Zimbabwe

Zimbabwe: Human rights defenders under siege

Attachments

  1. Introduction

Amnesty International is deeply concerned by the repression of human rights defenders in Zimbabwe. The government, in an effort to conceal human rights violations and prevent public protest and criticism of its actions, has become increasingly intolerant of the work of human rights defenders and is actively seeking to silence them.

The repression of human rights defenders takes many forms. In recent years the government has used the law to violate defenders' rights to freedom of expression, association and assembly, preventing them from freely forming organizations, meeting together and criticizing government policy. Individual defenders are arbitrarily arrested and detained, assaulted and harassed by state agents. Some have been subjected to torture and inhuman or degrading treatment. Human rights organizations are also subject to intrusive and unwarranted state surveillance of their operations.

In 2004 the government introduced legislation that, if enforced, would ban international human rights organizations from operating in Zimbabwe and could be used to close down or severely restrict the work of national human rights organizations. Despite criticism from human rights groups worldwide, the Non-Governmental Organizations (NGO) Bill was passed by Zimbabwe's Parliament on 9 December 2004. (1) However, it was not signed into law before Parliamentary elections on 31 March 2005, and its future is now unclear. Amnesty International believes that the NGO Bill was introduced in order to intimidate human rights organizations through the threat of closure.

Since the Parliamentary elections Amnesty International has noted, with growing concern, the government's continuing repression of human rights defenders, including numerous arbitrary arrests, serious assaults and intimidation.

This report documents the Zimbabwe government's escalating repression of civil society, and looks in particular at how organizations and individuals that are critical of the government's human rights record or that mobilize peaceful public demonstrations have become key targets of this repression. The report contains recommendations to the Zimbabwean government for action to protect human rights defenders. Specifically, Amnesty International is calling for the repeal of all legislation that violates internationally recognized human rights and undermines the work of human rights defenders, and an end to state harassment of human rights defenders.

2. Zimbabwe's human rights obligations under international and national law

Zimbabwe's human rights obligations include both the commitments contained in the Constitutional Bill of Rights and the international treaties to which it is a State Party. Zimbabwe is State Party to, amongst others, the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples' Rights (African Charter).(2)

Under Zimbabwe's legal system, international treaties which have been acceded to or otherwise ratified are not automatically incorporated into national legislation. According to Section 111b of the Zimbabwean Constitution,(3) international conventions, treaties and agreements which have been acceded to, concluded or executed only form part of Zimbabwean law once an Act of Parliament has been passed. Neither the ICCPR nor the African Charter has been incorporated into Zimbabwe's domestic laws.

However, under international law, international treaties must be observed in good faith by those States which have ratified or acceded to them. Furthermore, a State Party may not invoke the provisions of its national law as justification for its failure to implement a treaty.(4) In this sense, States Parties are obliged to repeal or amend domestic laws to ensure that they are consistent with international treaties as well as to adopt measures to ensure the implementation of the obligations contained in the treaties to which they are party.

Freedom of expression, association and assembly

The rights to freedom of expression, association and assembly are fundamental to the work of human rights defenders. These rights are enshrined in the Constitution of Zimbabwe (sections 20 and 21), the ICCPR (Articles 19, 21 and 22) and the African Charter (Articles 9, 10 and 11).

While the rights to freedom of expression, association and assembly are not unlimited, international human rights law prevents governments from arbitrarily restricting these rights. In respect of rights contained in the ICCPR the UN Human Rights Committee has stated:

"States Parties must refrain from violation of the rights recognized by the Covenant and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right."(5)

The African Commission on Human and Peoples' Rights (African Commission) has repeatedly affirmed the rights to freedom of expression, association and assembly. The African Commission's Declaration of Principles on Freedom of Expression in Africa, adopted at the 32nd Session of the African Commission held in October 2002 in Gambia, reaffirms the fundamental importance of freedom of expression as a means of ensuring respect for all human rights, stating that freedom of expression is a fundamental human right and an indispensable component of democracy.(6) The declaration makes clear that any restrictions on freedom of expression should be prescribed by law, serve a legitimate interest and be necessary and in a democratic society. This echoes the language of the ICCPR which states:

"No restrictions may be placed on the exercise of [the right to freedom of association] other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."(7)

The African Commission Resolution on the Right to Freedom of Association also makes specific reference to the limits of any restriction on the right to freedom of association:

1. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international standards; 2. In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom; 3. The regulation of the exercise of the right to freedom of association should be consistent with State's obligations under the African Charter on Human and Peoples' Rights." (8)

International human rights standards and human rights defenders

In clear recognition of the important work of human rights defenders, 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 (referred to as the UN Declaration on Human Rights Defenders) was adopted by the UN General Assembly in 1999.(9) This Declaration sets down a series of principles and standards aimed at ensuring that states fully support the efforts of human rights defenders and ensure that they are free to conduct their activities for the promotion, protection and effective realization of human rights without hindrance or fear of reprisals.

Key articles in the Declaration include the right to be informed about fundamental rights and freedoms, and to meet and assemble peacefully for the purpose of promoting universally recognized human rights. The Declaration also confirms the right to criticize government policy and action in relation to human rights, and the right to adequate protection and an effective remedy when an individual's rights are violated as a result of efforts to promote fundamental rights and freedoms.

