“Why open old wounds?” This is often the question asked each time issues of addressing past human rights violations are raised.
After the July 23 2015 transitional justice stakeholders’ conference convened by the National Transitional Justice Working Group (NTJWG) in Nyanga, together with Tony Reeder, I was interviewed by Ruvheneko Parirenyatwa on ZiFM where we gave feedback from the conference. We talked about the need for an honest national truth-telling process about our past as a country in order to build sustainable peace.
Playing the devil’s advocate, Ruvheneko did acknowledge that indeed there are many victims out there yearning to tell their stories.
She, however, asked if we were not opening a Pandora’s box by asking victims to come out, raising their expectations for solutions to their situations and yet we have no capacity to offer such solutions. If victims come out and we tell them you deserve compensation, what would that mean when there is no compensation fund for them?
Just to give some background to those who may have missed the landmark developments around that groundbreaking conference and the resolutions regarding compensation for victims of human rights violations.
The purpose of the July 23 conference was for transitional justice stakeholders to come up with an agreed set of principles for transitional justice processes as we prepare for the work of independent commissions established by Chapter 12 of the 2013 Constitution. The critical commissions that work with victims of past violations include the Zimbabwe Human Rights Commission (ZHRC), the Zimbabwe Gender Commission (ZGC) and now the National Peace and Reconciliation Commission (NPRC).
Among other principles, a set of principles was adopted on Reparations and Rehabilitation of Victims. In short, the principles outline the following expectations by stakeholders. Generally, victims of human rights violations have the right to swift justice and remedy. Reparations must be part of that remedy. Reparations must compensate the victim of all the consequences of the violation suffered.
Reparations must be proportionate to the harm suffered. They must not lead to unjust enrichment. A good example of unjust enrichment is what happened with the War Victims Compensation Fund. While the fund was meant to cater for victims of the liberation war, over Z$1,5 billion was disbursed mainly to top politicians and their relatives. The 1997 Chidyausiku Commission received evidence showing that the late war veterans’ leader Chenjerai Hunzvi claimed 117% disability but was awarded 85%. Former vice-president Joice Mujuru claimed to be 55% disabled. Other notable people who received compensation after claiming high disability levels include Oppah Muchinguri (65%), former ZBC manager Robin Shava (100%), Vivian Mwashita (94%) and senior CIO operative Aaron Nhepera, who claimed 98% disability. First Lady Grace Mugabe’s deceased brother Reward Marufu claimed 95% disability. The Chidyausiku Commission received evidence to the effect that the programme was abused because it had loopholes. The Guiding Principles on Reparations outline basic principles which, if followed, can avoid such an abuse and must ensure that a reparations programme benefits the real victims, not just top politicians.
A reparations programme must be multidimensional to facilitate a holistic restoration and rehabilitation of the victims. The principles were adopted on July 24 2015 by 48 organisations representing various stakeholders.
Many times, programmes about victims do end up sidelining the real victims. What’s there for the victims, practically speaking? What can they get out of these principles? Are we not giving victims false hope? During the work of the Truth and Reconciliation Commission (TRC) in South Africa, many victims came out to speak about their experiences and expectations. Out of the process, the commission recommended compensation for victims that met a certain criteria. In line with that recommendation, President Thabo Mbeki established the President’s Fund for Rehabilitation and Redress. By 2003, a billion rands had accumulated in the fund but the majority of the 90 000 documented eligible victims of apartheid had not received a cent from the fund. Khulumani Trust, an organisation that represents victims of apartheid, has accused the TRC of rewarding perpetrators with amnesty and ignoring victims. Other critics have even accused the TRC of revictimising the victims by asking them to go through the ordeal of having to retell their traumatic experiences and not addressing their situations.
Zimbabwe has experienced some serious episodes of violence in the past. Gukurahundi — some 20 000 civilians killed, potentially 20 000 families with stories to tell. Operation Murambatsvina left some 700 000 people homeless. We have some 700 000 stories to listen to. In my career as a lawyer, I have represented many victims of human rights violations. There is a story of pain and trauma. It is indeed a Pandora’s box and what are the risks to opening this box? After our radio interview, there was a flurry of tweets and an interesting discussion started online regarding truth-telling. Otto Saki, an independent expert with NTJWG joined the discussion online. He argued that the NTJWG was not opening a Pandora’s box.in fact, he tweeted, the Constitution, through section 251, had opened the Pandora’s box on these issues.
The issue of how we, as a society, must deal with our past legacy of violence has been an open box for a while. In 1984, the Zimbabwe Catholic Bishops Conference wrote a Pastoral Letter, Reconciliation is Still Possible bemoaning the role of the State in Gukurahundi. The letter was presented to the then Prime Minister Robert Mugabe, together with a dossier detailing the role of the military in the Matabeleland atrocities. In 1997, Legal Resources Foundation and CCJP published a ground-breaking report with a title loaded with meaning, Breaking the Silence, Building True Peace — A Report of the Disturbances in the Midlands and Matabeleland 1982 -1987. Following Murambatsvina in 2005, several reports came out, including the UN’s authoritative report by Anna Tibaijuka.
It does appear like our Pandora’s box has been open for a while, way before NTJWG started this discussion. What is true, however, is that our government has not been interested in having a discussion on these issues at an official level, so they have created an illusion that there is a Pandora’s box which is dangerous to open. In truth, only their eyes have been shut. Everyone else has been talking about these violations since they happened. The majority of transitional justice stakeholders have been working with victims to try and find solutions. I have worked with many organisations litigating for victims so that they can find justice.
Indeed, these discussions do raise the hopes and expectations of victims for solutions, and that is a good thing. Victims must be empowered of their rights and assisted in making a claim for such rights. By creating a set of guiding principles on Reparations and Rehabilitation of Victims, stakeholders are not creating litany to the Saints hoping for solutions to come from heaven. We are creating practical action points based on our justifiable bill of rights and demanding that duty bearers do their part. Victims of human rights violations have the right to redress. They have the right to speedy access to justice. There are official bodies with a constitutional mandate to ensure that this happens. This is the mandate of the ZHRC, ZGC and the NPRC.
On November 26 2015, the NTJWG presented to the Parliamentary Thematic Committee on Peace and Security, the Minimum Standards for an Effective NPRC. During the presentation, I noted that the 2013 Constitution invites all of us to a national dialogue on how we can build sustainable peace. This is a dialogue which has been avoided at the official level because our leadership preferred amnesia as opposed to truth-telling. By establishing the NPRC with a specific mandate to encourage truth-telling, making of amends and provision of justice for past victims, we have made a break with that policy of amnesia and we are now ready for the risks of truth, justice and accountability. These are the key ingredients for building true peace.
Alec Muchadehama is a partner at Mbidzo Muchadehama and Makoni Legal Practitioners, chairperson of the National Transitional Justice Working Group (NTJWG) and leader of the Reparations Thematic Area for NTJWG. For feedback, write to email@example.com