Suggestions for establishing the National Peace and Reconciliation Commission (NPRC). Research & Advocacy Unit (RAU)

Transcription

1 Suggestions for establishing the National Peace and Reconciliation Commission (NPRC). Research & Advocacy Unit (RAU) May

2 Contents Introduction... 3 The Constitution... 4 The Zimbabwe Human Rights Commission... 4 The National Peace and Reconciliation Commission... 6 The Preamble:... 6 Objectives:... 7 Functions:... 8 The Powers of NPRC:... 9 Organisation: Confidentiality: Back-up Resources: Funding and Resources: Overview Appendices Appendix Appendix

3 Introduction This report is an update of two previous reports issued by the Research and Advocacy Unit (RAU) in anticipation of the setting up of the National Peace and Reconciliation Commission (NPRC) 1. More than two years after the promulgation of the new Zimbabwe Constitution neither the Commission is in place nor has the enabling legislation for the operation of the Commission been passed by Parliament. Furthermore, there has been no extensive public discussion about the possible NPRC Bill or the composition of the Commission. This is clearly unacceptable behaviour on the part of the Zimbabwe Government given that the purview of the NPRC, the extensive gross human rights violations of the past four decades is a matter of considerable concern to the citizens of Zimbabwe, 2 and, furthermore, the necessity of dealing with the past is clearly an issue that has a material effect on the governance of the country currently. It is even more imperative when it is suggested by the Minister of Finance that government is suggesting that it no longer feels able to support the Independent Commissions due to the dire fiscal state of the country. However, it is perhaps a hopeful sign that interviews are finally being scheduled for the vacant posts in the Zimbabwe Electoral Commission and the Zimbabwe Human Rights Commission, and prospective candidates will be interviewed as well for the Zimbabwe Gender Commission and the National Peace and Reconciliation Commission 3. Dealing with the impunity of the past and providing relief for the tens of thousands of victims and survivors is a deep problem for any transition to full democracy. It is a source of deep discontent for many thousands of citizens in the Matabeleland Provinces because of Gukurahundi 4 in the mid- 1980s, but equally a source of discontent for many thousands of victims and survivors from other periods in Zimbabwe s history. Zimbabwe cannot move forward into a fulsome democracy with the problems of the past left unresolved. It is also worth pointing out that the whole discussion about transitional justice takes place in a very uncertain present, one in which political violence may erupt on a large scale at any moment, and definitely does not take place in a post-conflict environment as has been the case for virtually every transitional justice process elsewhere in the world. 1 RAU (2014), Suggestions for setting up the National Peace and Reconciliation Commission (NPRC). Governance Programme. May HARARE: RESEARCH & ADVOCACY UNIT; RAU (2014), Dealing with the Past: Key points to consider on Transitional Justice and the setting up of the National Peace and Reconciliation Commission. HARARE: RESEARCH & ADVOCACY UNIT. 2 RAU (2009),Transitional Justice in Zimbabwe: A pilot survey of the views of activists & victims. Report produced by the Research & Advocacy Unit. January HARARE: RESEARCH & ADVOCACY UNIT; Zimbabwe Human Rights NGO Forum (2011), Transitional Justice National Survey. A Report on the People s Perceptions and Recommendations. HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 3 See Daily News, 18 th March CCJP & LRF (1997), Breaking the Silence-Building True Peace: A Report on the Disturbances in Matabeleland and Midlands 1980 to 1988, HARARE: CATHOLIC COMMISSION FOR JUSTICE AND PEACE IN ZIMBABWE & LEGAL RESOURCES FOUNDATION. 3

