Rights under
siegeI. Introduction
Since 2000, the human rights
situation in Zimbabwe has undergone a rapid decline. Parliamentary and
presidential elections held in 2000 and 2002 respectively were marred by
politically motivated violence, intimidation and attacks, largely on the
political opposition. The government initiated a controversial land reform
program which sparked illegal occupations of commercial farms by so-called
war veterans and other illegal settlers, and resulted in, among other
things, the forced eviction of hundreds of thousands of farm workers,
farmers and their families. State-sponsored intimidation, unlawful arrests
and torture perpetrated by the police, ruling party supporters, youth
"militia(1)," and other state agents have become commonplace. The main
targets for repression have been those most vocal and critical of the
government's human rights record, namely the independent media, the
opposition Movement for Democratic Change (MDC) and civil society
organizations attempting to protect human rights.
One of the
government's key vehicles for repression has been the introduction and use
of an armoury of restrictive legislation designed to suppress dissent and
place under siege the rights of freedom of expression, association and
peaceful assembly. The most commonly used and repressive pieces of
legislation include, in the order in which they were introduced, the
Broadcasting Services Act, the Public Order and Security Act, the Access
to Information and Protection of Privacy Act, the Private Voluntary
Organizations Act and the Labour Relations Amendment Act. Many provisions
of these Acts directly contravene Zimbabwe's national Constitution and
international human rights standards which enshrine and guarantee the
rights of Zimbabweans to the freedoms of expression, association and
assembly.
This report explains the context in which the legislation
has been introduced, charting in particular the government's escalating
repression of the political opposition, the independent media and civil
society. In light of Zimbabwe's human rights obligations under the
International Covenant on Civil and Political Rights, the African Charter
on Human and Peoples' Rights and other international standards to which
Zimbabwe is a party, the report examines how provisions of the
Broadcasting Services Act, the Public Order and Security Act, the Access
to Information and Protection of Privacy Act, the Private Voluntary
Organizations Act and the Labour Relations Amendment Act have been used to
suppress and violate internationally recognized rights to freedom of
expression, association and assembly. The report contains recommendations
to the Zimbabwean government for action to protect the human rights of all
Zimbabweans.
II. Clamp-down on dissent
In February
2000 a referendum was held on whether to accept the government's proposed
changes to the Constitution. Following the government's unprecedented
defeat, the political climate in Zimbabwe underwent a significant change.
The government's defeat was met with surprise and alarm by the ruling
party, Zimbabwe African National Union - Patriotic Front (ZANU-PF), as it
was the first time it had been defeated in a popular vote since
independence. The government's surprise suggested that it was unaware of
the extent to which Zimbabweans had grown dissatisfied with its many years
of misrule and persistent human rights violations. The government had also
underestimated the extent of support for the newly formed MDC,
particularly among Zimbabwe's growing urban population, and the increasing
strength of civil society, which had gained momentum in response to the
drive for a new constitution.
In the run up to the parliamentary
elections in June 2000 the government instituted a widespread campaign to
crush the opposition and silence dissent against its increasingly
unpopular policies.(2) The government's reaction was rooted in its fear of
losing power. Since then, the government has mobilized its supporters and
state agents, including "war veterans", youth "militia" police, the
Central Intelligence Organization (CIO) and the army to wage a sustained
campaign against opponents through the use of intimidation, arbitrary
arrests, beatings, torture, "disappearances" and extrajudicial executions.
In 2002 alone, there were over 1,046 reported cases of torture and at
least 58 politically motivated deaths.(3)
The level and incidence
of politically motivated attacks against opposition officials and
supporters rose sharply in the run-up to the parliamentary and
presidential elections of June 2000 and March 2002 respectively, as well
as the local council elections of September 2002. This was witnessed most
recently in March 2003 during parliamentary by-elections held in Kuwadzana
and Highfield, two high density Harare suburbs, where countless opposition
supporters were beaten, arbitrarily arrested and reportedly tortured while
in police custody, as a way of intimidating and deterring them from voting
for the MDC.(4) Amid the worsening food crisis, ruling party officials and
supporters have also denied people access to food aid based on real or
perceived political affiliation.
Through the state-controlled
Zimbabwe Broadcasting Corporation the government has launched scathing
verbal attacks on the opposition aimed at discrediting them. Several
senior opposition officials, including MDC President Morgan Tsvangirai and
Vice-President Gibson Sibanda have been arrested on politically motivated
charges, a weapon the government has used to put a severe strain on the
MDC's resources through lengthy and expensive legal battles.
State
repression of the media has never been worse. Prior to independence, the
media was strictly controlled by the government of Ian Smith through the
use of restrictive legislation to defeat the nationalist movement.(5)
Following independence, restrictive media laws were never fully relaxed.
However, the past three years have seen a sharp escalation in the
government's hostility towards the independent media and it is taking
unparalleled steps to suppress the rights to freedom of expression,
association and assembly in Zimbabwe. There has been a significant
increase in the incidence of state intimidation, criminal defamation
charges, arbitrary arrests and attacks on independent journalists and
media houses. In 2002 alone, approximately 44 media workers were arrested
and five media workers were physically attacked.(6) Two media houses were
petrol-bombed in 2002, bringing the total number of bomb attacks on the
physical infrastructure of the independent press to four since 2001. On 3
May 2002, World Press Freedom Day, the Committee to Protect Journalists
(CPJ) named Zimbabwe one of the world's worst places to be a journalist.
In March 2003, another international non-governmental media organization
which promotes and defends press freedom, Index on Censorship, awarded
Jonathan Moyo, Minister of State for Information and Publicity, the Golden
Raspberry Award for "services to censorship".
In the face of
government attacks, the independent media is struggling to continue
shining a spotlight on government human rights violations. At the same
time, the level of state control over the content and flow of information
within Zimbabwe and outside has increased. Government officials have
repeatedly made vociferous public attacks on the independent media. The
Minister of State for Information and Publicity has on numerous occasions
condemned the independent press and accused it of supporting the political
opposition and Western governments. These attacks have become increasingly
hostile and inflammatory. For example, on 18 November 2002, while
addressing army officers in Harare, the Minister attacked Zimbabwe's
leading independent daily newspaper, the Daily News, as
"anti-nation" and as a tool used by Western powers to attack the
government and Zimbabwe's values and traditions.(7)
As the
government's fear of losing its grip on power has apparently increased,
its attacks on the independent press have intensified. In February 2002,
the Bulawayo offices of the Daily News were petrol-bombed, marking
the third time in two years that the offices of the independent daily had
been bombed. In August 2002, the office of one of Zimbabwe's two
independent broadcasting organizations, Voice of the People (VOP),
which broadcasts into Zimbabwe via short wave, was petrol-bombed. No one
has been arrested in connection with these attacks.
The beating
of photographer Philimon Bulawayo
On 19 February 2003, Philimon
Bulawayo, a photographer with the independent Daily News newspaper,
was assaulted by soldiers while preparing to take pictures of a food queue
at a Harare supermarket. The soldiers approached him and then proceeded to
beat him up. His camera was confiscated and he was handcuffed and taken to
the Harare central police station where he was beaten again by police
officers. He was released the same day without charge and his camera was
returned to him. One month later, on 18 March, Philimon Bulawayo was
arrested and assaulted again by police for attempting to cover the mass
national stay-away organized by the MDC on 18 and 19 March. He was again
released without charge.
In some areas, ruling party supporters
have reportedly used threats, intimidation and attacks to prevent people
from reading independent newspapers. For example, Shepherd Ngundu, a
teacher from the rural area of Mount Darwin, was beaten to death on 5
February 2002 by suspected ZANU-PF supporters, one month before the
presidential elections, apparently for possessing a copy of the Daily
News.(8) In some urban and rural areas, newspaper vendors selling
independent newspapers have been subjected to intimidation and attacks by
ZANU-PF supporters. The sale of independent newspapers has been banned
altogether in many rural areas. The government's de facto monopoly
on radio broadcasting has enabled total government control of the form of
communication most commonly used in Zimbabwe's rural areas, where the
majority of the population lives.
Since 2000, the government has
also begun to specifically target individuals and organizations perceived
to be supportive of the opposition or working to expose human rights
violations committed by the government and its agents.(9) Human rights
activists, trade unions, students, teachers, lawyers and court officials
are some of those who have been singled out for attack.
Labour
activists have been among the government's main targets. Since the
presidential elections in 2002, it has become increasingly difficult for
workers in Zimbabwe to associate without police interference largely due
to the government's perception that labour activists from the Zimbabwe
Congress of Trade Unions (ZCTU) and other unions have been working with
the MDC to overthrow the government. 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.
Teachers' and students' unions face similar intimidation
and harassment. Officials and members of the Progressive Teachers Union of
Zimbabwe (PTUZ) who participated in a national teachers' strike in October
2002 were arbitrarily arrested and beaten by police. Raymond Majongwe, the
PTUZ Secretary General, was reportedly tortured in police custody
following his arrest on 16 October 2002. Over 600 teachers were
subsequently dismissed by the government in response to the strike.
