitoring and

evaluation of existing and new legislation in order to assess its impact on the rights of

people who are infected and/or affected by HIV and AIDS. Activities central to the

project include collaboration with community-based organisations and AIDS Service

Organisations, protection of vulnerable groups (including women, youths, street children,

orphans) through legal aid and provision of information, empowering people living with

HIV and AIDS to claim their rights, and lobbying and advocacy. ZLHR is currently

working closely with key stakeholders in drafting an HIV/AIDS Charter for Zimbabwe.

1.7 Types of rights promoted by ZLHR

Zimbabwe Lawyers for Human Rights seeks to promote and protect the entire spectrum

of human rights. The rights romoted include:

socio-economic rights such as right to education, shelter, and protection from

arbitrary and forced evictions, right to work, rights at work; and

civil and political rights such as right to privacy, freedoms of expression,

association and assembly.

ZLHR also advances the rights of women through provision of legal and technical

support to women‟s organisations such as Women of Zimbabwe Arise (WOZA) where

legal representation and drafting of court papers is done for them in furtherance of the

organisation‟s goals.

1.8 Beneficiaries of ZLHR’s activities

The target group and beneficiaries of ZLHR consists of a wide range of groups

including:

all Zimbabweans who have experienced violations of their rights and require legal

assistance;

organisations whose members have had their rights violated e.g. WOZA and

ZCTU;

State institutions which should observe human rights in the course of their work

such as the police, the office of the Attorney-General and prison service and

which need to undergo institutional reform.

1.8 Linkages/Networks

ZLHR networks with other human and women‟s rights organisations such as WOZA,

Zimbabwe Women Lawyers Association (ZWLA), Zimrights, Zimbabwe Human Rights

NGO Forum and (Zimbabwe) National Association of NGOs (NANGO).

Zimbabwe Lawyers for Human Rights also interacts with other organisations by offering

technical assistance to human rights based organisations that work towards the protection

and promotion of human rights. ZLHR has committed human resources to provide

technical assistance to such organisations as Crisis Coalition, Zimrights, the Law Society

of Zimbabwe and the Zimbabwe National Association of Student Unions (ZINASU).

Capacity building of these institutions by ZLHR has added value to the interventions of

these institutions.

1.9 Communication and outreach processes

ZLHR is involved in multifarious outreach processes through pamphlets, publications

such as the Legal Monitor (a weekly newsletter), the Zimbabwe Human Rights Bulletin,

situational human rights training, media publications and internet publications on its web

page. The organisation publishes the Zimbabwe Human Rights Bulletin bi-annually. This

contains reports on human rights developments, case summaries, case notes and

legislative surveys, varied legal articles and reviews, as well as information on important

regional and international human rights developments

ZLHR provides resource materials for the organisation‟s members and specific target

groups and information for members of the public.

ZLHR is working towards setting up a human rights resource centre and hopes to

contribute to the generation and development of positive and progressive human rights

jurisprudence in Zimbabwe and the region. Amongst ZLHR advocacy efforts are press

statements, press conferences and informative materials in the form of brochures and

fliers.

1.10 ZLHR and citizen participation

Since ZLHR is exclusively a “lawyers‟ club”, citizens of Zimbabwe participate in the

activities of ZLHR as beneficiaries of its various programmes especially in situations

where they have encountered overt violence by state actors or other gross human rights

violations. Since May 2003, the Zimbabwe Lawyers for Human Rights Training and

Public Education Programme has been at the centre of conducting and coordinating

training and capacity-building programmes for various stakeholders in civil society and

the public at large. These training sessions have been designed to create a strong

awareness within the communities of their rights that are enshrined in various

international, regional and domestic laws. The programme empowers human rights

defenders with knowledge and skills to better challenge human rights violations and

defend themselves against any further violations.in the courts or other international

commissions and tribunals

2. Brief Overview of the Legal and Political Environment

As a Zimbabwean NGO, ZLHR is operating in a context where efforts to maintain the

rule of law, respect and protect the human rights of citizens and residents and create

democratic space have often been thwarted by both state and non-state actors. The period

between the year 2000 and the year 2009 was marked by increasing political polarization

and political violence. The political violence culminated in the withdrawal of Prime

Minister Morgan Tsvangirai from the presidential election run-off of June 2008 after up

to 200 of his supporters had been murdered and many others, including the Prime

Minister himself, had been arrested, detained and sometimes prosecuted on unjustifiable

grounds. Some were tortured and maimed. The political impasse over the 2008

presidential elections was resolved through a SADC facilitated political dialogue which

resulted in the formation of the inclusive government in February 2009. The democratic

space had shrunk partly due to the state‟s mistrust of civil society organisations as

evidenced by the proposed NGO Bill (which has been put on hold) and the suspension of

the field operations of NGOs during the period preceding the June 2008 presidential

election run off. Some civil society organisations reacted by being confrontational in their

approach to government which increased the polarisation.

The political crisis resulted in serious economic decline and observance of socio-

economic rights was (and still is) threatened by the lack of human and financial

resources. The economic decline resulted in the citizens failing to access education,

healthcare and safe water among other basic services. The lack of a legal framework

which adequately protects these socio-economic rights, particularly their exclusion from

the Constitution‟s Bill of Rights, exacerbates the challenges.

Observance of the rule of law has faced the challenge of failure by the state to recognise

the courts‟ role in oversight of the decisions of the Executive on certain issues. The

Constitution was been amended (through Amendment No. 17 of 2005) to provide that the

decision to acquire land for “agricultural settlement or any other purpose, or land

reorganization, forestry, environmental conservation or the utilization of wild life or other

natural resources” cannot be challenged on any grounds in any court of law in Zimbabwe

and to provide that there will be no compensation for the land itself - only for

improvements to the land - although the amount of compensation offered can be

challenged (see section 16B(2) and (3) of the Constitution of Zimbabwe). A group of

farmers successfully challenged this provision in the SADC Tribunal but the government

refused to recognise the Tribunal‟s decision. Recently, the High Court of Zimbabwe

compounded the situation by refusing to register the Tribunal‟s decision (for purposes of

enforcement within Zimbabwe) on the grounds that it was contrary to public policy to do

so given the context of the struggle for land in Zimbabwe. (The High Court did, however,

accept that the SADC Tribunal did have jurisdiction to hear this matter.)

