ARTICLES

 

The functions of selected human rights institutions and related role-players in the protection of human rights in Zimbabwe

 

 

H Chitimira^{I, *}; P Mokone^II,**

^INorth-West University, Mafikeng Campus, South Africa. Email: Howard.Chitimira@nwu.ac.za
^IINorth-West University, Mafikeng Campus, South Africa. Email: pontshophila@gmail.com

 

 

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ABSTRACT

Various violations of the human rights of ordinary people and human rights defenders have been reported in Zimbabwe since the late 1980s. It is widely acknowledged that such violations have been perpetrated mostly by the government through its different organs for political and other related reasons. Human rights violations were also easily committed against ordinary people and human rights defenders because there was no Constitution that adequately protected such people's fundamental human rights (including their civil and political rights and their socio-economic rights) in Zimbabwe. Given this background, the article discusses the protection of human rights in Zimbabwe, in the light of the Zimbabwe Constitution Amendment Act 20 of 2013 (Zimbabwe Constitution 2013). This is done in order to investigate whether the promotion, protection, enforcement and respect for human rights in Zimbabwe has now improved. To this end, the functions of selected national human rights institutions and other related role-players, namely civil society, the judiciary, the law enforcement organs and the Zimbabwe Human Rights Commission, are briefly discussed first. Secondly, the functions of selected regional and international institutions, namely the Southern African Development Community, the African Union and the United Nations are discussed in relation to the protection of human rights in Zimbabwe. Thereafter, concluding remarks and possible recommendations that could be utilised to combat human rights violations and enhance the protection of human rights in Zimbabwe are provided.

Keywords: Human rights; judiciary; protection; enforcement; violations.

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1 Introduction

Several violations of the human rights of ordinary people and of defenders of human rights have been perpetrated by government officials and other related unscrupulous persons in Zimbabwe since the late 1980s.¹ It is widely acknowledged that such violations were perpetrated mostly by the government through its different organs for political and other related reasons.² A number of human rights violations were also easily committed against ordinary people and human rights defenders because there was no specific Constitution that adequately protected such people's fundamental human rights³ in Zimbabwe.⁴ Given this background, the article discusses the protection of human rights in Zimbabwe in the light of the Zimbabwe Constitution Amendment Act 20 of 2013.⁵ This is done in order to investigate whether the promotion, protection, enforcement and respect for human rights in Zimbabwe has now improved.⁶ To this end, the functions of selected national human rights institutions and other related role-players, namely civil society, the judiciary, the law enforcement organs and the Zimbabwe Human Rights Commission (ZHRC) are briefly discussed first. Secondly, the functions of selected regional and international institutions, namely the Southern African Development Community (SADC),⁷ the African Union (AU) and the United Nations (UN) are discussed in relation to the protection of human rights in Zimbabwe.

The authors concur with Reif that independent human rights institutions are established, promoted and protected through the Constitutions, laws and other relevant regulations in several jurisdictions.⁸ Accordingly, the main functions of independent human rights institutions are inter alia to promote and protect the fundamental human rights of all the people in their respective countries.⁹ These institutions can promote good governance in any country in a number of ways. For instance, independent human rights institutions and/or human rights ombudsman bodies can investigate human rights violations in order to improve the legality, fairness and accountability of any governmental administration.¹⁰Furthermore, national human rights institutions can enhance the protection of human rights in any state by acting as catalysts for the domestic implementation of its international human rights treaties and obligations.¹¹In relation to this, the authors submit that although human rights institutions in Zimbabwe, as in many other countries, do not have the power to make binding decisions in matters involving human rights violations and maladministration by the government or other persons, they could still play a pivotal role in the promotion and protection of human rights in Zimbabwe.¹² Thereafter, concluding remarks and possible recommendations that could be utilised to combat human rights violations and enhance the protection of human rights in Zimbabwe are provided.

 

2 The role of national human rights institutions and related role-players in Zimbabwe

2.1 The role of the judiciary

It is submitted that the judiciary plays a key role in the protection, promotion and fulfilling of human rights in any democratic country.¹³Accordingly, the independence of the judiciary does not only guarantee the protection of human rights but it also upholds the rule of law in any country.¹⁴ Be that as it may, it is submitted that the judiciary has in some instances failed to protect the people's fundamental human rights, especially before the enactment of the Zimbabwe Constitution 2013.¹⁵Notably, the executive and its organs have in some instances refused to enforce binding court orders and decisions that were seemingly unfavourable and detrimental to the aspirations of the Zimbabwe African National Union - Patriotic Front (ZANU-PF).¹⁶ For instance, it is reported that the army and police agencies refused to obey an order of the Supreme Court to release journalists Mark Chavunduka and Raymond Choto, who were allegedly illegally abducted and held by military security officers in connection with a story they had published about a failed coup in Zimbabwe.¹⁷ Similarly, Justice James Devittie ruled that the murder case involving the Movement for Democratic Change (MDC) activists Blessing Chiminya and Talent Mabika, who were allegedly executed by being burnt alive by some ZANU-PF activists during the 2000 elections, should be investigated by the relevant authorities.¹⁸ Nevertheless, no such investigations were successfully conducted by law enforcement authorities and the perpetrators of the aforesaid murders have not been prosecuted to date.¹⁹ Furthermore, the executive has sometimes manipulated, intimidated and issued unwarranted attacks on the judiciary and the legal profession as a whole in order to negatively influence the role of the judges²⁰ and lawyers in relation to the protection of human rights in Zimbabwe.²¹ In this regard, the executive's negative influence on the Zimbabwe Electoral Commission (ZEC) to oppose the initial ruling of the Electoral Court judge, Justice Tendai Uchena,²² who had correctly decided that Roy Bennett (MDC candidate) was eligible to contest for the Member of Parliament seat in Chimanimani constituency in March 2005, is a case in point.²³

As indicated above, the executive's direct and indirect interference with the independence of the judiciary could have caused the Zimbabwean judiciary to lose the respect, confidence and trust of the nation's citizens. For instance, some aggrieved persons in Zimbabwe have sought their remedies in the courts of other countries. The National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre²⁴is a case in point. Moreover, due to the increase in the number of cases of human rights violations in Zimbabwe, many such cases have been brought before the African Commission (AC) to date.²⁵ In this regard the AC has on several occasions submitted that there were no effective domestic remedies for the victims of alleged human rights violations in Zimbabwe.²⁶ This could imply that both the executive and the judiciary have sometimes failed to adequately and consistently protect the fundamental human rights of all the people in Zimbabwe.²⁷

It is encouraging, however, to note that the Zimbabwe Constitution 2013 has brought about several changes that are generally aimed at revamping the promotion and protection of all the people's human rights in Zimbabwe.²⁸ For instance, the independence of the judiciary is adequately entrenched under the Zimbabwe Constitution 2013, since all the relevant courts are expressly required to be independent and subject only to the Constitution and the law.²⁹ In the same light, all the courts are obliged to promote the rule of law and democratic governance by applying the law impartially, expeditiously and without fear, favour or prejudice.³⁰Furthermore, a number of guidelines are provided to enable members of the judiciary to exercise their duties ethically and professionally.³¹ For example, members of the judiciary are required to: recuse themselves from any political activities; timeously carry out their duties to ensure justice for all affected persons, and to safeguard human rights and the rule of law.³² Another change introduced by the Zimbabwe Constitution 2013 is that the Constitutional Court is now the highest court in relation to all constitutional matters in Zimbabwe.³³ Moreover, unlike the former position under the Lancaster House Constitution 1979,³⁴the Zimbabwe Constitution 2013 provides that the appointment of judges must be fair and transparent to ensure that relevantly qualified persons are appointed.³⁵The Zimbabwe Constitution 2013 also provides for the establishment of an independent and impartial Judicial Service Commission (JSC).³⁶

Nonetheless, it remains to be seen whether the provisions of the Zimbabwe Constitution 2013 will be consistently and effectively enforced to promote the independence of the judiciary and the protection of human rights in Zimbabwe.³⁷ For instance, members of the executive are still negatively interfering with the independence of the judiciary.³⁸ Put differently, despite the enactment of the relevant provisions of the Zimbabwe Constitution 2013, members of the executive are still having some direct and/or indirect interference with the independence of the judiciary in Zimbabwe. For instance, due to such interference from the executive there are still some incidents of human rights violations which the courts are either reluctant or unwilling to adjudicate upon to date. The unlawful delays that were associated with Linda Masarira (a human rights activist)'s trial and the recent criticism by some government officials of the High Court judgement by David Mangota J, who eventually ordered her release from prison after she had been incarcerated for about three months, is a case in point.³⁹ In this regard, despite the fact that regional and international laws are usually functional at state level only after their provisions have been incorporated into the relevant domestic or national laws, it is submitted that the independence of the judiciary should be protected in accordance with the relevant regional and international laws.⁴⁰

Furthermore, the powers of the executive, especially the president, in the appointment,⁴¹ removal⁴² and the remuneration of judges⁴³ still pose a threat to the independence of the judiciary and the protection of human rights in Zimbabwe. In other words, the fact that the president still has the power to initiate and unilaterally appoint a tribunal to investigate concerns relating to the removal of a judge⁴⁴ as well as the power to approve the salaries of judges⁴⁵ could give him an opportunity to directly interfere with the independence of the judiciary. For example, the president can reduce or increase the salary of judges, especially where the decisions of the judiciary could be detrimental to him or his government, in order to influence the decisions of the courts.⁴⁶ Moreover, notwithstanding the fact that the JSC is obliged to conduct public interviews of prospective judges,⁴⁷ the fact that the president still has a huge grip on the appointment of judges could continue to give rise to biased and/or politically-related appointments⁴⁸ that negatively affect the protection of human rights for all the people of Zimbabwe in the future.

