The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University Transnational Human Rights and Local Moralities: the Circulation of Rights Discourses in Zimbabwe and South Africa Shannon Morreira Town Thesis Presented for the Degree of DOCTOR OF PHILOSOPHYCape of in the Department of Social Anthropology School of African & Gender Studies, Anthropology and Linguistics UNIVERSITY OF CAPE TOWN University February 2013 The financial assistance of the National Research Foundation (NRF) and the David and Elaine Potter Foundation towards this research is hereby acknowledged. Opinions expressed and conclusions arrived at, are those of the author and are not necessarily to be attributed to the NRF or the David and Elaine Potter Foundation. Acknowledgments The financial assistance of the National Research Foundation (NRF) and the David and Elaine Potter Foundation towards this research is hereby acknowledged. The opinions expressed and conclusions arrived at, are those of the author and are not necessarily to be attributed to the NRF or the David and Elaine Potter Foundation. I wish to express my appreciation of this support to both organisations, and to the staff of the UCT Postgraduate Funding Office, especially Stacey Moses, Olivia Barron and Bongiwe Ndamane, for their unfailing support and advice on all matters funding related. This research would not have been possible without the assistance of several organisations and individuals. I wish to thank the Research and Advocacy Unit; the Tree Of Life; Zimbabwe Lawyers for Human Rights; the Doors of Hope; People AgainstTown Suffering, Oppression and Poverty; the International Organisation for Migration (Musina Office); and the Musina Legal Advice Bureau. I also wish to thank all participants who gave of their time and their stories; without these organisations and individuals I wouldCape have no thesis to present and a much less rich set of life experiences and friendships. of For their support during the long processes of fieldwork and writing up I wish to thank Jess Auerbach, Tendai Bhiza, David Burgsdorff, Richard Calland, Gillian Charles, Rebecca Chennells, Bertha Chiguvare, Kuda Chitsike, Sally Frankental, Imke Gooskens, Braam Hanekom, Daniel Hargrove, Mohamed Hassan, Patricia Henderson, Ginny, Peter and Andrew Iliff, Rita Kesselring, Fungai Maisva,University Jacob Matakanye, Langton Miriyoga, Anthony Muteti, Barnabas Muvhuti, Rory Pilossof, Efua Prah, Tony, Bev and Kate Reeler, Anna Versfeld and Rodwell White. My supervisor, Prof. Fiona Ross, has given deeply and generously of her thoughts, time, and empathy over the course of this project. Fiona, I cannot thank you enough for all of it. Finally, with love and thanks to my mother, father and sister for their unwavering support; and of course to James who has borne the brunt of pre-dawn writing sessions and other erratic behavior with kindness, generosity and love, and who stimulates my thinking every day. 2 CONTENTS Abstract……………………………………………………………………………………....... 5 List of Abbreviations and Acronyms…………………………………………………………....6 List of Tables…………………………………………………………………………………..8 Town Chapter 1: Researching Rights: Introduction and Research Methodology………………….9 Chapter 2: ‘Panel Beating the Law’: Cape The Articulations of Rights in ofZimbabw ean Constitutional Dialogue…………37 Chapter 3: Justice in a Time of Impunity: On Remaking Social Worlds through Trees, Transitional Justice and AncestralUniversity Spirits……………………………………………………………… .64 Chapter 4: Kinds of Mobility: Rights Reports and Rights Bearing Persons…………………………………....95 Chapter 5: Personhood and Rights: Zimbabwean Migrants in South Africa……………………………………….137 Chapter 6: Conclusion: The Situationality of Rights……………………………………...169 3 Bibliography………………………………………………………………………………….178 Appendix A: Basic demographics………………………………………………………….199 Appendix B: Excerpts from Rights Reports………………………………………………202 Town Cape of University 4 Abstract The international legal framework of human rights may present itself as universal, but rights are enacted, practiced, and debated in local contexts which influence how, and for what purposes, ideas of rights are used. Anthropological approaches to the study of human rights by theorists such as Englund (2006), Goodale (2006a; 2006b; 2009a), Merry (2005, 2006), and Wilson (2003; 2006) assert the need to study rights in practice, arguing that detailed ethnographic examination of local contexts can show the ways in which supposedly universal ideals become localised. In this multi-sited ethnographic study, based upon anthropological