There has been an increasing failure by the law by the police, the courts and other

regulatory authorities to enforce the law impartially. Citizens who express views that

differ from those of government have complained of partisan and selective enforcement

of the law. In one case the Supreme Court of Zimbabwe set aside the decision of the

Media Information Commission on the basis that the Chairman, who is well known for

expressing pro-ZANU PF views in the public media, was biased.

The police and the courts have also been affected by the lack of human, financial and

other resources necessary for effective operation. Since her appointment in 2006 and in

each of her speeches to mark the start of the court calendar, the Judge President of the

High Court of Zimbabwe has implored the state to make more resources available for the

judiciary. The scourge of corruption has also affected the police and the courts.

The lack of human, financial and other resources for the police and the courts has resulted

in inordinate delays in dealing with criminal prosecutions and civil litigation. This results

in denial of justice for victims of crime, accused persons and civil litigants as per the

adage „justice delayed is justice denied‟.

3. ZLHR’s Strategies and Response to the Legal and Political Environment

As a lawyer‟s organisation focusing on legal rights, ZLHR‟s main strategy and response

to the prevailing legal and political environment has been provision of legal assistance to

human rights defenders and public interest litigation. From this evolved support

activities including:

international litigation;

institutional reform lobbying and advocacy such as police and prison institutional

and personnel re-education and reorientation;

public legal education and information dissemination.

The lawyers who take on litigation on behalf of Zimbabwe Lawyers for Human Rights

are–

the staff lawyers of ZLHR (three out of nine of the staff lawyers in the

Harare office handle litigation work);

the two staff lawyers in the Bulawayo office and the lawyers in the

Mutare office;

lawyers who are ZLHR Board members;

lawyers in different parts of the country who are ZLHR members;

other lawyers in private practice hired by ZLHR to represent clients in

specific cases.

These lawyers are geographically spread throughout Zimbabwe and this gives the

organisation capacity to react speedily to violations, no matter how remote the area in

which they occur.

Board members, ZLHR members and other lawyers who undertake litigation on behalf of

ZLHR are paid fees according to a tariff that is lower than the Law Society tariff of

chargeable legal fees. If these lawyers appear to have charged fees that seem to be too

high even using the reduced tariff, ZLHR will query the level of fees charged.

3.1 Human Rights Defenders Legal Assistance

As pointed out previously, ZLHR defines a human rights defender as “any person who

actively champions the promotion of any of the constitutionally guaranteed rights and in

the process becomes the subject of attack by any organised group including but not

exclusively state agents and other functionaries.”

The Human Rights Defenders Emergency Project is a network initiative which ZLHR

administers. There is a network fund for this project. Human Rights Defenders under

distress are able to access emergency twenty-four hour legal services in the event of their

arrest or attack. There is also a Rapid Reaction Unit which functions along similar lines

but where ZLHR members provide emergency legal assistance to those in remote rural

and outlying areas.

From 2003 to 2007 ZLHR provided free emergency legal aid to more than 1 000 men and

women annually who faced persecution in Zimbabwe due to their yearning for freedom

and justice. In 2007 ZLHR litigated at least 30 separate cases in which damages were

claimed against the Ministry of Home Affairs (the Ministry in charge of the police force)

and individual police officers for persons who had been illegally arrested and detained

and subjected to torture. In 2008 ZLHR dealt with 1446 cases in which human rights

defenders were arrested. Most of those arrested faced charges of violating the Criminal

Law (Codification and Reform) Act. Other cases involved charges under the Public Order

and Security Act, the Access to Information and Protection of Privacy Act and various

offences under the Electoral Act allegedly committed during the election period in 2008.

A number of polling officials were arrested for allegedly tampering with the results of the

elections.

The persons assisted under the programme include trade union officials, women activists,

journalists, lawyers, students, staff of non-governmental organisations and members of

the MDC.

Over the years ZLHR have had a very high success rate in the cases in which it has

defended human rights defenders against charges brought against them. In very few cases

have the persons charged been convicted of the charges.

Cases involving human rights defenders where ZLHR offered assistance involved the

following issues:

defence of persons arrested under Public Order and Security Act;

defence of student activists;

defence of WOZA activists;

defence of lawyers;

defence of MDC officials;

defence of trade unionists.

3.1.1 Defence of persons arrested under Public Order and Security Act (POSA)

This legislation has been extensively used to curtail freedom of assembly and freedom of

association by persons opposed to and critics of the Mugabe government.

ZLHR has dealt with a large number of cases of persons arrested by the police for

holding public protests or meetings. Many of these persons were also assaulted by the

police at the time of arrest or after they had been taken into custody. Often after the

intervention of lawyers the charges were downgraded to charges of violating section 7 of

the Miscellaneous Offences Act (disturbing the public peace) [This provision is now

incorporated into s 46 of the Criminal Law (Codification and Reform) Act.] This

alternate charge is intended to force those arrested to buy their freedom by paying a

deposit fine for this lesser offence instead of risking being detained for longer than was

necessary.

3.1.2 Defence of student activists

ZLHR has frequently represented University students who have been arrested by the

police for seeking to exercise their constitutional right to assemble and to protest. The

students have often been assaulted by campus security guards or by the police during

arrest or whilst in custody. It has also sought to litigate on behalf of students who have

been evicted from University of Zimbabwe halls of residence prior to writing their

examinations or who have been adversely affected by sudden increases in university fees.

3.1.3 Defence of WOZA activists

The Women of Zimbabwe Arise organisation is an activist organisation that engages in

street protests. The police usually violently disperse these demonstrators and often arrest

members of the organisation. ZLHR deploys lawyers to represent the arrested women.

