Amnesty International - Zimbabwe: human rights in crisis

Shadow report to the African Commission on Human and Peoples' Rights

May 2007

This report is a response to the state report submitted by the government of
Zimbabwe to the African Commission on Human and Peoples' Rights. Each
chapter of this report was produced by a different human rights
organization, and each organization takes responsibility for the content of
its chapter.

Introduction
This report was produced by five independent human rights organizations in
response to the government of Zimbabwe's state party report to the African
Commission on Human and People's Rights (African Commission). It presents a
very different picture of the state of human rights in Zimbabwe to that
contained in the government's report.

In October 2006 Zimbabwe submitted its 7th, 8th, 9th and 10th combined
periodic state party report to the African Commission in accordance with
article 62 of the African Charter on Human and Peoples' Rights (African
Charter). The report gave a glowing account of Zimbabwe's record on civil
and political rights, concluding that despite financial and human resource
constraints, "Zimbabwe has shown commitment to the protection and promotion
of the human rights".

However, despite the positive impression given by the periodic report
regarding Zimbabwe's record on civil and political rights, the assertions in
the report are undermined by the realities on the ground. Since the
submission of Zimbabwe's last periodic report in 1996, Amnesty
International, Article 19, Human Rights Watch, the International Bar
Association and Redress have carefully monitored the human rights situation
in Zimbabwe, through a combination of research, testimonies and field work.
All five organizations contend that the government of Zimbabwe has failed to
respect and protect the rights contained in the African Charter.

The following shadow report was produced by the five human rights
organizations. Each chapter was written independently, but they have been
collated together to facilitate easy consideration by the African
Commission.

The five organizations submit that the facts presented in this shadow report
provide an alternative view of Zimbabwe's human rights situation for the
African Commission. It is to be hoped that the commissioners consider
Zimbabwe's combined periodic report objectively and produce concrete
recommendations to address the human rights situation in Zimbabwe, a country
which continues to operate outside the African Union human rights framework.

Context
The government of Zimbabwe has brutally suppressed all forms of dissent
since the Movement for Democratic Change emerged as a political opposition
party in 1999 and the government was defeated in a referendum over a
proposed new constitution in 2000. Repressive laws have been introduced or
revived, ostensibly to regulate the activities of non-governmental
organizations (NGOs), the media and civil society groups. These laws have
been selectively applied to silence government critics.

The government has repeatedly claimed that western governments have sought
its downfall after it embarked on a land reform programme targeting mostly
farmers of European descent. However, most victims of the government's
policies have been Zimbabweans of African descent who were targeted for
daring to express their disapproval of government policies or who were seen
as supporters of the political opposition.

In May 2005, the government embarked on Operation Murambatsvina (Shona for
"clear the filth", but translated by the government of Zimbabwe in the state
party report as "Restore Order"), a programme of mass forced eviction.
Operation Murambatsvina left some 700,000 people without a home, livelihood
or both. The mass evictions were carried out in total disregard of due
process. As a result of international pressure, the government responded
with what amounted to little more than a public relations exercise.
Operation Garikai/Hlalani Kuhle (Better Life) saw the government
constructing some 3,325 structures after destroying more than 92,000
dwellings. Of the structures built under the reconstruction programme,
approximately 20 per cent were allocated to police, soldiers and civil
servants and the remainder were given mostly to people who were not affected
by the mass evictions. Nearly two years on, many of the victims remain
homeless or living in makeshift accommodation.

The human rights crisis in Zimbabwe is taking place in a context of a
rapidly declining economy. Inflation is running at more than 1,700 per cent.
Formal unemployment is at 80 per cent, and most employed people earn well
below the poverty line.

This shadow report
Violations of the right to freedom from discrimination, the right to life
and the right to property are outlined in Chapter 1 by Human Rights Watch.
The chapter details how these rights have been repeatedly swept aside under
the fast-track land reform programme initiated in 2000, and in Operation
Murambatsvina in 2005.

Chapter 2, written by the International Bar Association, demonstrates how
the principles of the rule of law and the independence of the courts in
Zimbabwe have been severely compromised through intimidation of judges and
lawyers. This has undermined the courts' jurisdiction and authority and
resulted in discrimination in the application of the law.

Despite the prohibition of torture under international law, including the
African Charter, and the Constitution of Zimbabwe, Redress submits in
Chapter 3 that the government of Zimbabwe has systematically used torture on
a huge scale. Perpetrators include the army, law enforcement agencies and
other state agents including so-called "war veterans". The risk of further
torture for those who dare to report such violations and the refusal by
authorities to investigate has left victims without remedy or reparation.

Chapter 4, by Amnesty International, details how the government of Zimbabwe
has repeatedly violated the rights to freedom of association and assembly in
order to curtail peaceful criticism of the government from the public, civil
society organizations and the political opposition. A combination of
excessive use of force by the police and repressive legislation such as the
Public Order and Safety Act (POSA) has been employed to silence dissent.

Finally, Chapter 5, by Article 19, highlights the shortcomings of the state
report's description of Zimbabwe's record on freedom of expression. It
details the effects of restrictive legislation on journalists, newspapers
and broadcasters. This chapter also shows how the government of Zimbabwe has
clashed with the Supreme Court over unconstitutional moves such as the state
monopoly on broadcasting.

Chapter 1: Human rights violations under the land reform programme and
Operation
Murambatsvina

Prepared by Human Rights Watch

The manner in which Zimbabwe's fast-track land reform programme was
implemented in 2000 resulted in violations of a number of rights defined in
the African Charter, including the right to property (Article 14). Other
rights which were violated include the right to freedom from discrimination
(Article 2), equality before the law (Article 3), the right to life (Article
4), the right to liberty (Article 5), the right to have one's cause heard
(Article 7), and the right to work under equitable and satisfactory
conditions (Article 15). The land reform programme also led to serious
violations of rights read into the African Charter by the African
Commission, including rights to food and adequate shelter.

The programme's implementation also raised serious doubts as to the extent
to which it actually benefited the landless poor, as has always been claimed
by the government of Zimbabwe. The stated aim of the fast-track programme -
which the government has referred to in its state party report - was to take
land from rich white commercial farmers for redistribution to poor and
middle-income landless black Zimbabweans.

The need for land reform in Zimbabwe is generally acknowledged, even by
representatives of the commercial farming sector, but the government refuses
to acknowledge the violence and intimidation that accompanied the land
reform programme. Under the land reform programme, ruling party militias,
often led by veterans of Zimbabwe's liberation war, carried out serious acts
of violence against farm owners and farm workers. Between 2000 and 2004,
they used occupied farms as bases for attacks against residents of
surrounding areas. The police did little to halt the violence, and in some
cases were directly implicated in the abuses.

The government also fails to mention how the process of allocating land
frequently discriminated against those who were believed to support
opposition parties, and in some cases those supervising the process required
applicants to demonstrate support for ZANU-PF, the ruling party. Zimbabwe's
several hundred thousand farm workers were largely excluded from the
programme, and many lost their jobs, driven from the farms where they worked
by violence or laid off because of the collapse in commercial agricultural
production. Even those people allocated plots on former commercial farms
appeared in many cases to have little security of tenure, leaving them
vulnerable to future partisan political processes or eviction on political
grounds, and further impoverishment.

In 2005, the government of Zimbabwe launched Operation Murambatsvina ("clear
the filth"), a campaign of forcible evictions and demolitions in urban areas
throughout Zimbabwe. With little or no warning, often with great brutality
and in complete contravention of national and international standards, tens
of thousands of houses and thousands of informal business structures were
destroyed without regard for the rights or welfare of the people evicted.(1)
In the days and weeks after Operation Murambatsvina was launched, police
burned, bulldozed and destroyed tens of thousands of properties around the
country. The destruction resulted in mass evictions of urban dwellers from
their homes and the closure of informal sector businesses throughout the
country.

The humanitarian consequences of this man-made disaster were catastrophic.
There are few precedents of a government forcibly and brutally displacing so
many of its own citizens in peacetime. According to UN estimates, 700,000
people - nearly 6 per cent of the total population - lost their homes,
livelihoods, or both as the result of the evictions. About 2.4 million
people - some 18 per cent of the population - have been either directly or
indirectly affected by Operation Murambatsvina.(2)

Zimbabwean authorities claimed that the destruction of homes and other
properties was part of a long-term plan to clean up the urban areas (a claim
that is repeated in the government's state party report), restore order, rid
the cities of criminal elements, and restore dignity to the people. However,
there were many alternative analyses of Operation Murambatsvina, several of
which alleged that the operation was part of the government's efforts to
debilitate the urban poor, force them to move to rural areas, and prevent
mass uprisings against the deteriorating political and economic conditions
in high density urban areas.

Human rights violations under the land reform programme
Land reform is generally advocated in Zimbabwe as urgently necessary to
address the stark inequalities in land distribution and wealth. However, as
stated in the African Charter and reinforced by other binding international
treaties, the rules providing for compulsory purchase should be clearly set
out in law, and those affected should have the right to ensure that their
interests are appropriately taken into account and to challenge decisions
relating to compulsory acquisition before a competent and impartial
tribunal. In addition, the security forces and criminal justice system must
provide equal protection to all those who are victims of violence, and the
law should take its course without interference from political authorities.
None of the rules providing for compulsory purchase have been met by the
government.

Discrimination in land allocation
Article 2: The right to freedom from discrimination

Every individual shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, color, sex, language,
religion, political or any other opinion, national and social origin,
fortune, birth or other status.

In its state party report, the government claims that the process of
fast-track land reform was designed to meet the needs of disadvantaged black
Zimbabweans. However, the process of land distribution itself raised serious
concerns. There was party political control of access to the forms for
applying for land and partisan discrimination in the allocation of plots.
ZANU-PF war veterans' militias played a key role in distributing and
allocating land, the same militias that were responsible for violence and
intimidation against many who might have otherwise applied for a plot. A
third problem was the general exclusion of farm workers from the benefits of
land redistribution.

Although there was an official system for allocating land through the civil
service and elected officials, in many cases this was superseded by informal
processes governed by the war veterans, who required demonstrated loyalty to
ZANU-PF before allocating a plot.(3)

Some people from communal areas who genuinely needed land to raise
themselves out of poverty, as well as some middle class people from urban
areas who wished to enter commercial farming, were among those who obtained
land for the first time. The extent to which real need was a criterion was
difficult to assess because of the difficulties of accessing fast-track
resettlement areas or talking to the ruling party militias that control most
resettlement areas. Nevertheless, there were serious concerns about the
politicized nature of beneficiary selection and thus about the extent to
which fast-track land resettlement was really benefiting those who most
needed land.

Because the fast-track process of resettlement was carried out so rapidly,
short-circuiting legal procedures, some of those who moved onto new plots
expressed concern that their title to land might not be secure.(4) Others
who wanted land did not take up the opportunity because they did not have
the resources to plough the land and because there was little if any
government support to assist new settlers. The absence of legal security and
government assistance left them vulnerable to hunger and displacement.
Development organizations following the crisis in Zimbabwe noted that the
disruption to commercial agriculture caused by fast-track resettlement
caused widespread food insecurity in the country.

