SALC SHADOW REPORT-Zimbabwe’s Combined 11th-15th Periodic Report (65th Ordinary Session, Oct-Nov 2019)

Salc : Amanda Shivamba

Zimbabwe’s 11th-15th Combined Report to the African Commission on Human and People’s Rights 65th Session (Oct-Nov 2019)

Submission by Southern Africa Litigation Centre

October 2019

Introduction

Zimbabwe adopted a new Constitution in 2013 which includes an expansive bill of rights with specific provisions promoting and protecting the rights on freedom of peaceful assembly and of association. Despite this new constitution, there is a serious deterioration of the political, economic and social environment. Zimbabwe is in crisis facing chronic shortages of physical cash, the country’s economy has faced a steep economic contraction this year, with the country’s year-on-year inflation having soared up to 300%. The soaring inflation has led to widespread suffering of the people, whose wages have been eroded by the spiralling rate of prices of basic goods. The economic instability has resulted in an atmosphere of anxiety and frustration and anxiety among the citizens of Zimbabwe.
Although Zimbabwe has ratified both the African Charter on Human and People’s Rights and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women, the Country still faces enormous challenges in implementing and guaranteeing the protected rights enshrined in these instruments. Furthermore, despite Constitutional provisions proscribing arbitrary demolition of houses, the authorities continued the practice of forced evictions without providing adequate alternative housing, leaving many families homeless, landless and driven deeper into poverty. In August 58 families were left stranded in Manicaland province’s Chipinge district after the local authority demolished their homes without providing alternative accommodation. Currently, arguments were heard by the Supreme Court on 24 September in a case where a local authority is seeking the eviction of 120 families, resident at Haydon Farm about 40 km outside Harare. These families have been resident on this farm since 2000. They were part of millions of people who were re-settled on farms owned by white commercial farms. Some land barons in Harare bought part of the farm to develop residential stands and this is why the settlers are now facing eviction, with nowhere else to go.

In a year when austerity measures and natural disasters pushed many into poverty and financial insecurity, socio-economic rights suffered. The decay of Zimbabwe’s economy is perhaps best reflected by its collapsing health delivery system. Although consultations and admissions at the main state hospitals like Harare Central Hospital, patients will still have to pay for unavailable essential medicines, equipment and sometimes pay for refuelling of an ambulance. Besides shortages of medicine, Harare Central Hospital faces challenges of inadequate or obsolete equipment, poor infrastructure and critical shortage of nursing staff. For instance, the maternity ward at Harare Central hospital does not have adequate beds, anaesthetic machines and ventilators to facilitate comfortable and successful delivery of babies. According to the maternal unit management at the hospital, an average of 75 babies die every month before, during and after delivery due to the lack of adequate equipment, medicines and nursing staff. The poor conditions of service have compounded the health crisis with junior doctors claiming to be incapacitated. The average salary for junior doctors is $100 per month and this has led to incessant strikes and demonstrations by medical personnel.

In the midst of an economic crisis and negative impact of climate change, the UN World Food Program has stated that over 5 million or at least a third of Zimbabwe’s 16 million people are in dire need of food aid and are facing starvation. Zimbabwe needs 2,2 million tonnes of grain annually to feed its people, but only produced 760,000 tonnes in the 2018/19 farming season. In September the Agriculture Minister, Perence Shiri, revealed that the country is facing a 1,2 million tonne grain deficit in 2019. The failure by Zimbabwean farmers to produce adequate wheat has caused acute bread shortages and forced the government to import from Germany and Canada.

The International Panel on Climate Change has identified southern Africa as a region that faces increased risks of heat extremes and less rainfall. The impact of climate change is being felt in Cape Town, Maputo and in Zimbabwe, Bulawayo and Harare are hardest hit. The water crisis in Bulawayo and Harare has been made worse by urban migration and a poor economy as the local councils are failing to repair or replace leaking pipes and treat dirty water. In September the Bulawayo city council introduced 48-hour water shedding per week as it struggles to supply clean drinking water to residential areas. People who can afford are drilling boreholes to access clean drinking water as local councils have failed to provide this service. On 23 September the whole city of Harare did not have water after the City Council shut down the Morton Jaffray water treatment plant. The city council does not have the needed foreign currency to import purifying chemicals. On 25 September the state made available RTGS100 million to all city councils to deal with the water crisis.

In advance of the consideration of Zimbabwe’s 11th to 15th Combined periodic report to the African Commission, aside from the abovementioned socio economic insufficiencies, SALC would like to bring to the attention of the Commission, concerns regarding Freedom of Expression, Freedom of Assembly and Association, Abductions, Arbitrary Arrests, Torture and Internet Shut Downs.

