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Big Saturday Read: Presidential Amnesty & Impunity in Zimbabwe

April 22, 2016

Alex T. Magaisa

 

 

 

The Midlands Hotel, an imposing structure at the heart of Gweru, is arguable the Midlands city’s most iconic building and, countrywide, it certainly punches in the heavyweight division. It has stood there since 1927, with another icon, the Boggie Memorial Clock, just a few metres away. Together, they form a grand old pair that confers a unique character on Gweru. The owner of The Midlands Hotel completed the triumvirate of the city’s icons. His name was Patrick Kombayi, himself a heavyweight in physical stature, character and in the wallet. One of Gweru’s most famous sons, Kombayi was a flamboyant character who built a large and well-known business empire with Gweru as its headquarters.

 

On 24 March 1990, Kombayi was shot seven times by a group of men in his beloved home town. They shot him in the groin, plainly with the intention to kill. By some miracle, Kombayi survived the attack. The men who shot him were acting on behalf of a political opponent. His crime, it seems, was that he was contesting with the then Vice President, Simon Muzenda, in the Gweru Urban constituency. It seems the big son of Gweru was considered a genuine threat to the Vice President’s political career.

 

Things hadn’t always been that bad. Kombayi had once been a staunch Zanu PF man. Indeed, in the 1980s he had earned the distinction of being the first black Mayor of the city. Back in the liberation struggle, he had played an important role supporting the guerrilla movements based in Zambia and Mozambique, a point acknowledged by Edgar Tekere in his book, A Lifetime of Struggle. Always a man with a knack for business, Kombayi had moved to Zambia and built a business empire there. He had selflessly ploughed the profits of his business into the enterprise of liberating his country.

 

At some point earlier in his life, he had been a student of Robert Mugabe, back when the latter was a young teacher. Ten years after independence, Kombayi had become disillusioned with his former teacher and his fellow comrades from the war years. He had begun to drift away. He would take out the whole back page of Moto magazine, the feisty Gweru-based publication, and flight adverts challenging government policies. He was particularly scathing about ESAP and plans to set up Zimbabwe as a one-party state. When Tekere formed the Zimbabwe Unity Movement (ZUM) in 1989, Kombayi was right there with him. It was the first serious opposition party formed after independence and played an important role in stopping the one-party state. It was on the ZUM ticket that Kombayi was challenging Muzenda, Mugabe’s number two. It was this brave and audacious challenge which nearly cost him his life and left him disabled.

 

It was just three days before the election date when his assailants shot him. His shop in Ridgement, a suburb of Gweru, had been set ablaze by ZANU PF youths and his supporters had been badly assaulted. He identified the men who shot him. Two of them, Edward Kanengoni and Kizito Chivhamba, were later tried and convicted of attempted murder. But they were immediately released after President Mugabe invoked his presidential powers of pardon. Kanengoni was the chief of the CIO in Gweru at the time and Chivhamaba a member of ZANU PF’s young wing. When Kanengoni died in 2013, he was given national hero status and his remains were interred at the National Heroes Acre. Chivamba is still alive and is a Member of Parliament for ZANU PF and was the ZANU PF chairman for the Midlands Province until his recent suspension. Kombayi, who had to be flown to to Britain for reconstructive surgery, died in 2009. He had finally made it to Parliament and was a Senator for the opposition MDC. Despite his sterling contribution to the liberation struggle, hero status eluded him. But that now is an exclusive estate of ZANU PF and Kombayi’s hero status lies in the hearts and minds of the people of Gweru, his beloved city, and the nation at large. His legacy lives on. His son Hamutendi has carried his father’s torch and in 2013 was elected Mayor of Gweru.

 

I have narrated this story for four reasons. First, it is a classic illustration of the problem at the heart of Zimbabwe’s gross failure to curb political violence and, secondly, this problem is the abuse of the presidential pardon, more generally the amnesty. Third, it demonstrates the enduring character of violence as a political tool in Zimbabwean politics. However, there is an additional aspect that is not apparent from the story, but which will become evident by the end of this article: the conspiracy of silence by the international community in these early years. My purpose is to explain how these factors have shaped the architecture of violence and impunity in Zimbabwe and what ought to be done to dismantle it. As usual, this historical analysis is not an idle exercise – rather, my thesis is that we cannot understand the deep-rooted nature of the problem of political violence and impunity in Zimbabwe unless we understand its origins and the application of the presidential pardon/amnesty powers.