Protests by students were also dispersed with excessive force by police,
and student leaders from the Zimbabwe National Students Union (ZINASU)
have encountered repeated harassment, arrests and police brutality.
Lawyers who represent opposition members, and judges, magistrates
and prosecutors who are perceived to be supportive of the opposition also
experience threats, attacks and arrests.(10) Several independent judges
have been forced to resign or take early retirement. Others receive
threats if they do not render decisions favourable to the government.
Politically motivated arrest of High Court Justice Benjamin
Paradza
On 17 February 2003, High Court Justice Benjamin Paradza
was arrested on charges of attempting to obstruct the course of justice
and contravening the Prevention of Corruption Act in connection with a
case allegedly involving his French business partner. However, Judge
Paradza's arrest was more likely to have been politically motivated and
signals ongoing efforts on the part of the Zimbabwean authorities to
harass, intimidate and force out judges who have handed down judgements
which are perceived to be in support of the political opposition. For
example, in January 2003, Judge Paradza ordered that the Executive Mayor
of Harare, Elias Mudzuri, a member of the MDC, be released from custody
after he was arrested for holding a meeting with ratepayers allegedly
without police clearance. In August 2002, he ruled that eviction orders
served on approximately 54 commercial farmers were illegal. On 19
February, Judge Paradza was released on bail after spending two days in
custody and is scheduled to stand trial beginning on 7 July. He is the
second judge to be arrested in Zimbabwe after retired High Court Judge,
Fergus Blackie, was arrested in September 2002, also on allegations of
obstructing the course of justice. Judge Blackie was released on bail and
is still awaiting trial.
Civil society organizations and human
rights activists have also been targets of state intimidation and
harassment. Many have been forced to work in increasingly restrictive and
oppressive conditions, facing threats, disruption of meetings by the
police, ongoing surveillance by state security agents and arbitrary
arrests. In November 2002 the Minister of Justice, Legal and Parliamentary
Affairs, Patrick Chinamasa, published a list of NGOs which he claimed were
a threat to peace and security in Zimbabwe. Among those on the list was
Amani Trust, a Zimbabwean human rights NGO which provides support to
torture victims.(11) The ongoing verbal attacks against human rights
defenders signal the government's desire to single out specific
organizations which have been active in exposing human rights violations
and providing support to victims of politically-motivated violence,
including torture.
As part of its continuing clampdown on
dissenting voices, the government has introduced and selectively used
legislation to severely restrict the rights of the majority of Zimbabweans
to freely associate, assemble and express themselves - rights which are
internationally recognized and are cornerstones of any democratic society.
These rights are no longer protected or guaranteed in Zimbabwe. Yet
Zimbabwe is a party to many international and regional human rights
standards which recognize and guarantee the enjoyment of these rights by
its citizens. These rights are also guaranteed in Zimbabwe's Constitution.
The most controversial pieces of legislation include: the Broadcasting
Services Act, the Public Order and Security Act, the Access to Information
and Protection of Privacy Act, the Private Voluntary Organizations Act,
and the recently enacted Labour Relations Amendment Act. Specific
provisions of this legislation have been used by the government to narrow
the space for open public debate, silence those perceived to be critical
of its policies, and shield itself from domestic and international
scrutiny.
III. Zimbabwe's obligations under international
and national law
The rights to freedom of expression,
association and assembly are vital to every democratic society. These
rights are not only enshrined in international human rights standards
ratified by Zimbabwe but are also enshrined in the Constitution. Despite
this, the Zimbabwean government has failed to ensure the enjoyment of
these rights by the majority of Zimbabweans.
1. International
human rights law
The rights to freedom of expression,
association and assembly are enshrined in international and regional human
rights treaties including the International Covenant on Civil and
Political Rights (ICCPR) under Articles 19, 21 and 22 and the African
Charter on Human and Peoples' Rights under Articles 9, 10 and 11.(12)
Although Zimbabwe ratified the ICCPR in 1991, and the African Charter in
1986, the Government has promulgated an array of national legislation to
suppress and violate these rights.
The right to freedom of
expression is a cornerstone upon which the very existence of a democratic
society rests, and it is indispensable for the formation of public
opinion. The absence of the freedom of expression is a factor which
contributes to a country's failure to respect other human rights. In its
Concluding Observations on the initial report on Zimbabwe in March 1998,
the United Nations (UN) Human Rights Committee, charged with monitoring
member state compliance of the ICCPR, noted:
"that not all of the
rights in the Covenant have been made part of domestic law and cannot be
invoked directly before domestic courts. Notwithstanding the State party's
stated policy of thorough legislative review in order to ensure
compatibility of domestic legislation with the Covenant, the Committee
notes the absence of effective institutional mechanisms to ensure
systematic implementation and monitoring of its provisions. The Committee
is concerned about the increasing trend to enact Parliamentary legislation
and constitutional amendments to frustrate decisions of the Supreme Court
that uphold rights protected under the Covenant and overturn certain laws
incompatible with it."(13)
In particular, the Committee expressed
concern about the restrictions placed on freedom of expression and the
press. While these observations predated the introduction of the
Broadcasting Services Act, the Access to Information and Protection of
Privacy Act and the Public Order and Security Act, they illustrated
Zimbabwe's restrictive media environment even in the late 1990s.
Similarly, the Committee in its General Comment 10 states that the right
to hold opinions without interference permits no exception or restriction.
The Committee also states that the right to freedom of expression includes
not only freedom to impart information and ideas, but also the freedom to
seek and receive them. According to the Committee, "effective measures are
necessary to prevent such control of the media as would interfere with the
right of everyone to freedom of expression in a way that is not provided
for under the Covenant."(14)
The Committee has also stated that the
right to freedom of expression carries with it special duties and
responsibilities, and certain restrictions which may relate either to the
interests of other persons or to those of the community as a whole.
However, any restrictions that may be imposed must be provided by law, and
justified as being necessary for respect of the rights or reputations of
others or for the protection of national security or public order.(15)
Such restrictions must be compatible with internationally recognized
standards and must be strictly construed in order to advance the
promotion and protection of the right, not to diminish or jeopardize
it.
The African Commission's Declaration of Principles on Freedom
of Expression in Africa(16) was adopted at the 32nd Session of the
African Commission held in October 2002 in Banjul, Gambia and was endorsed
by all member states, including Zimbabwe. The Declaration reaffirms the
fundamental importance of freedom of expression and access to information
as a means of ensuring respect for all human rights. Despite this, the
government has proceeded to enact and enforce legislation which has the
opposite effect.
With regards to the right to freedom of
expression, there exist three important declarations which were
established in Southern Africa. Although not legally binding, the
declarations contain important standards for protecting and promoting
freedom of expression. The Windhoek Declaration on Promoting an
Independent and Pluralistic African Press was adopted at a seminar held in
Windhoek, Namibia, in 1991 on African media independence and pluralism,
and is credited with encouraging increased liberalization of the media
throughout Africa. The Declaration states that "[t]he national media and
labour relations laws of African countries should be drafted in such a way
as to ensure that such representative associations can exist and fulfil
their important tasks in defence of press freedom."(17)
The
Johannesburg Principles on National Security, Freedom of Expression and
Access to Information were adopted in Johannesburg, South Africa in 1995
by a group of experts in international law, national security, and human
rights. Principle 1 of the Johannesburg Principles reaffirms protection of
the right to freedom of expression as guaranteed by the ICCPR and the
African Charter.
On the 10th anniversary of the Windhoek
Declaration on Promoting an Independent and Pluralistic African Press, the
Windhoek Charter on Broadcasting in Africa was established,
which stresses the importance of developing democratic and localized
broadcasting environments. According to the Charter: "[t]he legal
framework for broadcasting should include a clear statement of the
principles underpinning broadcast regulation, including promoting respect
for freedom of expression, diversity, and the free flow of information and
ideas".(18)
Freedom of association and freedom of assembly are
twin rights which are separately guaranteed by the African Charter on
Human and Peoples' Rights in Articles 10 and 11 respectively. In 2002 the
African Commission on Human and Peoples' Rights adopted a resolution on
the freedom of association to the effect that:
"The competent
authorities should not override constitutional provisions or undermine
fundamental rights guaranteed by the Constitution and international human
rights standards. In regulating the use of this right, the competent
authorities should not enact provisions which would limit the exercise of
the freedom; and the regulation of the exercise of the right of freedom of
association should be consistent with the states' obligations under the
African Charter on Human and Peoples' Rights."(19)
The African
Commission has identified four levels of duties for a state party to the
African Charter, namely the duty to respect, protect, promote and fulfil
the rights guaranteed under the Charter, including the rights to freedom
of expression, association and assembly. At a primary level, the
obligation to respect entails that the state should refrain from
interfering in the enjoyment of these rights; it should respect
right-holders, their freedoms and liberty of action. At a secondary level,
the state is obliged to protect right-holders against other subjects by
legislation and provision of effective remedies. This obligation requires
the state to take measures to protect beneficiaries of the protected
rights against political, economic and social interferences. Protection
generally entails the creation and maintenance of an atmosphere or
framework by an effective interplay of laws and regulations so that
individuals will be able to freely realize their rights and freedoms. This
obligation is intertwined with the tertiary obligation of the state to
promote the enjoyment of all human rights, including the rights to freedom
of expression, association and assembly. The state should make sure that
individuals are able to exercise these rights, for example, by promoting
tolerance.(20)
The last level of obligation requires the state to
fulfil the rights to freedom of expression, association and assembly it
freely undertook under the African Charter. According to the African
Commission, "it is more of a positive expectation on the part of the state
to move its machinery towards the actual realization of the rights."(21),
Through the use of legislation curtailing the rights to freedom of
expression, association and assembly, the Zimbabwean government has
violated the provisions of the African Charter on Human and Peoples'
Rights under which these rights are guaranteed.