2.2 The role of the ZHRC

The ZHRC was initially established in 2009 under the Lancaster House Constitution 1979,⁴⁹as an independent body that inter alia promotes the protection, awareness, development and attainment of fundamental human rights and related freedoms in Zimbabwe.⁵⁰ This indicates that prior to 2009 no such watchdog and/or oversight body for the promotion and protection of human rights existed in Zimbabwe.⁵¹ Moreover, at the time of the establishment of the ZHRC there was no enabling legislation for it to perform its functions effectively.⁵² Consequently, the ZHRC commenced its duties only in March 2010⁵³ and became fully operational in 2012 after the enabling legislation was enacted.⁵⁴ Accordingly, the ZHRC now performs its functions in terms of the Zimbabwe Constitution 2013⁵⁵and the Zimbabwe Human Rights Commission Act. The ZHRC now has relatively broad functions and powers that are enshrined in the Zimbabwe Constitution 2013.⁵⁶For example, the ZHRC now has the powers to: (a) promote the protection, development, attainment, awareness of and respect for human rights and related freedoms at all levels of society; (b) receive complaints from the public and take relevant action, monitor, assess and ensure the observance of human rights and freedoms; (c) protect the public against the abuse of power and maladministration by the government and officers of public institutions; (d) investigate itself or direct the Commissioner General of Police to investigate the conduct of any authority or person accused of violating other people's human rights and freedoms; and (e) encourage the Parliament and other relevant authorities to take effective measures for redress and/or the prosecution of offenders.⁵⁷ This could be prima facie proof that the government is now more committed to putting an end to human rights violations in Zimbabwe.⁵⁸

Nevertheless, despite the positive developments stated above, it is submitted that the mere fact that the ZHRC is now fully functional does not by itself guarantee the adequate promotion, realisation and protection of human rights in Zimbabwe.⁵⁹ In this regard it is submitted that several factors such as the independence, appointment of the chairperson and other members of the ZHRC, prevailing working conditions, accessibility, accountability and the actual mandate of the ZHRC must be carefully defined and provided to enable it to execute its functions effectively.⁶⁰ In this light and to promote the legitimacy and credibility of the ZHRC,⁶¹ the government and all the relevant stakeholders in Zimbabwe should consider putting adequate practical measures in place to ensure that the ZHRC is fully independent so that it can perform its functions without fear, favour or prejudice.⁶² The government and all the relevant stakeholders in Zimbabwe should also ensure that the members of the ZHRC are not involved in political activities.⁶³ In addition, the government and all the relevant stakeholders must ensure that the appointment and removal of members of the ZHRC are transparently and impartially done to avoid any biased removal of such members and/or the appointment of members that do not have the relevant expertise.⁶⁴ This transparency and impartiality is unlikely to be achieved in the near future, because the president is constitutionally empowered to appoint the chairperson and other members of the ZHRC without being expressly bound by the advice of the JSC and the Committee on Standing Rules and Orders (CSRO).⁶⁵ It is submitted that this flaw could give rise to biased and politically-related appointments to the ZHRC by the president. For instance, the appointment of the former chairperson of the ZHRC (Mr Jacob Mudenda, a former ZANU-PF Governor of Matabeleland North) was reportedly biased and unfairly conducted.⁶⁶ Mr Jacob Mudenda's political connections with ZANU-PF enabled him to be controversially elected as a ZANU-PF Member of Parliament in 2013 and as the speaker of Parliament while he was still the chairperson of the ZHRC.⁶⁷ In this light, the authors concur with Reif, who argues that individuals who have not been actively and/or previously involved in politics should be appointed to head or become members of national human rights institutions in any country.⁶⁸ Accordingly, individuals who were not previously or currently active members of any political party⁶⁹ and who have the relevant qualifications must be appointed to head or become members of the ZHRC.

It is further submitted that the government and all the relevant persons should provide conducive working conditions for the members of the ZHRC to enable them to execute their duties without any undue interference from the executive and/or without the fear of reprisals and dismissals.⁷⁰ Such conditions include adequate security of tenure,⁷¹protection from arbitrary removal from office,⁷² adequate resources and remuneration of members, and absolute financial independence of the ZHRC.⁷³ However, it remains to be seen whether these conditions will be adequately and consistently provided in Zimbabwe. For instance, the president solely is empowered to appoint members of the tribunal that hears any matter regarding the removal of the members of the ZHRC.⁷⁴Consequently, it is possible for the president to circumvent the relevant provisions of the Constitution⁷⁵and arbitrarily remove any member of the ZHRC from office by constituting the aforesaid tribunal on a political and/or partisan basis. Moreover, given the prevailing economic challenges in Zimbabwe, it is highly unlikely that the government will consistently promote the financial independence of the ZHRC and provide adequate resources and remuneration for the members of the ZHRC in the near future.⁷⁶

Furthermore, the ZHRC must be accessible⁷⁷ to all persons to enable them to enable them to timeously report human rights violations and/or seek redress for such violations. Put differently, the ZHRC should have offices in all the provinces (including rural towns and rural villages) of Zimbabwe to increase the awareness of the existence of legally protected human rights across the country.⁷⁸ In this regard, the government should provide adequate resources⁷⁹ to the ZHRC to enable it to conduct some human rights-related awareness and educational programmes for the benefit of all persons in Zimbabwe. In the same vein, the government should ensure that the ZHRC has a clearly defined and uncompromised broader mandate⁸⁰ for the protection and promotion of human rights in Zimbabwe. This could help the ZHRC to timeously investigate all the complaints of human rights violations from aggrieved persons in accordance with the Zimbabwe Constitution 2013⁸¹ and the relevant law.⁸²Be that as it may, it is interesting to note that the ZHRC is accountable for all its actions (omissions and commissions) to the Parliament, while the Parliament is legally obliged to consider any report from the ZHRC.⁸³ In this regard, it is submitted that such accountability and reporting duties on the part of the ZHRC could improve the protection of human rights in Zimbabwe if they are consistently enforced. Nonetheless, the fact that the ZHRC may submit its reports to Parliament only through the relevant Minister could give rise to obstructive bureaucracy and negative interference from the Minister. For instance, the Minister might reject a report from the ZHRC, especially if it criticises and/or exposes human rights violations by the government or its organs.

2.3 The role of civil society

Civil society includes families, academics, defenders of human rights,⁸⁴non-profit organisations (NPOs), trade unions, private voluntary organisations (PVOs), religious organisations, non-governmental organisations (NGOs) and other related civil society organisations (CSOs) that voluntarily promote the socio-economic and political interests of all the individuals in and citizens of a country.⁸⁵ All members of civil society have a key role in the promotion and protection of human rights⁸⁶ in many democratic countries, especially in developed jurisdictions. Put differently, civil society complements the role of national human rights institutions in the promotion, protection and realisation of human rights in most democratic countries.⁸⁷ Similar views are echoed by Maseng, who argues that the role and mandate of civil society is usually manifested in the following two ways:

One is democratic consolidation and the other is democratic transitions. In democratic consolidation civil society plays a role through the support and maintenance of democratic principles and institutions. Equally, in democratic transitions civil society plays a major role in mobilising pressure for political change.⁸⁸

In this light, some regional and international instruments have been agreed to globally to promote the role of civil society in the protection of human rights globally.⁸⁹ For example, the Declaration on Human Rights Defenders protects the rights of human rights defenders and CSOs globally. Such rights include inter alia the right to discuss and develop human rights ideas and advocate their acceptance,⁹⁰ the right to criticise state institutions and their agencies and/or to make proposals to improve their functioning,⁹¹ and the right to provide legal assistance or other relevant assistance to promote human rights globally.⁹² Nonetheless, despite these international efforts to entrench the significance of the defenders of human rights and other members of civil society in the promotion and protection of human rights, their work has been severely undermined and limited in Zimbabwe, especially from the 1990s to date.⁹³In other words, although both the state and civil society working together contributed significantly to the attainment of independence and the development of Zimbabwe in the late 1970s and early 1980s,⁹⁴ very little or no such co-operation and contribution were achieved by the state and civil society in Zimbabwe from the 1990s to date. For instance, in its attempt to promote and protect human rights in Zimbabwe, civil society has had several obstacles placed in its way, such as intimidation and detention by the police, violent disruption of its assemblies and protests by the police and members of the ZANU-PF, propaganda, threats of closure of its organisations, frivolous court charges, and deterrence from participating in international and regional meetings from the 1990s to date.⁹⁵ It is submitted that these obstacles were imposed on all members of civil society by the government in order to discourage them from exposing human rights violations in Zimbabwe.⁹⁶

