Forum State of Human Rights Report 2018

STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018

Published by The Zimbabwe Human Rights NGO Forum Suite 4, Number 1 Raleigh Street P. O. Box 9077, Harare, Zimbabwe Tel: +263 (242) 772860 Email: [email protected] Website: www.hrforumzim.org

This publication maybe reproduced for non-commercial use in any form provided due credit is given to the publishers, and the work is presented without any distortion.

ISBN: 978-1-77929-562-0 EAN: 9781779295620 ABOUT THE FORUM The Zimbabwe Human Rights NGO Forum (the Forum) is a coalition of 22 human rights organisations working towards the realisation of a society that respects all human rights in Zimbabwe.

Members of the Forum Ÿ Amnesty International - Zimbabwe (AI - Z) Ÿ Catholic Commission for Justice and Peace – Zimbabwe (CCJP - Z) Ÿ Civic Education Network (CIVNET) Ÿ Counselling Services Unit (CSU) Ÿ Gays and Lesbians of Zimbabwe (GALZ) Ÿ Justice for Children (JC) Ÿ Legal Resources Foundation (LRF) Ÿ Media Institute of Southern Africa (MISA) Ÿ Media Monitors (MM) Ÿ Non-Visible Action and Strategies for Social Change (NOVASC) Ÿ Research and Advocacy Unit (RAU) Ÿ Students Solidarity Trust (SST) Ÿ Transparency International-Zimbabwe (TI - Z) Ÿ VERITAS Ÿ Women of Zimbabwe Arise (WOZA) Ÿ Zimbabwe Association for Crime Prevention and Rehabilitation of the Offender (ZACRO) Ÿ Zimbabwe Association of Doctors for Human Rights (ZADHR) Ÿ Zimbabwe Civic Education Trust (ZIMCET) Ÿ Zimbabwe Human Rights Association (ZIMRIGHTS) Ÿ Zimbabwe Lawyers for Human Rights (ZLHR) Ÿ Zimbabwe Peace Project (ZPP) Ÿ Zimbabwe Women Lawyers Association (ZWLA)

ACKNOWLEDGEMENTS The Forum acknowledges the assistance it received from its friends and partners in compiling this report. Members of the Forum and other organisations not part of the Forum participated in the provision of data for this report. Several individuals gave testimonies regarding their personal experiences during 2018, as well as information about what they witnessed with regards human rights conditions in the country. These accounts are captured throughout the report. The Forum is indebted to those individuals. The Forum applauds the Secretariat for effectively managing and facilitating the compilation and production of this report. This work would not have been possible without the essential support from our development partners who invest in human rights for the dignity of humanity.

i STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 TABLE OF CONTENTS

ABOUT THE FORUM ...... i ACKNOWLEDGEMENTS ...... i ACRONYMS ...... vi REMEMBERING THE VICTIMS ...... vii FOREWORD ...... viii EXECUTIVE SUMMARY ...... ix PART 1: LAYING THE FOUNDATION: INTRODUCTION, BACKGROUND AND CONTEXT ...... 1 CHAPTER 1 INTRODUCTION AND OVERVIEW OF THE HUMAN RIGHTS SITUATION IN ZIMBABWE ...... 2 About the report ...... 2 Methodology ...... 2 Human Rights in Zimbabwe – 38 years on ...... 2 PART 2: THEMATIC ASSESSMENT OF THE HUMAN RIGHTS SITUATION IN ZIMBABWE ...... 4 CHAPTER 2 ELECTORAL DEMOCRACY IN ACTION: THE 2018 HARMONISED ELECTIONS ...... 5 Free, Fair and Credible Elections ...... 6 Electoral Reforms ...... 6 Credibility and Independence of the Zimbabwe Electoral Commission (ZEC) ...... 7 Voter Education and Registration ...... 8 Media Coverage ...... 8 Disenfranchisement ...... 8 Specific Violations ...... 8 Food Aid ...... 9 Involvement of Traditional Leaders ...... 9 Specific Cases ...... 9 Election Violence ...... 10 Specific Cases ...... 11 CHAPTER 3 GOVERNANCE ...... 14 Legal Reform ...... 14 Public Trust of Public Institutions and Freedom To Voice Opinions ...... 14 Devolution ...... 15

ii STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 TABLE OF CONTENTS

Use of Presidential Powers ...... 15 Institutional Reform and Legal Compliance ...... 15 Specific Cases ...... 16 CHAPTER 4 THE ECONOMY: IS ZIMBABWE OPEN FOR BUSINESS? ...... 17 Macroeconomic Performance ...... 17 Unemployment ...... 19 Impact of Economy on Human Rights ...... 20 Corruption and Corruption-Fighting ...... 20 CHAPTER 5 SOCIO-ECONOMIC RIGHTS: LIVING IN DIGNITY ..... 21 Water and Sanitation ...... 21 Access to Electricity ...... 22 Health ...... 22 Specific Cases 23 Labour Rights 23 Education 24 Humanitarian and Food Assistance 24 Housing, Land and Evictions 24 Specific Cases 24 CHAPTER 6 CIVIL AND POLITICAL RIGHTS: THE FREEDOM TO WALK, TALK AND ACT ...... 25 Arrests and Detention ...... 25 Specific Cases ...... 26 Independence of the NPA ...... 27 Problematic Laws ...... 27 Specific Cases ...... 28 Human Rights Defenders and Civil Society Space ...... 29 Specific Cases ...... 29 Abductions and Disappearances ...... 29 Extra-Judicial Killings ...... 30 Torture ...... 30 Freedom of Movement ...... 30 Identity and Citizenship ...... 30 State of Prisons ...... 31 Freedom of Assembly and Association ...... 31

iii STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 TABLE OF CONTENTS

Right to Protest ...... 31 Specific Cases ...... 32 CHAPTER 7 CHILDREN’S RIGHTS: SECURING THE FUTURE ...... 34 Children in Conflict with the Law ...... 34 Child Marriages ...... 34 Birth Registration ...... 34 Education ...... 35 Children with Special Needs ...... 35 Socio-economic Protection ...... 35 Corporal Punishment ...... 36 Specific Cases ...... 36 CHAPTER 8 WOMEN’S RIGHTS ...... 38 Participation in Elections ...... 38 Representation in Government ...... 39 Protection from Gender-Based and Domestic Violence ...... 40 Child Marriages ...... 40 Specific Cases ...... 41 CHAPTER 9 SEXUAL MINORITIES: LGBTQIA RIGHTS ...... 42 The LGBTQIA and the Constitution ...... 42 Harassment and Discrimination ...... 42 Criminal Sanctions ...... 43 Progress and Developments ...... 44 Specific Cases ...... 44 CHAPTER 10 PERSONS WITH DISABILITIES ...... 45 Exclusion and Marginalisation ...... 46 Electoral Participation ...... 46 Representation in Governance ...... 47 Specific Case ...... 48 CHAPTER 11 ENVIRONMENTAL RIGHTS: CO-EXISTING WITH NATURE ...... 49 Wetlands ...... 49 Mining and Environmental Protection ...... 49 Specific Cases ...... 51 CHAPTER 12 BUSINESS AND HUMAN RIGHTS ...... 52 Accountability and Human Rights Protections ...... 52

iv STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 TABLE OF CONTENTS

Specific Cases ...... 52 CHAPTER 13 FREEDOM OF THE MEDIA ...... 54 Propaganda and Media Bias ...... 55 Opening the Airwaves ...... 55 Freedom of Expression ...... 55 Press and Media Freedom ...... 55 Violence, Harassment and Arrest of Journalists ...... 55 Communication and Internet Freedom ...... 55 Specific Cases ...... 56 CHAPTER 14 COURTS AND ACCESS TO JUSTICE: THE BULWARK AGAINST TYRANNY ...... 60 Access to Courts ...... 60 Judicial Independence ...... 60 Delayed Justice, Delayed judgments and Judicial Approach ... 62 Threats and Attacks to Lawyers ...... 62 Access to Legal Aid ...... 63 Specific Cases ...... 64 CHAPTER 15 INDEPENDENT COMMISSIONS SUPPORTING DEMOCRACY: THE WATCHDOGS ...... 66 Zimbabwe Human Rights Commission ...... 66 Zimbabwe Gender Commission ...... 67 National Peace and Reconciliation Commission ...... 67 Zimbabwe Media Commission ...... 67 Zimbabwe Electoral Commission ...... 67 Specific Cases ...... 68 CHAPTER 16 RATIFICATION AND DOMESTICATION OF INTERNATIONAL TREATIES AND INSTRUMENTS ...... 69 Zimbabwe and International Law ...... 69 Conventions and treaties that Zimbabwe is yet to ratify and domesticate ...... 70 PART 3: THE FUTURE OF HUMAN RIGHTS IN ZIMBABWE: PROSPECTS AND RECOMMENDATIONS ...... 72 CHAPTER 17 THE FUTURE OF HUMAN RIGHTS IN ZIMBABWE: PROSPECTS AND RECOMMENDATIONS ...... 73

v STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 ACRONYMS ACRWC African Charter on the Rights and Welfare of the Child BAZ Broadcasting Authority of Zimbabwe BEAM Basic Education Assistance Module BVR Biometric Voter Registration CBD Central Business District CEDAW Convention on the Elimination of all forms of Discrimination Against Women CIO Central Intelligence Organisation CRPD Convention on the Rights of People With Disabilities GBV Gender-based Violence ICCPR International Covenant on Civil and Political Right ICESCR International Covenant on Economic, Social and Cultural Rights JCT Justice for Children JSC Judicial Service Commission LGBTQIA Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Intersex, Asexual MDCA Movement for Democratic Change Alliance MDC-T Movement for Democratic Change - Tsvangirai NCA National Constitutional Assembly NGOs Non-Governmental Organisations NPA National Prosecuting Authority PDP People’s Democratic Party RBZ Reserve Bank of Zimbabwe UDHR Universal Declaration of Human Rights UNCRC United Nations Convention on the Rights of the Child UNCRPD United Nations Convention on the Rights of Persons with Disabilities UNICEF United Nations Children’s Fund ZACC Zimbabwe Anti-Corruption Commission ZANU-PF Zimbabwe African National Union - Patriotic Front ZBC Zimbabwe Broadcasting Authority ZCTU Zimbabwe Congress of Trade Unions ZEC Zimbabwe Electoral Commission ZELA Zimbabwe Environmental Law Association ZESN Zimbabwe Election Support Network ZHRC Zimbabwe Human Rights Commission ZIMSEC Zimbabwe School Examinations Council ZimStats Zimbabwe Statistics Agency ZLHR Zimbabwe Lawyers for Human Rights ZNCWC Zimbabwe National Council for the Welfare of Children ZMC Zimbabwe Media Commission ZNA Zimbabwe National Army ZRP Zimbabwe Republic Police

vi STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 REMEMBERING THE VICTIMS OF THE 1 AUGUST 2018 EXTRA-JUDICIAL KILLINGS ON THE HARARE STREETS

This report is dedicated to the memory of those who died as a result of excessive and disproportionate force used against unarmed civilians. Our thoughts and prayers are with their families and loved ones.

Sylvia Matambo-Maphosa 52-year-old Sylvia worked for ZINWA. She was married to Robert Maphosa and is survived by three children and one grandchild

Brian Zhuwawo He was from Epworth. He was a street vendor selling cell phone chargers, phone pouches, airtime and slam car accessing for a living. The streets of Harare were his workplace. He was shot in the back.

Challenge Tauro The 20-year-old worked at the Gulf Complex in Harare’s central business district. He is survived by his wife.

Gavin Charles Dean 48-year-old Gavin is survived by his 13-year old daughter.

Ishmael Kumire He was 41 years old. A fruit vendor, he was the family’s sole breadwinner. He is survived by his wife Suspicious Ziyamba and four children.

Jealous Chakandira Jealous was a commuter omnibus driver who was shot in the chest while walking at the corner of Nelson Mandela Avenue and Julius Nyerere Way.

vii STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 FOREWORD 2018: THE GREAT DREAM-TURNED NIGHTMARE FOR ZIMBABWE By Jestina Mukoko, Chairperson of the Zimbabwe Human Rights NGO Forum

The year 2018 opened with great hope following the advent of the new dispensation through what was a military coup, though many, hoping for better governance, were reluctant to call it a ‘military coup’. This showed the desperation of the people of Zimbabwe to see and live in a different reality. After 37 years of a one-man rule, Zimbabweans saw the new government as an avenue to a rebirth and new beginnings. This dream turned into a horrific nightmare on 1 August 2018, when the military used live ammunition on unarmed civilians killing at least six innocent civilians in broad daylight. This painted a dark picture for the country which throughout the year continued to slide into a socio-political and economic quagmire. The face of the military in domestic politics became more pronounced than before with violations by the military rising to new levels.

In the same breath, as documented in this report, economic plunder continued at alarming levels, sinking the country deeper into debt in the absence of adherence to the constitutional principles of fiscal responsibility.

But in all the chaos, the Forum through its membership, responded swiftly in most of the documented cases, calling for the respect and protection of human rights by the delinquent government. The Forum condemned the 1 August killings and made sure all the evidence of the killings was documented and presented before the relevant bodies including the Motlanthe Commission and the courts of law. The Forum provided much need support to push back against the excesses of the state through an anti- impunity campaign which saw over 70 cases from 1 August killings being brought before the courts.

As the tragedy unfolded at home, several international election observer missions witnessed the gruesome violence which they strongly condemned.

Months later, the Forum looks at these developments and proposes key recommendations to redress the situation before it worsens. First, we call for serious, authentic and inclusive national dialogue that is not confined to political actors. We further recommend specific law reforms we to remove obstacles to human rights progress in Zimbabwe.

If the issues raised and our recommendations are addressed, Zimbabwe will improve and, in a short time be a different country. This is easily possible because approximately 72% of the violations documented in this report do not require money to prevent or resolve. They only require the state to turn off its architecture of violence and torture. Surely, this is not asking for much. From there, we strengthen institutions designed to offer support to victims as we embark on a healing process.

viii STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 EXECUTIVE SUMMARY On the socio-economic front, forced evictions The year 2018 was significantly influenced by were recorded, and abuse of workers’ rights by the new political dispensation that began in companies. Nurses and doctors’ strikes affected November 2017. It was the first year in the post- health delivery, and from October onwards, a Mugabe era, following the rise of Emmerson crippling cholera and typhoid outbreak resulted Mnangagwa through the November 2017 in 6,000 cases and 50 recorded deaths. Access to military coup. Within the opposition ranks, clean water, especially for major cities, was Morgan Tsvangirai passed on in February 2018 constrained, with some major cities resorting to paving way for Nelson Chamisa’s rise to lead the water rationing. Commendably, electricity main opposition MDC Alliance party. For the first supply was somewhat steady during 2018. time since independence in 1980, a presidential election was held without Robert Mugabe on the The government took limited steps towards ballot, and the two top contenders from ZANU- security sector reforms, as with law and PF and the main opposition MDC Alliance were institutional reform generally. The National first-time runners for the Presidency. The Peace and Reconciliation Commission (NPRC) Zimbabwe Electoral Commission declared that only started operating in 2018, five years after its President Emmerson Mnangagwa had narrowly constitutional establishment. The Constitutional won a closely contested race, which victory was Court Act is yet to be passed, and an endorsed by the Constitutional Court after the Independent Complaints Mechanism for opposition had challenged the result. Election violation of human rights by the security services observers generally concluded that while as required by section 210 of the Constitution is elections were largely peaceful, they did not yet to be operationalised. Independent meet the benchmarks of a credible election. Constitutional Commissions were severely underfunded, but the Zimbabwe Human Rights Civil and political rights abuses were especially Commission performed significantly well above pronounced, in sharp contrast with the general expectations. pronouncements by the government of opening democratic space under a new dispensation. For While important strides were made, the 2018 the first time in years, soldiers opened fire on human rights violations paint a dark picture, with unarmed civilians in the streets on 1 August 2018 the government significantly implicated in and killed at least six people. President human rights violations. Key recommendations Mnangagwa set up a Commission of Inquiry, led to the government and to Zimbabwe include the by South Africa’s former President Kgalema following: Ÿ Motlanthe, to investigate the 1 August protests National dialogue and unity of purpose - and subsequent post-election violence. Arrests There is urgent need for inclusive national for allegedly insulting the President were at an dialogue that is not confined to political actors all-time high in 2018. Arbitrary arrests of only. Ÿ opposition activists and leaders continued Political will and compliance with the unabated. Police banned protests, and several Constitution - There is need for political will protestors were arrested, some injured in clashes to adhere to best practices in human rights with the police, including students at the and to implement the Constitution. University of Zimbabwe, National University of Institutions demanded by the Constitution Science and Technology, and the Great must be created, resourced, and allowed to Zimbabwe University. Collective job action was operate without interference. Ÿ frowned upon by government which attempted Legislative reforms - Repressive laws such as to fire thousands of protesting nurses from public the Public Order and Security Act (POSA), the hospitals. Zimbabwe Congress of Trade Unions Access to Information and Protection of (ZCTU) officials were detained at their offices in Privacy Act (AIPPA) should be repealed, and Harare and were rounded up in Mutare and alignment of laws to the Constitution must be Gweru, thwarting collective action by the labour speedy and genuine. Current bills presented union. by the government do not meet the mark.

ix STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ Human Rights awareness raising - Human Ÿ Government must be swift and decisive in rights awareness must be advanced as responding to human rights abuses. Selective mandated by the Constitution, and this application of the law must be shunned. The includes ensuring an independent, free and criminal law must never be used to settle impartial media. political scores, and to punish and persecute Ÿ Coordination - Human rights cut across political opponents. various interests and entities, Ministries, Ÿ Law reforms to enhance economic, social departments, arms and spheres of and cultural rights - There is need for law government. Interventions, programming development to ensure that socio-economic and implementation must be well rights are meaningful and have practical coordinated and streamlined. effect in people’s lives. Ÿ Implementation of recommendations from Ÿ Strengthening independent commissions rights treaty bodies - Government should supporting constitutional democracy and speedily implement recommendations from implementing their recommendations - the treaty bodies to which reports are made. Recommendations by constitutional Ÿ Strengthening institutions - Constitutional Commissions should be fully implemented by Commissions and institutions should be the relevant government arms and strengthened and should be allowed to departments. Commissions must be operate independently. The government adequately resourced and staffed. must not create parallel institutions that Ÿ Adequate funding and budgeting - The undermine independent commissions. government should invest more in human Ÿ Security sector reform - The police and army dignity and in the advancement of its people. must not be partisan and must desist from Socio-economic rights should be funded so violating human rights. The independent that rights are progressively realised. complaints mechanism demanded in section 210 of the Constitution must be instituted. Ÿ Accountability and addressing impunity - Accountability and responsibility should be advanced, and those caught on the wrong side of the law must face justice.

x STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 PART 1 LAYING THE FOUNDATION: INTRODUCTION, BACKGROUND AND CONTEXT

1 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 1

INTRODUCTION AND OVERVIEW OF THE HUMAN RIGHTS SITUATION IN ZIMBABWE About the Report This report covers the state of human rights in Zimbabwe in the year 2018. While it is impossible to capture and record every single incident that happened in the year, the report presents and analyses key events and incidences that shaped the human rights landscape, as well as compliance, accountability and impunity.

The report locates Zimbabwe in the global human rights matrix, gives an outline of Zimbabwe’s human rights legal framework and enforcement mechanisms, and comments on progress and challenges experienced. The report looks at violations that occurred; who was responsible; who was targeted; what was done about the violations; accountability; enforcement of human rights and protections; compliance with the law; judicial and non-judicial enforcement of human rights; due process; legal and institutional reform; and the interplay of the macro-economic and political environment and how that affected human rights in 2018, as well as broad comparisons with global standards. The report concludes with recommendations for enhanced protection of human rights in Zimbabwe.

Methodology Emmerson Mnangagwa. 2018 becomes A quantitative and qualitative methodology was especially an important year because it was the used in the preparation of this report, with a mix first year of President Emerson Mnangagwa’s of both primary and secondary data forming the presidency. Mnangagwa began his reign by far- basis of the information presented in the report. reaching rhetoric about opening democratic Reports compiled by researchers, civil society space and expanding freedoms – itself an institutions, inter-governmental organisations acceptance that democratic space in Zimbabwe and government were used, as were media was, hitherto, constricted. reports and legal instruments such as laws, statutory instruments, the Constitution and Chapter 4 of the Constitution of Zimbabwe is a international law instruments on human rights in comprehensive and progressive Declaration of Zimbabwe. This was necessary to generate Rights that places upon everyone, the duties to background information that informed respect, protect, promote and fulfil the rights and significant parts of the report. Key informant freedoms set out in the Declaration. In the interviews were conducted across the spectrum, declaration is the full range of human rights: from including with victims of human rights abuses, civil and political to social, cultural and and this aided in the generation of primary data. economic rights, to third generation rights. The The data was verified through various means, rest of the Constitution supports the protection including through originators and corroboration, of fundamental freedoms through an elaborate to ensure accuracy and consistency. checks and balance system, and the creation of constitutional watchdogs that include Human Rights in Zimbabwe independent commissions which are provided for in Chapter 12 of the Constitution. – 38 years on The November 2017 military coup ended the The Zimbabwe Constitution, and other rule of Robert Mugabe and ushered in that of

2 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 domestic laws, provide for the recognition of While there have been significant reforms made some international laws that are applicable in the with law and institutions, a lot of work remains to country. Zimbabwe is bound by the international be done. Devolution of power to local bill of rights, with is made up of the tripartite government structures, for instance, remains framework of the Universal Declaration of outstanding. Following the adoption of the new Human Rights (UDHR), the United Nations Constitution, a legislative alignment exercise was International Covenant on Economic Social and initiated, driven by the Inter-Ministerial Cultural Rights (ICESCR), and the United Nations Taskforce (IMT) on Legislative Alignment under Covenant on Civil and Political Rights the Ministry of Justice, Legal and Parliamentary (UNCCPR). Added to these are regional treaties, Affairs. The process remains ongoing, with including the African Charter on Human and several laws still contrary to the Constitution. In Peoples’ Rights. 2018, significant judicial pronouncements were made, affecting governance, the conduct of Five years since its establishment however, the elections, media freedoms and human rights 2013 Constitution is yet to be fully implemented, broadly. as is made clear in this report.

Key informant interviews were conducted across the spectrum, including with victims of human rights abuses, and this aided in the generation of primary data.

3 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 PART 2 THEMATIC ASSESSMENT OF THE HUMAN RIGHTS SITUATION IN ZIMBABWE

4 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 2

ELECTORAL DEMOCRACY IN ACTION: THE 2018 HARMONISED ELECTIONS

Zimbabwe went to the polls on 30 July 2018 to elect a President, Members of Parliament, and Local Councillors.

A record number of candidates contested for presidency - 23, among them four women, and an equally record number of political parties - 133 - contested the elections. The Zimbabwe Electoral Commission (ZEC) declared incumbent President Emmerson Mnangagwa the winner with 50.8% of the vote. ZANU-PF won a two-thirds majority in the National Assembly but failed to garner a two-thirds majority in the Senate. Nelson Chamisa launched a Constitutional Court challenge of the presidential result, as ZEC revised Mnangagwa’s percentage of the vote downwards to 50.6.

On 24 August the Constitutional Court dismissed the challenge and confirmed Mnangagwa as the winner, on the basis that challenge did not meet the evidentiary burden required to nullify an election. While a ruling was handed down, the Chief Justice announced that the “fully-dressed” judgment with reasons for the ruling would be handed down, but the year ended before the reasons were handed down.

