30 November 2009

Edition 23

HARARE-The Attorney General, Johannes Charges against Bennett arose in 2006 when The MDC says ZANU PF is frustrating efforts to Hitschmann’s house. The laptop is said to have Tomana last week failed to produce the State’s Hitschmann was allegedly found with an arms swear in Bennett as Deputy Agriculture Minister. contained emails that implicated Bennett in State’sstar witness, Michael Hitschmann to testify cache, which the prosecution saysstar he acquired dims terrorism activities. against Deputy Agriculture Minister-Designate after he was given $5 000 by Bennett to topple Tomana’s prosecution seems to be heading for Roy Bennett forcing the defence lawyers to raise President Robert Mugabe. collapse with the State witnesses having so far accusations of deliberate attempts to fumble failed to directly link Bennett to the charges. The State alleges Hitschmann was paid by Bennett the matter. Bennett’s co-accused, Hitschmann was acquitted One of the witnesses admitted that the police to buy weapons to assassinate government of the same charges of terrorism. had not recorded an inventory of arms alleged to officials. Police say Hitschmann implicated On Friday Tomana, informed High Court Judge, Justice Chinembiri Bhunu that the State’s sixth Bennett denies the charges, which his Movement have been recovered from Hitschmann’s house Bennett in the procurement of the arms, but witness was arms dealer Hitschmann – who is for Democratic Change (MDC) party – led by in 2006. Another witness failed to explain why Bennett’s lawyers argue that the arms dealer said to have implicated Bennett in plotting to Prime Minister Morgan Tsvangirai - says are weapons alleged to have been recovered had increased from nine to 49. had been tortured into making false confessions. committ terror activities. But he was then told politically motivated to keep him out of the unity Hitschmann has since written an affidavit saying by his junior law officer Chris Mutangadura that government formed with President Mugabe’s Hitschmann was not in court and could not make ZANU-PF party. The charges carry a death On Friday, a policeman said he had not recorded he does not want to testify against Bennett on the it on time. penalty upon conviction. the serial number of a laptop recovered from grounds that he was tortured.

“He (Hitschmann) did not come because we thought he would not (be required to) take the witness stand. This is a situation we did not anticipate,” said Tomana, who is leading the prosecution team. He added: “The way forward is to adjourn to the next available date.” AG fears upheaval over SADC Tribunal

That attracted criticism from the defence team HARARE-The Attorney General (AG) led by Beatrice Mtetwa, who then applied for the is blocking latest moves to register and release of Bennett’s passport and the relaxation enforce a SADC Tribunal ruling that of bail conditions. She said the State was making declares Zimbabwe’s land reform illegal and a deliberate attempt to drag the matter on. racially discriminatory.