 

Willowgate and Shava

 

Kanengoni and Chivhamba are not the only men who have benefited from the presidential pardon or amnesty. In 1989, Frederick Shava, former Minister of Labour and Social Welfare and senior member of ZANU PF, was convicted of perjury. He had lied under oath to the Sandura Commission, which was investigating large-scale corruption. Shava spent just one night in prison. The next day he was released after President Mugabe granted him a pardon. “Who amongst us has not lied?” said Mugabe at the time, justifying the pardon. “Yesterday you were with your girlfriend and you told your wife that you were with the Prime Minister. Should you get nine months for that?” It was a casual justification of using the presidential pardon. The release of Shava forced Patrick Chinamasa, the Attorney-General at the time, to drop plans to prosecute other senior Ministers who had also committed perjury when they lied to the Sandura Commission. Shava went into the background, where he eventually secured political rehabilitation. Today, he lives in New York, where he is Zimbabwe’s Permanent Representative to the United Nations. That episode signified a casual attitude to corruption which would soon engulf the nation and become the scourge at the centre of its collapse. Today, corruption has become a way of life and those who are wealthy by corrupt means are applaused as heroes.

 

Victoria Falls Road massacre

 

On 11 February 1983, Lieutenant Edias Ndlovu, his wife, Jennifer Khumalo, and two other unidentified persons were callously murdered along the Bulawayo-Victoria Falls road. Their assailants were four soldiers from the notorious Fifth Brigade. Describing the gory scene at the inquest, the Magistrate said, “I find that the female bodies were stripped of their pants and dresses and that the possibility of sexual assault cannot be discounted… The indications are that the deceased were tied with pieces of fibre, were got down on the ground and repeatedly stabbed with bayonets, much as a hunter slaughtering a wounded animal with a spear…”

 

This event was part of the Gukurahundi massacres. In one of the few officially recorded cases of Fifth Brigade atrocities, the four soldiers were tried and convicted of murder and sentenced to death. However, in June 1988, the four murderers were released under an amnesty granted to members of the security forces. This amnesty covered members of the security forces who had already been convicted or were awaiting trial. Clemency Order No. 1 of 1988, following the signing of the Unity Accord between ZANU and PF ZAPU on 22 December 1987, granted amnesty “with respect to all human rights violations committed by the state security forces and so-called dissidents between 1982 and the end of 1987”. Another beneficiary of that amnesty was a CIO officer who just a week before had been convicted of murdering a political detainee in cold blood.

 

The use of amnesty in 1988 after the Gukurahundi atrocities was justified on the basis of trading off justice for peace – that it was a necessary part of the package to end hostilities that had taken place between 1983 and 1987 in the Matabeleland and Midlands regions. Yet the truth was that these members of the security forces and the dissidents had committed gross human rights violations, and some of them had actually been tried and convicted in court. In any event, it was a top-down approach which involved virtually no consultation with the victims and survivors, who were simply expected to forget and move on. This was problematic, as explained by a lawyer quoted in a 1993 Amnesty International report: “For those who were untouched, they might as well have been reading about Lebanon. Those people have nothing to forget, nothing to forgive. But in Matabeleland, every family was touched. Every family suffered.”

 

What is apparent in all these cases is that perpetrators were not only pardoned or given an amnesty by the President, but that they were subsequently rewarded. But how did a country that fought against human rights violations and to install freedom get to this point? In order to understand the casual attitude adopted by government in these cases and in future instances of gross acts of violence, we have to go back to the beginning. Amnesties and pardons were not only institutionalised at the beginning, but they have become an integral part of Zimbabwe’s architecture of violence and impunity. Zimbabwe will not resolve the problem of political violence, particularly state-sponsored political violence, unless there is a better grasp of the genesis of the problem and the extent to which it pervades the infrastructure of the State and, indeed, society at large. To use a dictum first coined by Professor Jonathan Moyo years ago and subsequently popularised by his counterpart Professor Masipula Sithole, we have to understand how the ‘abnormal’ became ‘normalised’.