At the Polling Station

5 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Free, Fair and Credible Elections electoral processes. Furthermore, transparency For the first time in years, western election of the electoral process was compromised by the observers, including the European Union, were manner in which ZEC managed ballot papers procurement, design and printing and packaging, invited to observe the Zimbabwe elections. 1 More than 46 countries and 15 international transmission and announcement of results.” organisations were invited to observe the These violations were confirmed by the ZHRC elections, and ZEC successfully accredited 1,209 which reported that: “The 2018 elections foreign election observers and journalists. Most brought about some improvements compared to international and local independent observers past elections. In as much as the Commission concluded that the harmonised elections were appreciated that the electoral environment up to largely free of violence but did not meet the mark election time was generally peaceful, it was for a credible election. however concerned by the rise in complaints it received, predominantly relating to voter Political parties and civil society organisations intimidation and vote buying disguised as lamented disenfranchisement of certain classes distribution of food aid and Presidential Farming of citizens, an unlevel playing field and biased Inputs. These incidents instilled fear in the state media in favour of the incumbent ZANU- electorate and risked the manipulation of the secrecy of the ballot, thus, infringing the citizens’ PF party. Intimidation was widespread, 2 especially in the rural areas, with voters being freedom to select candidates of their choice.” asked for their registration slips by ZANU-PF functionaries and traditional leaders. This was confirmed by an investigation by the Zimbabwe Human Rights Commission (ZHRC), after complaints of alleged forceful collection of voter- registration slips serial numbers from community members in rural Marondera, Bocha, Marange and Mutasa Districts. The ZHRC said: “Political intimidation and electoral malpractices continue unabated in Zimbabwe. This is largely due to the fact that most leaders at national and local levels lack political will to deal with political violations decisively.” ZEC condemned the practice and said it amounted to intimidation. The Zimbabwe Election Support Network (ZESN) reported that “the integrity of the 2018 harmonised elections was undermined by an uneven pre-election Electoral Reforms playing field. Some of the actions which marred A new voters’ roll was used for the elections the electoral process include widespread following the Biometric Voter Registration (BVR) intimidation of registrants by political actors who system that was used for the first time in the claimed to be able to track individual voting electoral process in Zimbabwe. Despite preferences of registrants whose registration slip challenges that included miscommunication and serial numbers they had recorded. In addition, confusion about BVR registration dates, the the partisan role of some traditional leaders who location of registration centres, and BVR system openly engaged in partisan politics, the partisan registration requirements; misinformation and distribution of food aid, the use of state resources the intimidation of registrants by political actors; in campaigns, biased reporting by the public power challenges affecting the solar powered media, and the rather ineffective stakeholder kits in a cloudy and rainy season; malfunctioning engagement by the Commission also marred the of kits, among others, ZEC managed to register a

1. Page 71 2. ZHRC 2018 Harmonised Election Report

6 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 total of 5,695,706 voters (79% of the eligible Credibility and Independence of the population), 3,073,190 of whom were women Zimbabwe Electoral Commission (54%) and 2,622,516 men (46%). (ZEC) The BVR exercise was enabled through the ZEC was composed largely of personnel loyal to Electoral Laws Amendment Act which was the ruling ZANU-PF party. For the most part, ZEC purportedly introduced to complete the was secretive with information, and was behind alignment of certain provisions of that Act with schedule in terms of the election timelines. For the new Constitution. Apart from minor instance, ZEC failed to release a finalised voter’s amendments to the terminology, the Act only roll until after the nomination court announced, dealt with technical issues affecting the BVR. The on 14 June, the 23 candidates to contest the Act failed to provide a proper legal framework to presidency. facilitate and regulate the electronic BVR system, and it remained a mystery how data would be The voter’s roll ZEC subsequently provided to stored and transmitted, both at registration and opposition parties did not include biometric during the election. information and differed materially from the one used at polling stations on election day. Ballot Importantly, the Act still has provisions at odds papers were printed in an unbalanced layout with the Constitution: with the names of 13 candidates in one column Ÿ ZEC remains compromised under the Act; and 9 in the next such that President Ÿ the right to vote is denied to many groups Mnangagwa's name appeared at the top of the such as those in the diaspora, in prison and second column. In July, High Court Judge David those unable to vote in person on polling day; Mangota dismissed an Electoral Court challenge Ÿ and the Act fails to adequately protect the by the Tendai Biti-led opposition People’s public’s right to freedom of expression and Democratic Party (PDP) which sought a re- right to access information around elections, design of the presidential ballot paper. ultimately violating the right to free and fair elections. On 12 July, ZEC officials were present at Ross Police Camp in Bulawayo when police officers Peculiarly, the amendments addressed in the Act cast ballots in the presence of supervisors, but were initially promulgated under the they did so without observation from opposition Presidential Powers (Temporary Measures) party polling agents in violation of the Electoral (Amendment of Electoral Act) Regulations, 2017 Act. on 15 September 2017.

The Regulations were made in terms of the Presidential Powers (Temporary Measures) Act, which gives the President powers to make ZEC managed to register regulations in the interests of defence, public safety, public order, public morality, public a total of 5,695,706 voters health, the economic interests of Zimbabwe or the general public interest. (79% of the eligible population), 3,073,190 of whom were women Arguably, the Act infringes the Constitution in that it violates the principle of separation of (54%) and 2,622,516 powers by delegating Parliament’s law-making function to the President. men (46%)

7 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Voter Education and Registration While some civil society organisations were accredited by ZEC to conduct voter education, there were hinderances placed on civil society in conducting voter education programs. The NGO, Veritas, filed at least two court cases challenging provisions in the Electoral Act that prohibit NGOs from conducting voter education without prior accreditation from ZEC. Both cases were dismissed by the High Court. To facilitate registration, a reprieve on payments for birth certificates and national identity card services was obtained by the Registrar-General’s office Voters waiting to cast their votes on 30 July 2018 through the Ministry of Finance. From 20 September to 30 November 2017, those who Ÿ prisoners Tungamirai Madzokere, Last needed birth certificates and identity cards Maengahama and Yvonne Musarurwa, services were able to obtain them free of charge. seeking an order compelling ZEC to allow them to vote in the general elections. Some Media Coverage individual born of parents of the Southern According to ZESN, “the media demonstrated an African Development Community (SADC) improved understanding of electoral issues. citizenship with identity cards designated However, there was evidence to suggest that the “Alien” were turned away from voter media was still polarised with regards to coverage registration by ZEC. In terms of section 43 of of electoral issues, despite legal and ethical the Constitution, such individuals are obligations aimed at ensuring impartiality and citizens, and they are entitled to vote and balanced coverage of campaigns, parties, and need not obtain citizenship certificates. High candidates. There was bias in favour of the Court Justice Nyaradzo Munangati- incumbent while opposition and smaller parties, Manongwa ordered that this class of citizens as well as women, got far less coverage. Over six be allowed to register to vote, following an weeks of the election period, ZANU-PF got 52% application by Sarah Kachingwe, a 57-year- coverage while the MDC Alliance got 19%. old woman who had been turned away by Whereas Emmerson Mnangagwa got 57% ZEC officials at Makomo in Epworth on the coverage, Nelson Chamisa got 15%. ZANU-PF basis that she was an “alien”. Zimbabweans in got 76% coverage in State-run newspapers and the diaspora were precluded from voting, 48% on the Zimbabwe Broadcasting Corporation and for the second time in 5 years, the (ZBC), while the MDC Alliance got 17% and 6% Constitutional Court dismissed a challenge by respectively. Furthermore, while the pre-election three Zimbabweans in the diaspora seeking environment witnessed no violations of rights for to vote, in Shumba & 2 Others v Minister of media personnel, seven cases were recorded Justice, Legal & Parliamentary Affairs & 5 after polling, between 1 and 3 August”.3 Others CCZ 4-18.

Disenfranchisement Ÿ Immigrants from SADC countries who were Certain classes of citizens were ineligible to vote. eligible for citizenship were unable to obtain it due to a prohibitive cost of US$5 000 per Specific Violations applicant. Ÿ Prisoners were denied the right to vote, and on 11 July the High Court reserved judgment after presiding over an application filed by

3. ZESN, Report on the 30 July 2018 Harmonised Elections, page 10. Report available at http://www.zesn.org.zw/wp- content/uploads/2018/12/Final-ZESN-2018-Harmonised-Election-Report.pdf

8 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Food Aid Food aid continued to be used as a political tool. Government entities manipulated the distribution of government-provided food aid, agricultural inputs, and access to other government assistance programs such as education assistance, to exclude suspected opposition supporters and to compel support for ZANU-PF from recepients. ZANU-PF supporters threatened to withhold food aid in constituencies such as Hurungwe, Murehwa, and Gokwe during the run-up to the elections. Heal Zimbabwe Trust reported that village heads in Hurungwe Ward 9 told their villagers that government-provided maize seed would only be distributed to those citizens who proved they registered to vote and were ZANU-PF party members.

Involvement of Traditional Leaders Traditional leaders, including village heads, headmen and chiefs, were the frontmen for ZANU-PF in rural constituencies. Chiefs had previously caucused and openly declared their allegiance to ZANU-PF. In 2017, President Mnangagwa gave Chiefs 52 vehicles, and in August 2018, a further 90 top-range vehicles were distributed to Chiefs. During the elections, traditional leaders were at the forefront of demanding voter registration slips, and intimidating voters into voting for the ruling ZANU-PF party.

Specific Cases Ÿ Chief Zvimba (Alfred Tome), on 4 June in Zvimba South addressed a ZANU-PF rally and publicly chanted the ruling party’s political slogans and openly declared support for President Mnangagwa and ZANU-PF party in front of his subjects. Ÿ On 16 May, the Masvingo High Court Judge Justice Garainesu Mawadze granted an order in favour of Elton Steers Mangoma and his Renewal Democrats of Zimbabwe party against the President of the Chiefs Council Chief Fortune Charumbira, National Council of Chiefs and Local Government Minister, banning all traditional leaders from partisan politics. This followed comments by Charumbira during meetings with former President Robert Mugabe in October 2017 in Bulawayo, and again during a meeting of traditional leaders with new President Emmerson Mnangagwa in January 2018 in which he stated that the Chiefs would support ZANU-PF party and its leaders. Ÿ High Court judge Justice Clement Phiri gave Chief Fortune Charumbira a seven-day ultimatum to withdraw his statement that traditional leaders would support the ZANU-PF presidential candidate in the 2018 elections. This was after the Election Resources Centre (ERC) demanded an order compelling Charumbira to retract his statement in a national newspaper and all broadcasting stations in the country. On 28 October 2017 at the annual conference of the Council of Chiefs Charumbira allegedly said: “As chiefs, we agreed during the 2014 congress that Cde (Robert) Mugabe is our candidate for the 2018 elections. We are all united and he is still our candidate. We have been supporting him and we can confirm that winning is guaranteed.” Chief Charumbira, however, refused to comply with the ultimatum to withdraw his statement. Ÿ On 26 June the MDC Alliance filed an urgent chamber application in the Electoral Court challenging President Mnangagwa and ZANU-PF’s entanglement with traditional leaders with a view to direct votes in the ruling party's favour. In particular, the MDC Alliance challenged President Mnangagwa's utterances, which were made on 9 June 2018 to his ZANU-PF party supporters in Mutoko which instigated malpractices to coerce and intimidate voters.

9 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Election Violence The pre-election period was marked by relative peace, comparative to previous elections. Notwithstanding, there were a few skirmishes. Most significant were the events of 1 August, when MDC Alliance supporters demonstrated in the streets of Harare demanding the immediate release of the presidential election results which had been delayed. The demonstrations were violent, and some vehicles were burnt. Military personnel killed six (6) unarmed protestors, and a Soldiers in the street with guns seventh individual died from injuries related to the protests. Thirty-five (35) were injured, and there was massive damage to property. According to the police, army reinforcements were called in after riot police failed to contain the crowds.

It was, however, unclear whether constitutional channels had been followed and the President had deployed the army, as Commander-in-Chief of the defence forces. Close to 40 individuals were arrested in the aftermath of 1 August, mostly MDC supporters and leaders that included MDC Deputy Chairperson Tendai Biti, Highfield West constituency MP-Elect Happymore Chidziva and Chamunorwa Madya, the Deputy Secretary-General for the MDC Alliance Youth Assembly. All were released on bail. Following the incidents of 1 August, A police officer holding a gun in Harare President Emmerson Mnangagwa, appointed a Central Business District Commission of Inquiry to determine what transpired and offer recommendations for redress. The President appointed a seven- member Commission chaired by Kgalema Secondly, President Mnangagwa, who Motlanthe (former President of South Africa). constituted the Commission and appointed Several concerns were raised about the commissioners, was an interested party who Commission. went on to pick individuals considered to be conflicted, among them Professor Charity Firstly, the Commission was appointed to do Manyeruke, a known ZANU-PF activist and work which police could and should have done. Professor Lovemore Madhuku, a leader of a The Commission ended up recommending minor opposition party, and a losing presidential further investigations – all work of the police. The candidate in the July 30 elections. On 7 Commission did not identify who the November, High Court Judge Justice David perpetrators were. Mangota dismissed an application filed by a relative of a shooting victim challenging the legality of President Emmerson Mnangagwa’s

10 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 decision to appoint the Commission. Thirdly, the polarisation of the witnesses who appeared Secretariat of the Commission was housed at the before it, stating in its report that there was a “a Ministry of Justice, Legal and Parliamentary very worrisome degree of polarisation and Affairs, which compromised the independence bitterness within the body politic of Zimbabwe.” of the Commission. Ultimately the Commission released weak, hazy and cosmetic recommendations, without The submission and presentation of evidence specific identification of perpetrators and before the Commission was marred with politics. specification of sanctions. To date, the The Zimbabwe Human Rights NGO Forum government has taken no concrete and visible attempted several times to ensure that certain steps to implement the recommendations. evidence was placed before the Commission, President Mnangagwa subsequently promoted without success. The Forum presented to the Brigadier-General Anselem Nhamo Sanyatwe, Commission the names of 17 eyewitnesses to the the commander of the military unit that events of 1 August, but these were never called conducted the 1 August shootings, to the rank of to testify. Yet the Commission lamented the Major-General Presidential Guard.

Police officers in Harare Central Business District

Specific Cases Ÿ On 16 February, Abel Mauchi of Matuvi village under Chief Makore in Gutu, Masvingo, filed summons demanding $10 000 in damages from ZANU-PF supporter Matora Masiiwa, who assaulted him after he refused to surrender his voter registration slip containing his serial number and other personal information. Musiiwa was arrested and charged with assault.

Ÿ On 4 March, supporters of Nelson Chamisa assaulted supporters of the then MDC-T Vice President Thokozani Khupe at a party meeting in Bulawayo.

11 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ In May 2018, visually-impaired disability rights activist Abraham Mateta brought a challenge to the High Court in which he sought an order for ZEC to print ballot papers in a manner accessible to visually impaired voters so that they can exercise their right to vote by secret ballot as guaranteed in section 67(3) of the Constitution. Currently visually impaired voters cast their ballot through an assistant of their choice, which removes absolute secrecy. Judge Hungwe dismissed the case with costs days before the election, without giving full reasons for the judgment.

Ÿ On 23 June a grenade blasted at White City stadium in Bulawayo killing two people and injuring 49. President Emmerson Mnangagwa was holding a rally.

Ÿ MDC Alliance supporters of two rival primary candidates assaulted each other in the Harare suburb of Epworth on 2 June, 2018.

Ÿ In June, Electoral Court Judge Justice Neville Wamambo presided over a case in which Harare Mt Pleasant Heights residents Warship Dumba and Celime Eunice Nyakutsikwa petitioned the Electoral Court to reverse ZEC’s decision to transfer them from voting in their traditional Ward 17 in Mt Pleasant constituency in Harare to Mazowe South constituency under unclear circumstances. ZEC had not gazetted the delimitation of the constituencies to indicate the shift of boundaries as required in terms of the Electoral Act.

Ÿ In July police arrested ZANU-PF supporters for allegedly threatening to burn the house of United African National Council parliamentary candidate Silver Chiripanyanga in Mashonaland East province. Members of the opposition MDC Alliance also carried out acts of intimidation and committed abuses, although at a much lower rate than did ZANU-PF supporters. This included intra-party violence.

Ÿ The Amalgamated Rural Teachers Union of Zimbabwe (ARTUZ) was granted an order by Masvingo High Court Judge Justice Mafusire in which it was ordered that ZANU-PF must stop using school children and school property for political rallies and must stop forcing teachers to contribute financially to political rallies and to attend. Leave to execute judgment was granted, but the Supreme Court discharged the order on appeal by ZANU-PF. The Supreme Court ruling was handed down a day before ZANU-PF’s final star rally at the National Sports Stadium in Harare, and ZANU-PF proceeded to use school buses to ferry its supporters from all over the country to the venue.

Ÿ On 26 July the High Court ordered ZEC to ensure that teachers and all other civil servants, serving as electoral and polling officers or in any capacity, who were registered voters, be allowed to vote on 30 July. Justice Isaac Muzenda granted the order in favour of ARTUZ, which on 11 July filed an urgent chamber application seeking to compel ZEC to ensure that teachers deployed as polling officers were entitled to vote in the general elections. Unlike in previous elections in which a person registered in a constituency could vote at any polling station within that constituency, the 2018 harmonised elections were polling station-based in terms of section 22A (3) of the Electoral Act. Teachers posted elsewhere for work would otherwise have been unable to vote.

Ÿ Electoral Court Justice Mary Zimba-Dube dismissed with costs the electoral petition lodged by MDC Alliance candidate Gift Konjana for the Chegutu West constituency seeking an invalidation of ZANU-PF candidate Dexter Nduna’s victory. ZEC had initially announced Nduna as the winner with 10 932 votes, and Konjana with 10 828 votes, but ZEC later stated

12 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ that they had mixed up the figures. Despite the error admission, ZEC could not unilaterally change the announcement and the Electoral Court had to change the announcement. But Justice Dube ruled on a technicality that the petition lodged by Konjana failed to meet the strict rules of procedure in electoral petitions and was thus fatally defective in that it did not comply with the requirements of electoral rules.

Ÿ Masvingo High Court judge Justice Garainesu Mawadze dismissed with costs a challenge brought by MDC Manicaland provincial chairperson David Chimhini, the losing MDC Alliance losing candidate for Mutasa North Constituency who sought an order to compel ZEC to conduct a ballot recount in Mutasa North constituency, where he lost to ZANU-PF’s Chido Madiwa by 298 votes. ZEC turned down his request for a recount in eight polling stations.

Ÿ On 3 August, MDC Alliance leader Nelson Chamisa’s post-election press conference at Bronte Hotel was disrupted by heavily armed anti-riot Police. Anti-riot police arrived at the press conference venue and ordered journalists out. Reportedly, president Mnangagwa dispatched minister Simon Khaya Moyo to order the police away. The President later that evening announced that he would order an investigation into what transpired. The investigation was never instituted.

Ÿ MDC Alliance official Morgan Komichi was charged for contravening section 186 of the Electoral Act after he was arrested in August for allegedly interrupting ZEC proceedings and announcing his rejection of the elections management body’s official results.

Ÿ Human rights lawyer and MDC-Alliance Vice-Chairperson Tendai Biti was charged for contravening provisions of the Electoral Act. He was arrested in August and charged with contravening the Electoral Act for allegedly unlawfully and unofficially announcing the presidential election results.

13 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 3 GOVERNANCE

“My Government will work towards ensuring that the pillars of the State assuring democracy in our land are strengthened and respected. […] At the end of the day, whatever we do or choose not to do must be intended to benefit all our people.” - President Emmerson Mnangagwa, Inauguration speech at the National Sports Stadium on 24 November 2017.

Good governance is key to a culture of human rights respect. Human rights as a culture and practice emanates from accountability and fidelity to the rule of law, and this culture has a lot to do with how governance is done. Broadly, issues of government structuring and institutions, accountability and transparency, the legal framework and alignment of laws and structures to the Constitution, devolution and constitutionalism come to the fore.

Legal Reform new Parliament. Among those falling under Post the 2013 Constitution, the Inter-Ministerial constitutional alignment and devolution were Task Force on Legislative Alignment (IMT) which the Constitutional Court Bill, Customary Law was created and housed within the Ministry of and Local Courts Bill, High Court Amendment Justice, Legal and Parliamentary Affairs to Bill, Traditional Leaders Amendment Bill, Rural spearhead the legislative alignment process District Councils Bill, Provincial and identified a total of 206 statutes as requiring Metropolitan Councils Bill and the Public alignment. The legislative alignment process has Finance Management Amendment Bill. As at the been ongoing since 2013. For the most part, the end of 2018, none of these Bills had been government has engaged in technical and completed and passed. This meant the piecemeal as opposed to substantive alignment. devolution agenda, for instance, was yet to have This has brought into question government’s a statutory framework. Veritas, a local legal think commitment to usher-in genuine reform to the tank, identified omissions from the legislative governance and human rights legal framework in agenda, including security legislation such as the the country. Although the government denies it, Defence Act, Police Act and the Prisons and there have been significant delays in aligning Correctional Services Act – all of which need legislation to the Constitution. In an interview in further alignment to the Constitution. 2017, the Permanent Secretary in the Ministry of Justice, Legal and Parliamentary Affairs, Mrs Public Trust of Public Institutions and Virginia Mabhiza, stated that there were no Freedom To Voice Opinions delays and a mere plus or minus 30 Acts Public trust in government institutions was rather 4 remained outstanding. The government shaky. Afrobarometer tracked Zimbabweans’ purported to amend 125 Acts through the perceptions of the police force right from when General Laws Amendment Act. Some new Acts they first started conducting surveys in 1999 up were passed. However, ssignificant areas of until just before the 2018 elections. While the alignment remained untouched. During data did not capture public sentiment after 1 President Mnangagwa’s State of the Nation August 2018, Afrobarometer found that only Address to Parliament in September 2018, he 41% of people felt free to criticize the police in outlined the Government’s legislative agenda for the post-November 2017 phase. In contrast, the next year – the Bills that Government would only 25% of people felt free to criticize the army, present to Parliament and expected to be passed and only 35% of people felt free to criticize during the 12-months-long First Session of the President Mnangagwa. Public trust in the three

4. “No delays in aligning laws: Mabhiza”, The independent, 25 August 2017, https://www.theindependent.co.zw/2017/08/25/no- delay-aligning-laws-mabhiza/

14 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 institutions tasked with maintaining security, law is however constitutionally questionable as it and order (the police, the military and the courts) violates the principle of separation of powers by has never risen above 65% since the turn of the delegating Parliament’s law-making function to millennium. When popular trust in the police is the President. The use of the Act to enact these disaggregated by partisan affiliation, those who amendments was also not justifiable in terms of aligned with ZANU-PF were seen to have the any public emergency. The use of Presidential highest levels of trust in the police, while those Powers was challenged in the High Court in aligned with the MDC had the lowest. In the March 2018 by pro-democracy campaigner middle, the percentage of non-partisan people Mfundo Mlilo, but the challenge was dismissed who trusted the police ranged from a low of 35% by High Court judge Justice David Mangota.5 in 1999 to a high of 49% in 2018. Institutional Reform and Legal Devolution Compliance Devolution is a significant new addition to the A historical assessment of human rights in 2013 Constitution. Between 2013 and 2017 Zimbabwe reveals that the security sector has devolution was largely ignored, and it was been implicated as both a human rights violator agitated for primarily by opposition political and an enabler of human rights violations. parties. However, with the coming in of Section 210 of the Constitution demands in President Mnangagwa, part of his key promises peremptory terms the passing of an Act of was to drive the devolution agenda. In his Parliament that provides for an effective and inauguration address at the National Sports independent mechanism for receiving and Stadium on the 26th of August 2018, the investigating complaints from members of the President stated that: “As per our pledge during public about misconduct of members of security the campaign trail, my Government will be services, and for remedying any harm caused by implementing the Constitutional provisions with such misconduct. This is yet to be done. In 2016, regards the devolution of Government powers Veritas made a Constitutional Court application and responsibilities. Provinces will now be to compel the government to bring a Bill before expected to plan and grow their provincial Parliament to set up an independent complaints economies. Economic development at every mechanism. But the court is yet to deliver a level is the ultimate goal.” 2018 ended with the ruling. Veritas remarked in relation to the 1 government was yet to make good the promise August army killing that if the section 210 of devolution. Independent Complaints Commission were set up, “The police would have thought twice about Use of Presidential Powers calling in the army. The army would have taken The amendments addressed in the Electoral more care if they knew they would be held to Amendment Bill which was passed by account. Relatives of the deceased could have Parliament in 2018 were initially promulgated turned to it for a proper investigation of the under the Presidential Powers (Temporary shootings, instead of having to rely on a Measures) (Amendment of Electoral Act) commission of inquiry which lacks investigatory Regulations, 2017 on 15 September 2017. The powers beyond summoning and questioning Regulations were made in terms of the witnesses.” 6 Presidential Powers (Temporary Measures) Act, which Act purports to give the President power Between 2013 and 2017 to make regulations in the interests of defence, public safety, public order, public morality, devolution was largely ignored, public health, the economic interests of and it was agitated for primarily by Zimbabwe or the general public interest. The Act opposition political parties. 5. Mlilo v The President of the Republic of Zimbabwe HH 236-18. 6. “Set up independent body to investigate complaints against security services, govt urged”, Newsday, 21 September 2018, https://www.newsday.co.zw/2018/09/set-up-independent-body-to-investigate-complaints-against-security-services-govt-urged/

15 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Specific Cases Ÿ In May President Mnangagwa created a Special Anti-Corruption Unit within the Office of the President to carry out investigations, bypassing the constitutionally mandated Zimbabwe Anti- Corruption Commission. The Special Unit placed handpicked prosecutors directly under President Mnangagwa’s control, in violation of the Constitution.

Ÿ On 22 November 2018, police physically attacked opposition MPs at Parliament during the 2019 budget proceedings. Speaker Advocate Jacob Mudenda had called in the police to evict opposition MPs for defying his order that MPs should stand up for President Mnangagwa as he entered the chamber. The attack left dozens of the MPs, especially female MPs, traumatised. Two MPs got injured. This was the second time in two years when members of the police were called into the House of Assembly chambers to remove opposition MPs. While MPs may be temporarily removed from Parliament for unruly behaviour, and may be held in contempt, the rules of Parliament do not give any authority to the invasion of Parliament by the police.7

Ÿ There have been delays in enacting enabling legislation for certain key institutions. The National Peace and Reconciliation Commission Act operationalising the National Peace and Reconciliation Commission was only promulgated in January 2018, five years after the coming into effect of the new Constitution, and five years before the lifespan of the time-bound Commission expires. Six years into the passing of the new Constitution, a Constitutional Court Act as contemplated by the Constitution is yet to be passed. Key legislation meant to give effect to the constitutional provisions on devolution is yet to be enacted.