Violence during the land reform programme
Article 4: The right to life

Human beings are inviolable. Every human being shall be entitled to respect
for his life and the integrity of his person. No one may be arbitrarily
deprived of this right.

Assaults against white farmer owners
War veterans and associated ZANU-PF militia occupying commercial farms
intimidated and assaulted white farm owners in the course of occupying
commercial farms. By March 2002, at least seven white farmers had been
killed. Many of the farmers targeted were prominent supporters of the MDC.
Farm owners were assaulted and threatened and their farms occupied whether
or not their farms were listed for acquisition by the government. At the
time, President Mugabe repeatedly singled out white Zimbabweans as enemies
of the state.

Assaults against farm workers
Many more farm workers on commercial farms were victims of violence during
land occupations than white farm owners. Dozens of farm workers were killed.
Commercial farms were used as bases for war veterans and ZANU-PF militia to
intimidate suspected opposition supporters in neighbouring communal areas.
The police failed to take action against the perpetrators of violent crimes,
and in some cases actively assisted illegal actions. The army, too, played a
role in organizing and facilitating the occupations, without providing any
check on the violence.

In June 2000, the National Employment Council for the agricultural industry
(a tripartite body of government, employers and unions) reported that, as a
result of the farm occupations, at least 3,000 farm workers had been
displaced from their homes, 26 killed, 1,600 assaulted, and 11 raped. The
majority (47.2 per cent) were supporters of the MDC; nearly as many (43.6
per cent) had no political affiliation; a few (4.7 per cent) were ZANU-PF
supporters.(5) The Zimbabwe Human Rights NGO Forum documented the deaths of
four farm workers and numerous assaults during 2001.(6)

Violence against farm workers was linked to the support given to the MDC by
commercial farmers and, by implication, their workers. In many areas, it
seems that farm workers were targeted for violence both so that the
assailants could take over their homes, and in order to deprive the white
farm owner of potential allies with a stake in keeping their jobs who might
have supported the farm owner in resisting government policy. Weaknesses in
the organizational representation of farm workers also made them vulnerable
to assault and intimidation.(7)

Police failure to protect victims
The government called for peaceful coexistence between farm owners and the
new settlers, but it dismissed violence against farm workers and farm owners
as an unfortunate cost of long-overdue land reform that had been obstructed
by white farm owners. Rural militias led by the war veterans were able to
count on the fact that the police would not interfere or would intervene in
only a limited way when they committed acts of political violence. Although
the government denied allegations of police failure to act,(8) political
interference in police work was widely reported by opposition parties and
human rights groups, as well as by some current and former police
officers.(9)

There were numerous reports of police failure to apprehend perpetrators of
violence. If they did arrest suspects, they then released them without
charge and without registering the case number and providing it to the
complainant. Even when police intervened to protect those threatened by
violence, few alleged perpetrators were arrested. In numerous cases, farm
workers and opposition activists explained that police had said the assaults
were "political" and that as a consequence they would not intervene.(10)

On 6 October 2000, President Mugabe, using his presidential powers, issued
an amnesty for politically motivated crimes committed between 1 January 2000
and 31 July 2000, the period of the campaign for the February 2000
referendum and the June 2000 parliamentary elections. The amnesty did not
cover murder, rape, and robbery.(11) Some victims of violence who had
returned home during the period of relative calm that followed the June
elections were again assaulted by people who had been arrested and were then
released following the amnesty.(12)

Reports to human rights NGOs and journalists describe the involvement of
police and soldiers in assisting some land occupations, and in some cases in
looting commercial farms. Even when courts ordered that occupations should
be ended, or farms were not designated for acquisition, or were taken off
the list following negotiations between the farm owner and the government,
police often did not remove occupiers from the farms unless given
instructions to do so by political authorities.

The right to property
Article 14: The right to property

The right to property shall be guaranteed. It may only be encroached upon in
the interest of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws.

In its state party report, the government of Zimbabwe argues that land
reform has "enhanced the right to property". However, during the land reform
programme, the government violated right to property in a number of ways.

Displacement and marginalization of farm workers
In many ways, those most disadvantaged by the fast-track land reform
programme were farm workers. Before the land reform, there were 300,000 to
400,000 wage-earning workers on commercial farms.(13) The UNDP reported that
by January 2002, the number of farm workers displaced was estimated at
30,000 families.(14)

About 25 per cent of the farm workers were of foreign descent, mainly
Malawian, Mozambican, or Zambian, although their families may have lived in
Zimbabwe for several generations. Many of these did not have documents
establishing Zimbabwean citizenship, either lacking papers altogether or
carrying national identification cards bearing the designation "alien". Many
farm workers who were not Zimbabweans by descent (even if they had
citizenship) had no access to the structures that allocated plots in the
communal areas.

Prior to the land reform, farm workers were already the lowest paid workers
in the formal sector in Zimbabwe, often housed in poor conditions, and with
inadequate access to schooling, healthcare, and other services. This
situation persisted despite the fact that following independence, and under
pressure from unions and NGOs working with farm workers, increasing numbers
of farmers did improve the conditions of service for their workforce.(15)

In 1999, the government land policy framework for the first time
acknowledged the need for farm workers to be resettled as well as those from
communal areas, and recognized that those who entered the country as
indentured labour from 1953 to 1963, and their children, were entitled to
citizenship.(16)

Farm workers were among those with the greatest need for land. But farm
workers were not among the groups targeted to benefit from the fast-track
programme. As of October 2001, official government statistics indicated that
only 2,122 of the 123,979 households recorded as resettled (that is, 1.7 per
cent) were farm worker households.(17)

The General, Agricultural and Plantation Workers' Union of Zimbabwe
(GAPWUZ), which at the time had about 100,000 members, in a paper presented
to a September 2001 conference, characterized the fast-track land reform
programme as "the biggest challenge currently facing farm workers in
Zimbabwe.... There are approximately 2 million people that can be labelled
under the farm working community, and it is frightening to note that the
land reform programme is silent as to the fate of the same."(18)

The large-scale occupation of commercial farms meant that workers' wage
employment on the farm often ended. In some cases, they were allowed to
remain on the farm, but could not work and were not paid; in others, they
were displaced, and had to find shelter as best they could. Farm workers
were in an invidious position as regards their political affiliations:
because of their dependent situation, they felt obliged to show support for
the political party favoured by the farm owner, and thus became vulnerable
to violence from supporters of other parties, whatever their own beliefs.

Although farm workers were not precluded from applying for land under the
fast-track process, the problem for those who could not prove their
citizenship was that the process of registering for land formally involved
registration with the council of the communal area from which they came,
with no additional mechanisms put in place to enable them to access the new
allocations easily. Moreover, those farm workers who were not of Zimbabwean
descent had additional problems, since if they were displaced from the farm
they had no other place to go. Zimbabweans, on the other hand, usually had
the possibility of returning to their family's land in the communal areas.

Amendment of Section 16 of the Constitution
The government cites Section 16 of the Constitution in its state party
report as providing for the right to property. According to the government,
this section has been amended to provide for further instances where
property can be compulsorily acquired in the public interest, which is
necessary to finalize the land reform programme. However, the amendment to
Section 16 (referred to as Constitutional Amendment No. 17), which was
promulgated in August 2005, has removed the jurisdiction of the courts over
cases of acquisition of land by the state and rendered impotent the
fundamental right to protection of the law, a fair hearing, and the
independence of the judiciary.

This amendment therefore effectively nullifies Section 16, which lays down
requirements that must be met by law in the compulsory acquisition of
property. These include reasonable notice of acquisition of property,
provision of fair compensation, and the opportunity for disputes over
acquisition of properties to be decided by the courts. Under the amendment,
none of these rights are recognized. The amendment also violates Article
21(2) of the African Charter which states that: "In case of spoliation the
dispossessed people shall have the right to the lawful recovery of property
as well as to an adequate compensation."

Human rights obligations
The right to housing and shelter, protected by the African Charter in part
by Article 14, places an obligation on the Zimbabwean government as a bare
minimum not to destroy the housing of its citizens. It also requires the
government and all of its organs and agents to abstain from carrying out,
sponsoring or tolerating any practice, policy or legal measure violating the
integrity of the individual when they are seeking to satisfy individual,
family, household or community housing needs. The violence directed against
farm owners and workers, and the inaction of the police, violated these
obligations. The state is obliged to guarantee access to legal remedies for
those whose rights have been violated.

The government has a duty to guarantee equal protection of the law to all
people (Article 3) without discrimination,(Article 2) and to prosecute
serious violations of human rights (Article 26), including where the
perpetrator is a private citizen. Independence of the judiciary is also a
cornerstone of international human rights law (Article 26). Crimes should be
investigated and prosecuted in a fair, effective, and competent manner by
the relevant law enforcement and judicial authorities. The Zimbabwean
Constitution provides similar guarantees.(19)

Human rights violations during Operation Murambatsvina
Operation Murambatsvina ("clear the filth"), a programme of mass forced
evictions and demolitions of home and informal business, left at least
700,000 people without homes, livelihoods or both. The evictions were
carried out with total disregard for the welfare of the people being
evicted, and created a humanitarian crisis of immense proportions.(20)

The evictions took a particularly heavy toll on vulnerable groups - widows,
orphans, the elderly, households headed by women or children, and people
living with HIV/AIDS.(21) Thousands of people were left destitute, sleeping
in the open without shelter or basic services. To date the government has
taken no measures to investigate allegations of abuses during the operation
and to provide adequate remedies to those whose rights had been violated.

The UN Special Envoy on Human Settlement Issues in Zimbabwe, Anna Tibaijuka,
was deployed to Zimbabwe by the UN Secretary-General in June 2005 to assess
the scope and impact of Operation Murambatsvina. She reported that the
operation was carried out in an "indiscriminate and unjustified manner, with
indifference to human suffering and, in repeated cases, with disregard to
several provisions of national and international legal frameworks."(22)

Despite condemnation from the international community and appeals from
humanitarian organizations, the government of Zimbabwe has continued to defy
its obligations under international law and has failed to protect those
affected and displaced by the evictions. The government has refused to
acknowledge the scale of the crisis precipitated by the evictions, and
continues to blatantly violate the human rights of the people displaced by
Operation Murambatsvina.(23)

Denial of access to legal remedies
Article 7: The right to have one's cause heard

1. Every individual shall have the right to have his cause heard.
The UN Special Envoy's report concluded that during the evictions campaign,
the government of Zimbabwe "breached both national and international law"
and that it should compensate the victims for illegally destroyed property
as well as redress the suffering caused by the evictions and their
aftermath. The report further called on the government to identify and
prosecute "all those who orchestrated this catastrophe".(24)

Despite these clear recommendations, and Zimbabwe's international
obligations to provide effective remedies to victims of human rights
violations under the African Charter, the government has not carried out any
inquiries into the manner in which the evictions were carried out. It has
not investigated reports of excessive use of force by the police during and
after the evictions and has taken no steps to change the legislation to
provide for improved housing rights and security of tenure for those in
danger of eviction and displacement.

