SW Radio Africa Transcript

HOT SEAT with Irene Petras – 23/07/10

BROADCAST: 23 July 2010

AB: Hello and welcome to the Hot Seat with me Alex Bell. Tonight, I'll be examining the state of the country's legal and justice system, amid ongoing harassment and persecution of human rights defenders. There is still little respect for the rule of law in Zimbabwe, while the lack of critical reforms of repressive parliamentary acts, like the Public Order and Security Act, means human rights work remains a difficult and sometimes dangerous task. My guest tonight to talk about the state of Zimbabwe's legal system is the Executive Director of the Zimbabwe Lawyers for Human Rights organisation, Irene Petras. Irene, thank you for your time. First of all, what is the role and mandate of your organisation?

IP: Well the organisation was set up in 1996, it’s a membership organisation of lawyers and law students from around the country and our primary objective is to foster a culture of human rights in the country and in the wider region as well, and we do that in different ways.

We’ve got projects which look at litigating on behalf of human rights defenders, we’ve got public interest litigation which looks at constitutional issues, we look at economic, social life and also anti-impunity litigation. And then we also a lot of training for human rights defenders and we have international litigation and lobbying advocacy activity. And all of those are centred around discussing and trying to bring more justice to the country and also less impunity.

AB: You talked about this being then a network of legal professionals – is this then extended through the southern African region as well?

IP: Well we’ve got a lot of lawyers who have left the country over the years and they’re still very active in the different places where they’re working now but we do have partnerships with law-based organisations in the region. We do a lot of work with the SADC Lawyers Association, the East Africa Law Society and the Pan African Lawyers Union. Then on the international level we also have relations with the International Bar Association and the American Bar Association.

AB: I can assume then that it’s not just about handling legal cases, a lot of it is going to be about advocacy and campaigning for human rights.

IP: Yes I think because we partner with a lot of law-based organisations we look at the whole process of justice delivery, looking at the prisons, the police, the Attorney General’s office and the courts and how can they all function better so that there’s access to justice and also people can start building confidence again in the justice delivery system and the confidence that their issues are going to be addressed and their rights are going to be protected.

AB: As a non-profit organisation then, how do you go about representing say human rights defenders in Zimbabwe who find themselves in trouble?

IP: Well we have a large network with our members who are spread out around the country and we’ve also got lawyers who work full-time at the organisation and there are two satellite offices in Mutare and Bulawayo so we usually get information about human rights defenders who are facing distress situations and then lawyers will go out and assist them on a pro-bono basis, whether it’s at police stations or whether they’ve got trials in court – anything that really has got a human rights related issue attached to it.

AB: I can imagine it’s an incredibly busy job then, given the kind of state of human rights in Zimbabwe at the moment and over the last ten years and more.

IP: Yes it’s been very busy for us. We find that usually around the time of elections and that kind of thing where violence and the risks increase, our lawyers have been very busy. It’s also quite a dangerous situation. Lawyers are then, they’re identified with the client that they represent, they’re identified with the cause of the client that they represent and so it becomes very politicised and our lawyers are often labelled or targeted because of the work that they do.

AB: Well we know there’s always reports of the kind of persecution and intimidation that lawyers face. What kind of other challenges then have there been then facing the group?

IP: Well there’s been incidents where lawyers have been harassed or intimidated when they’ve gone to represent their clients at police stations. We’ve had incidents where people have been physically assaulted by police officers, we’ve also had cases where lawyers have been arrested and prosecuted but the good thing is that despite the fact that they have to go through lengthy trials, there’s never any conviction so it just shows that these have been malicious prosecutions which has just tried to take time away which the lawyers would have spent doing their cases for human rights defenders.

AB: Now I can only assume that it must be incredibly frustrating a lot of the time, as just an observer I can read a case and just see so obviously what is right and what is not and that’s not always how it goes in the legal system of the country.

IP: It is difficult, the cases take a very long time and at every level there are always challenges that are faced where prosecution tries to drag matters out, where they will use Provisions in a way which is just meant to frustrate the person who may be in custody or to frustrate the lawyer who is trying to deal with the case, so it is very difficult. There are also challenges which come when clients can’t be brought to court – if they are in custody and there’s problems bringing them from the prisons because there’s no vehicles available and that kind of thing so I think that when you look at a trial that goes on or a case that’s handled, it kind of brings attention to all the different challenges which are there with the current justice delivery system and it gives us the room to be able to point out those areas and to try and push for reforms so that there can be speedy justice.

AB: Now we know that 2008 of course as you mentioned your job must be incredibly busy over the elections and during the election period of 2008, it must have been an incredibly fraught time.