Ÿ Government was behind schedule in its law development agenda. 12 of the Bills on the President’s legislative agenda were in the previous session’s agenda under President Mugabe – at least from 2016.

7. See full legal opinion by Musa Kika “It is illegal and unconstitutional for the police to enter the chambers of parliament and arrest or remove MPs” 23 November 2018, http://kubatana.net/2018/11/23/illegal-unconstitutional-police-enter-chambers-parliament-arrest- remove-mps/

16 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 4

THE ECONOMY: IS ZIMBABWE OPEN FOR BUSINESS? “The lesson from history for governments is that you cannot manage the economy with propaganda. In fact, you can engage in all the propaganda you want but if the macroeconomic fundamentals are weak, the exchange rate will expose you.” Dr. Mahamudu Bawumia, May 2012.

In both his November 2017 and August 2018 inauguration speeches, President Emmerson Mnangagwa outlined that opening business space and fostering economic development would be mainstay of his administration. Along with this was a spirited call for foreign direct investment (FDI). Government launched a Transitional Stabilisation Programme 2018-2020 which contains the government's plans to ensure financial stabilisation, stem out liquidity challenges, and attract FDI and improve the balance of trade to boost economic growth. The state-run Sunday News of 27 May 2018 reported: “Since taking office last November, President Mnangagwa’s business-oriented administration has signed deals worth US$16 billion, most of which are greenfield investments, while others are projects that were stymied by the old administration.” 8 Zimbabweans are yet to see the material benefits of the so-called mega deals.

Macroeconomic Performance factor markets. The fiscal deficit was an On the global scale, Zimbabwe's economic estimated 10.7% of GDP in 2018, compared collapse showed up in every international rating with 12.5% of GDP in 2017, financed mainly of the economy. In the World Bank’s Doing through domestic borrowing. In 2018, the Business 2018 index, Zimbabwe ranked 159 out government proposed addressing the of 190; in the Cato Institute’s Economic Freedom unsustainable budget deficit with strong fiscal of the World listing for 2018, Zimbabwe ranked consolidation measures. The fiscal deficit was 127 out of 162; in the World Economic Forum’s driven mainly by election- related spending, civil Global Competitiveness Report of 2018, servant salary increases, and transfers to the Zimbabwe ranked 128 out of 140; in the agricultural sector. Total external debt was an Heritage Foundation’s Index of Economic estimated 45.3% of GDP in 2018, down from Freedom 2018, Zimbabwe ranked 174 out of 53.8% in 2017. The current account deficit was 180; and in the Bertelsmann Stiftung's an estimated 3.7% of GDP in 2018, with Transformation Index (BTI) 2018, Zimbabwe merchandise imports continuing to exceed ranked 113 out of 129 countries. However, exports, putting pressure on the supply of according, to the African Development Bank urgently needed foreign exchange and making it 9 African Economic Outlook (AEO) 2019 critical to diversify exports. macroeconomic assessment of Zimbabwe, the economy performed better than expected in 2018, expanding by an estimated 3.5%, driven The fiscal deficit was an by agriculture, supported by relatively peaceful estimated 10.7% of GDP in elections. Cash shortages and the three-tier pricing system coupled with foreign exchange 2018, compared with 12.5% shortages continued to constrain the goods and of GDP in 2017 8. “$16 billion deals bear fruit”, The Sunday News, 27 May 2018, https://www.sundaynews.co.zw/16-billion-deals-bear-fruit/ 9. African Development Bank Group “Zimbabwe Economic Outlook” https://www.afdb.org/en/countries/southern- africa/zimbabwe-economic-outlook/

17 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Preparing for the 2019 Budget Proceedings at the Parliament

According to the World Bank, for Zimbabwe, the Zimbabwe’s unsustainable fiscal deficit widened year 2018 was marked by subdued economic from 8.5% in 2016 to 15.2% in 2017 and was growth – projected at 3%, down from 3.2% in projected to surpass that level in 2018. The 2017.10 The World Bank stated that the year government was financing the fiscal deficit started on solid ground in terms of global largely through domestic borrowing from both appetite for re-engagement, but this appetite commercial banks and Central Bank using an fizzled out particularly in the aftermath of the overdraft facility. The overdraft created elections. By and large the international electronic deposits or Real Gross Time community began to cite insincerity in the Settlement (RTGS) in the banking system government’s desire to turn over a new leaf in allowing the government to make payments democratic practices. The country’s protracted without concomitant increases in US dollar cash fiscal imbalances constrained capital and balances. This resulted in a mismatch between development expenditure and social service $US cash balances and RTGS balances. Cash provision, undermining poverty reduction US$ versus RTGS dollar exchange rate efforts. Over 90% of the government budget was weakened (from US$1:1.4 RTGS in January consumed by the wage bill of the civil service. 2018 to over 1:2 at end September 2018). According to the Reserve Bank of Zimbabwe, annual headline inflation increased by 11.09% to 42.09% in December 2018, from 31% in The World Bank stated that the November 2018. year started on solid ground in The public sector which comprised of most terms of global appetite for employees in the country did not adjust their employee salaries to reflect inflation and shifts in re-engagement, but this appetite exchange rates, bearing in mind the 1:1 regime officially maintained between the United States fizzled out particularly in the Dollar and the Zimbabwean bond. aftermath of the elections.

10. https://www.worldbank.org/en/country/zimbabwe/overview

18 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Zimbabwe Food Inflation

100 92.4

78.4 80 69.8 63.7 53.6 60 42.7 40 26.7 20 7.6 8 4.89 5.12 6.33 0 July Oct Jan Apr 2018 2018 2019 2019 Source: tradingeconomics.com | Reserve Bank of Zimbabwe

2018 Inflation Rate (%) Annual

45 40 35 30 25 20 15 10 5 0

July April May June March August January ebruary F October September November December Source: Reserve Bank of Zimbabwe

Unemployment stood at just 6.6.% of the economically active While the country has one of the most youthful population of 5.6 million people. 52% of these, populations, with the population ages 15-34 ZimStats claimed, were employed in the accounting for more than 36% of the total agricultural sector, amounting to 2.9 million, and population, employment opportunities 18.8% were self-employed in different sectors of continued to dwindle. In 2018, the Zimbabwe the economy, while the rest were employed in Statistics Agency (ZimStats) launched the 2017 other sectors. These figures however were Inter-Censal Demographic Survey (ICDS) which dismissed by independent analysts and labour reported that 93% of the population was unions who pegged the unemployment rate in employed in one way or another. According to Zimbabwe to be somewhere between 80 and the survey, Zimbabwe’s unemployment rate 90%. The ZCTU described the government-

19 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 driven unemployment statistics as misleading Corruption and Corruption-Fighting and unreliable. An estimated 30 000 graduates Corruption was rife in the country. The come from Zimbabwe’s 16 tertiary institutions Zimbabwe Anti-Corruption Commission (ZACC) each year, and the job market is unable to absorb did little to combat corruption. The Commission these graduates. The reality is that most was largely seen as a tool at the whims of Zimbabweans worked in the informal sector. politicians. In general, any corruption-busting appeared to be with a political agenda: only Impact of Economy on Human Rights known opponents of the political establishment According to the Zimbabwe Vulnerability were seen being charged with corruption. In Assessment Committee, the number of food February President Mnangagwa ordered a insecure people increased by July 2018 among mandatory declaration of assets by senior 28% of the rural population. Financial policy officials. Arrests of senior government officials reforms led to an acute foreign currency crisis followed; however, most were Mnangagwa's resulting in price hikes of commodities and political opponents or supporters of Grace services. Local transport costs doubled in the Mugabe's Generation 40 (G-40) faction. These second half of the year. Pharmaceutical goods include former G40 Ministers Ignatious were being sold in hard currency or in local Chombo, Makhosini Hlongwane, Jaison currency equivalent to the value of the hard Machaya and sacked ZANU-PF youth leader currency. This left people vulnerable. Further to Kudzai Chipanga. In May President Mnangagwa the high inflation rate, the government took an created an anti-corruption body within the initiative to demolish flea markets in city centres Office of the President to carry out like Harare and remove vendors and traders that investigations, bypassing the constitutionally were operating unlawfully in towns. According mandated ZACC. The Commission took up to the Women and Law in Southern Africa cases that went nowhere. Of all the high-profile (WILSA), price increases had an impact on family cases involved senior politicians investigated by and gender-based violence, and the hyper ZACC, not a single case resulted in a conviction. inflationary environment predisposed women to Several trials were yet to kick off by year end. extreme poverty.11 On 1 October 2018, Finance There were cases where ZACC did not act, Minister Mthuli Ncube reviewed the where everyone saw reasonable suspicion of Intermediated Money Transfer Tax from 5 cents corruption. per transaction to 2 cents per dollar and to also forthwith suspended the Finance (Rate and Incidence of Intermediated Money Transfer Tax) Regulations published in SI 205-2018. This raised concerns on the costs of transactions given that this 2% tax on electronic transactions would affect the poor, of which most transacted through electronic platforms.

Financial policy reforms led to an acute foreign currency Selling cash (bond notes and coins) at a premium to a citizen in need of cash crisis resulting in price hikes of commodities and services.

11. Women and Law in Southern Africa (WILSA) “The impact of price increases in Zimbabwe on family & GBV” Hilda Mahumucha, 14 May 2019. http://wlsazim.co.zw/the-impact-of-price-increase-in-zimbabwe-on-family-and-gbv/

20 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 5

SOCIO-ECONOMIC RIGHTS: LIVING IN DIGNITY “Cholera loves filth. Anything soiled, polluted or corrupt. Where politics and tainted water mix, it gives cholera life - and spells death to the poor and malnourished. Where there is no corruption, there is no cholera. Clean water with clean politics abolishes it”. - Oxford Handbook of Clinical Medicine.

Scarcity of water supply

Water and Sanitation – were witnessed, and in dry season. Cholera The right to a clean environment is provided in and typhoid are preventable diseases that can section 73 of the Constitution and the right to only be eradicated when sanitation is properly safe, clean and potable water provided in section managed. Local authorities and the government 77 of the Constitution. Zimbabwe is contributing have not been properly managing the water and to the estimated 4.5 billion people who are living sanitation situation. Bulawayo and the without safely managed sanitation, and the Matabeleland region remained in a precarious country is not on track to reach SDG 6, on water situation. Harare and Bulawayo were provision of adequate sanitation. Outbreaks of rationing water as their sources had depleted cholera and typhoid - waterborne diseases – due to low rainfall activity and siltation. The

21 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 majority of local authorities in the country also Access to Electricity proposed water rationing. According to the Electricity supply across the country was UNICEF Water, Sanitation and Hygiene (WASH) somewhat steady, albeit Zimbabwe remained in programme, the water and sanitation situation in energy deficit. Zimbabwe required 2,400 MW in Zimbabwe faces many challenges around energy production to meet national demand, capacity, behaviours and the lack of investment but only produced an average of 1,200MW. In in these sectors during and after the economic 2017, the country completed the extension crisis of the last decade. According to the Harare project of Kariba South Power Station which Residents’ Trust, residents experienced water added 300MW to the national grid, adding the disconnections, shortages, and sewerage bursts total installed capacity at Kariba to 1050MW. increases, providing breeding ground for Although the Zimbabwe Power Company (ZPC) typhoid, cholera and dysentery. The Community surpassed its energy delivery target for the third Water Alliance warned that unless the water quarter of 2018, Zimbabwe had a daily power crisis in the country was attended to, a disaster deficit of between 300MW and 600MW and loomed. spent between $7 million and $10 million a week on power imports from Eskom of South Africa and Hydro Cahora Bassa of Mozambique. The efficacy of this hydro project however is dependent on water levels.

Health The right to health was severely compromised by crippling industrial action by health professionals. Added to that was shortage of critical drugs and equipment at public health institutions. Most people depend on the public Children caring a bucket of water walking health system. The challenges in the health in a sewerage burst sector have over the years been exacerbated by inadequate funding to the Ministry of Health and The national waste management problem was Child Care. A cholera outbreak in September most clear in Harare. The Harare City Council killed about 50 people. Self-styled prophet, failed to cope with a rise in the number of people Walter Magaya, was convicted on behalf of his moving from rural areas into the city. In the past company Aretha Medical, for contravening the 30 years, population in the capital has doubled Medicines Control Act by selling an unapproved to more than 2,1 million people. Refuse drug which he claimed cured HIV and AIDS. He collection was not regular in suburbs, and was was fined $700. The Ministry of Health had prior halted completed in some areas. to that engaged him to withdraw his claims, which put people at risk of absconding on approved medication. The country has more than 1.4 million people living with HIV and AIDS, and 1.2 million are anti-retroviral treatment.

The national waste management problem was most clear in Harare Children play on uncollected garbage in Harare

22 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Specific Cases Ÿ Unions representing nurses and doctors embarked on industrial action during the year following breakdown of discussions with their employer the Health Professions Board. Junior doctors at public hospitals went on a month-long crippling strike in March demanding better pay and working conditions. In mid-April the government summarily dismissed 16,000 nurses after they went on strike for better working conditions a day after junior doctors ended their strike. The nurses challenged the dismissal in court, but withdrew the challenge following engagements with their employer.

Ÿ Beginning in December, doctors were on strike for over 40 days. Civil society organisations issued a statement calling upon the government to urgently address the dire situation facing hospitals as a result of the strike by doctors. As a solution, government sought to engage inexperienced recent graduates from medical schools with limited practical exposure to take over from the striking doctors, a dangerous and risky manoeuvre that would have put the lives of innocent patients at risk. Fortunately, this did not happen. The impasse resulted in loss of life and suffering. At some referral hospitals, some wards were closed due to lack of adequate manpower as a result of the strike. Emergency services were also no longer readily accessible at some hospitals.

Ÿ The country experienced a devastating cholera outbreak. By October, more than 6,000 cases were reported and an estimated 50 deaths.12 The outbreak was declared a national crisis by President Emmerson Mnangagwa. There were subsequent on and off scares in Manicaland, Mashonaland Central, Epworth and some districts across the country.

Children playing with uncollected garbage risk to have diseases

Labour Rights vending. There were running battles between Government continued to frown upon collective the Municipal Police and the and the ZRP in job action. This is evidence by its reaction to the major cities, especially in Harare, as the police doctors’ and nurses strikes mentioned above. were trying to get vendors off the streets. Several The ZCTU was at the receiving end of arrests vendors were arrested, and had their wares following their threats to engage in protests confiscated. Vendors were often arrested, fined across the country over the 2% tax on electronic and released on numerous occasions throughout transactions imposed by the Minister of Finance the year. Police action in seeking to clear the in October. By far the biggest informal CBD of vendors also targeted commuter employment sector in the country was in transport operators. On 22 February the conduct

12. https://www.worldbank.org/en/country/zimbabwe/overview

23 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 of the ZRP led to the death of two people, during Housing, Land and Evictions a government backed operation to outlaw Section 74 of the Constitution guarantees commuter omnibus operators and informal freedom from arbitrary eviction. This freedom traders from operating in Harare’s CBD. includes people’s freedom from eviction from their homes or have their homes demolished Education without an order of Court after the Court has See Chapter on Children taken consideration of all the relevant circumstances of that matter. Recently in City of Humanitarian and Food Assistance Harare v Mukungurutse SC 46-18 the Supreme Due to economic crisis compounded with Court reiterated this position. Notwithstanding erratic rainfall, severe food insecurity escalated this legal position, Zimbabweans experienced and according to the UN Office for the threats to this right, including from government coordination of Humanitarian Affairs, nearly 3.5 departments and/or individuals affiliated to million people in Zimbabwe were estimated to government or to people in government. The be in urgent need for humanitarian assistance. government established the Zimbabwe Land Commission in 2015 as a mechanism for Of that figure over 3,8 million were rural based dispossessed farmers to claim compensation for and most of them women. seized lands. In January the government announced it would grant white farmers 99-year According to a Famine Early Warning Systems leases on their remaining land, but the Network (FEWSNET) some families were forced Commercial Farmers Union (CFU) reported that to adopt feeding timetables due to economic none of its members had received a 99-year challenges, raising fears of acute malnutrition. leases, citing in part a cumbersome application process set by the Ministry of Lands and Resettlement.

Specific Cases Ÿ Police in Rusape were taken to court for allegedly destroying 77 farm workers’ property during a forced eviction at Lesbury Farm in June 2017 to pave way for the new farm owner, government-affiliated Bishop Trevor Manhanga. The workers also filed for compensation. 13 Police officers had besieged Lesbury Farm, popularly known as KwaSmart, and violently evicted the farm owner, Robert Smart, his family and workers to pave way for Bishop Manhanga, who was being rewarded for “praying for the former First Family”.

Ÿ In December, 46 families and 136 children petitioned the High Court seeking restoration of occupation of land at Nharira Hills located at Somerby just outside Harare from which they were forcibly evicted. The land is at a sacred heritage site. The people were left homeless after members of the ZRP forcibly carried out the evictions on 14 December without a court order. HFM Marketing, a quarry mining company that was claiming the land had engineered the evictions using the ZRP.

Ÿ On 7 November almost 300 people including children and women in Chimanimani were saved by the High Court from eviction after the Zimbabwe Parks and Wildlife Authority (ZimParks) sought to evict them. The Vhimba people in Risitu, Chimanimani under Chief Ngorima in Chikware and Mapombere villages who had been issued with a 72 hours eviction notice by ZimParks, and the court ruled that such eviction would amount to unlawful and arbitrary evictions on the 27 families.

13. “77 farm workers sue police over vandalised property, torture”, Newsday, 7 February 2018.

24 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 6

CIVIL AND POLITICAL RIGHTS: THE FREEDOM TO WALK, TALK AND ACT “Criminal law must never be used as a means to silence opposition or persecute human rights defenders, which also necessarily has a chilling on others who perform critical human rights work. It is important that the police do not arrest to investigate but they must investigate before they arrest.” Arnold Tsunga, Director International Commission for Jurists – Africa.

The Declaration of Rights in Zimbabwe enshrines justiciable socio-economic rights, in a manner that to a significant extent domesticates the ICESCR. Notwithstanding, there is a dearth of progressive legislation to consummate the promise of the Constitution when it comes to protection of socio- economic rights. While socio-economic rights are dependent on available resources, access to these rights must be controlled by legislation in the way of ensuring minimum standards and ensuring that government takes reasonable steps in implementing reasonable plans with reasonable, practical and measurable milestones. Arrests and Detention government did not hold accountable members The numbers of people arrested in the aftermath of the police who killed two civilians during a of 1 August 2018 protests were significant. protest in Harare on 22 February 2018. Several Arrests were predominantly in Harare and were detentions were unlawful. In some cases, linked to the protests over delayed release of security forces arbitrarily arrested journalists and presidential election results. Gweru also political and civil society activists, and then witnessed some protests, although arrests in that released them without charge. Several arrested city were not pronounced, with the charges individuals were assaulted and tortured by the being primarily of public violence. The army police at the point of arrest. Authorities often did continued to arrest and detain people, despite not allow detainees prompt or regular access to lacking a constitutional mandate to do so. Local their lawyers and often informed lawyers who media and NGOs reported that plain-clothed attempted to visit their clients that detainees or state security agents abducted MDC Alliance those with authority to grant access were Information and Public Secretary Simbarashe unavailable. This was especially in respect of Mujeye and his brother from their Chitungwiza people seen as “enemies of the State”. The home on 2 August 2018. The agents handcuffed government also monitored, harassed, and and beat him while demanding to know the intimidated human rights lawyers when they whereabouts of senior MDC leaders. The men attempted to gain access to their clients. then took Mujeye to Harare Central Police Significant short-circuiting and truncating of due station on charges of inciting public violence. process was reported in the criminal justice Soldiers moved through suburbs of Harare and system, particularly in cases involving opposition Chitungwiza between 2 and 7 August, beating political players. supporters of the opposition MDC Alliance, firing gunshots outside the homes of its MPs and sealing off the homes of leaders’ families. There The army continued to arrest were reports of impunity involving the security forces during the year. For example, the and detain people

25 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Specific Cases Ÿ A group of 24 MDC Alliance members were locked up and detained without food or water at the MDC Alliance’s Headquarters in Harare by the police who kept watch at the entrance for two days. The police subsequently arrested the group and transported them to Harare Central Police Station in a police truck. The group was further detained before being taken to court. The group was given bail and was not tried by the end of the year.

Ÿ At the end of 2018, members of the Amalgamated Rural Teachers Union of Zimbabwe (ARTUZ) were arrested after their march from Mutare to Harare agitating for a living wage for teachers pegged in US dollars.

Ÿ On 13 July, police arbitrarily arrested three MDC Alliance members when they attempted to observe postal voting at a police camp in Mutare, citing trespassing and violation of the Electoral Act. The trio was not charged. Similarly, prosecutors declined to charge three ZCTU members in Gweru who police arrested for demonstrating against government economic measures on 11 October.

Ÿ Two individuals were arrested and taken to Braeside Police Station in Harare and were severely beaten by Criminal Investigation Department (CID) officers using sledge hammers. Their lawyer was denied access while the officers were assaulting the two. One of the clients appeared in court the following day at Mbare Magistrates Court with a blood-stained shirt. The lawyers protested the conduct in court, and the State’s response was simply that they would investigate. Nothing was ever done about the violations.

Ÿ Senior MDC Alliance official Tendai Biti was detained while trying to flee Zimbabwe via Zambia and was forcibly returned to Harare on 9 August. Biti was initially denied access to legal counsel and was subsequently charged with inciting violence and unlawfully announcing election results. ZLHR reported that police severely assaulted Biti’s lawyer and deliberately prevented him from accompanying Biti to Harare Central Police Station.

Ÿ When Jim Kunaka, the former leader of ZANU-PF aligned vigilante group Chipangano, was arrested, lawyers found it difficult to get access to him at the CID Law and Order section at Harare Central Police Station. Lawyers were referred from office to office, until eventually they managed to access him. While at the station, six unidentified men in suits set up recording equipment and requested to interview Kunaka. The men refused to identify themselves and they only relented after Kunaka's lawyers persisted in their protest against their conduct.

Magistrates heard most cases amid concerns and a perception of interference with judicial independence. However, some urban-based junior magistrates demonstrated a greater degree of independence and granted opposition party members and civil society activists bail against the government's wishes. Reports of judicial corruption were widespread, extending beyond magistrates and judges. In cases involving members of political parties or civil society critical of the government, prosecuting agents regularly took abnormally long to submit their cases for trial.

There appeared to be a trend to use the remand procedures to punish accused persons, especially in politically sensitive cases. The prosecutors and police also routinely retained material confiscated from the accused as evidence.

26 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Independence of the NPA and due process questioned in the Tendai Biti case Opposition MDC Alliance party Vice-Chairperson Tendai Biti was charged for contravening the Electoral Act after he allegedly unlawfully and unofficially announced the 30 July presidential election results. On 10 December Biti’s lawyers succeeded in having Prosecutor Michael Reza removed as the lead prosecutor on the basis that he was biased and unsuitable to preside over his prosecution. This was after the prosecutor reportedly sent a message to Thabani Mpofu, the head of the Special Anti-Corruption Unit in the President’s Office, criticising the Magistrate’s ruling allowing media practitioners to live stream trial proceedings. The message which was shown in court read; “Cde Mpofu, it’s Reza, how are you. Another strange ruling by the magistrate trying Tendai Biti. They applied for live streaming of the case, with cameras and journalists in court and proceedings beamed all over the world. She has just agreed to that without authority of her boss the Chief Justice. She is either very brave or very stupid or both kkkkkk.” Biti’s lawyers charged that Reza’s conduct and message was contemptuous of the ongoing court proceedings and should be investigated by ZRP officers and also insinuated that judicial officers lack independence as they should consult the Chief Justice before passing any decisions. Biti also challenged the improper splitting of charges in the case, as well as the jurisdiction of the court on the basis that he was unlawfully brought into Zimbabwe from Zambia in violation of the deportation and asylum laws of Zambia and of an order of court issued by the High Court in Zambia in breach of international law regarding the extradition of people facing offences of a political nature.

The Magistrate granted an application allowing accredited media practitioners to carry out live streaming of court proceedings during Biti’s trial. Prior to that the court on 15 November 2018 had allowed Tendai Biti to get his passport which had been surrendered as a bail condition, to attend a crucial continental meeting in Uganda after vetoing a decision by Acting Prosecutor-General Kumbirai Hodzi, who had turned down his request for the temporary release of his passport to allow him to travel.