3.1.4 Defence of lawyers

A senior lawyer, Mr Mahlangu, was arrested and remanded on an obstruction of justice

charge on the strength of a letter he wrote to the Attorney-General on behalf of Peter

Hitschmann, explaining his objections to giving evidence at the trial of Bennett for a

security offence. On 14th January 2010 a Harare magistrate threw out the charge, ruling

that the facts alleged by the State did not constitute an offence. Mr Mahlangu has

announced his intention to sue the Attorney-General, the co-Ministers of Home Affairs,

the Commissioner-General of Police and the arresting police officers for damages for

wrongful arrest and unlawful detention.

3.1.5 Defence of MDC officials

One important case in this regard is one involving Morgan Tsvangirai and others in

March 2007. The police had purported to ban all political rallies in Harare relying on

section of the Public Order and Security Act. The legality of this blanket prohibition was

challenged. Civic organisations sought to go ahead with a prayer meeting for peace in a

high density suburb of Harare. They had notified the police but the police and attempted

to go ahead but the police broke up the demonstration. Various MDC officials including

Morgan Tsvangirai, Tendai Biti, Mrs Sekai Holland and Grace Kwinjeh as well as civic

activists such as Lovemore Madhuku were held in custody by the police and subjected to

vicious beatings. Their lawyers were denied access to them and they had to make an

urgent application to court. Eventually the matter was heard in the High Court and the

state admitted that the prisoners had been severely assaulted whilst in custody. The court

ruled that the lawyers must be allowed access to their clients and doctors must be allowed

to treat the prisoners and the prisoners must be brought before a remand court by a

specified time and date. This order was defied at first and when the lawyers attempted to

serve the court order on the CID they were chased away. The prisoners were finally

brought to court under heavy police guard and after much negotiation the seriously

injured prisoners were taken to a clinic for treatment.

3.2 Public Interest Litigation

This programme provides legal services in strategic cases that raise constitutional issues

or have a wider human rights impact. This programme is one of the strategies of ZLHR to

protect, promote, deepen and broaden human rights, to try to restore respect for the rule

of law and public confidence in the justice delivery system, restore professionalism in the

administration of justice and other state agencies and to hold the public sector

accountable for actions taken by state officials and state agencies. The litigation is also

aimed at developing national jurisprudence in line with regional and international human

rights norms and standards.

These cases are often brought as a follow-up legal representation in strategic cases where

human rights defenders have benefited from emergency services. They are brought to

challenge the constitutionality of repressive legislation and state action, including

selective and politically biased application of legislation.

This litigation is undertaken by members of ZLHR who are experts in litigation and have

the right of appearance in all Zimbabwean courts. In some of the important cases ZLHR

has senior counsel from South Africa to argue the cases.

ZLHR also pursues cases to combat impunity of state actors like the police, army and

intelligence officers and other public officials who have perpetrated human rights abuses.

Civil claims for damages are brought against these state actors to hold them personally

liable as well as suing the State to hold it responsible for the actions of these state

officials.

This litigation has covered a wide range of human rights issues. Litigation on some of the

main areas is dealt with below.

3.2.1 Litigation on the torture and assaults by state agents

One important case is that of Mukoko v Attorney-General Supreme Court Case Number

36 of 2009. The director of the Zimbabwe Peace Project was abducted by state officials

and detained and tortured. She was also denied access to her lawyer and medical

treatment.

She was eventually charged together with a number of others with recruiting MDC-T

party youths to undergo military training in Botswana for the purpose of committing acts

of insurgency, banditry, sabotage or terrorism in Zimbabwe in contravention of section

alleged contravention of section 24 of the Criminal Law (Codification and Reform) Act.

She applied to Supreme Court for a permanent stay of the prosecution against her on the

basis of infringements of her constitutional rights to liberty, full protection of the law, and

freedom from torture.

The Supreme Court ordered that her trial be permanently stayed on account of the

infringements of her constitutional rights.

Subsequently Ms Mukoko brought a civil claim for US$222 000 compensation from

government for alleged mistreatment while in detention. She is claiming against the

Ministry of State Security and the Ministry of Lands and its Minister, the co-Ministers of

Home Affairs Ministers, the Defence Minister, the Commissioner General of Police,

Chief Superintendent Magwenzi, the Attorney General and Brigadier General

Tapfumaneyi.

Mahlangu v Chief Superintendent Tenderere, Commissioner of Police and Minister of

Home Affairs High Court Harare Case Number 5951 of 2008

Mr Mahlangu, a senior lawyer, claimed damages for assault by members of the ZRP

perpetrated upon him while he was participating in a lawful and peaceful gathering. The

court awarded substantial damages to him.

Mugabe v Chief Superintendent Tenderere High Court Harare of 2008

A ZLHR lawyer was assaulted while carrying out his duties as a lawyer. He was awarded

substantial damages for interference by the police with the performance of his legal

duties.

3.2.2 Litigation seeking disclosure of human rights information held by the

President

ZLHR brought the case of Zimbabwe Lawyers for Human Rights & Anor v President of

Zimbabwe & Anor S-12-03 to obtain access to a report pertaining to the Gukuhurundi

atrocities. The Supreme Court ruled that it had no right to receive information contained

in a commission of inquiry report to the President on human rights abuses.

3.2.3 Litigation relating to citizenship rights

ZLHR has represented a number of persons who have been deprived of their citizenship.

One such case is that of Petho v Minister of Home Affairs & Anor HH-221-2001. In this

case the applicant sought to bring a class action on behalf of the very large class of

people who were born in Zimbabwe to foreign-born parents and who had never sought or

been granted citizenship of another country. In the action he would seek an order

declaring that all such people remained Zimbabwean citizens despite the amendment to

section 9 of the Citizenship of Zimbabwe Act [Chapter 4:01] which deprived them of

their Zimbabwean citizenship if they did not renounce their foreign citizenship within six

months. The applicant himself had been born in Zimbabwe to parents who had entered

the country as stateless persons; since he had no possible claim to foreign citizenship he

did not belong to the class of people he sought to represent, but this did not preclude him

from representing them. On the other hand, the suitability of a person to be a

representative in a class action includes his capacity and resources to conduct the action.