Freedom of Expression

The state has arrested several people on charges of undermining the authority or insulting President Mnangagwa. Tinashe Kembo was arrested in June 2019 for saying the president had failed to manage the economy. He is facing charges of undermining the authority of or insulting the President of Zimbabwe as defined in section 33(2) of the Criminal Law (Codification and Reform) Act. In July 2019 Morgan Muchemwa was arrested when he blamed the president for causing the suffering of Zimbabweans and charged under section 33(2) of the same Act. The leader of opposition party Ideal Zimbabwe, Tinashe Jonasi was arrested and appeared in the courts in March 2019, after his interview on DSTV, where he claimed the president was responsible for the killing of 30000 people during Gukurahundi in Matatebeleland. It is further alleged that during the interview he suggested Mnangagwa was engaged in a sexual relationship with his advisor Chris Mutsvangwa’s wife, Monica, the Information minister. These cases are still in the court and the accused remain on remand.

Freedom of Assembly and Association

Zimbabwe is a party to the International Covenant on Civil and Political Rights which it acceded to on 13 May 1991, and which provides for the rights to freedom of peaceful assembly and of association under articles 21 and 22. Furthermore, Section 58 of the Constitution guarantees the right to freedom of assembly and association, however, during the period of January to September 2019, authorities have continued to supress freedom of association and peaceful assembly as well the right to demonstrate and petition. They have used lethal and excessive force against protesters to quell demonstrations. After the protests the police, army and intelligence operatives have conducted arbitrary arrests, abductions and torture to silence and intimidate anyone presumed to have participated or organised demonstrations. Although there have been slight amendments the authorities continue to use the oppressive and overbroad Public Order and Security Act to suppress any planned demonstrations.
Protests began in Zimbabwe on 14 January 2019 following a 130% increase in the price of fuel imposed by the ruling government. Thousands of Zimbabweans protested against the price increase, along with increasing levels of poverty, the poor state of the economy, and declining standards of living. The state deployed armed police officers, soldiers and other state security agents in many parts of the country. The state security agents used firearms to shoot and kill at least 16 people. The worst affected areas include Harare, Bulawayo, Epworth and Chitungwiza. The security agents used teargas, baton sticks, water cannons and live ammunition to disperse protesters. The crackdown on protestors included widespread mass and arbitrary arrests. By the end of February, over 600 people had been arrested in connection with the January protests.

Since January about 22 people, who include human rights activists, civil society leaders, trade unionists and opposition party activists were charged with subverting a constitutional government under section 22 of the Criminal Law (Codification and Reform) (Criminal Code) Act. Many who called for protests, supported calls for protests through social media or were presumed to have participated or planned protests were charged under section 22 of the Criminal Code. Civil society activists such as Rashid Mahiya, Evan Mawarire and trade union leaders such as Peter Mutasa and Japhet Moyo are some of the people facing prosecution on charges of subverting a constitutional government.

On the 20 May 2019, the Zimbabwe authorities arrested; Tatenda Mombeyara, Gamuchirai Mukura, George Makoni and Nyasha Mpahlo. The four NGO leaders were abducted by the police from Robert Mugabe International Airport upon their return to Zimbabwe from the Maldives. The four were detained for several hours without any release of information about their whereabouts, and without access to their lawyers. They had their laptops and cell phones seized and searched. Following their arrest at the airport, the four activists were relocated to Harare Central Police Station. The arrests followed false stories printed in The Herald and the Chronicle newspapers which outlined a plot by several Zimbabweans to force a violent regime change. The story alleged that Zimbabweans were taking part in a training in Prague to learn how to rile up violent protests to undemocratically overthrow the government. There is no evidence that these NGO leaders are involved in any such plot.

In August 2019, the police issued prohibition orders banning planned protests in Harare, Bulawayo, Mutare, Gweru and Masvingo The police used POSA to ban these planned protests. At the 11th hour, the High Courts upheld the prohibition orders effectively curtailing any protests scheduled in August. On 16 August, in Harare, protesters who had defiantly convened for demonstrations were beaten up and dispersed by the police. On 22 August the MDC’s organising secretary Amos Chibaya was arrested and is facing prosecution on charges of failing to stop the banned protest in Harare. Senior state officials such as Deputy Defence Minister Victor Matemadanda and Home Affairs Minister, Cain Mathema and ruling party supporters issued threats against civil society and opposition party activists planning to participate in any protest, citing the destruction of property and criminal activities during previous demonstrations. The officials alleged that the protesters who were planning to destabilise the country through protests would face ‘the full wrath of the law’ and ‘deadly force’ from members of the military.

