African Charter Article# 13: Every citizen shall have the right to participate freely in the government of their country and to equal access of public services .

Summary & Comment: This 47-page Human Rights Watch report entitled, Our Hands Are Tied, documents how ZANU-PF has compromised the independence and impartiality of judges, magistrates, and prosecutors and transformed the police into an openly partisan, unaccountable arm of ZANU-PF. The report documents how police routinely and arbitrarily arrest and detain MDC activists and use harassment and detention without charge as a form of persecution. Here are the Summary and Recommendations. DN

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“Our Hands Are Tied” - Erosion of the Rule of Law in Zimbabwe
You may read the entire 47 page report at:
http://www.hrw.org/reports/2008/zimbabwe1108/

Contents:

I. Summary
II. Recommendations
To the Future Government of Zimbabwe
To the Chief Justice
To the Office of the Attorney General
To the Commissioner General of the Zimbabwe Republic Police
To the Southern African Development Community and the African Union
To International Donors (including the US, UK and other EU members, etc.)
III. Methodology
IV. Background
Brief History of ZANU-PF’s Repression since 1980
Political Situation before and after the March 2008 Elections
Political Impasse Persists
Establishment and Functions of the Judiciary, Prosecutors and Police
V. A Compromised Judiciary
VI. Magistrates and Prosecutors under Pressure
Intimidation, Threats and Attacks against Magistrates
Political Interference by the Office of the Attorney General and Public
Prosecutors
VII. A Politicized and Partisan Police Force
Police Inaction when ZANU-PF and Allies are Implicated in Political Violence
Police Persecution of MDC Leaders, Supporters and Perceived Supporters
Police Response to Court Rulings
Police Harassment of Civil Society Leaders and Activists
Attacks, Harassment and Abuse of Lawyers Taking up Political Cases
Police Engagement in Partisan Politics
Police Complicity in ZANU-PF Abuses
Police Abuses since the Power-Sharing Agreement
VIII. Restoring the Rule of Law and Addressing Accountability under a New
Government
IX. Acknowledgements
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I. Summary

Our hands are tied. We cannot do anything where ZANU-PF is involved. However, if your case was not political, we could have helped you—all political violence matters are off limits for the police.
—A Police officer in Chegutu, Mashonaland West province, declining to investigate
a political violence complaint, June 2008.

Over the last decade, Zimbabwe’s ruling party, the Zimbabwe African National Union-Patriotic Front (ZANU-PF), has progressively and systematically compromised the independence and impartiality of Zimbabwe’s judiciary and public prosecutors, and instilled one-sided partisanship into the police. Since 2000 it has purged the judiciary, packed the courts with ZANU-PF supporters and handed out “gifts” of land and goods to ensure the judges’ loyalty. It has provided instructions to prosecutors to keep opposition members in jail for as long as possible. It has transformed Zimbabwe’s police force into an openly partisan and unaccountable arm of ZANU-PF.

The power-sharing agreement between ZANU-PF and the Movement for Democratic Change (MDC), signed on September 15, 2008, provided an opportunity to begin fundamental changes within the judiciary and police. However, in failing to recognize the collapse of respect for fundamental rights and the rule of law in Zimbabwe, the agreement sidesteps the urgent need for reforms. As this report demonstrates, ZANU-PF lacks the necessary commitment to end its improper and unlawful involvement in the justice system, let alone to be entrusted with instituting the necessary reforms.

Police partisanship has contributed heavily to Zimbabwe’s disastrous human rights situation. Serving police officers told Human Rights Watch that between April and July 2008, police across Zimbabwe were issued with specific instructions not to investigate or arrest ZANU-PF supporters and their allies implicated in political violence. Human Rights Watch also found that of at least 163 politically motivated extrajudicial killings—almost entirely of MDC supporters—since the March 29, 2008 general elections, police have only made two arrests, neither of which led to prosecutions.

Members of the ZANU-PF militia who killed six people in Chaona on May 5 continue to walk free. The ZANU-PF supporters who killed MDC councilor, Gibbs Chironga, and three others in Chiweshe on June 20 have not been investigated. The murder of Joshua Bakacheza, an MDC driver, on June 24 has not resulted in any arrests. The police refuse to investigate the abduction and beating by ZANU-PF youth of Kadombo Chitokwa and thousands of others.

Police have arbitrarily arrested and detained hundreds of MDC leaders and activists. MDC leaders subjected to arbitrary arrest and detention include Tendai Biti—arrested at the airport on June 12—Ian Kay and Eric Matinenga. Human Rights Watch also documented cases of police officers openly engaging in partisan politics in contravention of the Police Act. In several provinces where armed ZANU-PF members have unlawfully taken policing duties upon themselves—carrying out arrests, investigations and meting out punishment—government authorities have refused to intervene.

The power-sharing agreement has not ended the violence. Human Rights Watch found that police continue to routinely and arbitrarily arrest and detain opposition activists, using harassment and detention without charge as a form of persecution. On October 16 police in Bulawayo assaulted, arrested and detained several members of Women of Zimbabwe Arise (WOZA). All the women were later released without charge except for their two leaders—Jenni Williams and Magondonga Mahlangu—who have been denied bail and who at this writing remain in jail. Police detain accused persons beyond the 48-hour statutory limit, show contempt for court rulings and frequently deny detainees access to legal representation or relatives.

On September 18 police arrested the president of the Progressive Teachers’ Union of Zimbabwe (PTUZ), Takavafira Zhou. He was held without charge in solitary confinement for four days without access to water, a toilet or blankets, before being released on September 22. Several former detainees have reported that police officers frequently beat or otherwise mistreat those in custody.