“The star witness is no longer shining as we were made to believe,” added Mtetwa. Fatima Maxwell, the director of Civil Division “The accused (Bennett) is under severe in the AG’s Office, said registration and restrictions; if the passport can be returned so enforcement of the SADC ruling as sought by that his life can resume and he enjoys his right a former commercial farmer would result in of movement as enshrined in the constitution,” political upheaval in Zimbabwe. said Mtetwa. “Given that the State has been responsible for all the adjournments, giving him (Bennett) back his passport would be a balance Maxwell said this while opposing an based on the presumption of innocence and application by former Commercial Farmers moreso in light of the festive season.” Union (CFU) President, Colin Cloete and his enterprise Gramara Private Limited, seeking But Tomana said Bennett was facing a the registration and enforcement of the SADC serious charge. “The State is not amenable Tribunal ruling delivered in November 2008. to the relaxation of the bail conditions. Those (existing bail conditions) are the The Windhoek-based regional court last year minimum amenable conditions until the case is finalized.” declared as null and void the seizure of a farm belonging to Cloete, a former Chegutu farmer Justice Bhunu refused to release Bennett’s and the properties of 78 other commercial passport. farmers which were seized by the government Minister Chinamasa AG’s Fatima Maxwell at the height of the land reform programme. He said the trial would resume on January 12 The Tribunal barred the government from evicting the farmers and further repossessing Gauntlett from representing Cloete in the Tribunal next year. white-owned farms, saying the applicants had ruling registration case. been discriminated against on the grounds of race. The regional court directed the government to Patel made the ruling after presiding over an take all necessary measures through its agents to urgent chamber application filed by Gauntlett protect the possession, occupation and ownership seeking to condone the non designation of South SA recognises SADC Tribunal of land by the farmers. Africa as a reciprocating country. GAUTENG-A South African court last arising from Zimbabwe’s controversial land But in a fresh attempt to scuttle the implementation Maxwell, who represented the State challenged week confirmed the country’s commitment reforms. This has been confirmed by, Trade of the SADC Tribunal’s ruling, Maxwell said Advocate Gauntlett’s ability to represent his to honour the terms of a landmark and Industry Minister Rob Davies. enforcing the Tribunal’s ruling would cause clients in a Zimbabwean court because he property rights ruling by the Southern instability in the country. had been denied an exemption certificate by African Development Community The ruling came after South African lobby Chinamasa which is required to allow South (SADC) Tribunal. group AfriForum brought an urgent application “To register the Tribunal judgment would result in African lawyers to appear in Zimbabwean courts. on Fick’s behalf to interdict today’s signing a public outcry and social and political instability. ceremony, arguing that the exclusion clause The judgment nullifies the implementation of land A ruling in the North Gauteng High Court reforms in the country. The effect of the judgment Gauntlett has already been granted such an would in effect legalise past land grabs and exemption certificate by Chinamasa on two prior which confirmed a settlement reached supercede the SADC Tribunal ruling. is to reverse the land reform,” said Maxwell. between South Africa’s Department of occasions, including a certificate granted on 25 June 2009, when he represented crusading human Trade and Industry and South African born The ruling means that the bilateral treaty Maxwell’s comments are in sync with recent farmer Louis Fick, binds the South African statements by Justice and Legal Affairs Minister, rights campaigner Jestina Mukoko, that was signed Friday between Zimbabwe and acknowledged by all parties as “open-ended,” government to honouring the terms of the Patrick Chinamasa, who has refused to abide by South Africa cannot prevent South African the SADC Tribunal ruling. meaning it made no reference to a specific case ruling by the Windhoek based Tribunal. farmers in Zimbabwe from seeking relief and could be interpreted as allowing him to from international courts for past illegal The government has rubbished the Tribunal and appear in multiple matters in Zimbabwean courts. The case arose when Fick sought to stop land acquisitions, as was initially feared. has warned the regional court against interfering the signing of the Bilateral Investment with Zimbabwe’s land reforms. But in now denying the advocate an exemption Protection Agreement (BIPA) between In the ruling, SA’s government gave South certificate, Chinamasa argued that Gauntlett Chinamasa, who unilaterally withdrew Zimbabwe South Africa and Zimbabwe on Friday African citizens the assurance that the practises in South Africa, which is not a bilateral treaty “does not affect existing rights from the SADC Tribunal, argues that the regional last week on the basis that there was no court’s ruling has no legal force in Zimbabwe . reciprocating country with Zimbabwe. protection of existing rights of farmers in or remedies in terms of other sources of international law”. Zimbabwe outlined in the Tribunal ruling. However, Chinamasa’s double standards were Human rights lawyers say Chinamasa’s attempt exposed when it emerged that on 13 November “The (South African) government respects and A controversial clause in the bilateral to pull out of the SADC Tribunal is futile 2009, two days after Gauntlett had been denied undertakes to honour (the tribunal’s decision) and unjustifiable. an exemption certificate,the minister granted an agreement, whose text has been kept tightly in terms of its own obligations in terms of the under wraps, excluded historical claims exemption certificate of exactly the type requested SADC Treaty,” read part of the ruling. Meanwhile, High Court Judge Bharat Patel last by Advocate Gauntlett to Advocate GC Pretorius, week barred South African Advocate Jeremy from South Africa. 30 November 2009

