Zimbabwe's farm invasions ruled a "Crime against Humanity"

JAG LEGAL COMMUNIQUE - ZIMBABWE'S FARM INVASIONS RULED A
"CRIME AGAINST HUMANITY" - MR JUSTICE OUSELEY, sitting
as a senior judge of the Upper Tribunal (Immigration and Asylum Chamber)
Field House, UK.

The below judgement is essential reading for all Zimbabwe farmers and
every Zimbabwean, with particular attention to Clause 35 onwards.

It has been the JAG Trust's strong contention since the outset of
the brutal farm invasions (1997) and the illegal land grab in Zimbabwe
(2000 onwards) that what Farmers and Farm Workers have experienced, in
the systematic, wide spread and ongoing, horrendous onslaught that has
involved the State inspired and sponsored, total breakdown of the rule of
law and the subsequent destruction of Zimbabwe's Commercial
Agricultural Sector and Economy; constitutes a CRIME AGAINST HUMANITY.

That the effect of this and subsequent rulings of CRIMES AGAINST HUMANITY
on Zimbabwe Commercial Farms will be profound in our endeavours to
achieve justice and reparation for our constituency and in achieving an
inclusive and  just solution for the future of Zimbabwe - is an
understatement.  It defies belief that the attack on commercial farmers
and farm workers is still rampant and ongoing....  there you have it in
black and white, from a totally unexpected juristic arena.

THE JAG TEAM

===========================================

Upper Tribunal

(Immigration and Asylum Chamber)

SK (Article 1F(a) - exclusion) Zimbabwe [2010] UKUT 327 (IAC)

THE IMMIGRATION ACTS

Heard at  Field House

On 11 May 2010

Before

Mr Justice Ouseley

Senior Immigration Judge Eshun

Between

SK

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Pickup, instructed by Howe & Co

For the Respondent:  Mr Ouseley, Home Office Presenting Officer

1. Article 7.1 of the Statute of the International Criminal Courts, the
Rome Statute, is usually regarded as providing the best working
definition of a crime against humanity for the purposes of Article 1F(a)
of the Refugee Convention.

2. Where the act or crime does not involve the specifically listed forms
of acts or crimes, in order to consider that a crime against humanity had
occurred, the Tribunal must consider if the acts participated in by the
appellant were of a "similar character" to those specified in
Article 7.1(a) to (j) of the Rome Statute. In so doing, the Tribunal must
consider the specific purpose of the crime, its intent and effect, the
participation of an appellant in the crime and if needs be whether the
appellant made a substantial contribution to the crime.

DETERMINATION AND REASONS

Introduction

1.         The appellant is a citizen of Zimbabwe, born in 1971, widowed
and with three children in Zimbabwe.  She arrived in the UK in 2002 but
did not apply for asylum until 7 May 2008.  This was refused in September
2008 and she was then to be removed to Zimbabwe as an illegal entrant.
She appealed against that decision of the SSHD on the grounds that her
removal would infringe the Refugee Convention and her ECHR rights under
Articles 2 and 3.

2.         Her appeal was allowed on the grounds that removal would
breach Article 3.  Her asylum appeal was dismissed on the ground that she
was excluded from the protection of the Refugee Convention under Article
1F, and from humanitarian protection. This was because of her
participation in crimes against humanity through her involvement in the
violent invasion of land owned by two white farmers and the violent
expulsion of their black farm workers from their houses and jobs on those
farms.

3.         Immigration Judge Buchanan, in a carefully considered
determination, rejected her claim that she had participated through
duress or obedience to superior orders.

4.         Reconsideration was ordered by Mitting J in June 2009.  He
concluded that the Immigration Judge's decision on the
appellant's personal participation in the activity of the group,
and on coercion were unimpeachable.  He also thought it beyond doubt that
the Zimbabwe regime's attacks on white farmers and their workers
constituted an attack directed against any civilian population within
Article 7.1 of the Statute of the International Criminal Court, the Rome
Statute, which is usually regarded as providing the best working
definition of a crime against humanity for the purpose of Article 1F(a)
of the Refugee Convention.  Such attacks must also involve one or more of
the listed forms of violence for the attacks to be a crime against
humanity.  Mitting J thought that the specifically listed forms of
violence were not involved and the IJ could only conclude that a crime
against humanity had occurred if the acts in which the appellant
participated were "of a similar character" to those acts
specified in Article 7.1(a)-(j) of the Rome Statute.  Mitting J thought
it arguable that the IJ had failed to ask himself whether the acts in
which the appellant participated were of such a nature.  The
reconsideration ordered by Mitting J was confined to that issue.

The nature of the reconsideration

5.         The AIT decided that there was indeed an error of law, as
Mitting J had said was arguable.  The IJ had not considered a relevant
question.  The AIT added that the Tribunal might need to hear further
evidence about what she did during the farm invasions, although the
existing determination was full and thorough.  The appellant accordingly
was to attend to deal, if required, with the acts she participated in
during the farm invasions.  The remainder of the IJ's findings were
to stand.