On 22 September 15 National University of Science and Technology Zimbabwe students were arrested for staging a demonstration at the college campus in the city of Bulawayo. The students were protesting against the continued industrial action by lecturers who are demanding a pay increase. For three weeks lecturers had not been attending lectures owing to the industrial action. The police set dogs on the demonstrating students, some were assaulted and 15 were arrested and taken into custody.
In his mission statement, Special Rapporteur on the rights to freedom of peaceful assembly and of association, Mr. Clément Nyaletsossi Voule, on his visit to Zimbabwe stated the following:
“…A worrying example is the use of Section 22 of the Criminal Law (Codification and Reform) Act provision on “subverting a constitutional government” to prosecute human rights defenders, civil society and opposition leaders suspected of having played important roles in protests. The crime is similar to treason and could attract up to 20 years of imprisonment. From my meetings, it transpired that leaders calling for protests, supporting protests through public statements or social media, and participating in protests have been charged with this crime and I have been informed that in this year alone, 22 individuals are facing this criminal charge. I have also heard extremely disturbing reports of excessive, disproportionate and lethal use of force against protestors, through the use of tear gas, batons and live ammunition.”
Abductions, Arbitrary Arrests and Torture

The Constitution of Zimbabwe provides that no person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment. The Constitution also guarantees every person the right to personal liberty, including the right not to be detained without trial, deprived of their liberty arbitrarily or without just cause. However despite these provisions, since January 2019, the authorities have arrested at least 50 activists, trade union leaders and artists to silence any form of dissent.

Some of the people who have been recently abducted by unknown armed men with masks and later released or charged with various criminal charges include the president and secretary general of the Amalgamated Rural Teachers Union of Zimbabwe (ARTUZ) Obert Masaraure and Robson Chere, Bustop TV comedian Samantha ‘Gonyeti’ Kureya, pro-democracy and human rights activist; Tatenda Mombeyarara and Movement for Democratic Change youth leader Blessing Kanotunga. As part of the intimidation, the victims of abduction were also tortured by their abductors. Zimbabwe is yet to ratify the Convention against Torture and other Cruel, Inhuman and Degrading Treatment and the International Convention for the Protection of All Persons from Enforced Disappearance.

The police did not only arrest and detain participants in protests and demonstrations. They have also threatened and arrested journalists, medical doctors and lawyers monitoring the protests or assisting protestors. On 23 August ARTUZ leaders marched to the Minister of Finance’s office to protest against low salaries. The journalist who was covering the demonstration, Leo Munhende and the lawyer who accompanied them, Doug Coltart, were both arrested and later released by the police. SALC is concerned about the criminal charges laid against Doug Coltart who has been charged with ‘participating in gathering with intent to promote public violence, breaches of the peace or bigotry’ under Article 37 of the Criminal Code. His laptop was seized without a warrant and held without legal cause for three days during which time his law firm experienced a cyber-attack. It is believed that the cyber-attack was an attempt to hack into the law firm’s confidential data. SALC is deeply concerned about the harassment of Doug Coltart, Robson Chere, Jess Drury, Precious Ndlovu and Munyaradzi Ndawana.

On 14th September after 10pm, three unarmed men allegedly abducted Dr. Peter Magombeyi from his house in Budiriro high density suburb. Shortly after his abduction Dr. Magombeyi sent a message alerting his colleagues that he had been taken from his house by three armed men. He also forwarded a threatening message allegedly sent by a member of the Central Intelligence Organisation in which he was warned to stop his activities and that failure to do so would result in his disappearance. On 15th September several organisations, including ZHDA, Zimbabwe Lawyers for Human Rights, Zimbabwe Association of Doctors for Human Rights and the Amalgamated Rural Teachers Union issued statements condemning the abduction.

Late on the 15th September the Minister of Home Health, Dr Obadiah Moyo issued a statement condemning the abduction and assuring the doctors that the matter would be taken up with the police. The police issued a statement acknowledging receiving a report from ZDHA about the abduction. The police said investigations have started and they are taking the matter seriously even though they have added that they suspect that a “third force” is involved in the abduction.
The abduction of Magombeyi occurred after doctors who had been on strike rejected the government’s salary increase on 13 September and vowed to continue with their protest.

A habeas corpus hearing was held on the 16th September requesting for Magombeyi to be brought before court. Upon his re-appearance, Dr Magombeyi tried to leave Zimbabwe to seek medical attention for the injuries sustained during the abduction. He was prevented from leaving the country by the Zimbabwe police. Zimbabwe Lawyers for Human Rights (ZLHR) filed an urgent application to challenge this refusal to allow him to leave. This was heard by Justice Happias Zhou, who issued an order on the 24th September interdicting any persons including the police and home affairs from preventing Dr. Magombeyi from leaving the country for the purpose of seeking medical treatment.

