The Development of a National Transitional Justice Strategy. A P Reeler, Senior Researcher (RAU), & Njonjo Mue (Advocate of the High Court of Kenya)

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1 The Development of a National Transitional Justice Strategy A P Reeler, Senior Researcher (RAU), & Njonjo Mue (Advocate of the High Court of Kenya) April

2 Background Any consideration of human rights observance in Zimbabwe must be undertaken against the background of the history of the past 40 years. Even a cursory examination of the history of this period will show extensive violations of human rights followed by formal impunity, and, furthermore, will show periods where extensive violations of human rights are indeed facilitated by impunity, both formal and practical 1. Statutes of impunity, such as the Indemnity and Compensation Act passed by the illegal regime of Ian Smith in 1975, were supplemented by a supporting array of draconian legislation, such as the Law and Order (Maintenance) Act, Emergency Powers, and the like. The use of Emergency Powers and the Law and Order (Maintenance) Act was continued by the Mugabe government, but extended considerably through the Presidential Powers (Temporary Measures) Act, as well as a plethora of other draconian laws, and always finally the use of formal impunity and pardons to cover human rights violations. Thus, there remains a consistent pattern in Zimbabwe: of periods in which gross human rights violations are permitted (and even encouraged), followed by the formal excusing of such violations by impunity. It is a pattern that has persisted to date and it is a pattern that guides all issues around political problem-solving 2. It begins in the militarisation of the state under Ian Smith, and continues into the current militarized polity of Zimbabwe today, where impunity is assumed and facilitated through inaction by the authorities. Thus, there is an imperative need for steps to be taken in order to break with this legacy of the past, insist on the rule of law, foster a climate of human rights observance, and find ways to address the ills and hurts of the past in ways that foster peace and reconciliation. A fundamental pre-requisite for any strategy to achieve these aims is that it will be citizen-based and victimsurvivor driven: unless a strategy is based in the consensus of the citizenry as a whole it will be unlikely to achieve these goals. It is also imperative to distinguish between a national peace and reconciliation strategy and transitional justice: the former can include transitional justice, but equally may exclude this. Here, we must note that there are two institutions that can deal with these processes, a Human Rights Commission [HRC] and a National Peace and Reconciliation Commission [NPRC], with different mandates and, neither will likely be dealing with the human rights violations of the extended past. The HRC has a mandate to deal only with violations since 2009, and the NPRC does not have a mandate to address past violations in a manner consonant with conventional transitional justice vehicles. Any strategy dealing with transitional justice will therefore have to negotiate between these two institutions, and may well fall between two stools for lack of any constitutional basis for transitional justice or any statutory body to effect this. Although this paper will lay out a suggested strategy, it may be that the current political context may mitigate against this, and, given that any process of transitional justice (and peace and reconciliation) is usually a one-shot 1 See Reeler,A.P (2000), Can you have a reparations policy without justice? LEGAL FORUM, 12, ; also Reeler, A.P (1998), Compensation for Gross Human Rights Violations: Torture and the War Victims Compensation Act, LEGAL FORUM, 10, Sachikonye. L (2011), When a State turns on its Citizens. Institutionalized Violence and Political Culture. JACANA PRESS. 2

3 effort for any country, perhaps this is a more time for extensive discussion and not precipitate action Analysis of key contextual factors This section will examine the key contextual factors that are likely to affect or limit a possible national peace and reconciliation policy that includes a transitional justice component. 1.1 Background: It is important to state at the outset that Zimbabwe is highly unusual amongst countries making the transition from autocracy or one-party state in that it has an exceedingly large body of knowledge about the violations that have taken place: there is very little that is not known about the violations, the victims, and the perpetrators 4, and there is a moderate (and burgeoning) literature on citizens views about transitional justice, and even on ways in which victims might be helped. For example, recent research on citizens perceptions about human rights violations and their redress have shown that Zimbabweans have strongly differing views about which period in our history should be the subject of transitional justice, as well widely differing views about what transitional justice means 5. Thus, it is important for government to be aware of the extent to which any strategy and subsequent policy will feed into enormous expectations and understandings amongst the citizens of Zimbabwe. It is also necessary to be aware of the extent to which Zimbabwe has become militarised since It is not merely that the formal security sector army, police, and the CIO have become wholly partisan institutions, but also the way in which every aspect of the state has been suborned to a narrow party interest. Local government, traditional leaders, and even schools have been incorporated in a complex system of repression that provides overlapping sources of local community control, allows the non-state groups of war veterans, youth militia, ZANU PF Youth, and ZANU PF supporters complete freedom to commit acts of violence and intimidation, and to do so with virtually complete impunity. This too is well-known amongst the citizens, has been extensively documented 6, and even the perpetrators are well-known to local communities. There are two issues here to be managed. The first is the management of possible attempts at revenge and retribution amongst citizens against their former assailants. This is probably not a strong eventuality, but those working amongst the victims have heard these sentiments expressed 3 A suggested approach to the problem is provided in a separate paper. See RAU (2014), Suggestions for setting up the National Peace and Reconciliation Commission (NPRC) Act. March HARARE: RESEARCH & ADVOCACY UNIT. 4 In 2005, for example, it was estimated that there had been 166 reports on human rights violations since 1960, with 136 of these coming from the period 2000 to The total could very well double if all reports from 2005 onwards were included. See here, Redress (2005), ZIMBABWE: THE FACE OF TORTURE AND ORGANISED VIOLENCE. Torture and Organised Violence in the run-up to the 31 March 2005 General Parliamentary Election, LONDON: REDRESS TRUST. 5 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. 6 See for example, The Anatomy of Terror. [Available at com/node/2334]. 3

4 too frequently to dismiss them outright. The second is the complex problem of restoring state institutions to a state where they operate according to their enabling legislation and the constitution in an impartial and citizen-serving capacity. As pointed out above, most of these institutions, such as the police, have had more than a decade of acting wholly in support of narrow political party interests, and hence the problem of restoring state institutions is considerably wider than the narrower (but very important) matter of Security Sector Reform. There is, in fact, the need for wholesale state reform if Zimbabwe is to transform into the kind of democracy that citizens desire Core grievances from past human rights violations Although the major concern is with violations that have taken place in Zimbabwe (since 1980, in other words), it seems evident that there are still grievances emanating from the pre- Independence era: this was well-covered in the recommendations of the 2003 Symposium (see Appendix 1). Thus, any strategy will have to consider four decades of violations in order that no section of Zimbabwe s population is alienated, and this has massive cost implications (see also Section 3.4 and the comments on the Kenyan process and the mandate of the commission there). Fortunately, a good deal of research has been done on all the four decades, and the grievances, or better the possible injuries (physical, psychological, and material) that have been described by Zimbabwean victims and survivors can be shortly described 8 : Extra-judicial killings and executions; Torture 9 ; Rape and sexual assault; Displacement; Property destruction and theft; Unlawful arrest and detention. Various bodies have attempted to quantify the damages that might be accorded for these various violations. The list below was developed by the Governing Council of the United Nations Compensation Commission. 10 Category A: A spouse, child or parent of the individual who suffered death; Category B: The individual suffered serious personal injury involving dismemberment, permanent or temporary significant disfigurement, or permanent 7 The demand for democracy by Zimbabweans has been extensively described by the Afrobarometer in all of the five rounds to date. For a summary, see RAU (2012), Bucking the Trend: Africa, Zimbabwe, Demand for Democracy, and Elections. May HARARE: RESEARCH & ADVOCACY UNIT. 8 A brief list of reports that describe the kinds of violations seen over the past four decades is given in Appendix 2. 9 This must be understood as both physical and psychological, and the most-persistent sequelae of torture are psychological in nature. 10 See United Nations (1994), Report of the Panel of Experts Appointed to Assist the United Nations Compensation Commission in Matters Concerning Compensation for Mental Pain and Anguish, Geneva: United Nations; See also United Nations Security Council (1992), Determination of Ceilings for Compensation for Mental Pain and Anguish, Decision taken by the Governing Council of the United Nations Compensation Commission, Fourth Session, Geneva, January

5 or temporary significant loss of use or limitation of use of a body organ, member, function or system; Category C: The individual suffered sexual assault or aggravated assault or torture; Category D: The individual witnessed the intentional infliction of events described in Categories A, B or C on his spouse, child or parent; Category E: The individual was taken hostage or illegally detained for more than 3 days, or for a shorter period, in circumstances indicating an imminent threat to his or her life; Category F: On account of a manifestly well-founded fear for one s life or of being taken or illegally detained, the individual was forced to hide for more than three days; Category G: The individual was deprived of all economic resources, such as to threaten seriously his or her survival and that of his or her spouse, children or parents, in cases where assistance from his or her Government or other sources has not been provided. As can be seen, the list developed by the UN Compensation Commission would cover all the grievances described by Zimbabwean victims and survivors, and would be seen in other conceptualisations such as that developed for the South African Truth and Reconciliation Commission [TRC]. It is also a list of categories that would apply across all four decades, and there even have been attempts to give monetary values to each category, but it is doubtful that these would be helpful for Zimbabwe, and could cause ridiculous expectations. 1.3 Public expectations around transitional justice There has been considerable discussion about transitional justice over the past decade or more, beginning with the release of the CCJP/LRF report on the Gukurahundi in 1997, so it can be assumed that the citizens of Zimbabwe have some reasonably formulated views on the issue. For the victims and survivors of the Liberation War, the Amani Trust carried out extensive work, and it is evident that, for both these periods (pre and post-independence), justice is complicated by the finding that very few victims and survivors have any clarity about the perpetrators in any strict legal sense: they may be able to loosely identify the organisation to which the perpetrators belonged, but very rarely could identify the actual person who committed the violation. This is also the case for the Gukurahundi period, although command responsibility for both periods is not so difficult, but this is very different to the period since 1998 where thousands of perpetrators can be identified. This can be a problem in dealing with all four decades since criminal justice can be easily sought for the current period, and this can lead to the public perception in some segments of the population of unevenness in dealing with human rights abuses. This unevenness is seen clearly in much of the research into citizens view of transitional justice in recent years. For example, an early pilot study of the views of 514 victims indicated the following: 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. 5

6 Firstly, a substantial percentage of the sample (42%) felt that amnesty should be given, with a higher percentage feeling that this should be given if it was necessary to produce a political settlement, but much of this effect was produced by those that only had primary school education. Secondly, and contradicting this first point, only small numbers [20%] felt that that serious crimes should be excused, and again this was an effect where those with primary school education were significantly more in favour of amnesty. Thirdly, although most were not in favour of a TRC as an alternative to prosecutions, most were in favour of a TRC if prosecutions were not possible, and most were not in favour of exemptions for truthful testimony, with an apparent trend towards punishing command responsibility. Fourthly, very few felt that there was need to investigate violations prior to 1980, and this was a general trend. The Ndebele and the Shona samples had strongly different preferences for the period that they saw as important, and this was probably not surprising. Fifthly, it was apparent that there many differences within the sample in terms of ethnicity Shona versus Ndebele and level of education. Whilst the ethnicity factor is important, it does not appear to indicate a potential for ethnic conflict; rather the differences are due to the effects of the violations experienced by the two groups. The Ndebele are rightly concerned about the 1980s where very little has been done to redress the wrongs committed during that period, whilst the Shona are clearly very preoccupied as are a substantial number of the Ndebele with the current violations. These differences are unlikely to lead to ethnic conflict so long as the two time periods are given equal attention in any transitional justice process in the future. The most comprehensive study to date was carried out by the Zimbabwe Human Rights NGO Forum 12, involving interviews of 3,189 individuals in a national sample 13. This study had some startling findings, briefly summarised: In terms of the period to be covered by a transitional justice process, 41% cent of the respondents said it should cover the period from 2000, while only 3% said the process should go back as far as before colonization. There were, however, stark differences among the ten provinces with respect to this question. These differences were especially notable between the Matabeleland and Mashonaland regions: respondents in the Matabeleland regions favoured looking back to the period just after independence, whereas those in the Mashonaland regions predominantly believed that the period of time from 2008 to the present should be covered. 49% felt that compensation should be given to all victims, but only 7% felt that prosecutions or truth-telling was necessary. Eighty-three per cent of the victims believed that victims of political violence should be rehabilitated through counselling, reparations, the prosecution of 12 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. 13 It is important to note that only 7% of this large sample stated that they were victims. 6

