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Policing protests and Zimbabwe’s international obligations

By Dr. Thompson Chengeta

The Government of Zimbabwe has a positive obligation to facilitate peaceful protest. The presence of police during protest should not be to intimidate protestors; rather, it should be to facilitate a peaceful protest. It is indescribably important for the ZRP officers to understand the social and psychological underpinnings of mass protests currently taking place in Zimbabwe. For them to be able to manage the protests in a peaceful manner, they need to understand or acknowledge the current phenomenon.

Dr. Thompson Chengeta is a Harvard International Law Scholar
Dr. Thompson Chengeta is a Harvard International Law Scholar

Where the ZRP treat protestors as if they are being a nuisance for no reason, that protestors are an irrational group or a bunch of criminals who only understand the language of force, protestors are likely to behave as such. Instead, ZRP officers involved in policing public protests must effectively communicate, negotiate and facilitate cooperation with the protesting crowd with the aim of maintaining peace. Now, that is what ‘serving and protecting’ is all about.

  1. Introduction

It is not uncommon that whenever one points to the weakness, failures, brutalities or excesses of police officers – like those characterising the Zimbabwe Republic Police (ZRP) – you get responses such as the following: ‘You civilians can never understand how difficult and dangerous our job is’; ‘you’re just an armchair critic, it is us who risk our own safety for yours every single day!

When police officers are accused of lacking humanity because of the manner they treat harmless civilians, they argue that they are ‘trained to enforce compliance, not offer therapy.’ Further and across jurisdictions, police officers complain that their good work never gets adequate appreciation since the media focuses on criticising their wrong-doing.

Other police officers have also indicated that the advent of smart-phones has made policing very difficult: the general public always get ‘the ten seconds of a man being hit with a baton…but you don’t always know what that man was doing’ before the assault.

I, therefore, will start by acknowledging the sacrifices by our uniformed women and men, in particular, noting that there are still good ‘apples’ within the ZRP. Nevertheless, in all sincerity, it is not out of place to mention that such ‘good apples’ are very few, the majority are rotten. There is need for serious reforms within our police force.

In the past weeks, Zimbabwe has witnessed a number of public protests against President Mugabe’s government. Protestors have listed a number of genuine grievances such as the rampant unemployment, grand corruption, police brutality etc. as the reasons why they are taking the ‘struggle’ to the streets.

The government has responded to these protests by unleashing riot police on protestors where some have been seriously injured while others have lost their lives.

In addition, the Government of Zimbabwe has proposed to further tighten the laws that govern the rights of citizens to freedom of assembly, speech and association. The manner in which the ZRP is managing the current protests is, without doubt, inconsistent with Zimbabwe’s international obligations.

A number of people have already discussed domestic laws that govern demonstrations in Zimbabwe. I am going to focus on Zimbabwe’s regional and international obligations and how the ZRP can improve in its approach as far as management of public protests is concerned. I note four reasons why it is important to consider Zimbabwe’s international obligations in this regard.

First, Zimbabwe’s domestic laws that govern public protests are, unfortunately, skewed in favour of those who are in power.

Second, Zimbabwe is legally bound by all the international treaties it has signed and ratified.

Third, international obligations take precedence over domestic laws – which, in the case of Zimbabwe, are largely unfavourable to protestors.

Fourth, Zimbabwe’s attitude towards its international obligations plays a critical role in shaping other states’ foreign policies, in particular, how they choose to treat the Government of Zimbabwe on the global plane. It is not a mystery that Zimbabwe’s isolation continues to negatively impact on our economic recovery.

While I largely discuss Zimbabwe’s international obligations as set out in treaty and customary international law, I take note of the reality that when it comes to policing public protests, the law is not the only useful tool. For that reason, I briefly discuss and recommend a social-legal approach to policing protest or crowd control, an approach I consider to lessen the chances of public protests spewing into violence.

Further, in as much as I largely discuss the obligations of police officers and their conduct, I also scrutinise the individual behaviour and responsibilities of protestors who, more than often, are prone to the negative impact of what is known as ‘group thinking psychology’.

The objective of this whole discussion is to provide entry points in how the ZRP officers can improve the way they handle public protests while at the same time encouraging individual responsibility of those involved in public protests. The ultimate aim is for Zimbabweans to enjoy peaceful and effective demonstrations. It is our right.

  1. Zimbabwe’s regional and international obligations in policing protests

It is inevitable to start by mentioning the importance of the right to freedom of assembly which encompasses the right to protest. Protest can serve as an important tool that a disempowered population – like that of Zimbabwe – can use to claim their rights from the government. In this regard, protests serve as a platform through which the citizens can communicate their grievances to the government.