Problematic Laws demonstrate and petition enshrined in the 14 During 2018, the Access to Information and Constitution. The Court found that the blanket Protection of Privacy Act (AIPPA) and Public ban in section 27 was unconstitutional because it Order and Security Act (POSA) remained in had a dragnet effect, which completely nullified statute books in their repressive nature. This the fundamental right to demonstrate and appeared to reflect absence of political will for petition. Few people were in fact charged under genuine reforms to ensure that the promises of POSA. Most were charged under the Criminal the Constitution are enjoyed by all and sundry. Law (Codification and Reform) Act, which Act Instead, the culture of cutting back on the still has constitutionally offensive provisions. Constitution was still prevalent, through Primarily, the offences of public violence (section legislation, court rulings and undemocratic 36), promoting public violence (section 37) and 15 practices. In October the full bench of the subversion (section 22) were invoked. Another Constitutional Court per Justice Rita Makarau often abused law was section 33 of the Criminal declared that section 27 of POSA which granted Law (Codification and Reform) Act [Chapter wide powers to the police to ban demonstrations 9:23], which carries the offence of undermining for periods of up to one month in the interests of the authority of or insulting the President. This the preservation of public order was an provision stifles freedom of expression, unjustifiable infringement on the right to legitimate feedback, fair comment and truth-

14. Democratic Assembly for Restoration and Empowerment & 3 Ors v Saunyama N.O & 3 Ors CCZ 9-2018. 15. Section 22 violates the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights (both of which Zimbabwe is a party to), including the rights of persons to freedom of opinion and expression (Article 9 African Charter on Human and People’s Rights; article 19 ICCPR), freedom of assembly (article 11 ACHPR; 21 ICCPR) article, freedom of association (article 10 ACHPR; article 22 ICCPR), and the right to political participation (article 25 ICCPR).

27 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 telling. A record number of cases under section 33 were brought before the courts:

Specific Cases Ÿ On 12 March the ZRP sentenced a police officer, sergeant Thompson Joseph Mloyie, to serve ten days in prison after convicting him for contravening paragraph 35 of the Schedule of the Police Act [Chapter 11:10], in a matter in which he allegedly accused former President Robert Mugabe of being “too old to rule” the country and questioning his marriage choice. Mloyie was arrested on 5 March 2016 at Cranborne Police Station by ZRP officers and charged with undermining the authority of or insulting the President in contravention of Section 33 (2)(a) of the Criminal Code.

Ÿ The Prisons and Correctional Service (ZPCS)’s Chiredzi prison officer John Mahlabera was dismissed from employment after the ZPCS convicted him of misconduct for allegedly attending an MDC Alliance party rally at Tshovani Stadium in Chiredzi in Masvingo province on 10 June 2018, where he was invited to the podium by MDC-Alliance party leader Nelson Chamisa, who then introduced him to the opposition political party supporters. Mahlabera also answered to charges of undermining President Emmerson Mnangagwa through allegedly posting on his Twitter account that “Come to Chiredzi my president”, after an MDC-Alliance party rally held at Jerera Growth Point in Zaka in Masvingo province which was addressed by Chamisa.

Ÿ William Gerald Mutumanje Lumumba, the leader of Viva Zimbabwe political party, was arrested on 30 June 2016 and charged with section 33 for accusing Mugabe of mismanaging the country’s political and economic affairs. On 7 June the NPA withdrew the charges on the basis that prosecuting him was not in the “public interest”.

Ÿ In October 28-year-old Alexander Samuel Chidzedzere from Kariba stood trial after he was arrested and charged with undermining the authority of or insulting President Emmerson Mnangagwa. Chidzedzere allegedly said on 16 August at Nyamhunga Business Centre in Kariba that the President and his party had rigged to win the elections.

Ÿ On 26 October, police cited the law to arrest Wisdom Mkhwananzi after he gave testimony at the 1 August Commission of Inquiry hearing at Rainbow Hotel in Bulawayo accusing President Mnangagwa of complicity in the government's killing of more than 20,000 people in the 1980s Gukurahundi massacre.

Ÿ Joel Gabbuza, the MDC-Alliance MP for Binga South constituency, was charged with undermining the authority of, or insulting President Mnangagwa. Gabbuza appeared in court on 12 November for allegedly telling mourners at a funeral on 23 October at John Bwansula’s homestead in Manzasiya village in Binga, Matabeleland North province that President Mnangagwa's government was clueless in solving Zimbabwe's economic crisis, which was marked by fuel and drug shortages.

Ÿ In Karoi, Flora Karosi a 46-year-old woman was summoned to stand trial on 4 December 2018 on charges of undermining the authority of or insulting the country’s ousted leader Robert Mugabe during his tenure as President. Karosi allegedly undermined and insulted Mugabe in July 2013 by questioning why the President was contesting elections with young candidates because he was too old. Prosecutors withdrew the charges after President Mugabe left office.

28 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Since May 2013, there have been three to disparage and attack human rights groups. challenges to the constitutionality of section 33 State media reporting typically dismissed of the Criminal Code before the Constitutional theefforts and recommendations of NGOs Court,16 and all were dismissed without ventilation critical of government, accusing the NGOs of of the specific question of constitutionality. The seeking regime change. Civil society latest is a September 2017 decision of S v Rusike 17 organisations found the operating environment wherein the Court dodged the issue altogether, hostile. Despite organisations being registered instead dealing with the conviction of the with the Ministry of Public Service, Labour and a c c u s e d . A f o u r t h c h a l l e n g e t o t h e Social welfare, they found it difficult to operate constitutionality of the provision was filed in the i n c e r t a i n d i s t r i c t s . S e v e r a l D i s t r i c t Constitutional Court in November 2017 by Administrators demanded Memorandum of political activist Acie Lumumba. However, when Understandings (MOUs) with individual the case was filed, the State withdrew the organisations for them to operate or run their criminal case against Lumumba citing the programme in those districts. They demanded precedence set in the Mwonzora case.18 The that names of the organisations’ official register Constitutional Court challenge thus fell away. with the CIO, and for background checks to be done. This happened in districts such as Gokwe Human Rights Defenders and Civil and Murehwa, even though this had not been Society Space the case in preceding years. NGOs working on children and disability however reported that The government harassed NGOs it believed government was not as heavy-handed on them. would expose abuses by government personnel This was because disability was not considered a or that opposed government policies, and it threat, as were child-related matters. continued to use government-controlled media

Specific Cases Ÿ In Chinhoyi, one organisation reported being questioned and warned by the CIO that if they did not cooperate in answering the CIO officers’ question, they would be blacklisted. One civil society practitioner reported an unidentified vehicle following him in Chinhoyi.

Ÿ On 17 October the NPA declined, for lack of evidence, to prosecute Magamba Cultural Activist Network Trust for allegedly externalising foreign currency without authority from the Reserve Bank of Zimbabwe (RBZ). Magamba Cultural Activist Network Trust had been charged with externalisation after it allegedly transferred $10,450 from its local bank in Zimbabwe in 2014 to an international account without seeking authorisation from the RBZ.

Abductions and Disappearances wife Sibongile Sarukato filed an urgent habeas On 25 November 2018, Zimbabwe National corpus application seeking an order compelling Army (ZNA) Retired Lieutenant Colonel Piki was the State to do all things necessary to determine abducted by unknown mask-wearing people at his whereabouts including advertising on all around 1630 hours from his Waterfalls suburb State-run print and broadcast media. Sarukato residence in Harare and bundled into a car. Piki however withdrew her application on 28 was scheduled to appear on 26 November November after Piki managed to escape from his before the Commission of Inquiry into the 2018 abductors around Mazowe area, Mashonaland post-election violence. On 26 November, Piki’s Central province and returned to safety. Soon

16. One such case is S v Mwonzora CCZ 7-2016. In this case Mwonzora’s conviction under section 33 of the Act was reversed, but the Court refused to entertain the challenge to the constitutionality of s 33(2)(a) of the Criminal Code, and this part of the application was dismissed. 17. CCZ 17-2017. 18. See note 48 above.

29 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 after his return on 27 November, Piki sought Warren Park from 1 to 7 August. The soldiers audience with the Commission of Inquiry to go accused many of the victims of participating in ahead with giving his testimony. But his request the 1 August opposition-led protests. A local was declined with the officers of the Kgalema NGO reported that from January to June, 23 Mothlanthe-led probe team indicating that they victims of organized violence and torture sought had completed hearing evidence from all assistance after security agents found them witnesses. Human rights campaigners among mining illegally at the Chiadzwa diamond mine them Itai Dzamara, Patrick Nabanyama and Paul in Manicaland Province. Victims reported that Chizuze remain missing and unaccounted for security forces detained them at torture bases, after they were subjected to enforced beat them with sticks, kicked them, and disappearances several years ago. sometimes allowed security dogs to attack them.

Extra-Judicial Killings Freedom of Movement There were two reported incidents of the In May, the Registrar-General Tobaiwa Mudede government or its agents committing arbitrary or was ordered by High Court judge Justice unlawful killings. On 1 August 2018, the military Thompson Mabhikwa, to issue an emergency killed six unarmed protestors when it responded passport to 79-year-old Emmah Gireya who to an opposition-led election related urgently required to travel to Namibia for demonstration in Harare’s CBD. A seventh specialist treatment within 48 hours. Gireya was individual died from injuries related to the born in Zimbabwe to parents of Mozambican protests. The police killed two civilians on 22 origin, and the Registrar-General office refused February while enforcing a ban on vendors and to issue her the document, demanding $5 000 unlicensed taxi drivers in Harare. By year’s end for renewal of her citizenship which they there were no arrests or charges of members of believed had expired. In September, previously the security forces related to these cases. exiled freelance journalist Violet Gonda approached the High Court after the Registrar- Torture General’s office refused to issue her with a Torture by the security forces remained a passport because she was blacklisted by the mainstay of government’s abuse of human rights. government. Gonda has not been charged or Individuals who were arrested were assaulted in convicted of any offence to justify placing her on custody, or at the point of arrest. This included a restriction list, and in any event, her psychological torture. According to one NGO, Zimbabwean citizenship could not be revoked from January through August, 367 victims of or lost under any circumstances whatsoever. organised violence and torture sought medical Registrar-General Tobaiwa Mudede later treatment and counselling after sustaining conceded that his officers erred by refusing to injuries in multiple incidents across the country. grant a passport to Gonda, stating that Gonda The NGO reported that ZANU-PF supporters faced some “administrative problems” with a committed 35% of the violations, ZRP junior officer and should have “escalated” her committed 31%, and the army committed 22%. issue to a senior person in his office. Most of the cases, about 39%, occurred in Harare. Over 51% of the victims were associated Identity and Citizenship with the opposition MDC Alliance, while about The provisions dealing with citizenship in the 10% were associated with other smaller Constitution are sections 36 (citizenship by birth, independent political parties. Over 39% did not section 37 (citizenship by descent), section 38 indicate their political affiliation. (citizenship by registration) and section 43 which grants citizenship to people who were born in According to the Zimbabwe Human Rights Zimbabwe before 22 May 2013 and were Commission (ZHRC) and local NGOs, ordinarily resident in Zimbabwe, and when they uniformed soldiers systematically assaulted were born both their parents were not civilians in the Harare CBD and suburbs of Zimbabwean citizens and were citizens of Chitungwiza, Highfield, Kuwadzana, Seke, and countries that belong to the Southern African

30 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Development Community (SADC). High Court report documented pre-trial inmates who have judge Justice Munangati-Manongwa ruled that been detained for over 10 years; overcrowding those falling under the section 43 category but in some prisons and a high risks for disease; still holding IDs marked “Alien” were eligible to inadequate sanitary conditions and provisions; vote in the 2018 harmonised elections. For those shortage of clothing; inadequate healthcare and who did not qualify for automatic citizenship health professionals; and absence of educational under sections 36, 37 and 43 of the Constitution, facilities for incarcerated juveniles. they had to apply for citizenship under section 38 (Citizenship by registration), when they satisfy the constitutional requirements. However, the The ZPCS struggled to Citizenship Regulations Statutory Instrument 12 of 2009 set the costs of getting citizenship at $5 provide adequate food and 000 which costs proved prohibitive. As a result, sanitary conditions thousands failed to vote, despite having been resident in the country for decades, having migrated into the country from countries such as Freedom of Assembly and Association Malawi, Zambia and Mozambique. The government was often hostile to those perceived to be associated to the opposition, “We are not desperate to register foreigners as though freedom of association is protected by citizens, and we are not seeking to get foreigners the Constitution. to choose our government” - Deputy Registrar- General, when asked about challenges facing On 25 July, a local councillor in Mbire people entitled to citizenship. threatened to have community members beaten and their homes burnt down if they voted for State of Prisons opposition political parties. With the POSA law The Constitution added prisoner rehabilitation in operation, government crackdown on and reintegration into society to the Zimbabwe freedom of assembly and association continued. Prison and Correctional Services (ZPCS)’s Those targeted were labour unions, tertiary responsibilities, components of the correctional students and political activists. Although many aspect reiterated in ZPCS’s mandate. Prison groups did not seek police approval in terms of conditions remained harsh due to financial POSA, most groups in the stated category that constraints and overcrowding in some of the sought to notify the police were either denied older facilities. There were approximately permission or got no response from the police. 17,000 prisoners spread across 46 main prisons and 26 satellite prisons in the country. While The MDC Alliance accused police of using the some prisons operated below capacity, cholera epidemic in Harare as an excuse to ban overcrowding continued due to outdated large public assemblies to prevent an MDC infrastructure and judicial backlogs. In March Alliance rally on 15 September. Between 16 and President Mnangagwa granted amnesty to 22 September, police forcibly removed vendors approximately 3,000 prisoners, including most who refused to comply with orders related to the women and all juveniles, to address cholera outbreak to vacate their stalls in the overcrowding. The ZPCS struggled to provide Harare CBD. adequate food and sanitary conditions, However, ZPCS worked with civil society Right to Protest organisations who assisted in that area. The Attacks on freedom of assembly and association Zimbabwe Human Rights NGO Forum were closely linked to the right to protest. POSA produced a report on the state of prisons titled and the Criminal Code were heavily used to stifle “Rights Behind Bars: A Study of Prison Conditions protest. in Zimbabwe 2018”.19 Among other findings, the

19. Full report available at http://www.hrforumzim.org/wp-content/upload/2018/10/Prison-Report-2018.pdf

31 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 “I may add on a general note that protests and mass demonstrations remain one of the most vivid ways of the public coming together to express an opinion in support of or in opposition to a position. Long after the demonstrations, and long after the faces of the demonstrators are forgotten, the messages and the purposes of the demonstrations remain as a reminder of public outrage at, or condemnation or support of an issue or policy. Demonstrations have thus become an acceptable platform of public engagement and a medium of communication on issues of a public nature in open societies based on justice and freedom”. - Justice Rita Makarau in Democratic Assembly for Restoration and Empowerment & 3 Ors v Saunyama N.O & 3 Ors CCZ 9-2018, page 8.

Specific Cases Ÿ In January, ZLHR deployed lawyers to offer emergency legal support services to pro- democracy campaigner Tonderai Dombo, who was arrested by ZRP in Harare’s Mabvuku suburb for allegedly protesting against exorbitant fees hike at Mabvuku High School.

Ÿ On 26 February, police used tear gas and water cannons to disperse dozens of National University of Science and Technology students protesting continued strikes by lecturers. Police dogs injured 8 students, while police arrested 61 students. 15 students sought medical treatment after the incident. The students were charged with criminal nuisance or disorderly conduct as defined in the Criminal Code.

Ÿ In Chivhu the Chivhu Residents and Ratepayers Alliance (CHRRA) had through their chairperson Collen Zvarevashe on 22 February notified the ZRP of their intention to hold a protest march demanding the expulsion and arrest of some corrupt officials at Chikomba Rural District Council. The ZRP turned down their request on 5 March on the basis that there was a threat that the residents’ protest would result in serious disruption of both vehicular and pedestrian traffic. The police only reversed their decision after an urgent chamber application had been filed in the High Court on 5 March challenging the ZRP’s refusal to sanction the demonstration.

Ÿ In Hwange on 9 March, 8 spouses of Hwange Colliery Company employees were charged with criminal trespass as defined in Section 132 of the Criminal Code for allegedly staging a protest since January over the non-payment of outstanding salaries for their husbands, who worked for the coal miner.

Ÿ In Chivi, Masvingo, three Great Zimbabwe University (GZU) students were arrested and charged with public violence for allegedly participating in a protest against the hiking of tuition fees at the university. The three students Hererimo Giya, Eutychus Mahwekwe and Tinotenda Kumire were accused of barricading some roads at GZU campus and throwing stones at some ZRP officers and at the university buildings and damaged property including chairs. Magistrate Chineka grantee them bail and imposed stringent bail conditions, including that the students were to be accompanied by some ZRP officers each time they visited GZU campus to write their end of semester examinations.

Ÿ In May the University of Zimbabwe (UZ) Student Disciplinary Committee acquitted student Kudakwashe Guta who was charged with misconduct in connection with a demonstration held at the institution on 26 June 2017 led by some medical students, who protested against the arbitrary hiking of fees. Prior to the UZ Student Disciplinary Hearing, the student had been

32 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ acquitted by Harare Magistrate Victoria Mashamba after standing trial on charges of public violence as defined in section 36 (1)(a) of the Criminal Code.

Ÿ On 18 May, Chitungwiza Magistrate Blessing Murwisi acquitted Pastor Phillip Mugadza who had been on trial on charges of criminal nuisance after he tied himself to some steel rails at Africa Unity Square in Harare while protesting against former President Robert Mugabe's administration in November 2016.

Ÿ On 11 October, police arrested Peter Mutasa, president of the ZCTU, and several trade unionists in Harare and other major city centres for demonstrations planned against the government’s 2% tax on electronic transactions. In Harare, 27 ZCTU staff and union members were illegally detained at their Gorlon House offices by ZRP officers after the arrest of the labour union’s leaders in a pre-emptive strike to thwart an anti-government protest organised to protest against government’s disastrous economic policies. In Mutare, 20 ZCTU leaders and members, spent the night in police custody. In Masvingo, 12 ZCTU leaders and members spent several hours in police detention. On 11 October, Harare Magistrate Lanzini Ncube dismissed an application seeking to overturn the ZRP ban of ZCTU’s anti-government protest, citing the cholera outbreak and that the protest could turn violent as there was discontentment among citizens over the economic situation.

Ÿ 19 December, 14 leaders and members of ARTUZ were set free after Harare Magistrate Victoria Mashamba dismissed disorderly conduct charges brought against them after a demonstration against poor salaries and working conditions. The ARTUZ leaders and members were arrested on 18 December and charged with disorderly conduct for allegedly blocking a road in Ruwa while holding and waving placards. The labour unionists were on a several days march which commenced in Mutare and eventually ended in Harare. ARTUZ President Obert Masaraure was also charged with failing to notify the ZRP of their intention to hold a public gathering in contravention of section 25(1) of POSA. Earlier that week, ZRP officers had arrested 9 ARTUZ leaders and members on 15 December in Macheke, Mashonaland East province.

In Mutare, 20 ZCTU leaders and members, spent the night in police custody.

33 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 7

CHILDREN’S RIGHTS: SECURING THE FUTURE “The paradox is that even when children are construed as rights holders, it is difficult for them to assert their rights. The reasons are practical, political and legal. Young children are completely and unavoidably dependant on those who have power over their lives” - O’ Donovan, 1983

Zimbabwe has shown commitment to advancing child rights through ratification of the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Moreover, the Government has made efforts to domesticate the provision of the UNCRC and ARCWC primarily through the Constitution, and through some child protection legislation. However, gaps still exist which the child rights sector. According to Justice for Children (JCT), an NGO providing free legal services to children in difficult circumstances in Zimbabwe, it assisted 15 576 children, in cases ranging from child support, birth registration, custody, domestic violence, denial of the right to education and children in conflict with the law. The top five underlying causes for cases handled by JCT were: seperation of parents, death of parents, vulnerability, disputes and neglect.

Children in Conflict with the Law Birth Registration JCT handled several cases of children in conflict For a long time, birth registration processes have with the law. The highest numbers were in sexual been unsatisfactory in Zimbabwe. 20 In 2018 offences (rape and sexual intercourse with a several children faced difficulties in getting birth minor), theft and assault. However, at least three certificates. The most significant challenge was of murder cases were reported, and one culpable fathers failing to register their children who homicide case. would have been abandoned on neglected by their mothers. On 29 March a father of a 6-year Child Marriages old who had tried without success to register his Three years after Zimbabwe’s Constitutional minor daughter by approaching the Registrar- Court declared child marriage unconstitutional, General’s office thrice, and after the mother of and 6 years after the new Constitution set 18 as the child had abandoned the child as a 12- the minimum marriage age, the government was month-old baby, filed an application in the High yet to amend or repeal all existing marriage laws Court in Harare challenging the practice of the that still allowed child marriage. Structures were Registrar-General to deny fathers of children also not put in place to implement the court born out of wedlock to register their children in decision and ensure that girls under 18 were not the absence of the mothers. The matter is yet to forced into marriage. There are currently no be finalised. Commendably, the Registrar- criminal sanctions to perpetrators of child General’s office reduced from $50 to $2 the marriages, despite the practice being declared administrative charge for the registration of unconstitutional. (More details on child children of Zimbabwean nationality born marriages are in the Women's rights section of this outside the country. Previously parents of report). children in this category struggled to raise the required fee to register their children.

20. The Zimbabwe Demographic Health Survey (ZDHS) (Zimbabwe National Statistics Agency) 2015 shows that the percentage of children registered stood at about 44% among children under five years of age; the Multiple Indicator Cluster Survey (March 2015) states that 43% of children in Zimbabwe are registered; and the Zimbabwe Demographic Health Survey (ZDHS) (Zimbabwe National Statistics Agency) 2011 states that the percentage of children registered stood at about 49% among children under five years of age.

34 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Education the High Court on 24 October overturned an There was an increase in school dropouts, which irrational decision by ZIMSEC to bar a 15-year- was reported at 13 000.21 Mostly the drop-outs old teenager from sitting and writing her were influenced by the inability of parents and Ordinary Level examinations after demanding guardians to meet the cost of education, and the that the minor should be in possession of an insufficiency of the government-administered identity document, or passport, or driver’s Basic Education Assistance Module (BEAM) licence bearing her picture. program budget to cover all vulnerable and needy children. The BEAM programme for Children with Special Needs orphans and vulnerable children (OVCs) A higher percentage of disabled children were administered by the Ministry of Public Service, not in the schooling system for the reasons of Labour and Social Welfare owed the Ministry inadequate family resources, stigma and societal over US$87 million, amounting to about 85% of attitudes. Most schools are not disability-friendly the claims. Dr Sylvia-Utete Masango the and do not have the necessary learning aids. For Permanent Secretary in the Ministry of Primary instance, in a 2015 study by the Ministries of and Secondary Education revealed that Health and Child Care; Primary and Secondary Zimbabwe was short of 2,056 schools.22 Education and Public Service, Labour and Social Welfare; UNICEF and the Zimbabwe Statistical As at the end of 2018 there were 8,500 schools Agency (ZimStats), called “Living Conditions in the country. The 1,066 children enrolled at Among Persons with Disability”, 23 it was revealed Tokwe Mukosi Primary School in Chingwizi in that fewer individuals with disability have ever Masvingo province, sometimes missed lessons attended formal education and that 52% of during some days when it rained because there disabled children have no access to education in were no proper classrooms. Moreover, school spite of Zimbabwe's record of 93% literacy rate children could not participate in sporting among its school-going children. Children who activities because there were no resources to are hard of hearing faced peculiar challenges facilitate such participation. New curriculum with education. Despite the Constitution in material was distributed to 6,000 out of 8,500 section 16 making sign language an official schools. Some teachers were undergoing language, sign language was yet to be taught in training at the University of Zimbabwe and schools. Deaf Zimbabwe Trust on several Bindura University and other polytechnics to occasions sought engagement with the Ministry operationalise the new curriculum. ZIMSEC of Primary and Secondary Education on the faced challenges with the integrity of the subject, but the Ministry is yet to operationalise examination process. Mathematics and English the constitutional promise to ensure that all deaf November 2017 examination papers leaked, children are accorded their right to education. leading to several suspended results for some candidates. On 14 February 2018 the High Socio-economic Protection Court nullified the directive issued by Primary Economic deterioration resulted in child socio- and Secondary Education Minister Paul Mavima economic protection taking a knock. There was ordering a rewrite of the English Paper 2 a high number of children living and working on examination by over 260,000 candidates as the streets. ZNCWC interviewed 231 children, irrational and unreasonable. The basis for and the commonly expressed sentiment was that ZIMSEC's decision were allegations of children did not want to be institutionalised, but widespread cheating. The court decision they wanted to be reunited with their families. A resulted in the board of ZIMSEC being number of children on the streets have suspended pending investigations over previously been institutionalised but escaped examination mismanagement. In another case from such institutions.

21. See http://www.financialgazette.co.zw/over-13-000-pupils-drop-out-of-school 22. Presentation to the Parliamentary Portfolio Committee of Education at the 2019 pre-budget consultation, 23 October 2018. 23. See report here: https://www.unicef.org/zimbabwe/resources_16272.html

35 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Corporal Punishment punishment as invalid. However, the decision A matter was argued in the Constitutional Court did not affect the administering of corporal which sought to declare judicial corporal punishment in the home and at school. punishment as unconstitutional. The decision was handed down in the case of S v Zimbabwe presented an initial report to the Chokuramba, Justice for Children’s Trust African Committee of Expert on the Rights and Intervening as Amicus Curiae Zimbabwe Lawyers We l f a r e o f t h e C h i l d a n d r e c e i v e d for Human Rights Intervening as Amicus Curiae recommendations. The process of developing a CCZ 10-19, banning judicial corporal National Implementation Plan of Action of the punishment and declaring section 353 of the concluding observations was initiated and never Criminal Code which allowed corporal finalised.