7 perpetrators, truth recovery and apologies from the perpetrators. In all regions, reparations came out at the top of the list as the most preferred option for the rehabilitation of victims. It is also important to be aware that there is a need for a gendered perspective in dealing with the gross human rights violations of the past. In a comprehensive survey of the views of women on violence and peace, RAU found the following 14 : 78% stated that a commission should be set up in Zimbabwe to determine how best to deal with wrongs of the past; 6% wanted a Truth Commission; 8% wanted a Truth and Reconciliation Commission; 60% wanted a Truth, Justice & Reconciliation Commission; 4% wanted only a Historical Commission; 4% wanted a Judicial Tribunal; 65% stated that it will be important for women to give their testimonies in special hearings in which they are separated from men, but only 46% thought that it will be important for women s stories to be heard by female commissioners only. Thus, it seems that there is dissent about the period that any transitional justice process should cover, and this requires careful thought in order not to alienate sections of the population. Justice seems more strongly demanded by victims as opposed to the general public. The first (2009) RAU study was largely rural (72%) and a large number (47%) were self-admitted victims of gross human rights violations, mostly from the period after However, it may be that the Human Rights Forum sample suffered from the same problems that many surveys experience, that respondents are unwilling to express some personal views due to mistrust, since only 7% stated that they had direct experience of political violence, but had very strong views about transitional justice. The survey of women, in which 52% reported being direct victims of political violence, seems to provide a view more consonant with the recommendations of the 2003 Symposium: 60% want a Truth, Justice and Reconciliation Commission. However, the Afrobarometer survey for 2012 did find the following 15 : An overwhelming majority of Zimbabweans (75%) are in favour of holding accountable those who are guilty of past political crimes compared to giving them amnesty (21%) More respondents from the urban areas (83%) are in support of holding perpetrators of political crimes accountable compared to those in the rural areas (70%) who share the same sentiments More ZANU-PF supporters (39%) are in favour of granting amnesty to political crime perpetrators compared to other political parties 14 RAU (2010), Preying on the Weaker Sex: Political Violence against Women in Zimbabwe. Report produced by IDASA (An African Democracy Institute), the International Center for Transitional Justice [ICTJ] and the Research and Advocacy Unit [RAU]. November HARARE: RESEARCH & ADVOCACY UNIT. 15 Results from the Afrobarometer Round 5 Survey in Zimbabwe. 27 November Afrobarometer 7

8 By a slight majority, Zimbabweans (52%) share the view that trying perpetrators of political crime in a Zimbabwean court of law would be the best option of holding them accountable for their crimes. In addition a majority (52%) were in favour of Zimbabwean courts of law being the choice for the vehicle for accountability, and significant number (47%) were against any form of amnesty, but nearly 30% felt amnesty could be granted for those who apologised (18%) or told the truth (11%). Overall, it cannot be claimed that there is any coherent view amongst Zimbabwean citizens about what form a transitional justice process should take, and many areas where significant segments of the population disagree on fundamental issues. This suggests that there is need for much wider public consultation about transitional justice before any comprehensive policy is put in place. 1.4 Provisions of the new constitution Many aspects around transitional justice are reflected in the constitution; some are helpful and others not. Section (10), on National unity, peace and stability, states broadly the requirement for the state, and all other bodies and person, to promote national unity, peace and stability. Section (11), the fostering of fundamental rights and freedoms, requires the state to take all practical measures to protect the fundamental rights and freedoms enshrined in Chapter 4 and to promote their full realisation and fulfilment. Section (53) specifies the right to be protected from torture or cruel, inhuman or degrading treatment or punishment, and Section (67) outlines the political rights to be enjoyed by Zimbabwean citizens. 16 It should also be pointed out that Section 251 does explicitly mention the function of ensure post-conflict justice, healing and reconciliation, which does seem to suggest the possibility that a transitional justice process could be included in the enabling legislation for the National Peace and Reconciliation Commission (NPRC). The constitutional basis for all Commissions, including the NPRC is mostly adequate, but it is well to remember that Presidential Powers have been greatly enhanced in the new constitution, and the new government has a two-thirds majority that can enable it to amend the constitution at will. However, the provisions dealing with the NPRC, whilst adequate, will need to be fully fleshed out with the enabling legislation, and this will require great care in order to not restrict the Commission too unduly, nor to create a mandate that is impossible to implement. The caveat about enabling legislation for Commissions is obvious and requires no further elaboration. 1.5 National capacity and resources It is obvious that the government has enormous problems to solve as a consequence of the decades of neglect, mismanagement, and corruption. Thus, there are going to be many more compelling demands for its skills and resources than transitional justice, and hence it will have to 16 The rights basis of the new constitution has been written about in highly approving terms, and will allow the new government considerable power to assert a new basis for democracy. For example, see Matyszak, D A (2013), THE DECLARATION OF RIGHTS AND ZIMBABWE S DRAFT CONSTITUTION. March HARARE: RESEARCH & ADVOCACY UNIT. 8

9 use as much of the existing resources as possible to address transitional justice, as well as try to avoid deploying too many new resources. Zimbabwe is, however, fortunate in comparison to many countries emerging from conflict in that it still has most state institutions intact, weakened but still functioning: this has been an undoubted benefit of the GPA and the Inclusive Government. It also has an enormously effective non-governmental sector, with many specialised skills, and with long experience in dealing with many of the problems associated with gross human rights violations. It also has a history of having had the most effective health service in Africa, as too one of the best education systems in Africa, and most state institutions have an institutional memory of service that could be re-deployed very effectively if properly resourced. It will be critical to not discard what worked so well in the past for new, untried solutions State capacities: The judicial system and the health services will be crucial institutions to an effective transitional justice process. In a first phase suggested for the NPRC 17, the health service will be a critical partner, both in assisting the NPRC in understanding the scale and nature of the problems, and then in building into its existing services the services needed by victims and survivors. The services that were being developed in the late 1990s, especially around mental health (and primary mental health), can be quickly revived, with training easily being provided to health workers (and especially nurses). The re-vitalising of the judicial services is already taking place under the Judicial Service Commission, and can be anticipated to accelerate with stronger government and donor support. It will be a crucial area of reform given the many allegations that the judiciary has been partisan in the past, and there is clear need to restore the confidence of the citizenry in the judiciary. For both, there are current capacity problems, but these will probably be short-term, although the judicial services may experience serious problems if many citizens elect to exercise their rights under the existing law and demand prosecutions and civil suits. The health service, on the other hand, has access to an enormous number of NGOs and other bodies that are already assisting it in service delivery (see section 1.5.2) Non-state capacities: There are a large number of NGOs dealing both with the legal and psycho-social aspects of transitional justice already operating in Zimbabwe, and these can make an enormous contribution to the process (see also Section 3.4 on the importance of NGOs). These range from specialised legal organisations such as ZLHR, ZWLA, and the Human Rights Forum to large numbers of concerned individuals, let alone the very prominent international organisations such as Amnesty International, Human Rights Watch, the International Center for Transitional Justice (ICTJ), the International Commission of Jurists, and many others. Then there are specialised rehabilitation services such as those offered by the Counselling Service Unit (CSU), the Solidarity Peace Trust, Zimbabwe Association of Doctors for Human Rights 17 See again RAU (2014), Suggestions for setting up the National Peace and Reconciliation Commission (NPRC) Act. March HARARE: RESEARCH & ADVOCACY UNIT. 9

10 (ZADHR), the Tree of Life Trust, the Musasa Project, Heal Zimbabwe Trust, and many others, with the support of important international bodies such as the International Rehabilitation Council for Torture Victims (IRCT), Physicians for Human Rights, and others. Furthermore, there are various church initiatives for healing, co-ordinated under the Church and Civil Society Forum (CCSF), and these will be crucial partners in healing. All of these groupings are highly active, mostly very experienced, and will add huge value to the process if carefully and transparently engaged. However, civil society does not seem much valued by this government (either now or in the recent past), accusing it of being involved in regime change, a charge that is both misleading and ignorant 18. So, this combative perspective needs to be replaced with an acceptance that civil society is a necessary part of the political and social life of Zimbabwe, and has a legitimate right to criticise government in equal proportion to government s expectation that such criticism is well-informed and in the national interest Local communities It is evident that local communities have been thrown back on their own resources increasingly during the past decade, and this has resulted in an enormous number of small, local initiatives that are assisting their communities in many different ways. Some of these initiatives are explicitly dealing with victims of gross human rights violations, and it has been the considered view both of the 2003 Symposium, and various expert meetings of NGOs dealing with such trauma, that the primary focus of any strategy to assist victims must be community-based: not only community-based, but, as far as possible, community owned 19. From all the above, it should be evident that Zimbabwe, unlike so many other countries, has deep knowledge of the problems, great resources, and wonderful commitment to bring to bear on the issue of transitional justice. 2. Summary of transitional justice strategies and mechanisms Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights violation. These measures include prosecuting those responsible for human rights abuses; establishing the truth about the nature of the violations, the perpetrators, and the victims; delivering reparations to victims; and implementing institutional reforms to change those institutions which aggravated or caused the conflict and creating new ones to promote human rights. 18 Reeler, A P (2013), Do Donors and NGOs undermine the State? March [ 19 Parsons, R., Reeler, A., Fisher, J., & Mpande, E (2011), Trauma and Mental Health in Zimbabwe, November 2011, HARARE: RESEARCH & ADVOCACY UNIT. 10

11 2.1 Prosecutions In the wake of widespread violations of human rights and societal breakdown, the temptation to forgive and forget or wipe the slate clean, can be overwhelming. During times of transition, there are sometimes calls for blanket amnesty for perpetrators of violence and other forms of human rights violations. Those who call for amnesty claim that trials would be unduly disruptive to a fragile peace. They also point to competing priorities and the need to forget the past and forge ahead with the task of nation-building. Sometimes there are practical difficulties to bringing perpetrators to justice because in the wake of civil war or conflict, the justice system is weak or non-existent, or as in post-genocide Rwanda, the sheer number of perpetrators and victims are simply overwhelming. But bringing perpetrators of human rights violations to account is central to re-affirming the rule of law, repairing the victims, and deterring future abuses. Indeed holding perpetrators to account is seen as an essential plank in laying the foundation for a new society where citizens rights are respected. Prosecutions of perpetrators of serious human rights violations have taken place in national courts (Rwanda, Colombia) or international courts (e.g. Rwanda, Yugoslavia), or in mixed tribunals comprising both national and international judges and personnel (e.g. Sierra Leone, Kosovo, Cambodia). In 1998, the International Criminal Court was established to complement national jurisdictions where state parties were unable or unwilling to prosecute international crimes taking place on their territory or involving their nationals. Since its coming into force in 2002, the ICC has indicted suspects from Uganda, DRC, Central African Republic, Sudan and Kenya. It is also investigating cases from Libya, Cote D Ivoire and Mali. However, it is also worth pointing out that truth commissions and tribunals may not be the best mechanism always for ensuring peace and moving a country towards democracy. As Mamdani has pointed out recently, the TRC in South Africa may have been far less potent force for moving the country out of apartheid than the previous CODESA processes, and it is worth remembering that transitions can have short and long-term goals, and that peace does not necessarily exclude justice in the end Truth seeking Truth commissions have become a common mechanism that has been deployed to help societies confronting a legacy of massive human rights violations. Truth commissions are defined as official, temporary, non-judicial, fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law, usually committed over a period of time. They attempt to fulfil victims right to truth and develop as complete a record of the past as possible. They carry out investigations and research, conduct hearings, and prepare a final report containing findings and recommendations. A TRC is usually created by the state either by presidential decree or by an Act of Parliament, though there have been a number of notable non-official truth commissions. Although sharing the common objective of investigating serious crimes committed during conflict or repression and to make findings and produce recommendations for dealing with the consequences of the 20 Mamdani. M (2013, The Logic of Nuremburg. London Review of Books. Vol. 35, No [ 11