 

How it all started: The Lancaster House Agreement

 

As with all narrativess of Zimbabwean law and politics, we have to return to the Lancaster House Agreement (LHA), the document in terms of which the new State of Zimbabwe was founded. Two critical and related things happened at when this document was signed. First, there was a general amnesty granted to Rhodesian security forces and guerrillas for the atrocities and human rights violations during the war. Second, senior members of the Rhodesian security establishment were retained in the security apparatus of the new Zimbabwean State. Both had profound and lasting effects on the new State – a lot of which is still felt to this day. The problem is summed up in the following words by Amnesty International in a 1993 report on Zimbabwe entitled, Drawing a line through the past:

 

“The army, police and other security agencies had been responsible for widespread extrajudicial executions, ‘disappearances’, torture and other human rights violations which had been thoroughly documented by both domestic and international human rights organisations. At independence, however, essentially political considerations dictated that not only would past human rights violators not be brought to justice, but they would be retained in their positions in the security apparatus, with no investigation or calling to account for the deeds of the past.”

 

1979 and 1980 Amnesty

 

The amnesty under Amnesty (General Pardon) Ordinance 12 of 1980 was part of the LHA, which included an amnesty for what were regarded broadly as acts of war. This amnesty was agreed to at Lancaster House even though during the war the nationalists had been continuously calling for the trial of Rhodesian leaders who presided over human rights violations. In addition, before the 1980 amnesty, as the end of the war was in sight, the Zimbabwe-Rhodesia Government, led by Bishop Abel Muzorewa had in 1979 already granted a general amnesty to members of the Rhodesian security forces. The purpose of this amnesty was obviously to protect members of the regime who had committed human rights atrocities during the war. It was a pre-emptive move just in case there would be a new government that might want to pursue vengeance. They needen’t have worried because the LHA provided for the amnesty anyway, which was eventually declared in 1980. But the 1979 amnesty had set a precedent for any furture government: that they could violate human rights and before depature they could always grant amnesty.

 

The 1980 amnesty, like land rights, parliamentary clauses, pension rights and dual citizenship, was seen as part of the package to reassure the white minority that there would be no vengeance. It was believed this would be an incentive for them to stay on and help the country with their knowledge and experience. It is arguable, though, that a key motivation on the part of the new government was to prioritise stability over justice. Indeed, Mugabe himself had survived two assassination attempts in the period leading up to independence on 18 April 1980 and threats of a military coup by disgruntlement white officers were ever present.

 

However, noble though the objectives of the amnesty might have been at the time, it is this episode that set a bad precedent which would have serious consequences for the new nation-state. Amnesty International was critical of the fact that in retaining those who had flagrantly violated human rights, the new government went ‘far beyond’ their Lancaster House obligations. According to Joseph Lelyveld, who interviewed the then Security Minister Emmerson Mnangagwa in 1983, the retention of human rights violators in senior security positions was justified by necessity: “Zimbabwe could not be expected to dismantle its only security agency,” Mnangagwa had explained.

 

Amnesty International was critical of the 1980 amnesty. It argued that the reasoning put forward for the amnesty − that colonial abuses were part of the war effort − was a ‘serious distortion’ because the colonial State was ‘a system of institutionalised racial domination which depended on systematic and often legalised human rights violations for its maintenance… The Rhodesian security forces carried out many extrajudicial executions of prisoners, civilians or others not taking an active part in hostilities, acts which are prohibited under the international humanitarian law of armed conflict as well as international human rights standards.” The perpetrators knew what they were doing. As a State, Rhodesia had a duty to protect, which it deliberately breached.

 

What is clear is that, just like the whole LHA itself, the amnesty agreed at Lancaster was certainly a compromise driven by politics of expediency. Justice was sacrificed on the altar of stability. Yet, as we shall see, this top-down approach which grossly disregarded the views of victims and survivors would be repeated several times after independence. It gave existing and future members of the security establishment the reassurance that they could violate human rights and still be guaranteed protection of the State through amnesty laws. As Amnesty International wrote: “The amnesty for Rhodesian human rights violators was not by itself responsible for the continuation of the same abuses in independent Zimbabwe. However, it did provide the environment − and the means − for continuing human rights violations.”