IP: It was very busy and a very unstable time as well, it was a lot of violence going around and people kind of going undercover because they were being targeted and for lawyers it is not possible to do that, you have to go to court, you have to go to police stations, you have to make sure that you are available and that you are able to assist people who need help, so I think the lawyers did a sterling job during that time in continuing to defend people and continuing to expose themselves and to really try and fight for justice so that people’s rights could be respected and they could be protected when they were under attack.

AB: Of course though the 2008 elections, there was that process with everything being at a stalemate that we have eventually come to this point where we are now under a government of national unity. Have there been then improvements in the legal system since the GNU was in place?

IP: Well I think that the rule of law issues and the democratisation has moved very slowly and at the moment I would say that it’s quite stagnant. We’ve got a constitutional reform process that people are very, they are spending a lot of time and energy on that and they kind of forgetting about some of the other issues which are very important when it comes to elections and to improving the rule of law in the country, so we haven’t seen a lot of movement in terms of reform of the judiciary, a reform of the way the police handle cases and carry out their constitutional obligations. We haven’t seen reform in the Attorney General’s office, we haven’t seen reform in prosecution of political violence cases and other human rights violations – even when there’s been evidence to support cases being investigated and prosecuted. So it’s quite a frustrating time for us but on the other hand we are continuing to interact with the various State institutions and I think that slowly but surely we will be able to make a bit of progress. There are a lot of people who are professionals and want to restore the dignity that they have and that the institutions they work in have. Unfortunately when things get politicised it becomes very difficult to have progress but I think that if we have those professionals with technocrats within the institutions and they continue to interact then we can make some progress.

AB: A lot of observers and people who have been involved say in trials whatever, always express their frustration about what they say is a lack of justice within the legal system. Is this going to improve? Does it look like it’s going to start improving?

IP: Well I think the main challenge that we have apart from the general impunity which has existed for years and years is that we don’t have a culture of respect for court orders, we don’t have respect for State institutions. A lot of times you see that the executive undermines the other two arms of government, so I think until we can start to change the mindset and make people see that there needs to be transparency, there needs to be accountability, it’s going to be very difficult to change the way that those institutions are operating and it will be difficult to improve justice delivery.

AB: Another thing that people always point out is that the second that there is a case involving human rights defenders, like we saw recently with diamond researcher Farai Maguwu, that the process is always so slow. Is that just the state of things at the moment or is that almost particularly something targeted at human rights defenders?

IP: Well I think that the courts are overwhelmed generally with the number of cases that are there and there have been efforts to try and streamline some kind of, some areas of cases that go to court but definitely where you have cases involving prominent human rights defenders or where you have politicised cases, then you’ll start seeing a lot of delays, defiance of court orders, moving people from place to place just to try and frustrate the person who’s dealing with the case, the lawyer who’s dealing with the case and also as a means of punishing the human rights defender who would be in custody. So I mean even at the end of the day, if the case comes to nothing and the person is acquitted they would have been effectively punished enough to make them think twice about continuing with the activities that they carry out.

AB: You’ve spoken already about the politicisation of these kinds of cases, it seems to highlight the fact that the courts need to be completely removed from the national executive for example.

IP: Yes I think that if we have a situation where we have a judiciary which is properly remunerated, which has to be held accountable to an independent body which is not swayed by politicians or which feels that they’re subservient to the executive, it will be much easier to have a strong judiciary which can be respected. For us, I think what we need and what we want is to see strong institutions so that it doesn’t matter which person will be sitting on the bench or who will be in charge of the Attorney General’s office, this institution itself will be strong and there will be methods to be able to discipline people, there’ll be methods to scrutinise what activities they are doing and to make sure that they are functioning effectively.

AB: Is it frustrating though when you have what seems to be the total disregard for the rule of law, as you mentioned court orders and everything aren’t ever, well very rarely adhered to in particular cases, is it frustrating that there isn’t enough outcry when this kind of thing happens?

IP: Well I think that there’s been quite a lot of publicity around defiance of court orders and some of the questionable procedures which you see during cases that are being handled, but I mean it is frustrating but we feel that we need to go through all the processes and as long as we document everything that is happening and we keep a record of these cases and the way that people and institutions have behaved, then we can use that in the future to be able to strengthen the institutions and to make sure that this kind of thing doesn’t become a long term phenomenon in the country.

AB: Now the Zimbabwe Lawyers for Human Rights has been leading calls for reforms of repressive Acts, for example like POSA, why then is it so important to repeal this Act – let’s explain that a little bit more.