4 The Constitution The Constitution of Zimbabwe requires a number of Independent Commissions to be established: the Zimbabwe Electoral Commission (ZEC), the Zimbabwe Human Rights Commission (ZHRC), the Zimbabwe Gender Commission (ZGC), the Zimbabwe Media Commission (ZMC), the Zimbabwe Anti-Corruption Commission (ZACC), and the National Peace and Reconciliation Commission (NPRC). Some of these Commissions existed prior to the provisions of the new Constitution, but all are now mandated under this new Constitution. Three of these deal explicitly with issues of human rights: the Zimbabwe Gender Commission; Zimbabwe Human Rights Commission and the National Peace and Reconciliation Commission. Whilst these latter two Commissions both cover the field of human rights, they have very different foci and areas of application as shall be seen below, but essentially, ZHRC deals with the present, or at least all violations since 13 th February 2009, and NPRC deals with the past, although the past is not clearly specified. The rationale for including the ZHRC in this discussion is that it is extant, deals with human rights violations, and hence provides attest case for examining the government s commitment to dealing with human rights abuses. It also gives an insight into the manner in which an Independent Commission has implemented its legal and constitutional mandate. The Zimbabwe Human Rights Commission As noted above, the purview of ZHRC is all cases after 13 th February , thus excluding it from examining all cases of human rights violations prior to this date. This means the exclusion of not only the more recent abuses since 2000, including those which occurred around the 2002 Presidential Election and the Presidential re-run in June 2008, but also a very long list of other very plausible candidates for its consideration: Operation Murambatsvina, the Food Riots, Gukurahundi, the Liberation War, and so on. Additionally, there are a plethora of other periods, often around elections, such as those in 2000, and other less dramatic cases. ZHRC does have very broad powers nonetheless, and these can have a decided effect upon the human rights climate in Zimbabwe, if the ZHRC acts strongly under its mandate, as well as, of course, being properly resourced. As outlined in Section 4 of the Zimbabwe Human Rights Commission Act: the Commission shall have the following functions and powers (a) to conduct investigations on its own initiative or on receipt of complaints; (b) to visit and inspect prisons, places of detention, refugee camps and related facilities in order to ascertain the conditions under which inmates are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places or facilities; 5 Section 9, sub-section 4(a), Act2/

5 (c) to visit and inspect places where mentally disordered or intellectually handicapped persons are detained under any law in order to ascertain the conditions under which those persons are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places; and (d) to ensure and provide appropriate redress for violations of human rights and for injustice; (e) to co-operate with human rights institutions belonging to international, continental or regional organisations of which Zimbabwe is a member. As can be seen, a pro-active ZHRC can have a decided impact. For example, it could regularly visit police stations in order to determine whether the conditions are adhering to proper standards, and, even more importantly, whether detainees are being held free from torture. There is a mountain of evidence already, and even court decisions, that demonstrate the appalling conditions of many detention centres, and even more evidence about the use of torture by the Zimbabwe Republic Police. This does not need complaints to be made, but a plan of action by the ZHRC to deal with these problems. However, the efficacy of ZHRC will depend in no small measure on the genuine independence of the Commissioners and the extent of the Commission s resources. There are good reasons for being pessimistic at this point, and there is little evidence of the ZHRC taking a very pro-active position on its mandate. As can be seen from the Commission s website, ZHRC has set up three programmes: Complaints handling and investigations Unit Education, Promotion and Research Unit Monitoring and Inspections Unit These programmes are logically commensurate with the Act and the Constitution, but more careful scrutiny suggests that ZHRC takes a somewhat passive attitude. For example, where the Act states that ZHRC has the power to conduct investigations on its own initiative or on receipt of complaints, the ZHRC expresses this in the passive: The complaints handling and investigations unit is responsible for receiving all complaints that come to the Commission. It is also responsible for making investigations into the reported cases. The Commission deals with complaints of abuses and violations of rights and freedoms that are enshrined in the Constitution of Zimbabwe and in any international human rights agreements that the country has agreed to sign 5

