“Disturbing the peace”

An overview of civilian arrests in Zimbabwe:

February 2003 – January 2004

The Solidarity Peace Trust

July 2004

Zimbabwe and South Africa

….the [Zimbabwe] regime has become more proficient at forestalling resistance to its rule. Demonstrations are usually thwarted before they begin or broken up early. Youth militias terrorise opposition supporters. Detain-and-release cycles are applied to opposition and civic leaders, combined with endless court actions to wear down stamina and resources. At the core is violence, used in both targeted and indiscriminate ways.

International Crisis Group, April 19, 2004

“The Public Order and Security Act (POSA) was enacted in January 2002 as part of an overall strategy by the government authorities to hinder the campaigning activities of the MDC in the run-up to the presidential elections in March 2002, tighten restrictions on the independent media and give the police sweeping powers. Since its enactment POSA has been used by the authorities to target opposition supporters, independent media and human rights activists and specifically to restrict their rights to: freely assemble; criticise the government and President; and engage in, advocate or organise acts of peaceful civil disobedience. (Emphasis added)

Hundreds of Zimbabweans, mainly opposition supporters have since been arbitrarily arrested. The legislation has enabled the police to intimidate, harass and brutally torture real, or perceived, supporters and members of the opposition.”

Amnesty International, 2002

Contents

Page

1.Summary and conclusions 4 2. Background and context of POSA 8

3.A façade of lawfulness 9

4.Impact of POSA on democratic groups 10

5.Intention behind POSA 11

6.Findings 13

7.POSA Sections most utilised against opposition 16

8.POSA Sections 5 to 11: 28 days detention without bail or evidence 19

9.Treatment by arresting officers and in police custody 20

  1. Case study of arrest in 2003 22
  2. Conclusion 24
Appendices

Appendix One: Most common Sections of POSA in full 25

Appendix Two:Associated references 27

Figures

Figure 1: Chart showing charges laid in 1,225 political arrests 14

Figure 2:Chart showing outcome of 1,225 cases of arrest during 2003 15

Figure 3: Numbers charged in terms of different sections of POSA:

Harare: 435 arrests 17

Figure 4: Numbers charged in terms of different sections of POSA:

Bulawayo: 300 arrests 17

Figure 5: Numbers charged in terms of different sections of POSA

Harare and Bulawayo combined: 735 arrests 19

Photographs

Page

Front Cover:Woman beaten by police during peaceful demonstration

called by ZCTU on 18 November 2003: Bulawayo.

Photo 2:Riot police on streets of Bulawayo during ZCTU 4

demonstration, 18 November 2003: Bulawayo.

Photo 3:19 year-old male attacked by police dog during

ZCTU demonstration, then jailed without medical attention,

18 November 2003: Bulawayo. Close up of left leg. 7

Photo 4:Trade union leader violently detained by police and tortured; 29

Bulawayo, 8 October, 2003 [see case study, p 22]

Photo reproduced from The Worker, November 2003, Harare.

1.Summary and conclusions

The last four years have seen a relentless clampdown on all those who are perceived as opposing the ruling party, ZANU-PF. State repression has relied on key new pieces of legislation that give the state almost unlimited powers against its own people. It is two years since the most draconian act in Zimbabwe’s 24-year history was passed into law - the Public Order and Security Act (POSA). Since it was passed in January 2002, POSA has been used weekly to silence democratic voices, and hundreds have been arrested in terms of its clauses. With a general election constitutionally bound to take place within the next year, it is essential to review the state of democracy in Zimbabwe at this time, and to identify those aspects that will rule out from the onset the possibility of any election being free and fair. It is clear that the POSA is a powerful, anti-democratic weapon that has been and will continue to be used against alternative voices in Zimbabwe. POSA rules out almost every democratic activity, including the rights to freedom of speech, opinion and association.[1]

This report is the first since the passing of POSA to attempt to pull together available information on arrests of civilians over a one-year period, from February 2003 to January 2004, in order to draw out trends in arrests and the specific use of POSA by the police.

Approximately 1,200 arrests from around Zimbabwe are analysed here in terms of: what charges if any were laid; outcome, if any, of cases; abuses by authorities at time of arrest. These arrests are by no means all those that took place during the time in question; lawyers from 27 legal firms in five towns have released general information on political arrests for the purposes of this study. Not available to the authors are details of arrests in which those arrested did not have legal representation, which is commonly the case in Zimbabwe particularly in smaller centres, and arrests that were processed via legal firms not involved in this study. Findings here should therefore be considered to give a good indication rather than a comprehensive overview of how the police power of arrest has been used and abused in Zimbabwe within this twelve-month period.