The Right to
Organize and Collective Bargaining Convention 1949 (No.98) of the
International Labour Organization (ILO) protects against anti-union
discrimination and encourages collective bargaining, and, in so doing,
protects the rights of workers to freely associate and assemble. Article 1
of the Convention states that "[w]orkers shall enjoy adequate protection
against acts of anti-union discrimination in respect of their
employment."(22) Zimbabwe ratified this Convention in August 1998. In
March 2002, the ILO Committee on Freedom of Association recommended that
the Zimbabwean government amend the Labour Relations Act (1985) in line
with freedom of association principles.(23) In November 2002, the
Committee cited Zimbabwe for serious infringements of the principle of
freedom of association and violations of trade union rights, and asked the
government to ensure that the principles of non-interference by the
authorities in the meetings and internal affairs of trade unions are
respected. (24)
The Freedom of Association and Protection
of the Right to Organize Convention 1948 (No.87) establishes the right of
all workers and employers to join organizations and provides a series of
guarantees for the free functioning of organizations without interference
from public authorities. In June 1998, the ILO adopted the Declaration on
Fundamental Principles and Rights at Work which committed ILO members to
uphold the eight core conventions of the ILO regardless of whether or not
they had actually ratified them individually. These conventions also
include those safeguarding freedom of association and expression, which
Zimbabwe has not ratified. The obligation to respect the principles of
freedom of association is taken to be a necessary requirement of
membership of the ILO. Thus, even countries that have not ratified these
instruments are required, by virtue of their membership, to respect the
guarantees they enshrine. Zimbabwe is therefore obliged to ensure that its
workers have the right to freedom of association as expressed in the
Freedom of Association and Protection of the Right to Organize
Convention.
The UN Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms (henceforth
referred to as the Declaration on Human Rights Defenders) was adopted by
the UN General Assembly in 1998. While not legally binding, the
Declaration recognizes the right of people to participate in activities
individually or in association with others for the promotion and
protection of human rights.(25)
In Zimbabwe, international treaties
which have been ratified are not automatically incorporated into national
legislation. According to Section 111b of the Zimbabwean Constitution,(26)
international conventions, treaties and agreements which have been
ratified are subject to the approval of Parliament and only form part of
Zimbabwean law once an Act of Parliament has been passed. However, under
international law, international treaties that are voluntarily undertaken
must be observed in good faith. In this sense, states are obliged to
repeal or amend domestic laws to ensure that they are not inconsistent
with international treaties.
2. National law
Zimbabwe's own national Constitution, the Lancaster House
Constitution, was established at independence in 1980 and was the product
of negotiations between the British government, the Smith government and
nationalist politicians from the liberation movements. Many amendments
have since been made to the Constitution which have led to calls from
civil society for the drafting of a new constitution, hence the
constitutional referendum of February 2000. Following the defeat of the
government's proposed constitution, no attempts have since been made to
draft a new constitution. The Lancaster House Constitution contains
provisions which specifically guarantee the right to freedom of
expression, association and assembly in its Declaration of Rights
contained in chapter three. The right to freedom of expression is provided
for in Section 20 which states:
"Except with his own
consent or by way of parental discipline, no person shall be hindered in
the enjoyment of his freedom of expression, that is to say, freedom to
hold opinions and to receive and impart ideas and information without
interference, and freedom from interference with his
correspondence."
Section 21 explicitly guarantees freedom of
association and assembly:
"Except with his own consent or by way
of parental discipline, no person shall be hindered in his freedom of
assembly and association, that is to say, his right to assemble freely and
associate with other persons and in particular to form or belong to
political parties or trade unions or other associations for the protection
of his interests."
As the next section will show, despite
Zimbabwe's legal obligations under international law and the Constitution,
legislation recently introduced, amended and enforced is in direct
violation of these legal standards as they violate the rights to freedom
of expression, association and assembly of all Zimbabweans.
IV. The tools of repression - an analysis of current
legislation
As previously stated, the pieces of legislation
used most frequently to repress and violate human rights include: the
Broadcasting Services Act (2001), the Public Order and Security Act
(2002), the Access to Information and Protection of Privacy Act (2002),
the Private Voluntary Organizations Act (2002) and the Labour Relations
Amendment Act (2003). Specific provisions of these pieces of legislation
are being used by the government as a pretext to systematically silence
its opponents and critics. Although introduced under the guise of
protecting national security or facilitating access to information, the
introduction of each piece of legislation and successive amendments have
been used by the authorities to target constituencies of dissent and
narrow all space for open political debate in Zimbabwe.
The
following is a brief analysis of each piece of legislation, the context in
which it was introduced and the implications it has had for the rights to
freedoms of expression, assembly and association in
Zimbabwe.
1. Broadcasting Services Act
(BSA)
Broadcasting has always been organized and operated
as a state monopoly in Zimbabwe. Up to 2000, under the Broadcasting Act,
the state-controlled Zimbabwe Broadcasting Corporation (ZBC)
had the sole right to broadcast on radio and television in Zimbabwe. In
controlling all forms of electronic broadcasting, especially radio, the
government had a monopoly over information disseminated to the majority of
the population. Retaining control over the broadcasting sector has
therefore been central to the government's efforts to secure support in
Zimbabwe's rural areas, the ruling party's traditional support base, and
explains its vigorous efforts to restrict the access of its perceived
opponents to the broadcasting sector.
In September 2000, a private
radio station, Capital Radio, filed a suit with the Supreme Court
against Section 27 of the Broadcasting Act which prohibits the
unauthorised possession, establishment and operation of signal
transmitting stations, arguing that it contravenes Section 20 of
Zimbabwe's Constitution which guarantees freedom of expression and
information. That same month, the Supreme Court ruled in favour of
Capital Radio, enabling it to begin broadcasting as a radio
station. In response, the government promulgated the Presidential Powers
(Temporary Measures) (Broadcasting) Regulations(27) in October 2000,
arguing that the Supreme Court decision created a regulatory vacuum.(28)
Among other things, the Regulations, valid only for a six month
period, temporarily deferred the Supreme Court judgement, established the
Broadcasting Authority of Zimbabwe (BAZ) as a regulatory body, and gave
the Minister of State for Information and Publicity the authority to issue
licences for new broadcasters. Independent radio stations, were
subsequently declared illegal and switched off, and their broadcasting
equipment was confiscated. Capital Radio was only able to broadcast
for eight days before it was closed down and its transmitter seized. As
the Regulations were temporary, new legislation was urgently required.
Hence the fast-tracking through Parliament of the Broadcasting Services
Act (BSA), which was enacted on 4 April 2001 and based largely on the
contents of the Regulations.
The BSA has since been widely
condemned by both media and civil society organizations, which argue that
it gives the Minister of State for Information and Publicity excessive
powers over the broadcasting sector. For example, Section 7
requires the licensing of broadcasting services, while Sections 6, 11 and
15 provide the Minister with the authority to determine who gets a
broadcasting licence and under what circumstances. According to the
Windhoek Charter on African Broadcasting, "[l]icensing processes for the
allocation of specific frequencies to individual broadcasters should be
fair and transparent, and based on clear criteria which include promoting
media diversity in ownership and content."(29)
Section 4 of the
BSA establishes the BAZ as a regulatory body consisting of members who are
all appointed by the Minister, and which is tasked with issuing licences.
On the surface the BSA appears to be in compliance with the Supreme Court
ruling ending ZBC's monopoly over the broadcasting sector. However,
in actual practice, the establishment of a Board run by Ministerial
appointees and tasked with the authority to issue licences has in effect
returned control to the government. Amnesty International believes that
providing the Minister with the authority to decide on licensing
jeopardizes the impartiality and independence of the process and is
clearly being used by the government to maintain control over the
broadcasting sector. This is once again inconsistent with internationally
recognized standards and declarations.