The government has also failed to provide access to effective legal remedies
to the victims of Operation Murambatsvina. According to lawyers representing
the victims of the evictions, the courts, run by politically compliant
judges, have to a large extent used delaying tactics in processing cases
related to Operation Murambatsvina.(25) In addition, few people have sought
compensation as most do not believe that they would receive justice or
effective remedy. It seems highly unlikely that the vast majority of the
victims will receive any compensation or other forms of reparation from the
government.

Forced relocation to the rural areas
Article 12 (1): The right to freedom of movement and residence

Every individual shall have the rights to freedom of movement and residence
within the borders of a State provided he abides by the law.

In its state party report on the right to freedom of movement, the
government of Zimbabwe makes no mention of the hundreds of thousands of
people forcibly displaced under Operation Murambatsvina.

The Zimbabwean authorities engaged in a concerted effort to coerce the
people displaced by the evictions to leave the cities and move to the rural
areas.(26) In different parts of the country police threatened, harassed, or
beat internally displaced persons (IDPs), forcing them to relocate to rural
areas where many had no homes or family and where social service provisions
such as healthcare, education, clean water and economic opportunities were
minimal. Fearing further displacement, many resorted to hiding during the
day and only returning to the places of their temporary residence at night,
to avoid detection and harassment by the police. Thousands of people were
forcibly taken to holding camps around the country where they were forced to
live in appalling conditions with little food or adequate shelter. Thousands
of these people, mainly women and children, continue to live in dire
conditions in a holding camp at Hopley Farm on the outskirts of Harare.

In one case documented by Human Rights Watch, the police forcibly relocated
several hundred people from Mbare, a suburb of Harare, to the Hopley Farm
holding camp. On 2 October 2005 policemen with dogs came to an informal IDP
settlement in Mbare and threatened more than 250 men, women and children
with physical violence and destruction of their property if they did not
leave the area by 5 October. Lawyers from the organization Zimbabwe Lawyers
for Human Rights (ZLHR) managed to file an urgent application with the High
Court preventing their further displacement.(27) Several weeks later, a
representative of ZLHR informed Human Rights Watch that on 14 November at
2am, Harare City Municipal Workers, accompanied by the police, forced the
families onto trucks and took them to Hopley Farm in contempt of the High
Court order.

While compelling people to relocate to rural areas, the government made no
effort to ensure that basic assistance would be available to the displaced
after the relocation, or even to track down those who chose to move.
International humanitarian agencies are still unable to trace thousands of
people who were displaced to rural areas.

The government also failed to make arrangements to provide temporary shelter
for the displaced. Up to a year after the evictions, many thousands of
displaced people continued to live in the open, in disused fields or in the
bush. Others lived in rudimentary shelters made from the debris of destroyed
houses, or squeezed into tiny rooms with family members who had agreed to
shelter them. The overcrowded conditions in the houses and camps inevitably
led to the spread of communicable diseases such as tuberculosis.

By pursuing a campaign of forced evictions and compelling people to move to
the rural areas against their wishes, Zimbabwe violated Article 12 of the
African Charter, the right to freedom of movement and residence. It is
widely agreed that incorporated in the freedom of residence is the right not
to be moved. While such freedoms and rights may be regulated by and subject
to legitimate laws or policy, the laws or policy cannot restrict the right
in so far that the essence of the right is impaired. Any law or policy which
imposes restrictions on the freedom of residence can only do so in a manner
that is proportionate and suitable to achieve the lawful end intended, that
is, the protection of fundamental values such as the rights and freedoms of
others. The laws or policy must also not be inconsistent with other rights
protected by the African Charter. The impact of Operation Murambatsvina on
the freedom of residence protected by Article 12 of the Charter was such as
to impair the very essence of the right and lead to a violation of this
article.

Indiscriminate destruction of property
The government of Zimbabwe also violated the right to property through the
indiscriminate destruction of property during Operation Murambatsvina. The
government violated the human rights of hundreds of thousands of its own
citizens by arbitrarily forcing them to destroy or cede their property
without due notice, process or compensation.

In its state party report the government states that it has now embarked on
Operation Garikai, a property ownership scheme designed to provide proper
homes to many of those affected by Operation Murambatsvina. However,
Operation Garikai failed to address the immediate shelter needs of the
victims of the evictions, and few of those rendered homeless by Operation
Murambatsvina have received housing under Operation Garikai. The criteria
for allocation of housing under the programme, which include proof of formal
employment, a specified salary, and the payment of an initial deposit and
monthly instalments, make the housing unaffordable for the majority of the
displaced.(28) By April 2006, the government had reportedly built only 3,000
housing units for those displaced. The government has also failed to
prioritize the victims of Operation Murambatsvina under the scheme. Almost
two years after Operation Murambatsvina, thousands of people remain without
adequate shelter.(29)

The African Charter, under Article 14, forbids the wanton destruction of
property, and in particular where such destruction involves violations of
the right to shelter and housing, which is protected under the Charter by
the combined effect of Articles 14, 16 and 18.

At a very minimum, the government of Zimbabwe has an obligation to ensure
that those it rendered homeless during Operation Murambatsvina are
re-housed. To this end the government must review and revise Operation
Garikai in a transparent manner, in order to develop a comprehensive human
rights-based housing programme to address the housing needs of all victims
of Operation Murambatsvina.

Violations of economic, social and cultural rights
Article 16: The right to health
1. Every individual shall have the right to enjoy the best attainable state
of physical and mental health.
2. State parties to the present Charter shall take the necessary measures to
protect the health of their people and to ensure that they receive medical
attention when they are sick.

Article 17 (1): The right to education
Every individual shall have the right to education.

The breakdown of the rule of law and the widespread disregard for economic
and social rights by the government of Zimbabwe were thrown into stark
relief in 2005 during Operation Murambatsvina. Evictions carried out under
Operation Murambatsvina were marked by violence and violations of a range of
economic, social and cultural rights including the right to adequate
housing, the right to education, the right to work and the right to health.

While acknowledging its responsibilities under the rights to health and
education in its state report, the government typically fails to mention or
acknowledge the extensive violation of these rights during Operation
Murambatsvina and its failure to adequately address these violations.
Throughout Operation Murambatsvina, educational and health facilities were
destroyed, school children were displaced and denied access to educational
facilities and people living with HIV had their treatment disrupted and
discontinued.

Vulnerable groups ignored

During the operation, the government made few attempts to provide or
facilitate priority humanitarian assistance to displaced vulnerable groups
including children, female-headed households, chronically ill and elderly
people.

People living with HIV/AIDS
Operation Murambatsvina disrupted access to medical treatment for a
significant number of people living with HIV/AIDS. Scores of people living
with HIV/AIDS lost their access to anti-retroviral treatment and home-based
care. Six months after the evictions, many displaced persons living with
HIV/AIDS were still unable to access anti-retroviral, tuberculosis or
opportunistic infection treatment. Local NGOs working with those living with
HIV/AIDS reported that they were unable to trace or reach many of their
clients and alleged that the government had made no attempts to locate their
displaced clients and facilitate access to treatment, food and shelter for
those living with HIV/AIDS.(30)

Children
The plight of displaced widows and mothers of children with disabilities
also improved little in the months after the evictions. For example,
according to the director of a local organization working with widows and
orphans, many widows lost their homes or livelihood as a result of the
evictions. Mothers of children with disabilities living in the urban areas
of Harare were also heavily affected by Operation Murambatsvina. Before the
evictions, many of these families were able to access physiotherapy and
other forms of treatment for their children, as the women were renting out
cottages and selling vegetables to earn their living. As a result of
Operation Murambatsvina, some of the families lost their livelihood and
could no longer afford to pay for medical assistance for their children or
even for transport to take their children for treatment.

Many women and children who were forced to sleep outside, in inadequate
shelters, or in overcrowded conditions with minimal assistance, saw their
children's health deteriorate. The families received no assistance from the
government. The situation of women and children living in the
government-recognized holding camp, Hopley Farm, was no less precarious, as
they also were deprived of any means of survival and the assistance provided
was extremely limited.(31)

The report of the UN Special Envoy on Human Settlement Issues estimated that
up to 223,000 children were directly affected by Operation
Murambatsvina.(32) In the aftermath of the operation, the government
provided little or no assistance to displaced children living with their
parents or guardians, children separated from their families, or
child-headed households.

Many of the displaced children face significant hurdles in continuing their
education. A survey on the effects of Operation Murambatsvina by Action Aid
found that overall, 22 per cent of children who had been attending school
before Operation Murambatsvina dropped out because of the evictions.(33) The
displacement has also further hindered parents' ability to pay for
schooling, causing more children to drop out of school. In addition,
children have moved further away from their schools and many parents can no
longer afford to pay the transport costs for their children to go school.

Government obstruction of international humanitarian assistance
Following the evictions campaign, UN agencies and international NGOs in
Zimbabwe, in consultation with donors, directed their efforts towards
meeting immediate needs for food, clean water, and shelter to those who lost
their homes or livelihood as the result of Operation Murambatsvina. However,
contrary to the recommendations of the UN Special Envoy on Human Settlement
Issues, who called on the government to provide full and unimpeded access to
local and international humanitarian organizations, the government
deliberately obstructed the efforts of international agencies to assist the
internally displaced.

In September 2005, almost six months after the evictions, the government
refused to sign a draft emergency appeal proposed by the UN, which would
have helped those hardest hit by the evictions, and refused to sign an
agreement with the UN to mobilize much needed relief and reconstruction
aid.(34) It also refused to endorse the UN's Common Response Plan for
assisting victims of evictions.(35)

The government refused to allow international agencies to provide tents or
similar forms of temporary shelter to the internally displaced, fearing that
the erection of tent camps would expose the scale of the crisis precipitated
by the evictions. In August 2005, shortly after several international
agencies erected over 100 tents for the displaced in the area of Headlands,
Zimbabwe police took the tents down and explicitly told the UN country team
that there should be no "tents made of plastic sheeting".(36) In October
2005, the government was still preventing international agencies from
providing temporary shelter to the displaced, claiming that there was no
"compelling need to provide temporary shelter as there is no humanitarian
crisis".(37) In mid-November, the government reportedly finally accepted a
UN offer to build 2,500 "units" for people made homeless by the evictions
campaign. However it was unclear what kind of shelter was to be provided and
who the beneficiaries would be.