The class in this case was huge, and although the applicant‟s intentions were good he

could not be said to be suitable to represent the best interests of all members of the class.

(Another case where the applicant was not successful was that of Registrar-General of

Citizenship v Todd S-4-03. Ms Todd was found by the Supreme Court to have lost her

Zimbabwean citizenship because she had failed to renounce New Zealand citizenship.

This case, however, was not litigated by ZLHR)

3.2.4 Litigation on electoral rights

ZLHR has brought cases to reinstate voters on the voters roll who have been wrongly

been treated as aliens by electoral officials and therefore ineligible to vote in elections.

They have also supported cases in which litigants have sought access to the voters roll.

ZLHR has also supported litigation to establish that the commissioners appointed by the

Minister of Local Government to replace elected city councillors can only remain in these

positions for a maximum of six months after which there must be fresh elections to elect

new city councillors.

Ahead of the 2005 election, ZLHR supported a case in which some Zimbabwean citizens

based in the United Kingdom sought to cast their vote by post contending that they were

unable to return to Zimbabwe to cast their vote in person. The court dismissed the

application ruling that the right to vote was not a right guaranteed by the Constitution.

The case in question is Madzingo & Ors v Minister of Justice & Ors Supreme Court

Judgment No S-100-05.

In January 2010 the Supreme Court struck down section 60 of the Electoral Act, which

requires polling station officials to assist visually impaired voters to mark their ballot

papers. The court said this was inconsistent with the constitutional right of citizens to

vote in secret. This means the Electoral Act will have to be amended to allow visually

impaired voters to vote in secret. The Supreme Court suggested methods such as being

assisted by a trusted person of the voter‟s own choice, Braille ballot papers or other

measures that have been adopted in other countries. It is of interest that one of the

applicants in this case was a supporter of ZANU PF. This decision will have wider

application to other voters who need assistance to cast their votes. This case was brought

by ZLHR.

3.2.5 Litigation relating to Murambatsvina

In May 2005 the government launched a massive countrywide “clean up” operation in

urban centres code named Operation Murambatsvina. This was implemented through

local authorities using the police and the army. This resulted in huge scale destruction of

dwellings and property of informal traders and the forcible eviction and displacement of a

large number of persons.

ZLHR sought to challenge the legality of this operation in a series of court cases. The

victims whose cases ZLHR took on included supporters of ZANU PF. In most of these

cases the judiciary displayed indifference to the plight of the huge number of victims of

this operation. Urgent cases were often not dealt with on an urgent basis. In the case of

Dare Remusha Cooperative v The Minister of Local Government, Public Works & Urban

Development & 4 Ors HC 2467/05 ZLHR applied for an interdict to stop the continued

destruction in an area of Harare called Hatcliffe Extension. The judge dismissed the

application deciding that that the “public policy considerations” in destroying their homes

and evicting them “far outweighed the interests of those who had breached the terms of

their leases. In the case of Batsirai Children’s Care v The Minister of Local Government,

Public Works & Urban Development & 4 Ors HC 2566/05 the police destroyed an

orphanage in Hatcliffe Extension and unlawfully evicted the inhabitants.

When ZLHR made an urgent application for a spoliation order to allow the orphanage to

return to the stand, the judge repeatedly postponed the matter, ignoring the urgency of the

matter and the ongoing violations of the constitutional rights of the affected children.

However, in two cases brought in the magistrates courts, ZLHR managed to obtain orders

barring further evictions.

3.2.6 Litigation on media rights

ZLHR have brought various cases before the Supreme Court to challenge the

constitutionality of various aspects of the Access to Information and Protection of

Privacy Act, arguing that provisions such as those requiring registration of newspapers,

accreditation of journalists and criminalising false statements violate the constitutional

protection of freedom of expression. With a few minor exceptions, the Supreme Court

ruled that the provisions in this legislation are not in violation of the constitutional

protection.

5 June 2009, Stanley Kwenda and others vs Ministry of Media, Information and Publicity

and others (Case Number: HC 2355/09) was filed on behalf of the four freelance

journalists namely Stanley Gama, Valentine Maponga, Stanley Kwenda and Jealousy

Mawarire challenging the legal status of the MIC and the unlawful interference by the

Ministry of Media, Information and Publicity in accrediting journalists wishing to cover

the COMESA Heads of State and Government Summit, which is scheduled to take place

from 7-8 June 2009 in Victoria Falls. The application was granted.

In S v Maruziva and Ors 2008 the ZLHR provided legal defence for the editor of a

newspaper who had published a statement by the Deputy Prime Minister. They were both

charged with offences such as making a false statement likely to undermine public

confidence in the police and the army and impairing the reputation or authority of these

agencies. ZLHR lawyers have applied for the matter to be referred to the Supreme Court

arguing that these offences violate the constitutional protection of freedom of expression.

The case is still pending.

In a series of rulings such as Association of Independent Journalists & Ors v Minister of

State for Information and Publicity in the President’s Office & Ors S-136-02 the

Supreme Court decided that most of the provisions in the repressive media law, the

Access to Information and Protection of Privacy Act, were constitutional. Having failed

to obtain justice from the local courts, the ZLHR and two media organizations challenged

provisions in AIPP before the African Commission. In July 2009 the Commission ruled

in favour of the applicants, deciding that the challenged provisions were in violation of

the African Charter. It ruled that that the Zimbabwean government should

“decriminalise” offences relating to the accreditation and the practice of journalism.