 

Indeed, as Amnesty International correctly explains, the task of integrating the guerrilla armies and the Rhodesian security forces was made easier by the fact that both sides had a “shared military ethos − including the notion that they were beyond the reach of the law – [which] proved stronger than their previous differences.” The instrument of the amnesty facilitated that.

 

Indemnity for human rights violations

 

Another instrument, quite like the amnesty and which also planted the poisonous seed of impunity, was the indemnity legislation inherited from the colonial State. The Indemnity and Insurance Act was enacted in 1975 after victims of torture brought a number of claims against members the Rhodesian security forces. The legislation protected members of the Rhodesian security forces and ministers for acts committed in ‘good faith’ to protect the security of the State. The legislation also gave the Minister for Law and Order authority to terminate any actions for damages pending at the High Court. It also applied retrospectively, indemnifying perpetrators for acts committed since 21 December 1972, the date on which the second phase of the war commenced with the Rex Nhongo-led attack on Altena Farm at Centenary.

 

The indemnity legislation was effectively a licence to impunity. Members of the security forces could violate human rights without fear of civil or criminal prosecution. It allowed members of the security forces to commit atrocities, such as the bombing of refugees at Nyadzonia and Chimoio, knowing full well that they would be protected by the law.

 

Most notably, the indemnity laws continued after independence. As noted in a previous article, the ZANU number three in 1980, Edgra Tekere, successfully used the indemnity legislation when he was tried for the murder of Gerald Adams, a white farm manager who was killed in August 1980. The outcry in the wake of the acquittal caused the government to repeal the colonial legislation. But it was not long before it was brought back in the form of regulations under the Emergency Powers Act, which had also been inherited from the colonial State. The regulations were however declared invalid by the Supreme Court in the case of Granger v Minister of State in 1984. Denis Granger, a lawyer, had sued the State and won damages for wrongful arrest after he had been detained from the Central Intelligence Organization (CIO). However, as noted by the Lawyers Committee for Human Rights, the government did not bother to publicise the judgment, so that members of the security forces continued to act as before, believing that they still had protection of the legislation.

 

Overall, therefore, as this account has amply demonstrated, the new Zimbabwean State got off to a very bad start, partly because of the amnesty, the retention of human rights violators in senior positions, and the retention of indemnity laws for members of the security forces.

 

As noted by the Lawyers Committee for Human Rights in 1986: “Zimbabwe embarked upon its existence as an independent state by sending a clear message to its security forces that they would benefit from the same impunity enjoyed by their Rhodesian predecessors. Officers responsible for human rights violations had been amnestied without any investigation or accounting for their actions. Many were kept on in similar positions of authority.”

 

It is not surprising that Gukurahundi, which Mugabe had since admitted was a ‘moment of madness’, happened in the 1980s, with members of the security forces acting with wanton disregard for human rights in the Matabeleland and Midlands regions. It is not surprising, either, that after everything that had happened during this time, and even against the background of convictions for cold-blooded murder, the government was able to grant amnesty in 1988. What incentive was there for the violators to stop violating when they knew that, at the end of the day, they would be protected by the presidential amnesty?

 

International conspiracy of silence

 

An interesting observation in this early phase, however, is that there seemed to be a conspiracy of silence from the international community. According to Geoff Hill in his book What Happens After Mugabe?, the British high commissioner at the time, Sir Martin Ewans, said in a 2002 BBC documentary that the instruction was to steer clear of the issues in Matabeleland. “I think Matabeleland was a side issue. The real issues were much bigger. We were extremely interested that Zimbabwe should become a success story and we were doing our best to help Mugabe and his people to bring that about.”

 

In fact, despite the egregious violence of the 1980s, Zimbabwe remained the golden poster child of the region. The stars that were Mugabe and Zimbabwe were only eclipsed by the emergence of Nelson Mandela and South Africa from the dark shadow of apartheid. Zimbabwe went on to host the Commonwealth Heads of Government Meeting (CHOGM) in 1991, a prestigious event in the Commonwealth universe. The Queen came to Harare, streets were cleaned and red carpets were laid. In 1994, Mugabe was invited to Britain and there he was awarded an honorary knighthood. Edinburgh University awarded him an honorary doctorate. All this against the background of the dark 1980s. Both honours were withdrawn a decade later after Mugabe presided over the violent land occupations of white-owned farms, giving rise to charges of Western hypocrisy: he had been feted when the blacks were slaughtering each other, but now that his violence was affecting white farmers, he was a villain, critics said.