6.         The IJ had considered evidence in the appellant's first
witness statement of 21 May 2008 and in her asylum interview which
contained, or at least appeared strongly to contain, admissions that
during her participation in two farm invasions, she had actually killed
people.  He concluded however, having heard her evidence about what she
had done and why she had said what she had said, that she had not
actually killed anyone.  He found the rest of what she said had happened
in Zimbabwe to be "comprehensive, detailed and truthful".  He
did not accept her as an entirely truthful witness however because of
what she said about how she had obtained a passport illegally from a
white person working in the Zimbabwe Embassy.

7.         We decided that we needed to hear further evidence from the
appellant.  In the light of the determination and of her statements, we
concluded that further detail was required as to what she had done, how
serious the harm she had inflicted had been and with what intent she had
inflicted it.  The evidence already given was insufficiently detailed and
focussed on those issues.  We heard such evidence bearing in mind, as we
emphasised to the parties, that we were not going behind the finding that
she had killed no one.  This did not preclude us hearing questions of her
as to why she had said or had appeared to say, on two occasions, that she
had in fact killed people, for what light that might cast on her
credibility on the detail.

8.         We had to make up our own minds as to the detail of what she
had done.  The previous findings did not require us to accept that the
detail of what she might say to us was inevitably true or reliable.  We
should not however overturn or go behind what the IJ had found on the
evidence he had heard.

Crimes against humanity

9.         Article 1F(a) of the Refugee Convention excludes from
recognition as a refugee someone in respect of whom "there are
serious reasons for considering that (a) he has committed a crime against
peace, a war crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision in respect of such
crimes".  Article 12(2)(a) of the Qualification Directive
(2004/83/EC) is to the same effect.  This became part of domestic law
through the Refugee or Persons in Need of International Protection
(Qualification) Regulations 2006 (SI 2006/2525).

10.       The starting point for considering who is excluded by those
provisions is the Rome Statue of the International Criminal Court; see R
(JS (Sri Lanka)) v SSHD [2010] UKSC 15. This case concerns crimes against
humanity. Article 7 of the ICC Statute provides:

"1.       For the purpose of this Statute "crime against
humanity" means any of the following acts when committed as part of
a widespread  systematic attack directed against any civilian population,
with knowledge of the attack:

Murder;

Extermination;

Enslavement;

Deportation or forcible transfer of population;

Imprisonment or other severe deprivation of physical liberty in violation
of fundamental rules of international law;

Torture;

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable
gravity;

Persecution against any identifiable group or collectivity on political,
radical, national, ethnic, cultural, religious, gender, other grounds
that are universally recognized as impermissible under international law,
in connection with any act referred to in this paragraph or any crime
within the jurisdiction of the Court;

Enforced disappearance of persons;

The crime of apartheid;

Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.

11.       The terms of the order for reconsideration required the
Tribunal to focus exclusively on subparagraph (k), "as the only
arguably relevant subparagraph", as Mitting J put it. Mitting J
said that it was not self-evident that the acts in which the appellant
had participated were of that character. We have confined ourselves to
that subparagraph, although not necessarily agreeing that none of the
other subparagraphs was arguably applicable to the forced removal of
black workers from white owned farms for imputed political motives of
support for the opposition to Mugabe.  Of course, the reference to
"other inhumane acts of a similar character" means that there
may be a strong kinship between, say, persecutory acts on racial or
political grounds or forcible transfer of population, and acts which fall
within (k); and acts are not excluded from consideration under (k)
because they might fit into one or more of the other subparagraphs. It
was agreed that the proper interpretation of subparagraph (k) did not
require some artificial compartmentalisation of the acts, followed by a
narrow view of them.

12.       Ms Pickup for the appellant did not take issue with the general
point made by Mitting J that "the Zimbabwe regime's attacks
on white farmers and their workers fall within the definition of
"attack directed against any civilian population".  She
contended that the two farm invasions in which the appellant took part
were not within subparagraph (k) on the evidence here. Her principal
argument was however directed to what the appellant herself had intended
and done during those attacks; and those she contended fell outside that
subparagraph.

13.       JS (Sri Lanka) also dealt with what had to be shown in relation
to individual participation in crimes against humanity for that
individual to be excluded from the Refugee Convention.  We start however
with the ICC Statute, Article 25 of which provides for individual
criminal responsibility where a person:

"(a)      Commits [a crime against humanity] whether as an
individual, jointly with another or through another person, regardless of
whether that other person is criminally responsible;

Orders, solicits or induces the commission of such a crime which in fact
occurs or is attempted:

For the purpose of facilitating the commission of such a crime, aids,
abets or otherwise assists in its commission or its attempted commission,
including providing the means for its commission;

In any other way contributes to the commission or attempted commission of
such a crime by a group of persons acting with a common purpose.  Such
contribution shall be intentional and shall either:

Be made with the aim of furthering the criminal activity or criminal
purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court; or

Be made in the knowledge of the intention of the group to commit the
crime;

14.       Article 30 deals with the mental element of the crime. Guilt
requires both intent and knowledge which are elaborated as follows:

            "2.       For the purposes of this article, a person
has intent where:

In relation to conduct, that person means to engage in the conduct;

In relation to a consequence, that person means to cause that consequence
or is aware that it will occur in the ordinary course of events.

