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Tinomudaishe Chinyoka: Why we must not celebrate the Zimbabwe Human Rights Commission Report

By Advocate Tinomudaishe Chinyoka

The Zimbabwe Human Rights Commission is not an NGO. It is a Constitutional Commission established in terms of section 242 of the 2013 Constitution to promote awareness, protection, development and attainment of human rights and freedoms in Zimbabwe.

Tinomudaishe Chinyoka
Tinomudaishe Chinyoka

It carries out investigations into the human rights situation in the country and investigates complaints of human rights abuses, and seeks redress including the prosecution of offenders. It also publishes reports on its human rights monitoring activities.

Again, the ZHRC is not an NGO. This is important.

In a polarised political environment such as ours, where cashvists (activists for hire, who survive on donor funding) use NGOs to propagate a narrative that is so openly partisan that they are unable to be taken seriously by government, there is need for an objective yet independent institution that can speak the human rights language without emotion, distortion or an ulterior motive to government.

Governments everywhere must operate on a checks-and-balances system, and it is obvious why. Despite how much we as a nation like to see government embodied in one person (the President), the truth is that Government is a great big behemoth which is made up of the sum total of everyone playing a part in it. And, like it or not, some people inside “government’ do commit human rights abuses, and it is necessary that citizens be protected from such people.

It is to independent commissions such as the ZHRC that we must look for unvarnished truth and the correct state of our government’s compliance with human rights. It is such organisations that government relies upon to monitor itself, and to ensure that problems are addressed. If such organisations become partisan or blind to the principle of objectivity, they risk being viewed as captured by certain interests and losing their voice as the human rights conscience of the government.

This is why the ZHRC Report titled Monitoring Report in the Aftermath of the 14 January to 16 January 2019 “Stay Away” and Subsequent Disturbances” is so very disappointing. It contains statements that are, at their very best, mere allegations, and fails to take anyone into its confidence with details and context. We are left to think that the Commission believed that everything it said was common cause, or had been proved, when in fact it is anything but. Allegations are repeated as settled facts, giving a very distorted picture.

Institutions like the ZHRC are very useful as counterpoints to the fringe elements who have taken positions in the human rights sphere for different interests. If Evan Mawarire or Fadzayi Mahere  stand up and say this or that happened, one must take it with a pinch of salt because they are political activists, they are bound to lie in order to fit a narrative.

If David Coltart says that teachers were raped at such and such a school, we know he is lying, because he is a serial liar (among other things, except when he is confessing to war crimes in his book) who peddled the completely false story about disappearing V11s at the close of elections in 2018.

But, if the ZHRC says that “police were letting loose their dogs to attack those whom they suspected to have” taken part in the riots, or  “arresting officials in most cases came during the night….” or “the police during the bail hearings in Chitungwiza admitted that they had arrested primary school children, some as young as 11 years”, the country, nay, the world, is going to stop and take notice. These sound like very serious allegations.

That means, the ZHRC must be circumspect in how they write their reports. Emotive, NGO-speak must not be used without qualification. If police actually did let their dogs loose on suspects, let us know in how many instances and where. Let us know if anyone was injured as a result, and if they got treatment. But, crucially, let us know in what circumstances this happened.

Were the suspects fleeing, and the only way to stop them was either to shoot them or get the dogs stop them? Because that makes a world of difference. Letting dogs loose on a surrendering suspect is an egregious violation of human rights, but the use of police dogs to stop a suspect from fleeing when the alternative is to shoot that suspect dead is a very good and judicious use of the dogs. And by the way, the police use of dogs is not outlawed in this country.

The ZHRC claims further that “at least 8 deaths have been reported to the Commission and mostly attributed to use of live ammunition” but only talks about 1 such death, which they say was during a confrontation with the police at Makoni Police Station.

Where did the other 7 alleged deaths happen, and in what circumstances? Did the ZHRC actually see the dead people or it relied on mere claims or media reports? Given the seriousness of the matter (loss of life), it is not to the credit of the ZHRC that they can so casually talk about 7 deaths in the same manner that one talks about the weather or the loss of the year’s tomato crop.

Even on the alleged incident at Makoni Police Station, the Commission seems at pains to downplay the confrontation with the police by a mob, and instead highlight the shooting as a justification for subsequent clashes. Legally, the Commission is supposed to assess whether the shooting was a proportionate use of force in order to deal with an imminent threat, which sounds like the case.

In fact, it is clear from the report that the Commission seems unaware of the law on the use of lethal force during violent assemblies. The Commission says:

The unleashing of live bullets on demonstrators [is an example] of excessive force that was used by the police amounting to Police Brutality often violating the right to life. Other methods of dispersing crowds such as tear gas, rubber bullets and water canisters could have been used rather than the use of live bullets which to any reasonable person have the potential of causing unnecessary deaths.

This reads like the Commission assumes that the use of lethal force or live ammunition in law enforcement is always unlawful. That is not correct. The suggested alternatives are part and parcel of a graduated use of force in law enforcement yes, but are not the only methods. Lethal force and can and must be used in a proportionate and accountable way in order to serve a legitimate and necessary law enforcement objective.