fieldwork conducted in Harare, Zimbabwe and Musina and Cape Town, South Africa in 2010 and 2011, I use the contemporary political and economic context of Zimbabwe, and the resultant movement of Zimbabweans to South Africa, as a case study through which to explore the ways in which the global framework of human rights is locally interpreted, constituted and contested. I argue that whilst the assumed universality of rights is important to its global and local legitimacyTown (the fact that it purportedly applies to everyone, regardless, gives it moral capital), it is also because ideas of rights are flexible enough that they are open to interpretation and allow for local ideas of morality and personhood to insert themselves that they are able to be consideredCape valid in very disparate contexts. Nonetheless, such localisation occurs within theof terms of rights discourse itself, and is therefore limited. Drawing on a series of case studies – the debates over the encoding of rights in the new Zimbabwean constitution; the multiple repertoires of justice at play in contemporary Harare; the construction of rights reports in Zimbabwe and their subsequent global circulation; the failures of rights to be enacted for women crossing the border between Zimbabwe and South Africa; and the mistranslations that occur when Zimbabweans use a language of rights as a means of seeking asylum in South AfricUniversitya - I consider the entanglements (Mbembe, 2001; Nuttal, 2009) of legal and moral notions at play when ideas of rights are invoked. I also consider the entanglements of past and present in postcolonial Africa, where local notions of temporality can differ to the linear model of time employed in rights discourses. An examination of rights as praxis in this context reveals the advantages and disadvantages of using a language of rights in a post-colonial context. 5 List of Abbreviations and Acronyms ACHPR African Charter on Human and People’s Rights (also called the Banjul Charter) ANC African National Congress, South Africa’s leading political party CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CCJP Catholic Commission for Justice and Peace COPAC The Constitutional Parliamentary Committee, set up under Article VI of the GPA. GNU Government of National Unity GPA Global Party Agreement, also known as the Interparty Political Agreement, signed by ZANU-PF and the twoTown MDCs in September 2008. ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICTJ International Centre for TransitionalCape Justice IDASA Institute for Democracyof in Africa IOM International Organisation for Migration LOMA Law and Order Maintenance Act MDC-M Movement for Democratic Change (Mutambara faction). MDC-T UniversityMovement for Democratic Change (Tsvangirai faction). MSF Médicins Sans Frontierès NCA National Constitutional Assembly NGO Non-Governmental Organisation OAU Organisation of African Unity ONHRI Organ on National Healing, Reconciliation and Integration PASSOP People Against Suffering, Oppression and Poverty POSA Public Order and Security Act (2002) RAU The Research and Advocacy Unit 6 RSDO Refugee Status Determination Officer SADC Southern African Development Community STOPVAW Stop Violence Against Women TRC Truth and Reconciliation Commission (South Africa) UCT The University of Cape Town UDHR Universal Declaration of Human Rights UNHCR United Nations High Commission for Refugees UN OHCHR United Nations Office for the High Commission of Human Rights USAID United States Agency for International Development WOZA Women of Zimbabwe Arise WCoZ Women’s Coalition of Zimbabwe ZANU-PF Zimbabwe African National Union – PatrioticTown Front ZBC Zimbabwe Broadcasting Commission ZCC Zimbabwe Council of ChurchesCape ZDP Zimbabwean Dispensationof Project ZLHR Zimbabwe Lawyers for Human Rights University 7 List of Tables In Main Text: Table 1: Number of hits of two rights reports, 2012 116 Table 2: Zimbabwean Migrants – In-depth interviews conducted (Western Cape) 123 Table 3: Zimbabwean migrants – In-depth Interviews Conducted (Musina) 123 Table 4: Modes of entry of Zimbabwean migrants interviewed in the Western Cape 124 Table 5: Modes of Entry of Zimbabwean Migrants Interviewed in Musina 125 Table 6: Male Migrants’ Legal Status in South Africa, 2007 146 Table 6a: Reason for Undocumented Status 146 Table 7: Female Migrants’ status in South Africa: 2007 147 Table 7b: Reason for Undocumented Status Town 147 Table 8: Male Migrants’ Status in South Africa, 2010 148 Table 8a: Reason for Undocumented Status 148 Table 9: Female Migrants’ Status in South