  3.       For the purpose of this article, "knowledge" means
awareness          that a circumstance exists or a consequence will occur
in the             ordinary course of events.  "Know" and
"knowingly" shall be          construed accordingly."

15.       Ms Pickup submitted that an individual could not be held
responsible for a crime unless he had made a "substantial
contribution" to it, even if that person had been a participant in
a joint enterprise to commit it.  Mr Ouseley for the SSHD submitted that
if there was participation in a joint enterprise as understood in UK
domestic law, there was no requirement for the degree of participation in
it to be "substantial". The concept of responsibility for a
crime on the basis of "substantial contribution" was not a
limit on joint enterprise responsibility, but was relevant because
responsibility in international law was wider than domestic joint
enterprise liability; international responsibility extended not just to
those who were liable as participants in a joint enterprise, but also to
those who had knowingly made a "substantial contribution" to
the crime.

16.       Paragraph 18 of the UNHCR Guidelines, which deals with this
exclusion provision, reads:

"In general individual responsibility flows from the person
having committed, or made a substantial contribution to the commission of
the criminal act, in the knowledge that his or her act or omission would
facilitate the criminal conduct.  The individual need not physically have
committed the criminal act in question.  Instigating, aiding and abetting
and participating in a joint criminal enterprise can suffice."

17.      Lord Brown approved that approach in JS, in paragraphs 35 and
38,           saying:

"Put simply, I would hold an accused disqualified under article 1F
if there are serious reasons for considering him voluntarily to have
contributed in a significant way to the organisation's ability to
pursue its purpose of committing war crimes, aware that his assistance
will in fact further that purpose."

18.       Lord Hope adopted what Lord Brown had said above, but showed
that the reference to "significant contribution" as used by
the German Administrative Court contrasted those who had committed the
crime personally and those who were still personally responsible because
they had "made a substantial contribution to its commission."
Lord Kerr, in paragraphs 57-58, cites the use of the phrase in the
context of someone who "lends a significant contribution to the
crimes involved [in the joint enterprise]" which might or might not
suggest that a significant contribution was required from an actual
participant in the joint enterprise. But he emphasised that the real
point was that what was required was more than mere passivity or mere
continued involvement in an organisation after acquiring knowledge of its
crimes against humanity.

19.       The distinction drawn by Mr Ouseley is supported by paragraph
18 of the UNHCR Guidelines, and the structure of Article 25 itself, where
contribution in a way other than those specified, which cover joint
enterprise, leads to criminal responsibility.  There is no requirement
for a particular degree of participation in domestic law before that
participation is a criminal act.  But the requirement in domestic law for
a shared guilty intention, taking the issue at a simple level, would act
as an indirect control on the degree of participation which would
actually lead to criminal responsibility in a joint enterprise. JS
decided that criminal responsibility in international law went beyond
domestic joint enterprise. Much of what it discussed and decided about
"substantial contribution" relates to the basis for that
wider criminal responsibility, rather than to what is required for
international responsibility on a joint enterprise basis.  That phrase is
used largely in the context of joint enterprise being too narrow a
definition of that liability.

20.       The debate, so far as this case is concerned, is not advanced
by consideration of what is required beyond mere membership of a
terrorist organisation, or the role of the military foot soldier in an
organisation which has both military and terrorist purposes, or the
person who raises money for an organisation, which at some later stage
carries out a crime against humanity.

21.       We think that the answer is this: personal responsibility can
arise through personal participation in the crime, which includes
participation on a joint enterprise basis. But personal responsibility is
not limited to that and also covers those who have made a
"substantial contribution" to the commission of the crime,
with the requisite knowledge and intent. There is no requirement as such
that the individual's participation on a joint enterprise be itself
a "substantial contribution" to the crime, although the
combination of participation and intent will usually demonstrate that
such a contribution was made. The need to keep a strict eye on the
operation of the exclusion clause may mean that there are some whose
participation might suffice in law for responsibility on a joint
enterprise basis, but which could properly be described as trivial or
insubstantial. It may well be that such a person would fall outside the
scope of the exclusion clause, rather in the way that a judge might ask
whether it really was in the public interest to prosecute such a person.
Of course mere passivity would not suffice for joint responsibility
anyway. That apart, there is in our judgment no further requirement in
international law that those who participated in a joint enterprise crime
against humanity should also have played a substantial part in it.  It is
also clear that at least a purpose of that requirement for a
"substantial contribution", which is very relevant to
liability through acts where the involvement is more indirectly linked to
the violence or force which underpins all these crimes, is to prevent
mere passivity or membership of an organisation with knowledge
constituting such crimes. That gives a clear pointer to the conclusion
that it is not intended to exclude all lesser participants from the scope
of international criminal responsibility leaving only the more serious
criminals to face trial and punishment.