The 1979 UN Code of Conduct for Law Enforcement Officials as well as the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials both cover this area. They provide for the legal basis for the use of force and firearms, the different means of force, the procedures to be followed for using force and firearms, the accountability mechanisms for and after the use of force and firearms and both lay down the basic principles (Proportionality Legality Accountability and Necessity) that must guide the use of force.

The Commission proceeds as if it does not know of the existence of these principles. So, if the alleged 8 deaths (which number is itself unproved) occurred following the use of force in a necessary and proportionate way in pursuit of a legitimate law enforcement objective and the police procedures for debriefing and accountability have been followed, there would in fact be no basis for including such deaths in a report alleging that they are an example of the deprivation of the right to life.

The Commission fails to take us into its confidence. It condemns, while simultaneously leaving an impression that the law has been violated, yet its possible that it was not. This is irresponsible.

There is nothing in the report about how one ’Pride Mukono’ used WhatsApp to circulate instructions on how to make Molotov cocktails, or how the police must react to a group of protesters throwing said Molotov cocktails with baton sticks. Painting a narrative that suggests ‘police brutality’ without showing how their methods were disproportionate to the danger posed is to downplay the seriousness of the threats posed by the protesters.

It also distorts the facts on the ground, and creates fake martyrs. Painting wolves roaming around neighbourhoods with Molotov cocktails, stones, logs, burning tyres and accelerating fluids with which to start fires is to create innocent lambs out of terrorists. The owners of Choppies in Gweru’s Mkoba 6 that was looted and then burnt to the ground will not find the ZHRC as acting to protect their rights when it complains that those who burnt their shop should not have been arrested at night.

Reporting on court processes is always problematic for non-lawyers, but the Commission has (or must have) human rights lawyers who write their reports. Claiming that people were arrested at night without any qualifier is inane, there is no law against the arrest of suspects at night. At all. But, when stated in the manner it is in the ZHRC report, this claim gets elevated to a human rights abuse.

Our law does not have a statute that says that 11 year olds who commit crimes cannot be arrested. And it is not just a Zimbabwean phenomenon that 11 year olds have been arrested for taking part in riots. Following the race-related riots in London a few years ago, the BBC reported that the UK authorities were running 24 hour courts, with some of those in custody including 11 year olds. That was never regarded as a human rights abuse, but when courts in Zimbabwe stay open until 7pm in order that all innocent suspects can be cleared and go home, it is elevated to a constitutional violation. That is irresponsible of the Commission.

What the commission should be reporting are figures from the Courts, not just from lawyers representing accused persons. For an organisation in such a critical area to not seem to be aware that defence lawyers always think their clients are innocent is rather naive. Or reckless.

Readily available statistics show that of the around 370 cases that came to the courts as a result of the riots, 48 adults were granted bail, 80 were convicted and 66 were found not guilty, and the rest are ongoing, while all minors were released into the custody of their parents or, where available, social welfare officers. Those statistics are readily available from the JSC or the Office of the Chief Justice, neither of whom appear to have been favoured with enquiries from the ZHRC.

Crucially, all 371 were in the Magistrate’s Court, yet only 19 were taken on appeal to the High Court and 4 on review. As the Chief Justice has said, ‘there has been little effort in the legal framework at least to challenge the magistrates in the other 300 plus cases’.

We all saw lawyers marching in the streets with expensive looking but poorly spelt posters. It turns out, that is all they are good at, and not lawyering like their clients pay them to. Which is not surprising when lawyers become proxies for regime-change NGOs and earn their keep not from representing clients but from donor funded campaigns to malign the government.

But, that is them. The ZHRC survives on taxpayer funds. It cannot, and should not, fall into the trap of serving parochial interests within the NGO sector. In its efforts to appear to be independent of government (which is a good thing), the ZHRC should not stoop to lying and the irresponsible regurgitation of opposition talking points (which is bad). Human rights abuses retard the development of our democracy, and must be checked. The shooting of innocent civilians by law enforcement agents is wrong, if is happens.

But, if organisations tasked with clarifying the facts and bringing perpetrators to task fall into the temptation of NGO-speak, we are in trouble. If they lose the ear of government, who do we turn to? If they fail to see that in Zimbabwe, once you find yourself agreeing with Jonathan Moyo you must stop and readjust your compass, what becomes of us when real problems come?

Objectivity is key for any Human Rights Commission. So is independence from government. Both a won by being true to the facts and the law. Period. Objectivity and independence from government are not won through the weaponisation of false murder and rape allegations, but through the judicious application of facts to the law and coming up with reasoned, fact based conclusions.

This, the Zimbabwe Human Rights Commission fails to do.

Dismally.

Advocate Tinomudaishe Chinyoka is a Harare based lawyer and member of the ruling Zanu PF party. He was one of the candidates interviewed for the position of Prosecutor General.