 

The point is that the culture of impunity in Zimbabwe, which the international community knew about in the 1980s, was allowed to go on without condemnation. Yet what became Zimbabwe’s culture of violence had roots in the early years of independence, beginning, of course, with the founding of the new State in 1890and white-washed at Lancaster House via the LHA, an agreement which was. The LHA was built on a foundation of deliberate historical amnesia. Its ignore and move on approach set a debilitating precedent for Zimbabwe, one that has been followed with religious zeal after independence after every episode of political violence.

 

2000 Amnesty

 

In 2000, President Mugabe issued Clemency Order No. 1 of 2000, which granted ‘free pardon’ to ‘every person liable to criminal prosecution for any politically-motivated crime committed during the period 1 January 2000 to 31 July 2000’.

 

This was a general amnesty for all political crimes, including torture and kidnappings which had been deliberately committed by ZANU-PF supporters, the youth militia and State security forces. The only exceptions were rape, murder and fraud. Still, however, there was no serious effort to prosecute anyone for these serious offences. Murders had been committed during the violent land occupations and the June 2000 general elections. Much of the violence had flared up after the rejection of the Constitutional Draft in February 2000, which the government was promoting. It was seen as a defeat of the government, a circumstance which ironically woke the ruling party from its slumber, realising that it was in danger of losing the general elections. It was in that context that a violent election campaign was launched, mainly targeting opposition supporters. It was clear that the amnesty was designed to give protection to those who had waged this campaign in favour of the government and the ruling party.

 

A good example of the nefarious effect of this amnesty is reflected in the criminal case of the State v Dube decided at the Bulawayo High Court on 2 March 2006. In this case, the accused persons had kidnapped and assaulted a political opponent, leading to the victim’s death during the election campaign in 2000. They were charged with culpable homicide and convicted. They then approached the High Court challenged the conviction by invoking the amnesty, pleading that they had committed a politically motivated crime which was covered by the Clemency Order. Since culpable homicide was covered by the Clemency Order, the court set aside the conviction and the perpetrators were released. These were perpetrators of political violence, who had killed another person, but they were walking free from court simply because of an amnesty issued by the President. They were not denying their crime of killing another man, but they found refuge in an a presidential amnesty. What incentive was there for them not to kill again in future?

 

The Zimbabwe Human Rights NGO Forum, a local civil society group, brought a case against Zimbabwe at the African Commission on Human and People’s Rights (No. 245/2002) challenging the legality of the Clemency Order No. 1 of 2000. The Commission found that the Clemency Order was a violation of the African Charter on Human and People’s Rights. It found that the Zimbabwean state had not only encouraged impunity by excusing perpetrators of politically motivated violence, but that it had also foreclosed any options/recourse that victims might want to take against perpetrators.

 

There was a further Clemency Order No. 1 of 2002, which also covered acts of violence in the run-up to the Presidential election of that year. It’s worth noting that issuing amnesties after an election period has almost become a tradition. Clemency Order No. 1 of 1995 was also issued after the general elections in that year.

 

As noted by former Chief Justice of Zimbabwe, Anthony Gubbay, in a 2009 speech: “The effect of the amnesty created the belief that political violence will be condoned and those responsible for it are above the law, and will go unpunished. This is extremely dangerous. It sends the wrong signal, suggesting that election related violence will be tolerated – a bad precedent for future elections.”

 

2008 Amnesty

 

It should, therefore, come as no surprise that the period between March 29 and June 27 2008 was marred by unprecedented levels of state-sponsored violence, largely against members of the opposition party, the MDC-T. In a detailed report entitled Bullets for Each of You: State-Sponsored Violence since Zimbabwe’s March 29 Elections in June 2008, Human Rights Watch documented the gory details of the ‘widespread and systematic abuses that led to the killing of up to 200 people, the beating and torture of 5,000 more, and the displacement of about 36,000 people’. It was one of the darkest periods in Zimbabwe’s election history. Perpetrators acted with impunity because they assurance of indemnity by virtue of the amnesty rules or simply the refusal by law enforcement agencies to arrest or prosecute.