12 violations, the specific mandates of TRCs are very diverse. In South Africa, the TRC had the power to investigate crimes committed during apartheid, including the use of subpoena and seizure powers, to have public hearings, and to recommend the granting of an amnesty for perpetrators who made a full disclosure of their crimes. However, the Argentinean National Commission on the Disappeared (CONADEP) was mandated only to investigate the disappearances that took place in the country between 1976 and 1983, without subpoena or seizure powers. The Kenyan Truth Commission did have the power of subpoena and to grant limited conditional amnesty, but there is little evidence of it having used these powers in the course of carrying out its mandate. 2.3 Reparations International law obligates states to acknowledge and address widespread or systematic human rights violations where these violations are caused by the state or where the state failed to prevent them. Reparations can take several forms. The UN Basic Principles on the Right to a Remedy and Reparations call for adequate, effective and prompt reparation intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. The Principles identify five forms of reparations namely restitution, compensation, rehabilitation, satisfaction, guarantees of non-repetition. Reparations can be individual or collective, material or symbolic. They may also involve official apologies for the violations. Examples of reparations programs include that of Chile where the government paid more than $1.6 billion in pensions to victims of the Pinochet regime, and established healthcare programs for survivors of the violations. The government of Morocco has implemented both individual and collective reparations as well as projects aimed at benefiting previously marginalized communities. In Sierra Leone, the President formally apologized to women victims of his country s civil war as part of a reparation package that includes modest compensation and rehabilitation to victims of the war. In South Africa, the TRC recommended urgent interim reparations in appropriate cases and further reparations to victims in its final report. However, the government did not implement this latter recommendation but instead made a one-off payment of ZAR 30,000 each to the victims identified by the TRC. 2.4 Institutional reforms During a period of conflict or repression, public institutions are often captured by the warring parties or the ruling elite and used to violate human rights. This is especially so with the security sector and the judiciary. Institutional reform is therefore a vital component of transition to democratic rule. These institutions need to be reformed so that they can respect human rights and uphold the rule of law and they can be accountable to the people. Institutional reforms usually provide accountability for individual perpetrators and also disable the structures that have previously enabled abuses to occur. Some of the types of institutional reforms that have been employed in transitional contexts include vetting of personnel to remove corrupt or unsuitable officials; restructuring institutions to infuse accountability, integrity, legitimacy, independence, and ensure fair representation; 12

13 creating civilian oversight mechanisms over the police; transforming legal frameworks such as adopting a new constitution; and disarmament demobilization and reintegration. Examples of institutional reforms include adoption of a new constitution in Kenya in 2010 which provided a framework for a broad range of institutional reforms, including the vetting of judges and magistrates to determine their suitability to continue serving in the new dispensation; the vetting of the police in Bosnia-Herzegovina following that country s civil war; the purging or lustration of supporters of the Baath party from government positions following the fall of Saddam Hussein in Iraq. 2.5 Traditional mechanisms Some societies emerging out of conflict have used traditional mechanisms to address legacies of massive human rights violations to complement formal processes. Examples include the Gacaca courts in Rwanda, a traditional community conflict resolution system employed to investigate and resolve cases of individual implicated in the genocide of In Northern Uganda, the Acholi people have used a system known as mato oput which includes clan and family-centred reconciliation involving the acknowledgment of wrongdoing, the offering of compensation by the offender and the sharing of symbolic drink. Sierra Leone has used a program known as Fambul Tok (Family Talk) to promote reconciliation by bringing together victims and perpetrators to speak about their experiences of the civil war. It draws on the age old traditions of confession, apology and forgiveness. In East Timor, the Truth Commission used traditional forms of conflict resolution on a local level to integrate perpetrators back into their communities. 2.6 Amnesty Some societies emerging out of conflict or repression have chosen to offer amnesty to perpetrators as a way to facilitate political transition and promote reconciliation. Such amnesty may be conditional or unconditional. In Latin America, departing dictators in Chile and Argentina awarded themselves, and their supporters, unconditional amnesty for atrocities committed in the 1970s as a condition for transferring power to civilian governments. However, these amnesties were later overturned. In Sierra Leone, the Lome Peace Agreement of 1999 provided a blanket amnesty for perpetrators and instead called for the establishment of a truth commission. However, the Peace Agreement soon collapsed, and fighting resumed leading to the establishment of the Special Court for Sierra Leone to prosecute those most responsible for serious human rights violations. South Africa is an example of a country that offered conditional amnesty. The law empowered the truth commission to grant amnesty under the condition that the crimes were politically motivated and the person applying for amnesty told the whole truth regarding the violation and their role in it. 3. Lessons learned from regional and global examples Additional detail on the lessons from the three cases studies described below is given in Appendix 3. 13

14 3.1 Lessons from South Africa The South African Commission had some similarities with similar truth commissions before it, but it had various unique features. It had the power to grant conditional amnesty. This should be understood in the unique context of the South African transition and not blindly borrowed and applied to a different context. It was the price that South Africans had to pay to allow political transition where the apartheid generals were still holding all the guns, so to speak 21. Likewise in Sierra Leone, where the Lome Peace Agreement contained amnesty provisions, the government was negotiating the peace from a place of relative weakness. Zimbabwe should weigh its options carefully when it comes to the possibility of amnesty. It should avoid the mistake made by the Kenyan parliament, which provided for amnesty in the TJRC law without much justification for it and ended up drafting the provision in such confusing language that, in the end, the truth commission chose to forego exercising the powers to recommend amnesty. South Africa has important lessons for the establishment of a credible truth commission. Firstly, the persons chosen to manage the TRC often determine the success or failure of the commission. In South Africa, the participatory process of appointment of commissioners, which involved widespread consultation and public participation, lent credibility to the persons eventually appointed to the commission. Representation of the various political views, races and gender also strengthened the commission. The commission was also well resourced to carry out its functions at an annual budget of about $9 million, which exceeded that of other truth commissions. It held public hearings that were well covered by the media, thereby enabling South Africans to start to understand the full scale of the horrors of apartheid and also to give the victims, who had been silenced by the system for so long, their voice and dignity back. But the TRC has been criticized on a number of scores. Firstly, the commission was criticized for having a narrow interpretation of its mandate by focusing only on gross human rights violations caused by individual violence in the course of political conflict, but excluding the everyday administrative horrors of apartheid which the UN had declared a crime against humanity as long back as According to Mamdani, The TRC model obscured the colonial nature of the South African context: the link between conquest and possession, between racialized power and racialized privilege. In a word, it obscured the link between perpetrator and beneficiary. Secondly, except those who applied for amnesty, perpetrators largely stayed away from the process which ended up appearing victim-dominated. The objective of bringing victims and perpetrators face to face to facilitate confession and forgiveness was therefore unmet. Although the TRC recommended and facilitated urgent interim reparations, the process has been criticized for not yielding much substantive reparations for the victims because the government failed to implement the commission s recommendations save for the ZAR 30,000 pay off. The corporate tax proposed to fund reparations was not even considered. This meant that while beneficiaries of apartheid continued to enjoy their privileges, most of the victims continue to wallow in poverty. 21 See again Mamdani, The Logic of Nuremburg [op cit]. 14

15 3.2 Lessons from Sierra Leone Timing, sequencing, and linkages. The collapse of the 1999 Lomé Peace Agreement led to renewed fighting, prompting Sierra Leone s President, Ahmad Tejan Kabbah, to request the UN for help in setting up a special court to try the atrocities committed in Sierra Leone. The Special Court for Sierra Leone (SCSL) was established by agreement between the United Nations and the Government of Sierra Leone on 16 January Its mandate was to prosecute persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone from 30 November Sierra Leone therefore ended up having two principal transitional justice mechanisms working simultaneously to address the aftermath of the conflict. This presented a number of challenges as there was competition for resources and attention between the two bodies. In addition, in a country with an illiteracy rate of 80%, there were difficulties communicating to the citizens the difference between the two institutions. The Court and the Commission failed to clearly distinguish their roles through an MoU, leading to a clash over jurisdiction which was most clearly demonstrated in the case of the former leader of the Civil Defence Forces, Chief Hinga Norman, whom the TRC sought to question while he was at the same time indicted and facing trial at the SCSL. The existence of the court also had a chilling effect on the participation of perpetrators in the TRC as they feared that their testimony at the commission might be used against them by the court. There are key lessons on timing, sequencing, and linkages between the various elements of a transitional justice strategy from the Sierra Leone experience. The unique circumstances of Sierra Leone gave rise to the simultaneous deployment of prosecutions and truth-seeking, but, as demonstrated by this experience, this is by no means an ideal situation. Policy makers in transitional contexts should carefully consider the question of timing and sequencing. Careful timing of transitional justice measures is needed in fragile postconflict situations to make sure that transitional justice will contribute to the future of the country. A delicate way of handling the situation is necessary to make sure that transitional justice does not cripple or damage a fragile situation. Sequencing is equally important; in some situations it might be important to start the transitional period with criminal trials, in other situations it might be important to first focus on stabilization and order, for example by security sector reform, or to stabilize and reconcile society through a truth and reconciliation commission. If for any reason it is found necessary to have prosecutions and truth-seeking operating simultaneously as in Sierra Leone, it is critical to carefully think out the relationship between the two mechanisms beforehand, including the drawing up of a clear MoU to guide this relationship. It is also important to conduct effective outreach and education to clarify to the community the respective roles of the two institutions. Finally, the two mechanisms should exercise mutual respect and regard themselves as of equal importance to the entire accountability process, without one considering itself as better than the other. 15

