What are Enforced Disappearances?
According to the Declaration on the Protection of All Persons from Enforced Disappearance, proclaimed by the General Assembly in 18th December 1992, enforced disappearances occur when:
“persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.”
Zimbabwe’s history – before and after Independence in 1980 – includes many instances of enforced disappearances. This is true, not only when President Mugabe in power, but since the dawn of the Second Republic. This particular bad habit of the coloniser seems to have appealed to and been enthusiastically adopted by the liberators as a measure to be used against those who dissent from the policies of the ruling party. It is encouraged and supported by the still prevalent culture of impunity for such conduct.
The Law on Enforced Disappearances Internationally
There is a United Nations Convention on the Protection of All Persons from Enforced Disappearance, dating from 2006. Zimbabwe has neither signed nor acceded to the Convention. The Convention treats as victims not only those that have been “disappeared” but also their families and communities because they have to deal with the after effects of losing someone and having closure. The Convention further makes enforced disappearance an international crime. Under certain circumstances enforced disappearance also qualifies as considered a crime against humanity, justiciable under the International Criminal Court.
The UN Secretary-General’s message on the occasion of the 2021 International Day is as follows:
“Enforced disappearance – while strictly prohibited under international human rights law in all circumstances – continues to be used across the world as a method of repression, terror, and stifling dissent. Paradoxically, it is sometimes used under the pretext of countering crime or terrorism. Lawyers, witnesses, political opposition, and human rights defenders are particularly at risk. Enforced disappearance deprives families and communities of the right to know the truth about their loved ones, of accountability, justice and reparation. The COVID-19 pandemic has added to the agony and anguish of enforced disappearance, by limiting capacities to search for missing persons and investigate alleged enforced disappearance. The Convention for the Protection of all Persons against Enforced Disappearances is indispensable in helping to tackle this cowardly practice. But it requires the will and commitment of those with the power to do so. States must fulfil their obligations to prevent enforced disappearance, to search for the victims, and to investigate, prosecute and punish the perpetrators. On this International Day, I reiterate my call to all States to ratify the Convention and to work with the United Nations Committee and Working Group on Enforced Disappearances. Together, we can and we must end all enforced disappearances.”
The Law on Enforced Disappearances in Zimbabwe
There is no Zimbabwean law that directly criminalises an enforced disappearance as such. Constitutionally, however, an enforced disappearance breaches the following rights:
- The right to life under section 48
- The right to personal liberty under section 49
- The right to human dignity under section 51
- The right to personal security under section 52
- The freedom from torture or cruel, inhuman or degrading treatment under section 53
- The freedom of assembly and association under section 58
- The freedom of conscience under section 60
- The freedom of expression and freedom of media under section 61
- The right to a fair hearing under section 69
The act of enforced disappearance is a violent act with a blatant disrespect and disregard of the Constitution. There is no other crime that cuts across the Bill of Rights as does this one. The rights that are affected by enforced disappearances are all rights that are fundamental to a democratic and constitutionally-led country. There are very few crimes as chilling and with such adverse effects as enforced disappearances. They not only affect the immediate families and communities but generations to come. Families suffer mixed emotions of hope and fear and often the disappeared one is often the bread-winner, which makes it difficult for those left behind to fend for themselves and have the means to fight for the truth.
We cannot claim to be a new dispensation with a respect for the rule of law when Zimbabweans are still at risk of enforced disappearances – whether short or long term. We cannot claim to have turned over a new leaf without having told the truth of disappearances inflicted in the past. Today, more than ever, players such as the National Peace and Reconciliation Commission, civil society organisations, activists and other human rights advocates must push for the adoption of the International Convention for the Protection of All Persons from Enforced Disappearances by Zimbabwe. Enforced disappearances must stop being used as a political tactic to silence those that oppose or expose information unpopular with the perpetrator. World over, it has been said that it will take true leadership to halt such an arbitrary practice.
As we commemorate this day today, we stand with all families and communities affected by all enforced disappearances in this country, whether the victims are well-known or known to and remembered by only a few. Justice denied is no justice at all. May those that know the truth be bold enough to serve justice and reveal the truth for the sake of closure for those left behind.