Articles of the Declaration also deal specifically with the practical work of human rights defenders, such as funding and resources for their work. Human rights defenders cannot rely on being paid for the services they provide; the victims of human rights violations and the other people represented or assisted by defenders are often poor. The UN Declaration on Human Rights Defenders guarantees to everyone the right to "solicit, receive and utilize resources for the express purpose of promoting and protecting human rights through peaceful means".(10)

The Declaration further states that human rights defenders, whether individuals or organizations, should be subject only to such limitations as are in accordance with applicable international obligations.(11)

The African Union (and the Organization of African Unity before it) has repeatedly affirmed the importance of human rights defenders and the UN Declaration on Human Rights Defenders. At the first Organization of African Unity (OAU) Ministerial Conference on Human Rights at Grand Bay, Mauritius in April 1999, the OAU called "on African governments to take appropriate steps to implement the Declaration in Africa".(12)

In 2004 the African Commission on Human and Peoples' Rights appointed a Special Rapporteur for Human Rights Defenders in Africa. In its resolution, the African Commission called upon member states:

"to promote and give full effect to the UN Declaration on Human Rights Defenders, to take all necessary measures to ensure the protection of human rights defenders and to include information on measures taken to protect human rights defenders in their periodic reports". (13)

The African Commission on Human and Peoples' Rights: fact-finding mission to Zimbabwe

In 2002 the African Commission on Human and Peoples' Rights sent a fact-finding mission to Zimbabwe. The mission took place in the context of Zimbabwe's obligations under the African Charter on Human and Peoples' Rights. Although the report of the fact-finding mission was adopted by the African Commission in November 2003, in accordance with the Rules of Procedure of the African Commission, it was not officially made public until it had been considered by the African Union in January 2005.(14) In the report, the African Commission makes a number of findings and recommendations that are relevant to the work of human rights defenders in Zimbabwe.

The African Commission found that "the government had failed to chart a path that signalled a commitment to the rule of law" and in its recommendations stated that "the independence of the judiciary should be assured and that court orders should be obeyed".

The Commission found that the government had introduced laws which undermined freedom of expression and recommended that such laws be amended to meet international standards for freedom of expression.

The Commission further stated that: "Legislation that prohibits the public participation of NGOs in public education and human rights counselling must be reviewed. The Private Voluntary Organizations Act should be repealed."

Notes:

(1) For a human rights critique of the proposed NGO Act see, amongst others: Amnesty International, "NGO Act is a gross violation of human rights", 10 December 2004, AI Index: AFR 46/039/2004; International Bar Association, "Analysis of the Zimbabwe Non-governmental Organizations Bill, 2004", 24 August 2004; Human Rights Watch, "Proposed law on NGOs would violate basic rights", 4 September 2004; Zimbabwe Lawyers for Human Rights, "Zim NGO Bill: Dangerous for human rights defenders", July 2004; Parliament of Zimbabwe, "Parliamentary Legal Committee adverse report on the NGO Bill [H.B. 13, 2004]", 9 November 2004.

(2) Zimbabwe acceded to the ICCPR in 1991 and ratified the African Charter in 1986.

(3) The Constitution of Zimbabwe (As amended to No.16 of 20 April 2000).

(4) See articles 26 and 27 of the Vienna Convention on the Law of Treaties (1969). Although Zimbabwe is not a party to the Vienna Convention on the Law of Treaties, Article 26, which refers to the principle of pacta sunt servanda stating that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith", is recognized as a rule of customary international law. Further to Zimbabwe's accession to the ICCPR in 1991, Article 49.2 of the ICCPR states that "[f]or each State ratifying the present Covenant or acceding to it ... the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession."

(5) General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.1, para. 6.

(6) African Commission on Human and Peoples' Rights, Declaration of Principles on Freedom of Expression in Africa, I(1), October 2002, Gambia.

(7) ICCPR, Article 22 (2).

(8) African Commission on Human and Peoples' Rights, Resolution on the Right to Freedom of Association, Tunis, March, 1992.

(9) A/RES/53/144, 8 March 1999.

(10) 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, Article 13.

(11) Ibid., Article 17.

(12) Organization of African Unity, Grand Bay (Mauritius) Declaration and Plan Of Action, adopted at Grand Bay, Mauritius on 16 April 1999, para 19.

(13) African Commission, Resolution on Protection of Human Rights Defenders in Africa, 35th Ordinary Session, Banjul, the Gambia, June 2004. See also, Amnesty International, "Towards the Promotion and Protection of the Rights of Human Rights Defenders in Africa. Amnesty International's recommendations to the Focal Point on Human Rights Defenders of the African Commission on Human and Peoples' Rights", 19 March 2004, AI Index: IOR 63/004/2004.

(14) The report of the mission, containing its findings and recommendations to the government, was adopted by the African Commission at its 34th Ordinary Session in November 2003. See: Final Communiqué of the 34th Ordinary Session of the African Commission on Human and Peoples' Rights, para 16, Gambia, 20 November 2003; In accordance with its Rules of Procedure the African Commission forwards its final mission reports to the governments concerned for comments. The report and the government's comments -- if any -- are then submitted to the African Union (AU) Assembly of Heads of State and Government. The African Charter on Human and Peoples' Rights (African Charter) provides that all measures taken within the provisions of the Charter remain confidential until the AU Assembly decides otherwise. Following consideration by the AU Assembly, the Commission's Annual Activity Reports, which include reports on missions and other activities, shall be made public. See: Article 59 of the African Charter on Human and Peoples' Rights.

(pdf* format - 225 KB)