16 Another lesson from Sierra Leone on sequencing had to do with reparations. While neither the TRC nor the SCSL had any power to award compensation to victims, many perpetrators benefited from demobilization grants leading to widespread resentment among the victims who were left to suffer from the violations while the perpetrators were seemingly benefiting from their crimes 22. To many, this situation was morally reprehensible and should be avoided by future transitional justice processes Resource implications The SLTRC was plagued by serious management and staff recruitment problems in its preparatory phase. A review by UNDP in July 2002 found that roughly one-third of the commission s personnel were unqualified or redundant, and that the hiring process was seen as politically driven. At one point, the Commission was forced to operate with a two-person staff when the contracts of the interim secretariat expired. The staffing crisis damaged the commission s credibility with donors, who were unwilling to contribute to a dysfunctional institution. Out of an initial budget of $10 million for 12 months operation, excluding the start-up phase forecast by OHCHR, the budget was slashed to $5 million. Several factors accounted for the underfunding of the SLTRC, including poor fundraising efforts by the OCHRC and the Commission itself, donor fatigue, competition for funds with the SCSL, and the Commission s unimpressive start. The government of Sierra Leone, which should have been at the forefront of providing financial support, only contributed $97,000 and a building for the Secretariat. The scarce funding negatively impacted the work of the Commission forcing it to spend only one week in each province for public hearings. Both Sierra Leoneans and the commissioners were frustrated by the limited time available for hearings, and reconciliation efforts had to be left to others as the commission had neither the time nor the resources to conduct them. The SCSL also struggled with inadequate funding. For both institutions, the key lesson is that adequate and available funding is crucial for the successful operation of such complex mechanisms of transitional justice. The government should lead by example in providing the necessary resources while at the same time reaching out to donors to do their part. However, care should be taken not to leave the mechanisms at the mercy of voluntary donations, as was the case in Sierra Leone, as this has implications on their independence as well as institutional security and sustainability. 3.3 Lessons from Kenya The lack of a clear transitional moment was an important feature in the Kenyan experience. Although Kenya adopted a new constitution in 2010, there was no significant change in the political elite which continued to wield power. This is the same elite which has presided over massive human rights violations and historical injustices. They are not keen to have a debate over those dark periods of our history. They have therefore shown little enthusiasm for transitional justice processes and the TJRC in particular. 22 This may have relevance to Zimbabwe with the clauses in the Constitution dealing with the special position of war veterans, who are mostly vilified by the populace because of their role in the violations since

17 Like the Sierra Leone TRC, the Kenyan TJRC undertook its mandate while prosecutions were underway, except, in the case of Kenya, the prosecution was taking place at the International Criminal Court. Although there was no obvious conflict between the two mechanisms, the TJRC s reputation suffered significantly when the government at one point attempted to expand its mandate to cover the cases facing suspects at the ICC. Although the commission later clarified that it had not mandate to prosecute, the government s attempt to give it this mandate was seen as an effort to shield perpetrators of post-election violence by attempting to give them soft justice through the TJRC. To many observers, this was proof that the TJRC was merely meant to whitewash the crimes of the past and other historical injustices. Kenya illustrates the important Need for enabling legislation. The Kenyan TJR Act was drafted in an opaque manner without the participation of civil society or known experts in transitional justice. It ended up being an unsatisfactory imitation of the South African Promotion of National Unity Act which was to be applied to a wholly different context. The language was confusing, and, in the case of the amnesty provisions, it was difficult to implement. In addition, the subject matter and temporal mandate of the TJRC was far too broad to allow for meaningful truth-seeking. The appointment process of the commissioners was shrouded in secrecy and did not allow for proper vetting of the candidates. This led to the appointment of a chairperson with a questionable past and tainted the credibility of the Commission throughout its tenure. The relationship with CSOs was very poor. Due to the controversy surrounding the chair, most of the civil society organizations working on human rights boycotted the commission robbing it of critical support, expertise, and public ownership. So too was the relationship with government unsatisfactory. The government remained aloof while controversy raged over the tenure of the Chair, and remained disengaged as the country watched the truth commission increasingly become a shadow of what had been expected. And yet, when the commission needed an extension which it sought three times without clear justification, the Minister of Justice was always quick to give in to their demands and present the case for extension to Parliament. This gave rise to suspicion that, although the government was not overtly interfering with the work of the commission, it had an unhealthy relationship with some commissioners behind the scenes which did not inspire public trust. This suspicion was eventually vindicated when some officials in the office of the President insisted on some changes to parts of the final report which they did not agree with. The Kenyan TJRC also struggled with inadequate funding at the outset, though it ended up spending Kshs 1.2 billion (about $15 million). To its credit, the Kenyan government funded the truth commission to the tune of 90% of its total expenditure. On the positive side, the TJRC law provided for a special unit to support women, children and people with disabilities to participate in the process. It also had gender equity both at the commission and at staff levels. The commission made elaborate recommendations on reparations, but whether they shall be implemented is anyone s guess at this point. 17

18 After obtaining three extensions, the commission finally presented its report to President Uhuru Kenyatta on 21 May 2013 after a further three week delay. The report should have been tabled in Parliament within 21 days of that date which would mark the start of the debate leading up to the implementation of the recommendations. To date, the report still has not yet been tabled. This delay signals a lack of political will to implement its recommendations. The future looks bleak for victims in particular and for Kenyan society in general, who had placed a lot of hope in the process as a way to help the country to make a fresh start. These three case studies provide useful examples of ways in which African countries have approached transitional justice, and allow some recommendations to be made for how Zimbabwe might develop a Peace and Reconciliation Strategy. 3.4 Lessons and recommendations for Zimbabwe There is no room for a one size fits all approach to transitional justice. Context is the key to assessing which mechanisms should be employed in any given situation. Care should be taken not to think that, since a particular mechanism worked particularly well in one situation, it will work equally well in another. The context in Sierra Leone necessitated two key mechanisms to operate simultaneously, but a similar set of facts is not applicable to Zimbabwe. Amnesty was applicable in South Africa because of the exigencies of the negotiated settlement. It should not be blindly adapted to the Zimbabwe situation in the same way Kenya tried to adopt it, unless Zimbabwe has its own specific historical need that calls for amnesty. Even then, it should be remembered that international law no longer allows amnesty for international crimes and other serious violations of human rights. Timing, sequencing, and linkages between various transitional justice mechanisms are key if more than one mechanism is deployed. In both Sierra Leone and Kenya, prosecutions which got underway at the same time as the truth commission threatened to derail the truth commission. It is important to think through carefully which mechanism should come first and which should follow to guarantee accountability without threatening the stability of the country. However, at the same time, the threat of instability should not be used to allow impunity and deny victims justice. If a truth commission is to be set up, the process must be participatory from the outset to the finish line. Civil society and other experts must be involved in negotiating and drafting a TRC law, in identification and vetting of candidates for commission, and in the selection committee that eventually forward the list of finalists to the President for appointment. This way, there is ownership of the process right from the start and the possibility of appointing commissioners of questionable integrity such as the Chair of the Kenyan TJRC are minimized. The commissioners eventually chosen must be credible, competent, and acceptable to most political opinion in Zimbabwe so as not to attract suspicion of bias, otherwise they will be hampered in their major task of leading the process of healing and reconciliation. Where the gulf between the political divides is too wide, it is sometimes bridged by including international commissioners such as in the Sierra Leonean and the Kenyan truth commissions. In the case of Zimbabwe, where ZANU-PF has made a career out of vilifying western nations, it is not clear 18

19 whether experts from Europe or the USA would be acceptable. This may well mean that international commissioners may have to be recruited from Africa and Asia. The mandate of the commission must be comprehensive in terms of covering the critical events and historical periods of human rights violations, without overloading the commission with such a broad mandate that it has no reasonable chance of looking at it in any meaningful depth during its limited lifetime. The lesson should be learned from the Kenyan commission which had a long temporal mandate ( ), and a huge subject matter mandate including gross human rights violations, economic crimes, grand corruption, land misappropriation, and marginalization of communities. Commissioners and staff, as well as observers, concede that this mandate was overwhelming. There is need to manage expectations of victims and the society at large from the outset. Even the best performing transitional justice mechanisms are in the end simply part of what must be a wider process of nation-building following conflict or long periods of repression. This includes building institutions, economic recovery, reviving infrastructure, as well as tackling long-standing problems of bad governance, corruption, intolerance, mass unemployment, and poverty. Engagement with civil society end after the appointment of commissioners is important. On the contrary, a TRC must cultivate a healthy relationship with civil society throughout its life. For as Audrey Chapman points out, truth commissions should not attempt to carry out their work in splendid isolation, but should have a fairly robust relationship with civil society in order to produce a sense of public ownership of the process so that the national dialogue actually leads to something more than a nice history lesson. If a TRC is appointed, the government should show its full commitment to the TRC without compromising its independence. It should provide sufficient funds as well as facilitate fund raising efforts from donors. The President should lead the reconciliation efforts from the front by submitting himself and his party to the commission s process. This has huge symbolic value and helps the commission to galvanize the attention of the country. The Sierra Leonean President availed himself of the opportunity to appear before the TRC and was the last to testify at a public hearing. In Kenya, on the contrary, the political leadership largely ignored the TJRC. It should also commit to implementing the recommendations of the commission, especially those to do with reparations, in order to avoid the pitfalls other commissions have fallen through when they have ended up being academic exercise, because, in the end, the victims lot did not improve while the beneficiaries of historical injustices were allowed to keep their privileges. 4. Options for a National Peace and Reconciliation Strategy in Zimbabwe 23 As was indicated at the outset of this analysis, it will be crucial that a Transitional Justice Strategy, and/or a National Peace and Reconciliation Strategy, are both truly national in character, and hence include a consideration of all human rights violations in the country s history. Thus, it 23 This section draws extensively on an earlier paper. See Reeler, A. P (2013), Gross human rights in Rhodesia and Zimbabwe, and the prospects for Transitional Justice. 5th May HARARE: RESEARCH & ADVOCACY UNIT. 19

20 must, as was insisted in the recommendations of the 2003 Symposium (see again Appendix 1), deal with the colonial and the pre-independence periods: not to do so runs the risk of both alienating significant portions of the population, and will also not correct the partisan interpretations of our history that have abounded, particularly in the past decade. It is also important to remember the clauses in the Constitution dealing with war veterans and the Liberation War (Section 23), and to bear in mind that the unresolved issues with the war veterans (and imperialism ) have allowed the partisan positions adopted by ZANU PF in the past decade 24. Thus, a broad view of history is necessary and will follow the international best practice that is stressed by the so-called Joinet Principles 25, which were endorsed by the 2003 Symposium, and were also the subject of serious discussion by Zimbabwean scholars and human rights activists at various recent conferences 26. Clearly Zimbabwe is a unique problem, and will require a unique solution, but this does not mean that the solution cannot draw on lessons learned elsewhere (as summarised above, with additional detail in Appendix 3), and certainly Zimbabweans have been exposed to virtually all the attempts at transitional justice developed around the world. It seems, however, that, in all these attempts to redress the ills of the past and chart a new future, the principles developed in 1997 by the United Nations lie at the deep structure of all these attempts. These apparently simplistic principles provide a framework for understanding the scope of any transitional justice process, and they provide victims in particular with a framework for deciding how they, who are so infrequently consulted about transitional justice, might construct a justice process that will suit their needs. The principles are simple at face value: The victims' right to know; The victims' right to justice; The victims' right to reparations as restitution, compensation, and rehabilitation; The right to non-recurrence. However, this is not a shopping list of possible actions, but an integrated set of actions, each reliant upon the other, and removal of any one can make the system defective. They need not all be applied simultaneously, but could be phased depending on the political reality at the outset of transition. However, that ALL these rights should be effected over time is crucial to the challenge to impunity and the restoration or creation of democracy. 24 Phimister, I., & Raftopoulos, B (2004), Mugabe, Mbeki and the Politics of Anti-Imperialism. Review of African Political Economy. 101, 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 For example, Foundation for Human Rights, Dealing with the Past, A Round Table Discussion, on applying to Zimbabwe, UN Resolution 18/7, passed in the Human Rights Commission, on 29 September 2011 on the Promotion of Truth, Justice, Reparations and the Guarantee of Non-Recurrence. SunnySide Hotel, Johannesburg, 7 th & 8 th May,