6 and any complaints arising from abuse of power or maladministration by the State and public institutions and by officers of those institutions. There is no reference to conducting investigations on its own initiative, rather on receiving complaints, although the ZHRC did conduct an investigation into the Tokwe-Mukosi dam disaster, presumably under the aegis of the Monitoring and Inspections Unit of the ZHRC. However, there is no evidence that ZHRC has followed up see whether its recommendations have been followed, or that they have investigated the very serious reports of gross human rights abuses subsequently. It will also be interesting to see what steps the ZHRC takes in respect of the recent riot at Chikurubi Maximum Prison. It may generally be acceptable to see all three Units as having equal standing, but given the appalling human rights record prior to 13 th February 2009, it might be assumed that ZHRC would have given a much greater priority to its Complaints and Investigations mandate to deal with current violations in order to give effect to the intention to protect the public against abuse of power and maladministration by State and public institutions and by officers of those institutions 6. Certainly, the Commissioners cannot be unaware of the past violations, the allegations about the deep involvement of the state in perpetrating these violations, and hence the need to ensure that this state of affairs is redressed as soon as possible. For example, investigations at ZHRC s own initiative into every allegation of torture by the Zimbabwe Republic Police, whether brought to the Commission as a complaint, or brought to light by the Commission s own investigations of detention centres, might go a considerable way to creating public confidence in the ZHRC, and, equally importantly, putting an end to the impunity that so many state officials believe is their right. Thus, this very brief look at the ZHRC suggests that there is need for a very careful scrutiny of the NPRC, the selection of the Commissioners, and the enabling Act that will provide the operational mandate of the NPRC. The National Peace and Reconciliation Commission As pointed out in a very useful International Centre for Transitional Justice (ICTJ) monograph 7, on which our previous report drew extensively, there are a number of key issues that will need to be addressed in the legislation governing the NPRC. The Preamble: The Preamble to the Act will need to specify carefully the issue of addressing of all gross human rights violations, both pre and post-independence, to indicate the need to prevent such future violations, and to outline the Joinet Principles - the rights to know, justice, non-recurrence, 6 Section 243 (e). 7 Gonzalez. E (2013), Drafting a Truth Commission Mandate: A Practical Tool. INTERNATIONAL CENTRE FOR TRANSTIONAL JUSTICE. 6

7 and reparations 8. The Joinet Principles, derived from extensive experience in countries with legacies of massive human rights violations, are the generally accepted international guidelines on how to deal with the transition from the violations of the past, through the challenge to impunity to fully-fledged democracy. The need to take an expansive view of the past is indicated in the Constitution: as the Constitution expresses this, to ensure post-conflict justice, healing and reconciliation does not specify a time period, and hence can encompass all the violations of the past 9. This was the view of Zimbabwean civil society at the important symposium held in , and re-iterated over subsequent years. 11 The Preamble should also state the need for the widest possible involvement of Zimbabwean citizens in developing the way in which Peace and Reconciliation will be achieved, and that this should develop in a phased fashion, moving from understanding the scope and nature of the violations story-telling and healing through to justice and reparation and guarantees of nonrecurrence. Objectives: The ICTJ monograph lays out three very general objectives that cover all of the Joinet Principles and the broad aims of the policy for Peace and Reconciliation, as follows: 1. Establishing the truth about crimes and events, what persons and groups are responsible for crimes, the causes of abuses, and historical explanation; 2. Protecting, recognizing, and restoring the rights of victims; 3. Positive social and political transformations. 12 These should be broadly stated so as not to tie down the mandate of the NPRC too much, and it might be crucial not to play up amnesty too much. Amnesty is always a complex problem, and can easily derail other aspects of the transitional process. For example, the amnesty process of the South African Truth and Reconciliation Commission (TRC) has caused many more problems 8 See UN [1997], The Administration of Justice and the Human Rights of Detainees: Question of the impunity of perpetrators of human rights violations (civil and political), revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, United Nations. Economic and Social Council. Commission on Human Rights. Sub-Commission on Prevention of Discrimination and Protection of Minorities. E/CN.4/Sub.2/1997/20/Rev.1. 9 Section 252(b). 10 Themba Lesizwe (2004), Civil Society and Justice in Zimbabwe, Proceedings of a symposium held in Johannesburg, August 2003, PRETORIA: THEMBA LESIZWE. 11 ZHRNGOF (2012), International Conference on Transitional Justice in Zimbabwe. Conference Report, Troutbeck Inn, Nyanga, 4-6 th October HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 12 There is frequent confusion about reconciliation as a process rather than an end state. It seems fatuous to ask (as many churches have done) for people to reconcile before processes of repentance (or judgement where there is no repentance) have taken place. This must be one of the most evident learnings from Mugabe s so-called reconciliation of 1980: you can t easily forgive if there is no repentance (or even apology) as there was not from the White population. 7