22.       This case is concerned with the responsibility of someone who,
on her own evidence, used violence herself on black farm workers to help
to drive them from their homes during two farm invasions, which were
intended to remove those workers as well as the white farmer, so that his
land could be taken by others, usually regime acolytes or its marauding
supporters. She was not a ring leader, nor one of the hard core of the
Zanu-PF youth militia, but she was one of the large group of militia
members, one of the mob, who were taken to the farms to drive out the
workers, burn their homes and ensure that they were too intimidated  ever
to return. Of course, we accept that it is necessary to look at what she
personally actually did, and with what intent. But we reject what seemed
to be Ms Pickup's suggestion that her personal acts and intent are
the end of the matter, as if there were no context to what she did, as if
she were not doing what she did as part of an invading mob which had a
clear and violent purpose. This has to be examined to judge whether she
was part of this joint enterprise.

23.       We also reject Ms Pickup's submission that the question
of the intent with which the appellant committed the acts of violence is
to be answered by reference to her motivation in committing those acts,
namely out of fear and to seem to be a participant in order to protect
herself, when in reality she did not want to see these workers driven
from their homes. We reject this not just because her plea of duress was
rejected by the Immigration Judge, but because the Rome Statute deals
with intent not motivation, as is the commonplace in the criminal law.
Ms Pickup's reference to what the ITFY Appeals Chamber said at
paragraph 117 in Kordic, is a misreading of it; the reference to
"motivated by intent" is more to emphasise the need for
intent than to introduce the need for a separate examination of
motivation, as we think the rest of that judgment on intent puts beyond
doubt.

The evidence

24.       The most convenient starting place is with the evidence as
recorded by the Immigration Judge. The appellant had explained how her
uncle had taken her into his family after her parents had died; he was an
ardent Zanu-PF supporter. In 2001, he had made her join the Zanu-PF youth
brigade or militia in 2001.  She described the sexual abuse to which she
was subjected, and other activities of the militia to which she objected.
This included forcing villagers to attend rallies. Those are not the
basis of the SSHD's case that she should be excluded from the
Refugee Convention.  His case is based on the two farm invasions.

25.       Her evidence about the first one was this:

"16.     In April and October 2002 appellant was involved in two
farm invasions which she had explained in detail and which involved her
being part of a large group of Zanu PF activists who attacked two white
owned farms.  The first attack took place at a place called Manzou Farm
where a white farmer had been given an eviction order which he had
disregarded.  The appellant was with a mob of perhaps one hundred twenty
people, including members from different areas and trained youth members
and senior leaders.

17.       The group was split into two and the senior members which
included the appellant's uncle went to the farmer's house and
beat him up.  The appellant in the other group was involved in going to
the farm workers' houses, beating them up and burning their houses
down.  The appellant admitted that she was one of those carrying a stick
or "chamu", but she was not involved in burning any of the
houses.  She found the situation very scary and although she did hit
people she did not use excessive force.

18.       The appellant disliked what she had to do, but was afraid of
the repercussions if she left the youth militia.  Rumours abounded about
how another girl had tried to escape, had been caught and severely
punished."

26.       Her evidence about the second was this:

"20.     In early October 2002 she and others were involved in
another farm invasion at a place called Bellrock Farm where the white
farmer had been given orders to leave the farm and had ignored it.  Again
she went with a large mob which might have included over one hundred
youth members.  Her uncle was amongst the senior members of the group.
When they got to the farm her group was ordered to beat the farm workers
in the fields and everyone joined in, including the appellant.  They
chased the farm workers and if they caught up with any worker they beat
them until they left the farm.  The appellant remembered that she had
beaten one woman in particular and she felt very guilty about this.  She
felt horrible as to what had happened.  She stopped hitting the woman
when she saw what distress she had caused and the woman scrambled away.
Farm Workers' houses were set on fire but the appellant was not
involved in that.  But she did witness the Zanu PF leaders questioning
the white farmer when she saw him being beaten badly and his property
being destroyed."

Her witness statement said that she started beating the woman when she
stumbled while the appellant was chasing her, she felt she had to beat
her to avoid being a target herself, and punished; and she had stopped
beating the woman when she realised that she was not being watched, and
that enabled the woman to escape. She was also part of the group who
watched as the farmer was badly beaten, and she was one of those who
looted his maize.

27.       The Immigration Judge accepted this evidence, finding at
paragraph           84:

"84      I further find that she had participated in actions
against civilians which had resulted in innocent civilians, both MDC
supporters and farm workers on two farms, being badly harmed, and that
she had used force with a stick to beat these innocent people.  I do
accept that she was only one of a number of people on the two farm
invasions, that she had not personally been involved in setting fire to
people's houses, or that she was a prominent member of these
groups.  But there is no denying the serious nature of these attacks on
innocent civilians, and that the appellant participated in them.

85.       The onus is on the respondent to show that the appellant falls
within the categories identified in Article 1F of the 1951 Convention.  I
am entirely satisfied that the actions taken by the group in which the
appellant participated were acts involving crimes against humanity.  The
appellant had voluntarily joined the Zanu PF militia, even though at the
instigation of her uncle; she had participated in its activities, she was
aware of the actions taken against civilians and she had failed to
disassociate herself from these activities at the earliest safe
opportunity.  I accept the respondent's suggestion that it was not
so much due to remorse that she had decided to desert from the militia,
but on account of having been raped by another member of the militia that
prompted her eventually to leave."