 

Indeed, true to form, President Mugabe issued Clemency Order No. 1 of 2008 under General Notice 85A/2008 which covered the violent period before and after the March 29 poll, up to June 16 2008. It was presented by the Minister of Justice, Patrick Chinamasa, as a measure designed to ease over-crowding in the prisons, but actually its chief purpose was to release perpetrators of political violence. At the time, the MDC-T complained of selective application of the amnesty, which they said only benefitted ZANU PF members but not their own supporters.

What becomes apparent from this analysis of amnesties since 1980 is that there is a pattern of an amnesty after almost each election – which presents a clear risk of excusing and exonerating perpetrators of violence. The release of prisoners after an election might appear like a sign of goodwill by a new government, but these appearances obscure the reality that it is an instrument used to protect perpetrators of violence.

 

GPA and GNU inaction

 

Perhaps one of the worst failings of the GNU between 2008 and 2013 was to walk the same path of forced amnesia first taken in 1980. The GNU established an Organ for National Healing and Reconciliation, which included three ministers from each of the GPA parties. It was another justice for peace trade-off, which left victims and survivors in the lurch. It meant, once again, that the new 2008 victims and survivors were never consulted about their experiences. Just like the victims and survivors of colonial atrocities and the Gukurahundi atrocities. Instead, a top-down approach, reinforced by amnesty laws, was imposed upon them.

 

What was worse though was that this inaction reflected badly upon the former opposition parties that were now in government. It suggested to the victims and survivors that the opposition no longer cared; that it had joined the racket. And, more importantly, that even if opposition members cared, they had no power. This powerlessness reflected badly on the opposition because it raised the levels of fear among ordinary people. They asked: if the MDCs could not protect us and attend to our grievances while in government, how can they protect us against perpetrators of violence during elections? The only insurance they could have for themselves was to behave and vote correctly, which meant following the ZANU PF line. Doing otherwise would leave them exposed to violence at a time when the MDCs had shown themselves to be powerless in the circumstances. The fact that many perpetrators continued to live side by side with victims and survivors has only made it worse.

 

Just as human rights violators were retained after the collapse of the Rhodesian State, many senior officers in the security establishment have been handsomely rewarded even after periods of human rights violations, such as the 2008 violence. What happened in 1980 has been replicated in the post-independence period. This demotivated voters and diminished their hopes, which was consequently reflected in the conduct and outcome of the 2013 elections.

For its part, SADC were less concerned with justice for victims and survivors than it was with stability in Zimbabwe. The views of President Mbeki, for long the mediator, suggest that his immediate concern was the protection of the Zimbabwean State against Western interference. Issues of democracy, and still less justice for the egregious violence, were not a priority. If the accusation against Lord Carrington is that he was more concerned with protecting white minority interests at Lancaster House in 1979, then in 2008, President Mbeki seems to have been more concerned with protecting President Mugabe and ZANU PF, whom he believed were under unfair attack from the West. In both cases, the issue of justice for victims and survivors of violence suffered. Worse though, both ZANU PF after winning power in 1980 and the MDCs after joining government in 2009, seemed hamstrung and did little to push for justice or challenge the legality of the amnesties that had been granted.

 

2013 Constitution and the Amnesty Powers

 

A few words must be said about efforts to curb the abuse of the presidential pardon during the making of the new Constitution. Mindful of the fact that this power has been abused, as discussed in this article, the MDC parties were keen to create mechanisms to qualify the President’s power to issue amnesties. The ZANU PF delegation, on the other hand, was unimpressed by the proposals for reform, believing every effort to reform the Presidency was an attack on their leader.

 

The more important proposition was that the President’s power to grant an amnesty should be subject to checks and balances through a mandatory requirement for consultation with another constitutional organ. Therefore, it was proposed that there would be an Advisory Committee on the Power of Mercy, independent of the President. To promote the independence of the Advisory Committee, the majority of its members would have to be approved by the Senate. The net effect, under this system, was that the exercise of the power of mercy by the President would be subject to a system of checks and balances provided by the Advisory Committee. The President would not act alone, but would have to consult with and act on the recommendations of this independent body. The Advisory Committee would play a key role in the process and minimise the abuse of this power.