8 than it solved, so it is probably better to let discussions about amnesty emerge from the consultations with citizens under the first two objectives. Certainly this was the intention behind the recommendations of the 2003 Johannesburg Symposium: that all the policies related to transitional justice emerge from a comprehensive consultation with the victims and survivors. But the importance of the history taking aspect cannot be over-emphasized. As we pointed out in our previous report, there are serious differences between many groups in Zimbabwe over which period in our history matters: many citizens in Matabeleland have little interest in any other period than the 1980s, whilst many of the younger citizens have no interest in any period prior to However, as is clear from all experience, no successful transitional justice process can operate with periods of gross human rights violations excluded from the process, and hence the recommendations of the 2003 Johannesburg Symposium, that no period since the 1890s should be excluded, should be given careful consideration by the NPRC. The protection of those wishing to tell their stories to the NPRC is also crucial, as it will be for any adjunct programme of healing that might emerge either under the aegis of the Commission or as support for the tens of thousands of victims. As the Joinet Principles point out under the Right of Reparations, rehabilitation is a crucial component of a comprehensive transitional justice process, and, given the extent of the organised violence and torture of the past four decades in Zimbabwe, there will be an undeniable need for rehabilitation 14. Functions: The critical issue will be manner in which the NPRC Act defines the functions of the NPRC, and, furthermore, as was shown for the ZHRC, how the Commission turns these functions into a clear plan of action. The functions of the NPRC are broadly stated in the Constitution, and seem mostly satisfactory, that is to: Ensure post-conflict justice, healing and reconciliation. Develop and implement programmes to promote national healing, unity and cohesion in Zimbabwe and the peaceful resolution of disputes. Bring about national reconciliation by encouraging people to tell the truth about the past and facilitating the making of amends and the provision of justice. Develop procedures and institutions at a national level to facilitate dialogue among political parties, communities, organizations and other groups, in order to prevent conflicts and disputes arising in the future. 13 RAU (2009),Transitional Justice in Zimbabwe: A pilot survey of the views of activists & victims. Report produced by the Research & Advocacy Unit. January HARARE: RESEARCH & ADVOCACY UNIT; Zimbabwe Human Rights NGO Forum (2011), Transitional Justice National Survey. A Report on the People s Perceptions and Recommendations. HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 14 Parsons, R., Reeler, A., Fisher, J., & Mpande, E (2011),Trauma and Mental Health in Zimbabwe, November 2011, HARARE: RESEARCH & ADVOCACY UNIT. 8

9 Develop programmes to ensure that persons subjected to persecution, torture and other forms of abuse receive rehabilitative treatment and support. Receive and consider complaints from the public and to take such action in regard to the complaints, as the Commission considers appropriate. Develop mechanisms for early detection of areas of potential conflicts and disputes, and to take appropriate preventive measures. Do anything incidental to the prevention of conflict and the promotion of peace. Conciliate and mediate disputes among communities, organisations, groups and individuals. Recommend legislation to ensure that assistance, including documentation, is rendered to persons affected by conflicts, pandemics or other circumstances. Thus, it is possible that a complete transitional justice process could be established under the NPRC, given the suggestion that the Commission is empowered under the Constitution to ensure post-conflict justice, healing and reconciliation. However, it is also the case that such a process may be ill-advised in the absence of both a full commitment by the government to transitional justice and an extensive consultation with the citizens of Zimbabwe. Such commitment seems doubtful in the light of the tardiness in setting up the NPRC, legislating the enabling Act, and now the suggestions, mentioned above, that the government feels that it will be unable to resource the independent commissions. As pointed out above, it is encouraging that the selection of commissioners is due to take place, but this requires much broader discussion about the merits of the potential candidates, and the assurances that the final commissioners will be both independent and resourced properly 15. The Powers of NPRC: The NPRC will need to have some powers explicitly specified in its enabling legislation, and the most common powers internationally are specified in the ICTJ monograph as follows: The power to summon persons, including government officials, to appear before the commission and to produce articles or documents; The authorization to conduct inspections in places of interest, such as prison facilities and military bar- racks, and initiate exhumations in accordance with the law and in coordination with law enforcement; The authorization to obtain official cooperation to ensure the security of proceedings, offices, and persons related to the commission; 15 The list published in the newspapers contains many names that are not well-known as advocates for human rights or have backgrounds in the issues that will be required by the NPRC. The concerns of many would be addressed by government making available the curriculum vitae of the candidates. Here government could draw a lesson from the transparency that accompanied the selection of the members of the National Transitional Working Group. 9