28.       The Appellant's account of how she was forced to join the
youth brigade, the sexual abuse she suffered, the activities of the
militia in which she participated, including helping to force villagers
come to Zanu-PF meetings with threats and violence,  and the terrible
consequence for those in the youth brigade who appeared unsympathetic to
its aims and methods, were all of a piece with how her expert, Dr Kibble,
described the militia behaving in 2002/3, and with what the Solidarity
Peace Trust and other reports told of their wanton, sadistic, and extreme
brutality against those whom they perceived as Mugabe's enemies.
This did not start in 2008, though it may have become yet more widespread
and severe against those who had not voted for him in the elections.

29.       Dr Kibble was asked to comment on how her account fitted with
his knowledge of what was happening in Zimbabwe at the time, with what
the youth militia were doing, and the risks she faced through
disobedience. This was in connection with her   argument about duress.
It was from the start of 2002 that allegations emerged against the youth
militia of murder, rape, torture, and property destruction. This is when
they began to be used to occupy farms and to force people from their
homes, the farm invasions. He described the impunity with which the
militias operated, and harsh treatment meted out to those who were
suspected of supporting opposition parties and indeed those who were not
sufficiently sympathetic supporters.

30.       He does not suggest that the appellant's description of
them was atypical.  Rather he says that her account captured the way in
which indoctrinated youth were worked up into a state of mass hysteria,
often fuelled by drugs and alcohol, to unleash violence on opponents and
farm workers.

31.       The violent occupation of farms and forcing people, including
farm workers from their houses, was part of the State violence, formal
and informal, used to crush opposition and those who were not regime
supporters.

The Appellant's evidence to the Upper Tier

32.       On the first farm invasion, she said that she had beaten no
more than ten people, inflicting enough pain to get them to run away. She
beat them as hard as she could on their clothed backs and bottoms,
carefully avoiding hitting them on their heads. She could not see,
through their clothes, if she had injured them. She was beating them as
their homes were burning. She did not see how severely others were hurt.
It was the Youth Brigades who were beating people so severely that she
thought they would die.

33.       She only hit one person severely on the second farm invasion.
She was shocked that she had beaten her so severely. It was the way she
beat her which made her think that the woman would die; but she only beat
her back and bottom. She saw other people being beaten and had never seen
people being beaten like that before. She beat other people on the second
farm invasion as severely as she had beaten people on the first farm
invasion; in re-examination she said that this was the only person she
had beaten on the second farm invasion.  She did not intend to hurt the
woman but only to beat her so that she could run away.

34.       She had said that she had beaten people to death because she
had beaten someone so hard that she thought she was dead but she did not
in fact die. Although she thought that others would die from the beatings
they received, in fact none of them died. She mentioned death because the
beatings were so severe. She only beat one lady that way, so that the
Youth Brigades could see her sympathy to their cause. She never intended
to kill anyone.  But she had hit other people on both farm invasions. She
had referred to beating many because she went on two farm invasions.

Were the farm invasions crimes against humanity?

35.       This was the issue upon which Mitting J ordered
reconsideration, rather than what the argument before us focussed on,
which was whether the role of the Appellant in the farm invasions might
mean that she was not guilty of participation in crimes against humanity,
if that is what the farm invasions were. We first deal with the issue
identified by Mitting J, taking as our starting point his barely
contested and obviously correct point that the farm invasions were part
of a systematic attack directed against civilian population, and that
applies to the two farm invasions here.

36.       We are satisfied that these two farm invasions were part of
widespread systematic attacks against the civilian population of farmers
and farm workers, carried out not just with the full knowledge of the
regime but as a deliberate act of policy by it, with the intention of
advancing its grip on power, suppressing opposition, and helping its
supporters.

37.       We are satisfied that the intention behind these invasions in
general, and it applies as well to the two in which the Appellant
participated, was to cause great suffering or inflict serious physical or
mental injury.  The aim was to drive people from their homes and their
work, and to do so in such a way that they would be so cowed by their
experience that they would neither return to their homes nor foment
opposition outside.  It would also deter resistance on other farms or in
other potential areas of opposition.  The aim was achieved by the mob
violence of beatings administered to men and women, burnings and lootings
in a deliberately brutal and terrifying experience.

38.       These acts were obviously inhumane, and were, in our judgment,
of a similar character to those in sub-paragraph (h) of Article 7.  These
acts were clearly persecutory acts against an identifiable group, farmers
and farm workers.  They were undertaken for political reasons, the
suppression of perceived opposition and for the financial advancement of
the regime members and supporters.  There was a clear racial element in
the attacks on the farms, and the farm workers who were a necessary part
of the white farmers' ability to benefit from the farm.