Furthermore, the government has impeded the work of human rights defenders and other members of civil society by enacting repressive legislation and regulations such as the Private Voluntary Organisations Act (PVOA),⁹⁷ the Public Order and Security Act (POSA),⁹⁸ the Broadcasting Services Act,⁹⁹the Access to Information and Protection of Privacy Act (AIPPA)¹⁰⁰ and the Criminal Law (Law Reform and Codification) Act.¹⁰¹This legislation has been effectively employed by the government to threaten, harass and intimidate all members of civil society in Zimbabwe.¹⁰² For instance, the POSA is constantly utilised by the police and other law enforcement agencies to ban bona fide public meetings and activities of members of civil society in Zimbabwe.¹⁰³ Likewise, the work of the NGOs and the PVOs has been negatively restricted by the PVOA, which inter alia obliges all the NGOs, the PVOs and related welfare services organisations (WSOs) to register with the government.¹⁰⁴ This presents the government with a chance to arbitrarily reject bona fide registration applications for certain NGOs, PVOs and/or WSOs, especially those that are allegedly linked to opposition political parties.¹⁰⁵ Moreover, in order to control the activities of NGOs, PVOs and WSOs, the PVOA restricts funding or donations to all CSOs (including NGOs, PVOs and WSOs) by foreign organisations.¹⁰⁶ This has severely impeded the protection of human rights and other related operations of many NGOs, PVOs and WSOs in Zimbabwe, and as a result, some of the NGOs have been forced to close down due to financial problems.¹⁰⁷ In this regard, it is submitted that the government should consider ratifying the Declaration on Human Rights Defenders¹⁰⁸ in order to protect human rights defenders and other members of the CSOs against intimidation, reprisals and violence in Zimbabwe.¹⁰⁹ In the same vein, the government should adopt practical measures that: (a) create a conducive environment for all defenders of human rights, and other members of the CSOs; (b) promote and respect all the national human rights institutions that were established in accordance with the Zimbabwe Constitution 2013.¹¹⁰

2.4 The role of law enforcement organs

2.4.1 The duty to protect and uphold the law

Members of the security services and/or law enforcement agencies¹¹¹ play a crucial role in the implementation of the law to protect all people against human rights violations.¹¹² Accordingly, all law enforcement agencies and other relevant authorities should consistently strive to protect all the people, especially vulnerable individuals, against human rights violations.¹¹³ All the law enforcement agencies in Zimbabwe are obliged to carefully and consistently execute their duties in terms of the Zimbabwe Constitution 2013, the relevant law, and international standards.¹¹⁴ For instance, the ZRP is obliged to perform its duties without fear or favour and in accordance with regional and international bodies.¹¹⁵ The Zimbabwe Constitution 2013 also provides that the ZRP is responsible for detecting, investigating, protecting and securing the lives and property of people against crime.¹¹⁶ The ZRP is further obliged to preserve and maintain internal security as well as law and order in Zimbabwe.¹¹⁷ Similar functions are also bestowed upon the ZRP in terms of the Police Act.¹¹⁸Likewise, all the members of the intelligence services must perform their duties in a non-partisan manner and in accordance with the Zimbabwe Constitution 2013.¹¹⁹Prisons and correctional services members are also required to be non-partisan in order for them to treat all the offenders and/or accused persons in a fair and lawful manner, in accordance with the Zimbabwe Constitution 2013.¹²⁰Moreover, the Zimbabwe Constitution 2013 stipulates that all the members of the defence forces are obliged to respect the fundamental rights and freedoms of all persons in a nonpartisan and professional manner.¹²¹ Despite these constitutional efforts to enhance human rights protection, members of the opposition political parties, civil society activists and other defenders of human rights have allegedly sometimes been subjected to violence, abduction and physical torture by the ZRP, the CIO and soldiers in Zimbabwe.¹²²

2.4.2 The duty not to use excessive force

In Zimbabwe, the use of force in effecting arrest by all law enforcement agencies is governed by the Criminal Procedure and Evidence Act.¹²³ For instance, all law enforcement officers, especially police officers, are required to use only a degree of force that is reasonably justifiable in the circumstances of a case for overcoming any resistance by the perpetrator.¹²⁴ Where a person is killed as a result of the use of reasonably justifiable force, then the killing is lawful.¹²⁵ In other words, the police and other law enforcement officials may use force only when it is strictly necessary and reasonable in the circumstances in order to prevent crime and/or effect an arrest in accordance with the relevant legislation and practice.¹²⁶ Despite this, the law enforcement officers, especially the police officers, have sometimes overstepped their powers and arbitrarily used excessive force against defenders of human rights and/or activists, members of the opposition political parties, and lawyers for human rights.¹²⁷ For instance, in 2011 Amnesty International reported that the ZRP was associated with the arbitrary use of excessive force and numerous cases of torture, assault and violence against human rights activists and defenders, members of opposition political parties, and those who criticised government policies.¹²⁸ In addition, it is submitted that the ZRP's arbitrary use of excessive force, such as using live ammunition to disperse peaceful demonstrations, has culminated in the death of many human rights activists, such as Gift Tandare, who was an MDC supporter.¹²⁹ Furthermore, in 2011 the ZRP violently disrupted a peaceful prayer meeting in Harare with teargas and canisters when they stormed a church hall during prayer for peace and dispersed the congregation, which included several church members and community leaders.¹³⁰

2.4.3 The duty to respect and uphold the rule of law

The rule of law could be defined as the observed body of international accords and treaties, state constitutions and written laws which embody the human rights traditions accepted virtually universally, and which protect individuals and order society in the nations of the world.¹³¹ The rule of law is important for the strengthening of democracy in any country, and all the law enforcement agencies in Zimbabwe should therefore carefully exercise their duties¹³² with due regard to the relevant human rights standards and the rule of law.¹³³ In this light it is submitted that all the law enforcement agencies in Zimbabwe should carefully protect all the human rights that are provided in the Zimbabwe Constitution 2013,¹³⁴ especially, the rights to life; freedom from torture or cruel, inhuman or degrading treatment or punishment; liberty; privacy; human dignity; the freedom to demonstrate and petition; the freedom of expression, assembly and association; and the freedom to demonstrate and petition.¹³⁵ It is also submitted that all the law enforcement agencies should consistently cooperate with the members of the public to enhance the protection of human rights in Zimbabwe.¹³⁶ For instance, it is reported that the law enforcement agencies, especially the ZRP, have to date failed to consistently uphold the rule of law in politically-related matters involving members of the opposition political parties and other human rights defenders in Zimbabwe.¹³⁷ Moreover, it is reported that the law enforcement agencies, especially the ZRP, have sometimes disregarded the law and acted with contempt for the judiciary and court decisions in Zimbabwe.¹³⁸ This has undermined the role of the judiciary and the rule of law in Zimbabwe. For instance, the ZRP and the CIO have sometimes allegedly conducted unlawful or arbitrary arrests¹³⁹ and have tortured the defenders of human rights and members of the opposition political parties.¹⁴⁰ Consequently, the protection and promotion of human rights has been severely compromised and negatively affected in Zimbabwe. In this regard, it is submitted that all the law enforcement agencies should execute their duties in accordance with the Zimbabwe Constitution 2013 and without any interference from the government.¹⁴¹ It is also submitted that all the law enforcement agencies should not be directly or indirectly affiliated to any political party to combat the biased application of the law. In addition, any such law enforcement officials that contravene the Zimbabwe Constitution 2013 by their unlawful and biased application of the law should be tried in the relevant courts and punished without fear or favour.

 

3 The role of regional and international human rights institutions and related role-players in Zimbabwe

3.1 The role of the UN

It is submitted that independent human rights institutions (HRIs) play an important role in the protection and promotion of human rights globally.¹⁴²The significance of the HRIs has been recognised by the UN and its relevant organs since 1946.¹⁴³ For instance, the UN Commission on Human Rights introduced the Guiding Principles Relating to the Status of National Institutions (Paris Principles) in 1992, and they were adopted by the General Assembly in 1993.¹⁴⁴ These Paris Principles provide useful guidelines on the formation of human rights institutions as well as the standards and principles that must be employed by such institutions in order for them to perform their functions effectively.¹⁴⁵ The Paris Principles also provide the assessment and accreditation criteria for any new or existing HRIs, which are usually employed by the International Coordinating Committee's Sub-Committee on Accreditation (ICC SCA).¹⁴⁶The ICC SCA is empowered to review, analyse and make recommendations regarding any accreditation application in order to ensure that all the HRIs in the member countries comply with the Paris Principles.¹⁴⁷The ICC of HRIs develops and co-ordinates the joint programmes and/or activities of HRIs globally.¹⁴⁸ Moreover, the ICC of HRIs supports the creation of HRIs and it works hand in glove with international human rights organisations such as the OHCHR.¹⁴⁹

Furthermore, the UN General Assembly adopted the Basic Principles on the Independence of the Judiciary in 1985¹⁵⁰ in order to enhance the protection of the independence of the judiciary in all jurisdictions globally. These Principles provide inter alia that the independence of the judiciary shall be constitutionally guaranteed by states. The same Principles stipulate that all governments and other institutions must respect and observe the independence of the judiciary in order to ensure that the judiciary executes its duties in accordance with the law, without any undue interference from the executive or any other person.¹⁵¹ Furthermore, the UN Centre for Human Rights has adopted criteria that must employed by all relevant persons in order to determine the independence of HRIs.¹⁵²

Nonetheless, despite these UN efforts and the importance of the universal protection of human rights as recognised by the Vienna Declaration and Programme of Action¹⁵³and the UDHR, very little progress has been achieved in this regard in Zimbabwe to date.¹⁵⁴ For instance, as earlier stated,¹⁵⁵ various human rights activists, members of the opposition political parties and human rights defenders have been assaulted, abducted, tortured, arbitrarily detained and charged with frivolous cases in Zimbabwe since the late 1980s. This could have been worsened by the fact that Zimbabwe, despite prohibiting torture in the Zimbabwe Constitution 2013,¹⁵⁶has to date not ratified the UN Convention against Torture. Moreover, the offering of most UN programmes to promote, protect and ensure the realisation of human rights, such as the UN election observers and humanitarian aid, have been severely restricted in Zimbabwe to date.