21 Take the right to know, which is not simply the right of any individual victim or closely-related persons to know what happened, but it is also a collective right, ensuring that history accurately records the violations to prevent them from recurring in the future. Its corollary is a duty to remember, which the State must assume in order to guard against the perversions of revisionism: the knowledge of the oppression it has lived through is part of a people's national heritage and as such must be preserved. It is critical to the success of the other elements that history is known accurately and dispassionately. The right to justice will be contingent upon an accurate understanding of the violations that have taken place, and this implies that the right to know is critical in the beginning. Similarly, the right to justice and the right to reparation are contingent upon each other. Recent Zimbabwean studies of citizen s attitudes to transitional justice have indicated the very large number that saw compensation as the most critical component of transitional justice, and here we have two legal systems opposed in the formulation of transitional justice. In Zimbabwe, traditional justice relies upon admission of guilt (or judgement of the same) followed by compensation, whereas the statutory law sees punishment as the formal consequence of guilt. Of course, victims may still seek civil remedies in the Western legal system in Zimbabwe, but this is a private (and expensive) matter. And guarantees of non-recurrence? What will this mean in Zimbabwe where so many state officials and state agencies have been involved in the gross human rights violations? The army, the police, the CIO, traditional leaders, local government officials all have derived their power from the institutions that employ them, never mind the myriad non-state agencies of so-called war veterans, youth militia, and political party members. Zimbabwe will have to undergo not merely security sector reform, but the reformation of the entire state, and this is not a trivial exercise. Above all, there must be apprehension over the extent to which the victims themselves will be consulted about what they want. Zimbabwe is perhaps remarkable in that it has had discussions about transitional justice for more than a decade, and during on-going conflict, but, whilst there have been surveys and polls, these cannot count as large scale engagement with the victims and their communities. Of course, this has not been possible in the context of on-going conflict, but Zimbabwe, since 1980, still does not have a healthy record for genuine consultation and direct democracy processes. So, the calls by so many civil society organisations for a transitional justice process must be tempered with caution: a transitional justice process that brings healing and a deeply democratic society will need the whole scale involvement of the citizenry, and this will take time. In a country with such an unhappy history as Zimbabwe, haste may create more problems than it solves, which should the lesson that we should take from all the developments since Actually the MDC formulation in the Rights and Interests Cluster, and re-iterated in its Election Manifesto did provide a framework for a strategy 27. However, it may not be prudent to set in place all the suggested sub-committees under the National Peace and Reconciliation Commission 27 Although the MDC-T formulations were clearly meant as part of their election campaign and were probably to be implemented should they have won the 2013 election, these formulations are useful and informed, and nonetheless could be extensively used in a national policy on justice, healing, and reconciliation as suggested by Section 251 of the Constitution. 21

22 at the outset, but to adopt a phased process given that the term for the Commission is expansive ten years. Thus, the first steps for the government need to be measured and tempered by all the above considerations. What follows are some suggestions for how this might take place 28. Firstly, it will be crucial that any initial statement about transitional justice stresses the NATIONAL character of the developing transitional justice process; i.e. it refers to the entire history as suggested by the recommendations of the 2003 Symposium. This is strongly consonant with international law: that there can never be impunity for gross human rights violations, as the Joinet Principles state. This would state the INCLUSIVE nature of the process, and recapture some of the 1980 feeling of Mugabe s initial speech, stressing reconciliation, but not ignoring accountability. Here, calls for peace, tolerance, and not to resort to private retaliation in return for past wrongs will be important too. It is a call to trust the government to responsibly address and redress ALL the wrongs of the past. Secondly, it will be crucial to stress an end to impunity, and here to emphasise the commitment to strengthening the Human Rights Commission (HRC,) and its mandate to deal with all ongoing human rights violations. Here, one of the key roles for the HRC will be to ensure that state institutions operate according to the Constitution and the various legislation that govern the operations of these institutions (see Section 1.2). This will need to be complemented by formal engagement with ALL of these state institutions (see below). Thirdly, it will be important to formally state strong support for the National Peace and Reconciliation Commission (NPRC), and to outline its immediate programme of work, but to state this in very broad terms consonant with the first point about the NATIONAL character of the process 29. It is suggested that the NPRC deals initially with two activities that are overlapping, and based on the view that NO transitional justice process can take place without very broad consultation with Zimbabwean citizens. Thus, two processes are suggested: A national story-telling exercise: This is in line with the idea of a Truth Committee, and the right to know suggested by Joinet. This process should require the taking of testimonies stories about the violations experienced by ALL Zimbabweans from any previous period of violations. The process should be primarily community and group-based giving of testimonies, but also with the provision for individual testimony 30. Stories should be recorded as far as possible, with the permission of those testifying, and a central archive for capturing and retaining the testimonies should be established. 28 These suggestions are expanded in a the companion paper. See again RAU (2014), Suggestions for setting up the National Peace and Reconciliation Commission (NPRC) Act. March HARARE: RESEARCH & ADVOCACY UNIT. 29 A more detailed description of a suggested policy around the NPRC is given in Appendix There is much evidence from Zimbabwe that group based story-telling based in local communities not only is culturally more acceptable, but also has a strong contribution to local peace and reconciliation. See, for example, AFSC (2011), Working Towards Healing at Community Level in Zimbabwe. 27 th to 29 th July Conference held at Mandel Training Centre, Harare. 22

23 This is potentially a difficult exercise if the political situation remains very volatile, but, using participatory methodologies, where communities qua communities are the vector of contact, this may operate successfully. By aiming for group-based discussions in the first instance, and the inclusiveness of stories from all periods of violation, the collection of stories should be less problematic, although the level of detail will probably not come close to the standards of legal affidavits. However, this is not a critical failing since one of the major aims behind story-telling is to foster the right to know, and this should not be tied too closely to the right to justice. Behind all of this exercise is the intention of a Truth Committee to establish what citizens understand transitional justice to be, and what they want it to be, given the diversity of views (see Section 1.4). A national healing exercise: This is a preliminary exercise for a Compensation and Healing Committee, and is entirely necessary if compensation is not to become a source of massive conflict and/or disappointment. 31 The size of the population that may need medical and psychological treatment over the past four decades is not likely to be small, and hence it will be extremely important to ascertain by epidemiological and clinical studies the extent and nature of the problems. This is an exercise that NPRC should conduct in collaboration with the Ministry of Health and Child Welfare in order that the findings might quickly translate into health policy and practice: given the probable large scale of the problem, it will be economic not to set up separate facilities for this class of patients, but rather to ensure that their needs are met within the existing health care system. Both of these processes will require a minimum of two years for completion, although the second the national healing process could take much less, and furthermore, some of the needed healing can be immediately facilitated through the many NGO and community initiatives already operating 32. The NPRC should produce a preliminary report on the national consultation after one year, and should hold a national consultation on its findings: this should guide the next process, and will allow preliminary discussion about other aspects of the transitional justice process. Fourthly, there will need to be engagement with a wide range of state institutions in order to stress the obligations imposed by the Constitution and the various pieces of legislation governing their activities. For example, the police must be publicly engaged on their legal obligations under the Police Act (and the Constitution) to be apolitical in every way as demanded by the Schedule to the Police Act, and this must be made evident to all citizens that this will be enforced in order to restore public confidence in the police. The same will apply to the army, traditional leaders, 31 Here it is important to remember the problems over the War Victims Compensation Act in the late 1990s, as well as the probability that compensation will be very economically problematic. Here, for an exhaustive examination of the problems with the War Victims Compensation Act, see Reeler, A.P (1998), Compensation for Gross Human Rights Violations: Torture and the War Victims Compensation Act, LEGAL FORUM, 10, See Parsons, R., et al (2011),Trauma and Mental Health in Zimbabwe, [op cit]. 23

24 local government officials, etc. This engagement will be utterly necessary if the citizenry are to have any confidence in a story-telling process as outlined above: there has been too much legitimate fear about giving public information on gross human rights violations 33. Unless such reform of state institutions operates in parallel with the story-telling and healing exercises, these latter will be abortive, and the restoration of state institutions in many ways is a pre-requisite for any peace and reconciliation or transitional justice processes. As Mamdani has commented about South Africa, the political will to undertake reform of the apartheid state, exemplified by CODESA, was certainly one reason why the TRC was successful 34. These steps will give the government adequate information in a reasonable space of time to assess the other steps that need to be taken in applying the Joinet Principles, and especially determine the public mood for justice and reparations. It will also be clear to the citizens that they are involved and allow informed discussion about the options. The implementation of a healing process will also be important in reducing feelings of vengeance and retribution, as well as reducing much of the polarised ill-feeling within communities. There will be resource and finance implications for all of these actions, but these need not be excessive, especially if the many resources currently held within the NGO and civil society community are integrally involved. The churches can be a strong partner here, and it is evident that they have enormous credibility within the citizenry. Additionally, it is probable that significant donor funding can be attracted, particularly if all these initiatives are seen to be statebuilding. For example, the national healing exercise will not only help to understand the scale of the need but can also help to define the policy of the Ministry of Health towards trauma victims, consolidate its mental health and rehabilitation policies, and determine the ways in which NGOs and civil society organisations can be integrated into a national plan 35. One major problem that will remain for the future will be the demand for amnesty by many senior officials, and will undoubtedly always be a major point of negotiation with the security sector. As pointed out in Section 2.5, the giving of amnesty, and even conditional amnesty hearings, such as those under the South African Truth and Reconciliation Commission, often cause more problems than they solve, except in the short period to facilitate co-operation with new government 36. It is also relevant to note the Afrobarometer, and other Zimbabwean studies, findings about citizens views on amnesty (see Section 1.3). All the positions developed under international law repudiate amnesty for gross human rights violations. Zimbabwean law has a number of egregious crimes for which a statute of limitations does not apply, and certainly many citizens are not in favour of amnesty as pointed out above. So the government has a very strong position from which to argue against the giving of amnesties, 33 The fact that only 7% of the sample in the Human Rights Forum national survey were willing to admit whether they were victims or not, and the very large numbers that refuse to express their political affiliations in opinion surveys, demonstrates the extent of these fears. 34 Mamdani. M (2013, The Logic of Nuremburg. [op cit] 35 For example, such initiatives were developing in the late 1990s, and could easily be revived. See Amani (2000), Training nurses in the assessment and management of psychological disorders: Report of Amani Trust s programme in Mashonaland Central Province, Zimbabwe, HARARE: AMANI TRUST. 36 In South Africa, senior generals did not approach the TRC for amnesty, and hence are plausibly liable now for prosecution, and this is highly embarrassing to the ANC government that had endorsed the decision of the generals, suggesting some form of guarantee for this. 24