39.       Accordingly, on the issue on which Mitting J ordered
reconsideration, we are satisfied that the two farm invasions were crimes
against humanity.  No doubt, these actions could have been charged in a
variety of ways, including causing grievous bodily harm with intent,
affray, violent disorder, and arson.  But such an exercise would distract
from the true question: did these two farm invasions, with their specific
aim, intent and effect fall within Article 7 sub-paragraph (k).  In our
view, they did.

Participation

40.       We now turn to whether the Appellant's participation in
them makes her criminally responsible.  The Appellant was a participant
in serious mob violence.  The intention of the instigators and
participants, including her, was that the farmer and farm workers be
driven from their homes, by violent beatings and burnings, never to
return and to deter them from opposition to the regime.  The intention
was that the farms would then be available for regime supporters.

41.       We accept the generality of her evidence, and specifically that
no one was murdered.  We accept she was a lesser participant, and that
others, below the ringleaders, were more active and brutal.  But we also
felt that, in her evidence to us, she falsely underplayed her role at the
second farm invasion.  She clearly beat a number of people on it.  She
beat one woman very severely to demonstrate her loyalty, not just to make
the woman run away.  We note her evidence that she was shocked at how
hard she had beaten the woman and thought she had beaten her so severely
she would die.

42.       The Appellant was not merely present.  She was on each occasion
a voluntary, even if reluctant, actual and active participant in
beatings; even taking her evidence at face value, beating many people
hard as part of the aim of driving them away. She specifically tried to
demonstrate her loyalty to Zanu-PF in her actions.

43.       She is plainly criminally liable on a joint enterprise domestic
law basis.

44.       If there is an additional requirement that, in these
circumstances, there be a substantial contribution to the crime, we
consider that she provided it. That expression is not intended to exclude
all but ringleaders and major participants. Each of those who guard
extermination camps, for example, make a substantial contribution to
genocide.

45.       Active participation in mob violence which itself falls within
sub-paragraph (k) makes a substantial contribution to that crime against
humanity, and is a sufficient basis for exclusion from refugee status of
those who actively and intentionally participated in the violence,
seeking to achieve its purpose.

46.       This appeal is dismissed.

Mr Justice Ouseley

sitting as a Judge of the Upper Tribunal

==============================================

IMF helps Zim prepare budget

http://www.zimonline.co.za/

by Own Correspondent     Saturday 06 November 2010

HARARE – The International Monetary Fund (IMF) has clarified that its team
is in Zimbabwe to assist the southern African country prepare the 2011
national budget and not for Article IV consultations to assess progress in
implementation of economic policies.

The six-member IMF mission, which has been in Zimbabwe for the past two
weeks, has been helping Harare’s coalition government to formulate next year’s
budget given that the regime is cash-strapped.

Analysts had predicted that the team would issue a damning assessment of
Zimbabwe’s economic performance in light of various policy slippages by the
fragile Harare coalition.

But Caroline Atkinson, head of the IMF’s External Relations Department, said
that the mission was on a staff visit to look at the budget.

“It’s not a full-fledged Article IV, and I expect that they will finish
their work fairly soon,” she said.

Analysts fear that ongoing election talk will derail government programme,
with President Robert Mugabe expected to increasingly return to the populist
policies of his former ZANU PF-led government in order to endear himself to
the electorate ahead of polls tentatively set for mid-2011.

The IMF team last visited Zimbabwe in July for Article IV Consultations
which included discussion of efforts to rebuild the southern African economy
as well as Harare’s overdue financia obligations to the Poverty Reduction
and Growth Trust.

Zimbabwe owed the IMF about US$135 million in outstanding loan repayments as
of the end of last month.

Diamond executives set to appear in court

http://www.zimonline.co.za/

by Tobias Manyuchi     Saturday 06 November 2010

HARARE -- Six directors of a diamond mining venture company operating in the
controversial Marange diamond fields who were arrested this week for
fraudulently acquiring mining rights were expected to appear in court either
today or on Monday, their lawyer said.

The police accuse the directors of misleading the government into
authorising the creation of the joint venture mining firm known as Canadile
between the state’s Zimbabwe Mining Development Company (ZMDC) and a private
firm that they allegedly claimed had capacity to fund mining operations when
it did not.

Five of the arrested executives work for the ZMDC while one is from the
private firm. Canadile has been barred from operating in Marange following
the arrests of its senior officials.

The state is yet to lay the exact charges against the directors but their
lawyer, Lewis Uriri, told Zimonline that the six are likely to appear in
court tomorrow or on Monday.

"We didn't go to court today (Friday). We recorded warned and cautioned
statements in respect of two of my clients. We are pushing to go to court
either tomorrow or Monday," Uriri said.

Zimbabwe’s Marange field is probably the biggest diamond discovery in recent
decades but the deposits have been marred by controversy over human rights
abuses allegedly committed by soldiers sent to guard the claims.

There have also been reports of rampant smuggling of diamonds by the
soldiers and by top officials of the companies authorized by the government
to mine the diamonds.

A meeting of the Kimberley Process KP) that regulates the world diamond
industry failed on Thursday to reach agreement on whether to allow Zimbabwe
to export more diamonds from Marange, but Harare immediately said it would
resume selling the gems “without any conditions”.