3.2.7 Litigation on conditions of incarceration of persons in police lock-ups

The ZLHR supported a case concerning the inhuman nature of police cells. This case was

that of Kachingwe & Ors v Minister of Home Affairs & Ors S-145-04. This case led to a

ruling by the Supreme Court that conditions of incarceration in two police lock-ups

violated the right to protection against inhuman or degrading treatment.

3.2.8 Property taken during political violence

In June 2009 ZLHR filed civil claims on behalf of plaintiffs who suffered loss of their

property, including livestock, during the violence that ensured over the 2008 Harmonised

elections. The plaintiffs claimed compensation for the loss of their property forcefully

and unlawfully taken off them by ZANU PF supporters as fine and punishment for

allegedly supporting and voting for the opposition MDC during the 2008 elections. Some

of the litigants have been granted orders directing that they be compensated for the loss

of their property by those who were responsible for these losses. However, some police

officers maliciously arrested victims of political violence who had peacefully sought to

recover their property.

3.2.9 Litigation on freedom of religion

ZLHR brought a case in which a school has refused to allow the child of practising

Rastafarian parents to wear dreadlocks. The Supreme Court found that this measure

violated the fundamental right to freedom of religion. The case is Dzvova v Minister of

Education, Sports and Culture Supreme Court Judgment No S-26-07.

3.2.10 Litigation on abuse of the criminal process

In 2009 together with the Law Society ZLHR brought a case in the High Court regarding

the obstruction by the police of legal practitioners in the course of the performance of

their professional duties. The judge ordered the Commissioner-General of Police to

investigate these incidents. The complaints included incident of assaults, threats and

denial of access to clients. The judge also ordered the Commissioner-General and his

officers to refrain from hindering legal practitioners from exercising their rights and

warned that officers flouting the order will be guilty of contempt of court.

ZLHR is also bringing a case challenging the constitutionality of s 121of the Criminal

Procedure and Evidence Act. This provides that if bail is granted by a magistrate or a

High Court judge but the State appeals against this decision to the High Court where the

bail has been granted by a magistrate or to the High Court where a judge has granted bail,

the bail will be suspended and the accused will remain in custody in custody for up to 7

days whilst the appeal is heard. This provision has been abused by the Attorney-

General‟s office to stop the release from custody of a number of persons who clearly

deserved to be granted bail and to be released pending trial.

3.3 International Litigation

One of the cases involving international litigation by ZLHR has been referred to in the

overview above. It involves a number of white farmers whose land had been

expropriated and they failed to obtain justice before the courts of Zimbabwe. ZLHR

supported the submission of their cases to the SADC Tribunal. The Tribunal ruled in

favour of the farmers (see Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe

(2/2007) [2008] SADCT 2, November 28 2008), finding that the government had

discriminated against the farmers on the basis of race in violation of the SADC treaty. It

also ruled that the farmers evicted from their land and those who received notices of

evictions should return or stay put on the farms because Zimbabwe's land reform

undermined the rule of law. In addition, the tribunal ordered the government to take all

necessary measures to protect the possession, occupation and ownership of the land

belonging to farmers still on the land and not to take any action to evict them or interfere

with their peaceful residence on these farms.

The government ignored this ruling, with Minister Chinamasa maintaining that the

Tribunal had not been properly constituted and that it had no jurisdiction to deal with this

case. With the assistance of ZLHR one of the farmers then approached the High Court

seeking registration of the Tribunal judgment in Zimbabwe in order that it could be

enforced within Zimbabwe. On 26 January 2010 Justice Patel dismissed an application

for the registration and enforcement in Zimbabwe of the SADC Tribunal‟s decision. The

application had been brought by In that case the Tribunal decided that section 16B of the

Constitution and the Government‟s land reform programme were in breach of the SADC

Treaty, and ordered that applicants already evicted from their farms must be properly

compensated and that the Government must protect applicants still on the land and ensure

they were not evicted. Justice Patel rejected the Government‟s argument that the

Tribunal was not validly constituted and decided that the Campbell case was within the

Tribunal‟s jurisdiction and that its judgment was binding on Zimbabwe at the

international law level. However, he ruled that the Tribunal‟s judgment could not be

enforced in Zimbabwe because to do so would be to impugn the legality of the land

reform programme as implemented by section 16B of the Constitution and sanctioned by

a 2007 decision of the Supreme Court – and therefore would be contrary to Zimbabwe‟s

“public policy”.

4. Challenges and threats encountered by ZLHR and its responses

As repression has intensified since 2000 ZLHR has had to deal with several challenges

and threats in its attempts to assert the human rights of Zimbabweans, particularly in

using the law and legal processes to do so. Prior to the formation of the inclusive

Government in February 2009, there was an increase in the number of cases in which

human rights defenders were victimised for their human rights work. Some of this

victimisation has continued in the inclusive Government era. The volume of ZLHR‟s

work has been enormous and the legal work has often been extremely hazardous for the

lawyers who have been deployed, especially when they have had to go to police stations.

The lawyers have often been denied access to their clients and have sometimes been

assaulted or chased away from police stations.

The lawyers have frequently filed civil damages claims against the state officials who

have violated the fundamental rights of the human rights defenders. This is an integral

part of the organisation‟s campaign that the violators are made accountable and they do

not have immunity. In some cases the damages awarded have been paid but in others

payment is still outstanding.

The public interest litigation is embarked upon selectively. These cases involve important

constitutional or broad human rights issues. Since the purge of the Supreme Court and the

replacement of judges sympathetic to ZANU PF, this court has often failed to uphold

fundamental human rights of persons opposed to the policies of ZANU PF. One example

is its rulings on media freedom which have failed to protect this freedom. When faced

with such failure to protect by the Zimbabwean courts, ZLHR has resorted to external

litigation and lobbying before fora such as the African Commission. However, in a few

cases such as the Mukoko case ZLHR has managed to obtain important rulings from the

Supreme Court.