25 and can take this position very strongly, which may be problematic, or it can adopt a position, hopefully supported by the citizenry, that modified amnesty may be possible for disclosure with truth or apology. Given that there is a ten year life of NPRC, and that serious crimes do not have a time limitation, the desirable approach may be to take a measured, consultative approach, reviewing approaches internationally, and getting the views of citizens in a more formal manner than surveys to date have done. For example, surveys have suggested that many respondents would offer amnesty for low-level perpetrators, but not for those more senior persons involved or for those with command responsibility. Clearly, command responsibility has been the subject of very notorious cases Pinochet, Habre, Samuel Taylor, amongst many others and is even specified in the well-known case of the torture of Tsvangirai and others in 2007, which case is before the Constitutional Court of South Africa. Hence, any initial statements about amnesty need to be very careful and measured. Firstly, not even the Presidential amnesty in 2000 dared to excuse murder, rape, and financial crimes (but ignored torture, the most common gross human rights violations), so there is a precedent for not excusing very serious crimes. Secondly, since most gross human rights violations have no limitation in Zimbabwe law, it can be stated that citizens have the right of remedy already in the law and that would NOT be interfered with. However, it can also be stated that the government will be consulting widely, through the NPRC, to understand Zimbabwean citizens views on the matter of amnesty, but that obviously full disclosure and repentance by perpetrators would always be seen favourably. Sometimes states establish specialised units to deal with very serious crimes. For example, South Africa has such a unit, the Priority Crimes Litigation Unit, established under the National Prosecutions Authority (NPA). The new Constitution establishes a similar overall body to the latter, but makes no mention of priority crimes or very serious crimes. Hence, it may be advisable that the government initially provides no barrier to allowing aggrieved citizens access to the existing law enforcement process, but makes one of the tasks of a Justice and Amnesty Committee of the NPRC to determine whether there is need for such a specialised unit in order to deal with the gross human rights violations of the past. This indicates no barrier to redress immediately, but also places on record the government s commitment to dealing with the problem. 5. Conclusions With its immensely troubled history, achieving peace and reconciliation that will include transitional justice will be no easy task in Zimbabwe. As is hopefully evident from this analysis, it will take considerable courage and political will by the government, and certainly few sitting governments have faced their own human rights record with anything except avoidance. Furthermore, as was pointed out earlier, it is likely that this task, even if it is attempted, will never be repeated, and thus Zimbabwe must approach this with extreme caution, steering between the Scyilla of avoidance by blanket amnesties and shallow reconciliation, and the Charybdis of a process that may de-stabilise the state. Thus, perhaps the best that can be recommended out of this present analysis is that this paper is a contribution to an on-going discussion. It may be that the government has the will and the 25

26 courage to face the history of the country and four decades of violence and gross human rights violations, but it is more likely that this will be a matter displaced to the future. Hence, all the outlined steps for an effective NPRC may look ill-advised at present, and should be left to the future, but it is worth pointing out that there is little that has happened since 2003, when the International Symposium made its recommendations for transitional justice in Zimbabwe, that have made those recommendations inappropriate or dated. Thus, maybe the conclusions of this present paper may be just as relevant in the future as they might be now. 26

27 Appendix 1 Symposium Declaration: Civil Society and Justice in Zimbabwe Johannesburg, South Africa 13 August 2003 The symposium A symposium on the theme of Civil Society and Justice in Zimbabwe was held from 11 to 13 August 2003 in Johannesburg. It brought together leaders from 74 civil society organisations in Zimbabwe, colleagues from civic organisations in South Africa and a number of experts from other jurisdictions. The main purpose of the symposium was to explore how best to achieve justice in the broadest possible sense for the many victims of past and present human rights abuses in Zimbabwe. The symposium noted that civil society organisations are non- partisan and are independent of any particular political party. Their main functions are to bring about a culture of human rights, justice and social and economic improvement and to promote and advance the interests of marginalised and victimised people. In this document persons affected by human rights abuses are referred to as victims or survivors. The process The Zimbabwean participants of this symposium compiled this document and agreed upon the recommendations contained in it. The Zimbabwean participants recognised they had initiated a process aimed at achieving justice for victims. They undertook to engage in wider consultation within their own organisations, other civic bodies not represented at the symposium and the general public. They will then incorporate these views into a final action plan. The civic organisations that endorse this plan, and agree to participate in its implementation, will present the plan to the political parties and other actors, and demand that that it will be fully taken into account in all deliberations relating to political transition. These civic organisations will monitor the politi- cal discussions pertaining to political transition to ensure that the needs of victims are fully met in the transitional and post-transi tional periods. Preamble 1. Mindful that a political solution is urgently required in order to overcome the serious and rapidly worsening crisis in Zimbabwe that has resulted in such widespread suffering; 2. Requiring that the Zimbabwean people and civil society organisations be given a full opportunity to make an input into the process taking place to bring about transition to a new political order to influence the human rights content of any settlement that may be reached, not the political outcome of the negotiations; 3. Recalling the United Nations General Assembly resolution of 9 December 1998 which outlines the rights and responsibilities of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms; 27

28 4. Emphasising the important role that individuals, civil society organisations and groups play in the promotion and protection of human rights and fundamental freedoms; 5. Fully accepting that historical social and economic imbalances must be remedied in order to achieve social and economic justice in Zimbabwe; 6. Insisting that strategies must be pursued that will cater for the needs of victims of violence and that the victims will be consulted about their needs and what the victims perceived as being the most appropriate mechanisms for satisfying their needs; 7. Understanding that lasting peace can only be achieved where human rights abusers are held accountable and meaningful steps are taken to try to heal the grievous wounds the violators inflicted on their victims and the society; 8. Recognising that it is imperative to preserve and fully and accurately record the past history of human rights violations. Based on these general considerations, the Zimbabwean participants resolved as follows: The abuses in the past Throughout colonial occupation, black Zimbabweans were oppressed by the regime and denied all civil and political rights. They were deprived of their land, and socially and economically marginalised. From 1960 until 1980, they suffered even more widespread and systematic gross human rights violations. These violations, and the subsequent impunities, created the foundations for the human rights abuses experienced in subsequent decades. In the 1980s, largescale human rights violations occurred in the southern and western regions of Zimbabwe during military operations ordered by the government. These violations were widespread, systematic and planned. From 2000 onwards, there have been increasing levels of violence resulting in pervasive human rights abuses. All available evidence indicates that the government has engaged in a widespread, systematic, and planned campaign of organised violence and torture to suppress normal democratic activities, and to unlawfully influence the electoral process. The government has also created, and the law enforcement agencies have vigorously applied, highly repressive legislation. These measures were directed at ensuring that the government retained power rather than at overcoming resistance to achieving equitable land redistribution and correcting historical iniquities. The human rights abuses, and the social and economic injustices suffered by the people are not merely the product of colonial injustices, but also the product of misgovernance, massive corruption, and asset stripping by state officials, persons within the private business sector, and others. Accountability The delegates noted that, during the pre- and post-independence periods, there have been successive amnesties and Presidential pardons for many of the persons who committed gross human rights violations. The failure to punish these violators, and to hold them accountable, created a culture of impunity and the potential for the re-emergence of violence and abuse of human rights. The culture of impunity can only be ended if perpetrators of human rights abuses are held accountable for their abuses. The participants noted and acknowledged that, under 28

29 international law and international humanitarian law, gross human rights violations should never be ignored or be the subject of an amnesty. Mechanisms for addressing the needs of victims Victims of all past human rights abuses have the right to redress and to be consulted about the nature of the mechanisms that will be established to address their needs. The mechanisms that are established must be victim-centred, and must be capable of addressing the needs of victims in a meaningful way. Prior to the establishment of these mechanisms, there must be an extensive process of consultation with the victims and the broader community about the mechanisms and the sorts of persons who should be made responsible for operating them. Civic organisations and the churches should assist in this process. The main mechanism for dealing with past human rights abuses will be a Truth, Justice and Reconciliation Commission. This Commission will have the following functions: Regarding the human rights abuses prior to 1960, the Commission s main functions will be: to investigate human rights abuses that occurred prior to 1960 and compile a full and accurate record of these abuses; to determine the social and economic effects of these abuses; to establish the extent to which these historical abuses continue at present and to which they negatively impact upon the rights of Zimbabweans; to make appropriate recommendations about remedial steps to address the needs of victims of these abuses and present injustices emanating from past injustices; to refer cases involving gross human rights violations to the Attorney General for possible criminal prosecution. Regarding the human rights abuses subsequent to 1960, the main functions of the Commission will be: to take steps to ensure the protection and preservation of evidence of human rights abuses; to investigate human rights abuses that have occurred between 1960 and the date upon which this Commission commences its operations, including violations during a transitional period, and compile a full and accurate record of these abuses using available documentation, victim statements, and testimony from perpetrators; to require persons accused of human rights violations, but who deny that they committed such violations, to appear before the Commission so that these cases can be fairly investigated and findings can be made; to require persons who admit to having committed human rights violations over this period to appear before the Commission, make full and accurate admissions about their involvement; 29

30 to recommend that those found to have committed gross human rights abuses should be removed from any positions of power and authority that would allow them to commit further human rights abuses in the future; to recommend that the remedial steps needed in order to pro- vide reparations to victims should encompass the basic rights framework outlined by the Economic and Social Council of the United Nations; namely, the right to know, the right to justice, the right to non-recurrence, and the rights to restitution, compensation and rehabilitation; to explore the desirability of facilitating genuine community reconciliation; to facilitate processes of community-driven exhumation, reburial and memorialisation. To be effective this Commission must be independent, credible, efficient, adequately resourced, accessible and victim-friendly. Civic organisations should monitor and support the operations of this Commission. Victims appearing before this Commission must be treated with sensitivity and respect and be given protection against reprisals. There is a need for a proper gender balance on this Commission and particular attention must be paid to the special needs of women and children victims. The government formed after the transition must commit itself to co-operate with and to support the activities of this Commission, and must give an unequivocal undertaking to implement its recommendations wherever possible. The participants called for the conducting of a comprehensive people-driven constitutional reform exercise that will lay emphasis on the protection of all human rights and the establishment of a number of Commissions to protect and promote these human rights. There should be special Commissions to deal with land, gender issues and economic crimes such as corruption, asset stripping and debts incurred by previous governments in connection with human rights abuses. The mandate of the Commission on economic crimes should include: referral of cases to the Attorney General for possible prosecution; in conjunction with other appropriate state agencies, taking of vigorous steps to recover misappropriated state assets; imposition of financial penalties upon those who were financial beneficiaries of human rights abuses. A substantial portion of the assets recovered by this process should be devoted to compensating individuals and communities harmed by past human rights abuses. All these Commissions must be given an explicit mandate to recommend measures aimed at redressing socio-economic injustices of the colonial and post-colonial periods. The new Government must immediately establish a reparations fund to compensate victims of human rights abuses. Concerted efforts must be made to tap all possible sources of local and international finance for this fund, including assets recovered by the Economic Crimes Commission. If financially feasible, full compensation should be paid to those who suffered the greatest harm as a result of grave human 30

31 rights abuses, and some more limited compensation should be paid to other victims. The fund should also be used to establish local development projects in areas particularly badly affected by past human rights abuses. All victims must be provided with free and proper health care and social support to deal with the life-long disabilities that can arise from violations of their human rights. Future human rights abuses The decades of conflict and human rights abuses have badly weakened the institutions that should provide protection against human rights abuses and provide remedies for those harmed by human rights abuses. A culture of respect for human rights will need to be re-established in Zimbabwe. Existing institutions will need to be strengthened and other institutions established to institutionalise this new culture. The justice delivery system should be re-designed in a way that will allow for accessible remedies for victims of human rights abuse. The law enforcement agencies and prison service will need to be overhauled so that they once again become professional, politically neutral forces that respect the human rights of all Zimbabweans and enforce the law on a fair and impartial basis. Officers who planned and instigated or perpetrated particularly serious human rights abuses should be removed from law enforcement agencies and all law enforcement officers must be made to undergo thorough re-training focused on the protection of human rights. Civic organisations should monitor law enforcement agencies to ensure that they do not commit human rights abuses and, when they do, to assist injured parties to obtain redress. All militias and other irregular paramilitary forces must be immediately disbanded. There must be rehabilitation programmes to reintegrate members of these forces back into normal society. The independence and impartiality of the judicial system and of the prosecution service has been undermined and public confidence in this system will need to be restored. There must be effective constitutional mechanisms to ensure that judicial appointments are made on the basis of professional competence and suitability and that there is no political interference in the judicial process. The human rights protections contained in the Constitution must be strengthened and made to conform to international standards on human rights. A Constitutional Court should be established to ensure the enforcement of human rights, and credible, politically neutral and competent judges should be appointed to this court. A number of Commissions should be established to ensure the observance of human rights and provide accessible means of redress to those harmed by human rights abuse. These should include a Human Rights Commission, a Commission on Gender Rights, an Economic Crimes Commission and a Land Commission. The new government should take steps to facilitate access to justice and redress for Zimbabwean victims of human rights abuses. The new government should try to make full and effective use of the Rome Statute of the International Criminal Court. It should afford all Zimbabweans the rights and protections of all regional and international rights instruments, by becoming a State Party to such treaties as the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Optional Protocol to 31