Specific Cases Ÿ Political parties, particularly ZANU-PF, forced children to attend political rallies, and used school grounds, buses and other property for political activities. These were also the findings of the ZHRC in an investigation that was triggered by several complaints lodged with the Commission. The Amalgamated Rural Teachers Union of Zimbabwe (ARTUZ) successfully obtained a declarator and an interdict against the conduct before Justice Mafusire in the Masvingo High Court. However, the Supreme Court vacated the order on a technicality on appeal by ZANU-PF.

Ÿ On the 4 April 2018 Human Rights Watch (HRW) launched a report on child labour on tobacco farms in Zimbabwe titled “A Bitter Harvest: Child Labour and Human Rights Abuses on Tobacco Farms in Zimbabwe”. The 105-page report reveals child labour in Zimbabwe commercial tobacco farm, and how children are exposed to hazardous conditions and are at risk of acute nicotine poisoning or “green tobacco sickness” caused by absorbing nicotine through the skin from tobacco plants. Child labour has also been reported in the tea estates of Manicaland.24 The same goes for both large and artisan mining activities. In the Lowveld, four months of investigative journalism found that cases of child labour by sugarcane out-growers in the cane plantations was rampant, especially during the cutting season. Most of the child labourers were survivors of the Tokwe Mukosi floods, who lived in abject poverty.

Ÿ The ZNWC recorded 72 cases of child sexual abuse and exploitation. Child sexual exploitation cases (child prostitution) cases were recorded, especially in areas such as Epworth; Hopley; Caledonia; and the transport corridors in Chirundu, Victoria Falls, Beitbridge and Masvingo, Ngundu, Chinhoyi, Chirundu and Hwange. Specific mining towns were also significantly implicated. These include Bindura, Kwekwe, Kadoma, Zvishavane and big cities such as Bulawayo. In Bindura, over 136 sexual abuse cases involving complainant minors were pending before the court.

Ÿ Local NGOs handled several cases of children whose grade 7 and O'level results were withheld over arrear school fees. In Chiredzi, a Chiredzi-based community-based organisation attended to 11 such cases. This despite the Bulawayo High Court having ruled in 2013 that withholding of results is illegal.25 On 27 March JCT filed an urgent chamber

24. See “Child labour rampant in team plantation” Daily News, 3 June 2013,https://www.dailynews.co.zw/articles/2013/06/03/child- labour-rampant-in-tea-plantation and Zimbabwe: when ending child labour does not end child exploitation” African Arguments, 10 September 2015, https://africanarguments.org/2015/09/10/zimbabwe-when-ending-child-labor-does-not-end-child-exploitation/ 25. S v Nyabeza and Another HB 1-11 Cheda J (Ndou J concurring). The practice of withholding results is in violation of sections 75(1) and (4) and 81(1)(f) of the Constitution on the right to education; section 4(1) of the Education Act [Chapter 25:04]; sections 19(1) and 81(2) of the Constitution on the best interests of the child, and section 7(1) of the Children's Act [Chapter 5:06] on the right of children to be protected from ill-treatment.

36 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ at the High Court in Harare challenging the withholding of ‘O’ level results by Murehwa High School. A consent paper was entered and the minor obtained his results. On 24 December ZHLR obtained an order in which Justice Mathonsi in the Bulawayo High Court declared the practice by some school authorities of withholding examination results for students to induce payment of outstanding school fees to be unlawful and unconstitutional, infringing on sections 75 and 81 of the Constitution. The authorities at Ihlathi High School in Bulawayo had refused to release Ordinary Level examination results of a student over $412.50 arrear school fees. Justice Mathonsi also referred the matter to the Constitutional Court.26

Ÿ A Rushinga Magistrate sentenced a 24-year-old man on 19 November to 175 hours of community service after he was convicted for having sexual intercourse with a 15-year-old minor in contravention of section 70 of the Criminal Code. During mitigation, it emerged that the convict had paid lobola to the girl’s parents, who had surrendered the girl to him. The parents of the young girl were then charged for pledging a young girl in marriage in contravention of section 94 of the Criminal Code.

Ÿ In Marange a 15-year-old girl was married off and sent to her “husband’s” residence. The girl was removed from the residence and she was placed in safety. The girl was then four (4) months pregnant.

Ÿ In April the Kadoma Magistrates Court dealt with a case in which a 12-year-old girl was forcibly taken as a wife by a notorious informal mine operator in Kadoma, who was also the employer of the child's parents. The child was placed in a place of safety. The parents of the child however disappeared in mysterious circumstances. The perpetrator then hired a third party to apply for custody of the child, in an application that involved manipulation of the child’s birth certificate. The case was successfully defended by Department of Social Welfare and JCT.

Ÿ In June, two newly born babies were burnt to death at Harare Hospital due to suspected medical negligence. The children were burnt to death in an incubator as they were being treated for jaundice.

Ÿ In Bindura summons were issued against the Ministry of Home Affairs and the police after a 15-year-old child was unlawfully arrested and detained overnight in police cells.

Ÿ In Harare, a daily newspaper was sued for publishing the name of minor involved in criminal proceedings in violation of the law. The minor was a complainant in a child-trafficking case before the criminal court. The editor and writer were also tried in the criminal court at Mbare Magistrates Court.

Ÿ A parent at Gateway Primary School in Harare took the school to court to interdict the school from expelling his child. The school wanted to expel the child following the father’s attempts to hold the school leadership to account over alleged mismanagement.

Ÿ A parent at Marlborough High School approached the High Court to compel the school and the Ministry of Primary and Secondary Education to take action and compel the school to take action against a teacher who had been harassing her child.

26. See Children and re-writing O-level English paper. https://www.chronicle.co.zw/release-results-withholding-of-results-over-fees- unconstitutional/?fbclid=lwAR3jilK1eyzHs-K8xCUDSwlYJiGiNWWmKzv1lKzv1lKs0XuNQH09K0CuKUCIZrkU

37 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 8

WOMEN’S RIGHTS

Women constitute over 52% of the Zimbabwe population. Gender equality is a founding value in terms of section 3 of the Constitution, as is the recognition of the rights of women. In terms of section 17 of the Constitution, the State must promote full gender balance in society, and promote the full participation of women in all spheres of society based on equality with men.

In terms of section 56 of the Constitution, all persons are equal before the law and have the right to equal protection and benefit of the law. Section 80 of the Constitution requires that every woman has full and equal dignity of the person with men and this includes equal opportunities in political, economic and social activities. Affirmative measures are also mandated. Zimbabwe is a state party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which is largely domesticated in the stated constitutional provisions.

Participation in Elections it difficult to contest in the elections. According In the 2018 elections, women participated both to the Women in Politics Support Unit (WiPSU), as voters and election candidates. Four female female nominees made up less than 15% of the presidential candidates competed with 19 men candidates for the National Assembly elections. in the 30 July election: former vice president Traditional, cultural and patriarchal attitudes Joice Mujuru of the People’s Rainbow Coalition, resulted in female candidates facing vitriolic former deputy prime minister Thokozani Khupe gender-based insults regarding appearance, of the MDC-T, Melbah Dzapasi of the #1980 sexual proclivity, and other gender-based Freedom Movement Zimbabwe, and Violet stereotypes and faced challenges within their Mariyacha of United Democratic Movement. party if running against a male candidate in a However, in comparison to men, women found primary election.

Women and men waiting to vote in the July 2018 elections

38 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Within the MDC Alliance opposition party, some women do not participate in politics is the female candidates claimed that dominant men perception that participating in politics is in the party demanded sexual favours in return to dangerous. Although women believe that they nomination for candidature, and some of those should participate in politics, many are fearful of who refused reportedly found their names left doing so, and with good justification”.29 out of the party running list. In the ZANU-PF primary elections, several women that were Representation in Government sitting MPs lost the elections. An investigation by Women remained largely under-represented in NewsDay in conjunction with the Voluntary local and national political offices, and men Media Council of Zimbabwe (VMCZ) revealed overwhelmingly held most senior positions in the that men used other tactics like mudslinging, public sector. In government, out of 21 cabinet sexism, and turning females against each other to seats created after the elections, only 4 women 27 ensure women were out of the race. Young were allocated cabinet seats. These were Oppah women found it difficult to penetrate traditional Muchinguri for the Ministry of Defence and War party politics to make it on the candidates’ lists. Veterans; Kirsty Coventry for the Ministry of But there were exceptions. Joana Mamombe, Youth, Sport, Arts, and Recreation; Sekesai the MDC Alliance’s 25-year-old candidate was Nzenza for Ministry of Public Service, Labour voted in as MP for Harare West Constituency. and Social Welfare and Monica Mutsvangwa for Mamombe is currently the youngest MP in the the Ministry of Information, Publicity and country. Several young women chose to contest Broadcasting Services. While this was an as independent candidates. For instance, 33- increase from 2013, this was well below their year-old Fadzayi Mahere ran as an independent 52% share of the population and well below the MP candidate in Mt Pleasant Constituency in equal representation required by the Harare. Linda Masarira initially ran as an Constitution. independent candidate for the Harare Central Constituency, before running on an MDC-T Women held 6 out of 12 minister of state ticket. Linda Sibanyoni ran for the Harare East positions and 6 of 13 deputy minister positions. Constituency, while Vimbai Musvaburi ran for Women made up 31% of the National Assembly the Bulawayo South Constituency. In Harare and Senate, down from 35% in 2013. However, Jessie Fungai Majome ran as an independent for only 12.4% women were elected outside the the Harare West Constituency. Several others ran women's quota for National Assembly. On 12 as independent candidates for council elections. September, the Senate elected a woman as For the Parliamentary elections, none of the president in the form of Mabel Chinomona. In female independent candidates won. total, this filled all the 60 seats reserved for women in the National Assembly in terms of the Ironically, women make up most voters at both constitutional quota system. At the local national and provincial level. However, they had government level, women held approximately little representation in the political fields as 19% of councillor positions nationwide. The shown by the numbers of the outgoing Members Zimbabwe Gender Commission (ZGC) carried of Parliament (34%) and councillors (16%), and out a pre-election assessment from 2-6 July further evidenced by the paltry number of followed by monitoring of the elections from 27 28 female candidates who contested in 2018. July to 2 August in all the country’s ten provinces. Voter registration among young women Among the key observations, the ZGC noted that between the ages of 18-25 was especially low. the lack of legislation to compel political parties According to the Research and Advocacy Unit to comply with constitutional provisions and to (RAU), “Predominate amongst the reasons why ensure implementation of the parity principle in

27. “Mudslinging, sexism scath female politicians” Newsday, 20 June 2018. 28. “A Gender Audit of the 2018 Elections” Report produced by the Research and Advocacy Unit (RAU) for the Institute for Young Women’s Development (IYWD) & Hivos, September 2018, page 2. 29. “A Gender Audit of the 2018 Elections” Report produced by the Research and Advocacy Unit (RAU) for the Institute for Young Women’s Development (IYWD) & Hivos, September 2018, page 2.

39 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 drawing up party lists created a gap for NGO Anti-Domestic Violence Council as a promotion of equal access to leadership and whole was ineffective due to lack of funding. decision making by women. Child Marriages Protection from Gender-Based and There was an increase in reported child Domestic Violence marriages. Freedom House’s Freedom in the While the law criminalises sexual offenses, World 2018 – Zimbabwe report noted that including rape and spousal rape, these crimes factors such as poverty, religion and lack of strong remained widespread. Women’s group Musasa enforcement mechanisms have prolonged child 33 Project reported that sexual violence against marriages in the country. The GirlsNotBrides women, especially rape, was on the increase in website, provided the following information: 2018. In 2018 alone Musasa reported receiving “Approximately 1 in 3 girls in Zimbabwe are up to 384 cases of rape of which less than 50% married before their 18th birthday. Child were satisfactorily attended to.30 Musasa warned marriage predominantly affects girls who live in that many more cases went unreported. Almost a poverty and in rural areas. Girls from the poorest quarter of married women who had 20% of the households were more than 4 times as experienced domestic violence reported sexual likely to be married/in union before age 18 than 34 violence, while 8% reported both physical and girls from the richest 20% of the households.” sexual violence.31 While conviction of sexual Lack of education and influence of religion were offenses is punishable by lengthy prison key drivers. sentences, women’s organisations stated that sentences were inconsistent. Rape victims were not consistently afforded protection in court. The police referred for prosecution the majority of reported cases, although few were actually prosecuted. While the police Victim Friendly Unit (VFU) did a commendable job throughout the country to respond to rape and sexual abuse of women, significant protections that are supposed to be infused in the VFU process were lacking in several areas. Despite the enactment of the Domestic Violence Act in 2006, domestic violence remained a serious problem, especially intimate partner violence perpetrated by men against women.

A large contributor to the perpetuation of a culture of rape and domestic violence was the low level of reporting of cases. Women were also While conviction of sexual reported to withdraw cases – especially in offenses is punishable by lengthy domestic violence matters. Not withstanding that many who experience domestic violence prison sentences, women’s did not report, the JSC reported that domestic violence cases in the Magistrates Court increased organisations stated that from 10,786 in 2017 to 13,623 in 2018, a rise by sentences were inconsistent. close to 3,000 cases.32 The joint government-

30. Musasa Project, http://www.musasa.co.zw 31. Ibid. 32. Judicial Service Commission, 2018 Annual Report, page 16. 33. Freedom House, Freedom in the World 2018 – Zimbabwe (section G3), 15 March 2018. 34. GirlsNotBrides, Zimbabwe, undated.

40 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Specific Cases Ÿ MDC Alliance youth members attacked then MDC-T vice president Thokozani Khupe with stones and attempted to burn a hut she entered while in a village outside Buhera for the funeral of the late MDC-T President Morgan Tsvangirai on 20 February.

Ÿ In May 2018 at the Supreme Court in Harare riot police had to protect former deputy prime minister Thokozani Khupe after activists from Nelson Chamisa-led MDC-T party harassed her for being a “sell-out” and chanted “hure! hure! hure!” which is Shona for prostitute. Thokozani Khupe had been at the court attending a case in which she was battling Nelson Chamisa over the use of the party’s name and symbols.

Ÿ People’s Democratic Party (PDP) candidate Lucia Matibenga, who was one of the few females in the country leading a political party, said when she suggested her name to lead the PDP, some people in the party suggested that she had no capacity to lead because she was a woman.

Ÿ ZEC Chairwoman Justice Priscilla Chigumba faced frequent harassment on social media during the elections campaign period and in the aftermath of elections. On 12 September, MDC Alliance MPs verbally heckled Justice Priscilla Chigumba for allegedly enabling President Mnangagwa’s election victory, prompting security personnel to escort her from the Parliament building for her safety.

Ÿ In Buhera an MDC polling agent claimed a group of men came to her house in the middle of the night and assaulted and raped her for refusing to sign the vote tabulation form she claimed contained irregularities. This evidence was put on affidavit for the Presidential election petition before the Constitutional Court, although this bundle of evidence was expunged from the record.

Ÿ In Mutoko a woman claimed three men came to her home demanding to know the candidate she voted for during the elections. She claimed the men assaulted and raped her when she gave an unfavourable answer. Police arrested one of the men responsible and the court case was pending at year’s end.

Ÿ Students at the Catholic University of Zimbabwe’s Bulawayo campus staged a protest accusing the college administration of failing to rein in lecturers fingered in demanding sexual favours from female students in return for marks.

41 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 9

SEXUAL MINORITIES: LGBTQIA RIGHTS

The LGBTQIA and the Constitution Zimbabwe’s Constitution guarantees equality both as a founding value in terms of section 3, but also as a right in terms of section 56.

However, there have been long-held negative views against the same sex community and other sexual orientation referred to as lesbians, gays, bi-sexual, transgender, queer/questioning, intersex and asexual (LGBQIA). The nation is yet to accept equality and non-discrimination to imply protection of those of different sexual orientation and preference. When the Constitution Parliamentary Committee (COPAC) conducted consultations across the country in the development of the current Constitution, general public sentiment was against protection of the LGBTQIA rights in the Constitution. As a result, section 56 in the Constitution conspicuously omits sexual orientation and preference as a ground for discrimination. More expressly, section 78 of the Constitution which regulates marriage rights states that “Persons of the same sex are prohibited from marrying each other”. What this means is that the LGBTQIA community finds no concrete protection of their sexualrights – albeit members of the community are accorded every other right in terms of the law and the Constitution. What is problematic about that position nonetheless is that, as human rights are interrelated, interconnected and indivisible, limiting one right and granting others has the effect of diminishing the substance and meaning of those other rights that are granted.

Harassment and Discrimination Members of the LGBTQA community also had The primary organisation advancing the rights of higher rates of unemployment and the LGBTQIA community in Zimbabwe is the homelessness. According to GALZ, LGBTI Gays and Lesbians of Zimbabwe (GALZ). In persons often left school at an early age due to terms of harassment, the institution witnessed discrimination. Higher education institutions reduced incidences comparative to 2017 and reportedly threatened to expel students based previous years. on their sexual orientation.

While there was no change in law and policy, The most publicly known 2018 case that ended government heavy-handedness was somewhat in an end of employment of a gay man involved a relaxed in 2018 in that there were no overt and deputy headmaster at St John College, an elite direct government attacks against the LGBTQIA private school in Harare North, who on the 21st community. of September disclosed his gay sexual orientation during a school assembly at the all- Previously, GALZ was at the receiving end of boys high school after a media house had raids and searches at their offices in Harare. threatened to disclose his orientation. Parents GALZ reported that many persons who protested the proclamation and hired attorneys identified themselves as LGBTQIA did not seek who demanded resignation of the deputy medical care for sexually transmitted diseases or headmaster and threatened a lawsuit. other health problems due to fear that healthcare providers would shun them or report them The deputy headmaster tendered his resignation to authorities. on 28 September, citing that he was receiving

42 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 death threats and threats of physical harm to his government was “a key factor in influencing person and his pets.35 change in terms of how issues of sexual orientation and gender identity are addressed In 2018, GALZ released a report from their both at state level and among the ordinary survey, and the report titled Actus Reus: Analysis Zimbabweans.” According to the survey, 50% of of Human Rights Violations Against LGBTI gay men in Zimbabwe had been physically Persons in Zimbabwe drew data from a total of assaulted and 64% had been disowned by their 170 violations extracted from 104 actual cases families. 27% of lesbians also reported compiled and categorized by GALZ into 12 disownment. Importantly, GALZ noted that “the types.36 The 12 recorded categories were assault, number of violations is just the tip of the iceberg threats, outing , discrimination, police in relation to the many other incidences that are harassment, unlawful detention, disownment, taking place unreported within the communities blackmail, displacement, unfair labour practice, where LGBTI persons live.” hate speech and invasion of privacy. The report showed that of these recorded categories, the most common violations were assault (19%), LGBTI persons often left school at threats (15%), blackmail (15%) and being outed (11%). The study also found that the country’s an early age due to discrimination.

Key facts and figures Ÿ 170 violations were reported, 104 of them compiled by GALZ. Ÿ 12 recorded categories of violations were assault, threats, outing, discrimination, police harassment, unlawful detention, disownment, blackmail, displacement, unfair labour practice, hate speech and invasion of privacy. Ÿ Most common violations were assault (19%), threats (15%), blackmail (15%) and being outed (11%). Ÿ 50% of gay men in Zimbabwe had been physically assaulted. Ÿ 64% of gay men had been disowned by their families. Ÿ 27% of lesbians reported disownment.

Criminal Sanctions Most Common Violations Section 73 of the Criminal Code proscribes “any act involving physical contact between men that would be regarded by a reasonable person to be an indecent act”; consensual homosexual Being outed activity is criminalised. This provision in fact used (11%) Threats to cover only anal sexual intercourse between males. The Criminal Code has expanded the (15%) scope of this crime, and it now includes not only acts of anal sexual intercourse, but also any act Blackmail involving physical contact between males that (15%) would be regarded by a reasonable person as an Assault indecent act, for example, masturbation of a (19%) male by another male. Both males would be charged. To note is that the provision only covers

35. See “Gay deputy headmaster resigns” DailyNews, 28 September 2018, https://www.dailynews.co.zw/articles/2018/09/28/gay- headmaster-resigns. 36. The full report is available at Kubatana.Net at www.kubatana.net/wp-content/uploads/2018/07/Violations-Report-Final- Actus.pdf

43 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 male activity. The penal provision carries a According to GALZ, surprisingly the only party to penalty for the convicted of up to one-year react was ZANU-PF which invited GALZ to a imprisonment or a fine up to $5,000, or both. meeting . Although ZANU-PF was non- There were no known cases in 2018 where there committal, the discussion was reported by GALZ was prosecution for consensual same-sex sexual as “encouraging”, marking a departure from the activity. previous leadership which did not engage with GALZ at all. Progress and Developments Under former President Robert Mugabe’s 37- In July, the ministry of Health adopted new year rule, members of the LGBTQIA community training manuals to be used by health were subjected to ongoing abuse and professionals when dealing with gays and sex 38 crackdowns. In January 2018, President workers. In the same month, it was announced Mnangagwa spoke on the issue of LGBT rights for that five new health centres would open in the first time as President during an interview Harare, Bulawayo, Gweru, Mutare and Kwekwe with CNN’s Richard Quest at the World to cater to the health needs of gay and bisexual 39 Economic Forum in Davos, Switzerland, saying: men. The July elections were welcomed by “Those people who want it (same-sex marriage) LGBTQIA activists, who called them a “historic are the people who should canvass for it, but it’s win” in that there was a reduction in not my duty to campaign for this”.37 In June 2018, homophobic hate speech and reduction in the GALZ wrote to political parties to meet and get politicisation of LGBTQIA individuals as their promises and commitments over campaign tools.40 protection of the LGBTQIA community.

Specific Cases Ÿ The current legal position has perpetuated and entrenched stigma and discrimination against the LGBTQIA community. Some individuals who are LGBTQIA shun from making known their sexual orientation for fear of societal reprisals and stigma and discrimination. In addition, these individuals leave in perpetual fear of being caught.

Ÿ Crude statements continued to be made by individuals in both public and private spaces, which statements and sentiments continued to perpetuate stigma and discrimination of the LGBTQIA community.

Ÿ GALZ’s reported that sensationalist headlines and biased perspectives were all too common in media coverage of LGBTQIA issues. It observed that “government owned media has tended to report more negatively about issues relating LGBTI persons compared to the privately-owned media, which seemed to be more tolerant and objective in their reportage.”

Ÿ Due to the criminality and stigma of same-sex activity, LGBTQIA persons were vulnerable to blackmail. Blackmail and being “outed” were reported as two of the most common forms of repression of LGBTQIA persons. It was common for blackmailers to threaten to reveal one’s sexual identity to the police, the church, or family if the victim refuses to render payment.

37. “Zim’s President Mnangagwa slams door on same-sex marriage”, Mambaonline, 26 January 2018. 38. “Zim govt adopts manual for treating gays, sex workers at health centres” New Zimbabwe, 9 July 2018, https://www.newzimbabwe.com/zim-govt-adopts-manual-for-treating-gays-sex-workers-at-health-centres/ 39. “Zimbabwe’s LGBTI group says elections a ‘historic win’ for LGBTI community”, Mambaonline, 20 August 2018. 40. “Gay, lesbian stand at Zim book fair trashed” Basildon Peta, 8 August 2006, iol.co.za.

44 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 10

PERSONS WITH DISABILITIES

“Problems of people with disabilities are multiple, interrelated and intersected. Disability rights are indivisible and interdependent. They need holistic and integrated interventions, and not ad hoc, reactionary and piecemeal.” – National Association of Societies for the Care of the Handicapped (NASCOH)

There are an estimated 1.4 million persons with disabilities (PWDs) in Zimbabwe,41 although there are no real reliable statistics to verify this. It is hard to make an accurate estimate regarding how many disabled people are in Zimbabwe, but available figures estimated this to be at about 7% of the total population. Other than absence of statistical studies, it is conceptually difficult to come up with an accurate figure given that there is no universally agreed definition of “disability”, and even the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) does not define disability. Under the Constitution recognition of the rights of persons with disabilities is made under section 3(2)(i). Section 22 requires the State and all institutions and agencies of government at every level to recognise the rights of persons with physical or mental disabilities, their right to be treated with respect and dignity. There is a progressive duty on the State to assist persons with physical or mental disabilities to achieve their full potential and to minimise the disadvantages suffered by them. Section 83 provides that the state must take appropriate measures, within the limits of the resources available to it, to ensure the full realisation of rights by people with disabilities. On the downside, section 83 of the Constitution reinforces the subjection of all disability rights to the availability of state resources.