After analysing 1,225 arrests in Zimbabwe during a 12 month period the following conclusions can be drawn:

  • Civilians in Zimbabwe are systematically arrested when attempting to undertake activities that are considered a normal part of democracy in most other nations, such as the rights to boycott, to gather peacefully and to express opinions.
  • The Public Order and Security Act (POSA) is the most commonly cited Act on arrest of civilians attempting to hold public meetings
  • POSA would be considered an unjust law in most other nations of the world, but having it on the Statutes allows the Zimbabwean government to retain a façade of lawfulness while suppressing its own people
  • POSA is used in a politically partisan way to effectively prohibit normal democratic activities undertaken by civil society or opposition political parties, while supporters of the ruling party can undertake the same activities without interference.
  • Torture, assault and psychological harassment are systematically used by the police and other law enforcement agents while arresting civilians and also in custody, resulting on occasions in severe injury.
  • The State has shown little inclination to pursue cases against most of those accused and detained, indicating their primary motive on arrest is to intimidate and prevent activities that would be accepted in most societies, including passive resistance and boycotts. Where the State has pursued cases related to arrests during 2003, it has failed to achieve conviction.
  • The introduction from 13 February 2004, of 28 days detention without bail, evidence or charge, applicable to arrests under sections 5-11 of POSA must be condemned in the strongest terms. 16% of arrests in 2003 were in terms of these 7 sections, and included opposition party and civil society leadership.
  • Bearing in mind the failure of the State to successfully prosecute those accused under POSA, and the prevalence of torture in custody, the 28 day detention law should be seen for what it is – a tool with the capacity to imprison opposition leadership without evidence for as long as it suits the State.
  • POSA and the general power of arrest are being used as tools by the ruling party to maintain their power at the cost of their citizens’ rights.

As long as POSA remains on the statutes in Zimbabwe, freedom of association, speech and movement will be officially illegal. The existence of POSA alone, gives grounds to conclude that any election in Zimbabwe at this time cannot be considered free and fair, as this statute prohibits normal democratic activities. Before any further elections are held in Zimbabwe, there is therefore a need to repeal POSA and to re-educate the police on the responsibilities of law enforcement agencies to respect the rights of all its citizens in an impartial way.

Photo 3: 19 year-old male attacked by police dog, then jailed without medical attention: ZCTU demonstration 18 November 2003: Bulawayo. Close up of left leg.

2.Background and context of the POSA

The Public Order and Security Act (POSA), which passed into law in January 2002, is one in a long line of highly repressive acts that has been used in Zimbabwe over the last one hundred years, whose primary intention has been to control and repress democratic activities. The Law and Order Maintenance Act (LOMA) promulgated by the Rhodesian Front in 1960, was used throughout the 60s and 70s to silence the rising voices of black nationalists. On coming to power in 1980, the Government of Zimbabwe, having been themselves victims of LOMA, were well aware of LOMA’s anti-democratic nature and unconstitutionality. However, rather than repealing LOMA, the incoming government used it to suppress ZAPU in Matabeleland during the 1980s: for the Zimbabwe Government, LOMA became as convenient as it had been for the previous regime.

Civil society organisations, which gradually gained a stronger voice in the 1990s, campaigned for the repeal of LOMA. The Supreme Court systematically emasculated LOMA during the 1990s by declaring sections unconstitutional. POSA, which has replaced LOMA, has effectively re-enacted those parts of LOMA already declared unconstitutional, as well as placing new repressive restrictions in the hands of the State.

It was no coincidence that POSA was drafted and rushed into law only months before the Presidential election of March 2002. Drafts of the new bill were severely criticised by human rights lawyers and organisations on many occasions prior to its initial appearance in Parliament in late 2001. The Parliamentary Legal committee gave the first draft of the bill an adverse report, declaring it unconstitutional. Despite this, POSA became law in January 2002.[2]

Immediately on passing into law it was used to clamp down on the activities of the most widely supported alternative voice in Zimbabwe, the Movement for Democratic Change (MDC), and also to prevent civil society activities, including peaceful protest, public debates and workshops. While the current report does not consider use of the POSA during 2002, as this information is not to hand in sufficient detail, the opposition claimed that POSA was used to ban in excess of 80 MDC rallies in the run-up to the Presidential election, and to arrest hundreds of their supporters. POSA was also used to disrupt or prevent civil society workshops ahead of the election[3].

During 2003 well over 1,200 politically motivated arrests of civilians took place, mainly targeting members or perceived supporters of the MDC, but also involving civil society activists with no clear political affiliation. Involved in arresting and harassing civilians were the Zimbabwe Republic Police, (ZRP) the Zimbabwe National Army, (ZNA) War Veterans, Central Intelligence Organisation (CIO) and the Youth Militia. The most commonly cited Act on arrest was POSA.

3.A façade of lawfulness

The attacks on the justice system and the passing of draconian laws are part of a bigger strategy to hold onto power at any cost to the rest of the nation. In this, the ZANU PF regime is similar to other fascist states, such as apartheid-ruled South Africa or Nazi Germany. Under cover of obeying these new anti democratic laws, the arms of the State are persecuting their fellow Zimbabweans; the façade of lawfulness has replaced the concept of justice.