3.2 The role of the AU

In spite of its shortcomings, the AU has made considerable efforts to condemn the violation of the people' rights in Zimbabwe, especially from the late 1990s to date. For instance, the AC has on several occasions held that the ZANU-PF government was in violation of several provisions of the African Charter on Human and Peoples' Rights (ACHPR),¹⁵⁷ particularly during the general elections.¹⁵⁸ The AC has to date received several communications and complaints relating to human rights violations perpetrated by the ZANU-PF government.¹⁵⁹ In relation to this, the AC has sometimes ruled that the ZANU-PF government was violating the relevant provisions of the ACHPR through repressive law, violence and torture against human rights activists, political activists and other defenders of human rights.¹⁶⁰ The ZANU-PF government was also violating the relevant provisions of the ACHPR,¹⁶¹ that oblige all member states to respect and protect the independence of the judiciary.¹⁶²

Furthermore, although the ACHPR provides for the establishment of independent HRIs to protect and promote human rights in Africa,¹⁶³ the role of HRIs has been severely compromised and negatively impacted by the ZANU-PF government in Zimbabwe to date.¹⁶⁴ The ACHPR also obliges all HRIs to assist the AC in the implementation of its provisions and the promotion of human rights in Africa.¹⁶⁵ Be that as it may, the ZHRC has found it difficult to consistently comply with the provisions of the ACHPR, in part due to interference from the executive and lack of adequate funding for its programmes.¹⁶⁶ This has also negatively affected the co-operation of ZHRC and other related regional and international human rights institutions such as the International Coordinating Committee of National Human Rights Institutions (ICCNHRI) and the Network of African National Human Rights Institutions (NANHRI).¹⁶⁷ More may still need to be done on the part of the AU in order to effectively discourage human rights violations in Zimbabwe. This follows the fact that the AU failed to condemn the election-related violence, rigging and other human rights abuses that were allegedly committed by the ZANU-PF government in 2008 and 2013. In this regard, it is submitted that the ZANU-PF government should abide by the Zimbabwe Constitution 2013 and other relevant regional and international instruments in order to enhance the protection of human rights in Zimbabwe.¹⁶⁸

3.3 The role of the SADC

3.3.1 The role of the SADC Tribunal

The SADC is the Southern African economic community. It promotes inter alia the creation of a free and common trade market amongst its members.¹⁶⁹ In a bid to achieve this, the SADC established the SADC tribunal on 18 August 2005 in accordance with the SADC Treaty of 1992, and the court commenced its duties on 18 November 2005.¹⁷⁰ The SADC tribunal was empowered to ensure the proper implementation of the SADC Treaty and its subsidiary instruments by all member states.¹⁷¹ Moreover, the SADC tribunal was authorised to hear any disputes that arose from the member states. The SADC Treaty does not, though, expressly provide for the jurisdiction of the SADC Tribunal in relation to human rights disputes.¹⁷² Consequently, the SADC Tribunal relied on the related provisions in the SADC Treaty¹⁷³and the SADC Protocol of the Tribunal and Rules of Procedure of 2000 (SADC Protocol 2000)¹⁷⁴ to hear matters involving human rights violations. However, the affected persons could bring an action against a state only when they had exhausted all available domestic remedies in their jurisdictions.¹⁷⁵

Notwithstanding the fact that the SADC Treaty does not expressly refer to any specific human rights instruments and/or the protection of human rights except in its article 4, the SADC has to date made considerable efforts to ensure the protection of civil, political and other human rights in Zimbabwe.¹⁷⁶ In this regard it is submitted that the SADC should consistently mandate its member states to promote and protect human rights.¹⁷⁷ Zimbabwe, like any other member of the SADC, must be bound by the relevant provisions of the SADC Treaty, which promote the protection of human rights, democracy and the rule of law.¹⁷⁸ The SADC Tribunal's efforts to hear and resolve human rights-related disputes were impeded in Zimbabwe. Thus, Mike Campbell and other affected farm owners filed cases with the SADC Tribunal alleging that their rights had been negatively affected by the Land Reform Programme and land invasions which culminated in their farms being forcefully taken by the government of Zimbabwe.¹⁷⁹ The SADC Tribunal granted judgment in favour of Campbell and 77 other farm owners and stated that the government of Zimbabwe had violated articles 4(c) and 6(2) of the SADC Treaty. However, the government of Zimbabwe failed to comply with the judgment of the SADC Tribunal as well as its subsequent orders.¹⁸⁰Subsequently the Zimbabwean government announced its intention to withdraw from the SADC Protocol 2000 in November 2009, arguing that it did not bind them, although they had agreed to both the SADC Protocol 2000 and the amended SADC Treaty.¹⁸¹Eventually the SADC Tribunal was suspended at the 2010 SADC Summit. On 17 August 2012 the Maputo SADC Summit resolved that a new SADC Tribunal should be established, but that its mandate relative to human rights would be confined to the interpretation of the SADC Treaty and its relevant Protocols in cases of disputes between member states.¹⁸²

It is submitted that the removal of the human rights jurisdiction of the SADC Tribunal could give rise to more human rights abuses and the weakening of the rule of law in the SADC member states.¹⁸³ Moreover, it is submitted that the suspension of the SADC Tribunal has left SADC citizens with few or no regional remedies for any human rights violations by their governments.¹⁸⁴ In this regard the authors concur with Mogoeng J, who correctly argues that the SADC Tribunal was established inter alia to ensure that the SADC member states did not undermine the objectives of the SADC Treaty by violating people's human rights with impunity.¹⁸⁵Accordingly, a new SADC Tribunal that has the legal jurisdiction to hear human rights disputes should be speedily established to effectively enhance the protection of human rights in the SADC member states.

3.3.2 The role of the SADC Organ on Politics, Defence and Security

The SADC established the Organ on Politics, Defence and Security in 1996 (SADC Organ on Politics)¹⁸⁶ as an institutional framework for coordinating policies and related aspects on politics, defence, and security. Consequently, the SADC enacted the Protocol on Politics, Defence and Security Co-operation on 14 August 2001 (SADC Protocol on Politics) in order to provide a legal framework and objectives for the SADC Organ on Politics. The SADC Protocol on Politics enumerates various objectives for the SADC Organ on Politics such as: (a) promoting peace and security across Southern Africa; (b) protecting the SADC region from instability due to the breakdown of law and order; (c) developing a common foreign policy throughout the region; (d) cooperating on matters related to security and defence; (e) encouraging the observance of international human rights conventions and treaties; (f) developing democratic institutions and practices; and (g) encouraging the observance of universal human rights.¹⁸⁷ In order to implement these objectives, the SADC Protocol on Politics provides a clear jurisdiction of the SADC Organ on Politics as well as an operating structure consisting of the Organ, the chairperson, the Troika and various committees.¹⁸⁸ Accordingly, the SADC Organ on Politics is operated on a Troika basis in the SADC region. The SADC Protocol on Politics also provides guidelines for the enforcement of and co-operation with international agreements.¹⁸⁹ In relation to this, the SADC Protocol on Politics was amended on 8 September 2009 to incorporate regional policing co-operation structures through the Southern African Regional Police Chiefs Co-operation Organisation (SARPCCO).¹⁹⁰

Despite these positive efforts to ensure peace, democracy and the protection of human rights in the SADC, the SADC Organ on Politics has to date struggled to consistently enforce the SADC Protocol on Politics in a number of member countries such as Zimbabwe, Lesotho, the Democratic Republic of Congo, Swaziland and Angola.¹⁹¹ For instance, despite numerous complaints and reports of civil, political and other human rights violations in Zimbabwe¹⁹² being filed with the SADC Organ on Politics by the opposition political parties and other defenders of human rights, the SADC Organ on Politics is yet to take any meaningful action to effectively discourage such violations in Zimbabwe.¹⁹³

