04/01/2022
*Human rights highlights of 2021*
The year 2021 began with the enforcement of a serious lockdown which extended to the month of March. During this period, human rights violations continued. Numerous rights were violated. For instance, the right to access to food, clean water, security and human dignity were violated. The State enforced strict lockdown measures without making necessary considerations about the fact that many families in Zimbabwe are living below the poverty datum line, thus, ignoring lessons learnt in 2020; in particular about access to food. Many reports were circulated about contaminated water in cities like Bulawayo and Harare. The police continued to enforce lockdown measures with an iron fist thereby violating the freedom from torture and inhumane treatment.
Several activists, including journalists have been in and out of court throughout the year facing charges mainly to do with undermining the authority of the President and other crimes against the state. Some of the striking cases include the case of Hopewell Chin’ono who was being charged with communicating falsehoods and inciting people to participate in a gathering with intent to promote public violence, breaches of peace or bigotry. He appeared in court in the month of January and his case is still pending finalization in the court. Although, one of his charges were dismissed in the High Court after they were found to be non-existent. Other key players who have been in and out of court include political players and activists like Jacob Ngarivhume, Cecilia Chimbiri, Joana Mamombe, Netsai Marova, Allan Moyo, Takudzwa Ngadziore, Namatai Kwekweza, Nancy Murenga, Makomborero Haruzivishe, among many others. However, the case of Makomborero Haruzivishe has been different, he has suffered the worst. Makomborero is facing numerous charges and ever since he was arrested in 2020, he has spent all his days in remand prison to date. Numerous strategies have been thrown in to secure his release on bail. His lawyer, Obey Shava of ZLHR had secured his release on bail pending appeal in respect of another case that he had been convicted, but the State has maintained its grip through creating different charges against him, thus, preventing his release on bail. Still, hope for Makomborero has not been lost, soon his freedom will be secured.
The month of February began with the continuation of the case of Mary Mubaiwa Chiwenga, who is being charged among other things with attempted murder, and money laundering. The case which was opened in 2019, continued to twist and turn throughout 2021; at one point Mary Mubaiwa Chiwenga was brought to court on a hospital stretcher bed, and at some point she was reported to have collapsed at the entrance of the court at the Magistrates Criminal Court (Rotten Row). This has raised too many human rights questions in as far as the matter is being handled, in particular about the health of the accused person and whether or not she is fit to stand trial. The main question that can be asked is about the extent of the rights of accused persons contained in section 70 of the Constitution of Zimbabwe that is whether or not an accused person has full access to the right to health contained in section 76 of the Constitution. This case is yet to be concluded. Interestingly, the testimony of the complainant was given in camera. Nonetheless, the conclusion of the case is awaited by many Zimbabweans.
What transpired in the month of March caught the attention of every Zimbabwean citizen when the State gazetted a contentious Statutory Instrument, SI 50 of 2021, which required inhabitants in Chiredzi-Chilonga area to relocate elsewhere in order to pave way for the growing of lucerne grass by Dendairy. The announcement was shocking, because about 12500 Chilonga inhabitants were going to be evicted. This was a direct violation of section 74 of the Constitution of Zimbabwe which prohibits arbitrary evictions without a court order. The State faced numerous criticisms and court challenges were mounted against the State by organisations such as the ZLHR and ZELA. Eventually, the government withdrew SI 50 of 2021 with SI 72A of 2021, which sought to align the process with the law and instead created an agricultural scheme for the people in Chilonga. Nonetheless, court cases which challenged the decision of the State have not been withdrawn from the courts; rather they were just struck of the roll. This is only precautionary, considering that the intention to displace people in Chilonga has not been abandoned.
The month of April and May was heated up with Constitutional amendments and the purging of oppositional party Members of Parliament from Parliament. Many Zimbabweans criticized proposed amendments to the Constitution. Nonetheless, the majority of Parliament excluding those who had been purged saw it fit to amend the Constitution. The President of Zimbabwe, therefore, ascended to the Amendment Bill on the 07th of May 2021, thus making it a law. Striking from all amendments is the fact that the President can now handpick and appoint judges of superior courts. Also, the amended Constitution permitted the President to extend the term of office of the Chief Justice, at the request of the Chief Justice. Subsequently, the term of office of Chief Justice Luke Malaba, which had come to an end because he was turning 70 on the 15th day of May, the same month, was extended. This was resented within the legal profession, and one, Musa Kika, a seasoned lawyer, challenged the decision by the President, citing that the amendment was inconsistent with section 328 of the Constitution which states that; ‘…an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.’ Musa Kika sought to bar the extension of the term of office of the Chief Justice. The High Court ruled in favour of Musa Kika’s application and declared the decision to extend the term of office of the Chief Justice to be invalid because it breached the Constitution. The case saw many judges being requested to recuse themselves because of their association with the Chief Justice. Nonetheless, the decision of the High Court was appealed against. Subsequently, through a Constitutional challenge by Marx Mupungu, the decision of the High Court was set aside which meant that the extension of the Chief Justice’s term of office was upheld. Numerous questions arise from this decision, the main one being; who is the Constitutional Court? Answers to these questions can be given or discussed in another segment.