10 The full co-operation of law enforcement and judicial bodies in the exercise of its mandate. Without these powers, an independent commission such as the NPRC will be completely hamstrung in its activities. In addition, the NPRC must be empowered to conduct public consultations, and to receive and publish periodic reports. This needs to be specified in order to counter the idea that NPRC will only publish a final report of its findings, and all proceedings are sub judice until the end of ten years. The ten year rule on reporting will prevent the kinds of dialogue with ordinary citizens that will allow the development of a proper, grounded in the consensus of citizens, and hence able to determine the path from the past to a truly democratic future. Although Section 323 suggests that the NPRC may submit matters of importance in its view to Parliament in its annual report to Parliament, this is clearly discretionary, and a supine NPRC can easily avoid any reporting of substance, much in the way that ZEC avoids troublesome matters in its reporting to Parliament. 16 Organisation: The biggest issue about organisation will be over appointments, given the widely held perceptions of how ZANU PF has always packed the other Commissions with a majority of their supporters, clearly undermining the independence of Commissions. The new Constitution will have the Chairperson appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders, with the other eight chosen from a list provided by the Committee on Standing Rules and Orders. This is how most Commissions will be chosen, but, given the sensitivity for the NPRC, perhaps this can be enhanced (without violating the Constitution). In our previous report we suggested the following process for selection: Four members from a list provided by the Committee on Standing Rules and Orders (CSRO); Two members from a list of clergy chosen by a sub-committee of eminent churchmen set up by the CSRO; Two members from a list of civil society and eminent citizens chosen by a sub-committee set up by the CSRO. Such a process could overcome the many reservations that citizens have about Commissions in Zimbabwe and their lack of independence, and ensure stronger commitment to the process. However, it is apparent that selection will strictly follow the process set out in the Constitution, 16 See, for example, Matyszak, D. A (2014), AN EXAMINATION OF THE PERFORMANCE OF THE ZIMBABWE ELECTORAL COMMISSION (ZEC) IN MANAGING THE 2013 ELECTIONS IN ZIMBABWE. December HARARE: RESEARCH & ADVOCACY UNIT. 10

11 and broad input by citizens and communities will be minimised in favour of the Executive and Parliament. This is unlikely to foster confidence in the independence of the Commission, especially with the examples of the Anti-Corruption Commission and ZHRC previously, and has already drawn adverse comments. 17 The setting up of the sub-committees that will operate under the NPRC s mandate 18 will be critical, and here we suggested previously that a number of Committees can be suggested. These are not inclusive, but can cover the ambit for the functions of the NPRC specified in Section 251 of the Constitution. The suggested sub-committees were as follows: Truth Committee: to act immediately and undertake the story-telling exercise; Healing Committee: to act immediately and in conjunction with the Ministry of Health and Child Welfare and to undertake the healing exercise; Justice and Amnesty Committee: this should be set up, but its immediate task should be to review as widely as possible from all jurisdictions the appropriate approach for Zimbabwe, including research within Zimbabwe on citizens views of justice and amnesty. This committee should also be taking note of the findings of the first two Committees; Reparations Committee: This is probably a better term for this Committee than Compensation, since the Joinet Principles outline three aspects of Reparations Restitution, Compensation and Rehabilitation. Each of these has applicability in Zimbabwe. This Committee should be set up immediately, and, as with the Justice and Amnesty Committee, should start with reviewing as widely as possible, from all jurisdictions, the most suitable approach for Zimbabwe, including research within Zimbabwe on how restitution, compensation, and rehabilitation are necessary. Conflict Prevention Committee: This too should be set up immediately and should begin to address the polarisation in local communities and the nation. It should also begin to address the matters around non-recurrence through research and consultations with local communities. 17 National Transitional Justice Working Group. PRESS STATEMENT - 20 MARCH Who is Best Suited to Lead our National Peace and Reconciliation Process? 18 Some suggestions for the committees in the NPRC were well-specified by the Rights and Interests Cluster of the MDC-T. This reference to these suggested is merely (as was stated in the companion paper) because the formulation has useful and informed suggestions that are not necessarily party specific and could helpfully drive the national interest. 11