It is in view of these reasons that I note, from the onset, that the Government of Zimbabwe has a positive obligation to facilitate peaceful protest. The presence of police during protest should not be to intimidate protestors; rather, it should be to facilitate a peaceful protest. A state’s regulation of public protests must not be biased in favour of those who are in power!

The right to freedom of assembly is recognised and protected in a number of international human rights instruments or treaties.  For example, Article 20(1) of the Universal Declaration of Human Rights (UDHR) and Article 21 of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to peaceful assembly.

On 13 May 1991, Zimbabwe filed its accession to the ICCPR, accepting the obligations in that treaty, obligations that include guaranteeing the citizens of Zimbabwe the right to peaceful assembly. It is not uncommon that when you refer to human rights guaranteed in these treaties, the Government of Zimbabwe becomes dismissive, sometimes claiming that such rights are nothing but a western concept. When Zimbabwe acceded to the ICCPR in 1991, it accepted the obligations therein out of its own volition.

More importantly, at the regional level, Zimbabwe signed (20/02/1986) and ratified (30/05/1986) the African Charter on Human and Peoples’ Rights (African Charter). Article 11 of the African Charter provides that ‘every individual shall have the right to assemble freely with others.’

It is interesting to note that the African Charter does not explicitly require the assembly to be peaceful as is the case with the ICCPR.  The fundamental point to note, however, is that Zimbabwe’s obligation to ensure the right to freedom of assembly is not only guaranteed at the international but regional level as well.

Of course, in terms of these regional and international treaties, limitations or restrictions may be placed on the right to freedom of assembly. Thus, it is understandable that in the interest of public order, safety or national security, for example, the right to freedom of assembly may be limited.

Nevertheless, in terms of the ICCPR and the African Charter, such restrictions must be in conformity with law and necessary in a ‘democratic society’ that respects the freedoms of individuals and their rights.  Where the Government of Zimbabwe chooses to limit the right to freedom of assembly, such limitation must not only be consistent with our domestic legislation but also international law.

Further, limitations on rights must not ‘have as a consequence that the right itself becomes illusory’, rather limitations must be proportionate. It is unfortunate that most of Zimbabwe’s laws and policies, coupled with the attitude of ZRP officers who are deployed to police demonstrations, have made the right to freedom of assembly practically non-existent.

  1. Fundamental rights at stake during protests

During protests, rights such as the right to life, physical integrity, liberty and human dignity of protestors, the public and police officers are at stake. In recent protests and demonstrations by groups such as the #Tajamuka, members of the #thisFlag movement, there have been reports of deaths and serious injuries as a result of ZRP’s use of force which, in many instances, amount to police brutality.

The right to life is the corner stone of all other rights. It is provided for in many treaties and is part of customary international law. The primary purpose of the right to life is to protect citizens from being killed by the State.

The rationale behind this is that it is the State that has monopoly over the use of force. Even in cases where force is used by private actors, the State bears the obligation to protect its citizens from ‘private violence’.

In terms of Article 4 of the African Charter, Article 3 of the UDHR and Article 6 (1) of the ICCPR, everyone has a right to life and States are obliged to ‘prevent arbitrary killings by their own security forces. The deprivation of life by the authorities of the State is a matter of utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.’ The Government of Zimbabwe need to be reminded that the right to life is non-derogable under the ICCPR to which it is a party.

In terms of Zimbabwe’s international obligations, it is unacceptable for ZRP Officers to subject protestors to inhuman and degrading treatment, humiliate or assault them.  There are photos and videos that are circulating on social media showing ZRP officers subjecting protestors to unacceptable treatment. When Zimbabwe authorities do not report on any action that is taken against such officers, the reasonable assumption is that the government is in acquiescence.

  1. Regulation of the use of force during demonstrations

There exists an elaborate set of norms that govern the use of force by law enforcement officials during protests. The primary document is the Code of Conduct for Law Enforcement Officials (the Code) that was adopted by the United Nations General Assembly resolution 34/169 of 17 December 1979.

In terms of Article 2 of the Code, officers are required to respect and protect the rights of all persons which include the right to freedom of assembly. What is more fundamental is Article 3 that requires police officers to use force ‘only when strictly necessary and to the extent required for the performance of their duties’.

Yet to the ZRP, it appears that the word ‘demonstration’ is synonymous with the use of their baton-sticks or other weapons. As I have already indicated above, policing of demonstrations by the police must be more of facilitating peaceful protests. The African Commission on Human Rights and Peoples’ Rights has condemned use of unnecessary and excessive force during demonstrations.

