By Godfrey Mupanga
ON July 6 The Herald carried the story “AU rejects damning report on Zimbabwe” highlighting the human rights situation in Zimbabwe prepared by the African Commission o
n Human and People’s Rights.
The story in all its material respects was repeated on the 8 o’clock news on television the following day, only this time Information and Publicity minister, Professor Jonathan Moyo appeared, haranguing the commission and everyone else except his government. The Minister of Foreign Affairs, Dr Stan Mudenge also appeared on television frothing at the mouth and visibly angry about the report. Various baseless allegations were made by the government-controlled media. It is doubtful that those made by Moyo on television can stand up to scrutiny against the law of defamation. Among them are that:
* Amani Trust, the British or Sternford Moyo, the former President of the Law Society of Zimbabwe, authored the report;
* The report was rejected by the executive council of the AU because the government of Zimbabwe was not given a chance to respond to the allegations contained in it;
* The report was intended as a basis to put Zimbabwe on the agenda of the United Nations; and
* The release of the report was intended to coincide with the arrival of Chris Mullen, a British minister, in Addis Ababa while the AU summit was in session.
By way of background, the African Commission on Human and People’s Rights was established in terms of Article 30 of the African Charter on Human and People’s Rights. The charter is the Bible or the Koran on human rights matters in Africa. The commission has been in existence since its official inauguration on November 2 1987.
Until the African Court on Human and People’s Rights becomes operational, the commission is the only body on the continent that is charged with supervising the implementation of the charter. It has two primary functions – the promotion and protection of human and people’s rights in Africa. It is also the duty of the commission to interpret the African Charter and to perform any other function assigned to it by the AU Assembly.
Since its creation the commission has performed many commendable tasks in order to achieve its promotion and protection mandates. Under the protection mandate the commission can receive and consider cases filed by individuals, non-governmental organisations (NGOs) and other groups who feel that their rights or those of others have been violated by a state that is party to the charter. The commission is also empowered to undertake in-depth studies of situations revealing serious violations of human rights and to make recommendations.
It is pursuant to this mandate that at its 29th Ordinary Session in Tripoli in April 2001 the commission took the decision to send a mission to investigate widespread reports of human rights violations in Zimbabwe in June 2002. The mission met representatives of government, law enforcement agencies, the judiciary, civil society organisations and political parties. Equipped with the information obtained from interviews with these groups the commission set out to write a report. That report was adopted by the commission at its 34th Ordinary Session in November 2003.
It is therefore spurious to allege that the Amani Trust, the British orSternford Moyo authored the report. It is possible that the Amani Trustbeing a civil society organisation, and Sternford Moyo in his capacity as President of the Law Society of Zimbabwe – also a civil society organisation – were interviewed in the same manner that government officials, including Jonathan Moyo were interviewed.
Such comments are also disparaging to the commission, which in terms of the charter is composed of individuals “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and people’s rights”.
The claim that the government of Zimbabwe was not given the chance to respond to the allegations contained in the report is fallacious and dishonest because we know that the report has for a good measure of time been with the government, having been received by the Ministry of Justice, Legal and Parliamentary Affairs.
It is reasonable to assume that the report of the commission was indeed discussed by the cabinet. In that case, delivery of the report to one or other of the government ministries must be deemed as sufficient and proper service on the government. In any case, the charter and the rules of procedure from which the commission draws its mandate do not specify to which ministry of the government the document should be sent, stating only that the report should be sent to the state party concerned.
If, as argued by Mudenge, the commission failed to observe protocol by sending the report to the wrong ministry, that ministry had two options upon receiving it. It could either return it to the commission stating the proper ministry to which the report should be sent or it could acknowledge receipt and advise the commission that it was forwarding it to the correct ministry.
If the latter option had been preferred, the commission would then have communicated with the Ministry of Foreign Affairs to make sure that it had indeed received the report. If the Ministry of Justice acknowledged receipt of the report and conducted itself in such a way as to give the commission the impression that it had the authority to receive the report on behalf of the government, then the government cannot argue that it was not given proper notice of the report.
In Article 59, the charter states that all measures taken in terms of the provisions of the charter shall remain confidential until the AU Assembly decides to make any such measure public. If the commission posted the report on the Internet as claimed in the Herald, then it was wrong because the AU assembly had not considered the report and decided that it should be made public.
It appears though that the distress caused to the government of Zimbabwe by this report has far less to do with due process than with the substance of the report. The opinion expressed by the commission that the land is not in itself the cause of division in the country throws spanners into Zanu PF’s propaganda.
The lie that the land, and not a crisis of governance is the cause of the problems in Zimbabwe has been exposed. The government managed to pull the wool over the eyes of some organisations like the Commonwealth. The commission has refused to be deceived.
The feeble attempt to fit the work of the commission into the perceived international conspiracy against the government of Zimbabwe is unfortunate. The report prepared by the commission following its mission should not be looked at as a means to embarrass or challenge the government. It is imperative to regard it as positive criticism which aims at enhancing the mechanisms for promoting and protecting human rights.
Running through the gamut of the mandate of the commission is the requirement for constructive dialogue in cases that reveal a series of serious violations of human rights in order to achieve the effective realisation of the rights enshrined in the charter. In fact, the states and the commission are partners in promoting and protecting human rights. The government of Zimbabwe must know that it is in the best interests of any African state to support the work of the commission and to build confidence in, and a strong partnership with, the commission.
Instead of engaging in shadow-boxing, the government needs to engage the commission in order to solve the festering human rights situation in the country. One of the ways in which the government can engage the commission is by complying with its reporting obligations under Article 62 of the charter. The reporting system enables government to examine practices and procedures of all state institutions and legislation and ensure that these are in line with provisions of the charter. The country’s 9th report to the commission will be due on March 30 2005, yet since ratifying the charter on May 30 1986, Zimbabwe has only submitted two reports – the first one in October 1992 and the second one in March 1996.
Godfrey Mupanga is a lawyer with the Zimbabwe Human Rights NGO Forum.