32 the International Covenant on Civil and Political Rights. It should also make a declaration under Article 14 of the Convention for the Elimination of All Forms of Racial Discrimination. The provisions of all of these treaties must be incorporated into domestic law. Conclusions Over many years innumerable Zimbabweans have fallen victim to human rights abuses. All Zimbabweans earnestly look forward to a new era in which there is peace and stability that will allow for equitable economic growth and development and in which the fundamental rights of all Zimbabweans are respected. The preamble to the United Nations Universal Declaration of Human Rights state that the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. 32

33 Appendix 2 Select bibliography illustrating the gross human rights violations from 1965 to ActionAid (2005), An in-depth study on the impact of Operation Murambatsvina/Restore Order in Zimbabwe. ActionAid International in collaboration with the Counselling Services Unit (CSU), Combined Harare Residents Association (CHRA) and the Zimbabwe Peace Project (ZPP). November Amani (1996), An Investigation into the Sequelae of Torture and Organised Violence in Zimbabwean war veterans, HARARE: AMANI. 3. Amani (1998), Survivors of Torture and Organised Violence from the 1970 War of Liberation, HARARE: AMANI. 4. Amani (1998), The Psycho-Social Needs of Survivors of Organised Violence and Torture in the Community, HARARE: AMANI. 5. Amani (2001), Healing the dead to transform the living: exhumation and reburial in Zimbabwe, BULAWAYO: AMANI TRUST. 6. Amani (2002), Beating your opposition. Torture during the 2002 Presidential campaign in Zimbabwe, HARARE: AMANI TRUST. 7. Amani (2002), Organised Violence and Torture in the June 2000 General Election in Zimbabwe, HARARE: AMANI TRUST. 8. Amnesty International (2000), Zimbabwe: Terror tactics in the run-up to the parliamentary elections, June 2000, LONDON: AMNESTY INTERNATIONAL. 9. Amnesty International (2002), Zimbabwe: The Toll of Impunity, LONDON: AMNESTY INTERNATIONAL. 10. Amnesty International (2008), Zimbabwe. Time for Accountability. LONDON: AMNESTY INTERNATIONAL. 11. CCJP (1975), The Man in the Middle: torture, resettlement and eviction, SALISBURY: CATHOLIC COMMISSION FOR JUSTICE AND PEACE IN RHODESIA. 12. CCJP (1976), Civil War in Rhodesia: Abduction, Torture and Death in the Counter-Insurgency Campaign, SALISBURY: CATHOLIC COMMISSION FOR JUSTICE AND PEACE IN RHODESIA. 13. 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. 14. CSVR (2009), Subliminal Terror? Human rights violations and torture in Zimbabwe during June JOHANNESBURG: CSVR. 15. Human Rights Watch (2006), You Will Be Thoroughly Beaten. The Brutal Suppression of Dissent in Zimbabwe. A Human Rights Watch Briefing Paper. November NEW YORK: HUMAN RIGHTS WATCH. 16. Human Rights Watch (2008), Bullets for Each of You : State-Sponsored Violence since the March 29 Elections. June NEW YORK: HUMAN RIGHTS WATCH. 17. Human Rights Watch (2008), They Beat Me like a Dog. Political Persecution of Opposition Activists and Supporters in Zimbabwe. A Human Rights Watch Briefing Paper NEW YORK: HUMAN RIGHTS WATCH. 18. International Rehabilitation Council for Torture Victims [IRCT] IRCT (2000), Organised Violence and Torture in Zimbabwe, 6th June 2000, Copenhagen and Harare, COPENHAGEN & HARARE: IRCT & AMANI TRUST. 19. IRCT (2001), Organised Violence and Torture in Zimbabwe, 24th May 2001, Copenhagen and Harare, COPENHAGEN & HARARE: IRCT & AMANI TRUST. 20. JAG/RAU (2008), Reckless Tragedy: Irreversible? A Survey of Human Rights Violations and Losses suffered by Commercial Farmers and Farm Workers from 2000 to Report prepared by the 33

34 Research and Advocacy Unit [RAU]. December HARARE: JUSTICE FOR AGRICULTURE TRUST. 21. Pswarayi, L, & Reeler, A.P (2102), Fragility and education in Zimbabwe: Assessing the impact of violence on education. December 2012, HARARE: RESEARCHA & ADVOCACY UNIT. 22. PTUZ (2012), Every School has a Story. A Preliminary Report on Teachers Experiences of Elections in Zimbabwe. Report produced by PTUZ and RAU. February HARARE: PROGRESSIVE TEACHERS UNION OF ZIMBABWE and RESEARCH & ADVOCACY UNIT. 23. RAU (2010), Preying on the Weaker Sex: Political Violence against Women in Zimbabwe. Report produced by IDASA (An African Democracy Institute), the International Center for Transitional Justice [ICTJ] and the Research and Advocacy Unit [RAU]. November HARARE: RESEARCH & ADVOCACY UNIT. 24. RAU (2010), When the going gets tough the man gets going! Zimbabwean Women s views on Politics, Governance, Political Violence, and Transitional Justice. Report produced by the Research and Advocacy Unit [RAU], Idasa [Institute for Democracy in Africa], and the International Center for Transitional Justice [ICTJ]. November HARARE: RESEARCH & ADVOCACY UNIT. 25. RAU (2010), No Hiding Place. Politically Motivated Rape of Women in Zimbabwe. Report prepared by the Research and Advocacy Unit (RAU) and the Zimbabwe Association of Doctors for Human Rights (ZADHR). December HARARE: RESEARCH & ADVOCACY UNIT. 26. Redress (2005), Torture in Zimbabwe, Past and Present Prevention, Punishment, Reparation? A Survey of Law and Practice. June LONDON: REDRESS TRUST. 27. Reeler, A.P., & Mupinda, M. (1996), Investigation into the sequelae of Torture and Organised Violence amongst Zimbabwean War Veterans, LEGAL FORUM, 8, Reeler, A.P., Mbape,P., Matshona,J., Mhetura,J., & Hlatywayo,E. (2001), The prevalence and nature of disorders due to torture in Mashonaland Central Province, Zimbabwe, TORTURE, 11, Southern African Centre for Survivors of torture SACST (2008), Victims of Organized Violence and Torture in Zimbabweans attending Refugee Reception Offices in South Africa: Prevalence & Associated Features. March JOHANNESBURG: THE SOUTHERN AFRICAN CENTRE FOR SURVIVORS OF TORTURE. 30. Solidarity Peace Trust Solidarity Peace Trust (2003), Peaceful protest and police torture in Bulawayo. South African & Zimbabwe: Solidarity Peace Trust. 31. Solidarity Peace Trust (2003), National youth service training shaping youths in a truly Zimbabwean manner. An overview of youth militia training and activities in Zimbabwe, October 2000 August September, ZIMBABWE & SOUTH AFRICA:. 32. Solidarity Peace Trust (2005), Discarding the Filth: operation murambatsvina. Interim report on the Zimbabwean government s urban cleansing and forced eviction campaign May/June ZIMBABWE & SOUTH AFRICA: SOLIDARITY PEACE TRUST. 33. Solidarity Peace Trust (2006), Operation Taguta/ Sisuthi. Command Agriculture in Zimbabwe: its impact on rural communities in Matabeleland. April ZIMBABWE & SOUTH AFRICA: SOLIDARITY PEACE TRUST. 34. Solidarity Peace Trust (2008), Punishing Dissent, Silencing Citizens: The Zimbabwe Elections May JOHANNESBURG: SOLIDARITY PEACE TRUST. 35. Themba Lesizwe (2004), Civil Society and Justice in Zimbabwe, Proceedings of a symposium held in Johannesburg, August 2003, PRETORIA: THEMBA LESIZWE. 36. WOZA (2008), The traumatic consequences of gross human rights violations suffered by WOZA women. HARARE: WOMEN OF ZIMBABWE ARISE. 37. Zimbabwe Association of Doctors for Human Rights ZADHR (2003), Victims of Organised Violence and Torture 2-9 June 2003, Harare: Zimbabwe Association for Doctors for Human Rights. 34

35 38. Zimbabwe Human Rights NGO Forum (1999), A Consolidated Report on the Food Riots January 1998, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 39. Zimbabwe Human Rights NGO Forum (2000), The Unleashing of Violence: A report on violence against peaceful protestors in Harare. A report compiled by the Zimbabwe Human Rights Non- Governmental Organisations Forum. April 2000, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 40. Zimbabwe Human Rights NGO Forum (2000), Report on political violence in Bulawayo, Harare, Manicaland, Mashonaland West, Masvingo, Matabeleland North, Matabeleland South and Midlands, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 41. Zimbabwe Human Rights NGO Forum (2000), Who is responsible? A preliminary analysis of preelection violence in Zimbabwe, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 42. Zimbabwe Human Rights NGO Forum (2001), Human Rights and Zimbabwe s June 2000 election, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 43. Zimbabwe Human Rights NGO Forum (2001), Who was responsible? A consolidated analysis of pre-election violence in Zimbabwe, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 44. Zimbabwe Human Rights NGO Forum (2002), Teaching them a lesson. A report on the attack on Zimbabwean teachers, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. Zimbabwe Human Rights NGO Forum (2003), Torture by State Agents in Zimbabwe: January 2001 to August 2002, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 45. Zimbabwe Human Rights NGO Forum (2005), Order out of Chaos, or Chaos out of Order? A Preliminary Report on Operation Murambatsvina. June HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 46. Zimbabwe Human Rights NGO Forum (2006), An Analysis of the Zimbabwe Human Rights NGO Forum Legal Cases, Published by the Zimbabwe Human Rights NGO Forum. June 2006, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 47. Zimbabwe Human Rights NGO Forum (2006), Who Guards the Guards? Violations by Law Enforcement Agencies in Zimbabwe, 2000 to 2006, December 2006, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 48. Zimbabwe Human Rights NGO Forum (2007), Their Words Condemn Them: The Language of Violence, Intolerance and Despotism in Zimbabwe, May 2007, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 49. Zimbabwe Human Rights NGO Forum (2007), Adding Insult to Injury. A Preliminary Report on Human Rights Violations on Commercial Farms, 2000 to Zimbabwe Human Rights NGO Forum and the Justice for Agriculture Trust [JAG] in Zimbabwe. June HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 50. Zimbabwe Human Rights NGO Forum (2008), Damned Lies? Post Election Violence in Zimbabwe. Report produced by the Research & Advocacy Unit. August HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM; 51. Zimbabwe Human Rights NGO Forum [2009], Only Bruises on the Soles of their Feet? Torture and Falanga in Zimbabwe. Report produced by the Zimbabwe Human Rights NGO Forum. February HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. 35