The government also prevented international agencies from distributing food
aid to the displaced. A report by the International Federation of Red Cross
and Red Crescent Societies (IFRC) noted that assistance to the internally
displaced presented "operational challenges because of the government
directive of assisting only those within designated areas and with housing
development approved by the city councils".(38) Representatives of other
international organizations and UN agencies also claimed that the government
had explicitly told them not to provide food and other assistance to those
staying in the open outside the areas recognized by the government, namely
Hopely Farm and Hatcliffe.(39) While some humanitarian agencies initially
tried to continue the delivery of food assistance to the displaced, the
government's non-cooperation effectively paralyzed their operations, and by
September 2005 little food aid was being provided to the vast majority of
the internally displaced. At the time Zimbabwean authorities made it clear
to local and international humanitarian agencies that they would not allow
local and international organizations free access to the displaced. Those
who sought such access risked arrest, harassment and being barred from
assisting any of the victims of the evictions.(40)

Conclusion
The implementation of the fast track land reform programme resulted in
numerous violations of the African Charter. The right to property (Article
14) was blatantly ignored. The discriminatory and violent way in which the
programme was implemented led to violations of the right to freedom from
discrimination (Article 2), the right to life (Article 4) and the right to
liberty (Article 5). The removal of land seizure cases from the jurisdiction
of the courts led to violations of the right to equality before the law
(Article 3) and the right to have one's cause heard (Article 7).

The African Charter does not specifically provide for protection against
forced evictions, but has extensive provisions on the protection of human
rights that are typically affected by the practice of forced evictions, such
as the right to freedom of movement and residence (Article 12), the right to
enjoy the best attainable state of physical and mental health (Article 16)
and the right to education (Article 17). Decisions by the African Commission
have articulated the obligations of state parties in protecting these
rights. Evictions conducted by a state can give rise to serious human rights
violations. This is particularly true when they are carried out by force or
without procedural guarantees. The government of Zimbabwe's programme of
forced evictions led to serious human rights violations.

About Human Rights Watch

Defending human rights worldwide

Human Rights Watch (HRW) is the largest human rights organization in the
United States of America, with offices across the world dedicated to
protecting the human rights of people all over the world. It carries out
research to hold perpetrators of human rights violations accountable and
pressure them to end such practices.

Chapter 2: Attacks on the rule of law
Prepared by International Bar Association

Since it last reported to the African Commission, the Zimbabwean government
has disregarded the doctrine of the separation of powers between judiciary,
executive and legislature, and the rule of law has continued to deteriorate
in Zimbabwe.

There are reports of the government failing to protect members of the
judiciary from intimidation, threats and attacks by individuals or political
groups. The government has actively undermined the standing of the judiciary
amongst society through public statements and by ignoring orders of the
court. It has permitted its police force to act with impunity in violating
the rights to liberty, security and freedom from arbitrary arrest. The law
has been applied in a discriminatory fashion, with arrests and prosecutions
being made on political grounds. The right to a fair trial has not been
respected and there have been frequent attacks on lawyers. The government's
failure to respect the rule of law has led to countless citizens from across
society being robbed of their homes, land and livelihoods with no legal
redress. Furthermore, the government has failed to give effect to the
economic, social and cultural rights of its citizens.

Independence of the courts: Article 26
Article 26: independence of the courts
States parties to the present Charter shall have the duty to guarantee the
independence of the Courts and shall allow the establishment and improvement
of appropriate national institutions entrusted with the promotion and
protection of the rights and freedoms guaranteed by the present Charter.

Article 26 of the African Charter guarantees the independence of the courts.
This is understood to include respect for court decisions and the
institutions of the judiciary. Under this Article, state parties have a
positive obligation to ensure that the judiciary is impartial and
independent, as well as a negative obligation to refrain from interfering
with its independence. The latter obligation includes ensuring that third
parties do not compromise the independence of the judiciary.

Despite these clear obligations, the government of Zimbabwe has consistently
failed to protect the judiciary from interference from war veterans and
other private individuals and has disregarded the doctrine of the separation
of powers. The effect of failing to protect the independence of the
judiciary in accordance with Article 26 has led to violations of other
articles of the Charter namely Article 1 (duty to protect the rights
enshrined within the Charter), Article 3 (equal protection of the law),
Article 6 (right to liberty and security) and Article 7 (the right to a fair
trial). In interfering with the independence of the judiciary, the
government of Zimbabwe has promoted a culture of impunity for human rights
abuses, thereby creating a further breakdown in public order.

Threats and violence against the judiciary and lawyers
Consistent with Article 26 of the Charter, Section 79B of the Zimbabwean
Constitution stipulates that "a member of the judiciary shall not be subject
to the direction or control of any person or authority, except to the extent
that a written law may place him under the direction or control of another
member of the judiciary". Despite Section 79, members of the government and
ruling party have been involved in threats of violence and physical attacks
on lawyers, magistrates and prosecutors, and have failed to take action
against others who have committed such acts.(41)

During a mission to Zimbabwe by the International Bar Association (IBA) in
2001, attacks on the judiciary by senior members of the executive,
Ministers, Members of Parliament and the President were reported.(42) The
Minister of Justice, Patrick Chinamasa, is on record as stating that judges
should be politically correct, and not behave like "unguided missiles", a
situation in which he "wish[es] to emphatically state that [they] will push
them out".(43)

In November 2000, so-called war veterans and ZANU-PF supporters physically
attacked the Supreme Court during a case, beating up a guard and preventing
the court from sitting. The police dispersed the invaders, but took no
further action against them.(44) In a separate incident in August 2001 a
large crowd, allegedly ZANU-PF supporters, demonstrated for three days
against a Karoi magistrate after he had granted bail to 106 farm workers who
were charged with public violence for attempting to remove war veterans from
their farms. In September 2001, after a Bindura magistrate sentenced 17
ZANU-PF supporters to three years' imprisonment each for public violence
ahead of a by-election in June, it was reported that other party supporters
held "an all-night vigil" outside his home and intimidated his wife. In
November 2001 ZANU-PF militants assaulted a senior magistrate in Gokwe after
he convicted a ruling party supporter on a robbery charge and sent him to
jail for eight months. In August 2002 Walter Chikwanha, a Chipinge
magistrate, was dragged from his courtroom by a group of war veterans and
allegedly assaulted at the government complex after he dismissed an
application by the state to remand in custody five opposition MDC officials.
The magistrate reportedly had broken ribs and a fractured collar-bone.(45)
These threats and acts of violence against magistrates and courts have not
been condemned by the government and the perpetrators have not been brought
to justice.

In a widely reported case in September 2002, Justice Blackie was unlawfully
arrested and arbitrarily detained.(46) Justice Blackie retired and later
indicated that his decision to retire was prompted by the pressures he was
under.

As a result of undue pressure a significant number of judges have resigned.
Chief Justice Anthony Gubbay was induced to retire early, due to these
repeated attacks on the judiciary, compounded by a government minister who
informed him that his safety could not be guaranteed.(47) Further, there was
speculation that the appointment of three new judges to the Supreme Court
Bench ahead of more senior judges was based on their political
affiliations.(48)

The Law Society of Zimbabwe is a central institution for the legal
profession and continues to play an important role in the protection and
promotion of the rule of law in Zimbabwe. The Law Society has issued
statements in support of the judges such as former Chief Justice Gubbay and
other members of the profession when they suffered attack or threats. The
consequence of taking such a stand in defence of the rule of law and
separation of powers has been extreme. The Law Society has suffered a series
of attacks including an invasion of the offices by war veterans, the arrest,
detention and ill-treatment of the former President of the Society,
Sternford Moyo, and Executive Secretary, Wilbert Mapombere,(49) and
criticism and threats against some of the Society's Executive Officers in
the state-run media.(50)

Undermining the courts' jurisdiction
In addition to the intimidation and harassment of the judiciary and legal
profession, the government has sought to undermine the jurisdiction of the
courts. In September 2005 the Executive introduced Constitutional Amendment
17 which removed the jurisdiction of its national courts to adjudicate in
land disputes. Not only did this law effectively end thousands of cases of
land disputes which had been pending before the courts, but it also
permitted future land acquisitions to take place without the requirement of
notice to affected landowners or the possibility of legal challenge before
the courts.(51) According to the African Commission, a fundamental change in
the law of this nature "constitutes an attack of incalculable proportions on
Article 7", and violates the independence of the courts as provided for by
Article 26.(52)

A growing trend has been also been noted in which court orders have been
ignored by the government and police. This report presents a few of the more
notable cases.

In 2000, the Zimbabwe Supreme Court ordered the Commissioner of the Police
to investigate allegations of torture perpetrated against two journalists
who published a story about an alleged military coup. The Court stipulated
that the police identify the perpetrators and that they be prosecuted. The
police, however, ignored the order and failed to undertake any
investigation, thereby permitting the perpetrators to go undetected.(53)
When the judges in this case objected to the failure to comply with its
order, President Mugabe publicly criticised them, stating, "[t]he judiciary
has no constitutional right whatsoever to give instructions to the president
on any matter as the...judges purported to do."(54)

Following the government-sanctioned farm occupations and fast-track land
reform programme in 2000, a series of court orders declared the occupations
to be in violation of Section 16 of the Constitution. The IBA mission to
Zimbabwe in 2001 found that a number of court orders declaring farm
invasions illegal were ignored by the police claiming either that they
lacked manpower or that it was a political matter.(55) President Mugabe is
on record as having stated that attempts to uphold such court orders would
be unsuccessful unless the Executive assisted.(56) In so stating, the
president undermined both the independence and standing of Zimbabwe's
courts.

In October 2000, the authorities threatened to seize radio equipment
belonging to Zimbabwe's Capital Radio Station. In response, the radio
station obtained an interim court order in accordance with Section 17 of the
Constitution (protection from arbitrary search) preventing the police from
seizing equipment until the company's urgent application had been heard.
Despite having seen the court order, the police broke down the door to the
company's studio and seized some of its broadcasting equipment. This conduct
was justified by a police official who stated that he did not take his
orders from the court but only from his superiors.(57) He also disregarded
the advice of the Attorney-General not to proceed with the search and
seizure. The police official was later found to be in contempt of court but
was not punished.(58)

In a widely reported case, the government ignored a number of court ruling
in respect of Associated Newspapers of Zimbabwe (ANZ) publications. On 18
September 2003, High Court judge Justice Omerjee ruled that the police
conduct of forcibly occupying the premises of the ANZ and seizing their
equipment was illegal and that they had no legal right to prevent ANZ and
its employees from gaining access to their premises. Administrative Court
judge Justice Majuru also ruled in favour of the ANZ.(59) Justice Sello Nare
upheld the ruling and allowed the ANZ to carry into effect the judgment of
Justice Majuru.(60) The Information Minister, Jonathan Moyo, was reported to
have said that the ANZ could not resume operations and that the ruling by
Judge Nare was "academic" and could not be enforced.(61)

Disregard of laws and court orders was rampant in the recent government mass
evictions programme, Operation Murambatsvina (see Chapter 1). In many
instances, the police moved in without any notice and bulldozed homes to the
ground with people not having any recourse to the courts.(62)

In disregarding the law and orders of the court, the government of Zimbabwe
is failing to give effect to the rights enshrined within the African
Charter. Additional to this, it has also enacted legislation which is
inconsistent with the Charter and goes as far as obstructing rights
enshrined within the Charter despite there being a bill of rights within the
Zimbabwe Constitution. An example of such a law is the Public Order and
Security Act, enacted in 2002, which has been used widely by the government
to interfere with and restrict freedom of association and expression (see
Chapter 4).

Failure to respect the rule of law and Article 26 has also led the
government of Zimbabwe to violate other provisions within the African
Charter which are detailed below.