To its credit, Zimbabwe was one of the first countries in the world to enact disability discrimination legislation.42 However, the existing legal framework in Zimbabwe is inadequate to cater for all the needs of people with disabilities, and legal loopholes allow for duty bearers to abdicate some of their duties. Laws that address disability in Zimbabwe, with the exception of the Constitution, predate the UNCRPD and are based on an outdated medical model of disability, which treats people with disabilities as sick people in need of medical treatment and charity.43 The UNCRPD places at the core the social model of disability, which maintains that disability arises from the attitudinal, physical and institutional barriers that systematically exclude disabled people from fully participating in society. Therefore, rather than focusing on the physical and/or psychological limitations of individuals, the emphasis of the analysis focuses upon empowerment, social inclusion, choice and human rights.

It is hard to make an accurate estimate regarding how many disabled people are in Zimbabwe, but available figures estimated this to be at about 7% of the total population.

41. T Choruma “The forgotten tribe: Persons with disabilities in Zimbabwe” (2007) a t http://www.africacampaign.info/uploads/media/forgottribeprogressiozim_01.pdf 42. “Being a Zimbabwean Woman with a Disability” Her Zimbabwe. 9 June 2015 at http://herzimbabwe.co.zw/2015/06/being-a- zimbabwean-woman-with-a-disability/ and “Spare a thought for the disabled” The Herald, 16 June 2013 at http://www.herald.co.zw/spare-a-thought-for-the disabled/ 43. The social model is explained further below.

45 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Exclusion and Marginalisation PWDs are one of the most marginalised, socially “In 2018 there was a commemoration of excluded and poorest groups in the the Day of PWDs in Harare. The day was Zimbabwean society.44 In the last two decades attended by PWDs and able-bodied reports and studies reveal an unchanging persons. There was a scramble for food marginalised status of PWDs.45 It is a common and the police fired teargas. People who perception within Zimbabwe that PWDs are suffered the most were the visually passive, economically inactive and unproductive impaired who could not run away – nor and therefore constitute a burden on the society.46 make sense of where the teargas was PWDs encounter multiple attitudinal, coming from. There were also people on environmental and institutional barriers that wheelchairs who suffered. The event was militate against their effective inclusion within a real nightmare for people with society.47 Fundamentally flawed, is that the law disabilities. This was a manifestation of and approach to disability rights in Zimbabwe one of the main fears of people with still takes the welfarist approach – which disabilities, which is violence. Wherever approach has been condemned in international violence occurs, people with disabilities best practice and international law. Far worse, suffer the most.” Eye-witness account. disability is still seen as a disease or a health condition in policy and programming. The government’s National Health Strategy of 2016- There was no existing government programme 2020 captures disability as a non-communicable targeting PWDs in the provision of sexual and disease. reproductive health services, family planning and HIV and AIDS treatment. Persons with Disability is not a disease and capturing disability mental disabilities also experienced inadequate as a disease is not in sync with the UNCRPD. medical care and a lack of health services. There Abuse of rights of the disabled is across the are 8 centralised mental health institutions in the spectrum. The National Association of Societies country with a total capacity of more than 1,300 for the Care of the Handicapped (NASCOH), an residents, in addition to the 3 special institutions umbrella body for organisations working in run by the ZPCS for long-term residents and disability in the country, stated that the public those considered dangerous to society. Residents considered persons with disabilities to be objects in the 8 centralised institutions received cursory of pity rather than persons with rights. screening, and most waited for at least one year for a full medical review. PWDs encounter multiple Electoral Participation attitudinal, environmental and For the first time, in the 2018 harmonised elections ZEC provided voting booths which institutional barriers that militate could be used by PWDs at some polling stations. against their effective inclusion This included lowered booths which could be used by people on wheelchairs and people of within society.

44. “Disability Scoping Study in Zimbabwe: Final Report” July 2007, https://www.ucl.ac.uk/lc-ccr/dpwnloads/scopingstudies/dfid_zimbabwereport. 45. “Living Conditions Among Persons with Disability Survey Report” March 2015, by Ministry of Health and Child Care & UNICEF; “The Forgotten Tribe: People with Disability in Zimbabwe” January 2007, by Progressio; “Children with Disability: Their Households’ Livelihoods and Experiences in Accessing Key Services” January 2007, by Nelson Marongwe and Rekopantswe Mate, published in January, 2007. This report was commissioned by the United Nations Food and Agriculture Organisation (FAO); “DFID Scoping Study: Disability Issues in Zimbabwe” July 2007, by Dr Raymond Lang and Gladys Charowa; and “Living Conditions Among People with Activity Limitations in Zimbabwe” December 2003, by SINTEF (a Norwegian Health Research Institute). 46. “900 000 live with disability” Weekend Post, 20 March 2015 at http://www.weekendpost.co.zw/articles/2015/03/20/900-000-live-with-disability 47. Disability Scoping Study in Zimbabwe: Final Report July, 2007 https://www.ucl.ac.uk/lc-ccr/dpwnloads/scopingstudies/dfid_zimbabwereport.

46 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 short stature. This was however not throughout Representation in Governance the country. Voter education material was also There was limited inclusion of PWDs in decision produced in braille and distributed throughout making both on issues that affect PWDs the country. ZEC campaigns, including media specifically and on issues that affect the nation campaigns, referred to people with disabilities. generally. Although two Senators were elected to represent persons with disabilities, Senators There was significant improvement towards Whatson Khupe and Rejoice Timire, Parliament inclusivity. There were minimal legal or rarely addressed problems especially affecting administrative safeguards to allow participation persons with disabilities. Parliament does not in the electoral processes by persons with provide specific line items for persons with disabilities. During the actual polling, however, disabilities in the various social service ministry ZEC gave preference to PWDs in voting queues. budgets. The two Senators do not have a budget People with visual impairments were assisted by to reach out to their constituency. These two do assistants of their choice and not by police not have allocations on the Constituency officers or polling officers. ZESN found that 97% Development Fund because that fund is of observed polling stations made adequate reserved for Members of the House of Assembly accommodations for persons with disabilities, and the constituencies they represent, not for the elderly, and pregnant or nursing women. Senators. Polling officials permitted persons who requested assistance, including blind, illiterate, There were also no structures from the grassroots and elderly persons, to have an individual with that extend to the Senators. The Disabled them to mark their ballots as the electoral law Persons Act [Chapter 17:01] establishes the requires. 45% of polling stations had at least 26 National Disability Board. Organisations in assisted voters, according to ZESN. disability work have described the Board as a tool that does not work. For the most part, the However, no braille ballot papers were availed Board was under resourced. According to the for the visually impaired to vote in secret. The Act, the Board should be serviced by a fully- High Court threw out a case in which a visually fledged Secretariat, headed by a Director of impaired voter, Abraham Mateta, sought an Disability Affairs. However, since 1994 the order to compel ZEC to print braille ballot Board has no dedicated secretariat and the staff papers, and/or provide other methods of voting in the Department of Social Welfare work on that allowed the visually impaired to vote in other responsibilities to the detriment and secret and unassisted. neglect of disability issues. The Act creates the Office of the Director for Disabled Persons’ “What everyone would really like is to Affairs whose duties include liaising with vote unassisted, including people with ministries and local authorities to ensure the visual impairments. Their desire is to vote implementation of the policies and measures in secret” - NASCOH formulated by the National Disability Board, and co-ordinating the activities of organisations Many eligible PWDs did not vote. Studies by which are involved in working with people with NASCOH showed that a significant number of disabilities. The Office of Director had not been people did not register to vote for fear of filled and was only advertised in April 2018. violence. NASCOH helped provide for There is also the Special Advisor to the President handicapped accessibility at polling stations on Disability Issues, currently Senator Joshua throughout Harare, Bulawayo, Gweru, Kwekwe, Malinga, who is accountable only to the and Mutare. NASCOH also deployed over 125 President. PWDs to be election observers, who were trained by both NASCOH and ZESN. 560 people With both the National Disability Board and the with disabilities were trained by NASCOH on the Senators, there was incapacity that is structural. BVR system, and these in turn reached out to There was discomfort over the fact that disability 5,600 PWDs, primarily through social media. issues are under the Ministry of Social Welfare.

47 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 The Ministry was seen as not too keen to facilitate domestication of the UNCRPD. President Emmerson Mnangagwa made promises to domesticate the Convention in the 2018-2019 Parliamentary sitting. That is a promise yet to be fulfilled.

Specific Cases Ÿ The government is yet to domesticate the UNCRPD which it ratified in 2013. The application of the Convention has immense implications for removal of barriers, equalisation of opportunities and disability inclusion. Domestication would open avenues for recourse for non-compliance via the Committee on the Rights of Persons with Disabilities.

Ÿ There is a Disability Policy under construction, currently in its third draft form. The Policy has not been finalised yet. The process of developing the Policy has been long drawn. The Committee on the Review of the Disability Policy, working under the National Disability Board, is driving the process. The non-finalisation of the Policy meant that the Disabled Persons Act continued unsupported by formal policies and implementation strategies.

Ÿ With the Convention approach in mind, disability legislation in Zimbabwe which must be aligned to the Constitution, include the following: the Disabled Persons Act [Chapter 17:01], the Mental Health Act [Chapter 15:12], the State Services (Disability Benefits) Act [Chapter 16:05], the Social Welfare Assistance Act [Chapter 17:06], the War Victims Compensation Act [Chapter 11:06], the Criminal Law (Codification and Reform) Act [Chapter 9:23], the Criminal Procedure and Evidence Act [Chapter 9:07], and the Geneva Conventions Act [Chapter 11:06]. Many of protections guaranteed in the Convention are lacking in the statutes. The bulk of these laws still use pejorative terms like “imbecile”, “idiocy”, “mentally disordered”, “intellectually handicapped” and “mental patients” that disempower, demean, degrade, belittle, stigmatise and devalue PWDs.

Ÿ Voter education in 2018 left out people with hearing impairments. The Deaf Zimbabwe Trust registered concern over the failure by the Ministry of Primary and Secondary Education to come up with sign language syllabi, yet sign language is an official language in terms of section 6 of the Constitution.

Ÿ NASCOH reported that access to justice in courts was compromised for persons with hearing disabilities due to a lack of sign language interpreters. Persons with disabilities living in rural settings faced even greater challenges. In Bindura, a case of rape involving a minor complainant initially failed to kick off because no one other than the child's mother could interpret the sign language of the child.

Ÿ There was no comprehensive and up-to-date database of PWDs kept by the Ministry of Public Service, Labour and Social Welfare. Such a database would be instrumental in informing disability programming and intervention needs by both government and non-state actors.

48 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 11

ENVIRONMENTAL RIGHTS: CO-EXISTING WITH NATURE In addition to constitutional and domestic law protections to the environment, Zimbabwe is a state party to several environmental protection multilateral agreements that govern management and exploitation of natural resources, climate change, and the prevention of environmental pollution.

Environmental protection is a goal under the Agenda 2030, as well as the Sustainable Development Goals. The Environmental Management Agency (EMA) directly coordinates implementation of the United Nations Convention to Combat Desertification (UNCCD), Ramsar Convention, Basel Convention, Stockholm Convention, Rotterdam Convention, Bamako Convention, and some provisions of the Convention on the Biological Diversity (CBD). EMA is a statutory body responsible for ensuring the sustainable management of natural resources and protection of the environment, the prevention of pollution and of the environment. It was established under the Environmental Management Act [Chapter 20:27].

Wetlands tracking where wetlands are being filled in. If so, Wetlands account for just less than 5% of that information is not publicly available. The Zimbabwe’s land area. Most of the wetlands are ZLHR especially has been active in taking up covered at least seasonally by marshy lakes and wetland protection cases to the High Court. The ponds known as vleis. Zimbabwe has nowhere ZLHR has argued that wetlands should be near as much wetland area as some of its Gazetted as a way to protect them from neighbours. But Zimbabwe does very little – and development. EMA could only issue tickets up to sometimes nothing at all – to protect the $5 000, yet most of the damage that occurs on wetlands it does have. For instance, only 4 of the wetlands amounts to more than that. Zimbabwe 11 wetlands in Gokwe North are still functional. is obligated also obliged to domesticate the The rest have been depleted by streambank Ramsar Convention, as a step in protecting the cultivation. EMA announced that it had issued natural environment. out 10 orders against stream bank cultivation to protect the water sources, but residents Mining and Environmental Protection continued to destroy wetlands. Because the The environment was under threat from mining region is dry many people opt to farm where activities. These threats were posed both by water is easily accessible and available. Several formal and informal mining operations. It is buildings have been proliferating in wetlands. estimated that 1,5 million people were engaged While some construction has been outright in artisanal mining activities of which 500,000 illegal, city councils and other responsible were said to be directly employed by the sector. government departments have been granting However, only an estimated 25,000 were licences and authorisation for construction on registered with the Ministry of Mines and Mining wetlands. Building on Zimbabwe’s wetlands is Development. There was an upsurge in illegal illegal, but that has not stopped the important mining activities attributed to economic ecosystems from being developed. challenges facing the country, including u n e m p l o y m e n t . Wi t h t h a t h a s c o m e Lax enforcement of the law means developers environmental degradation. Panners left behind do not face serious repercussions. It is not clear massive craters filled with stagnant mercury- whether the Zimbabwean government is polluted waters, mounds of sand and fallen trees.

49 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Toxic chemicals such as mercury and cyanide mining sector in Zimbabwe, including weak used in the extraction of gold ended up in rivers State-based judicial and non-judicial posing a health hazard to both animals and mechanisms to remedy adverse human rights humans. Communities and livestock were impacts. Violations included involuntary exposed to contaminated drinking water and the relocation of communities with inadequate to no mining activities also affected pastures. compensation, negative impacts on indigenous Zimbabwe is a signatory to the Minamata communities in the localities mining company Convention signed in Japan meant to regulate operations, environmental and water bodies the use of mercury, with an objective to stop impact, impact on health and safety as well as completely the use of mercury in gold mining impacts associated with artisanal mining. More activities. However not much was done to concerning is that the report found that very little eliminate use of mercury in the country. to nothing was being done to address these human rights violations by mining companies. The Zimbabwe Environmental Law Association Government and allied institutions mandated to (ZELA) revealed gross violations of human rights protect citizens against human rights violations in mining areas, particularly in Mutoko and are doing very little in this regard. Fears were that Zvishavane where locals were subjected to government's pressure to obtain foreign direct discrimination and involuntary relocations, investment caused it to turn a blind eye to among other issues. In a report titled Zimbabwe environmental degradation and protection of National Report on the State of Business and workers. Human Rights in Mining Sector 2018: The Case of Mutoko and Zvishavane, ZELA reported that There is need for a smart mix of mandatory and mining companies had been grossly violating voluntary regulatory frameworks to motivate human rights, against set national and mining companies to respect human rights in international standards. The findings revealed mining. According to ZELA, this smart mix that there existed severe economic, political and should filter between corporate social environmental systemic challenges that responsibility and corporate accountability, as presented several institutional challenges to this ensures all the stakeholders are accountable implement UN Guidelines on Business and on issues such as community benefits, Human Rights in the mining sector in Zimbabwe. environmental performance, among many other issues, and to allocate more powers and Additionally, the report revealed poor political responsibilities to local authorities to negotiate will and support to strengthen the legal mining contracts as they operate within the framework and institutions that regulate communities and have full knowledge of activities that impact on human rights in the community development priorities.

50 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Specific Cases Ÿ High Court Judge Justice Felistus Chatukuta interdicted the Harare City Council from proceeding with constructing a bus terminus to be called Rhodesville Holding Bay and an informal sector traders’ market on a wetland in Coronation Park. The wetland is a catchment area providing fresh water for Harare, and Coronation Park is a wetland reserved as a park by the Harare City Council and not fit for development of projects, which the local authority had embarked upon.

Ÿ In September, High Court Judge Justice Pisirayi Kwenda ordered the University of Zimbabwe to stop all construction work on the campus’ wetland without an environmental impact assessment certificate. The Harare Wetlands Trust had sought to interdict the university which had begun to construct a service station and shopping complex on the wetland near the corner of Churchill Avenue and Upper East Road.

Ÿ In December the ZLHR moved to stop Manyame Rural District Council from selling off land situated in a wetland to private developers, in a transaction which was opposed by villagers who use the piece of land for communal cattle grazing. Stanley Mabika, a resident of Rusirevi Village in Seke, wrote to the Ministry of Lands, Agriculture and Rural Resettlement notifying the authorities of the fact that the Manyame Rural District Council had allegedly sold off communal land between Besa and Zinanga Villages in Seke to private developers, including Patrick Zinanga and Steward Rusirevi.

51 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 12

BUSINESS AND HUMAN RIGHTS

Accountability and Human Rights Protections Corporate violation of human rights and impunity is just as reprehensible as government impunity. One challenge with business and human rights is when government has no determined and definitive policy regarding business and human rights. When the government itself has shown little concern and interests in human rights, it becomes very easy for business to flout human rights without much government sanction.

Section 44 of the Constitution places both negative and positive obligations on natural and juristic person, public and private, to respect, protect, promote and fulfil human rights. This provision, properly applied, has the potential of making Zimbabwe the world’s leading jurisdiction on business and human rights – reason being the wide range of individuals and institutions, including businesses, upon which a duty is placed. No other Constitution does the same.

The “Zimbabwe is open for business mantra” kind of capitalism where judges, senior police characterised the Mnangagwa government’s and army officials, and government officials, approach. The danger posed in that was that have vested interests in an under-remunerated often key safeguards to ensure human rights labour force, and in lack of compliance scrutiny compliance by business already operating and on human rights. This is because several the such seeking to operate were not prioritised, officials are beneficiaries of farms, companies effectively turning a blind eye to human rights and mines through the government economic violations. Without more, the mantra gives the empowerment programmes. These conflicted impression that businesses can do all they please officials would have little incentive in driving the for as long as they are making some form of business and human rights agenda. This may economic contribution. Businesses must take partly explain why government has not taken care of the environment, engage in fair labour visible interest in ensuring ethical and human practices, and observe fundamental human rights compliant business practices. rights. Zimbabwe is also in danger of a certain

Specific Cases Ÿ A labour dispute arose at Hwange Colliery Company since January over the non-payment of outstanding salaries for workers of the mining company. The wives of the workers staged a protest at the premises of the company, prompting the company to approach the High Court to bar the protestors and to evict them. However, High Court Judge Justice Lavender Makoni dismissed the urgency of the claim by the company.

Ÿ In Zimre Park, Harare, 14 houses were damaged with cracks, fallen ceilings and shattered windows as a result of rock blasting carried out by a private property developer, Integrated Construction Projects (ICP) during road construction. The property developer denied liability over the damages, prompting the residents to approach the ZLHR for legal assistance in seeking compensation.

52 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ In Kwekwe, a case was brought against RioZim. The company was blasting rocks which were shelling some Eiffel Flats residences. A case was brought to the High Court by residents seeking to interdict the blasting, relying on the right to a safe environment. The case was won in the High Court and RioZim appealed in the Supreme Court.

Ÿ In Goromonzi, gold rush panning caused clashes between security guards and the panners, leaving several panners dead. Rival gangs, one from Shurugwi and another from the local area, had running battles over ownership of illegal gold mines at Jongwe Farm. In September, 4 gold panners at Arcturus Mine in the same area were left seriously injured and admitted at Parirenyatwa Group of Hospitals after some security guards opened fire on them owing to a control dispute over a gold field. The security guards who were employees of TN Holdings, the owners of the mine, were taken in for questioning by the police.

Ÿ In April, over fifty families, including women and children, were unlawfully evicted from their homes at Arcturus Mine. The evictions were carried out by TN Holdings, the new owner of Acturus Mine which purchased the property from the previous owner, Metallon Gold Zimbabwe. The former owner’s workers were still owed salary arrears. Families and their household belongings were thrown out into the rain and cold and spent several nights in the cold. Some of the evicted people had lived at the mine for all their life. It is believed that Mettalon which had purported to summarily dismiss the employees without due process, colluded with the new owner TN Holdings to evict the families. The workers had a pending labour court dispute against Metallon Gold. The Zimbabwe Human Rights Association (ZimRights) condemned the violation of the rights to shelter, human dignity, as well as to property which was damaged.

Ÿ In 2018, the ZHRC completed an investigation in a case of evictions by the Makoni Rural District Council, lodged by settlers at Yorkshire Farm in Headlands. The violations were alleged to have been committed in November 2017 by ZRP officers, as well as Makoni Rural District Council. The ZHRC concluded that evictions of illegal settlers continue unabated in Zimbabwe, largely because Zimbabwe does not have rules and regulations on the eviction procedure of both former farm workers and illegal settlers on agricultural land (former white commercial farms). The Commission concluded that although the complainants were illegal settlers and could not hold or have right of title to the farms, their eviction from farms without any alternative land being offered was a violation of their right to adequate shelter and their freedom from arbitrary eviction.

Ÿ The ZHRC also concluded another eviction complaint by residents of Maganga Estate in Marondera. The complaint was filed on the 7 November 2017 by one Farai George Siyawamwaya, the Village Head, who approached the Commission on his own accord on behalf of his village. The violations were alleged to have been committed on 8 November 2017 by officials from the Ministry of Lands and Rural Resettlement who were accompanied by members of the ZRP. Similarly, the Commission concluded that the evictions were arbitrary and illegal.

53 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 13

FREEDOM OF THE MEDIA

The 2013 Constitution provides for freedom of expression, freedom of the media and access to information. But these rights are undercut by hostile provisions of the Access to Information and Protection of Privacy Act, the Criminal Code, the Entertainment and Censorship Control Act, the Interception of Communications Act, the Broadcasting Services Act and the Official Secrets Act among other laws that carry provisions that offend the Constitution.

The application of these laws limit media freedoms in the “interest of defence, public security or professional confidentiality, to the extent that the restriction is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.”

Journalists continue to practice self-censorship, defamation, civil defamation laws remained in hindering the ability of people to access diverse force. In addition to bad laws, attacks on information that enables them to meaningfully journalists and other media practitioners through participate and make informed choices and arbitrary detention, malicious arrests, decisions on issues of governance, political, prosecution or brutal physical assaults and social and economic issues that have a bearing arbitrary confiscation of equipment, negatively on their welfare. While the Constitutional Court impacts on their ability to gather and objectively ruled that the Constitution outlaws criminal impart information without fear or favour.

48. Madanhire & Anor v Attorney General CCZ 02-2015. Criminal defamation was held to be inconsistent with the Constitution.

54 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Propaganda and Media Bias charged under section 33 (2)(b) of the Criminal There was sustained and continued propaganda Code.49 by state media, specifically the Herald, Chronicles, Manica Post, Sunday Mail and the Press and Media Freedom ZBC television and radio channels. This The government required foreign journalists to propaganda also manifested itself in the obtain permits 60 days before travelling to the purportedly independent radio stations which country in order to report from the country. are known to have links to the government in Foreign reporters paid more for permits and one way or the another. Propaganda not only accreditation than did their local counterparts, distorts truth; it creates bias and instils hate and and these accreditation laws were used to fear. In the run-up to the elections, Veritas monitor international media journalists’ entry brought a court application seeking a declarator into the country. ZEC charged journalists on the independence of the state media in terms covering the 30 July election an additional fee for of section 61(4) of the Constitution. This matter further accreditation to cover election-related ended up being argued in 2019, and ruling is events. While private media was allowed to currently pending. operate, local journalists reported practicing self- censorship. The Ministry of Media, Information, Opening the Airwaves Publicity, and Broadcasting Services exercised The Zimbabwe Media Commission (ZMC) and control over state-run media. Privately-owned the Broadcasting Authority of Zimbabwe (BAZ) newspapers continued to operate freely, did not make any pronounced progress in although journalists reported practicing self- licencing private players in broadcast media. censorship. Commendably, the ZRP and However, during the year BAZ granted three journalist unions regularly met in an effort to broadcasting licenses, including a content promote a safe working environment. distribution license to the government- controlled Zimbabwe Newspapers (Private) Violence, Harassment and Arrest of Limited, and video on demand licenses (dealing Journalists with internet video content) to Econet Wireless On 4 September the Media Institute of Southern (operating Kwese TV) and TelOne. The BAZ Africa (MISA) condemned what it stated was the a w a r d e d i n d e p e n d e n t m e d i a h o u s e systematic “censorship, banning, or expulsion of Amalgamated Media Holdings (AMH) an online journalists from public events.” It stated that the television and radio license on 7 September. trend was against the letter and spirit of media BAZ is also working on the digitalisation project freedoms as espoused in the country’s which will see more television and radio Constitution. There were reported incidences of channels being added. This is hoped to facilitate attacks on journalists, as well as a case in which licencing of independent broadcasters. The journalists’ equipment was confiscated by the government through BAZ has been refusing to police. licence community radio stations. Communication and Internet Freedom of Expression Freedom There were no official restrictions on individuals The Interception of Communications Act (ICA) criticising the government or on the discussion of along with the Postal and Telecommunications matters of general public interest. Authorities, (Subscriber Registration) Regulations, 2014 (SI however, remained sensitive to criticism in 95 of 2014) facilitated eavesdropping and call general, particularly when directed at the interception. Law enforcement officers may President, and used the criminal law to repress apply to the responsible minister for a warrant and suppress. Several persons accused of authorising law enforcement to intercept insulting the president and his office were communications, including calls, emails, and

49. See the Chapter on civil and political rights for a listing of the cases in which section was invoked.

55 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 messages. According to the International Telecommunication Union, 27.1% of the population used the internet in 2017. 2018 would have seen a slight increase in the percentage. There was a level of surveillance and intimidation for human rights campaigners and opposition activists who were vocal on social media. Some users received anonymous threats for expressing views critical to government - with some threats coming close to death threats. Officials loathed social media’s ability to facilitate citizen journalism, thereby providing an alternative source of information. On many occasions, social media was often the first platform to break news to the country before official news outlets caught up with the story. Rights made several recommendations in the 2018 recorded a number of social media-related case of Scanlen and Holderness v Republic of arrests. Zimbabwe that include repealing sections 79 and 80 of the Access to Information and In November 2016, the Government made Protection of Privacy Act (AIPPA) and broadly voluntary commitments to the United Nations bringing the AIPPA in line with human rights Human Rights Council-led Universal Periodic instruments; decriminalising offences relating to Review Mechanism to enhance press freedom accreditation and the practice of journalism; and by aligning laws with the Constitution, ensuring adopting a framework providing for self- pluralism, unbiased local media and removing regulation of journalists. Almost ten years since restrictions on local radio stations. In 2009, the the resolution with recommendations was African Commission on Human and Peoples’ adopted, these reforms remain outstanding.