The KP first banned exports of Marange diamonds last November following
reports of widespread rights abuses at the mines.

The ban was temporarily lifted in July after its Zimbabwe monitor Abbey
Chikane said Harare had met all conditions set by the regulator.

KP chairman Boaz Hirsch has said the group would continue searching for a
common position on the Zimbabwean gems in the coming days. -- ZimOnline

Zimbabwe Electoral Commission Staff Include Secret Police, MDC Charges

http://www.voanews.com/

The commission's predecessor, also called the Zimbabwe Electoral Commission,
was widely criticized for withholding the results of the first round of the
2008 presidential election for more than a mont

Blessing Zulu | Washington 05 November 2010

Another dispute has erupted between the Movement for Democratic Change
formation of Zimbabwean Prime Minister Morgan Tsvangirai and President
Robert Mugabe’s ZANU-PF over the composition of the Zimbabwe Electoral
Commission secretariat ahead of elections the president insists should be
held next year.

The Tsvangirai MDC charges that ZANU-PF has loaded the secretariat staff
with members of the Central Intelligence Organization, the military and the
national police.

"The MDC calls on ZEC to cleanse itself of the ZANU-PF mess, reassert its
credibility and perform its constitutional functions in line with expected
universal norms and standards in the conduct of elections," an MDC statement
said. "Mugabe always manipulates the elections through ZEC and the military,
in broad daylight."

Justice Minister Patrick Chinamasa, a ZANU-PF heavyweight, responded with
advertisements in the state-controlled, pro-ZANU-PF Herald paper declaring
that "labor laws do not allow any employee to be engaged by two companies or
organizations at the same time and be double salaried.” MDC sources in turn
threatened to publish the names of security agency officials working for the
supposedly reformed commission.

Tsvangirai MDC Spokesman Nelson Chamisa told VOA Studio 7 reporter Blessing
Zulu that the commission must be cleansed. He said he was surprised that
Chinamasa was "crying more than the bereaved by rushing to defend [the
Electoral Commission] which is supposed to be an independent body."

The commission's predecessor, also called the Zimbabwe Electoral Commission,
was widely criticized for withholding the results of the first round of the
2008 presidential election for more than a month, and was suspected by some
of tampering with ballots or counts to deprive opposition leader Morgan
Tsvangirai of a first-round majority.

ZANU-PF Spokesman Rugare Gumbo called the MDC charges "hogwash and
propaganda."

Harare epicentre of measles outbreak

http://www.thezimbabwean.co.uk

Saturday, 06 November 2010 18:14

HARARE – The World Health Organisation says Harare has recorded the highest
number of confirmed measles cases since the outbreak started more than a
year ago, accounting for nearly a quarter of all reported cases.

According to the latest joint epidemiological report published by the WHO
and Zimbabwe’s Ministry of Health, Harare has recorded 154 confirmed cases
of measles against 673 cases that had been reported by early October.

Only Zvishavane has recorded a higher number of measles incidents, with 29
cases being reported between September 2009 and last month.

The capital accounted for 42 out of the 76 suspected cases reported during
the week ending October 10, the latest period for which is
available.

“11 975 suspected cases and 631 deaths of measles were reported in all the
districts of Zimbabwe (since the outbreak started last year),” the report
said.

The United Nations said last month that Zimbabwe’s measles outbreak was
claiming five lives a week despite a nationwide immunisation campaign
carried out in June that targeted more than five million children.

Zimbabwe govt takes over diamond mine

http://www.mg.co.za/

CHENGETAI ZVAUYA | HARARE, ZIMBABWE - Nov 06 2010 15:58

Zimbabwe's government is taking over a joint mining venture after
allegations its private partners are blood diamond dealers, the chairman of
the country's diamond company said Saturday.

All 12 directors of a company called Core Mining were banned on Friday from
doing business in Zimbabwe's troubled mining industry because of accusations
they dealt in gems used to fuel war and were involved in civil wars in
Angola, Congo, Liberia, and Sierra Leone, according to Goodwills Masirembwa,
chairperson of the state-owned Zimbabwe Mining Development Corporation.

Attempts to reach Core directors were not immediately successful.

Failed partnership
Core put up $1,5-million last year to enter into a partnership with
Masirembwa's corporation. Masirembwa said Core never came up with the rest
of a promised $2-billion investment, and never explored or mined in the
Chiadzwa diamond fields in eastern Zimbabwe. Chiadzwa is in the same region
where human rights groups say the Zimbabwean military has used forced
labour, torture, beatings and harassment to collect diamonds.

A potentially lucrative 60 000-hectare field with diamonds close to the
surface was discovered in eastern Zimbabwe in 2006 at the height of the
country's political, economic and humanitarian crisis. The military took
over the area in late October 2008. Zimbabwe denies allegations its troops
are responsible for human rights abuses in the fields.

Last year, Zimbabwe diamond sales were restricted by the Kimberley
Process -- the global body responsible for ending the trade of blood
diamonds. But in August, the Kimberley group declared two shipments of
stones from the Zimbabwe mines conflict-free.