Section 24 of the BSA gives
the Minister the authority to interfere with the content of broadcasting
programming and the right to ban any broadcaster deemed to be a threat to
national security. The Act includes a provision requiring that programming
include at least 75 per cent local content(30) and Section 8 bars foreign
ownership.
According to Section 18, it is illegal for the
ZBC to lease a television channel to any other station. Section 18
reads:
"No licensee shall assign, cede, pledge, transfer or sell
his license to any other person or surrender his programming duties to
another entity outside his establishment. Any such assignment, cession,
pledge, transfer, sale or surrender shall be
void."
Shutting down of private television station
Joy TV
Prior to 31 May 2002, Zimbabwe had one private
television station, known as Joy Television (Joy TV) which leased a
channel from the ZBC. On 23 April 2002, the Government informed
Joy TV that it would not extend its lease beyond 31 May 2002 as
according to Section 18 of the BSA, it is illegal for the ZBC to
lease a channel to any other station. Two weeks after this announcement,
the government instructed Joy TV to stop broadcasting British
Broadcasting Corporation (BBC) news programs. Joy TV was
then informed that it needed to apply to the Broadcasting Authority of
Zimbabwe for a licence to operate its own channel. Since the cancellation
of Joy TV's lease, the ZBC remains the only television
broadcaster in Zimbabwe as no other station has been licensed to
date.
According to the African Commission's Declaration of
Principles on Freedom of Expression in Africa, "States shall encourage a
diverse, independent private broadcasting sector. A State monopoly over
broadcasting is not compatible with the right to freedom of
expression."(31) However, Section 27 of the BSA provides
that private broadcasters cannot operate without the permission of the
BAZ. As ZBC remains Zimbabwe's sole broadcaster three years after
the Broadcasting Act was replaced, it is apparent that instead of
liberalizing the broadcasting sector, as per the Supreme Court ruling, the
Act ensures continued state control.
Responding in March 2003 to
why the Ministry of Information and Publicity had not licensed any
broadcasters thus far, Minister Jonathan Moyo reportedly stated that the
government had realized that most applicants were foreigners and did not
have "Zimbabwean interests at heart".(32)
As the BSA places tight
restrictions on the nature, quality and quantity of information broadcast
through radio and television, it violates Section 20 of Zimbabwe's
Constitution which guarantees the right to freedom of expression and to
impart information. It also violates international and regional human
rights treaties, including the ICCPR and the African Charter which
Zimbabwe has ratified.
Following its successful challenge of the
Broadcasting Act in 2000, Capital Radio launched a suit against the
BSA in May 2002 on the basis that specific provisions of the BSA
contravene the rights to freedoms of expression and information. The
courts however, have repeatedly delayed Capital Radio's challenge
of the constitutionality of the BSA, due to reported delays from
government departments.
An amendment to the BSA, the Broadcasting
Services Amendment Bill, is presently before the Parliamentary Legal
Committee.(33) The Amendment Bill seeks to amend the BSA by incorporating
provisions on the licensing of listeners, receivers and dealers. The
amendment is not expected to ease restrictions on the broadcasting
sector.
2. Public Order and Security Act
(POSA)
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 has removed
several unconstitutional clauses.
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 MDC in the run-up to the March 2002
presidential elections. The intention was also to tighten restrictions on
the independent media and give the police sweeping powers. Earlier, in
1997, a Public Order and Security Bill (POSB) had been introduced to
replace LOMA. (34) 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 POSB in relation to concerns that the Bill would
restrict the fundamental rights to freedom of expression, association and
assembly.(35)
Since its enactment in 2002, POSA has been used by
the authorities to target opposition supporters, independent media and
human rights activists and specifically restrict their rights to: freely
assemble; criticize the government and President; and engage in, advocate
or organize acts of peaceful civil disobedience. The police have used POSA
to arbitrarily arrest hundreds of Zimbabweans, mainly opposition
supporters, since its enactment. Many have had the charges against them
dropped or dismissed in court due to lack of evidence. However, the
legislation has provided the police with a pretext to intimidate, harass
and brutally torture real or perceived supporters and members of the
opposition.
The government contends that the restrictive elements
of POSA are necessary for enabling the police to deal with alleged threats
to public safety, including "terrorist" threats following the attacks of
11 September 2001 in the USA. According to Patrick Chinamasa, Minister of
Justice, Legal and Parliamentary Affairs, the legislation ensures that
Zimbabweans "move about peacefully, they enjoy their freedoms, without any
fear that those freedoms may be threatened."(36)
Section 5 of POSA
criminalizes the establishment of an organization to overthrow the
government by unconstitutional means; usurp the functions of government;
or coerce the government (including through physical force, boycotts and
civil disobedience). Under Section 5, this is punishable by up to 20 years
in prison. Amnesty International is concerned that this provision is being
abused by the government authorities to target its
opponents.
Politically motivated arrests of opposition
officials
On 31 March 2003, Gibson Sibanda, Vice-President of the
DC, was arrested for allegedly trying to overthrow the government by
inciting people to join the national mass stay-away organized by the MDC
on 18 and 19 March 2003. He has been charged under Section 5 of POSA which
carries a punishment of 20 years' imprisonment. After spending eight days
in police custody, he was released on bail and asked to report to the
police twice a week,. If convicted, Amnesty International would consider
Gibson Sibanda to be a prisoner of conscience.
In January 2003, Job
Sikhala, MDC Member of Parliament (MP) for St. Mary's constituency in
Harare; Gabriel Shumba, a lawyer with the Zimbabwe Human Rights NGO Forum,
and three other MDC members were arrested and charged under Section 5 of
POSA. All five were apparently tortured while in police custody, and
medical examinations indicated that both Job Sikhala and Gabriel Shumba
had electric shocks applied to their genitals, mouths and feet. Job
Sikhala and Gabriel Shumba were forced to drink urine. The charges against
all five were subsequently dismissed due to lack of
evidence.
Several provisions of POSA apply specifically to the
rights to freedom of expression and freedom to impart information. For
example, Section 12 makes it a criminal offence to do or say anything
which may cause "disaffection among the Police Force and Defence Forces",
punishable by imprisonment for up to two years. In January 2003, Kenneth
Gwabalanda-Mathe, an MDC official was arrested and charged under Section
12 for making a statement in the Daily News about reported
harassment and attacks on citizens perpetrated by police and army officers
following the murder of an Australian tourist in Victoria Falls that
month. He was released on bail pending his trial which is scheduled for
May 2003.
According to Section 15, it is an offence
punishable by up to five years in prison to publish statements which
incite or promote public disorder or public violence; adversely affect the
defence or economic interests of the country; undermine public confidence
in the police, prison or defence forces; or interfere with any essential
service. Section 16 makes it an offence to insult the Office of the
President, punishable by up to one year in prison.
Taken together,
Amnesty International believes that Sections 12, 15 and 16 are being used
by the government to target individuals and organizations whose views
differ from those of the government. The authorities may use these
provisions to target the independent media and human rights activists who
document and expose human rights violations perpetrated by the government
and its agents, as these activities could now fall into the category of
undermining public confidence in the security forces or undermining the
authority of the President.(37)
According to the Johannesburg
Principles on National Security, Freedom of Expression and Access to
Information, the right to freedom of expression should not be considered a
threat to national security or be subject to restrictions or penalties. In
particular, the Johannesburg Principles specify that expression which does
not constitute a threat to national security includes expression that:
advocates non-violent change of government policy or the government
itself; constitutes criticism of the government, its agencies or public
officials; and involves communicating information about alleged violations
of international human rights standards or international humanitarian
law.(38)
According to Section 17 and 19 of POSA, individuals who
disturb the peace, or say or do anything which is considered obscene or
insulting can be imprisoned for up to 10 years. These provisions may be
used as an excuse by the authorities to target individuals and
organizations which engage in, advocate or organize peaceful acts of civil
disobedience.
Section 21 of POSA makes acts or statements which
engender feelings of hostility towards police officers an offence
punishable by up to two years in prison. In February 2003, deputy news
editor of the Daily News, Pedzisayi Ruhanya, and freelance
journalist, Ishmael Mafundikwa, were arrested for allegedly obstructing
police duties at the opening of the treason trial of Morgan Tsvangirai,
President of the MDC. They were subsequently charged under Section 21,
although they were later released after the Attorney General refused to
prosecute them.
Sections 23-31 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 for the holding of public gatherings or
meetings. In practice, police are using this provision to refuse
permission to hold public gatherings and meetings. 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. Since
POSA's enactment, the police have actively used these provisions to
strictly police peaceful meetings and have, to some degree, made Zimbabwe
a police state where democratic activity is tightly controlled and
supervised, and where repression of internationally recognized human
rights is the commonplace.