3.4 The role of the SARPCCO

Zimbabwe is a member of the SARPCCO. The SARPCCO¹⁹⁴ was incorporated into the SADC Protocol on Politics to enhance regional policing and human rights norms in the SADC.¹⁹⁵ The SARPCCO provides principles, guidelines and codes of conduct that are generally aimed at promoting human rights and effective law enforcement in the SADC.¹⁹⁶Although some of the SARPCCO guidelines are not binding, they are generally enforced in accordance with the international law and related bodies that promote human rights and democracy in society.¹⁹⁷ The SARPCCO Code of Conduct outlines police officers' duties and how such duties may be executed to protect people's human rights in the SADC.¹⁹⁸For instance, police officers are prohibited from using excessive force, torture and any other inhuman and degrading treatment or punishment against accused persons.¹⁹⁹

Despite the existence of these SARPCCO guidelines and the Code of Conduct, the ZRP has sometimes failed to abide by its constitutional obligations and violated people's human rights, especially during elections, peaceful demonstrations and petitions.²⁰⁰ It remains to be seen whether the ZRP will in future consistently abide by the SARPCCO Code of Conduct, principles and guidelines to promote and protect human rights in Zimbabwe.²⁰¹

 

4 Concluding remarks

As indicated above,²⁰² the Zimbabwe Constitution 2013 brought about some key changes, such as the protection of the judiciary and the rule of law as well as the establishment of the Constitutional Court, in order to revamp the promotion and protection of all people's human rights in Zimbabwe. Nonetheless, members of the executive are still deleteriously interfering with the independence of the judiciary. In this regard, it is submitted that the independence of the judiciary should be protected in accordance with relevant regional and international law.²⁰³ It is further suggested that several factors such as the independence of the ZHRC, the appointment of its chairperson and other members, the prevailing working conditions, accessibility, accountability and the actual mandate of the ZHRC must be carefully defined to enable it to execute its functions effectively.²⁰⁴ Moreover, the government should consider adopting practical measures that promote the functions of all defenders of human rights, national human rights institutions and other members of CSOs in accordance with the Zimbabwe Constitution 2013.²⁰⁵Likewise, all law enforcement agencies should execute their duties in accordance with the Zimbabwe Constitution 2013 and without any negative interference from the executive.²⁰⁶ Lastly, it is recommended that the ZANU-PF government should abide by other relevant regional and international instruments in order to enhance the protection of human rights in Zimbabwe.²⁰⁷

 

Bibliography

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South Africa

Constitution of the Republic of South Africa, 1996

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Zimbabwe

Access to Information and Protection of Privacy Act [Chapter 10:27] 1 of 2002 (AIPPA)

Access to Information and Protection of Privacy Amendment Act 20 of 2007

Broadcasting Services Act 3 of 2001

Broadcasting Services Amendment Act 19 of 2007

Criminal Law (Law Reform and Codification) Act [Chapter 9:23] 23 of 2004

Criminal Procedure and Evidence Act [Chapter 9:07]

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(Windhoek Declaration) SARPCCO Code of Conduct (2001)

Universal Declaration of Human Rights (1948)

United Nations Basic Principles on the Independence of the Judiciary (1985)

United Nations Code of Conduct for Law Enforcement Officials (1979)

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)

United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms (1999)

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List of Abbreviations

AC African Commission

ACHPR African Charter on Human and Peoples' Rights

AHRLJ African Human Rights Law Journal

AIPPA Access to Information and Protection of Privacy Act AU African Union

CILSA Comparative and International Law Journal of Southern Africa

CIO Central Intelligence Organisation

CSOs Civil society organisations

CSRO Committee on Standing Rules and Orders

Harv Hum Rts J Harvard Human Rights Journal

HR L Rev Human Rights Law Review

HRIs Human rights institutions

ICCNHRI International Coordinating Committee of National Human Rights Institutions

ICC SCA International Coordinating Committee's Sub-Committee on Accreditation

IJHSS International Journal of Humanities and Social Science

IJHSSI International Journal of Humanities and Social Science Invention J Afr L Journal of African Law

JSC Judicial Service Commission

LDD Law, Democracy and Development

MDC Movement for Democratic Change

Midlands State U L Rev Midlands State University Law Review

NANHRI Network of African National Human Rights Institutions

NGOs Non-governmental organisations

OHCHR Office of the High Commissioner for Human Rights

PELJ Potchefstroom Electronic Law Journal

POSA Public Order and Security Act

PVOA Private Voluntary Organisations Act

PVOs Private voluntary organisations

SADC Southern African Development Community

SADCT Southern African Development Community

Tribunal

SAPR/PL Suid-Afrikaanse Publiekreg / South African

Public Law

SAPS South African Police Service

SARPCCO Southern African Regional Police Chiefs Cooperation Organisation UDHR Universal Declaration of Human Rights

UN United Nations

UNDP United Nations Development Programme

WSOs Welfare services organisations

ZANU-PF Zimbabwe African National Union - Patriotic Front

ZEC Zimbabwe Electoral Commission

ZHRC Zimbabwe Human Rights Commission

ZRP Zimbabwe Republic Police

 

 

Date published 13 December 2016

 

 

