BY YOLLANDER MILLIN
Historically, Zimbabwe has been a haven of grave human rights abuses.
Members of the security forces have been reported to have conducted arbitrary arrests, abductions, gross beatings, torture and killings of the civilians.
There has, however, never been any accountability for these crimes as reports have been ignored by the police, stalled by the courts or simply frustrated by the lack of a body that is meant to investigate such, without prejudice or favour as provided for by Section 210 of the Constitution.
Impunity is the impossibility in law to hold perpetrators of human rights violations to account.
This often occurs when laws or regulations that provide immunity or amnesty extend and strengthen the impact of the state’s failure to prosecute human rights abusers due to lack of capacity or political will by limiting or making it impossible to prosecute a perpetrator of human rights abuses.
The Republic of Zimbabwe has allowed impunity to exist, and has created a conducive climate that is most suitable for it to thrive ever since attaining its independence.
This has undoubtedly caused it to fail to meet its obligations under the human rights laws both at national and international levels.
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Section 53 of the Zimbabwean constitution states that “no person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment”, while section 51 clearly stipulates that “every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected”.
By allowing impunity to exist unaddressed, Zimbabwe has therefore failed its citizens as it has neither ensured the preservation of its people’s dignity, nor has it ensured that the people have not been subject to torture, cruelty or degrading treatment.
The international treaties demand that Zimbabwe deter and prevent gross violations of human rights and investigate, prosecute and remedy abuse.
As party to the International Covenant on Civil and Political Rights, (ICCPR), Zimbabwe has a mandate to adopt measures, through the legal system to protect fundamental rights.
By virtue of lack of an independent mechanism for receiving and investigating complaints from the members of the public about misconduct of security services since 1980 to date, the nation has therefore not lived up to expectations.
Victims of human rights violations have been denied their right to justice, and an effective remedy, as required by the international statutes, while the perpetrators enjoy de facto immunity from prosecution by virtue of association.
For example, Clemency Order number 1 of 2000 granted general amnesty for all political crimes that included torture and kidnapping, while Clemency Order number 1 of 2008 also granted immunity to those arrested for crimes committed from March to June 2008, giving indemnity to those convicted of culpable homicide in the presidential election period.
Forty years post-independence, in the year 2020, Zimbabwe finally put up a concept to come up with the Zimbabwe Independent Complaints Commission Bill, in line with the afore mentioned Section 210 of the Zimbabwean Constitution.
The same, however as read and presented to the public in 2021, gave the President of the state too much power and too much involvement than necessary, given the already existing Presidential ability to grant pardons as per section 31 (i), which gives the power to exercise “prerogative mercy” by granting amnesty, pardons or clemency to convicted perpetrators of crimes.
This translates to the highly likelihood, and inevitability of having the president pardon human rights violation, or cause the commission to overlook violations on a basis of mercy through partisan lines or through association, as a result of his direct involvement.
In order to fully address the problem of impunity, Zimbabwe needs an independent group, separate from the executive and from the retired security services personnel, that is comprised of credible civil society members, who will be able to adequately investigate and interrogate cases of human rights violations without carrying intimidating titles that will discourage the authenticity of the process of reporting or complaining when violations have taken place.
There should be a deliberate investment into accountability, and prosecutions for perpetrators of human rights violations without consideration of political affiliation or position held.
A criminal act should be treated as such and the perpetrator be tried and convicted without any favour.
Zimbabwe should ratify and make sure that it earnestly implements the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments.
In a different context, impunity also seems to thrive in the Zimbabwean public finance management sector, where there has no punitive measures taken against violations of public finance management that are laid out in section 298 of the constitution.
All guiding frameworks agree on the principles that need to be followed, stressing on transparency, accountability and prudence among others, but they remain silent on the nature of action should anyone violate these.
It is in this context that Zimbabweans are constantly crying fowl and accusing ZACC (Zimbabwe Anti-Corruption Commission) of “catch and release”.
For example, in the Prisca Mupfumira case where she was arrested in 2019 for corruption involving $95 million worth of NSSA pension funds, and yet in 2021 she still remains un-convicted, and even assuming more responsibilities on behalf of the citizens.
Similarly, the former Health minister Obadiah Moyo was in July 2020 charged with corruption in connection with the awarding of a multimillion-dollar contract for Covid-19 medical supplies, again, in 2021 he was acquitted.
These two examples reveal the culture on impunity wherein public funds were evidently misused, misappropriated or swindled but with no terms set to recover them or to punish the perpetrator of the fiscal crimes, leaving the tax paying citizens grappling with increased poverty and poor service delivery.
Further to that, the absence of a public debt audit means there is greater possibility of citizens being given the mandate to service debts whose contraction is not in-line with the conditions set out in the supreme law, which is the constitution.
The Auditor General’s report of 2019 also gave an insight on the public finance mismanagement, exposing exorbitant amounts that had not been put to good use, and yet, most of the given recommendations were not adopted, no plan was made public as to how and if the monies would be recovered and definitely there was no clear stance on the forms of punishment that would be given to those who were exposed.
Other institutions, for example, Bulawayo City Council were not part of the audited results because they had not presented their financial records for audit, and they are most likely to continue not availing their records since there is no punishment for such actions, even though it stands in the way of transparency and accountability in dealing with public funds.
Zimbabwe needs to adopt a more genuine attitude towards ending corruption and human rights violations, inclusive of those of financial nature.
The policies need to clearly speak on the punitive measures to be taken when such happens, and not only as a matter of principle, but as policy to be effectively implemented.
Another major aspect that needs to be put in place is the Whistle blower Protection Act.
Transparency International Zimbabwe has been clear on the need for this policy mechanism in order for the fight against corruption to be enhanced.
The whistle blower protection act should be there to protect individuals and groups that identify and report corruption and illicit financial dealings in public offices.
While the efforts of ZACC, are noted, it would be better if independent commissions are also allowed to investigate, comment on and make convictions in violation of public finances, giving an analysis that has no influence or attachment with any legislative arm, but simply representing the interests and the welfare of the people.
- Yollander Millin is a social justice and economic ambassador.
- These weekly articles are coordinated by Lovemore Kadenge, an independent consultant, past president of the Zimbabwe Economics Society and past president of the Chartered Governance & Accountancy Institute in Zimbabwe (CGI Zimbabwe). Email: [email protected] and Mobile +263 772 382 852