Respecting and implementing Charter rights: Article 1
Article 1
The Member States of the Organization of African Unity parties to the
present Charter shall recognize the rights, duties and freedoms enshrined in
this Charter and shall undertake to adopt legislative or other measures to
give effect to them

Article 1 of the African Charter requires the state to recognise the rights
enshrined within the Charter and to adopt legislative or other measures to
give effect to them. The African Commission has confirmed that a state is
not only obligated to recognize the rights, as Zimbabwe does in some
instances in its Constitution and laws, but is also obliged to respect and
give effect to them, which Zimbabwe has failed to do.(63)

Disregard for the rule of law has led to a failure on the part of the
government to give effect to a number of the rights contained within the
African Charter and has harmed the enjoyment of economic, social and
cultural rights both directly and indirectly. A number of examples are
highlighted: i) widespread reports of the use of violence and torture,
including rape, in Zimbabwe raise concerns under the right to health; ii) a
result of widespread violence and lack of police protection has been a
massive exodus of teachers from Zimbabwe,(64) particularly from rural areas,
adversely affecting the right to education; iii) violence has also led
greater number of health professionals fleeing Zimbabwe leading to a virtual
collapse of the health sector in Zimbabwe;(65) iv) evictions carried out
under Operation Murambatsvina, for example, were "marked by violence and
violations of a range of rights including the right to adequate housing, the
right to life, freedom from torture, freedom of movement, the right to
education, the right to work and the right of access to health care."(66)

Equality before the law and equal protection of the law: Article 3
Article 3
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.

Article 3 of the African Charter provides for equality before the law and
equal protection of the law. The government of Zimbabwe has consistently
failed to accord with these provisions. In failing to protect the
independence of the courts, by ignoring court orders and by adopting laws
which remove legal redress for certain parts of civil society, the
government has removed equality before the law. Furthermore, the criminal
law has been applied selectively for political advantage. The African
Commission has been categorical in demanding equal application of judicial
decisions and has stated that it "is a breach of the principle of equality
if judicial or administrative decisions are applied in a discriminatory
manner".(67)

Public reports have also documented partisan conduct by the police.(68) As
the police force is an essential element in the administration of justice,
its failure to be impartial compromises the rule of law and violates a
number of provisions within the Charter.

Before the June 2000 general election, the police on various occasions
turned a blind eye to violence perpetrated against opposition MDC supporters
and commercial farmers.(69) The IBA mission in 2001 to Zimbabwe found that
there was a strong perception amongst the population that prosecutions were
taking place based on political allegiances alone.(70) A cursory look at
prosecutions for political violence and under the Public Order and Security
Act indicates that an overwhelming majority of those who have been
prosecuted are members of the opposition.(71) Public statements by the
Police Commissioner and other cases confirm the practice of prosecuting
political opponents.

In addition, there are numerous reports of the police beating civilians and
engaging in acts of torture. The National Constitutional Assembly (NCA)
Chairperson, Dr Lovemore Madhuku, was reported to have been severely
assaulted by riot police during a demonstration in Harare in February
2004.(72) In April 2004, human rights activist Tinashe Chimedza was brutally
assaulted by the police as he was about to address a Students Forum. One of
the lawyers who went to represent him, advocate Tonderai Bhatasara, was
harassed and briefly detained by the police allegedly for walking into the
police station wearing a hat.(73)

Several lawyers have been threatened, attacked or obstructed by police when
defending clients in custody. Members of the legal profession subjected to
such abuses include: Otto Saki, who was denied access to his client and
later witnessed his torture; Advocate Bhatasara and Jacob Mafume, who were
subjected to abuse and threats as they tried to secure the release of their
clients; Beatrice Mtetwa, who called the police for assistance after being
carjacked, but was violently attacked by police in a police car and in
Borrowdale police station;(74) Justice Blackie, who was arrested arbitrarily
and imprisoned illegally; and Gugulethu Moyo, who was beaten in a police
station where she had gone to represent a colleague who was being
detained.(75)

Members of the women's organization Women of Zimbabwe Arise (WOZA) have
repeatedly been arrested and detained. In June 2004, 43 WOZA members were
arrested during a peaceful meeting. Of the women, seven had small babies or
children. The children were detained along with the women. Several of the
women reported abuse, both verbal and physical. Some women were allegedly
beaten with a sjambok (whip) on the soles of their feet.(76) Four of the
women detained were charged under the Public Order and Security Act, but the
charges were later thrown out by the court, because no actual violation was
found to have been committed by the women.

On International Women Human Rights Defenders Day in November 2006 WOZA
members peacefully marching in celebration of the event were arrested in
Bulawayo despite the march being lawful. Several women sustained severe
injuries, including bone fractures, from police action. More than 40
demonstrators were arrested and were held overnight in police custody. Of
those detained with the adults, six were infant children.

The African Commission has urged Zimbabwe to "avoid any further
politicisation of the police service" and to ensure that the police abides
by the Constitution and does not serve any political interests.(77) Despite
this categorical request, the government has yet to take action to rein in
its police force.

Liberty and security: Article 6
Article 6
Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained.

Article 6 of the African Charter protects the liberty and security of person
and prohibits arbitrary arrest and detention. Any arrest which is not in
accordance with the law, where the law is applied discriminately, or where
the law is itself discriminatory, falls foul of the provisions of Article 6.
The UN Human Rights Committee has stated that arbitrary deprivations of
liberty can never be justified, not even during a state of emergency.(78)

A number of the violations of the African Charter discussed earlier also
raise concerns under Article 6. For example, the cases of Tinashe Chimedza
and his lawyer, Tonderai Bhatasara, clearly represent violations of their
right to security and liberty of person. So too do the cases of Advocate
Bhatasara, Jacob Mafume, Beatrice Mtetwa, Gugulethu Moyo and Justice
Blackie.

The treatment meted out to members of WOZA also constitutes a violation of
Article 6. The beatings and mistreatment which took place in June 2004 after
women attended a peaceful meeting represent not only an arbitrary detention
but also violated the women's security. In November 2006 when the women were
again targeted by the police for peacefully marching, similar violations
occurred. Not only were the women arrested for a lawful activity, but also
many women and children were forced to sleep in the yard of the police
station due to lack of space in the police station. None of them were
released so that they could take medicine required to treat life-threatening
illnesses.(79)

In a separate incident in September 2006, trade unionists taking part in a
peaceful demonstration in Harare suffered shocking beatings and torture at
the hands of the police. Some were allegedly subjected to a form of torture
known as falanga (beatings on the soles of the feet), which often leaves
victims with difficulty walking and significant pain for the rest of their
lives.(80) After video footage of the beating of the trade unionists was
released to the media, President Mugabe responded by publicly condoning the
actions by the police.(81) This clearly indicates the level at which such
treatment is not only ignored, but actively supported by the Zimbabwean
authorities.

As is demonstrated by the examples cited above, the police in Zimbabwe have
been allowed to commit human rights violations on a wide scale with
impunity. The government of Zimbabwe is directly responsible for the
activities of all of its state agents. The police have violated the liberty
and security of a vast number of individuals, yet the government has done
nothing to prevent such action. Worse, it has condoned it.

The right to a fair trial: Article 7
Article 7
1. Every individual shall have the right to have his cause heard. This
comprises:
(a) the right to an appeal to competent national organs against acts of
violating his fundamental rights as recognized and guaranteed by
conventions, laws, regulations and customs in force;
(b) the right to be presumed innocent until proved guilty by a competent
court or tribunal;
(c) the right to defense, including the right to be defended by counsel of
his choice;
(d) the right to be tried within a reasonable time by an impartial court or
tribunal.

2. No one may be condemned for an act or omission which did not constitute a
legally punishable offence at the time it was committed. No penalty may be
inflicted for an offence for which no provision was made at the time it was
committed. Punishment is personal and can be imposed only on the offender.

The right to a fair trial is recognised across a range of international and
regional treaties to which Zimbabwe is a party. Although a number of the
rights making up a fair trial may be suspended during times of state
emergency, the UN Human Rights Committee has expressed the view that "the
principles of legality and the rule of law require that fundamental
requirements of a fair trial must be respected during a state emergency.
Only a court of law may try and convict a person for a criminal offence. The
presumption of innocence must be respected."(82)

Under the African Charter the right to a fair trial incorporates a number of
principles: the right to be tried by a competent and impartial court or
tribunal; the right to defence including by counsel of one's own choice; the
right to be tried within a reasonable time. In the example cited earlier of
the removal of the courts' jurisdiction over land acquisition disputes
following Constitutional amendment 17, the government of Zimbabwe is in
breach of Article 7 1(a) which accords everyone's right to appeal to a
national court in the event of a violation of their fundamental rights. As
noted above, the African Commission has previously observed that ousting the
jurisdiction of ordinary courts "constitutes an attack of incalculable
proportions on Article 7", and "violates the independence of the courts".
(83)

Also notable are the reports of attacks, harassment and hindrance of lawyers
in the carrying out of their professional activities. In such cases the
right to a fair trial is violated by failing to ensure the defendant has
access to their counsel of choice. Further, where legal counsel is
intimidated, threatened or attacked, it will not be possible for a fair
trial to take place. The African Commission has underlined the right to
communicate in confidence with counsel of choice; otherwise, there is a
breach of Article 7.(84)

Conclusion
The government of Zimbabwe continues to be responsible for an erosion of the
principles of the rule of law and for widespread and systematic human rights
violations. Judges and lawyers have been intimidated, the independence and
standing of the courts undermined and the law applied discriminately or not
at all. There would appear to be no indication that such action will
decrease in the future.

Of particular concern is the action of Zimbabwe's police force and the way
in which it is permitted to commit human rights violations with impunity.
The government has direct responsibility for agents of the state and must
ensure that they act in accordance with domestic, regional and international
law. The rule of law in Zimbabwe is in desperately poor shape and only by
giving effect to human rights norms, international treaty obligations and
the African Charter will the quality of life begin to improve for its
citizens.

About the International Bar Association

The global voice of the legal profession
In its role as a dual membership organisation, comprising 30,000 individual
lawyers and over 195 Bar Associations and Law Societies, the International
Bar Association (IBA) influences the development of international law reform
and shapes the future of the legal profession. Its Member Organisations
cover all continents of the World.

The IBA's Human Rights Institute works across the Association, helping to
promote, protect and enforce human rights under a just rule of law, and to
preserve the independence of the judiciary and the legal profession
worldwide.

The HRI intervenes by making representations to authorities worldwide;
training lawyers, judges and prosecutors in human rights law and
international humanitarian law; undertaking fact-finding missions and
sending trial observers where there has been a significant deterioration in
the rule of law; galvanises international support to lobby for change
through media and advocacy campaigns; and provides long-term technical
assistance to Bar Associations and Law Societies worldwide. In addition, it
liaises closely with international and regional human rights organisations
and produces newsletters and other publications that highlight issues of
concern to worldwide media.

Chapter 3: Torture and ill-treatment

Prepared by Redress

Torture and cruel, inhuman or degrading treatment or punishment are
prohibited under Article 5 of the African Charter.