Editor Prof Wian Erlank
* Howard Chitimira. LLB, LLM (UFH), LLD (NMMU). Associate Professor, Faculty of Law, North-West University. E-mail: Howard.Chitimira@nwu.ac.za.
** Pontsho Mokone. LLB, LLM (NWU). E-mail: pontshophila@gmail.com. This article was influenced in part by Mokone's LLB mini-dissertation entitled An Analysis of Torture as a Human Rights Violation in Zimbabwe. In this regard, she wishes to acknowledge the expert input of Prof H Chitimira.
1 See Kersting Constitution in Transition 7-309, on the promotion and protection of fundamental human rights in Zimbabwe; Mhodi 2013 SAPR/PL 383, 384-397; International Crisis Group Zimbabwe: Waiting for the Future 2-19; Amnesty International 2013 Zimbabwe: Human Rights Agenda 5, 6-22; De Bourbon 2003 AHRLJ 195, 196-221.
2 Dziva, Dube and Manatsa 2013 IJHSSI 83-91; also see related comments by Amnesty International 2006 http://www.amnesty.org/en/library/asset/AFR46/005/2006/en/dom-AFR460052006en.html; Zimbabwe Human Rights NGO Forum Zimbabwe Human Rights 1, 2-67; Amnesty International 2013 Walk the Talk 6-30; Anon 2006 http://www.kubatana.net/html/archive/urbdev/060601reuters.asp?sect or=URBDEV&year=0&range_start=1; Gwenhamo, Fedderke and de Kadt 2012 Journal of Peace Research 593, 594-601.
3 These also include their civil and political rights as well as their socio-economic rights.
4 Dzinesa Zimbabwe's Constitutional Reform Process 1, 2-13; Manyatera and Fombad 2014 CILSA 89, 90-108; Chiduza 2014 PELJ 368, 369-409; Mavedzenge and Coltart 2014 https://constitutionallythinking.files.wordpress.com/2014/10/a-constitutional-law-guide-towards-understanding-zimbabwes-fundamental-socio-economic-and-cultural-human-rights.pdf 5-57.
5 Zimbabwe Constitution Amendment Act 20 of 2013, hereinafter referred to as the Zimbabwe Constitution 2013. Notably, this article is mainly focused on the role of selected human rights institutions and related role-players in the protection of human rights in Zimbabwe under the Zimbabwe Constitution 2013. Consequently, a detailed comparative analysis of such human rights protection under the Lancaster House Constitution of Zimbabwe Order 1979 (SI 1979/1600) as amended by Amendment Act 1 of 2009 which introduced amendment 19 of 2009 on 13 February 2009 (Lancaster House Constitution 1979) and the Zimbabwe Constitution 2013 is beyond the scope of this article.
6 Robertson Judicial Independence 3, 4-5; Gwenhamo, Fedderke and de Kadt 2012 Journal of Peace Research 594-601; Reif 2000 Harv Hum Rts J 1-69.
7 Malan and Cilliers SADC Organ on Politics, Defence and Security 1-11.
8 Reif 2000 Harv Hum Rts J 3-7.
9 Reif 2000 Harv Hum Rts J 1-7.
10 Reif 2000 Harv Hum Rts J 1-3.
11 Reif 2000 Harv Hum Rts J 1-3.
12 Sections 232-237 of the Zimbabwe Constitution 2013.
13 Asmal and James Spirit of the Nation 21.
14 Chiduza Significance of Judicial Independence 57-59.
15 Zimbabwe Human Rights Non-Governmental Organisation Forum 2005 http://hrforumzim.org/wp-content/uploads/2010/06/SR23-Zimbabwe-Facts-and-Fictions-An-Audit-of-the-Recommendations-of-the-Fact-Finding-Mission-of-the-ACHPR1.pdf 1, 23-31; Madhuku 2002 J Afr L 232-258, for further related discussion.
16 Zimbabwe Human Rights Non-Governmental Organisation Forum 2005 http://hrforumzim.org/wp-content/uploads/2010/06/SR23-Zimbabwe-Facts-and-Fictions-An-Audit-of-the-Recommendations-of-the-Fact-Finding-Mission-of-the-ACHPR1.pdf 24.
17 Mark Chavunduka and Raymond Choto v Ministry of Defence (2000) ZLR (SC).
18 Zimbabwe Human Rights Non-Governmental Organisation Forum 2005 http://hrforumzim.org/wp-content/uploads/2010/06/SR23-Zimbabwe-Facts-and-Fictions-An-Audit-of-the-Recommendations-of-the-Fact-Finding-Mission-of-the-ACHPR1.pdf 27.
19 Zimbabwe Human Rights Non-Governmental Organisation Forum 2005 http://hrforumzim.org/wp-content/uploads/2010/06/SR23-Zimbabwe-Facts-and-Fictions-An-Audit-of-the-Recommendations-of-the-Fact-Finding-Mission-of-the-ACHPR1.pdf 27.
20 Madhuku 2006 SAPR/PL 345, 346-369, for related comments.
21 Zimbabwe Human Rights Non-Governmental Organisation Forum 2005 http://hrforumzim.org/wp-content/uploads/2010/06/SR23-Zimbabwe-Facts-and-Fictions-An-Audit-of-the-Recommendations-of-the-Fact-Finding-Mission-of-the-ACHPR1.pdf 25-30.
22 Anon 2005 http://www.zimbabwesituation.com/old/mar18_2005.html#link10 page number unknown.
23 Roy Leslie Bennett v The Constituency Election Officer, Chimanimani Constituency EP1/05; Zimbabwe Human Rights Non-Governmental Organisation Forum 2005 http://hrforumzim.org/wp-content/uploads/2010/06/SR23-Zimbabwe-Facts-and-Fictions-An-Audit-of-the-Recommendations-of-the-Fact-Finding-Mission-of-the-ACHPR1.pdf 28.
24 National Commissioner of the South African Police Service v Southern Africa Human Rights Litigation Centre 2013 ZASCA 168 (27 November 2013) were it was held inter alia that the South African Police Service (SAPS) was obliged to investigate the crimes against humanity of torture that were allegedly committed against the members of the MDC by the members of the Zimbabwe Republic Police (ZRP), in terms of the Constitution of the Republic of South Africa, 1996 (Constitution of South Africa), the International Criminal Court Act 27 of 2002 and the international law obligations of South Africa; also see Mike Campbell (Pty) Ltd v Minister of National Security Responsible for Land Reform and Resettlement (124/06) [2008] ZWSC 1; Government of the Republic of Zimbabwe v Fick 2013 5 SA 325 (CC), were it was held inter alia that the government of Zimbabwe was obliged to compensate the evicted farmers in terms of the initial order of the Southern African Development Community Tribunal (SADCT).
25 Such cases are usually filed in accordance with art 56 of the African Charter on Human and Peoples' Rights (1981) (African Charter); see further Chiduza Significance of Judicial Independence 57.
26 For instance, see Zimbabwe Lawyers for Human Rights v The Government of Zimbabwe Muzerengwa Buhera ACHPR Communication No 306/05; Zimbabwe Lawyers for Human Rights, SADC Lawyers Association, Law Association of Zambia, Tanzania Law Society v the Government of Zimbabwe ACHPR/LPROT/COMM/ZIM/321; Zimbabwe Lawyers for Human Rights, Human Rights Trust of Southern Africa v The Government of Zimbabwe Forced Evictions Hopley - Porta Farm and Hatcliffe Communities ACHPR Communication No 314/05. See further Chiduza Significance of Judicial Independence 57.
27 Chiduza Significance of Judicial Independence 57.
28 Sections 162-193 of the Zimbabwe Constitution 2013.
29 Section 164(1) of the Zimbabwe Constitution 2013. Notably, despite the fact that s 79B of the Lancaster House Constitution 1979 also promoted the independence of the judiciary, its provisions were narrower than those contained in s 164 of the Zimbabwe Constitution 2013. For instance, s 79B of the Lancaster House Constitution 1979 did not emphasise the importance of the impartiality and effectiveness of the courts for the purposes of promoting the rule of law and democratic governance in Zimbabwe. Thus, unlike s 164 of the Zimbabwe Constitution 2013, s 79B of the Lancaster House Constitution 1979 did not expressly provide any possible measures on how the state could assist the courts to promote and protect the impartiality, dignity, accessibility, effectiveness and independence of the judiciary in Zimbabwe.
30 Sections 164(1) and (2) of the Zimbabwe Constitution 2013.
31 Section 165 of the Zimbabwe Constitution 2013.
32 Section 165 of the Zimbabwe Constitution 2013.
33 Section 167 read with ss 166 and 163 of the Zimbabwe Constitution 2013.
34 Section 79B read with ss 84 to 87 of the Zimbabwe Constitution 2013.
35 Section 180(2) of the Zimbabwe Constitution 2013; see further Chiduza Significance of Judicial Independence 274.
36 Sections 189-191 of the Zimbabwe Constitution 2013; Chiduza Significance of Judicial Independence 274-275.
37 Chiduza Significance of Judicial Independence 273-275.
38 Anon 2015 http://www.newzimbabwe.com/news-20865-Mugabe+bullies+judges+on+Mutasa,+MDC-T/news.aspx page number unknown; Anon 2015 http://www.newzimbabwe.com/news-21072-Moyo+defends+Mugabe+over+judges+threat/news.aspx page number unknown; Robertson Judicial Independence 4-5.
39 Ncube 2016 https://www.newsday.co.zw/2016/09/27/high-court-frees-pro-democracy-activist-masarira/ page number unknown.
40 See Principle 1 of the United Nations Basic Principles on the Independence of the Judiciary (1985); the International Bar Association Minimum Standards of Judicial Independence (1982); the Montreal Universal Declaration on the Independence of Justice (1983); art 10 of the Universal Declaration of Human Rights (1948) (UDHR); art 7 of the African Charter; the United Nations Basic Principles on the Independence of the Judiciary (1985); the Latimer House Guidelines on the Independence of the Judiciary (1998); and the Universal Principles of Judicial Independence for the SADC (2004). See further Slinn "Latimer House Guidelines for the Commonwealth" 17-29.
41 Section 180 of the Zimbabwe Constitution 2013.
42 Sections 187(2)-(8), (10) of the Zimbabwe Constitution 2013.
43 Section 188(1) of the Zimbabwe Constitution 2013.
44 Sections 187(2)-(8), (10) of the Zimbabwe Constitution 2013.
45 Section 188(1) of the Zimbabwe Constitution 2013; Chiduza Significance of Judicial Independence 271-275.
46 See related comments by Anon 2014 http://www.newzimbabwe.com/news-13854-chidyausiku+attacks+govt+over+salaries/news.aspx page number unknown.
47 Section 180(2)(c) of the Zimbabwe Constitution 2013.