This report finds that legal accountability and the rule of law in Zimbabwe have been seriously eroded under the ZANU-PF government through its interference in the criminal justice system. It shows that victims of human rights abuses—mainly MDC supporters—continue to be denied their right to justice and an effective remedy. At the same time, perpetrators of human rights abuses enjoy de facto immunity from prosecution by virtue of their association with ZANU-PF.

At the time of writing, over a month after the power-sharing agreement was signed, there has been no substantive movement towards implementation nor towards forming a new government. The two main parties have sharp differences over the allocation of new cabinet positions. On October 11 ZANU-PF, without the agreement of the MDC and contrary to the power-sharing agreement, published a list of new cabinet positions. President Robert Mugabe allocated all senior ministries—including Home Affairs and Justice, as well as Defence, Foreign Affairs and Finance—to ZANU-PF members.

The ZANU-PF list was rejected by the MDC, which released its own alternative list. Human Rights Watch is concerned that any settlement of the current political crisis must address the need for reforms in the criminal justice system and the pervasive climate of impunity, and that this cannot be achieved so long as ZANU-PF controls the Home Affairs and Justice Ministries.

As the people of Zimbabwe confront an ever more rapidly deteriorating economic situation, with more than five million facing severe food shortages and inflation, at the time of writing, running at 2.79 quintillion,1 expressing serious concern over the erosion of key justice institutions might seem a step away from the lives and concerns of the public at large. However, the fact is that despite the rearguard ethical action of some of those within them, these institutions have been transformed by ZANU-PF into critical agents of repression. Their reform is fundamental to the restoration of normality and respect for human rights, not just in Zimbabwean political affairs, but also in the lives of ordinary Zimbabweans.

Human Rights Watch calls upon any new government in Zimbabwe to undertake an independently managed program of reform of the judiciary and police with clear timelines. Priorities should include independent and impartial investigations into past human rights abuses and the problem of impunity, a review of police organizational structure and practices, and revisions of criminal justice legislation to ensure compliance with international legal standards. Human Rights Watch urges donor states and institutions to support genuine reform efforts, but also to maintain existing sanctions until reforms are implemented.

II. Recommendations
To the Future Government of Zimbabwe

End impunity for election-related political violence. Set up an independent commission of inquiry to investigate serious rights abuses by state security forces and others that occurred since the March 29 elections and present recommendations on how best to ensure justice and accountability.
Restore judicial independence. Create an independent and impartial judicial commission to investigate infringements of judicial independence and provide public recommendations for judicial reform. Examine in particular reforms that prevent the distribution of unlawful payments or gifts to judges.
Enforce the principle of equality under law. Convene an independent body to examine past practices of the Office of the Prosecutor to devise measures to ensure that the office operates in a non-partisan fashion. Revise or abrogate section 121 of the Criminal Procedure and Evidence Act, which permits prosecutorial appeals of bail rulings, to limit the possibility of abuse.
End partisanship in the police force. Create a special body under the Office of the Prosecutor to impartially investigate allegations of human rights abuses by members of the police force. Discipline, dismiss or prosecute, as appropriate and in accordance with due process standards, those police personnel responsible for abuse. Put the police under a new, non-partisan and professional leadership, itself accountable to an independent supervisory board.
Improve respect for human rights by government officials at all levels. Seek international assistance to provide appropriate training and education to members of the police and other state agencies on human rights. All training should be consistent with international human rights standards, such as the United Nations Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
To the Chief Justice

Defend judges against political pressure. Adopt measures to promote adherence by government officials to the UN Basic Principles on the Independence of the Judiciary.
Take appropriate steps to promote adherence by judges and judicial officers to the UN Basic Principles.
To the Office of the Attorney General

Re-commit to professional and impartial discharge of duties; conduct an independent and comprehensive audit of prosecutors, focusing on ethical conduct and respect for due process.
Ensure that policies and practices do not violate the principle of presumption of innocence and other international due process and fair trial standards.
Promote adherence by government officials to the UN Guidelines on the Role of Prosecutors.
To the Commissioner General of the Zimbabwe Republic Police

Publicly condemn and bring an end to partisanship by police officers, including by ending selective application of the law and targeted harassment of opponents of ZANU-PF. Take appropriate disciplinary action against those who act improperly.
Fully and impartially investigate and arrest those responsible for acts of politically motivated violence following the March 29 elections.
Take all appropriate steps to ensure that the police respect court orders concerning the rights of persons arrested and detained.
To the Southern African Development Community and the African Union

Urgently convene an extraordinary summit to discuss and help resolve the Zimbabwe crisis.
Urgently review the effectiveness of the SADC mediation initiative. Ensure that it is led and staffed so as to lend it maximum effectiveness and that it has specific benchmarks and a timeline for resolving the Zimbabwe crisis.
Facilitate greater involvement in the mediation process by the AU and the UN, in order to bring additional expertise to bear on problems in Zimbabwe.
Call upon the new government of Zimbabwe to promptly adopt measures to ensure respect for human rights and the rule of law.
Insist upon full accountability for the perpetrators of human rights abuses, including prosecutions, and press for appropriate remedies to victims of abuses.
To International Donors (including the US, UK and other EU members, etc.)

Withhold non-humanitarian development aid to Zimbabwe in the absence of clear progress in promoting respect for human rights, including reforms of key government institutions and agencies; set specific benchmarks and closely monitor progress.
Maintain targeted travel sanctions and asset freezes against ZANU-PF and its leadership until it meets specific human rights and good governance benchmarks.
Carefully provide effective support for fundamental reforms to the criminal justice system, including strengthening judicial independence, providing appropriate rights-relevant training for the police, and improving the administration and financial auditing of justice institutions.