HospitalsCHEGUTU-State hospitals are denying medical do not have identificationreject documents. Yet the being partyfarm to legally binding treaties such as theworkers rising needs and this has put immense pressure treatment to farm workers affected by violence majority of farm workers lost their identification UN International Covenant on Economic Social on both the unions and the affected workers. linked to the constitution making process, the particulars during election violence and the tide and Cultural Rights, the Zimbabwe government The State has been unwilling to help. The police General Agricultural and Plantation Workers of evictions,” the GAPWUZ official said. should protect farm workers’ rights to health appear complicit while hospitals are just shutting Union (GAPWUZ) has said. and access to safe and potable water, adequate their doors.” He said a GAPWUZ team that conducted field sanitation, and sufficient supply of safe food, GAPWUZ officials told The Legal Monitor visits to Chegutu last week met with several nutrition and housing. Several reports by local and international injured farm workers, some with stab wounds, that violence related to the constitution making who narrated how the latest violence had groups note that farm workers have been the process was the latest upheaval affecting farm worsened their plight. Without food, shelter and medical care, some of silent victims of the often-violent land reform workers, who have been victims of forced the affected farm workers have fled to Harare programme. Thousands violently forced off evictions and election violence. The refusal by public hospitals to treat farm to seek assistance from farming unions such as farm compounds by newly resettled owners have workers who fail to produce identity documents GAPWUZ and the Commercial Farmers Union, turned into nomads, while others are living in “What is worsening the situation is that hospitals is an infringement on the Right to Health as said the GAPWUZ official. “Humanitarian aid the open in mountains and as squatters across are refusing to admit wounded farm workers who stipulated in several UN treaties. By virtue of for farm workers has been declining against the country.

HARARE:Jurists A Judge of South Africa’s Supreme monitorof ensuringBennett that human rights standards The ICJ undertakes trial observations of trials or Court of Appeal, Azhar Cachalia has been in on fair trial and the rights of an accused person legal proceedings where a judge or lawyer is the country to observe the high profile trial of are respected. under prosecution or administrative sanction on Roy Bennett, the Deputy Agriculture Minister- charges arising from the legitimate exercise of Designate, who is charged with plotting acts The presence of a representative of an professional duties as part of its activities on of terrorism. international organisation, like the ICJ, shows the protection of the independence of judges to the government in question that it is under and lawyers. “Justice Cachalia’s experience will be invaluable scrutiny by the international community. in assisting the International Commission The ICJ may also observe trials where there is of Jurists (ICJ) to come to a conclusion on It is widely acknowledged that political opponents reason to believe that the judiciary is itself not the fairness or otherwise of the Bennett trial and “traditional” human rights activists are subject independent or impartial. Following the trial process,” said Martin Masiga, the senior legal to harassment and persecution by governments observation, the trial observer prepares a report adviser at the ICJ Africa Programme,on behalf around the world; but it is also judges and lawyers on the trial. The report contains a description of of which the jurist is monitoring the trial. who are targeted by governments, threatened the proceedings and evaluation of its consistency or otherwise prevented from fully and freely with fair trial guarantees. The report, or its The ICJ comprises 60 of the world’s most eminent discharging their functions. This is inimical to the summary, is usually published by the ICJ together proper administration of justice. with recommendations to government authorities. jurists dedicated to the primacy, coherence Senator Roy Bennett and implementation of international law and principles that advance human rights.

Bennett is charged with the possession of weapons with the intention to commit sabotage, terrorism, banditry and insurgency. African govts fail AIDS test “The trial of Roy Bennett is significant as HARARE-South Africa’s most Khumalo who was accompanied by Ntombozuko to share their drugs. Implications of this Zimbabwe goes through its transitional phase prominent AIDS advocacy group Kraai, the deputy chairperson of TAC at are dire for members of the public here. because serious allegations of executive use or Treatment Action Campaign (TAC) provincial level said her mission engaged In a country where over 80 percent of the misuse of the justice system to persecute legitimate has criticized African governments and communicated with members of the public population is not economically active, for lacking the political commitment opposition to it have been made,” said Masiga. and civil society organizations and concluded where should they be getting this amount of The ICJ said the question as to whether the to fight the HIV and AIDS pandemic. that it will take a lot to rebuild Zimbabwe and financial resources?,” asked Khumalo. trial of Bennett was in good faith at all or is promote a culture of recognition, respect and politically motivated continues to overshadow TAC chairperson, Nonkosi Khumalo, realization of all the rights of the citizens of The chairperson said her organization his trial. who visited Zimbabwe last week on a this country. fact finding mission, said politicians and will continue to support civic society in