Article 5: Freedom from torture and ill-treatment
Every individual shall have the right to the respect of the dignity inherent
in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.

Context
Torture has always been a serious problem in Zimbabwe, both before and after
independence. However, since the current period of widespread and systematic
human rights abuses (including torture) began in 1998,(85) its scale is such
as has not been seen since the liberation struggle in the 1970s. This is
despite the prohibition against torture in Section 15(1) of the Zimbabwean
Constitution: "No person shall be subjected to torture or to inhuman or
degrading punishment or other such treatment."

The campaign of violence, intimidation and torture which began in 2000 after
the government's defeat in the constitutional referendum was seen as ZANU-PF's
strategy to avoid another defeat at the polls in the June 2000 parliamentary
election. The opposition MDC won nearly half the parliamentary seats,
despite being virtually outlawed in large parts of the country, and the
widespread use of physical violence including murder and torture against its
perceived supporters. The MDC immediately launched High Court election
petitions, challenging the results in 37 constituencies on the basis of
ZANU-PF's violence. Faced with the prospect of losing the election if these
petitions were upheld, the government turned its attention to assaulting
witnesses in the petition cases. Witnesses are known to have been attacked
and tortured in the constituencies of Chiredzi, Buhera North, Hurungwe,
Karoi, Chinoyi, Kariba, Chikomba, Makoni and Mount Darwin.(86)

The violent strategy continued throughout 2001 in preparation for the March
2002 presidential election, and torture became endemic. The period saw the
widely disputed re-election of President Mugabe, the virtual destruction of
the rule of law and the independence of the judiciary (see Chapter 2), and
economic collapse. During 2003 gross human rights violations on a widespread
and systematic scale, including torture, continued unabated, peaking during
local, mayoral and parliamentary by-elections, and during opposition-led
strikes and stayaways. In 2004 there was no significant improvement in
respect for human rights, although there was a drop in reports of torture
and organized violence immediately preceding the March 2005 parliamentary
election. Shortly afterwards Operation Murambatsvina marked a new low in the
government's human rights record. Reports of torture continue.(87)

Overview: torture and ill-treatment
Such was the concern of the African Commission that it undertook a
Fact-Finding Mission to Zimbabwe in June 2002. Among other findings, it
stated that
  "there was enough evidence placed before the Mission to suggest that, at
the very least during the period under review, human rights violations
occurred in Zimbabwe. The Mission was presented with testimony from
witnesses who were victims of political violence and others victims of
torture while in police custody.[T]he Government cannot wash its hands from
responsibility for all these happenings.Government did not act soon enough
and firmly enough against those guilty of gross criminal acts." (88)

During the period July 2001 to November 2004 inclusive, one Zimbabwean human
rights coalition reported 2,742 allegations of torture. This formed the
single largest category of gross human rights violations (24 per cent)
reported to it.(89) The decline in reported torture just before March 2005
reflected a change in tactics on the part of the government. However, it was
soon followed by the violent destruction of tens of thousands of homes and
the forced displacement of thousands of people in Operation Marumbatsvina.
This reflected the government's disregard of international norms including
the prohibition against cruel, degrading and inhuman treatment.

Zimbabwe's jails are also the site of on-going serious human rights abuses.
Gross overcrowding, lack of proper food, medical care and hygiene, and
overall neglect, singly and combined constitute cruel, inhuman and degrading
treatment. Part of the reason lies in Zimbabwe's catastrophic economic
decline: prisoners are entirely marginalized and very much at the mercy of
their custodians.(90)

Torture takes many forms and is perpetrated by the Zimbabwe Republic Police
(ZRP), army, government militias, the Central Intelligence Organisation
(CIO), government organized war veterans and ZANU-PF members. Beatings, rape
and electric shocks are some of the methods used. Increasingly, "irregulars"
commit the abuses -­­­­ they may be in civilian clothes and their identity
may be unknown, or they may be youth militia brought into an area from
outside so that they will not be easily recognized, or they may be dressed
up in police or military uniforms to further hide their identities. All of
this has been widely reported in numerous documents, by both Zimbabwean and
international human rights groups, and has been confirmed by the findings of
the Zimbabwean courts in various civil suits.(91)

The torture cases set out below are a handful which have entered the public
domain. They are cited to illustrate the wide range of victims and some of
the main perpetrators, as well as the state's consistent failure to promptly
and thoroughly investigate and prosecute offenders. As shown, even where it
has been clearly established that torture has taken place, and where the
courts have ordered the police to investigate, the state has not done so.

At the level of international law, torture is absolutely prohibited and
gives rise to state responsibility as well as individual criminal liability.
Torture is prohibited under Zimbabwe's Constitution but over the past six
years it has become widespread and systematic. The African Commission
Fact-Finding Mission set out recommendations to deal with this and other
human rights violations, but there is no sign that the government intends to
deal with the problem, which is one of its own creation and for which it is
accountable. A culture of impunity for gross violations of human rights
persists, including for those who commit or order torture.

Some individual torture cases

Chavunduka and Choto (1999)
In January 1999 an independent Harare newspaper reported that army officers
had allegedly been arrested after a coup plot.(92) As a consequence of the
report (which the state branded as lies), two local black journalists, Mark
Chavunduka and Raymond Choto, were unlawfully detained by the military and
severely tortured. Despite urgently obtained court orders for their release,
they were held for more than a week during which time they were beaten with
fists and wooden planks and subjected to electric shock and water immersion
torture, among other forms of gross ill-treatment. The case led to
unprecedented public protests, including from the judiciary which addressed
an open letter to President Mugabe calling upon him to restore the rule of
law.

Protests included a peaceful human rights march on Parliament led by lawyers
in court regalia. President Mugabe's response was to threaten the judges and
to justify the treatment of the journalists, while the marchers on
Parliament were stopped by the riot squad with dogs, tear-gas and batons. A
meeting of human rights NGOs with Attorney-General Chinamasa drew his
assurance that he would direct the Commissioner of Police to
investigate.(93) He later reneged on this assurance. Eventually, after the
journalists made an application to the Supreme Court, judges ordered the
police to investigate the torture.(94) However, the police made no serious
effort to do so. Mark Chavanduka died in 2002. In February 2005 it was
reported that the government had paid Raymond Choto and the late Mark
Chavunduka's estate a combined total of Z$24 million (about US$3000) civil
damages.(95)

Blanchard, Dixon and Pettijohn (1999)
In March 1999, three US nationals -­­ Gary Blanchard, John Dixon and Joseph
Pettijohn -­­ were arrested at Harare International Airport on their way to
Switzerland, and subsequently charged with the illegal possession of
firearms. Before trial the men brought an urgent application in the Supreme
Court stating that they had been severely tortured after their arrest, and
that the conditions in which they were being held in a maximum security
prison pending trial constituted cruel, inhuman or degrading treatment.(96)

At the men's trial in September 1999 it emerged that in the days after their
arrest by the Criminal Investigation Department, police officers tortured
them, including by inflicting electric shocks to their genitals and beating
the soles of their feet. Both state and private doctors gave evidence
consistent with what the men said had happened to them. The trial judge
concluded that the police had indeed severely tortured the men, and noted
that although one Detective Inspector had said that the state had been
investigating the complaints:
  "the only conclusion this court can come to is either nothing is being
done about the complaints or if something is being done, clearly
incompetence seems to be the situation, because it does not take four months
to come up with a completed investigation about this, in which it has been
alleged some twenty different persons were involved."(97)

No steps have ever been taken against the torturers.

Masera, Zulu, Moyo, Sibanda, Mpofu, Dulini-Ncube (2001-2002)
One week before the June 2000 parliamentary elections, war veterans
kidnapped MDC polling agent Patrick Nabanyama from his home in Bulawayo. He
was never seen again but no body has ever been found. The alleged kidnappers
were arrested and charged with murder in 2001. One of the accused was Cain
Nkala, a war veteran leader in Bulawayo. In November 2001 Cain Nkala himself
was kidnapped and within days several MDC members were arrested and charged
with his murder. They were kept in custody under appalling conditions for
many months.

The trial of six of them began in February 2003: Sonny Masera, Army Zulu,
Remember Moyo, Kethani Sibanda, Sazini Mpofu and Dulini-Ncube, an MDC MP.
Dulini-Ncube was denied treatment for his diabetes whilst in custody and
later had to have an eye surgically removed.(98)

At the Nkala murder trial the six accused MDC men said that the police
extracted the evidence against them under torture, and a
trial-within-a-trial was held to determine the admissibility of this
evidence. The police denied any ill-treatment.

In March 2004 the trial judge ruled that the evidence was indeed
inadmissible. She meticulously analysed the evidence of police officers
involved in the case, contrasting their stories with those of the accused
and each other, and including examinations of written statements and
confessions, police diaries and logs, video evidence and other exhibits. She
found the police had deliberately made false entries in their records,
altered written statements, lied to the court, been evasive in their
evidence, and had fundamentally violated the most basic human rights of the
men on trial. In uncompromising language she threw out the incriminating
statements, indications and even video recordings with the concluding
comment:
  "The evidence of the State witnesses who are police officers is fraught
with conflict and inconsistencies. The witnesses conducted themselves in a
shameless fashion and displayed utter contempt for the due administration of
justice to the extent that they were prepared to indulge in what can only be
described as works of fiction.The magnitude of their complicity was such as
to put paid [sic] to this court attaching any weight to the truth or
accuracy of their statements." (99)

As a result, the evidence that the detainees had been tortured was accepted,
including the following accounts. Remember Moyo was hit with a rifle-butt,
pushed out of the back of a moving police vehicle while shackled in
leg-irons and handcuffs, had his head banged against a car wheel, was held
on the ground on his back with his legs-spread eagled while a police officer
jumped on his genitals with booted feet; he bled from his nose and ears,
lost consciousness and was so badly injured he could hardly walk; later he
was further assaulted in a cell, kept stripped naked, shackled and beaten by
more policemen, a former MDC member and war veterans. Khetani Sibanda was
detained, assaulted and threatened by men who later revealed themselves as
CIO. He was forced to learn and repeat a story implicating other MDC members
in Cain Nkala's murder. At one point he was taken to Ncema dam near
Esigodoni and told that if he didn't co-operate he would be fed to the
crocodiles; he was deprived of food, water and sleep. Sazini Mpofu was
assaulted by being kicked and punched; he was driven around Bulawayo for
many hours while being assaulted in and out of the vehicle, and at the
police station.

None of the torturers have been prosecuted, nor any of the police officers
disciplined.

Shumba and Sikhala (2003)
January 2003 saw the torture of an MDC MP, Job Sikhala, and his lawyer,
Gabriel Shumba. This received wide international condemnation as it was seen
as a direct attack both on the parliamentary opposition as well as on civil
society, Gabriel Shumba being a human rights defender working for the
leading human rights coalition in the country, the Zimbabwe Human Rights NGO
Forum. Both men and three others were arrested while Gabriel Shumba was
advising his client, Job Sikhala, who had faced constant police harassment
since the June 2000 parliamentary elections. Over a three-day period Job
Sikhala and Gabriel Shumba were separately moved from place to place,
deprived of all food and severely tortured.