Specific Cases Ÿ High Court Judge Justice Esther Muremba on 8 February lifted a government ban on the screening of “Democrats”, a documentary film narrating the constitution-making process in Zimbabwe. The Board of Censors had in 2015 banned Upfront Films, a leading film company based in Denmark, which produced the documentary from screening “Democrats” after alleging that the film was unfit for viewership within the country.

Ÿ On 30 April, the police arrested and detained Gift Phiri, an editor with the Daily News, after he was seen taking pictures of a ZANU-PF meeting with party polling agents. He was charged with one count of criminal trespassing. Phiri was later released after paying a fine.

Ÿ On 14 May MDC Alliance supporters manhandled Tawanda Mudimu, a Herald photographer while he covered demonstrations at Harvest House, the party’s headquarters in Harare. According to the MISA-Zimbabwe chapter, MDC Alliance supporters allegedly assaulted Mudimu and demanded that he deletes the pictures he had taken during the demonstrations.

Ÿ On 24 May, Deputy Minister of Justice Terrence Mukupe assaulted News Day journalist Blessed Mhlanga and his wife during a live radio program. Mhlanga had released a video recording of an internal ZANU-PF meeting in which Mukupe said the military would not recognise opposition candidate Nelson Chamisa as president if he won the 30 July elections. When Mhlanga went to the police to file a complaint regarding the assault, he learned Mukupe already had made a statement accusing him of being the attacker.

56 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ On 12 June High Court Judges Charles Hungwe and Neville Wamambo quashed the conviction and sentence of six pro-democracy campaigners who were arrested in 2011 and charged with conspiracy to incite public violence after they allegedly plotted to roll out protests against former President Robert Mugabe. The campaigners were arrested in Harare while watching video footage of the Arab Spring uprisings. The six who include University of Zimbabwe lecturer, Munyaradzi Gwisai, Hopewell Gumbo, Antonater Choto, Tatenda Mombeyarara, Edson Chakuma, and Welcome Zimuto were convicted in March 2012 by Harare Magistrate Kudakwashe Jarabini and sentenced to two years imprisonment, which was wholly suspended for five years.

Ÿ The Zimbabwe Prisons and Correctional Services (ZPCS) summoned prison officer John Mahlabera to a disciplinary hearing on 18 June over a tweet perceived to be supportive of MDC Alliance President Nelson Chamisa. The prison authorities said Mahlabera’s actions showed disloyalty to President Mnangagwa. However, the ZPCS later dropped the charges.

Ÿ On 3 August at Bronte Hotel in Harare, riot police briefly stopped a press conference where MDC Alliance leader Nelson Chamisa planned to speak on alleged election rigging in the aftermath of the elections. Broadcasting and Media Services Minister Simon Khaya Moyo was dispatched to stop the riot police, allowing the press conference to proceed.

Ÿ On 21 August, police arrested Munyaradzi Shoko and charged him with criminal nuisance for allegedly posting offensive statements on Facebook concerning President Mnangagwa. However, prosecution was declined due to a dearth of evidence.

Ÿ On 5 September formerly exiled freelance journalist Violet Gonda, was denied a passport. Officials at the Registrar General’s office stated they could not process her passport for reasons dating back to 2002 when she worked for London-based SW Radio Africa. The matter spilled into the High Court, after which the journalist got her passport.

Ÿ A 25-year-old man was scheduled for trial on a charge of criminal insult for allegedly tweeting a message from a ghost account he allegedly created in the name of ZEC Chairperson Justice Priscilla Chigumba. Shadaya was arrested on 7 September and charged with criminal insult under section 95 (1)(a) of the Criminal Code for allegedly impairing the dignity of Justice Chigumba after he allegedly tweeted a message in August 2018 which read; “I can’t wait for the election fiasco to come to an end. I could do with a holiday and some good sex. My body needs a break.” Ÿ Magistrate Josephine Sande ordered musician Tawanda Mumanyi to pay a fine of $100 or serve one-month imprisonment for recording a song deemed “obscene and indecent.” Authorities convicted Mumanyi of contravening CECA for the “Kurova Hohwa” song’s sexually suggestive lyrics.

Ÿ On 21 August Munyaradzi Shoko, the leader of the Children of Zimbabwe War Veterans' Association (COZWA), a known critic of President Emmerson Mnangagwa was arrested and charged with criminal nuisance as defined in section 46 as read with paragraph 2 (v) of the third schedule of the Criminal Code for allegedly posting some offensive statements on Facebook against the ZANU-PF party leader. Shoko was detained at Harare Central Police Station after posting the following words on Facebook between March and May criticising President Mnangagwa: “At one time he beat up his own biological mother, he was later suspected for killing his own family head-boy. He was pinpointed for being the brains behind Ndebele 1980s scum. His name is generally associated with evil and devilish deeds. Today he is pleading for your

57 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ vote. WHAT A SHAME!!!!!!!!.” ZRP officers also charged Shoko with public violence under section 36 of the Criminal Code for allegedly participating in the 1 August protests in Harare, and with assault under section 89 of the Criminal Code for allegedly assaulting Energy Mutodi, a ZANU-PF member on 25 August 2017 at Holiday Inn Hotel in Harare.

Ÿ In August, authorities in Beitbridge suspended a nurse Senzeni Klaasen from employment after she allegedly criticised ZANU-PF party for causing the country’s economic and political crisis. Dr Lenos Samhere, the District Medical Officer at Beitbridge District Hospital accused the 47- year-old Sister-In-Charge at Beitbridge District Hospital of misconduct after she was allegedly recorded in an audio clip circulated on social media uttering what hospital authorities considered to be some “abusive” words. According to the purported audio clip, Klaasen allegedly accused ZANU-PF of causing the mass exodus of Zimbabweans who were going to neighbouring countries in search of greener pastures and seeking medical treatment in countries such as South Africa.

Ÿ On 20 September a Harare Magistrate granted bail of $30 to Conrad Gweru, a freelance journalist, who had spent two nights in police cells after being arrested and charged with disorderly conduct under section 41 of the Criminal Code for allegedly taking photographs of ZRP officers.

Ÿ On 29 September, police arrested Norman Machipisa after he reportedly said President Emmerson Mnangagwa was incapable of running the country. He was charged for disorderly conduct under section 41 (b) of the Criminal Code.

Ÿ In October, Newspapers vendors who were selling AMH titles, NewsDay and The Zimbabwe Independent in Harare were attacked by a group of 8 men. The group transported in 2 cars attacked vendors and burnt newspapers. They were arrested and taken to Harare Central police station. In the same period, the editor of NewsDay, Wisdom Mdzungairi, was threatened after AMH increased the prices of its titles by 100 per cent from the $1 at which the newspapers were selling.

Ÿ On 1 November a court acquitted three villagers Trymore Kutadzaushe, Chipo Mushonga, and Justine Mapfumo, of Chimombe Village in Buhera North constituency who had been on trial for allegedly insulting a traditional leader, whom they had allegedly denounced for disapproving their support to an opposition political party. The three villagers had been on trial on charges of disorderly conduct in a public place as defined in section 41(b) of the Criminal Code. The three had told Causemore Chimombe, a traditional leader on 23 June 2017 that “We are tired of being intimidated. We no longer need to be oppressed. We are not bothered that someone is a Chief. With your age, can't you see that you support what is useless? I cannot be forced to support a party which I do not like. We do not have a headman. Councillor, Chief, Member of Parliament and President”. The court found that the words allegedly uttered by the villagers did not constitute a crime.

Ÿ In November 2017, ZRP officers arrested an American citizen Martha O'Donovan and charged her with subverting a constitutional government after claiming that she undermined authority of or insulted former President Robert Mugabe through posting a message on social media. The American was held in a maximum-security prison for seven days, and then released on bail with instructions to have very limited social contact. O’Donovan was set free by Harare Magistrate Nomsa Sabarauta after her lawyers successfully challenged the continued placement of the American citizen on remand without being given a trial date. O’Donovan left

58 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ the country, but her case had not been finalised.

Ÿ On 12 December, journalist Panashe Makufa of Mail & Telegraph, an online newspaper, was hospitalised after being assaulted by the ZRP. ZRP had arrested and detained the journalist together with Hubert Sithole as the pair conducted their professional duties in Harare. The media practitioners were assaulted in full view of the public while covering a protest by some disgruntled MDC party supporters. The journalists were accosted by some ZRP members, who instructed them to stop covering the protest despite having produced their media accreditation cards, before the law enforcement agents forcefully grabbed their Canon 1300 D camera and smashed it against the gate at Harare Central Police Station. The journalists were detained at Harare Central Police Station for two hours and were released without charge. The pair petitioned the High Court and on 24 December, High Court Judge Justice Nyaradzo Munangati-Manongwa ordered ZRP officers to surrender the camera to the journalists after declaring the law enforcement agents' conduct as unlawful. ZRP officers surrendered the camera on the same day.

There were reported incidences of attacks on journalists, as well as a case in which equipment was confiscated by the police.

59 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 14

COURTS AND ACCESS TO JUSTICE: THE BULWARK AGAINST TYRANNY

“Judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens.” - Preamble, United Nations Basic Principles on the Independence of the Judiciary (1985)

Access to courts and justice are indispensable for the creation of a culture of human rights. Human rights on paper are not self-executing; rather, they rely on robust judiciaries that bring to life those human rights provisions in international and regional treaties, in national constitutions and legislation, and in common law principles. Rights are meaningless without remedies, and because the courts are the ones invested with the constitutional powers to try matters, civil and criminal, and to pronounce remedies, they become not only key but indispensable in enforcing and protecting human rights. Importantly, courts are the guardians of the Constitution and the rule of law. Lack of legal awareness, costs of accessing legal services, location of courts, limited government-funded legal aid, corruption and compromised judicial and National Prosecuting Authority (NPA) independence are some of the challenges that clogged access to courts and justice in 2018. Access to Courts were 50 circuit courts in total. Of those, 16 Five years into the 2013 Constitution, Parliament circuit courts were not sitting; and 2 were not was yet to pass the Constitutional Court Act as functional. But circuit courts only sat on limited required by the Constitution. Although the days, with some sitting only day a week. The JSC Constitutional Court is in operation and rules for made some strides in setting up a new Regional the court were gazetted in 2016, there is still Court in Bulilima district, which prior to that sat need for a Constitutional Court Act which will in Bulawayo. A second Regional Court is slated back the rules, and among other things, create a for Guruve Court in 2019. The JSC appointed 60 Constitutional Court Registry. This would new magistrates whilst the NPA seconded over enhance access to the court. 200 public prosecutors. Although a progressive move on the part of the JSC and the NPA, given The decentralisation of the High Courts was the court backlog, limited training of these augmented with the addition of the Mutare High officials saw some irregularities in the way cases Court which opened its doors in May 2018 as the were handled. fourth permanent High Court in the country after Harare, Bulawayo and Masvingo. Out of over 60 Judicial Independence administrative districts in the country, Zimbabwe Judges play a critical role in protection of human has 55 district courts (Magistrates Courts). rights, hence the need for independence. The relationship between judges and human rights is Of these 55 courts, some courts serve districts expressly mentioned in the United Nations Basic that are expansive and have huge populations. Principles on the Independence of the Judiciary. 50 Circuits courts were operational in some districts The UN Basic principles assert that “judges are to reach out to people in need of justice. There charged with the ultimate decision over life,

50. Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

60 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 freedoms, rights, duties and property of court’s relationship with the executive as “an citizens.” 51 According to the International incestuous relationship”. In the High Court, Commission of Jurists (ICJ), judges should political sensitivity of a case was seen to comprehend that they are “essential guarantors determine which judge got allocated to a case. of human rights and the rule of law.” 52 With judicial independence manifesting itself in both institutional and individual independence, As a result of the influence and the work of the individual independence particularly seemed to judiciary, individuals may enjoy equality and lack because judges in the Supreme Court and protection, and the other branches of the Constitutional Court were almost if not government may function efficiently in their own entirely always in unanimity. There was a dearth roles of protecting human rights.53 There were of dissenting judgments, and this has been widespread misgivings over the independence identified as a trend since 2013.54 A day before of magistrates and judges, and of prosecutors. the Constitutional Court sat to hear the case on This was variously attributed to fear by the judges the presidential election results challenge on 22 and magistrates to be seen to be acting August, the army released a strongly worded independently; judges and magistrates captured statement “joining all progressive Zimbabweans” by the executive - especially in matters with a in congratulating President-elect Emmerson political bearing; judges and magistrates Mnangagwa for a “resounding victory” and a beholden to the government for receiving farms “landslide victory”, and warning that the and other benefits; and outright corruption. The Zimbabwe Defences Forces “remains resolute in courts and the NPA appeared to operate under defence of the country’s sovereignty”. This was third party instruction in certain cases, construed to be a warning to the court to rule particularly in those cases that were viewed as “appropriately”, and the statement itself politically sensitive or involving certain amounted to a breach of the sub-judice rule, individuals. One described the approach of the putting the judges under pressure. courts as “executive-minded”, characterising the

51. See the Preamble to the Principles. 52. International Commission of Jurists (ICJ) “The Role of Judges in Guaranteeing Human Rights and the Rights of a Judge”. 53. Fahed Abul-Ethem “The Role of the Judiciary in the Protection of Human Rights and Development: A Middle Eastern Perspective” (2002) 26(3) Fordham International Law Journal 762. 54. Musa Kika “The Role and Attitudes of the Zimbabwean Constitutional Court in Operationalising the 2013 Constitution, 2013- 2018” upcoming ZELJ 2019.

61 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Delayed Justice, Delayed judgments purposive approach which is demanded by the and Judicial Approach Constitution, to give full effect to the Bill of Rights. The several cases around the election Delays in pre-trial procedures were common. period were dismissed on technicalities. This was due to a shortage of magistrates and court interpreters, poor bureaucratic procedures, the low capacity of court officials, a Threats and Attacks to Lawyers lack of resources and corruption. According to The Law Society of Zimbabwe (LSZ) dealt with the JSC Annual Report of 2018, although 60 new several complaints lodged by lawyers who were Magistrates were appointed, bringing to a full harassed and threatened in their line of duty. The complement the country’s Magistrates for the police emerged to be the main perpetrators. first time, the magistrate-case ratios were still way above recommended levels. As at 31 This was raised with the Commissioner-General December 2018, there were 1,619 members of of Police, who was reported as forthcoming in staff in the courts against an authorised addressing the issue, unlike under the previous established of 2,068 – thus the JSC was operating incumbent Commissioner-General Chihuri, at only about 80% of its capacity, thereby who would never respond to queries raised compromising the quality of court operations. about harassment of lawyers by the police. Politically motivated arrests also saw trials taking However, no single case taken to the long to commence. For instance, all the trials of Commissioner-General of Police has thus far the individuals arrested in the aftermath of the 1 been completed. Both President Mnangagwa August violence were yet to kick-off as at the end and the Minister of Home Affairs have received of the year, with the prosecutors stating that they communication regarding harassment and were still waiting for investigations to be intimation of lawyers, which communication completed. This is even though the Form 242s was not responded to. (Request for Remand Forms) indicated that the investigations would be completed within 30 In 2008 the LSZ obtained a declaratory order days of the arrests. against the Commissioner- General of the Police from the courts to the effect that the police must Lawyers viewed these arrests as not an attempt to allow lawyers their space to operate unhindered. seek justice or accountability, but merely to That order continues to be trumped upon by the harass and intimidate opponents of the regime. police with impunity. Lawyers reported getting The High Court and the superior courts routinely “visitors” in respect of certain cases they delayed in rending judgments. This was failure handled, such as the Manzou Farm eviction by the JSC to adhere to its own code of conduct. cases. According to human rights lawyers, there In most cases, orders were given without the full was a sense of risk involved in handling human reasons for judgment. This was the case rights cases. including in election-related cases and petitions. The year ended without the Constitutional Court Some lawyers reported being in places where handing down the full reasons for its ruling in the they had to leave hurriedly due to the hostile presidential election results petition. This culture environment. These were seen as occupational deprived development of important human hazards in doing human rights work in rights and constitutional jurisprudence. Failure Zimbabwe. to render reasons for judgment also compromised the ability of aggrieved parties to “You have to be security seek further redress through appeal. An overly technical approach was taken by the courts in conscious when doing human many cases, particularly the politically slanted rights work in Zimbabwe. controversies, including those to do with protection of constitutional rights. Courts tended Risk is always there.” to give a restrictive interpretation to Human Rights Lawyer constitutional rights, instead of pursuing a

62 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 After the 1 August shootings, there was a case in Access to Legal Aid which lawyers were seeking correct and proper The Legal Aid Directorate, a department within post-mortem results, that reflected actual cause the Ministry of Justice is mandated to provide of death as opposed to reports that indicated legal services to the indigent in terms of the Legal death by stab wounds. The lawyers in that case Aid Act. LAD has a means test that is used to were threatened. In some cases, lawyers were decide who qualifies for legal services. Once a denied access to clients. This included being lied client qualifies, the client is required to pay what to as to where clients were. Authorities often did is known as a “contribution”, which is a small not allow detainees prompt or regular access to token payment before LAD can assist. their lawyers and often informed lawyers who attempted to visit their clients that detainees or However, some of the challenges LAD lawyers those with authority to grant access were came across were clients so indigent as to not unavailable. The government also monitored, have money to get the processes issued by the harassed, and intimidated human rights lawyers clerk of court, let alone to afford service of when they attempted to gain access to their process by the Messenger of Court. LAD has clients. managed to set up offices at provincial centres in all the 10 provinces of the country. On 9 August, former finance minister and senior MDC Alliance official Tendai Biti was detained However, while LAD has a vision to have an trying to flee Zimbabwe via Zambia and was officer everywhere where there is a court in forcibly returned to Harare. Biti was initially Zimbabwe, LAD is not yet operating full time in denied access to legal counsel and his lawyer districts. The Directorate was also limited by Unite Saizi was severely assaulted by the police, shortage of staff, with an average 3 lawyers at and was and deliberately prevented from each provincial centre. LAD lawyers were not accompanying Biti to Harare Central Police resourced to travel to all district courts across the station. The lawyer was threatened with country to attend to cases. In addition, LAD did unspecified actions, including by the Military not conduct any awareness programmes to Police. Biti was subsequently charged with ensure that the legal aid institution was known. inciting post-election violence and unlawfully Much of the Legal aid was provided by civil announcing election results. Biti’s lawyer society legal aid organisations. Beatrice Mtetwa told Harare Magistrate Francis Mapfumo on 20 August that the state security There is currently a consortium of five legal aid agents, who intercepted Saizi in Kariba in organisation that offer legal services across the Mashonaland West province after he was country, among them Women and Law in deployed to offer emergency legal support Southern Africa (WILSA), Justice for Children services and to ensure Biti’s safety, severely (JCT), Legal Resources Foundation (LRF), assaulted him, dispossessed him of his mobile Zimbabwe Lawyers for Human Rights (ZLHR) phone and punctured his vehicle tyres to stop and Zimbabwe Women Lawyers Association him from tracking the convoy in which Biti was (ZWLA). Other organisations are beginning to travelling in. emerge, among them Abameli Lawyers for Human Rights and the Christian Legal Aid Lawyers were generally vilified for representing Society, both in Bulawayo. the so-called “criminals around President Mugabe” in the aftermath of Mugabe’s demise. The legal aid consortium operated a held desk These were mostly the G40 members who were programme at courts in Harare, Bindura, arrested and charged with mostly corruption and Chinhoyi and Goromonzi. The help desk criminal abuse of office. Lawyer Jonathan services offered legal empowerment on court Samkange had to withdrew agency in a case in processes and procedures so that clients could which he was representing former G40 minister be self-actors in court. Saviour Kasukuwere after he received threats from ZANU-PF youths.

63 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Specific Cases Ÿ On 21 March, High Court Judge Justice Mary Zimba-Dube ordered Home Affairs Minister, ZRP Commissioner-General and the Prosecutor-General to pay damages amounting to $17 075 to pro-democracy campaigner Cynthia Manjoro as compensation for wrongful arrest, detention and malicious prosecution over claims that she participated in the murder of a ZRP officer in 2011.

Ÿ In March, the Bindura Magistrate Court ordered Home Affairs Minister Obert Mpofu and the ZRP Commissioner-General Godwin Matanga to pay more than $30 000 as compensation to villagers whose property and homesteads were demolished during forced evictions instigated by the country’s former First Lady Grace Mugabe in 2015. In January 2015, ZRP officers raided and demolished the Mazowe villagers’ homesteads at Manzou Farm, in Mazowe District in Mashonaland Central province, without obtaining a court order to justify the forced evictions. During the forced evictions, ZRP officers destroyed homesteads, household furniture and the villagers’ crop produce including maize grain and groundnuts.

Ÿ In April Plumtree Magistrates Taurai Manuwere ordered the ZRP, Home Affairs Minister and a commuter omnibus driver to pay $4 098 in damages to Constance Tshuma as compensation for some injuries and the disfigurement she suffered on 23 October 2014, when a ZRP officer indiscriminately fired a firearm at a stationary vehicle in which she was travelling in from Plumtree to Bulawayo at a roadblock. Magistrate Manuwere ruled that the ZRP’s conduct was not reasonably justified and there were other avenues of arresting the commuter omnibus driver for breach of the law.

Ÿ On 5 October, the High Court endorsed a deed of settlement for the satisfaction of damages suffered by human rights campaigner Jestina Mukoko in the amount of $100 000, and a further $50 000 as a contribution towards her legal costs. The High Court ordered that the total payment of $150 000 must be made on or before 31 October. Jestina Mukoko, the Director of NGO the Zimbabwe Peace Project (ZPP) and Board Chairperson of the Zimbabwe Human Rights NGO forum was abducted by some unidentified armed men from her home in Norton on 3 December 2008, and her whereabouts together with two ZPP employees Broderick Takawira and Pascal Gonzo, who were also abducted later in December 2008 remained unknown until 24 December 2008, when they first appeared before the Harare Magistrates Court. This was after weeks of being held incommunicado and being tortured. In September 2009, the Supreme Court granted a permanent stay of Mukoko’s prosecution due to the violation of several of her fundamental rights by state security agents, who had subjected her to torture and inhuman and degrading treatment including simulated drowning, being locked in a freezer and being subjected to physical assaults. In 2017, the High Court had ruled that those who had illegally arrested her could be held liable in their own individual capacities.

Ÿ In October, High court Judge Justice Nicholas Mathonsi ordered the ZRP and Home Affairs and Cultural Heritage Minister to pay $13 500 in damages to 64-year-old Lillian Chinyerere as compensation for the pain she suffered on 26 August 2016 after some ZRP officers assaulted her by kicking her repeatedly with booted feet and struck her several times with truncheons, while sitting near Rotten Row Court in Harare. Lillian Chinyerere, who suffers from high blood pressure and is diabetic, suffered the brutal assault in full view of the public and also suffered physical harm as well as harm to her dignity. She suffered injuries to her back and shoulder and was unable to proceed with her job as a tailor due to the injuries sustained.

64 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ In November, the High Court ordered two ZRP members, former Attorney-General Johannes Tomana and the co-Home Affairs Ministers to apologise to human rights lawyer Mordecai Mahlangu, after the authorities conceded that they violated Mahlangu’s fundamental rights when they arrested and detained him almost a decade ago. The ZRP members namely Henry Sostein Dowa and Clever Ntini together with the Co-Home Affairs Ministers and Johannes Tomana, tendered their apologies to Mahlangu. In a Deed of Settlement entered on 31 October, the authorities agreed to pay Mahlangu a total of $13 500 to cover his legal costs before 30 November. Mahlangu was placed under arrest and spent one night at Harare Central Police Station cells in November 2009 on a trumped-up charge of attempting to obstruct the course of justice while performing his legal duties.

