Not Alone: The Role of Independent Commissions in Times of Crisis

Introduction

A very serious question over the past few weeks arises in relation to the actions of the Independent Commissions in Zimbabwe.

In this edition of the NPRC Watch, we are expanding the scope of the discussion to look at not only the National Peace and Reconciliation Commission (NPRC), but all independent commissions that are established to support democracy and entrench human rights through Chapter 12 of the Constitution. We look at the role these commissions in the times of crisis when violations of human rights are on the increase.

The Context: Post Election Zimbabwe and the Rising Tensions

The Motlanthe Commission

Zimbabwe convened harmonized elections on July 30, 2018. On August 1, following a public demonstration due to the delays by the Zimbabwe Electoral Commission (ZEC) to release the presidential results, citizens began demonstration in front of the ZEC Command Centre. In response to the public demonstrations, the Zimbabwe National Army (ZNA) deployed military soldiers, ostensibly to support to the police in quelling the protests. The ZNA fired live ammunition that resulted in the extra judicial killing of six civilians.

On 29 August, 2018, President Mnangagwa appointed a Commission of Inquiry to investigate the post-election violence. The Commission of Inquiry invited the public to submit evidence through its secretariat. In addition, the Commission also convened public hearings in Harare, Bulawayo, Gweru, and Mutare, before concluding with a second round of public hearings in Harare that ended on November 27, 2018.

In response to the appointment of the Commission, NTJWG issued a guidance note in which it stated the need to make sure that the work of the Commission must be focused on ensuring that the four principles against impunity are upheld. NTJWG emphasised the need for victims to have the right to remedy, to know the truth, to access justice and assurances that such violations would never happen again.

No justice or truth for victims but reward for the killers

The Commission of Inquiry’s report was finally launched at a press conference by President Mnangagwa on December 18, 2018, at Munhumutapa Building. An analysis of the report shows that the four principles were ignored by the Commission.

After going through the report, survivors and families of the deceased still do not know who killed their loved one. There is still no justice for the victims and no one was arrested nor disciplined for the killings. On the guarantee for non-recurrence, again there is none. In fact, the Newsday of 18 December, 2018, reported that President Emmerson Mnangagwa promoted to the rank of Major-General Presidential Guard commander Brigadier-General Anselem Nhamo Sanyatwe. He is the man who commanded the military unit that shot at unarmed protesters, killing at least six civilians on August 1 as post-election violence rocked the capital. By this, impunity was cemented. The message was that ‘killing pays’; hence the military did not hesitate to shoot again, hardly a month after the release of the Motlanthe report.

The return of state violence

On 12 January 2019, President Mnangagwa in an unprecedented move, personally announced large fuel price increases on national television, against the background of strikes by health workers, and mooted protest by teachers and other civil servants.

The announcement triggered a nation-wide protest that was met with the heavy-handedness that has become characteristic of the ‘new dispensation’ and previous governments. Between 14 January and 5 February 2019, the Zimbabwe Human Rights NGO Forum reports that 17 people were killed in the violence, the majority of whom were killed by the military through gun shots. Seventeen (17) women suffered sexual abuse at the hands of soldiers, among many other serious violations. Following the violations, we issued an alert on crimes against humanity and called for the prosecution of the perpetrators, who are mainly agents of the state. Statements from the state have indicated that there is no will to prosecute the offenders as the Prosecutor General is on record saying no soldier killed anyone, and the military have alleged that protestors stole arms and killed people. The mass violations have led to renewed calls for national dialogue.

The role of independent commissions in this madness

Strong evidence has come out that the state has committed gross violations of human rights. Since these are both “widespread” and “systematic” these can be characterised as crimes against humanity. In this context there needs to be urgent action from all the independent commissions – Zimbabwe Human Rights Commission, the Zimbabwe Gender Commission, the Zimbabwe Media Commission and the National Peace and Reconciliation Commission.

We would point out that the current crisis and the violence are a proximal result of a highly disputed election. It also points to the need for the Zimbabwe Electoral Commission to ensure undisputed elections by rigid application of the constitution and the electoral laws.

The Zimbabwe Human Rights Commission

Many victims are greatly indebted to the work of the Zimbabwe Human Rights Commission (ZHRC) in these atrocities. Ahead of the Motlanthe Commission, the ZHRC received complaints of the state violence against civilians. The Commission responded, investigated the violations and issued a statement against the violations of human rights.