Extending the approval to all the fields dominated recent Kimberley Process
meetings in Jerusalem. The meetings ended with restrictions on Zimbabwe in
place after negotiators were unable to reach a compromise to allow more
exports. - Sapa-AP

New Bill To Empower Minister

http://news.radiovop.com

06/11/2010 15:16:00

The government is expected to draft a bill that will empower State
Enterprises Minister Gorden Moyo to enforce policy changes aimed at
resuscitating the country’s loss making parastatals.

Responding to Radio Vop enquiries Moyo revealed that the ministry does not
have a single act to help it push through various policy changes.
The corporate governance framework for state entities seeks to introduce a
raft of policy changes aimed at rescuscitating the loss making
parastatatals.

“My Ministry is a mere department as it does not administer a single Act.
However a bill is being drafted to cater for that,” Moyo said in an
interview.
“We are currently working on a parastatals and state enterprises management
bill so that the ministry can have legal force to implement various policies
like the corporate governance framework.”
Moyo said the corporate governance framework would seek to resuscitate all
78 parastatals and state enterprises that have  suffered gross decay due
mismanagement but have great  potential to generate 40 percent of the gross
domestic product.
He said 10 parastatals are earmarked for restructuring before the year end.

“Ten parastatals would be restructured before Christmas which include
National Railways of Zimbabwe, Ziscosteel, Net-One, Tel-One, National Oil
Company of Zimbabwe, (NOCZIM) Zimbabwe Electricity Supply Authority (ZESA),
Grain Marketing Board (gmb), Agribank,  Cold Storage Commission (CSC) ” he
said.
A national code on corporate governance would be a major step for Zimbabwe
in efforts to instill discipline and good conduct in corporates to balance
the interests of companies, shareholders and communities in which firms
operate.
The national governance code cover such issues as board and directors,
culture, ethics, values and development, integrated reporting and
disclosures, government role and corporate governance, compliance and risk
management and specific requirements for state owned enterprises.

Cholera Fears As Masvingo Runs Dry

http://news.radiovop.com

06/11/2010 07:29:00

Masvingo, November 05, 2010 - The country’s first urban settlement,
Masvingo, located 300 kilometers south east of the capital, Harare, has gone
without water for four days, raising fears of a resurgent Cholera outbreak.

The town has been dry despite being host to one of the largest inland dams,
Lake Mutirikwe/Kyle.

Many residents could be seen moving door to door searching for water from
people with boreholes at their premises.

“I am tired of begging for water. I used to seek the precious liquid from
friends with boreholes," said one resident.

Masvingo City council Mayor, Alderman Femius Chakabuda attributed the water
shortages to power outages that have seen them failing to pump water.

“It is a matter of power cuts. We have three consecutive days without power,
and we could not pump water for residents, said Chakabuda.

The Masvingo United Residents and Ratepayers Association (MURRA) blasted the
Movement for Democratic Change dominated council for failing to act ‘on
things that
are priorities.’

“The water cuts are a matter of life and death. Four days without a drop of
water. It is really shocking. The city fathers should set their priorities,”
said Murra spokesperson Tendai Mutungira.

MURRA said it will take to the streets if the hiccup fails to be settled
within 24 hours.

“Everybody is affected-town high density and low density residents. If
nothing happens, by Saturday, we will take to the streets,” Mtungira said.

ZCTU Comes To The Aid Of The Workers

http://news.radiovop.com

06/11/2010 07:26:00

Bulawayo, November 5 2010- The Zimbabwe Congress of Trade Unions (ZCTU) in
Bulawayo has embarked on an operation to assist workers who have not been
paid their salaries and wages by their employers.

The operation code named “bhadala” (pay up) is targeting mainly companies
which are either failing to pay their employees in time or are unable to pay
their workers decent salaries.

“We have embarked on this programme after realising that most companies in
the city are taking advantage of the confusion in the inclusive government
by exploiting and ill-treating workers," said Percy Mcijo, the ZCTU Regional
officer for Western region which covers Bulawayo.

"About 99 percent of all our members are currently earning wages and
salaries which are far less than the poverty datum line which is currently
pegged at US$500. As a workers representative organisation we have
information that some of these companies are capable of paying their workers
decent salaries but are just taking advantage of the prevailing situation to
exploit workers.”

Mcijo said the most affected sector was the clothing industry where some
workers had gone for more than six months without receiving salaries from
their employers.

“We have a situation at Security Mills where workers work for nine hours per
day. Some even work extra time but the company cannot afford to pay its
workers in time let alone pay decent salaries and wages. Now the question is
if the company is not making any profit why are workers working all those
hours per day?"

"Apart from that the company‘s workforce of over 600 workers is still
intact,” said Mcijo.

“Since the launch of the operation two weeks ago, I am glad to say that
companies like Prestige Paints have headed our call to pay workers at least
in time. However we will keep on engaging more companies in dialogue over
this issue ,” he said.

Mcijo also expressed concern over the deteriorating health and safety
standards in companies

'I danced because I knew if I didn't they would kill me'