Police disrupt peaceful women's
marches
On 8 March 2003, International Women's Day, Bulawayo police
detained 15 women and reportedly beat several others who were
participating in a peaceful march. Among those detained were three MDC MPs
and the wife of the MDC Vice-President. The 15 women were held in police
custody for four hours, apparently in connection with holding a march
without police clearance, and were released without charge.
On 14
February 2003, police reportedly arrested 73 people for participating in a
march to mark Valentine's Day which was organized by Women of Zimbabwe
Arise (WOZA). WOZA continued with the march after police denied them
permission to hold it. 48 women were held for four hours and released
without charge, while another 15 were released the following day without
charge.
The government has used provisions of POSA to specifically
target the MDC and hamper their ability to campaign and mobilize support,
particularly in the run-up to elections. For example, in July 2002,
Innocent Gonese, the MDC MP for Mutare Central in Manicaland province, was
prevented from addressing a meeting in Beitbridge on the basis that the
"political environment was hostile". More recently, Nelson Chamisa, the
winning MDC candidate in the March 2003 parliamentary by-election in
Kuwadzana was detained by police in the run-up to the election, along with
10 others, while canvassing door-to-door. Police alleged they were holding
an unauthorized meeting. They were released the same day but were
prevented from canvassing any further.
In February 2002, Munyaradzi
Gwisai, former MDC MP for Highfield and 10 members of the National
Constitutional Assembly (NCA), were arrested and charged under Sections 24
and 26 of POSA for taking part in an NCA-led protest march. They maintain
that the arrests were unlawful as the provisions of POSA under which they
were charged are unconstitutional. In May 2002, they filed a petition with
the Supreme Court seeking the nullification of Sections 24 and 26 of
POSA.
Photo caption: A riot police officer arrests a woman
protester during NCA march in Harare on 15 Feb. 2002. The march was held
to press the government to accept need for a new constitution and to hold
free and fair elections the next month. 12 people were arrested during the
march. © AP
Under Section 32 of POSA, the police have been
granted the power to demand identity documents from anyone above the age
of 16 when in a public place. If unable to produce them immediately, the
documents must be produced at a police station within seven days. Amnesty
International is concerned that in the context of escalating involvement
of police officials in perpetrating human rights violations, this
provision may be misused by the police to intimidate and discourage people
from attending political gatherings and rallies, thereby restricting their
freedom of movement, assembly and association. It is reminiscent of the
pass laws under the apartheid system in South Africa and restrictions on
movement enforced by the Rhodesian authorities under colonial
rule.
The provisions of POSA cited above place severe restrictions
on the rights of Zimbabweans to freedom of association, assembly and
expression, all of which are guaranteed under Zimbabwe's Constitution, as
well as the ICCPR and the African Charter. Of particular concern is the
way in which the police have interpreted POSA as a justification for
excessive use of force and to deter those with dissenting voices from
holding public rallies and demonstrations.
3. Access to
Information and Protection of Privacy Act (AIPPA)
The
Access to Information and Protection of Privacy Act (AIPPA) was
enacted in March 2002, in advance of the presidential elections, possibly
in a bid by the government to strictly control the flow and content of
national and international media coverage. The delays in the passage of
the Access to Information and Protection of Privacy Bill, due to delays in
parliamentary debate and adverse reports issued by the Parliamentary Legal
Committee, reflected in part the level of dissent within ZANU-PF regarding
the Bill's restrictions on the right to freedom of expression. Dr. Eddison
Zvobgo, ZANU-PF Chair of the Parliamentary Legal Committee, described the
Bill in its original form as "the most calculated and determined assault
on our liberties guaranteed by the Constitution."(39)
Photo
caption: A group of Zimbabwean journalists demonstrating outside
Parliament to protest against proposed media legislation, 30 Jan. 2002.
©AP Photo/Rob Cooper
The UN Special Rapporteur on Freedom of
Opinion and Expression, Abid Hussain, expressed deep concern about the
Bill in January 2002, three months prior to its enactment. He appealed to
the Zimbabwean authorities to reconsider the provisions of the Bill and
not to proceed to pass it into law.(40) His appeal was not heeded by the
government. The Minister of State for Information and Publicity publicly
stated that laws such as AIPPA are needed to enable the government to
defend Zimbabwe's sovereignty, and that AIPPA has brought "sanity" to
Zimbabwe's media industry.(41)
Since its enactment in March 2002,
AIPPA has been used by the government to silence independent journalists
and media workers. At least 21 journalists, all from the independent
media, have been arrested and charged under AIPPA, many more than once.
The courts have dismissed many of these cases due to lack of evidence.
An amendment bill, the Access to Information and Protection of
Privacy Amendment Bill, is presently being reviewed by the Parliamentary
Legal Committee. Information and Publicity Minister Jonathan Moyo has
claimed that the amendment is the result of domestic and international
pressure to ease restrictions on the media.(42) However, if the Amendment
Bill is passed in its present form, it is expected to further tighten
restrictions on independent media.
Contrary to its name, AIPPA is
not about improving access to information or protecting privacy, but
protecting the government from scrutiny by restricting access to
information held by public bodies and penalizing public and media inquiry
of its actions.
Sections 38-42 of AIPPA provide for the
establishment of the Media and Information Commission (henceforth referred
to as the Commission), a body with a wide range of regulatory powers over
the media. For example, under Section 39, the Commission has the power to
register the mass media, accredit journalists, enforce professional and
ethical standards in the media and monitor content. Clause 7 of the
amendment Bill provides that the Commission will be governed by a Board
whose members are all appointed by the Minister of Information, after
consultation with the President.
Many international bodies have
stressed the need for the independence of bodies with regulatory powers,
to protect against political interference in relation to media and
information. As the Commission consists only of government appointees with
no representation from media professionals, journalists are denied the
right to choose their own leaders, regulate their own affairs and enjoy
professional independence.(43) Furthermore, Amnesty International is
concerned that the Minister who has control over the Commission has
repeatedly demonstrated his contempt for the independent media through
ongoing verbal attacks and threats.
Section 66 provides that all
bodies which disseminate mass media products, including electronic
communication, must register with the Commission, regardless of size or
frequency of publication. This applies, for example, to internet service
providers, small NGO publications and shops which rent videos and sell
newspapers. It is clear that AIPPA's intent is to specifically control the
independent media as no similar requirements have been placed on the
ZBC, the government-controlled media house, to register under this
legislation.
Section 79 makes accreditation mandatory for all
journalists. This Section also states that non-Zimbabweans or individuals
without permanent residency, are not permitted to work as journalists. If
an unaccredited journalist or a media house operates without being
registered, they are liable to up to two years in prison. Registration for
journalists is renewable after one year and for media houses, after two
years, but is subject to cancellation on various grounds.
Most
countries require media registration in some form. Accreditation of
journalists is also generally held to be necessary, but in most countries
it is handled by the journalists' own professional body, who take
responsibility for ensuring that accredited journalists meet professional
standards. However, in the case of Zimbabwe, Amnesty International is
concerned accreditation is being used as a vehicle for censorship, as
journalists are accredited by a government-controlled Commission and can
easily have their accreditation revoked should they report in a way which
is perceived to be critical of government policies and practices.
The foreign press has also been targeted through AIPPA and its
amendment which tighten restrictions on foreign media operations and
foreign journalists. Section 90 prohibits the establishment of foreign
press offices in Zimbabwe without the permission of the Commission.
Section 79 prohibits foreign journalists from working in Zimbabwe unless
for restricted periods and with the permission of the Commission. As per
Clause 19 of the amendment Bill, this will be restricted to a maximum of
30 days. Amnesty International believes that the government is using this
provision to deny accreditation to foreign journalists. Prior to the
enactment of AIPPA, several journalists were denied accreditation in early
2002 to cover the presidential elections. Since AIPPA's enactment, more
foreign journalists have been forced to leave the country as a result of
registration prohibitions. For example, in October and November 2002, two
journalists with Agence France Presse (AFP) were denied extensions
on their work permits and ordered to leave Zimbabwe by the Ministry of
Information and Publicity.
In many countries, laws which are
commonly used against journalists and the media tend to relate to the
issue of defamation. While defamation can be both a civil and a criminal
matter, it is generally regarded as a civil offence. Section 80 of AIPPA
and Sections 12, 15 and 16 of POSA effectively criminalize defamation. The
authorities have used AIPPA to impose tight restrictions on the ability
and right of journalists to report on the activities of the government,
and the ability of the media to publish information that it believes to be
accurate and true. One of the most commonly used provisions of AIPPA is
Section 80 which makes it a criminal offence to falsify information
and publish falsehoods and is punishable by up to two years' imprisonment.
Since AIPPA was enacted in March 2002, over a dozen journalists and
editors from the independent media have been arrested and charged under
Section 80.