governments on the continent were doing Zimbabwe in its quest to create a democratic “The handling of what to charge Bennett with The TAC chairperson said although President and the failure to explain the multiple changes little in the fight against HIV and AIDS. and just society where human rights Robert Mugabe, Prime Minister Morgan in charges against him raised suspicion. Tsvangirai and Deputy Prime Minister Arthur are upheld. The issuing of summons and/or arrest of some “What is lacking is the right political Mutambara had committed themselves to of the lawyers defending Roy Bennett and his commitment from our politicians and governments. Governments are not speedily drafting a new constitution this has not Since 1998, TAC has held government potential witnesses deepened the suspicions,” the accountable for health care service ICJ said. committing enough resources on their happened and citizens feel let down as they have health care systems. I don’t think the not been consulted while their views have not delivery; campaigned against official The State has for some time exhibited rare zeal in political commitment matches the needs. been taken into consideration. AIDS denialism; challenged the world’s matters of criminal prosecution and the Attorney You cannot rely on donor funding because leading pharmaceutical companies to make General (AG) Johannes Tomana is personally it is not guaranteed for ever…our African Khumalo said access to health care is non-existent treatment more affordable and cultivated appearing in court to prosecute Bennett. leaders should demonstrate whose agenda in Zimbabwe. community leadership on HIV and AIDS. are they serving, whose interests are they serving, as it is definitely not the aspiration Since his appointment as a High Court judge in “With an HIV prevalence of 13.7 percent and HIV TAC’s efforts have resulted in many 2001, Justice Cachalia’s ascent on the Bench has and interests of the Zimbabweans,” prevalence going down and incidence going up, said Khumalo. life-saving interventions, including the been nothing short of dazzling. An appeal court government’s commitment should be matching implementation of country-wide mother- judge since 2006 and most recently a candidate the scourge, but as it looks presently, very little is TAC advocates for increased access to to-child transmission prevention and for the Constitutional Court, Cachalia is among being done,” Khumalo said. treatment, care and support services for a select group of judges representing the face of antiretroviral treatment programmes. people living with HIV and campaigns to a new, emerging generation of the SA judiciary. reduce new HIV infections. The TAC chairperson said 600 000 people are in urgent need of ARV therapy compared with For its efforts TAC has received world- wide acclaim and numerous international He came to the Bench with an impeccable TAC, which was formed in 1998 in Cape 180 000 people who are currently receiving political pedigree-one of the most prominent Town has become the leading civil society treatment. accolades, including a nomination for a anti-apartheid families in the country-and some force behind advocating for comprehensive Nobel Peace Prize in 2004 while in 2006 the of the judgments he has delivered over the past health care services for people living with “There aren’t enough essential drugs and ARVs New York Times named TAC, “the world’s eight years have had a significant impact on HIV and AIDS in South Africa. in the public health centres. People are forced most effective AIDS group”. the development of a post-apartheid, human rights-centred jurisprudence.

Justice Cachalia previously visited Malaysia Members of Padare Men’s Forum march to mark 16 Days of Activism Against Gender Violence campaign in 2002 as part of a delegation from the Joseph The 16 Days of Activism Against Gender Violence campaign has been observed R.Crawley Program in International Human in Zimbabwe since 1991 and the campaign for this year is running under the Rights at Fordham Law School, which undertook theme Commit Act Demand: We CAN End Violence Against Women! a study of that country’s Internal Security Act. The 16 Days of Activism Against Gender Violence is an internation- More recently he visited Cairo to examine, among ally recognised campaign held every year between 25 November and other things, the impact of the ongoing state of 10 December. emergency in Egypt on democratic opposition in that country. Justice Cachalia who is now The campaign commences with the International Day for the Elimination of back in South Africa following the adjournment Violence against Women (25 November) and ends with International Human of Bennett’s trial will be back again when trial Rights Day (10 December). resumes in January next year. The founding participants chose these dates in order to symbolically link gen- Trial observations are a widely used and der-based violence (GBV) and human rights and to highlight gender based intenationally accepted type of human rights violence as a violation of human rights. monitoring. They are one potential method 30 November 2009 30 November 2009