As if the drama in May was not enough, the President of Zimbabwe was rumored to be intending to appoint new High Court and Supreme Court judges in terms of the amended constitution which now allows him to handpick and appoint judges. It was clear that he was going to appoint judges from the pool of sitting judges only. This made a university law student from Zimbabwe Ezekiel Guti University, Chamunorwa Chingwe, through his lawyers from the Zimbabwe Human Rights NGO Forum, to seek a declaratory order and consequential relief directing the President to act holistically in terms of the full direction of section 180(4) of the Constitution and consider appointing both sitting judges and non-sitting judges. Unfortunately, the application was thrown away.
Following the amendment of the Constitution in May, the President went on to gazette another contentious Statutory Instrument, SI 127 of 2021 which prohibits business operators from charging above the official exchange rate and that those who refuse will be punished. Towards the end of July, a seasoned lawyer Obey Shava challenged the constitutionality of SI 127 of 2021. The challenge was premised on the fact that punishing someone without hearing them is against the longstanding natural right to be heard. This interpretation is extractable from the contents of SI 127 of 2021 which gives the Reserve Bank the authority to punish offenders. However, judgment in respect of this remains reserved.
Cases of forced vaccinations increased throughout July, August, September and October. Government workers were being forcibly required to vaccinate, if not they would be required to submit regular covid-19 negative PCR certificates every now and then. Reports showed that at some point government threatened that those who were not vaccinated would not be allowed to work. Subsequently this would mean that those not working would not get salaries. In addition, though it is arguable since a few government institutions offer free covid-19 testing services, the costs incurred from constantly testing for covid-19 would leave one with no option apart from vaccinating in order to save his or her job. Even though, it cannot be disputed that vaccines are proving to be effective.
The month of October was concluded by mild protests staged by war veterans who took it to the streets against the government for poor pension earnings and their general upkeep. These protestors were arrested and charged with causing public disorder. Their case is yet to be finalized, but they are all out on bail.
The month of November which is a sacred month, considered to be the month of the ancestors, began with an interesting stellar case mounted by Sybeth Musengezi who is challenging the ascendance of President Emmerson Mnangagwa in the ZANU-PF national structures as the First Secretary of the Party and the candidate who replaced the late former president, President Robert Gabriel Mugabe. The application is challenging the composition of the central committee that chaired the meeting which passed resolutions to appoint Emmerson Mnangagwa as the first Secretary of ZANU-PF. The case has attracted a lot of media attention because of its imperious implications. The case bears a similar resemblance with the case involving the MDC-Alliance, where Nelson Chamisa’s ascendance into the echelons of the MDC-T was challenged and declared to have been inconsistent with the party’s constitution. Indeed, there is a lot to imagine. Musengezi’s lawyers were even threatened with punitive costs (cost de bonis propiis) by lawyers representing President Mnangagwa, but still they have insisted on pursuing the case. The court is yet to hear the matter, and the nation of Zimbabwe waits to hear the determination of the courts.
The month of November was also not short of drama, as Tinashe Mugabe, host of the self-styled DNA show challenged the decision by the Health Professions Authority Zimbabwe in the High Court. The Health Professions Authority had made a decision to suspend the show alleging that Tinashe Mugabe’s company is not following requirements to employ a professional laboratory scientist and that Tinashe is neither qualified nor competent to issue DNA test results. Mugabe brought this challenge before the courts in terms of the Administrative Justice Act, in particular in terms of section 3, which requires administrators to respect principles of natural justice whenever a decision is made. Mugabe seeks for an order that declares that he is entitled to operate freely. His argument is that he does not offer any services defined in the Health Profession Act, thus, there is no basis for his company to be registered as a health institution. Without doubt, the outcome from this case will be interesting.
The month of December has brought nothing much but postponements of cases before the courts in Zimbabwe. As the mood for elections is heightened with every step towards by-elections coming in 2022, it is important for the State to encourage the independence of the judiciary and to ensure that important electoral reforms are made as has been outlined in numerous contributions by concerned citizens. This period remains an important build-up to national (Parliamentary and Presidential) elections coming in 2023.
Above all, we look forward to a better 2022 where human and people’s rights will be respected.
Shava Law Chambers (Rights and Business Centre) is a fast growing specialized law firm located in, Harare, Zimbabwe. Our firm has expert lawyers leading and operating under various departments. The firm is led by Obey Shava, a seasoned and award winning
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