12 As can be seen, each of the Committees would operate to some extent independently (but coordinated, with the data integrated), but will have different time scales that will need to be carefully defined. The intention must be not to create undue expectations, to engage the citizenry as actively as possible, to foster active community engagement, and, above all, to break the commandist form of governance that has so permeated the last 33 years. Confidentiality: Given the climate of fear of the last 14 years, the creation of trust and the removal of fears of retribution will be important factors to counter-act. Hence, confidentiality will be a crucial aspect of all data gathering. Thus, it will be an imperative, for all Committees, that guarantees of confidentiality be given and that every person, group, or community involved in giving stories can be allowed to decide what level of confidentiality they require. This will probably be very high in the beginning, and dependant on the response of the security sector. Thus, much early data may have to be anonymised, but, as trust develops, will take on more explicit forms. Demands for complete truth-telling ab initio may reduce involvement, but this may also be offset by the casting of the period for story-telling to include pre-independence violations. Additionally, it may be that the healing exercise will contribute strongly to greater trust in the story-telling exercise, especially if the major locus of the healing exercise is around community-based healing. There is good evidence that such an approach has had powerful effects in reducing community polarisation and conflict. 19 Back-up Resources: As we pointed out in our previous report, it will be crucial to the success of the NPRC that there is a well-resourced and expert documentation and research unit. This unit will be responsible for recording all statements, etc. given to the Committees, ensuring that documentation is reliably stored according to the confidentiality level of the information, producing reports for feed-back purposes back to groups and communities (where required), and ensuring linkages between the data gathered from the different Committees, and even linkages between data gathered by different Commissions. Additionally, this unit can prepare brief on-going reports from data gathered from community consultations for feedback to the communities and groups from which the data emanated in order to keep up interest, encourage further discussions, and foster a feeling that government is actively addressing the problem. It may also be useful to have a small professional communications unit attached to the research and documentation unit that can prepare various media releases. Here it is instructive to note the impact that the publicised hearings of the South African TRC had on public attitudes to gross human rights violations and their understanding. 19 See again Parsons, R., Reeler, A., Fisher, J., & Mpande, E (2011),Trauma and Mental Health in Zimbabwe, November 2011, HARARE: RESEARCH & ADVOCACY UNIT. 12