48 For instance, it has remained questionable why Godfrey Guwa Chidyausiku was appointed the Chief Justice in Zimbabwe although he is directly affiliated to the ZANU-PF, where he was a Member of Parliament and later appointed the deputy Minister of Local Government and Housing and the deputy Minister of Justice. See Anon 2001 http://allafrica.com/stories/200108100274.html 1; Machipisa 2001 http://www.ipsnews.net/2001/03/politics-zimbabwe-a-top-judge-appointed-new-chief-justice/ 2.
49 See s 100R of the Lancaster House Constitution 1979.
50 Maveneka 2015 https://erc.undp.org/evaluation/documents/download/8775 5.
51 Chiduza Significance of Judicial Independence 293.
52 Maveneka 2015 https://erc.undp.org/evaluation/documents/download/8775 5.
53 Maveneka 2015 https://erc.undp.org/evaluation/documents/download/8775 5.
54 Zimbabwe Human Rights Commission Act [Chapter 10:30] 2 of 2012, hereinafter referred to as Zimbabwe Human Rights Commission Act; see further Chiduza Significance of Judicial Independence 293.
55 Sections 242-244 of the Zimbabwe Constitution 2013.
56 Section 243 of the Zimbabwe Constitution 2013.
57 Section 243 of the Zimbabwe Constitution 2013.
58 Chiduza 2015 LDD 148-174; Zimbabwe Human Rights Non-Governmental Organisation Forum 2011 http://hrforumzim.org/wp-content/uploads/2011.pdf 1.
59 Chiduza 2015 LDD 151-171; Chiduza Significance of Judicial Independence 293294; Reif 2000 Harv Hum Rts J 23.
60 Chiduza 2015 LDD 151-171; Chiduza Significance of Judicial Independence 292302; Reif 2000 Harv Hum Rts J 2.
61 UN Centre for Human Rights National Human Rights Institutions 37.
62 Section 235 of the Zimbabwe Constitution 2013.
63 Section 236 of the Zimbabwe Constitution 2013.
64 Section 242 read with ss 232-237 of the Zimbabwe Constitution 2013.
65 Section 242 of the Zimbabwe Constitution 2013.
66 Mushava 2013 http://www.newsday.co.zw/2013/02/20/mugabe-tsvangirai-misfire/; Chiduza Significance of Judicial Independence 295.
67 Chiduza Significance of Judicial Independence 295-297; Mushava 2013 http://www.newsday.co.zw/2013/02/20/mugabe-tsvangirai-misfire/; also see related comments by Anon 2013 http://www.newzimbabwe.com/news-12173-MDC-T+to+boycott+parliament+opening/news.aspx 2.
68 Reif 2000 Harv Hum Rts J 27; also see Guiding Principles Relating to the Status of National Institutions (1993), hereinafter referred to as the Paris Principles, for further discussion on the Paris Principles and the standards that govern independent human rights institutions.
69 Reif 2000 Harv Hum Rts J 27.
70 Section 235 of the Zimbabwe Constitution 2013; also see s 7 of the Zimbabwe Human Rights Commission Act for further analysis of the independence and impartiality of the ZHRC.
71 For instance, members of the ZHRC may hold office for a term of five years and are eligible for reappointment for another term of office not exceeding five years. S 3(1) of First Schedule of the Zimbabwe Human Rights Commission Act; Chiduza Significance of Judicial Independence 298-299.
72 Section 237 of the Zimbabwe Constitution 2013; also see s 20 of the Zimbabwe Human Rights Commission Act.
73 Section 17 of the Zimbabwe Human Rights Commission Act.
74 See s 20(4) of the Zimbabwe Human Rights Commission Act.
75 Section 237 of the Zimbabwe Constitution 2013.
76 Anon 2013 http://m.news24.com/news24/Africa/Zimbabwe/Zim-appoints-new-rights-election-chiefs-20130218; Chiduza 2015 LDD 161-164.
77 Reif 2000 Harv Hum Rts J 26.
78 Chiduza Significance of Judicial Independence 299-300.
79 Reif 2000 Harv Hum Rts J 26; the UNDP 2014 http://www.zw.undp.org/content/zimbabwe/en/home/operations/projects/ democratic_governance/capacity-building-support-to-the-zimbabwe-human-rights-commissio.html 1.
80 Reif 2000 Harv Hum Rts J 25, related comments on the mandate of independent human rights institutions.
81 See s 243 of the Zimbabwe Constitution 2013.
82 See the relevant provisions of the Zimbabwe Human Rights Commission Act.
83 Section 244(2) read with s 323 of the Zimbabwe Constitution 2013; Chiduza Significance of Judicial Independence 301-302.
84 In Zimbabwe, the defenders of human rights usually include human rights activists and members of opposition political parties. See the Zimbabwe Human Rights NonGovernmental Organisation Forum 2013 http://reliefweb.int/sites/reliefweb.int/files/resources/Who-will-defend-the-human-rights-defenders.pdf 3.
85 Maseng State, Civil Society and Underdevelopment 1.
86 Maseng State, Civil Society and Underdevelopment 1.
87 See the Zimbabwe Human Rights Non-Governmental Organisation Forum 2013 http://reliefweb.int/sites/reliefweb.int/files/resources/Who-will-defend-the-human-rights-defenders.pdf 3.
88 Maseng State, Civil Society and Underdevelopment 21.
89 United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms (1999), hereinafter referred to as the Declaration on Human Rights Defenders; Resolution on the Protection of Human Rights Defenders GA Res UN Doc A/HRC/22/L.13 (2013).
90 Article 7 of the Declaration on Human Rights Defenders.
91 Article 9(3)(c) of the Declaration on Human Rights Defenders.
92 Article 8(2) of the Declaration on Human Rights Defenders; see further Chiduza Significance of Judicial Independence 303.
93 Mapuva and Muyengwa 2012 PELJ 125, 134; Chiduza Significance of Judicial Independence 303-310.
94 Maseng State, Civil Society and Underdevelopment 1-2.
95 See the Zimbabwe Human Rights Non-Governmental Organisation Forum 2013 http://reliefweb.int/sites/reliefweb.int/files/resources/Who-will-defend-the-human-rights-defenders.pdf 3-8; Chiduza Significance of Judicial Independence 302-310.
96 See the Zimbabwe Human Rights Non-Governmental Organisation Forum 2013 http://reliefweb.int/sites/reliefweb.int/files/resources/Who-will-defend-the-human-rights-defenders.pdf 3-8.
97 Private Voluntary Organisations Act [Chapter 17:05] 22 of 2001 (PVOA).
98 Public Order and Security Act 5 of 2002 (POSA) as amended by the Public Order and Security Amendment Act 18 of 2007.
99 Broadcasting Services Act 3 of 2001 as amended by the Broadcasting Services Amendment Act 19 of 2007.
100 Access to Information and Protection of Privacy Act [Chapter 10:27] 1 of 2002 (AIPPA) as amended by the Access to Information and Protection of Privacy Amendment Act 20 of 2007.
101 Criminal Law (Law Reform and Codification) Act [Chapter 9:23] 23 of 2004 as amended; see further the Criminal Procedure and Evidence Act [Chapter 9:07], hereinafter referred to as the Criminal Procedure and Evidence Act.
102 Maseng State, Civil Society and Underdevelopment 2.
103 Maseng State, Civil Society and Underdevelopment 2.
104 Mapuva and Muyengwa 2012 PELJ 130-131.
105 Mapuva and Muyengwa 2012 PELJ 130-131; also see the PVOA General Notice 99 of 2007 - Code of Procedure for the Registration and Operations of NonGovernmental Organisations in Zimbabwe.
106 PVOA General Notice 99 of 2007 - Code of Procedure for the Registration and Operations of Non-Governmental Organisations in Zimbabwe; see further Chiduza Significance of Judicial Independence 308.
107 Chamboko 2012 http://nehandaradio.com/2012/02/19/zanu-pf-ban-of-ngos-in-zimbabwe-self-defeating/; Chiduza Significance of Judicial 308-310.
108 Article 2, for related comments on the countries' responsibility to respect and fulfil the provisions on the Declaration on Human Rights Defenders.
109 Chiduza Significance of Judicial Independence 303-304, for related comments.
110 Sections 232-263; Chiduza Significance of Judicial Independence 302-310.
111 For the purposes of article, such agencies and/or organs include the defence forces (soldiers); the police services (ZRP); the intelligence services or the Central Intelligence Organisation (CIO); the prisons and correctional services; and other related security organisations.
112 Article 1 of the United Nations Code of Conduct for Law Enforcement Officials (1979) was adopted by General Assembly Resolution 34/169 of 17 December 1979. This Code provides that law enforcement officials should at all times fulfil the duties that are imposed upon them by the law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.
113 Chiduza Significance of Judicial Independence 280-291.
114 Sections 206-231 of the Zimbabwe Constitution 2013; also see the human rights standards, guidelines, principles and/or codes of conduct for law enforcement agencies that are enshrined in international instruments such as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (UN Convention against Torture), the UN Code of Conduct for Law Enforcement Officials; and the International Convention on the Elimination of All Forms of Racial Discrimination (1965).
115 Sections 219(1)-(3) of the Zimbabwe Constitution 2013; also see Chiduza Significance of Judicial Independence 281.
116 Section 219(1) of the Zimbabwe Constitution 2013.
117 Sections 219(1)(b) and (d) read with ss 208 and 223 of the Zimbabwe Constitution 2013.
118 Police Act [Chapter 11:10] 2 of 1995, hereinafter referred to as the Police Act, see the relevant provisions on preservation of law and order by the police.
119 Section 224(2) read with s 208 of the Zimbabwe Constitution 2013.
120 Sections 227(1) and (2) read with s 208 of the Zimbabwe Constitution 2013.
121 Sections 211(3) read with ss 212, 218 and 208 of the Zimbabwe Constitution 2013.