Arrest and acquittal of American journalist Andrew
Meldrum
In June 2002, Andrew Meldrum, a US national and journalist
with the United Kingdom-based newspaper The Guardian, was the first
journalist to be charged and tried under Section 80 of AIPPA with "abusing
journalistic privilege by publishing a falsehood" in connection with a
report regarding the alleged beheading of a woman by ZANU-PF supporters.
Although he was acquitted, within hours of the ruling he was served with a
deportation order by the Ministry of Home Affairs. Following a High Court
application, his deportation was suspended and the matter was referred to
the Supreme Court. No date has been set for his Supreme Court hearing.
Under Section 85, accredited journalists are obliged to observe a
code of conduct to be developed and enforced by the Commission. Amnesty
International is concerned that as the code of conduct has not yet been
prepared, journalists are required to agree in advance to a document which
contains rights and duties which they are unaware of and which may be
contrary to their right to freedom of expression.(44)
Independent Journalists Association of Zimbabwe challenges
AIPPA
In August 2002, the Independent Journalists Association of
Zimbabwe (IJAZ), through Abel Mutsakani (President of IJAZ, news editor of
the Financial Gazette newspaper) and Vincent Kahiya (news editor of
the Zimbabwe Independent newspaper), filed an application with the
Supreme Court to challenge the constitutionality of Sections 79, 80, 83
and 85 of AIPPA. When read together, these sections compel journalists to
register with the Commission, and prevent individuals from exercising the
right to inquire, gather, receive and disseminate information or visit
public bodies with the express purpose of carrying out duties as a
journalist, unless accredited by the Commission. IJAZ contends that these
Sections violate Section 20(1) of Zimbabwe's Constitution which guarantees
freedom of expression. Previously, accreditation was entirely voluntary
for the purpose of enhancing easier identification of journalists and was
therefore within Section 20(1) of the Constitution. No date has yet been
set for the Supreme Court ruling.
The rationale for the
introduction of the Amendment is largely viewed as an attempt by the
government to pre-empt further constitutional challenges to AIPPA. Thus
far, three constitutional cases have been filed against AIPPA: Geoff
Nyarota, former Daily News editor and journalist Lloyd Mudiwa, are
challenging Section 80, as are IJAZ which is also challenging Sections 79,
83 and 85. The Associated Newspapers Group (ANZ), publishers of the
Daily News, are challenging several Sections, including Section 65
which provides for "restrictions in the ownership of and holding of shares
in a mass media service". No Supreme Court rulings on these cases have
been made to date. However in October 2002, the government admitted that
Section 80 is unconstitutional.(45) Among other changes, the Amendment
Bill proposes to amend the provision which stipulates that a journalist
can be charged with a criminal offence for contravening Section 80 of the
AIPPA. If the Bill is passed in its present form, it will in future be
necessary to prove that someone's "reputation, freedoms or rights have
been directly threatened by the publication of a falsehood or
fabrication".
4. Private Voluntary Organizations
(PVO) Act
The Private Voluntary Organizations (PVO) Act
was enacted in 1967 under colonial rule. It provides for the registration
of private voluntary organizations and controls the collection of
contributions to such organizations. It has been amended several times
since its enactment, most recently in 2001.
In September 2002, the
Ministry of Public Service, Labour and Social Welfare published a notice
in the government newspaper, The Herald, advising NGOs to register
with the Ministry through the High Court in accordance with Section 6 of
the PVO Act. Section 6 reads: "[n]o private voluntary organization shall
commence or continue to carry on its activities; or seek financial
assistance from any source unless it has been registered in respect of the
particular object or objects in furtherance of which it is being
conducted." The notice warned that NGOs which continue to operate without
being registered risk prosecution and arrest. Section 6 of the PVO Act
therefore prohibits the operation of bodies, institutions or associations
which are not registered, while Section 25 makes non-registration a
criminal offence, punishable by up to two months in prison. The
registration process as set out in Section 9 is cumbersome and possibly
quite lengthy. The requirement that organizations must cease operations if
they are not registered under the PVO Act contradicts existing Zimbabwean
law, under which it is legal to register and operate as a Trust with the
Registrar of Deeds without having to register with the High Court.
Furthermore, it seems that the High Court does not have a legal mechanism
to undertake such a registration.
The notice did not amend the PVO
Act. It is, however, the first attempt by the government to enforce the
PVO Act in recent years.(46) Despite its enactment in 1967, these
provisions of the PVO Act had not previously been fully enforced. The
September 2002 notice is therefore a reassertion of the provisions of the
PVO Act concerning the registration of NGOs.
On the surface, the
government's publication of the notice appears to be motivated by the
intent to regulate. However, at a deeper level, there are fears that once
registered, certain organizations perceived to be critical of the
government will be de-registered, or will be strictly controlled and
supervised by the government. These moves correspond with the likely
desire of the government to control and silence organizations which are
perceived to be supporting the opposition; investigating human rights
violations; or providing assistance to victims of torture, displaced farm
workers and other disadvantaged groups.(47) Of further concern are
indications that the government intends to introduce new legislation which
may further curtail the activities of NGOs, possibly through a total
prohibition on the receipt of foreign funding by local NGOs, along with
harsher penalties for breaches of the PVO Act.
State
harassment of Amani Trust
In October 2002, President Mugabe
announced that the Government would scrutinize NGOs and review the laws
governing them.(48) In November 2002, Amani Trust, a Zimbabwean human
rights NGO which provides support to torture victims, was singled out for
public attack by the government which accused it of supporting the MDC and
trying to destabilize the country. That same month, the Minister of Public
Service, Labour and Social Welfare, July Moyo, stated in Parliament that
Amani Trust was not properly registered because it had only registered its
Constitution with the Registrar of Deeds, and its registration was
therefore not in accordance with the PVO Act. Amani Trust did attempt to
register with the High Court but was told that no legal mechanism exists
for the High Court to undertake such a registration. In response to
repeated harassment and threats of arrest, the Trust closed its offices in
November 2002 and has not since re-opened. In January 2003, Amani Trust
staff received threats that their offices would be
petrol-bombed.
Amnesty International is concerned that Section 6 of
the PVO Act which criminalizes the non-registration of NGOs violates
Section 21 of Zimbabwe's Constitution which provides for the right to
freedom of association.(49) The provisions of the PVO Act which prevent
individuals from forming and running organizations free from state control
also contravene Article 21 of the ICCPR and Article 10 of the African
Charter which guarantee the right of an association to operate effectively
and independently.(50) In doing so, these two international human right
standards also oblige the government of Zimbabwe to protect the rights of
human rights defenders.
In October 2002, the Special Representative
of the UN Secretary General on Human Rights Defenders, Hina Jilani,
expressed her concern regarding violent attacks reportedly suffered by
Zimbabwean human rights defenders and that these attacks appear to be part
of a policy of repression.(51) The government's harassment, verbal attacks
and enforcement of the PVO Act is inconsistent with the UN Declaration on
Human Rights Defenders which recognizes the crucial role played by human
rights organizations and activists, and requires that they be free to work
in an environment free from intimidation and attack. Article 6 of the
Declaration on Human Rights Defenders provides that everyone has the
right, individually and in association with others "to study, discuss,
form and hold opinions on the observance, both in law and in practice, of
all human rights and fundamental freedoms and, through these and other
appropriate means, to draw public attention to those matters." Hina Jilani
reported in October 2002 that she will continue to monitor the situation
and seek the cooperation of the Government for the implementation of the
Declaration on Human Rights Defenders.
5. Labour
Relations Amendment Act (LRAA)
Historically, Zimbabwe has
had a multi-tiered system of labour law with several pieces of legislation
governing different categories of employees. Private sector workers were
covered by the Labour Relations Act (1985). Public servants were covered
by the Public Servants Act and a series of public service regulations and
directives, while employees working in Export Processing Zones fall under
the Export Processing Zones Act. As a result, the conditions of employment
differed for workers depending on the legislation which governed them.
While the Labour Relations Act recognized the right of workers to
form and join trade unions without prior authorization, public servants,
such as teachers and nurses, were not permitted to form their own trade
unions. They were able to join associations, but could not bargain
collectively or strike.(52) To address these disparities, the labour
movement has repeatedly called on the government to harmonize these laws
and standardize the conditions of employment for all workers.
On 7
March 2003, the government enacted the LRAA, which aimed at, among other
things, harmonizing the Labour Relations Act and the Public Servants Act.
Of particular concern are the provisions under the LRAA which tighten
restrictions on the ability of unions to organize strikes and
demonstrations, effectively denying workers their right to strike.
Opposition MPs reportedly attempted to prevent the passage of the LRAA
Bill through parliament, but were outnumbered when the vote was
taken.