Ÿ On 3 December a Harare Magistrate ordered the ZRP to compensate pro-democracy campaigner Lynette Tendai Mudehwe to the tune of $6 210 for assaults she suffered at the hands of ZRP officers when the law enforcement agents crushed an anti-government protest in Harare in 2016. Mudehwe, the Coordinator of Zimbabwe Activists Alliance, was assaulted by ZRP officers while participating in a peaceful demonstration held in central Harare on 4 January 2016 and sustained some injuries and extensive bruises as a result.

Ÿ Cleric and human rights activist, Evan Mawarire issued his notice of intention to sue the Commissioner-General of Police and the Minister of Home Affairs for malicious arrests, detention, prosecution and harassment over a period of two years.

Ÿ The family of Sylvia Matambo-Maphosa, one of the victims of the 1 August extra-judicial killings, initiated damages claims.

There is currently a consortium of five legal aid organisation that offer legal services across the country, among them Women and Law in Southern Africa (WILSA), Justice for Children (JCT), Legal Resources Foundation (LRF), Zimbabwe Lawyers for Human Rights (ZLHR) and Zimbabwe Women Lawyers Association (ZWLA).

65 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 15

INDEPENDENT COMMISSIONS SUPPORTING DEMOCRACY: THE WATCHDOGS

Chapter 12 of the Constitution introduced independent commissions that support democracy. This is a new development – there was no provision for independent commissions in the Lancaster House Constitution. Five constitutional commissions are created: Ÿ the Zimbabwe Electoral Commission (ZEC) Ÿ Zimbabwe Human Rights Commission (ZHRC) Ÿ Zimbabwe Gender Commission (ZGC) Ÿ Zimbabwe Media Commission (ZMC) Ÿ National Peace and Reconciliation Commission (NPRC) Collectively, the Commissions have general objectives additional to those they individually possess. The general include supporting and firmly establishing human rights and democracy; protecting people’s interests and the country’s supreme power; to encourage the spirit of adherence to the constitutional government; encouraging accountability and transparency in public institutions; and ensuring that democratic values and principles are observed by the State and all its institutions, government agencies and government-controlled entities and to ensure that injustices are remedied.

The Commissions are independent, meaning that they should not be controlled by anyone nor should they be interfered with. They must act in terms of the Constitution, without fear, favour or prejudice. They are accountable to Parliament which ensures the efficient performance of their functions. The State, its institutions and agencies have an obligation through legislative and other means to assist the Commissions and protect their impartiality, independence, integrity and effectiveness.

Members of the Independent Commissions must be non-political in their functions. If a person who is a member of a political party is appointed to an independent Commission, he or she must renounce that membership, failing which that person cannot take up office as a member of the Commission.

Zimbabwe Human Rights children by political parties at political rallies was Commission forceful in condemning the abuse of children by Many people described the ZHRC as political parties, notably by the ruling ZANU-PF “surprisingly” progressive. The Commission held Party. its fort. The ZHRC was under-funded but managed to fulfil some of its constitutionally The recommendations of the report were to mandated functions. Through its website, a become the basis on which the Amalgamated hotline, social media platforms, and mobile legal Rural Teachers Union of Zimbabwe modelled clinics, the ZHRC’s human rights officers the relief it sought in a case in which it sought a conducted public outreach throughout the declarator and an interdict against ZANU-PF's country and accepted complaints from the use of school children at political rallies. The public for investigation. Several investigations of ZHRC, however, did not have sufficient complaints received were completed during the personnel to investigate the number of year, with the reports publicly released on the complaints it received. ZHRC worked with civil Commission’s website. A report on the use of society organisations to provide human rights

66 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 awareness, particularly to outlying communities. her commission needed $5 million for its In the build-up to the elections, on 27 March programmes but were promised $1,4 million for 2018, the Commission partnered with CSOs the 2018.56 Zimbabwe Human Rights NGHO Forum and ZimRights to host a Knowledge Exchange National Peace and Seminar with an objective of facilitating Reconciliation Commission knowledge sharing and cooperation between The NPRC conducted nationwide stakeholder civil society and Independent Commissions. In engagements beginning in February to solicit August the ZHRC issued a statement input from the public and determine its first areas condemning post-election violence, including of focus. The NPRC finalised a national strategy the 1 August killings of 7 protestors by security document outlining its plans and publicly forces, and criticising the army for attacking released it in October. In October, the NPRC civilians. The statement called upon all political commended the screening of journalist Zenzele leaders to encourage their followers to respect Ndebele's documentary in Bulawayo on the the political rights and opinions of others and to Gukurahundi genocide, after the ZRP had stop politically motivated human rights threatened to halt the screening on the basis that violations. the documentary had not been cleared by the Censorship Board. Zimbabwe Gender Commission The Zimbabwe Gender Commission (ZGC) is Zimbabwe Media Commission operationalised through the Zimbabwe Gender The ZMC was probably one of the most dormant Commission Act [Chapter 10:31]. This commissions, with little visibility in addressing Commission worked well to some extent. The media-related human rights issues. Yet the media ZGC carried out a pre-election assessment from space called for attention. Propaganda and 2-6 July 2018 followed by monitoring of the misinformation in State-controlled media was at elections from 27 July to 2 August 2018 in all the high levels. The politicisation of the media itself country's 10 provinces and provided important pointed to a failure of the Commission to insights and recommendations around discharge its mandate. Community radios participation of women in elections. For the most remained unlicensed, and restrictions for foreign part however, the ZGC appeared silent and media to operate remained in place. inactive. The ZGC was especially criticised for failing to take concrete action in lobby and advocacy as well as community awareness on Zimbabwe Electoral Commission issues to do with child marriages. The agenda of Despite delivering the 2018 elections, ZEC fighting child marriages was primarily lacked in transparency and accountable. ZEC championed by civil society organisations. In relied on the law, and disregarded the law as and significant part funding challenges affected the when it found convenient. In the words of one work of the Commission. The Zimbabwean human rights campaigner: “ZEC makes the right newspaper, Newsday noted in an article, citing to vote so difficult to express”. Bias was also seen the Parliamentary Portfolio Committee on in the operations of ZEC, such as the design of an Gender Chairperson Biata Nyamupinga, that uneven ballot paper that had no justification “The Zimbabwe Gender Commission (ZGC) has serve to prop-up one candidate, the incumbent been hit by staff shortages, amid reports that it Emmerson Mnangagwa. ZEC was staffed by has four of the required staff complement of 52 many retired army personnel within its ranks. officers.” Of these reported four officers, three The army, by extra-legal design or by default in were seconded from other ministries and one Zimbabwe is seen as an extension of the ruling funded by a development partner.55 The ZGC party. There was therefore serious suspicion chairperson Margaret Sangarwe disclosed that regarding the command approach to elections

55. “Staff shortages cripple Gender Commission” Newsday, 6 February 2017. 56. “Gender commission bemoans underfunding” Newsday, 27 November 2017.

67 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 – given this infusion of army personnel within ZEC’s operations and work. The Commission actively opposed court process and petitions that challenged electoral malpractices, and sought to advance the independence of ZEC. Rather than defending positions taken by government, and undermining its own independence, ZEC should champion the case of enfranchisement. Concerned citizens and institutions went to court to fight for ZEC’s independence, and ZEC vehemently and forcefully opposed. ZEC thus appeared to be bidding for the government of the day, failing to disentangle itself from the executive.

Specific Cases Ÿ Funding and lack of cooperation from government departments were key challenges. For instance, while some of the directives issued to the Commissioner-General of Police by the ZHRC as per the Constitution have been complied with, some have been completely disregarded.

Ÿ The NPRC has a 10-year life-span in terms of the section 251(1) of the Constitution. However, President Mnangagwa only signed the National Peace and Reconciliation Commission Bill into law on 5 January 2018, with only 5 years left for the Commission to operate. During the year, a torture survivor approached the Masvingo High Court seeking to extend the lifespan of the NPRC so that it operates for an effective 10 years as envisaged in the Constitution. The matter was only heard in 2019 and the High Court ordered that the Commission should enjoy its complete term of 10 years.

Ÿ Pursuit of truth lacks in the mandate of the NPRC, which is a truncated mandate. There cannot be peace without reconciliation, and reconciliation comes with truth-telling. This placates issues in the pursuit of peace. To a large extent however, the Commission's undoing were structural limitations, that included a truncated mandate, delayed setting out of the legal infrastructure and enabling legal framework for the Commission to operate, and the financial and human resources for the Commission to discharge its mandate. One reported visiting the offices of the NPRC, and the office had neither furniture nor stationery.

The State, its institutions and agencies have an obligation through legislative and other means to assist the Commissions and protect their impartiality, independence, integrity and effectiveness.

68 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 16

RATIFICATION AND DOMESTICATION OF INTERNATIONAL TREATIES AND INSTRUMENTS

Zimbabwe and International Law and incorporated into the domestic laws through Zimbabwe follows a dualist legal system, with a an Act of Parliament. clear distinction between national and international law. International law instruments An analysis of the Zimbabwean Constitution do not automatically become law in the country leads to the conclusion that most rights that are but require ratification and domestication. Four now part customary international law are provisions in the Constitution regulate the captured in the Constitution. A cross-section of operation of international law in Zimbabwe: such ratified and to some extent domesticated Ÿ Section 34 requires that “The State must international instruments include the United ensure that all international conventions, Nations Convention on the Rights of the Child treaties and agreements to which Zimbabwe (UNCRC), African Charter on the Right’s and is a party are incorporated into domestic Welfare of the Child (ACRWC), International law”. Covenant on Economic, Social and Cultural Ÿ Section 46(1)(c) requires that when Rights (ICESCR), International Covenant on Civil interpreting the Declaration of Rights, a court, and Political Rights (ICCPR) and the Convention tribunal, forum or body must consider on the Elimination of All forms of Discrimination international law and all treaties and Against Women (CEDAW). An example of conventions to which Zimbabwe is a party. domestication done in Zimbabwe through Ÿ Section 326(1) and (2) provide that customary legislation are the United Nations Convention international law is part of the law of against Transnational Organised Crime and the Zimbabwe, unless it is inconsistent with this Protocol to Prevent, Suppress and Punish Constitution or an Act of Parliament, and that Trafficking in Persons, Especially Women and when interpreting legislation, every court and Children against Transnational Organised Crime, tribunal must adopt any reasonable both of which were concluded on 15 November interpretation of the legislation that is 2000, which were domesticated by the consistent with that law. Trafficking in Persons Act [Chapter 9:25]. Ÿ Section 327(2) provides that an international treaty which has been concluded or executed Zimbabwe has been criticised for its slow pace in by the President or under the President’s domesticating international legislation, a authority does not bind Zimbabwe until it has development that has been attributed to a been approved by Parliament, and does not number of factors including the delays caused form part of the law of Zimbabwe unless it has by the onerous task of changing policies, the been incorporated into the law through an conflict between international conventions and Act of Parliament. parts of domestic law of Zimbabwe, and the fragmentation to different ministries of the In accordance with the dualist approach, responsibility of domesticating international international treaties ratified or acceded to by legislation, some of which did not have the Zimbabwean Government will not become appropriate capacity to domesticate self-executing upon ratification or accession. international legislation. The latter issue was, Treaties must first be approved by Parliament however, overcome with the creation of an

69 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Inter-Ministerial Committee on Ratification and Ÿ and respect for human rights premised upon Domestication of Treaties resident in the the supremacy of the constitution and respect Ministry of Justice, Legal and Parliamentary for the rule of law. President Mnangagwa Affairs. signed the African Charter for Democracy, Elections and Governance (ACDEG) in March Other challenges include the following double 2018 on his visit to Rwanda for the AU Heads standards shown by government and lack of of States meeting. But this Charter has not political will – with the government showing been ratified and domesticated. The Charter commitment to rights internationally, but acting was adopted in 2007 and came into force in otherwise domestically; cost of domestication 2012 after obtaining the requisite 15 (financial and otherwise in both the ratifications. All but two SADC countries have domestication and the implementation now signed the Charter, the two being processes); and the lack of prioritisation within Botswana and Tanzania. Pertinently, the cabinet and parliamentary systems. government under President Mugabe had repeatedly and consistently stated that it Conventions and treaties that would never sign the Charter because it was Zimbabwe is yet to ratify and “Western and Western-imposed”. There is even reflected in correspondence between domesticate the government and the AU on this aspect. An Ÿ Children’s rights – Third Optional Protocol interesting anecdote is that disgruntled to the UNCRC on a Communications members of the ruling party wrote to the AU Procedure - The UNCRC and the ACRWC and to SADC in December 2017 seeking to have been largely domesticated in the invoke provisions of the Charter following the Constitution and across various child events of November 2017 that led to the protection statutes. The two optional removal of President Mugabe. protocols to the UNCRC were also ratified by the government. However, there are still Ÿ Disability rights protection – United some gaps which require attention. In 2011, Nations Convention on the Rights of People the UN General Assembly adopted the with Disabilities - The CRPD is the first and Optional Protocol to the Convention on the m o s t c o m p r e h e n s i v e i n t e r n a t i o n a l Rights of the Child on a Communications instruments providing for a full catalogue of Procedure. The protocol provides for an rights and protections afforded to people with enforcement mechanism and procedure that disabilities. The Convention sets out rights, seeks to ensure that where there is a violation benchmarks, duties and enforcement of the Convention, remedial action is attained mechanisms. Zimbabwe ratified the CRPD at the earliest possible time. This is achieved and its Optional Protocol on 23 September by opening up for non-state actors, including 2013, thereby becoming the 135th state individuals and children themselves, to refer party to ratify the Convention and its cases to the Committee on the Rights of the Optional Protocol. The CRPD has been the Child. The Optional protocol also allows a most swiftly ratified international treaty state party to raise issues of non-compliance internationally. Over 90% of the total by another state party to the Committee membership of the United Nations has directly. There is thus a peer-watch ratified, together with the European Union. mechanism introduced. Zimbabwe is however yet to domesticate the Convention. Domesticating the Convention Ÿ Elections and democracy - African Charter will provide a legal tool through which to for Democracy, Elections and Governance enforce comprehensive protection of the (ACDEG) - The African Charter on rights of people with disabilities, formulate Democracy Elections and Governance seeks policy, and to enforce compliance where to promote adherence by African states to the duties and responsibilities are abdicated. universal values and principles of democracy

70 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Ÿ Environmental protection – The Ramsar of the UN Convention on the Protection of all Convention on Wetlands of International Persons from Enforced Disappearances and the Importance - Zimbabwe signed and UN Convention Against Torture and Other approved the Ramsar Convention, which Cruel, Inhuman or Degrading Treatment or came into effect in Zimbabwe on 3 May Punishment and its Protocol. The deplorable 2013. The Convention which was adopted practice of enforced disappearances has not on 2 February 1971 seeks to protect been criminalised as a standalone crime in wetlands. Zimbabwe currently has 7 sites Zimbabwe. But added to that, the government designated as Wetlands of Internal rejected a recommendation made by other UN Importance (Ramsar Sites), with a surface member states encouraging Zimbabwe to ratify area of 453,828 hectares. For fuller the Convention for the Protection of all Persons protection of wetlands which have been Against Enforced Disappearances. rapidly disappearing in Zimbabwe, the country must domesticate the Convention to This recommendation was made since 2011, ensure that protective mechanisms in the and again in March 2017 during the UN Human Convention are effectuated. Rights Council-led Universal Periodic Review Mechanism sessions. Zimbabwe has seen some Ÿ Abductions and disappearance - United abductions and disappearances, including high Nations Convention for the Protection of all profile ones such as those involving Paul Persons Against Enforced Disappearances Chizuze, Patrick Nabanyana and Itai Dzamara in and the United Nations Convention Against 2000, 2012 and 2015, respectively. Torture has Torture and Other Cruel, Inhuman or also been frequently used by the country’s Degrading Treatment or Punishment and its security forces. Protocol - The government is yet to ratify, domesticate and fully implement provisions

71 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 PART 3 THE FUTURE OF HUMAN RIGHTS IN ZIMBABWE: PROSPECTS AND RECOMMENDATIONS

72 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 CHAPTER 17

THE FUTURE OF HUMAN RIGHTS IN ZIMBABWE: PROSPECTS AND RECOMMENDATIONS

Zimbabwe has the gift of a progressive, homegrown 2013 Constitution. While a lot can be revisited and readjusted, the Constitution remains significantly progressive, with an expansive and justiciable Declaration of Rights. Independent watchdogs to democracy are created, as are institutions of government designed to provide checks and balances.

In the Constitution, democracy is entrenched. However, on paper, the Constitution remains an ideal and a vision; it is not self-executing. It must be accompanied by action for the aspirations tabulated therein to be consummated. The record of human rights in 2018 is far from ideal, though progress has been made on some aspects from previous years. The violations are shocking and disappointing, across the board. State complicity is evident and widespread. Political polarisation has proved cancerous. This has been made more acute by a failing economy, resulting in underfunding of human development and provision of basic service delivery. As glim and gloomy the picture may be, there are significant opportunities to redefine a new culture of human rights in the country. The constitutional framework is a great starting point. Against this background, the following recommendations are made:

Dialogue and Unity of Purpose Currently Zimbabwe is in political crisis; there is only require political will: Stopping harmful no national agenda and unity of purpose. behaviour by the government and its institutions. Political leaders in government are not having There must be political will to adhere to best dialogue with each other in shaping the policy practices in human rights and to implement the vision. The state is not having dialogue with its Constitution to which public officials swear citizens preferring hide and seek tactics. Labour allegiance to, and which is the social contract by and civil society have been excluded in the which Zimbabweans wish to be government. ongoing so-called dialogue. There is urgent need The investment in developing a new inclusive dialogue. The state must create a Constitution was staggering, and it can only culture of dialogue with its citizens. High level make sense if that Constitution is respected and political dialogue remains imperative to unlock implemented. national progress. Civil society must be include in national dialogue processes. This would create Ensure Compliance with the an environment in which Zimbabweans broadly Constitution can dialogue and agree to create a human rights Devolution must be implemented. Local culture premised on tolerance, respect for each authorities must be empowered to champion other, and respect of the law. Conceptualising a localised developed and manage local affairs culture of full protection of human rights is without interference. This will help redress elusive without finding each other politically. development imbalances and neglect of certain areas. It would also help reduce unfair extraction Political Will of resources from certain areas without 72% of the violations documented in this report concomitant development evident is those do not require money to address or resolve. They areas. Institutions demanded by the Constitution

73 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 must be created, resourced, and allowed to Ministries, departments, arms and spheres of operate without interference. Devolution does government. Interventions, programming and not mean creating ‘Ministers of State’ in implementation must be coordinated and provinces and imposing them on local streamlined. This is particularly important in the government structures. It means empowering child rights sector, where challenges of local authorities with power and resources to coordination, implementation and monitoring make and implement local decisions at local of interventions have been caused by the level. Rights accorded to people must be fragmented provisions of child protection observed. scattered across various statutes and which are administered by different government Law Reform and Repealing Ministries. Deliberate and effective coordination Repressive Laws of human rights interventions is cost-effective. The sooner the country does away with POSA, AIPPA and related repressive laws and provisions Implementation of recommendations of the law, the better the country can do with from Treaty Bodies human rights protection. Laws not compliant Zimbabwe has been paying lip-service to with the Constitution must be brought to recommendations made by human rights treaty conformity. Legislation that is contemplated by bodies. Recommendations are rarely the Constitution must be passed. Law reform implemented. This speaks of shaky commitment must not be piecemeal and token, but to human rights practice. The Zimbabwe wholesome and substantive. Law reform must be government must implement recommendations genuine, and not cosmetic for show. It must be from the various treaty bodies such as the African done speedily and must reflect the importance Committee of Experts on the Rights and Welfare with which the Constitution treats human rights. of the Child, the Human Rights Council under the Universal Periodic Review process and the Raise Awareness of People’s Rights Committee on the Rights of the Child. An empowered people are better able to demand their rights, insist on due process and Strengthening Institutions substantive rights, and are more alert as to Constitutional Commissions and institutions mechanisms and ways through which they can should be strengthened and should operate vindicate and enforce their rights. Human rights independently. This includes the judiciary, the and mechanisms of enforcing the same should National Prosecuting Authority, and the not be shrouded in mystery. Government Zimbabwe Electoral Commission, among others. institutions and constitutional Commissions Institutions that are yet to be created must be must take the lead. Part of this will include created. This include the independent licencing private media players, including complaints mechanism against members of the community radio stations and national security forces. Strengthening independent broadcasters. Media monopoly must be commissions also means the government must destroyed. It is important for government and not create parallel institutions to do the work that the country at large to appreciate, protect and constitutional commissions are mandated by the guard jealously the role played by an Constitution to do. independent, free and impartial press in holding everyone to account and advancing democracy, Security Sector Reform rule of law, truth-telling and ensuring an The police and army must not be partisan and informed and engaged citizenry. must desist from violating human rights. More than necessary and justifiable and more than Coordination enough, officers in the security services have Human rights are interrelated, interconnected, been primary culprits of human rights abuses. interdependent and indivisible. Human rights The army has no role in arresting and detaining cut across various interests and entities, civilians, including incommunicado detentions.

74 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 That is the role of the police. Use of exercise human rights abuses and violations. force against unarmed civilians is uncalled for. The police must follow due process. There is Fair and Impartial need for the independent complaints commission demanded in section 210 of the Application of the Law Constitution to be instituted. Government must not engage in selective application of the law and selective prosecution. Business, Human Rights and Impunity must be uprooted, and corrupt government officials must be prosecuted. The Economic Development criminal law must never be used to settle political If government were genuinely interested in scores, and to punish and persecute political development, it would advance the cause of opponents. This include selective prosecution human rights. A nation aware of its rights is an for on corruption charges. The offences of public empowered nation. An empowered nation is a violence, subversion of constitutional productive nation, and a productive nation is a government and inciting violence must cease to prosperous nation. Human rights can no longer be abused. Members of the opposition, be delinked from development. Private protestors and civil society members must not be corporate human rights abuse is just as targeted using these laws. Equally, the reprehensible as government human rights government must cease using the law as a abuse. The people are dependent on vindictive tool to prosecute those who fall out of government protection of their rights. Hence the favour with the political powers of the day. government must step up its work on business and human rights. Government must not be in Legislation around Economic, bed with business, and government must ensure that only serious, genuine, law-abiding, credible Social and Cultural Rights and human rights-compliant investors operate. A Zimbabwe has not done enough to ensure mix of voluntary incentives and mandatory effective justiciability of socio-economic rights. requirements must be put in place to ensure There is need for law development to ensure that human rights compliance, consumer protection socio-economic rights as captured in the and environmental protection by businesses. Constitution are meaningful and have practical effect in people's lives. Accountability and Addressing Strengthening Independent Impunity Human rights culture in the country would Commissions Supporting greatly improve if the government, particularly Constitutional Democracy and the executive, ceases to adopt a defensive Implementing their approach each time human rights violations are Recommendations brought up. The government does not have to R e c o m m e n d a t i o n s b y c o n s t i t u t i o n a l defend everything raised. Accountability and Commissions must be fully implemented by the responsibility must be advanced, and those relevant government arms and departments to caught on the wrong side of the law must face which responsibility is placed. It is a use of tax- justice. The people must develop faith and trust payers money when the Commissions conduct in the ability and willingness of the system to investigations and produce reports. It makes redress human rights violations. Would-be sense to not disregard those recommendations perpetrators would think twice. Government but implement them in order to achieve the must be swift and decisive in responding to desired recommended outcome. Where human right abuses. Equally important, appropriate and necessary, independent government must be distanced from the Commissions must exercise their powers to perpetration and perpetrators of human rights institute litigations against uncooperating, violations. The 2018 human rights record shows recalcitrant and truant institutions and duty- that government has been largely complicit in bearers. The National Peace and Reconciliation

75 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Commission should be allowed to run its full term of 10 years as ruled by the High Court. It is important that the government does not take a superficial check-box approach to genuine issues of peace, reconciliation. In addition, the Commission must advance a truth-telling mandate beyond just seeking peace and reconciliation. Commissions must be adequately staffed and must have full-time secretariats to complement the work of the commissioners.

Adequate Funding and Budgeting Human rights are not free – they need money. The government must invest in human dignity and in the advancement of its people. Socio- economic rights must be funded so that rights are progressively realised. Government must move from consumptive budgeting to developmental budgeting, that includes capital expenditure to ensure that people enjoy development, growth, and prosperity, and with that, an advancement of their rights.

Sound Economic and Fiscal Management Wasteful expenditure, and improperly managed monetary and fiscal policies have enormous effect and impact on the ability of people to enjoy their rights, particularly socio-economic rights. The government is urged to take sound economic management seriously to cushion the nation of the excesses of economic decay and dilapidation.

76 STATE OF HUMAN RIGHTS REPORT ZIMBABWE 2018 Zimbabwe HUMAN RIGHTS N G O F o r u m

The Zimbabwe Human Rights NGO Forum Suite 4, Number 1 Raleigh Street. P. O. Box 9077, Harare, Zimbabwe Tel: +263 (242) 772860. Email: [email protected] www.hrforumzim.org