Amendments to the Land Acquisition Act, the Electoral Act, the Citizenship Act, the Criminal Law Act, combined with the targeting and purging of magistrates and judges that object to the State use and abuse of such legislation, has given the ruling party the ability to claim a façade of behaving legally in terms of Zimbabwe’s own sovereign rights and laws, while ruthlessly denying the most basic rights to its citizens.[4]

The government has promulgated a strict new media law, the Access to Information and Protection of Privacy Act (AIPPA) in order to control the outflow of information and ensure that the people of Zimbabwe are subjected to propaganda generated by its own information ministry. This has resulted in Zimbabwe being judged the worst country for press freedom in southern Africa by the Media Institute of Southern Africa (MISA).[5] Particularly since the closure of The Daily News, there has been almost no access to information for the ordinary citizens of Zimbabwe, who now live in ignorance of what is happening countrywide.

Human rights abuses and daily arrests take place in Zimbabwe without commentary or far reaching condemnation. Those on the receiving end of abuses feel increasingly isolated and unsupported, with only the State version of events readily available and crimes against them going unreported. Other nations, particularly in Africa, have entered into complicity by deliberately failing to publicly criticise repressive laws in Zimbabwe, instead stating as the South African observer team did after the March 2002 election that while the election was not “free and fair” it was “legitimate” in terms of Zimbabwe’s own laws. In early 2004, South Africa’s Foreign Minister Zuma made a similar comment in relation to Zimbabwe’s media laws and the hounding of journalists and media houses; she refused to say the banning of the Daily News waswrong, as the banning had been reinforced by Zimbabwe’s courts[6]. Yet Zuma failed to comment on the AIPPA itself – a law that has been described by MISA as "one of the most effective legal instruments of state control over the media and civil society communication anywhere in the world".[7]

The reason for extreme measures on the part of the Zimbabwean government is clear. Since similar repressive behaviour saw the demise of ZAPU in 1987, ZANU PF’s hegemony has been unchallenged. The MDC is the first viable national political alternative to ZANU-PF since the late 1980s, and it is no surprise to see the ruling party returning to the repressive measures used against ZAPU. The ruling elite has no intention of losing power, for to do so would be to face prosecution for multiple crimes, including crimes against humanity for the massacres of civilians in Matabeleland in the 1980s, and for thousands of crimes perpetrated in the last four years. To lose power would mean certain disgrace, imprisonment and the loss of ill-gotten gains.

Also part of the ZANU PF strategy to retain power has been the incorporation into the forces of repression of the Zimbabwe National Liberators War Veterans Association (ZNLWVA), and since late 2001, the conscription of youth into national service training and deployment of youth militia against perceived MDC supporters. The government now has at its disposal for the harassment of the opposition and for the punishment of citizens who are perceived to be supporters of the opposition, the police, the army, the CIO, the war veterans and the youth militia. These government agencies have been responsible for murder, torture, property destruction and intimidation throughout the nation over the last four years.[8]

4.Impact of POSA on democratic groups

Control of gatherings

Since the passing of POSA, the opposition MDC, ZANU-Ndonga[9] and civil society groupings have found it almost impossible to undertake what would be considered normal political activity in any democratic nation, such as peaceful gatherings, whether inside or outside buildings.

POSA sections 22 to 31 relate to control of gatherings, outlawing almost any form of meeting or peaceful demonstration. Sections 24 and 25 state that organisers of a gathering of more than one person in a public place must notify the police four days in advance. The police then have the right to ban the meeting. Any organiser who fails to notify will go to jail or be fined. There is no provision for spontaneous gatherings.

Police control who can attend meetings, how long they last and the routes to be taken to and from such meetings. Appeals against the decision of the police on whether a meeting can go ahead or not, have to be made to the Ministry of Home Affairs (ie the police) and not to the courts.[10]

The right to kill

In terms of section 29, 2: the police may use all necessary force to disperse an unlawful meeting in terms of other sections, and if a person is killed by the police – or any other person assisting them during dispersal - this killing shall be considered lawful. This effectively means that if the police – or the army, the “war veterans” or youth militia who may be “assisting” the police – kill a civilian, this is legal if the person killed was part of an “unauthorised gathering” of two or more at the time. Government authorities in all their various forms have been given carte blanche to kill on the streets by this clause, and knowledge of this fact within the general populace has been a major factor in undermining civilian willingness to take part in mass actions called in the last two years.

While nobody has yet been shot dead while taking part in a demonstration, several have been shot and wounded, and vicious assaults on activists are common in the process of arrest and once in custody[11]. During the June stay away of 2003, riot police and soldiers were out in force in every city centre in the nation, armed with automatic machine guns, and tanks and helicopter gun ships patrolled the towns effectively preventing any marches from occurring. Hundreds of arrests under POSA took place during this week.