13 Funding and Resources: Three issues are important here: funding and staffing for NPRC per se, funding for the activities of the Committees, and funding for the many NGOs, churches, and civil society groups that have been so intimately involved in all the transitional justice and healing work to date. The point about including the third grouping is that there is considerable expertise available that can assist the Commission in its work and these groups will need funding which can be facilitated from donor sources if there is not undue competition between the Commission and this grouping. But the parlous nature of the Zimbabwean economy, and the comments by the Minister of Finance recently suggest that there will be very little funding coming from the Zimbabwean government. As is pointed out in the ICTJ monograph, many truth, justice and reconciliation commissions have received both government funding and donor funding for their work, and it is hoped that this would be the case for Zimbabwe. However, there have been severe problems in the past with funding by external donors for Zimbabwean Commissions, with the many problems around funding for ZEC the most notorious. The Zimbabwean government has frequently taken the position that such funding will compromise the independence of the Commission, and, with such a delicate problem as transitional justice, it can be anticipated that such objections are likely to be raised again. Thus, it is probable that the NPRC will face considerable resource problems from the outset. Overview Since our two previous reports, there has been very little development in respect of the setting up of the NPRC, apart from beginning the process of selecting the Commissioners. Whilst this is minimally encouraging, enthusiasm must also be tempered by the reality that government cannot afford the Commission and has stated this baldly. It is also the case that, like the ZHRC, the NPRC is a very contentious body for the current government: apart from the honeymoon of the Inclusive Government, ZANU PF has been in power during every period in which gross human rights violations have taken place since Independence in Furthermore, there also remains consideration of the violations that took place prior to Independence, and, while much blame can be lain at the door of respective settler governments, gross human rights were not the exclusive domain of these governments: nationalist political parties and liberation movements were not blameless r during the pre-independence era. 20 Thus, the enthusiasm for a transitional justice process is probably unevenly shared, especially for all those for whom, at the least it will be embarrassing or humiliating, and, at worst may bring them to legal justice. It should be noted in defence of this comment that, in the four year operation of the Organ on National Healing, Reconciliation, and Integration (ONHRI), that body was wholly unable to determine what form transitional justice in Zimbabwe should take. However, there is now a constitutional obligation to engage the process of transitional justice, no 20 Sachikonye. L (2011), When a State turns on its Citizens. Institutionalized Violence and Political Culture. JACANA PRESS. 13

14 matter how it may appear hidden beneath words such as peace or reconciliation, and it seems clear that any liberal reading of Section 252 of the Constitution supports the notion that the NPRC is about transitional justice. So, it is likely to be a long struggle to ensure that the NPRC meets the expectations of all those tens of thousands of victims for peace and reconciliation, and no prophets are needed to predict that the government will not be enthusiastic in its setting up, developing the enabling legislation, and resourcing of the Commission, notwithstanding the economic problems of the day. Citizens will need to be fully engaged, and it is encouraging that already a pressure group, the National Transitional Justice Working Group (NTJWG), exists to facilitate this engagement. This body represents the cumulative effort of Zimbabwean civil society since the international symposium in 2003 to provide support and pressure for transitional justice in Zimbabwe. The NTJWG is composed of eight experts to spearhead more sustained efforts for transitional justice, and the group is mandated through its election by 46 Zimbabwean non-governmental organisations. The transparency and inclusiveness in setting up this initiative should be a model for the NPRC. But, for true peace and reconciliation to take place, it will take more than the existence of pressure groups, and require the full participation of the citizenry as a whole, and the realization that four decades of gross human rights violations make this a national project. It must involve the nation as a whole, and will take the efforts of more than just the NPRC to give effect to the aspirations expressed in the Constitution. 14

15 Appendices Appendix 1 ZIMBABWE HUMAN RIGHTS COMMISSION 242 Establishment and composition of Zimbabwe Human Rights Commission (1) There is a commission to be known as the Zimbabwe Human Rights Commission consisting of (a) a chairperson appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders; and (b) eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders. (2) The chairperson of the Zimbabwe Human Rights Commission must be a person who has been qualified for at least seven years to practise as a legal practitioner in Zimbabwe. (3) If the appointment of a chairperson to the Zimbabwe Human Rights Commission is not consistent with a recommendation of the Judicial Service Commission, the President must cause the Committee on Standing Rules and Orders to be informed as soon as practicable. (4) Members of the Zimbabwe Human Rights Commission must be chosen for their integrity and their knowledge and understanding of, and experience in, the promotion of human rights. 243 Functions of Zimbabwe Human Rights Commission (1) The Zimbabwe Human Rights Commission has the following functions (a) to promote awareness of and respect for human rights and freedoms at all levels of society; (b) to promote the protection, development and attainment of human rights and freedoms; (c) to monitor, assess and ensure observance of human rights and freedoms; (d) to receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate; (e) to protect the public against abuse of power and maladministration by State and public institutions and by officers of those institutions; (f) to investigate the conduct of any authority or person, where it is alleged that any of the human rights and freedoms set out in the Declaration of Rights has been violated by that authority or person; (g) to secure appropriate redress, including recommending the prosecution of offenders, where human rights or freedoms have been violated; (h) to direct the Commissioner-General of Police to investigate cases of suspected criminal violations of human rights or freedoms and to report to the Commission on the results of any such investigation; 15