The government maintains that the amendment to the Labour
Relations Act is intended to ensure that Zimbabwe's labour legislation
conforms to recommendations of the ILO as part of on-going democratic
reforms of the labour market.(53) Controversially, in 2002, the government
reportedly turned down an ILO proposal to send a mission to Zimbabwe to
assist with the development of amendments to the Labour Relations Act to
ensure conformity with international standards. The ILO also sought to
encourage the restoration of guarantees for the right to freedom of
association for trade unions. In turning down the proposed ILO mission,
the Minister of Public Service, Labour and Social Welfare, July Moyo,
maintained that the correct procedure would be for the ILO to task a
Committee of Experts with the duty of monitoring the application of
international labour standards in Zimbabwe and then liaise with the
government.(54)
The LRAA does not protect the right of workers to
freedom of association. For example, the Amendment contains controversial
provisions which curtail the right to engage in collective job action.
Section 37 provides that collective job action requires: 14 days notice;
needs the approval of the relevant union or employers' organization or a
secret ballot; and that all measures laid down for internal resolution of
disputes have been exhausted. Section 34 stipulates that collective job
action is prohibited if the parties have agreed to go to arbitration,
otherwise it is punishable by up to two years in prison.
According
to Section 37, only workers in non-essential services are permitted to
strike. Those workers who are classified under the "essential services"
category are not permitted to take part in any collective job action.
Under Section 36, the definition of what constitutes essential service has
been strategically broadened and now means services "the interruption of
which endangers immediately the life, personal safety or health of the
whole or any part of the public." Previously under the Labour Relations
Act, "essential services" included services related to fire prevention,
emergency health care and water and electricity supply. Amnesty
International is concerned that in expanding the definition of "essential
services", a wider number of workers whose rights to engage in collective
job action are now restricted.
According to Section 40 of the
Amendment Act, employees or their representative bodies found guilty of
any form of involvement in unlawful collective action will be punished by
up to five years' imprisonment. Peaceful picketing is permitted under
Section 38, but requires approval from an industrial agreement to be
inside work premises and even then must not affect production.
The Sections of the LRAA which curtail the right to engage in
collective job action contravene Section 21 of Zimbabwe's Constitution
which expressly guarantees the right to "belong to political parties or
trade unions". They also violate Article 22 of the ICCPR and Article 10 of
the African Charter which guarantee the right to freedoms of association.
Provisions of the LRAA contravene Article 3 of the Right to Organize and
Collective Bargaining Convention which states that "[m]achinery
appropriate to national conditions shall be established, where necessary,
for the purpose of ensuring respect for the right to organize as defined
in the preceding articles."
V. Conclusion and recommendations
Amnesty
International is deeply concerned that the Government of Zimbabwe is using
provisions of national legislation to silence dissent, perpetrate human
rights violations and effectively place the rights of Zimbabweans under
siege.
Since 2000, state-sponsored intimidation, arbitrary arrest, torture and
attacks on the political opposition, independent media and human rights
organizations have escalated sharply. The government has used its
supporters as well as state agents, namely so-called war veterans, youth
"militia", police, state security agents and the army to wage a targeted
campaign of repression in a bid to retain control.
In particular, new laws have been introduced and existing laws amended
to shield the government from mounting domestic and international scrutiny
and to clamp-down on its perceived opponents by restricting their rights
to freedom of expression, association and assembly. Opposition officials
and supporters, journalists, human rights activists, trade unions,
students, teachers, lawyers and court officials are some of those who have
been singled out for attack. Although the legislation is specifically
aimed at silencing the government's growing constituencies of dissent, it
has widespread implications for the rights of all Zimbabweans to publicly
voice concerns and actively participate in the democratic governance of
their country.
Zimbabwe has ratified the International Covenant on
Civil and Political Rights, the African Charter on Human and Peoples'
Rights and other international human rights standards which guarantee the
rights to freedom of expression, association and assembly. Despite this,
the authorities have used provisions of the Broadcasting Services Act, the
Public Order and Security Act, the Access to Information and Protection of
Privacy Act, the Private Voluntary Organizations Act and the Labour
Relations Amendment Act to suppress these internationally recognized
rights.
The international community has a vital role to play in
publicly condemning the government of Zimbabwe for the country's
spiralling human rights crisis. African governments in particular should
make a concerted effort directly and through the auspices of the
Commission of the African Union, the Southern African Development
Community (SADC) and the Commonwealth to signal to the Zimbabwean
authorities that state-sponsored attacks on the political opposition,
independent media and human rights activists contravene international
human rights standards.
In order to halt the deteriorating
human rights situation in Zimbabwe, Amnesty International is calling on
the Zimbabwean government to:
1. Immediately cease all
intimidation, arbitrary arrests and torture of the political opposition,
independent media and human rights activists.
The government
must end all intimidation, arbitrary arrests and torture of political and
human rights activists and media workers, and allow all Zimbabweans full
and free exercise of their rights to freedom of expression, association
and assembly. Court decisions which respect and protect the rights to
freedom of expression, association and assembly must be
upheld.
2. Repeal or amend legislation which violates
internationally recognized rights to freedom of expression, association
and assembly and which contravenes international and national
law
All national legislation which is incompatible with the
principles and provisions of the ICCPR, African Charter on Human and
Peoples' Rights and ILO Labour conventions must be immediately repealed or
amended. The government must specifically amend or repeal repressive
provisions of the Broadcasting Services Act, the Public Order and Security
Act, the Access to Information and Protection of Privacy Act, the Private
Voluntary Organizations Act and the Labour Relations Amendment Act. These
Zimbabwean laws contain draconian provisions which deny fundamental human
rights and facilitate the political misuse of the police.
3.
Incorporate international human rights standards under which the
government of Zimbabwe has legal obligations into national
law
As Zimbabwe has ratified the International Covenant on
Civil and Political Rights, the African Charter on Human and Peoples'
Rights and International Labour Organization Convention 98 on the Right to
Organize and Collective Bargaining, national legislation must be brought
into line with the fundamental rights and freedoms contained in these
legal standards, recognizing and impartially enforcing them. The
principles articulated in the UN Declaration on Human Rights Defenders
should also be fully incorporated into national law.
4. Ratify international human rights standards which guarantee the
rights to freedom of expression, association and assembly and respect
these provisions
The following international standards should
immediately be ratified by the Zimbabwean government:
- International
Labour Organization Freedom of Association and Protection of the Right to
Organize Convention 1948 (No.87)
- two Optional Protocols to the
International Covenant on Civil and Political Rights allowing the right of
individual communication to the UN Human Rights Committee and abolishing
the death penalty respectively
- UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
-
Protocol to the African Charter establishing the African Court on Human
and Peoples' Rights.
5. End the political misuse of the police
and ensure that police officers abide by the highest standards of
professionalism and respect for human rights
Restrictive
legislation such as the Public Order and Security Act has been used by the
police to harass, arbitrarily arrest and torture Zimbabweans with
impunity. The Zimbabwean government should cease to use Zimbabwe Republic
Police officials for political purposes, including for the suppression of
peaceful, non-violent public assemblies and the persecution of opposition
parties, independent media workers and human rights activists. The
authorities must take effective action to discipline state officials who
abuse the criminal process to the detriment of members of human rights
organizations with the intention of harassing them or curtailing their
legitimate activities for the defence of human rights and fundamental
freedoms.
6. Investigate all cases of police brutality,
torture, unlawful arrest and detention and bring to justice the suspected
perpetrators
It is vital that the authorities take effective
measures to investigate all allegations of human rights violations
promptly, thoroughly and impartially. The authorities should also make it
publicly clear that human rights violations by the police will not be
tolerated under any circumstances and that the need to investigate crime
or deal with public disorder can never be used as a justification for
human rights violations.
7. Issue invitations to the UN Special
Rapporteurs on Freedom of Opinion and Expression and on Torture, and the
Special Representative of the UN Secretary General on Human Rights
Defenders
The Government of Zimbabwe should issue invitations for
fact-finding visits to Zimbabwe by the UN thematic mechanisms, in
particular the Special Rapporteurs on Freedom of Opinion and Expression
and on Torture, and the Special Representative of the UN Secretary General
on Human Rights Defenders.
Appendix I: Excerpts from international human rights standards
Article 19 of the ICCPR
1. Everyone shall have the
right to hold opinions without interference.
2. Everyone shall have
the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
Article 21 of the
ICCPR
The right of peaceful assembly shall be recognized. No
restrictions may be placed on the exercise of this right other than those
imposed in conformity with the law and which are necessary in a democratic
society in the interests of national security or public safety, public
order, the protection of public health or morals or the protection of the
rights and freedoms of others.
Article 22 of the
ICCPR
1. Everyone shall have the right to freedom of
association with others, including the right to form and join trade unions
for the protection of his interests.
Article 9 of the
African Charter on Human and Peoples' Rights
1. Every
individual shall have the right to receive information.
2. Every
individual shall have the right to express and disseminate his opinions
within the law.
Article 10 of the African Charter on Human
and Peoples' Rights
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 Article 29 no one may be
compelled to join an association.