The challenges and threats that ZLHR has faced can be categorised as follows:

threats against human rights defenders including ZLHR and its employees;

politicisation of state institutions, particularly the police (and other security

services), the Attorney-General‟s office and the judiciary

socio-economic challenges

4.1 Threats against human rights defenders including ZLHR and its employees

As discussed earlier the prevailing legal and political environment since 2000 has been

very challenging for human rights defenders. Several of them have been arrested,

detained and sometimes prosecuted unjustly. Several of them have been abducted,

assaulted and or tortured. Some have been forcibly deprived of their property or the

property has been destroyed, sometimes through arson. ZLHR as an organisation that

works for the defence of people‟s human rights has not been spared these challenges.

Examples of these threats against ZLHR employees, members and other lawyers who are

human rights defenders (in addition to those discussed above) are numerous. A few of

them are highlighted below:

According to a report of the International Bar Association Human Rights Institute

(IBAHRI), in 2007 the Government of Zimbabwe published a report on the

Ministry of Home Affairs website in which it attacked ZLHR and other human

rights defenders for protesting against abuse of people‟s human rights by the

police (IBAHRI, 2007 p35-37). The publication was titled Zimbabwe Republic

Police, Opposition Forces in Zimbabwe, the Naked Truth, Volume 2). (This will

be referred to as “the Naked Truth” in this study.) In one of the specific attacks

on ZLHR, the Naked Truth stated:

„The branding of professions in Zimbabwe as “Lawyers for Human

Rights”, “Doctors for Human Rights” etcetera, is mischievous, and

nefarious. They are only waiting for another opportunity to see the MDC

opening other fronts as

Engineers for Human Rights;

Teachers for Human Rights;

Pilots for Human Rights;

Nurses for Human Rights;

Bishops for Human Rights, etc.

To an unsuspecting citizen, the ZLHR is a well meaning entity for the

promotion of social transformation in society yet to alert and vigilant

executive arms of government, most of these organisations are actually

wolves in sheep skins ready to devour the government at any moment”.

(as quoted in IBAHRI, 2007 page 37)

ZLHR lawyers (both staff and members) and other lawyers have been

unjustifiably arrested and detained by the police or threatened with arrest when

they were assisting arrested clients. Some have been assaulted and or tortured.

Some were prosecuted but the charges were dismissed as baseless. The table

below highlights some of the cases:

Name and position/reason for action

against lawyer (if known)

Action against lawyer and date

Lovemore Madhuku, Chairperson, NCA

(He has been arrested many other times and

was part of the activists that were assaulted

and arrested after the thwarted “prayer

rally” of 11March 2007)

Picked up by the police and interrogated in

March 2005

Munyaradzi Gwisai, International Socialist

Organisation (ISO) – participation in a

procession to mark World Aids Day

Arrested, detained overnight and released

without charge in December 2005

Harrison Nkomo – inquiring about

whereabouts of arrested clients at

Machipisa police station. In 2008 he was

arrested and charged with insulting

President Mugabe in a remark he allegedly

made to a prosecutor who is the President‟s

nephew.

Assaulted, chased away and warned not to

return on 11 March 2007

Irene Petras, ZLHR employee – attempting

to gain access to arrested clients

Threatened and ordered to leave police

station on 11 March 2007

Otto Saki, ZLHR employee Received an anonymous threatening call

against him and other ZLHR employees to

stop representing members of the “Save

Zimbabwe Campaign” or they would be

“silenced” on 16 March 2007

Tafadzwa Mugabe, ZLHR employee –

attempting to prevent the police from

stopping his clients‟ (Grace Kwinje and

Sekai Holland) departure to South Africa

for medical care as per court order granted

to the clients (the clients had been assaulted

by the police)

Threatened with arrest and assault and

warned to stop representing such clients on

17 March 2007

Alec Muchadehama and Andrew Makoni,

partners in a law firm and ZLHR members

– allegedly for attempting to defeat the

course of justice by making a false

statement during a bail application for

Offices illegally searched, arrested,

detained, denied access to lawyers and

families, charged and released on bail by

court order – eventually the charges were

dropped (dates: 4 to 7 May 2007, charges

client who was accused of petrol-bombing

ZANU PF offices in Mbare.

Muchadehama was subsequently (2009)

arrested, detained overnight, granted bail,

prosecuted and acquitted on a similar

charge involving the release on bail of his

clients.

dropped on 27 July 2007)

Beatrice Mtetwa, LSZ President and ZLHR

Board member, Collin Kuhuni, LSZ

Councillor, Mordecai Mahlangu, former

President of the LSZ – part of a group of

lawyers led by the LSZ that gathered to

march to the offices of the Minister of

Justice, the Attorney-General and the

Commissioner of Police to present a

petition “urging full and immediate

protection for lawyers and prosecutors in

the execution of their professional duties as

stipulated in the African Charter on Human

and People‟s Rights and the Principles and

Guidelines on the Right to a Fair Trial and

Legal Assistance in Africa”. Mahlangu

was subsequently arrested, charged

prosecuted and acquitted on a charge of

attempting to obstruct justice in the

Hitschmann matter as outlined above.

Assaulted by the police on 8 May 2007

Ernest Jena –representing MDC members Abducted and tortured by militias in

Bindura and released almost a week later in

2008.

(Sources for table: ZLHR Annual Reports 2005, 2007, 2008 and LSZ and ZLHR,

October 2007)

Prosecutors and judicial officers have also been threatened and sometimes assaulted,

arrested or unjustly prosecuted for carrying out their duties impartially.

A Mutare prosecutor who prosecuted the Minister of Justice on a charge of obstruction of

justice in connection with a case where ZANU PF members were accused of political

violence was arrested and detained for several weeks after the Minister was acquitted

(LSZ and ZLHR, October 2007).

On 16 August 2002, a Chipinge magistrate was dragged from the courtroom and

assaulted by suspected war veterans for refusing to remand MDC supporters accused of

burning Government tractors in custody on the basis of insufficient evidence (LSZ and

ZLHR, October 2007 citing Amnesty International).