Gabriel Shumba was tortured by a group of about 15 men. He was kicked,
slapped about his head, and tightly hooded so that breathing was extremely
difficult; he was threatened with dogs and taken to what was believed to be
CIO underground torture chambers at Goromonzi where he could hear the sounds
of screaming in another room, thrown against a wall, stripped naked and
shackled; he was then assaulted all over his naked body with fists, booted
feet and thick planks and hung upside down and beaten on the bare soles of
his feet with wooden, rubber and metal truncheons; he was given severe
electric shocks to the feet, ears, tongue and genitals, and threatened with
acid, crucifixion and needles thrust into the urethra; he was covered in
some unknown chemical substance; having lost control of his bodily functions
he was forced to drink his own urine and lick up his blood and vomit; his
torturers urinated on him, took photographs of him being tortured, and
threatened him with death. Job Sikhala was also said to have been severely
tortured. The men were apparently forced to confess to false allegations,
including the burning of a ZANU-PF vehicle and a plot to violently overthrow
the government. Medical examinations after their release were consistent
with their allegations, and when they appeared in court the evidence of
torture was so clear that all charges were dropped immediately. Gabriel
Shumba later fled to South Africa.(100)

None of the allegations of torture have been investigated. Gabriel Shumba's
case is pending before the African Commission.

Sibanda, Luphahla, Botomani and Gama (2004)
In September 2004, four Bulawayo youths were kidnapped and allegedly
severely tortured. The youngsters - Mandlenkosi Sibanda, Mandlenkosi
Luphahla, Tisunge Botomani and Nkosilathi Gama - were all members of
ZANU-PF, and were apparently tortured at Magnet House, the headquarters of
the CIO in Matabeleland. They were said to have been kidnapped from their
homes in the high-density suburb of Emganwini and tortured for over four
hours. They were apparently beaten all over their bodies with clubs, belts
and electric cables, sustaining broken bones and serious injuries to their
genitals.(101)

The youths named the CIO agents and said that the head of the Bulawayo CIO,
Innocent Chibaya, had witnessed the torture. As a result of the publicity,
Vice President Msika was reported to have ordered an investigation into
Innocent Chibaya as well as the police chief in Bulawayo, Charles
Mufandaidze. Later that month a newspaper reported that two of the CIO
officers said to be responsible, Sylvester Chibango and Medicine Furusa, had
been charged and convicted of common assault and fined the equivalent of
US$8 each.

Chiyangwa, Karidza, Matambanadzo, Dzvairo, and Marchi (2004-2005)
State agents kidnapped ZANU-PF MP Phillip Chiyangwa on 15 December 2004 as
part of an alleged spy-ring selling state secrets to South Africa. Others
arrested around the same time were banker Tendai Matambanadzo, ZANU-PF
diplomat Godfrey Dzvairo, ZANU-PF functionary Itai Marchi, and ZANU-PF's
deputy-director for security Kenny Karidza.

Tendai Matambanadzo, Godfrey Dzvairo and Itai Marchi were jailed for
breaching the Official Secrets Act after a secret trial in which they tried
to withdraw guilty pleas made earlier. Their allegations that confessions
had been made under duress were rejected. Godfrey Dzvairo was sentenced to
six years' imprisonment, and Itai Marchi and Tendai Matambanadzo to five
years each.

Phillip Chiyangwa was released in late February 2005. Most court proceedings
were shrouded in secrecy but serious torture allegations emerged. Phillip
Chiyangwa testified that he was kidnapped in the car park of a Harare hotel,
a black hood was thrown over his head, and he was driven by a long and
circuitous route to an underground location where he was detained in
solitary confinement in a completely dark vermin-infested cell for two
weeks, with no toilet facilities. Here he was interrogated for hours on end,
threatened and intimidated until he had a mild stroke, but was denied
medical attention. His condition was later confirmed by a doctor who
recommended hospitalization, but this was refused. He was denied legal
representation until brought to court on 30 December 2004.

Kenny Karidza, whose trial for spying began on 27 January 2005, was not
brought to court sooner as there were reports that he had been so badly
tortured that the CIO did not want him seen in public until he had somewhat
recovered. More than a month after his arrest, sources said he was still
unable to walk or talk properly, his legs were badly swollen and he was
unable to eat. It appears that the case has developed into a trial-
within-a-trial, with the accused objecting to the admissibility of evidence
proffered against him.(102) The trial has not yet finished.

Conclusion
The government continues to be responsible for widespread and systematic
human rights violations, including torture, and there is little sign of
either a decline in violations or of any serious action to investigate
allegations and prosecute offenders. There have been numerous reports of
victims who have tried to report an abuse to the police, only to be detained
and further abused by the police themselves. Very occasionally in a
"non-political" case torturers are properly prosecuted, but this is very
much the exception rather than the norm.(103)

The police are now as much to blame for the systematic use of torture as
other law enforcement agencies. During March 2003, in the lead-up to two
parliamentary by-elections in Harare, as well as after a two-day peaceful
general strike in protest against the government, a fresh wave of ZANU-PF
violence was unleashed, resulting in hundreds of civilians being beaten and
tortured. The police were heavily involved in these abuses. The CIO, army,
youth militias, so-called war veterans and ZANU-PF groups have all
participated in widespread and systematic gross human rights violations.

A recent analysis shows that in the period mid-2001 to the end of 2005 there
were 15,523 reported human rights violations, with torture constituting the
largest category - over 18 per cent of the total.(104)

The jurisprudence of the African Commission is clear: the Article 5
prohibition against torture is premised on "the dignity inherent in a human
being."(105) There is overwhelming evidence that the current Zimbabwean
government has repeatedly trampled on that dignity through the widespread
use of torture, the failure to prevent torture and the refusal to
investigate and prosecute those responsible and to afford proper reparations
to the victims of torture.

There is no realistic likelihood of the perpetrators investigating and
prosecuting themselves. In this context thousands of victims have been left
without any effective remedy or reparation for what they have suffered, and
the culture of impunity persists. Unless consistent, widespread and
effective external pressure is placed on the government, the human rights
situation will continue to deteriorate.

The government's state party report dated 20 October 2006 has a section on
Article 5 (with Article 4) at pages xvii-xxi. However, the word "torture" in
the substantive text appears for the first time on page xx: " Zimbabwe is
facing challenges in the area of torture, as allegations of torture by law
enforcement agencies have been raised by sections of civil society
organisations as well as opposition political parties." The next paragraph
deals with domestic violence, before returning to torture with the following
paragraph: "Zimbabwe is in the process of ratifying the Convention Against
Torture and its optional protocol and is working with the office of the
special rapporteur on torture with a view to inviting the rapporteur to
assist law enforcement officers to appreciate the implications of torture."
The rest of the section reverts to the issue of domestic violence.

With these two sole paragraphs referring to torture the government has
sought to side-step not only the facts of widespread and systematic torture
but also the government's responsibilities and obligations under the Charter
with respect to the practice. It has not even attempted to deal with matters
of court record, the testimony of torture victims presented to the African
Commission's 2002 Fact-Finding mission, and the large number of other
credible reports. This transparent failure exposes a government seeking to
evade liability and culpability for these international crimes.

About The Redress Trust (REDRESS)

Seeking reparation for torture survivors

REDRESS is a human rights organization working internationally to obtain
justice for survivors of torture and related crimes and to end impunity for
governments and individuals who perpetrate it, and to develop and ensure
compliance with international standards. The organization provides
specialized legal advice to individuals and communities in securing their
rights, conducts advocacy with governments, parliaments, international
organizations and the media, and works in partnership with like-minded
organizations around the world.

Chapter 4: Violations of the rights to freedom of association and assembly

Prepared by Amnesty International
The rights to freedom of association and assembly are guaranteed under
Articles 10 and 11 of the African Charter on Human and Peoples' Rights.

Article 10: Freedom of association
1. Every individual shall have the right to free association provided that
he abides by the law.
2. Subject to the obligation of solidarity provided for in 29, no one may be
compelled to join an association.

Article 11: Freedom of assembly
Every individual shall have the right to assemble freely with others. The
exercise of this right shall be subject only to necessary restrictions
provided for by law in particular those enacted in the interest of national
security, the safety, health, ethics and rights and freedoms of others.

The rights to freedom of association and assembly are also guaranteed under
Section 21 of the Constitution of Zimbabwe and in the International Covenant
on Civil and Political Rights (ICCPR), to which Zimbabwe is a party.
However, these basic freedoms have been regularly violated in Zimbabwe over
the past 10 years.

The rights to freedom of association and assembly are most commonly violated
in order to prevent members of the public, human rights and civil society
organizations and political opposition parties from peacefully voicing
criticism of the government and its policies. From 2000 onwards, violations
of the rights to freedom of association and assembly increased markedly,
frequently accompanied by other violations including arbitrary arrests and
detentions, ill-treatment and torture.

Until 2000 government repression of the rights to freedom of assembly and
association was mainly aimed at civil society groups and trade unions
critical of government policy. However, following the emergence of the MDC,
the denial of these rights increasingly targeted the political opposition.

The rights to freedom of assembly and association have been violated by a
range of means. Before 2002 excessive use of force by police officers and
the army and threats to shoot protestors - sometimes made by senior
government officials - created a climate of fear in which individuals could
not freely exercise their rights. After 2002, in addition to excessive use
of force, the state also resorted to using repressive laws to curtail
freedom of assembly and association.

Legislation
In 2002 the government introduced a law to curtail the rights to freedom of
association and assembly, drawing on colonial-era legislation to do so. The
Law and Order Maintenance Act (LOMA) was enacted in 1955 by the Rhodesian
authorities to severely restrict freedom of expression, assembly and
movement. It remained in place after independence. However, over the years,
the Supreme Court had removed several unconstitutional clauses.

In 2002 LOMA was replaced by the Public Order and Security Act (POSA) which
was fast-tracked through Parliament in December 2001, apparently to enable
the government to hamper the campaigning activities of the newly emerged MDC
in the run-up to the March 2002 presidential elections. In January 2002, the
Special Representative of the UN Secretary General on Human Rights
Defenders, Hina Jilani, sent an urgent appeal to the Zimbabwean authorities
regarding the passage through Parliament of the POSA in relation to concerns
that the Bill would restrict the fundamental rights to freedom of
expression, association and assembly.(106) Following a Fact-Finding Mission
to Zimbabwe in 2002 the African Commission, in its resolution on the human
rights situation in Zimbabwe, adopted in Banjul, the Gambia, in December
2005, called on the government of Zimbabwe "to respect the fundamental
rights and freedoms of expression, association and assembly by repealing or
amending repressive legislation, such as the Access to Information and
Protection of Privacy Act, the Broadcasting Services Act and the Public
Order and Security Act."