36 Appendix 3. TECHNICAL ADVICE ON PEACE AND RECONCILIATION ISSUES IN ZIMBABWE: LESSONS FROM AFRICAN TRANSITONAL JUSTICE PROCESSES. Introduction Zimbabwe will have to grapple with the question of how to address a legacy of human rights violations that have occurred in the country since independence in The debate on transitional justice options for Zimbabwe has already been underway for a number of years in the recent past. 37 This section seeks to provide technical advice on comparative experiences on transitional justice in Africa with specific focus on South Africa, Sierra Leone and Kenya and to identify what lessons can be learned by Zimbabwe. The section summarizes transitional justice processes undertaken in South Africa, Sierra Leone and Kenya, giving special attention to those countries truth and reconciliation commissions. In so doing, it identifies the lessons learned on transitional justice in each country with relevance to Zimbabwe. Transitional Justice in Africa: Three Case Studies South Africa The South African Truth and Reconciliation Commission has its origins in the post-amble to the Interim Constitution of 1993 which provided that amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past. It further provided that to this end, Parliament would adopt a law determining a firm cut-off date and providing for the mechanisms, criteria and procedures through which such amnesty would be dealt with. The TRC was therefore the result of the negotiated end to apartheid and a compromise between blanket amnesty on the one hand and prosecution of perpetrators on the other. After considerable input from civil society, the South African Parliament passed the Promotion of National Unity and Reconciliation Act in mid The Act created the commission as an independent investigative body. The selection of commissioners was done in an open and participatory manner. A selection committee was formed, including representatives of human rights NGOs, which then called for nominations from the public. It received three hundred nominations and invited forty-seven people for interviews, which were conducted in public, with NGO s participating in the selection process through the submission of memoranda. The selection committee forwarded a list of twenty-five finalists to President Mandela who appointed 37 See for example, Redress Trust, Zimbabwe: From Impunity to Accountability, 2004 ( Zimbabwe Human Rights NGO Forum, Report of the International Conference on Transitional Justice in Zimbabwe, 4-6 October 2012 ( Zimbabwe Human Rights NGO Forum, Transitional Justice National Survey: A Report on the People s Perception and Recommendations, 2011 ( sitional+justice+survey+report.pdf); 36

37 the eventual seventeen commissioners. The result of this process was a commission made of highly respected and qualified individuals led by Archbishop Desmond Tutu to undertake the delicate task of leading the country s truth and reconciliation process. The SATRC was mandated to investigate gross human rights abuses that occurred between 1960 and 1994 so as to establish as complete a picture as possible of the atrocities that took place during that period. It was to seek to understand the perspectives of victims as well as the motives and perspectives of perpetrators. It was also mandated to recommend reparations for victims. Three committees were set up to carry out the TRC s mandate. Firstly, the Human Rights Violations Committee was tasked with investigating human rights violations that occurred from 1 March 1960 and 6 December 1993 (later extended to 11 May 1994). This Committee used statements made by victims to guide its investigations. Secondly, the Reparation and Rehabilitation Committee provided support for victims in an effort to restore their dignity. It was also tasked with formulating policy proposals and recommendations on how to promote the rehabilitation and healing of the survivors, their families and the community at large. Finally, the Amnesty Committee was charged with reviewing applications for amnesty. A total of 21,297 statements of human rights violations were taken by the Commission. Out of these, the commission selected window cases around which to hold hearings in public. In addition to victim hearings, the TRC also held event hearings focusing on specific events in which gross violations of human rights occurred; special hearings for women, children and youth, and in regard to conscription; institutional hearings seeking to understand the role various institutions such as the health sector, the legal profession, the media, the business sector, the faith communities and the prisons, played in helping or hindering the human rights abuses of apartheid. In addition to recommending urgent interim recommendations for those who needed urgent medical attention, the truth commission also made recommendations for more substantive reparations and suggested that these should be funded from a one off across the board corporate tax. However, the government rejected this idea and instead made a one-off payment of ZAR 30,000 to each of the victims who had been registered with TRC. Sierra Leone The mandate of the Sierra Leone Truth and Reconciliation Commission (TRC) was derived from the Lome Peace Agreement, which brought to an end the decade long civil war. 38 The Agreement controversially provided for a blanket amnesty for perpetrators of human rights violations, but the human rights community did manage to ensure some measure of accountability by pushing for the inclusion of a TRC. The Agreement therefore provided for the establishment of a Truth and Reconciliation Commission to address impunity, break the cycle of violence, provide a forum for both the victims and the perpetrators of human rights violations 38 The Lome Peace Agreement was signed on 7 July 1999 between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF) 37

38 to tell their story, and to get a clear picture of the past in order to facilitate genuine healing and reconciliation. 39 The main object for which the SLTRC was established was to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the Conflict in 1991 to the signing of the Lome Peace Agreement in 1999 (later extended to January 2002 to cover the period of continuing conflict following the collapse of the Lome Peace Agreement in May ); to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered. 41 The functions of the SLTRC included undertaking investigation and research into key events, causes, patterns of abuse or violation and the parties responsible; holding sessions, in public or in private, to hear from the victims and perpetrators of any abuses or violations or from other interested parties; and taking individual statements and gathering additional information with regard to the matters referred to in the foregoing provisions. 42 The SLTRC had seven commissioners out of whom four were Sierra Leone nationals and three were international experts. The nationals were appointed through a public nomination process which was used to identify possible commissioners. A selection panel then selected the finalists out of whom the UN Special Representative to Sierra Leone forwarded four names to the President for formal appointment. The Office of the High Commissioner for Human Rights nominated the three international commissioners. It also appointed an interim secretariat to the Commission. The SLTRC collected some 8,000 statements and held ninety public hearings in which 350 persons testified as individual witnesses. In addition to testimony hearings, the SLTRC held thematic hearings on good governance, the role of civil society and immigrant communities, the management of mineral resources and corruption, women and girls, and children and youth. It also held event-specific and institutional hearings. Kenya In February 2008, following widespread violence after a disputed presidential election, Kenya officially joined the ranks of countries seeking to transition from authoritarianism or repression to democracy. Although the debate as to whether Kenya needed to reckon with past human rights violations had been on-going since , it was the post-election violence which took Kenya to the brink of civil war in early 2008 and claimed the lives of 1,133 people and displaced half a million others that sufficiently concentrated the minds of the political elite to accept a raft of agreements in the name of the Kenya National Dialogue and Reconciliation process. This formed the framework for Kenya s transitional justice agenda. 39 Article XXVI of the Lome Agreement 40 Priscilla B. Hayner, Unspeakable Truths, The Truth and Reconciliation Act, 2000, Section 6(1) 42 The Truth and Reconciliation Act, 2000,Section 7(1) 43 See Report of the Task Force for the Establishment of a Truth, Justice and Reconciliation Commission, chaired by Prof. Makau Mutua, presented to Justice and Constitutional Affairs Minister on August 26,

39 Under the chairmanship of former UN Secretary General Kofi Annan assisted by an African Union appointed panel, the two opposing parties of President Mwai Kibaki and Opposition Leader Raila Odinga agreed to four agenda items to guide the talks. The first three agenda items addressed the need to stop the then on-going violence; to address the resulting humanitarian crisis; and to overcome the political crisis through a power-sharing agreement. Agenda 4 was meant to address long term issues, including constitutional, legal and administrative reforms; land reforms; tackling youth unemployment, tackling poverty, inequality and regional development imbalance, consolidating national unity and cohesion, and addressing impunity, transparency and accountability. 44 In addition to this, in order to address some of the more immediate concerns, the parties agreed to establish a Commission of Inquiry into Post-Election Violence (CIPEV) and an Independent Review of Elections Commission (IREC). IREC recommended a raft of electoral reforms including the disbandment of the election management body. CIPEV found that there was evidence that crimes against humanity had been committed during the post-election violence and recommended the establishment of an internationalized special tribunal in Kenya to prosecute them failing which Kofi Annan was requested to refer the case to the International Criminal Court. After several attempts, the government gave up on establishing the special tribunal and the ICC opened investigations leading to the indictment of four prominent Kenyans from both sides of the political divide. The negotiating parties also agreed to the formation of a Truth, Justice and Reconciliation Commission to inquire into human rights violations that occurred between independence on 12 December 1963 and 28 February 2008, the date that the National Accord was signed. 45 Pursuant to the TJRC Agreement, Parliament enacted the Truth, Justice and Reconciliation Act (TJR Act) in November The draft law to establish the TJRC was widely criticized by civil society for its confusing language with regard to amnesty provisions, weak provisions on the commission s independence, witness protection as well as the suitability of the organizations that were to form the selection panel for commissioners a majority of which did not have a track record of dealing with historical injustices and human rights issues. 46 These problems were largely due to lack of participation by stakeholders, especially civil society groups, in the drafting of the law, which was largely driven by the Ministry of Justice. This was compounded by tight time constraints under which commissioners were selected which limited time for proper consultation and vetting of the proposed candidates. This led to a serious lapse with regard to the appointment of the Chair of the Commission which would haunt the commission throughout its tenure. The TJR Act provided for the appointment of nine Commissioners; six Kenyan citizens appointed through a national consultative process and three non-citizens selected by the African 44 Kenya National Dialogue and Reconciliation, Annotated Agenda and Timetable, 1 February Annotated%20Agenda%20for%20the%20Kenya%20Dialogue%20and%20Reconciliation.pdf 45 Kenya National Dialogue and Reconciliation, Agreement of Principles for the establishment of a Truth, Justice and Reconciliation Commission, 4 March Constitutional and Reform Education Consortium CRECO, The Quest for an Elusive Justice: A Report of the Truth, Justice and Reconciliation Commission Process, July 2012, page

40 Union Panel of Eminent African Personalities. The Act required gender equity (and geographical balance in the case of Kenyan citizens) in the selection of the Commissioners. The selection of the Kenyan Commissioners was to have been done through a broadly consultative process that involved civil society and Parliament. However, the Selection Panel composed of nine individuals nominated by various religious and professional organizations left out key actors from civil society and victim groups. On 22 July 2009, the President appointed nine individuals to serve as members of the Commission. He also appointed Amb. Bethuel Kiplagat to serve as the Chair of the Commission. Shortly after his appointment, controversy broke out when Amb. Kiplagat was accused of having been complicit in human rights violations and the irregular acquisition of public land during his tenure in the Moi Government. Despite mounting pressure to resign, Kiplagat hang on to his job for over one year during which time the Commission lost critical support from civil society, victim groups and donors. It also lost momentum because the time that should have been used on setting up and outreach was squandered on the Kiplagat issue. This loss of time was partly responsible for the Commission seeking three extensions which further eroded public confidence in its work. The TJRC was mandated by its founding law to investigate, analyze, and report upon gross violations and abuses of human rights including abductions, disappearances, detentions, torture, sexual violations, murder, extrajudicial, killings, ill-treatment and expropriation of property; economic crimes including grand, corruption and exploitation of natural or public resources; the irregular and illegal acquisition of public land; the marginalization of communities; ethnic violence and tensions; and crimes of a sexual nature against female victims. It was also required to investigate the context in which and causes and circumstances under which the violations and abuses occurred; inquire into, investigate and provide redress in respect of; and educate and engage the public on issues around its work. The TJRC collected 42,462 statements over a five month period and received 1529 memoranda from individuals, groups, associations and communities. It held hearings, both public and private, over a one year period and in various parts of the country. The hearings were on window cases that were selected by the legal, investigations and research departments. In addition to this, the commission also held thematic hearing on the following themes: access to justice; economic marginalization and minorities; land; armed militia groups; prisons and detention centres; torture; ethnic tensions and violence; the 1982 attempted coup; security agencies, extra-judicial killings and massacres; persons with disabilities (PWDs); women; children; internally displaced persons (IDPs); and political assassinations. 40

41 The Research and Advocacy Unit [RAU] Address: 8 Sir Herbert Taylor Drive, Lincoln Green, HARARE, Zimbabwe Telephone: + 263(4) Fax: +263(4) Cell phone [Director]: admin@rau.co.zw Website: 41