The failure to ensure justice and redress continued to be a key driver of human rights violations and abuses. The authorities have failed to arrest, prosecute and hold accountable perpetrators who have committed abductions, torture and unlawful killings since August 2018. In August 2018 the state deployed members of the military who shot and killed 6 people who were either part of the protests or were caught up in the civil unrest. In January 2019 at least 16 people were killed after the state again deployed members of the military to help quell protests. At least 50 people have been abducted and tortured since January 2019. Despite calls by civil society and embassies and recommendations by the Kgalema Motlanthe commission of inquiry to arrest and prosecute the perpetrators, the authorities have claimed that there is a “third force” responsible for these heinous human rights violations and effectively exonerated the alleged perpetrators. The Kgalema Motlanthe commission of inquiry was established by President Mnangagwa to investigate violations during the August 2018 post-election violence. The recommendations to arrest and prosecute perpetrators alleged to have killed and injured protestors are yet to be implemented.

Internet Shut Downs

In January 2019, there was an internet shutdown in Zimbabwe, which was ordered in the midst of country wide calls for peaceful strikes and protests. Furthermore, during the internet shutdown, there were many documented cases of violent responses by State security forces to protesters and bystanders. Live ammunition was used and there were several reported fatalities. On 15 January 2019, around 9:00 AM local time, people in Zimbabwe began being unable to access the internet, including social media apps like Facebook, Twitter, and WhatsApp. This followed reports in local newspapers on 14 January 2019, that the government was planning to shut down social media in response to protests about fuel price increases that had started the prior weekend.

Initial responses by the government denied any involvement in the internet outage. Information Deputy Minister Energy Mutodi said in a live newscast that the outage was due to congestion. However, on the evening of the 15th, just a few hours later, Strive Masiyiwa, the founder of Econet Wireless Zimbabwe, the largest wireless provider in Zimbabwe, confirmed that Econet had been ordered to shut down access to the internet pursuant to a warrant issued by the Minister of State in the Office of the President and Cabinet. Subsequent reports revealed that in addition to Econet, TelOne, NetOne, and ZOL had all been ordered to suspend internet access.

The warrant was issued pursuant to the Interception of Communications Act , which is a law which provides the government with the right to lawfully intercept or monitor postal and telecommunications to fight crime and protect national security. The definition of interception in the act is as follows; “means to listen to, record, or copy” a communication; nowhere in the act is blocking or disrupting communication services referred to. Thus because the order by the government, to completely shut down internet access across the whole country, is not authorised anywhere in the Act, the warrant issued by the Zimbabwean government amounted to an unlawful order.

Zimbabwe Lawyers for Human Rights (ZLHR) and the Media Institute of Southern Africa challenged the warrant in court, and on the 21 January 2019, High Court judge Justice Owen Tagu, ruled that the Minister of State in the President’s Office Responsible for National Security does not have the authority to issue any directives in terms of the Interception of Communications Act. The Court did not reach the question of whether the Interception of Communications Act was consistent with the constitution and whether it could be used in the future to lawfully shut down the internet. The threat of future internet shutdowns in Zimbabwe and other neighbouring countries, is a concerning trend which needs to be addressed as a matter of urgency.

Right to Vote

A case challenging in inability of Zimbabwean citizens residing in the diaspora to vote was brought in 2018 prior to the harmonised elections and was dismissed by the Constitutional Court . Residency requirements in the voter registration process violate the constitutional guarantees of universal suffrage. The provisions are unconstitutionally discriminatory as there is a limited class of people—those living abroad in government service and their spouses—who may vote from abroad by post. The African Commission on Human and Peoples’ Rights has already held that the provisions violate the African Charter on Human and Peoples’ Rights; however, Zimbabwe has not implemented that decision.

Conclusions and Recommendations

a) The government of Zimbabwe should respect the right to freedom of association and assembly in line with the Constitution, and other regional and international human rights instruments. We also urge the government to immediately refrain from the repression of protestors, and to desist from the banning of lawful protests and the excessive use of force during protest actions.

b) The government of Zimbabwe should allow for its citizens to be afforded the right to freedom of expression and to refrain from the arbitrary arrests of journalists, human rights defenders and activists who exercise this right. We also urge the government to amend laws that are not in line with the Constitution or in line with international standards in this regard.

c) The government of Zimbabwe should urgently investigate actions of the perpetrators of individuals who have been subjected to acts of abductions, reprisals, threats or intimidation, and to ensure that such attacks no longer take place. We also urge the government to ratify the Convention against Torture and other Cruel, Inhuman and Degrading Treatment and the International Convention for the Protection of All Persons from Enforced Disappearance.

d) The government of Zimbabwe should refrain from interpreting domestic laws in such a manner so as to repress the enjoyment of human rights, resulting in actions such as internet shutdowns, and to identify gaps in legislation which may allow for its discriminatory use, and make concerted efforts to close these gaps.

e) Recommend for Zimbabwe to consider extending access to voting to citizens living outside the county.