Provisions of the Public Order and Security Act
Sections 23-31 of the POSA regulate the organization and conduct of public
gatherings and provide the police with extensive powers to control them. For
example, Section 24 requires that police are given four days' advance notice
of public gatherings or meetings. The POSA defines a public meeting as "any
meeting in a public place or meeting which the public or any section of the
public is permitted to attend, whether on payment or otherwise." The POSA
imposes a highly restrictive definition of a public gathering - applying it
to any meeting of two or more people. Sections 25 and 26 grant the police
wide powers to break up and even prevent public gatherings altogether if
they are deemed to endanger public order. Section 27 of the POSA allows
police to ban demonstrations for a period of up to a month.

In practice, police have interpreted these provisions as a requirement for
police permission to organize public gatherings or meetings and have applied
the law selectively to refuse the political opposition and civil society
groups permission to hold public gatherings and meetings. In some cases
permission has been given initially but then withdrawn at the last minute
with police repeatedly citing lack of manpower to monitor and control the
meetings as a reason. Furthermore, in practice the police have used
arbitrary criteria to distinguish between "private" and "public" gatherings,
and have used the POSA to arrest people for meeting in their own homes or
places of business.

Since its enactment the police have used the POSA to arbitrarily arrest
hundreds of Zimbabweans, mainly opposition supporters and civil society
activists. The penalties upon conviction for failing to comply with police
orders are fines or imprisonment of up to six months under Section 25(107)
or a year under Section 26;(108) or both fine and imprisonment.

Although the POSA has provided a pretext for widespread violation of the
rights to freedom of association and assembly, to date no-one has been
convicted under the Act. Many people arrested under the POSA for allegedly
participating in "illegal" meetings or demonstrations have had the charges
against them dropped or dismissed in court due to lack of evidence (see
below).

The Miscellaneous Offences Act
Many people have been arrested under the POSA only to have the charges
changed to "conduct likely to cause a breach of the peace", an offence under
the Miscellaneous Offences Act (MOA). In effect, the police have used the
MOA to regularize arbitrary arrests.

When people are arrested they are frequently offered the option of paying a
fine under the MOA - effectively an admission of guilt - in order to be
released from custody. Police have reportedly told detainees that if they do
not pay a fine then they would be detained for 48 hours or more and could
face more serious charges. Squalid conditions in police holding cells and
fear of harassment and ill-treatment force many detainees to pay fines for
offences they have not committed. This practice, which means police avoid a
judicial review of the legal grounds for the arrest, constitutes an abuse of
police power and establishes an environment in which the practice of
arbitrary arrest can flourish.

Trade unions
Trade unionists have long been among the main targets of government attempts
to repress freedom of association and assembly. In the second half of the
1990s labour unions became increasingly critical of government policies and
the declining standard of living in Zimbabwe.

Since 2000, it has become more and more difficult for workers in Zimbabwe to
carry out legitimate organization and representation activities without
police interference. This is largely due to the government's belief that
labour activists from the Zimbabwe Congress of Trade Unions (ZCTU) and other
unions have been working with the MDC to mobilize the electorate to vote
ZANU-PF out of power. In-house meetings of the ZCTU, such as General Council
meetings, have been monitored and sometimes disrupted by the police.

ZCTU officials and members have been subject to arbitrary arrest, torture
and excessive use of force by the police. For example, on 13 September 2006,
15 members of the ZCTU, including President Lovemore Matombo, First
Vice-President Lucia Matibenga and Secretary General Wellington Chibebe,
were arrested in Harare after attempting to engage in a peaceful
demonstration. They were severely assaulted during arrest. They were
detained at Matapi police station and tortured. Doctors confirmed that the
ZCTU activists were beaten on the soles of the feet - a torture method
called falanga which leaves many victims with life-long problems with
walking.

On the same day, 13 September 2006, in the farming town of Chegutu, 11
members of a ZCTU affiliate union, the General Agricultural and Plantations
Workers' Union (GAPWUZ), were arrested after handing over a petition at a
government office. They were taken to Chegutu Police Station and reportedly
tortured while in police custody over a three-day period. They were made to
lie on the stomach and were beaten on the soles of the feet while held in
leg irons and handcuffs. The 11 trade unionists were later charged under
POSA and granted bail.(109)

The previous day, 12 September 2006, police had arrested ZCTU leaders across
the country in an apparent pre-emptive action to forestall the ZCTU protest.

On 8 November 2005 more than 100 people were arrested in Harare when the
ZCTU tried to hold a peaceful demonstration protesting against the grave
economic situation in Zimbabwe. Lawyers were initially denied access to the
detainees, who were moved by police from one police station to another in an
apparent attempt to prevent contact with lawyers. Neither the detainees nor
their lawyers were informed of the charges against them until the second day
of their detention, when police said they would be charged under the POSA.
However, the Attorney General refused to prosecute and all the detainees
were released on 11 November.(110)

At least 100 trade union and human rights activists were arrested throughout
the country on 18 November 2003 in order to prevent them from staging a
peaceful demonstration against the economic crisis and human rights abuses
in Zimbabwe. In Harare approximately 50 activists were arrested including
ZCTU President Lovemore Matombo and Secretary General Wellington Chibebe.
Those arrested in Harare remained in custody until 20 November 2003. On the
afternoon of 20 November 2003 they were taken to the Magistrate's court and
charged under the POSA. The following day the charges against all were
dropped, reportedly for lack of evidence.

On 8 October 2003 at least 200 trade union activists were arrested in
various parts of Zimbabwe ahead of planned demonstrations against high taxes
and inflation. While some were arrested under the POSA, most of the union
activists were charged under Section 7(b) of the MOA, and made to pay fines.
Those arrested included ZCTU President Lovemore Matombo and Secretary
General Wellington Chibebe, as well as many other members of the ZCTU's
national executive.

The political opposition
The focus of much of the government's clampdown on freedom of association
and assembly has been the MDC. In the run-up to the 2000 parliamentary
elections, political meetings throughout the country were violently
disrupted. People who were unable to produce a ZANU-PF party membership card
were beaten. Conversely when prominent ruling party politicians were holding
rallies, people were forced to participate. Many identified members of the
MDC were made to publicly renounce their membership and had their membership
cards and T-shirts burnt. These sessions were often televised. People who
refused to cooperate were in many instances beaten by war veterans and youth
militia.(111) As mentioned above, since 2002 the government has used
provisions of the POSA to target the MDC and hamper its ability to campaign
and mobilize support.

On 21 February 2007 police announced a three-month ban on rallies and
demonstrations in Harare South District and Harare's suburb of Mbare. The
police cited Section 27 of the POSA. However, the three-month period appears
to be in breach of the POSA, which only allows bans "for a specified period
not exceeding one month." Bans for up to a month were imposed in
Chitungwiza, Harare Central District and Harare Suburban District.

Following the police bans, the Save Zimbabwe Campaign, a coalition of church
and civil society organizations, organized a prayer meeting in Harare's
suburb of Highfield on 11 March 2007. Police clamped down on the peaceful
gathering, arresting about 50 activists. The activists, including MDC
leaders, were severely beaten during arrest and later tortured while in
police custody at Machipisa police station. Several suffered multiple
fractures and soft tissue injuries and were hospitalized. Police shot dead
Gift Tandare, the youth chairperson of the National Constitutional Assembly
(NCA) local structure in a Harare suburb.

On 18 March 2007, MDC Member of Parliament Nelson Chamisa was attacked by
eight men believed to be state security personnel as he approached the
departure lounge at Harare International Airport. He was hit with metal bars
and suffered a broken skull. No one has been arrested.

On 27 March 2007, Last Maengahama, deputy secretary for local government of
the MDC faction led by Morgan Tsvangirai, was abducted outside Borrowdale
Shopping Centre in Harare by people in plain clothes who were believed to be
security agents. Last Maengahama was returning from a memorial service for
Gift Tandare, the activist shot dead by police in Harare on 11 March 2007.
Last Maengahama was later deposited by his abductors in Mutorashanga, some
100 km from Harare. He had been severely beaten. No one was arrested for
this attack.

Several MDC leaders and activists were arrested on 17 March 2007, including
Arthur Mutambara, a leader of one of the MDC factions, when they tried to
leave for South Africa.

At the time of compiling this report, 13 MDC activists, including MP Paul
Madzore, were in detention, accused of attacking police stations and other
installations. They were severely beaten by police while in custody, the
beatings amount to torture, and were repeatedly denied bail.

On 23 February 2007 police reportedly told the United People's Party (UPP)
that its inter-district meeting to be held the following day had been
cancelled. The UPP had earlier been cleared by the police to hold the
meeting, a requirement under the POSA. The incident took place around a time
when the police were arbitrarily stopping any public activities by the
political opposition and civil society groups.

On 23 February 2007 police in Bulawayo stopped a planned rally by the Morgan
Tsvangirai-led faction of the MDC. Police arrived heavily armed and
supported by anti-riot water cannon vehicles and barred MDC leaders and
supporters from entering the venue.

On 17 February 2007 riot police stopped a planned MDC rally in Harare's
suburb of Highfields despite a court order issued by the High Court barring
police from disrupting the rally. Several people were assaulted by police
and sustained serious injuries. Police later imposed a three-month ban on
all demonstrations in parts of the city. The ban was apparently illegal as
the period was above the one month provided for under the POSA. Following
the disturbances in Highfields, police arrested Tendayi Biti, the Secretary
General of the Morgan Tsvangirai faction of the MDC, as well as other
leaders and accused them of inciting violence.

Human rights defenders
Human rights defenders have played a vital role in exposing the human rights
violations that have taken place in Zimbabwe, particularly over the last
five years. They have also been instrumental in organizing peaceful public
displays of protest about human rights issues. In response, the government,
in an apparent effort to conceal human rights violations and prevent public
criticism of its actions, has become increasingly intolerant of the work of
human rights defenders and is actively seeking to silence them, including by
denying their right to peaceful association and assembly.

On 17 September 2003, the police used the POSA to arrest members of the
National Constitutional Assembly (NCA) who were holding a peaceful
demonstration to protest against the forced closure of The Daily News and
The Daily News on Sunday. On more than three occasions in 2004, peaceful
demonstrations arranged by the NCA resulted in hundreds of its members being
arrested, beaten and harassed. Other NCA members have been detained.

In June 2002, approximately 80 people were arrested and charged with
unlawful assembly under the POSA, during a rally held to commemorate the
25th anniversary of South Africa Youth Day. A Supreme Court application
challenging the constitutionality of the POSA was filed, but the case was
adjourned to January 2003, effectively undermining any practical exercise of
the right to freedom of assembly in this case.

Case study: Women of Zimbabwe Arise
Since February 2003 activists from WOZA have repeatedly been arrested by the
police while taking part in peaceful demonstrations to protest against the
worsening social, economic and human rights situation in the country. The
treatment of WOZA illustrates the government's increasing repression of
peaceful public demonstrations expressing criticism of government policies.
It also highlights the way in which the law, particularly the combination of
the POSA and MOA, is used to allow arbitrary arrests and detentions and to
facilitate a range of other human rights violations by the police.

The cases below represent some of the more than 20 occasions when WOZA
members have been arrested over the past four years for engaging in peaceful
demonstrations and marches.

Arrested for demonstrating again