122 The mysterious disappearance of Paul Chizuze in February 2012 and of Itai Dzamara in 2015 as well as the abduction of Jestina Mukoko are cases in point. See Mukoko v Attorney-General [2012] ZWSC 11; Cross 2015 http://nehandaradio.com/2015/08/16/160-days-the-disappearance-of-itai-dzamara/; also see the Zimbabwe Human Rights Non-Governmental Organisation Forum 2013 http://reliefweb.int/sites/reliefweb.int/files/resources/Who-will-defend-the-human-rights-defenders.pdf 3-6; and related comments by Makwerere, Chinzete and Musorowegomo 2012 IJHSS 129, 133-134; the Redress Trust 2005 http://www.redress.org/downloads/publications/Amani2005.pdf 21-24.
123 Section 42 of the Criminal Procedure and Evidence Act.
124 Section 42(1)(a) of the Criminal Procedure and Evidence Act.
125 Section 42(2) of the Criminal Procedure and Evidence Act.
126 Section 42(1)(b) of the Criminal Procedure and Evidence Act.
127 Makwerere, Chinzete and Musorowegomo 2012 IJHSS 131-133.
128 Makwerere, Chinzete and Musorowegomo 2012 IJHSS 132.
129 Dissel and Frank Policing and Human Rights 186; such excessive force was also employed by the ZRP during the forced evictions which were part of the Murambatsvina (Operation Restore Order) campaign in 2005.
130 Anon 2011 http://www.zimbabwesituation.com/apr12_2011.html; Atwood 2011 http://www.kubatanablogs.net/kubatana/police-violently-suppress-prayer-for-peace/.
131 Maseng State, Civil Society and Underdevelopment 17.
132 Sections 212, 219, 224 and 231 of the Zimbabwe Constitution 2013.
133 Makwerere, Chinzete and Musorowegomo 2012 IJHSS 131-133.
134 Sections 44-87 of the Zimbabwe Constitution 2013.
135 Makwerere, Chinzete and Musorowegomo 2012 IJHSS 131-134.
136 Rowe Introduction to Policing 18.
137 See related comments by the International Bar Association 2007 http://www.ibanet.org/Document/Default.aspx?DocumentUid=e4d35d9f 42.
138 Makwerere, Chinzete and Musorowegomo 2012 IJHSS 131-134; also see the International Bar Association 2007 http://www.ibanet.org/Document/Default.aspx?DocumentUid=e4d35d9f 7.
139 See Fidelis Charamba v The Minister of Home Affairs (High Court) (unreported) case number 6420/08 where the High Court declared the abduction and secret detention of several abductees as unlawful and ordered their release, but they continued to be detained for two months.
140 See Jestina Mukoko v The Commissioner General of Police (High Court) (unreported) case number 7166/08, where the police defied the order of the High Court to release abducted persons who were in police custody; see the International Bar Association 2007 http://www.ibanet.org/Document/Default.aspx?DocumentUid=e4d35d9f 35.
141 Chiduza Significance of Judicial Independence 280-288.
142 Reif 2000 Harv Hum Rts J 2; Chiduza 2015 LDD 149-151.
143 UN Centre for Human Rights National Human Rights Institutions 4-6; see further Reif 2000 Harv Hum Rts J 3.
144 See the Paris Principles of 1993.
145 Chiduza Significance of Judicial Independence 291-292; Chiduza 2015 LDD 149151.
146 OHCHR National Human Rights Institutions 31.
147 Chiduza 2015 LDD 150.
148 UN Centre for Human Rights National Human Rights Institutions 66.
149 Pohjolainen Evolution of National Human Rights Institutions 24.
150 United Nations Basic Principles on the Independence of the Judiciary (1985).
151 Principles 1 to 7 of the UN Basic Principles on the Independence of the Judiciary; also see Chiduza Significance of Judicial Independence 41-43.
152 Chiduza 2015 LDD 152-153.
153 Vienna Declaration and Program of Action (1993).
154 See paras 2.1; 2.2; 2.3 and 2.4.1-2.4.3 above.
155 See paras 2.1; 2.2; 2.3 and 2.4.1-2.4.3 above.
156 Section 53 of the Zimbabwe Constitution 2013.
157 The African Charter on Human and Peoples' Rights (1981), adopted in Nairobi, Kenya on 27 June 1981 and entered into force on 21 October 1986.
158 For example, it was held that the ZANU-PF government violated arts 1 and 7 of the African Charter through numerous human rights abuses such as voter intimidation, violence and torture that occurred during the 2000, 2002 and 2008 elections. See Chiduza Significance of Judicial Independence 58.
159 For example, see Zimbabwe Human Rights NGO Forum v Zimbabwe ACHPR Communication No 245/02; Zimbabwe Lawyers for Human Rights, Human Rights Trust of Southern Africa v The Government of Zimbabwe Forced Evictions Hopley -Porta Farm and Hatcliffe Communities ACHPR Communication No 314/05; Zimbabwe Lawyers for Human Rights v The Government of Zimbabwe Muzerengwa Buhera ACHPR Communication No 306/05.
160 For instance, it was held that the detention and deportation of Andrew Barclay Meldrum (a citizen of the United States of America who was permanently resident in Zimbabwe between 1980 and 2003) for allegedly publishing false information and contravening s 80(1)(b) of the AIPPA violated arts 7 and 26 of the ACHPR; Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa (obo Andrew Barclay Meldrum v Zimbabwe) ACHPR Communication No 294/04.
161 Article 26 of the ACHPR; Chiduza Significance of Judicial Independence 58-59; also see related remarks in para 2.1 above.
162 Madebwe 2014 Midlands State U L Rev 6-19, for related comments on constitutionalism in Zimbabwe.
163 Article 26 of the ACHPR; also see Viljoen International Human Rights Law 389.
164 See related remarks in para 2.2 above.
165 Article 45 of the ACHPR; see further the ACHPR date unknown http://www.achpr.org/network/nhri/; Chiduza 2015 LDD 150.
166 See related remarks in para 2.2 above; Chiduza 2015 LDD 172-173.
167 ZHRC date unknown http://www.zhrc.org.zw/index.php/2014-07-02-07-41-38/speeches/59-media-engagement-workshop-overview-of-the-mandate-and-work-of-the-zimbabwe-human-rights-commission-zhrc; Chiduza 2015 LDD 172-173.
168 Chiduza 2015 LDD 172-173.
169 See the relevant provisions of the SADC Treaty that was adopted by the member states through the Windhoek Declaration of 1992; see further Cowell 2013 HR L Rev 153-154.
170 The SADC tribunal was adjudicated by judges appointed by the member states. See further art 9 of the SADC Treaty (1992); also see Moyo 2009 AHRLJ 590-614.
171 Article 9 of the SADC Treaty.
172 Chiduza Significance of Judicial Independence 315.
173 See art 4(c) of the SADC Treaty.
174 This Protocol does not provide for the jurisdiction of the SADC Tribunal in human rights cases. Nevertheless, related matters are dealt with in its provisions such as arts 15(2), 17-20 of the SADC Protocol of the Tribunal and Rules of Procedure (2000) (SADC Protocol 2000); see further Chiduza Significance of Judicial Independence 315-316.
175 Article 15(2) of the SADC Protocol 2000.
176 Open Society Initiative for Southern Africa date unknown http://www.osisa.org/openspace/zimbabwe/sadcs-role-zimbabwe; Chiduza Significance of Judicial Independence 314.
177 See art 4(c) of the SADC Treaty, which obliges all member states to promote the protection of human rights, democracy and the rule of law.
178 See art 4(c) of the SADC Treaty.
179 Mike Campbell (Pty) Limited v The Republic of Zimbabwe (2/07) [2007] SADCT 1
(13 December 2007); Mike Campbell (Pty) Limited v The Republic of Zimbabwe (2/2007) [2008] SADCT (28 November 2008); also see Chiduza Significance of Judicial Independence 317.
180 Campbell v Republic of Zimbabwe (SADC (T) 03/2009) [2009] SADCT 1 (5 June 2009).
181 Cowell 2013 HR L Rev 159.
182 Cowell 2013 HR L Rev 154; 165; SADC 2012 http://www.sadc.int/about-sadc/sadc-institutions/tribun/; arts 6 and 16 of the SADC Treaty.
183 Cowell 2013 HR L Rev 153-154; Nathan 2011 Development Dialogue 123, 124-136; and Ndlovu 2011 SADC Law Journal 63, 78.
184 Chiduza Significance of Judicial Independence 320-321.
185 Government of the Republic of Zimbabwe v Fick 2013 5 SA 325 (CC) para 1.
186 Gaborone Communiqué of the Southern African Development Community Secretariat (1996); Malan and Cilliers SADC Organ on Politics, Defence and Security 1-11.
187 Article 2 read with arts 6, 7, 10, 11, 13 and 15 of the SADC Protocol on Politics, Defence and Security Co-operation (2001) (SADC Protocol on Politics).
188 Articles 3 and 11 of the SADC Protocol on Politics.
189 Article 15 read with arts 3, 6, 7, 10, 11 and 13 of the SADC Protocol on Politics.
190 See para 3.4 below.
191 Cowell 2013 HR L Rev 153-165; Malan and Cilliers SADC Organ on Politics, Defence and Security 1-11.
192 Such politically related violence and human rights abuses were mostly committed during the 2002, 2008 and 2013 elections.
193 Chiduza Significance of Judicial Independence 314-322, for related discussion.
194 The SARPCCO was established in 1995.
195 See the preamble of the SARPCCO Code of Conduct, which was adopted at the 6th General Meeting of SARPCCO in Mauritius in August 2001.
196 Chiduza Significance of Judicial Independence 282.
197 See OHCHR Human Rights Standards and Practice 1; UN Code of Conduct for Law Enforcement Officials.
198 Chiduza Significance of Judicial Independence 282.
199 Articles 3 and 4 of the SARPCCO Code of Conduct; Makwerere, Chinzete and Musorowegomo 2012 IJHSS 133-134; the SARPCCO 2001 http://www.apt.ch/content/files_res/SARPCCO 3.
200 For example, the ZRP and other law enforcement agencies violated the people's human rights during the Operation Murambatsvina campaign of 2005 (Operation Restore Order); Jestina Mukoko v The Commissioner-General of Police (SC) (unreported) case number 293/08; Kenneth Simon Marimba v the Commissioner General of Police (High Court) (unreported) case number 6903/08; also see Makwerere, Chinzete and Musorowegomo 2012 IJHSS 132-135.
201 Makwerere, Chinzete and Musorowegomo 2012 IJHSS 129-138.
202 Para 2.1 above.
203 See para 2.1 above.
204 See para 2.2 above.
205 See para 2.3 above.
206 See paras 2.4.1-2.4.3 above.
207 See para 3.1, 3.2, 3.3.1-3.3.2 and 3.4 above.