Article 11 of the African
Charter on Human and Peoples' Rights
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.
African
Commission Declaration of Principles on Freedom of Expression in
Africa
Article II on Interference with Freedom of
Expression states:
1. No one shall be subject to arbitrary
interference with his or her freedom of expression
Article V
on Private Broadcasting states:
1. States shall encourage a
diverse, independent private broadcasting sector. A state monopoly over
broadcasting is not compatible with the right to freedom of
expression.
Article VII on Regulatory Bodies for Broadcast
and Telecommunications
1. Any public authority that exercises
powers in the areas of broadcast or telecommunications regulation should
be independent and adequately protected against interference, particularly
of a political or economic nature.
Article VIII on Print
Media
1. Any registration system for the print media shall not
impose substantive restrictions on the right to freedom of
expression.
2. Any print media published by a public authority should
be protected adequately against undue political
interference.
Article XI on Attacks on Media
Practitioners
1. Attacks such as the murder, kidnapping,
intimidation of and threats to media practitioners and others exercising
their right to freedom of expression, as well as the material destruction
of communications facilities, undermines independent journalism, freedom
of expression and the free flow of information to the public.
2. States
are under an obligation to take effective measures to prevent such attacks
and, when they do occur, to investigate them, to punish perpetrators and
to ensure that victims have access to effective
remedies.
Article 12 of the UN Declaration on Human Rights
Defenders
1. Everyone has the right, individually and in
association with others, to participate in peaceful activities against
violations of human rights and fundamental freedoms.
2. The State shall
take all necessary measures to ensure the protection by the competent
authorities of everyone, individually and in association with others,
against any violence, threats, retaliation, de facto or de
jure adverse discrimination, pressure or any other arbitrary action as
a consequence of his or her legitimate exercise of the rights referred to
in the present Declaration.
3. In this connection, everyone is
entitled, individually and in association with others, to be protected
effectively under national law in reacting against or opposing, through
peaceful means, activities and acts, including those by omission,
attributable to States that result in violations of human rights and
fundamental freedoms, as well as acts of violence perpetrated by groups or
individuals that affect the enjoyment of human rights and fundamental
freedoms.
********
(1) Youth "militia" are commonly referred
to as "green bombers" because of the green military fatigues they
wear.
(2) See Amnesty International, Zimbabwe: Terror tactics in
the run-up to parliamentary elections, June 2000 (AI Index: AFR
46/014/2000).
(3) Zimbabwe Human Rights NGO Forum, Political
Violence Report: December 2002.
(4) See Amnesty International,
Zimbabwe: Mass arrests signal new and dangerous phase of repression, 21
March 2003 (AI Index: AFR 46/009/2003).
(5) Richard Saunders,
Dancing out of tune: a history of the media in Zimbabwe, Harare, 1999:
39.
(6) MISA-Zimbabwe, State of the Media Report, December
2002.
(7) Media Institute of Southern Africa, "Information Minister
attacks private media", 19 November 2002.
(8) Zimbabwe Human Rights
NGO Forum, Political Violence Report, 1-16 February 2002; "School teacher
killed in Zimbabwe political violence", Agence France Presse, 7 February
2002.
(9) Amnesty International, Zimbabwe: Government steps up
harassment of human rights defenders, 16 November 2002 (AI Index: AFR
46/048/2002).
(10) Amnesty International, Zimbabwe: The toll of
impunity, June 2002 (AI Index: AFR 46/034/2002).
(11) "Amani Trust
illegal" The Herald, 14 November 2002.
(12) See Appendix I for the
full text of these provisions. These rights are also guaranteed in the
1948 Universal Declaration of Human Rights (UDHR) under Articles 19 and
20.
(13) UN Human Rights Committee, Initial Report on Zimbabwe
(CCPR/C/SR. 1664), paragraph 4.
(14) UN Human Rights Committee,
Article 19, 29 June 1983, General Comment 10.
(15)
Ibid.
(16) See Appendix for selected provisions.
(17)
Windhoek Declaration on Promoting an Independent and Pluralistic African
Press 1991, para 13.
(18) Windhoek Charter on African Broadcasting,
2001: Part One, para 1.
(19) African Commission on Human and
Peoples' Rights, Resolution on the Right to Freedom of Association,
Gambia, December 2002.
(20) African Commission on Human and
Peoples' Rights, Case 155/96, The Social and Economic Rights Action Center
and the Center for Economic and Social Rights v. Nigeria.
(21)
Ibid.
(22) International Labour Organization, Convention (No.98)
concerning the Application of the Principles of the Right to Organize and
to Bargain Collectively.
(23) International Labour Organization,
329th Report of the Committee on Freedom of Association, GB.285/9, Part I,
paragraph 156.
(24) International Labour Organization, "Latest
report of ILO Committee on Freedom of Association cites Belarus, Colombia,
Zimbabwe, others", 21 November 2002 (ILO/02/51).
(25) See Appendix
for selected provisions.
(26) The Constitution of Zimbabwe (As
amended to No.16 of 20 April 2000).
(27) Regulations made under the
Presidential Powers (Temporary Measures) are valid for six months after
which they lapse unless they are passed into law by
Parliament.
(28) Tawanda Hondora, MISA-Zimbabwe, The Broadcasting
Services Act: An Analysis, 2002.
(29) Windhoek Charter on African
Broadcasting, 2001: Part One, paragraph 5.
(30) Broadcasting
Services Act, 2001, Third Schedule, Provisions applicable to Broadcasting
Authority of Zimbabwe Board.
(31) African Commission on Human and
Peoples' Rights, Declaration of Principles on Freedom of Expression in
Africa, 32nd Session, 17-23 October, 2002: Banjul, Gambia: Section
V(1).
(32) "Government to amend law to allow community
broadcasting", Financial Gazette, 13 March 2003.
(33) The
Parliamentary Legal Committee is a standing committee of Parliament
established under the Zimbabwean Constitution and tasked with reporting on
whether legislation contravenes the Declaration of Rights or any other
provision of Zimbabwe's Constitution.
(34) Several delays occurred
to the enactment of the POSB. It was passed by Parliament in 1999 but was
vetoed by President Robert Mugabe, reportedly on the basis that it was too
ambiguous and not sufficiently tough on the media.
(35) Special
Representative of the Secretary General on Human Rights Defenders, Report
to the 59th Session of the UN Commission on Human Rights, February 2003,
E/CN.4/2003/104/Add.1
(36) Patrick Chinamasa, Minister of Justice,
Legal and Parliamentary Affairs - text of interview by Zimbabwean TV on 21
November 2001.
(37) Lawyers Committee for Human Rights, Background
statement on the Public Order and Security Bill before the Zimbabwean
Parliament, 19 December 2001.
(38) The Johannesburg Principles on
National Security, Freedom of Expression and Access to Information,
1995.
(39) Media Monitoring Project Zimbabwe, Submission to the
African Commission on Human and Peoples' Rights, June 2002.
(40) In
September 2001, the Special Rapporteur requested to undertake an official
mission to Zimbabwe but has not received a positive response from the
Government.
(41) MISA/International Freedom of Expression Exchange
(IFEX), Alert: Information minister verbally attacks private media, 20
November 2002.
(42) BBC, "Minister slams US sanctions, announces
changes to media laws", 13 March 2003.
(43) Irene Petras for
MISA-Zimbabwe, "The legal implications of accreditation or
non-accreditation of journalists under the Access to Information and
Protection of Privacy Act", October 2002.
(44) Ibid.
(45)
MISA, Alert Update: Government admits Section 80 of media bill is
unconstitutional, 31 October 2002.
(46) Brian Kagoro, Coordinator,
Crisis in Zimbabwe Coalition. Legal opinion on the notice to all PVOs not
registered with the Ministry of Public Service, Labour and Social Welfare
in terms of section 9 of the PVO Act [Chapter 12:04], 24 September
2002.
(47) Ibid.
(48) "Amani Trust illegal" The Herald, 14
November 2002.
(49) Pearson Nherere, Opinion: Private Voluntary
Organizations Act, 8 October 2002.
(50) Lawyers Committee for Human
Rights, "Zimbabwean Non-Governmental Organizations under increasing
pressure from restrictive legislation and government threats", 20 November
2002.
(51) Special Representative of the Secretary General on Human
Rights Defenders, Report to the 59th Session of the UN Commission on Human
Rights, February 2003, E/CN.4/2003/104/Add.1
(52) International
Confederation of Free Trade Unions (ICFTU), Annual Survey of Violations of
Trade Union Rights (2002): Zimbabwe.
(53) Colleen Gwari, "Labour
relations bill passed" Daily News, 10 January 2003.
(54) Mthulisi
Mathuthu, "Government bars ILO mission" Zimbabwe Independent, 28 June
2002.
AI INDEX: AFR
46/012/2003 2 May 2003
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