IP: Well I think if you look at how the POSA in particular originated, it was basically trying to bring back a lot of the provisions of colonial era repressive security legislation which had been found unconstitutional in the courts so even the very foundation of that kind of a law and the way that it links to that colonial repression is something which would militate towards its being completely repealed. But I think also the way that it’s been used and the way that the provisions are framed in a manner which is highly contestable in terms of its constitutionality, requires that we need to repeal it and then have a proper system where people can input and there’s consultation before security laws are brought in. I mean every country needs to have law and order and needs to have certain laws which will deal with security issues but I think that when they are framed in such vague ways and the way they are used to target selectively people who are seen as perceived enemies, then it defeats the whole purpose of having that legislation and whether it’s in Zimbabwe or other countries, we’ve seen how that kind of legislation can be used in a very negative way to stifle the fundamental freedoms of citizens and to stop them from participating in their governments, to stop them from being able to contribute to development and peace and security in the country. So I think those are some of the reasons why need to look again at how POSA and other repressive laws are being used in this country.

AB: What is though the state then looking like about getting these laws repealed? Is there any movement on having this debated?

IP: That’s another area which has been quite frustrating and disappointing. We had a lot of expectations both from provisions that were put into the Global Political Agreement and also by having a much more diverse group of parliamentarians that we would see these laws being looked at and being amended or appealed but parliament has moved very slowly, the legislative agenda has not really been a priority and that’s when you start seeing private member’s bills coming in because even the back benchers themselves are becoming frustrated because they are in parliament, they know what they are there to do but there’s no movement because it’s being blocked from the executive. So we need to see a situation where the executive stops interfering in the duties and responsibilities of legislators and allows them to carry out some of these reforms which are needed. But now with this constitution making process as well, it’s going to put us back even more. I’m told that parliament has now been closed until October so we’ve got another how ever many months where we’ll have absolutely no legislative reform, not even any debate about the bills which have been proposed for the legislative agenda of this next session of parliament.

AB: That’s incredibly frustrating. I mean with all these kinds of delays, it must feel sometimes like you are hitting your head against a brick wall.

IP: Well I think that we just have to keep positive, we need to keep doing what we’re doing because at the end of the day these changes can’t come overnight. I think it’s been a number of years in building up an arsenal of repressive legislation and it’s very difficult especially when you don’t have the numbers in parliament to just be able to pursue a reformist legislative agenda but slowly but surely I think that the time will come when some of these laws start to fall away.

AB: What else then needs to change? We’ve got talk of there being possible elections next year – I’m sure that groups like yourselves will want there to be some kind of solid change before that happens?

IP: Well I think the changes which need to be done are things like the institutional reform which we are talking about. We saw how the police failed to deal with perpetrators during the elections in 2008, we saw a situation where the courts were manipulated and didn’t, they weren’t there to protect the voting, to make sure that processes were transparent. You know we’ve got commissions like the Zimbabwe Electoral Commission which in 2008 was not a body that the public had confidence in, so we can go ahead and we can make some of these reforms to the constitution, we can have some kind of economic stability but if you don’t address the key issues around institutions and the mindset of State actors and non-State actors who think that they can behave with impunity, who believe that they don’t have to respect the separation of powers, then that mindset, if it’s not changed, it won’t allow the will of the people to be respected. So we could go into another election, but at the end of the day we still would be in the same position we were in 2008 where we can’t see a transfer of power or we can’t see people understanding that voters have cast their vote and they’ve made a decision about how they want to be governed and that has to be respected.

AB: One of the mandates of the government of national unity is to promote national healing, Irene in your mind I’m sure you will agree that there seems to be a need to address this culture of impunity first, before we can even talk about national healing?

IP: I think not only that, we need to have a situation where you have a government which has got the power and the will to be able to address some of these issues, the issues around impunity, the ability to actually want to set up truth-telling mechanisms and to allow people to tell their stories and to find some way forward and unfortunately in this kind of a situation where you have parties in an inclusive government who are contesting different issues every day, it becomes very difficult to believe that they will be able and to have the willpower to look at issues around national healing. We see that the three political parties who are in parliament met yesterday and discussed some of these issues but there’s no information about what came of that meeting and that’s reflective of the wider scenario where people are not having debates about what needs to be done in the transitional period, we don’t have a free media which is able to report on those kinds of discussions and if we don’t have that and if we don’t have political leadership in pushing that national healing it will become very difficult. And if you have a situation where we’ll be going into an election again or a constitutional referendum and you haven’t addressed issues around impunity and the victims and what they require then we just end up in another cycle where there’ll be more violations and then we’ll be talking about national healing again after another election.