16 (i) to recommend to Parliament effective measures to promote human rights and freedoms; (j) to conduct research into issues relating to human rights and freedoms and social justice; and (k) to visit and inspect (i) prisons, places of detention, refugee camps and related facilities; and (ii) places where mentally disordered or intellectually handicapped persons are detained; in order to ascertain the conditions under which persons are kept there, and to make recommendations regarding those conditions to the Minister responsible for administering the law relating to those places. (2) The Commissioner-General of Police must comply with any directive given to him or her by the Zimbabwe Human Rights Commission under subsection (1)(h). 244 Reports to and by Zimbabwe Human Rights Commission (1) The Zimbabwe Human Rights Commission may require any person, institution or agency, whether belonging to or employed by the State or otherwise (a) to inform the Commission of measures they have taken to give effect to the human rights and freedoms set out in the Declaration of Rights; and (b) to provide the Commission with information it needs to prepare any report required to be submitted to any regional or international body under any human rights convention, treaty or agreement to which Zimbabwe is a party. (2) In addition to the report it is required to submit in terms of section 323, the Zimbabwe Human Rights Commission may, through the appropriate Minister, submit reports to Parliament on particular matters relating to human rights and freedoms which, in the Commission s opinion, should be brought to the attention of Parliament. Appendix 2 NATIONAL PEACE AND RECONCILIATION COMMISSION 251 Establishment and composition of National Peace and Reconciliation Commission (1) For a period of ten years after the effective date, there is a commission to be known as the National Peace and Reconciliation Commission consisting of (a) a chairperson appointed by the President after consultation with the Judicial Service Commission and the Committee on Standing Rules and Orders; and (b) eight other members appointed by the President from a list of not fewer than twelve nominees submitted by the Committee on Standing Rules and Orders. 16

17 (2) The chairperson of the National Peace and Reconciliation Commission must be a person who has been qualified for at least seven years to practise as a legal practitioner in Zimbabwe. (3) If the appointment of a chairperson to the National Peace and Reconciliation Commission is not consistent with a recommendation of the Judicial Service Commission, the President must cause the Committee on Standing Rules and Orders to be informed as soon as practicable. (4) Members of the National Peace and Reconciliation Commission must be chosen for their integrity and their knowledge and understanding of, and experience in, mediation, conciliation, conflict prevention and management, post-conflict reconciliation or peace-building. 252 Functions of National Peace and Reconciliation Commission The National Peace and Reconciliation Commission has the following functions (a) to ensure post-conflict justice, healing and reconciliation; (b) to develop and implement programmes to promote national healing, unity and cohesion in Zimbabwe and the peaceful resolution of disputes; (c) to bring about national reconciliation by encouraging people to tell the truth about the past and facilitating the making of amends and the provision of justice; (d) to develop procedures and institutions at a national level to facilitate dialogue among political parties, communities, organisations and other groups, in order to prevent conflicts and disputes arising in the future; (e) to develop programmes to ensure that persons subjected to persecution, torture and other forms of abuse receive rehabilitative treatment and support; (f) to receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate; (g) to develop mechanisms for early detection of areas of potential conflicts and disputes, and to take appropriate preventive measures; (h) to do anything incidental to the prevention of conflict and the promotion of peace; (i) to conciliate and mediate disputes among communities, organisations, groups and individuals; and (j) to recommend legislation to ensure that assistance, including documentation, is rendered to persons affected by conflicts, pandemics or other circumstances. 253 Reports of National Peace and Reconciliation Commission In addition to the report it is required to submit in terms of section 323, the National Peace and Reconciliation Commission may, through the appropriate Minister, submit reports to Parliament on particular matters relating to national peace and reconciliation which, in the Commission s opinion, should be brought to the attention of Parliament. 17