A senior magistrate based in Bindura was assaulted by ZANU PF youths for granting bail

to MDC activists on 23 June 2008. In the third International Rule of Law lecture to the

Bar of England and Wales, former Chief Justice of Zimbabwe Justice Anthony Gubbay

highlights some of the harassment and intimidation faced by judges of the High Court

and Supreme Court in the post-independence era which resulted in some of them

resigning or being removed from office. One of the most blatant acts of intimidation was

the invasion of the Supreme Court building on 24 November 2000. Justice Gubbay

describes this event as follows:

“The invasion of the Supreme Court building on the morning of 24 November

2000, by close to two hundred war veterans and followers, was nothing but

disgraceful. In the course of entry the policeman on guard was assaulted.

The mob rushed from the main entrance through the building to the courtroom,

where the judges were about to hear a constitutional application brought by

the Commercial Farmers Union. They shouted political slogans and even called

for the judges to be killed. They stood on chairs, benches and tables, in a

gesture of absolute contempt for the institution of the courts as the third

essential organ of a democratic government. Such deplorable behaviour sent

the clearest message that the rule of law was not to be adhered to. The

invasion lasted an hour. It disrupted, as it was intended to do, the

proceedings of the court. There is good reason to believe that it had been

instigated and organised by the Minister of Information”.

One of the consequences of the state‟s hostility towards human rights defenders (both

lawyers and non-lawyers) is that its institutions, particularly the police, refuse to

cooperate, assist or comply when they require protection. Such refusal includes open

defiance of court orders. One example of such defiance occurred on 18 March 2007

when the Officer Commanding of the Law and Order Section of the ZRP refused to

accept a court order from a lawyer. He tore the order into pieces, crumpled it into a ball

and threw it into the lawyer‟s face. He then ordered the lawyer to leave the police station

whilst threatening him (LSZ and ZLHR, October 2007).

4.2 Politicisation of state institutions, particularly the police (and other security

services), the Attorney-General’s office and the judiciary

The politicisation of state institutions is reflected in the manner in which the state,

particularly the previous ZANU PF government has treated human rights defenders, its

critics and civil society in general. In addition there was very little separation between

party and state under the ZANU PF government. Moreover ZANU PF was intolerant of

opposition political parties despite the fact that the laws of Zimbabwe and international

norms recognise political freedoms; anyone who criticised state policy was labelled as

being part of western imperialist forces seeking to re-colonise Zimbabwe. Lawyers

carrying out their professional duties in representing political activists were regarded as

partisan and sometimes as accomplices to the crimes allegedly committed by their clients.

This extreme politicisation compromised the professionalism and impartiality of state

institutions, including those involved in the delivery of security and legal services such as

the police, the Attorney-General‟s office and the judiciary. Some officers in these

institutions refused to cooperate whenever they deemed it not politically expedient to do

so. Others used their office to pursue a political agenda. The politicisation of security

and legal service state institutions is partly illustrated by some of the overtly political

statements the institutions and/or their officials have made which are cited below:

According to the IBAHRI report, the first paragraph of the Naked Truth document states:

“It is not a secret that the emergence of the MDC was a result of local civic

organisations coming together to form a western sponsored political front against

the Government being led by the liberation movement that ushered independence

in the country in 1980.” (IBAHRI, 2007 page35)

The document further alleges:

“There is no doubt that the mushrooming of multi-faceted western sponsored

politically aligned non governmental organisations, masquerading as champions

of democracy, human rights and good governance, are simply there to peddle the

regime change agenda meant to dislodge a democratically elected government

through such futile attempts as the Save Zimbabwe Campaign.

The above is just the tip of an iceberg with numerous inclinations by human rights

lawyers determined to exert pressure through engagement and opposition politics

that seek to unseat legitimate and democratically elected government.” (IBAHRI,

2007 page 37)

The IBAHRI report records that, after being appraised of the concerns about the human

rights and rule of law situation in Zimbabwe and being asked to comment, the Chief

Justice:

“… noted that although he and the rest of the judiciary had no problems with the

concept of the protection of human rights it was difficult dealing with a human

rights agenda which appeared to be directed solely to demonise Zimbabwe.”

The current Attorney-General has publicly stated that he is a ZANU PF support. His

appointment is being challenged by MDC-T as being contrary to the spirit of the GPA.

The President has refused to reverse the appointment and the parties are still negotiating

on the way forward. As mentioned above, prosecutors have sometimes invoked section

121 of the Criminal Procedure and Evidence Act to deny bail to deserving accused

persons. ZLHR is challenging the constitutionality of section 121.

Apart from facing the challenges of a politicized legal system, ZLHR also has to contend

with the negative socio-economic environment when seeking the protection and

promotion of human rights in Zimbabwe.

4.3 Socio-economic challenges

The deteriorating socio-economic environment negatively impacted on the protection and

promotion of human rights in Zimbabwe and ZLHR‟s interventions. Poverty increased

with the result that many Zimbabweans could not afford basic services. Service

provision by the state and other public institutions, including local authorities deteriorated

to unacceptable levels resulting in gross violations of the right to food, water, health

services and shelter among others. The HIV and AIDS pandemic and the cholera

outbreak added to these challenges.

The violation of civil and political rights by the state, particularly the persecution and

murder of political opponents compounded the socio-economic challenges. Travel bans

and other economic restrictions were placed on specific individuals and institutions who

were judged as being responsible for the violations of civil and political rights. These

restrictions created a negative perception of Zimbabwe by investors and other funding

partners which worsened the economic meltdown. On its part, the ZANU PF

governments used the restrictive measures an excuse for its failure to deliver services and

as justification for further persecution of its political opponents who were branded as

“enemies of the state” who were causing the suffering of the people of Zimbabwe.

Operation Murambatsvina is an example of an instance of gross violation of civil,

political and socio-economic rights of Zimbabweans who were already suffering the

consequences of the economic challenges hence their survival on informal businesses and

or residing in sub-standard structures or dependence on such structures for income

(through rentals). ZLHR was forced to react to this operation by seeking legal protection

of the rights of those affected.