Following the atrocities related to the shutdown, the ZHRC carried out an investigation and found that armed and uniformed members of the Zimbabwe National Army and the Zimbabwe Republic Police instigated systematic torture. It also found that the actions of the police and soldiers amounted to arbitrary arrests and detention, a crackdown as opposed to law enforcement.

The government’s response to the report of the ZHRC was unacceptable. The Minister of Justice, Legal and Parliamentary Affairs Minister, Mr. Ziyambi Ziyambi, described the report as biased and inaccurate. This was inappropriate.

The ZHRC merely obeyed its constitutional mandate, investigated the allegations and complaints, and provided a report based on the evidence. The Constitution, in Section 243 (1) (f) and (g), gives the Commission power to investigate any authority or person alleged to have violated human rights. The Commission also has power to secure redress for the victims. These Constitutional power mean that the ZHRC can take it upon itself to pursue the issues complained of by the victims against the state and make that perpetrators are brought before the courts.

As noted in the Zimbabwe Human Rights NGO Forum report, On the Days of Darkness in Zimbabwe, violations continue to be reported subsequent to the publication of the ZHRC report.

The Zimbabwe Gender Commission

Serious allegations have surfaced against the military for at least 17 cases of sexual violence, including 15 cases of rape against women. The Zimbabwe Gender Commission (ZGC) is mandated by Section 246 of the Constitution to investigate cases of human rights violations relating to gender, and to pursue appropriate remedy for the victims.

We must express our disappointment at the deafening silence of the ZGC regarding the issues of sexual violence that were reported during the shutdown. The ZGC needs to be seized with issues of organised violence against women. Once again it has been left to voluntary organisations to assist the victims and make strong statements against organised sexual violence against women.

The Zimbabwe Media Commission

The Zimbabwe Media Commission (ZMC), established by the Constitution, has the obligation to uphold, promote and develop freedom of the media. During the Shutdown, there were many complaints received regarding the violation of fundamental freedoms as they relate to the media, as well as attacks on journalists doing their work. This includes the murder by the military of at least one journalist, Elizabeth Zimunda.

The ZMC has an obligation under section 249 (b) to enforce good practices and ethics in the media. There is no evidence of the Commission applying its oversight role in the current period.

The National Peace and Reconciliation Commission

The National Peace and Reconciliation Commission (NPRC) is established by Section 252 of the Constitution with the mandate to ensure post-conflict justice healing and reconciliation. Following the August 1 killings, the NPRC indicated that they would not interfere with the work of the Motlanthe Commission but would wait to interact with its findings. The NPRC however has not yet responded to the findings of the Motlanthe Commission.

On 14 January 2019, following the outbreak of violence in Harare, the NPRC called for a Press Conference which it cancelled 40 minutes later without making any pronouncement. On 31 January 2019, the NPRC convened a consultative meeting with a few selected stakeholders to develop a framework for comprehensive dialogue. However, the process was side-lined by the government, which, through the Office of the President, started its own process leading to the meeting of political parties on 6 February 2019. This again has exposed government’s tendency of undermining the work of constitutional commissions.

There is little evidence that the NPRC has been attending to the needs of the victims after the violence or playing a prominent leadership role on pushing for national dialogue. That role has been played more effectively by the Zimbabwe Council of Churches, that, on 7 February 2019, successfully convened the National Leaders Breakfast Meeting.

In a survey conducted by the NTJWG with victims of organised violence, 72% believe that the NPRC is not independent and is beholden to government and political influence. These fears have been confirmed by a statement in the Independent of 8 February 2019, where the Chairperson of the NPRC Justice Nare is quoted as saying, “…we are also directly answerable to Vice President Kembo Mohadi.”

Conclusion

Trust for any independent commission is important: it must be earned and cannot be commanded. The Zimbabwe Human Rights Commission apart, there is no evidence that any of the other Independent Commissions have displayed their commitment to their constitutional mandates, and have been conspicuously silent in the face of the worst violence for a decade.

It is well-understood that the Commissions have severe resource constraints, that Government is ambivalent about their independence, but it is wholly unacceptable that they remain silent while the nations burns.

Source: National Transitional Justice Working Group (NTJWG)