It appears in many instances that the ZRP has wantonly resorted to the use of both lethal and non-lethal weapons during the recent protests in Zimbabwe. Lethal weapons are deadly weapons such as firearms while non-lethal weapons are compliance weapons or pain-inducing weapons such as water cannons and teargas whose use is unlikely to cause death. I will first address the applicable standards as far as lethal weapons – in particular firearms – are concerned.

4.1 Use of lethal weapons during demonstrations

The use of firearms as lethal weapons is governed by the Basic Principles on the Use of Force and Firearms (Basic Principles) that was adopted in 1990 by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

Principle 9 of the Basic Principles contains the general rule: firearms may not be used against persons – in this case, protestors – except in those situations where police officers have to act in self-defence and only where less extreme means are unavailable.

Most importantly, Principle 9 states that the lethal use of firearms is only permissible when strictly unavoidable and in order to protect life. In other words, lethal force may only be used where a police officer needs to protect his own life or that of another person(s).

This is known as the protect life principle! Thus, in terms of international standards, the only circumstances within which the ZRP is allowed to use firearms during demonstrations or any other law enforcement situation is when there is an imminent threat of death to themselves or other members of the public that the use of such force becomes strictly necessary. In this regard, the ZRP may not use firearms merely because a particular gathering is illegal or because demonstrators are destroying property. Lethal force may only be used to protect the life of another.

Thus, in a commentary to Article 3 of the Code mentioned above, ‘the use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except where a suspected offender offers armed resistance or otherwise jeopardises the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender.’ States, including Zimbabwe, are required by international law to take all reasonable steps and measures that prevent situations from arising where the use of lethal force may be necessary.

  • Use of non-lethal weapons during demonstrations

Careful consideration of the use of non-lethal weapons during policing of demonstrations is needed because sometimes use of such weapons can, in fact, result in death. There is a case where a boy died after being hit by a tear gas shell.

As noted above, in the recent demonstrations in Zimbabwe, a toddler died after ‘inhaling teargas fumes’. This shows that the manner by which police officers use non-lethal weapons may actually result in death. There is, therefore, the obligation to assess the environment and impact before using non-lethal weapons.

  1. Social-Legal approaches to policing protest or crowd control

A sincere consideration of the manner by which the ZRP Officers have been handling protests should clearly tell the authorities that there is urgent need for improvements in the way they are policing demonstrations.

The issue of demonstrations is a delicate matter and frankly, there can never be an easy answer as to how one ought to handle public protests. Various factors come into consideration such as the size of the crowd, the reason for the protest, the attitude of the protestors and the environment where they are protesting.

There is no doubt individuals participating in a protest differ as far as their propensity to violence, for example, is concerned. These factors pose different challenges to the police officers who are sent to police the demonstration. For that reason, the police officers need to understand the nature of the crowd they are dealing with and tailor their approach accordingly. The baton-stick is not the solution to everything.

In the above sense, it very important for our ZRP officers to appreciate the social and psychological underpinnings of mass protests currently taking place in Zimbabwe. For them to be able to manage the protests in a peaceful manner, they need to understand or acknowledge the current phenomenon.

It is crucial to note that mass protest and riot-police responses to such protests are usually characterised by what has been termed ‘group thinking psychology’– a phenomenon where there is de-individualisation within a group of people who seek to act in harmony regardless of the rationality of their decisions or actions.

Many times, such ‘group thinking’ leads to protestors’ lack of respect for authority while on the part of police officers to a reduced sense of individual responsibility. A protestor who throws stones at the police officers or burn down government property is likely to do that not in their own name or capacity but in the name of the group. In the same way, a police officer who chooses to use severe or unnecessary force does not feel individually responsible for such force – or at least he or she has got a reduced sense of responsibility.

Like a number of other police forces across the globe, the ZRP always adopts the traditional model of dealing with protests known as the ‘escalated force’ model. With this model, the ZRP seeks to subdue protestors by being more violent and brutal or resorting to other coercive measures. This approach to demonstrations always leads to situations getting out of hand as shown by the escalation of violence in Harare recently.

It is highly recommended that ZRP should start adopting an approach that has been referred to as ‘negotiated management of protests’. This is where the police effectively communicate, negotiate and facilitate cooperation with the protesting crowd with an ultimate aim of using preventative measures.

Some experts have referred to this as the ‘safety triangle’ where the police monitoring demonstrations or the responsible politicians are in constant communication and assume joint responsibility for managing the demonstration.

Under the negotiated management approach, ZRP officers must appreciate that protestors act according to their own logic that is shaped by external influences. Where the ZRP treat protestors as if they are an irrational group or a bunch of criminals who only understand the language of force, protestors are likely to behave as such. One of the obvious reasons why protestors are now turning violent is that protestors see ZRP officers’ actions as heavy-handed and illegitimate.