ZLHR‟s litigation was affected by the challenges in many ways. Firstly, the poor

remuneration of civil servants including judicial workers and other court support staff

resulted in work stoppages. Particularly at the magistrates courts as these workers stayed

away in protest and or due to lack of money for bus fare to come to work. Cases being

litigated had to be put on hold during the work stoppages thus disadvantaging litigants,

particularly those in custody. Secondly, the lack of financial and other resources

diminished the capacity of judicial service institutions to deliver justice expeditiously.

For example, the prison services failed to take prisoners to court because they had no

vehicles and or fuel. They also failed to provide adequate food and health services to

prisoners resulting in high death rates. Police stations also failed to maintain detention

facilities in proper sanitary condition. As referred to above, ZLHR brought litigation for a

court order declaring the facilities at Matapi police station to be unfit for human

detention.

ZLHR has responded to the above challenges and threats in various ways which are

discussed below.

5. ZLHR’s response to challenges and threats

As discussed above, ZLHR has adopted a number of strategies in seeking to protect and

promote human rights in Zimbabwe. These strategies have been further refined and

contextualized to deal with above challenges. ZLHR has responded to the increasing

threats against human rights defenders by mobilizing more resources and expanding its

geographical coverage to ensure that it can respond to as many cases as possible from all

over the country in the shortest time. It has sought to minimize the chances of torture and

assault of arrested human rights defenders by publishing details of their arrest in the

national and international media and on the internet. ZLHR also makes appeals to its

regional and international partners requesting these partners to call for release of the

human rights defenders. The resultant publicity usually makes those who are detaining

them less likely to violate their rights or continue doing so. ZLHR also uses litigation to

enforce the rights of arrested human rights defenders by seeking their production in court

(in cases where the police are refusing to disclose their whereabouts or want to

unlawfully prolong their detention) and seeking their release on bail. They have also

sought court orders for assaulted and tortured human rights defenders to have access to

medical services of their choice. The Counselling Services Unit provides free medical

assistance for such persons once the authorities permit them to receive private medical

treatment. ZLHR has also provided legal education and information to human rights

defenders to enable them to assert their rights and those of others against violators and

seek legal assistance quickly where necessary.

ZLHR lawyers have sought to minimize the personal risk to them when they visit clients

in police custody by two lawyers going together. They have also responded to the

personal attacks against them and labelling them as opposition by emphasizing their

professional role as lawyers and demanding that state institutions respect that role and

protect lawyers executing their duties as required by national law and international norms

and standards. ZLHR in conjunction with the Law Society of Zimbabwe (LSZ) has also

sought and obtained the solidarity and support of regional and international lawyers‟

organizations such as the SADC Lawyers Association, the International Bar Association

(IBA) and the International Commission of Jurists (ICJ) in defending their professional

independence.

ZLHR‟s response to the impunity of some violators of human rights has been to name

them publicly and institute proceedings for damages against them personally in the hope

that this will deter them from committing further violations.

As pointed out above, ZLHR‟s international litigation is mainly a response to either the

failure of the local courts to adequately respond to human rights violations or disregard of

orders of local courts by state institutions.

ZLHR‟s major response to the politicization of state institutions is to work towards

institutional reform focusing on the policy and legislative frameworks in order to restore

the professionalism of these institutions.

The formation of inclusive government should have offered greater opportunities for

advancement of human rights and institutional reforms but as yet little meaningful reform

has occurred. Properly carried out the constitutional reform process should also create

considerable scope for institutional reforms that will enhance democracy, good

governance. So far ZLHR‟s monitoring of the inclusive government in conjunction with

other CSOs through CISOMM and the constitutional reform process through ZZZICOMP

has established grave problems with the Inclusive Government and the constitutional

reform exercise..

Monitoring of the Constitutional Reform Programme under the GPA

ZLHR has combined with the Zimbabwe Peace Project and the Zimbabwe Election

Support Network to establish an independent mechanism to monitor the Parliament-led

constitution making process. This combined operation is named ZZZICOMP. The three

organisations will assess and evaluate the constitution-making process against established

principles, benchmarks and standards of constitutionalism and constitution-making

including accessibility, inclusivity, openness and transparency, legitimacy and

receptiveness.

This monitoring body has said that this programme will act as a confidence-building

measure for the people by holding those leading the process to account for the manner in

which the constitution-making programme is carried out at its various stages. It has

pointed out that there must be a diverse range of constitutional information available to

the people and the people must be able to freely their views on what should be contained

in the new constitution. The draft constitution produced after the outreach programme

must accurately reflect the input of the people.

This body has already expressed its concern about the operating environment for this

process. It has pointed out that repressive legislation that inhibits freedom of assembly,

association, expression and movement is still in place and is being selectively applied by

the authorities. It has also pointed out that there have been several incidents of violence

and intimidation ahead of the outreach programme and many of these have involved

attempts by persons connected to ZANU (PF) to forcing people to say during the

outreach programme that they want to see the adoption of the Kariba draft constitution.

Monitoring of the implementation of the Inclusive Government

ZLHR was instrumental in establishing the Civil Society Monitoring Mechanism, a non-

partisan collective of non-governmental organisations dedicated to monitoring and

evaluating the implementation of the Zimbabwe Interparty Political Agreement. The

performance under this Agreement is evaluated under a series of headings. In its detailed

report at the end of the first six months of the Inclusive Government the implementation

of the Agreement was analysed under the following headings:

economic recovery;

constitutional reform;

respect for human rights;

institutional transformation;

humanitarian and food assistance;

media reform;

freedom of assembly and freedom of speech.

This report highlights the many shortcomings of the Inclusive Government, particularly

in the areas of respect for human rights, progress on constitutional reform, media reform

and affording of civil and political rights, especially freedom of assembly and freedom of

expression.