Brutalised at home, kissed abroad-WOZA story BULAWAYO-At home, menacing uniformed for better access to health for women, brutal riot loud as each blow was administered. History is men respond to their overtures for love and police and jail have remained a consistent feature. not on the side of those who arrest women and peace with guns and baton sticks. But abroad, babies for singing in the streets or dictators who Women of Zimbabwe Arise (WOZA) have been This heavy handedness does not appear to starve and silence their own people and cling to warmly embraced. have worked despite more than 3 000 WOZA power by threat of force,” Obama said. members having been in prison or police An award and a kiss from US President Barack custody at different intervals. Starting with a Obama saluted WOZA for their resilience. “Over Obama marked international recognition for handful activists, Mahlangu and co-founder, the past seven years, they have conducted more this women’s movement that has grown despite Jenni Williams’ movement now boast of over than a hundred protests - maids and hairdressers, constant State harassment. 75 000 followers. vegetable sellers and seamstresses, taking to the streets, singing and dancing, banging on pots On 23 November, Obama honoured WOZA leader, “They have been gassed, abducted, threatened empty of food and brandishing brooms to express Magodonga Mahlangu and her organisation with with guns and badly beaten - forced to count out their wish to sweep the government clean.” the 2009 Robert F. Kennedy Human Rights Award Magodonga Mahlangu for their steadfast campaign against rights abuses.

Presenting the award to Mahlangu, Obama praised WOZA and its leaders for the inspirational work and willingness to withstand intimidation and physical abuse by a government whose power lay in using violence to suppress dissent.

“By her example, Magodonga has shown the women of WOZA and the people of Zimbabwe that they can undermine their oppressors’ power with their own power, that they can sap a dictator’s strength with their own. Her courage has inspired others to summon theirs,” said Obama.

The Robert F. Kennedy Human Rights Award was established in 1984 to honour human rights defenders around the world. It carries a cash prize of $30,000, as well as ongoing legal advocacy and technical support from the Washington- based Robert F. Kennedy Center for Justice and Human Rights.

Since its formation in 2002, WOZA has become the face of peaceful resistance to dictatorship in Zimbabwe. Through police brutality to numerous criminal prosecutions, the group has refused to be cowed by State brutality. Weekly, they continue rallying women and men into the streets to campaign for more freedoms.

WOZA demonstrations have taken different forms—from placard waving street protests to “love” marches where placards are replaced with roses to demand more care for women. Whether marching against political abuses or to campaign Jenni Williams leading one of WOZA’s many peaceful demonstrations Human rights violations intensify HARARE-Continued human rights violations changes brought by the inclusive government. could affect the constitution making process When macro politics tensed up, members of and food aid programmes in the country, the the public in both urban and rural communities Zimbabwe Peace Project (ZPP) has noted. became highly protective of their political turf and even quick to resort to violence at the In its latest bi-monthly focus report released on slightest provocation.” Friday, the ZPP said it had noted 1 986 “politically motivated human rights violations” in the past two ZPP said the issue of the Kariba Draft months. Of these, 1 513 were against Movement Constitution continued to distract attention from for Democratic Change (MDC) supporters the ‘real constitutional issues as pro-ZANU and officials. PF organizers were at most meetings quick to take it as an opportunity to instruct villagers to “The period under review witnessed resurgences either accept the Kariba Draft or face unspecified in acts of politically motivated human rights actions.’ violations, 931 of which were recorded in September while 1055 were cases recorded in “The operational framework of NGOs in the October, both months showing huge increases in human rights sector remained severely constrained the harassment and assault categories,” said the with an almost systematic and uniform approach Jestina Mukoko-led ZPP. It added: “Harassments adopted towards them across the 10 provinces,” and assaults accounted for 1587 cases of the total said ZPP. violated, scenarios that cast a bad omen for the country’s human rights profile.” “Reports made references to several cases in which constitution awareness workshops… were ZPP – a coalition of churches and NGOs frequent targets of disruptions by party youths, interested in human rights and peace building - police and traditional leaders. Traditional leaders said violence increased as the tension between were reportedly under extreme pressure from ZANU PF and MDC worsened over the two war veterans and the local political leadership months under review. with several cases in which village heads were Jestina Mukoko, the ZPP executive director threatened with demotion whenever they were “Most of the violations committed in reported to have given permission to human rights “We once more reiterate that a repeat of what do not augur well for the future nation… Food and communities derive their inspiration from the activists to conduct workshops in their areas.” nation experienced in the constitution the 1999 humanitarian assistance continue to be politically interfered with. This is hardly sustainable conduct of political business at macro level,” it making process must be avoided at all costs,” said said. “Members of the public were victimized for ZPP said it was concerned by the violations as given the critical food situation in the country. commenting on most macro level issues such as that would mean people will not say out their true ZPP. “Reports of continued harassment of those in NGOs must be accorded more space to execute the MDC disengagement, arrest of Roy Bennett, views on the issues for a new constitution. the teaching profession by some party supporters their mandates.”