Of course, the general teachings of a police officer are that you should enforce the law and arrest all those who break it. However, when policing protests, the ZRP needs to accept the spill-over effects of protests with an emphasis of ensuring peace or at least the absence of violence during protests rather than enforcing the law at all costs. In this regard, ZRP officers must only resort to the use of force in self-defence not use force as a way of asserting authority.

I have referred to the issue of lack of individual responsibility on the part of both the police officers and the protestors whenever there is group-thinking. Since this is usually the case whenever there is a demonstration, it is important to note some suggestions here for both the protestors and the police officers – as already noted, management of demonstrations should and must be a joint responsibility for both sides.

On the side of protestors, each individual participating must ensure that they are accountable to themselves and should encourage the person next to them to do the same. Instead of encouraging your peers to act violently, encourage them to be peaceful. When you allow your peers to be violent, you are not only allowing them to put their person or life in danger but yours also.

On the side of ZRP officers, each and every officer participating in the policing of a demonstration should ensure that their fellow officer acts within the confines of the law. As a man or woman whose job is to serve and protect, you should not stand and watch as your colleague assault or humiliate citizens. Where every officer monitors the behaviour of those serving next to him or her, the negative impact of the ‘group-thinking’ syndrome is reduced since police officers may better reflect on their personal or individual responsibility.

Further, the Government of Zimbabwe has an obligation to properly train officers for them to understand their tasks and challenges during protests. More so, deploying sufficient officers with adequate protective equipment and less lethal weapons enables officers not to use excessive force. Whenever officers feel overwhelmed and vulnerable, they are likely to act irrationally with a result of using force where it is not necessary.

5.1 Indiscriminate use of force

It is also very important for ZRP officers to see and treat protestors as individuals, not as a group. Individuals within a protesting crowd act and behave differently. Some may be violent and others not. Where officers refuse to acknowledge this fundamental fact, they end up using force indiscriminately in violation of international standard on the requirement to use force discriminately.

  • Mending relations between ZRP and Zimbabwean citizens?

There is no doubt that relations continue to be strained with every single incident of confrontation between the ZRP and the protestors. The incessant breakdown of trust between Zimbabwean citizens and the ZRP officers should be a worry for everyone involved. It is sad that when activists Sten Zvorwadza and Patson Dzamara took the initiative by bringing flowers to a police station as a sign of their willingness to open dialogue, the police responded by assaulting them.

Sten Zvorwa(Photo: Tsvangirayi Mukwazhi, AP)
Sten Zvorwa(Photo: Tsvangirayi Mukwazhi, AP)

Contrary to the Zimbabwean situation where police officers are assaulting civilians who attempt to mend relations with them, in the United States, in 2014, ‘a 12-year-old black boy (pictured above), tears streaming down his face, and a white police officer embrace in the middle of a Ferguson-related demonstration in Portland, Oregon. The boy, Devonte Hart, was holding a sign offering “Free Hugs” during a protest over a grand jury’s decision not to indict Ferguson police Officer Darren Wilson. Portland police Sgt. Bret Barnum approached Devonte and extended his hand. Barnum said he approached Devonte “not as a police officer but just a human being” when he saw him crying.’

  1. The core principles when policing protests

In conclusion, I would like to list the core principles of policing protests that the ZRP should adopt and the obligations that the Government of Zimbabwe must respect:

  1. The Government of Zimbabwe has a duty to facilitate peaceful public protests by ensuring that the police officers who are deployed to demonstrations are there to protect protestors from any outside threats rather than intimidating them.
  2. Good policing of protests involves communication, dialogue and cooperation between protestors and the ZRP officers or responsible authorities.
  • The Government of Zimbabwe must realise and abide by its international obligation to respect the citizens of Zimbabwe’s right to assembly. Any limitations that are placed on this important right must be consistent with the values of a democratic society.
  1. In the on-going demonstrations, ZRP officers must understand that their usual preoccupation about law and order should, to the extent possible, give way to the more important aim of preserving the peace, and protecting demonstrators from harm.
  2. In terms of international standards and treaties to which Zimbabwe is a party, the ZRP officers may only use force where it is strictly necessary and the force used must be proportionate. Firearms and other lethal weapons may only be used where the objective is to protect another life and where less harmful measures are inadequate.
  3. Whenever force is used and there are allegations of police brutality, the Government of Zimbabwe must promptly investigate, report to the public on actions being taken against errant ZRP officers. In cases where government agents are involved in violation of rights, justice ‘must not only be done but seen to be done’ to restore the citizens’ confidence in the police. More so, detailing actions taken against errant officers may also serve as a deterrent factor to other officers.

Dr. Thompson Chengeta is a Harvard International Law Scholar

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