 

This proposition was agreed to initially, although this was after much resistance from the ZANU PF delegation. The first drafts of the constitution reflect this body. However, I later discovered that this body had been dropped. By then, however, I had left the constitution-making process. Instead of the Advisory Committee, the President is now only required to act in terms of s. 112, ‘after consultation with the Cabinet’. Unlike the Advisory Committee, the majority of whose members had to be approved by the Senate, members of Cabinet are appointed solely by the President, which means Cabinet does not have the same level of independence. Therefore, the aspect of checks and balances which we had sought to include was lost. While at least there is a constitutional role for Cabinet in this process, and there is scope for checks and balances if Cabinet is comprised of independent-minded persons, it is most regrettable that the proposition of an independent Advisory Committee was not carried through to the end. I was never able to find out at what stage this provision was changed.

 

We now have a National Peace and Reconciliation Commission (NPRC) which is supposed to be an independent body in terms of the constitution. A bill is currently being debated in Parliament. I shall analyse it next week. For now, it is enough to say it is an atrocious bill which makes the NPRC a puppet of the Minister. But more important for this article, the NPRC will have to figure out a way of dealing with all those persons who are currently protected by the amnesties issued over the years.

 

Conclusion

 

The purpose of this article is to demonstrate the genealogy of the culture of impunity in Zimbabwe and the role of presidential amnesty and pardon has in this regard. It is to demonstrate that the current architecture of political violence in Zimbabwe has to be understood through an historical analysis of the State licencing violence and instruments of violence over the years. I have argued that such an exercise requires us to go back to the beginning: the State of Zimbabwe and its predecessor, Rhodesia, were founded upon acts of gross violence. This violence was condoned and accepted on successive occasions and justified on the basis of conquest during colonial times; and on the basis of trading off justice for peace and stability at and after independence. It is hardly surprising that the reluctance to do anything about atrocities post-1980 is almost always justified on the grounds that nothing was ever done about colonial atrocities before 1980. In this regard, the moral authority of the international community, which tacitly endorsed the Lancaster House amnesty which was declared in 1980, is severely compromised.

 

Therefore, there are a number of ways in which political violence has become institutionalised:

  • Amnesties in the form of clemency orders and pardons protect perpetrators of political violence. They have almost always been used after elections or periods of human rights violations

  • The retention and promotion of violence perpetrators, which makes violence a relevant credential for advancement

  • The retention of the human rights violators in 1980 meant methods of training, policing and other security services were inherited and strengthened as they have been passed on from one generation of security forces to the next

  • Failure to deal with political violence and its perpetrators means that even if there is no actual violence, members of the public, especially in rural communities, now self-regulate, including by self-censorship and voting ‘as expected’. As a result, perhaps without knowing it, the victims and survivors have become participants in sustaining the architecture of violence.

I conclude by pointing out an often underplayed issue: when people talk about security sector reform, their immediate thought is that it involves the removal of current security sector leadership. But this would be a very superficial approach to the problem. As I have endeavoured to show in this article, the architecture of violence is broad, wide-ranging and has many facets. It is not a simple matter of replacing current leaders with a new crop. A new crop from where? It will come from the same ranks, trained in the same methods, accustomed to the same ways, and with the same ethos. The challenge is bigger than most people imagine. But sadly for politicians, rhetoric takes precedence over detailed thoughts and consideration.

 

It is the great tragedy of Africa decolonisation was accompanied by a softly-softy approach to human rights violations of the colonial era. When the Second World War ended in 1945, perpetrators of human rights violations in NAZI Germany were hunted down and tried at Nuremburg. To this day, no matter how old they might be, they are still be hunted down to be brought to justice. For Africa, reconciliation and forgiveness were encouraged, but not justice. But this use of amnesties planted a poisonous seed. Today, if you challenge human rights violators in Africa, they will plead, as if it were a credible defence, that colonial crimes were never prosecuted. The amnesty extended at the end of colonialism might have seemed a good idea for those few who were saced from prosecution, but the biggest beneficiaries are those who learnt they could rely on it even if they violated human rights. And the biggest victims are the ordinary people.

 

wamagaisa@gmail.com

 

Not to be reproduced without the author’s express permission. If you would like to communicate, please write to: wamagaisa@gmail.com

 

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