AB: We talk about what the victims actually want, there’s call for justice for the victims which is coming at the same time about talks for giving people like Robert Mugabe and his regime a nice exit strategy where they won’t have to face any prosecution. What is your mind then on this very sticky issue?

IP: Well I think it’s difficult to speak about that because you are speaking on behalf of the victims and the survivors of the violations and until we have a situation where those survivors and the families of victims are able to be given a platform and they can talk about what they want, then it’s very difficult to say that one method or the other should be taken and it would be incorrect. I think we need to put people at the centre of any of these kinds of activities around national healing and about different justice mechanisms and let’s hear what they want to say, let’s not impose what we want or what we’ve learned from other countries and what we believe to be the correct outcome or the fix-it for that. I mean people have got different needs, depending on where you go in the country you will find people who would want to look back at what happened in the 1980’s, you might find others want to have their violations addressed from Murambatsvina, the 2008 elections and until we allow those discussion to go on and we focus on the victims and the survivors, we’re not going to get an idea of what really, what kind of mechanisms should be put in place for that.

AB: Who needs to lead that kind of process then? Will it be something that the State needs to undertake or will it be down to groups like yourselves to start those kinds of talks and get these kinds of opinions from the victims?

IP: I think it’s very difficult to have this kind of process led by people who are seen as having been perpetrators or victims because they themselves will be in need of those mechanisms and those healing processes. So I think the main thing is to allow people to speak about it and to see what they would want, just to allow them to say what kind of mechanisms and that, and if civil society can facilitate that then that’s good, if the churches are the ones who need to also become involved, then that’s also good. What we don’t want is to have one group or one sector or the government itself pushing for their own agenda – we need to listen to what survivors are saying.

AB: Moving away then I suppose from Zimbabwe and looking at respect for the legal system in the Southern African Development Community, I see that one of the organisation’s objectives is to strive for the adoption of the SADC Charter on Human Rights – what is that all about?

IP: Well as a law-based organisation I think it’s a bit easier for us to interact with our peers in the region and on the continent around issues which affect human rights and which affect the legal profession so what we’re looking at is working towards some kind of document or at least some kind of culture within the SADC region which will respect and promote human rights. There’s a lot of protocols and things which come out and often you do a lot of work and you come out with a document but the culture of respecting that document is not there or it’s never implemented so it’s more than just producing a document, it’s producing a culture in the region and a mindset that human rights are important, that they need to be respected, that they need to be promoted and seeing lawyers not just as people who sit in their ivory towers with their files and their clients around them but lawyers as people who can contribute towards social justice, economic justice and really the transformation of society to make it much more rights-based and rights-responsive.

AB: This then is going to be a challenge for the region and for the regional bloc as a whole.

IP: Well I think it’s not so much a challenge when it comes to getting buy-in from the legal profession in the region and even continentally but there will be a lot of work I think when it comes to trying to convince the political levels within SADC or the African Union that this is something which is worthwhile. Although we do have, we’ve seen a lot of progress, we’ve got very progressive African Charter on Human and People’s Rights which goes well beyond what is in some of the international instruments so there is no doubt that from the point of view of the lawyers and civil society in the region, something like that can be produced and we just need to find ways of networking and having activities and advocacy which can show the importance to the politicians who purport to represent us.

AB: Irene, we’re coming to the end of our interview now, but a quick question – how important is it for the country and I suppose the region to respect groups like the SADC Tribunal, and then on a larger scale, the International Criminal Court?

IP: I think it goes back to this culture or the lack of a culture of respecting our institutions at the local level. If you are not going to comply with a court order or you’re not going to respect the judiciary locally, then it’s not going to be a problem to disrespect a regional tribunal or to disrespect the rulings of an international tribunal. So I think that we need to start locally and see how do we change that mindset and how then do we build on that to respect our regional and international obligations. And I think that what we need is to have more debates around this and to see how we can work more with states and with the various ministries who have got responsibility for that kind of compliance at the regional and the international level so that we can build that culture of respect.

AB: Final question then Irene. It’s obviously been very difficult over the years but are you confident that the wheels of change are actually beginning to roll?

IP: Well I would say they are creaking and they keep stopping and starting but I think that what they need is a little push here and there and if we can all just put ourselves together and push, we’ll make sure that those wheels get turning.

AB: That was Irene Petras who is the Executive Director of the Zimbabwe Lawyers for Human Rights organisation. That brings us to the end of Hot Seat for this week, from me Alex Bell, goodnight.

Feedback can be sent to alex@swradioafrica.com