FROM the Nuremburg and Tokyo trials after World War II, the International Criminal Tribunal on the former Yugoslavia, the Truth and Reconciliation Commission hearings in South Africa, to the International Criminal Tribunal on Rwanda, human rights trials have been the major policy innovation for more than half a century designed to halt massive rights violations.
Report by Pedzisai Ruhanya, Director, Zimbabwe Democracy Institute
Prime Minister Morgan Tsvangirai, who is also MDC-T leader, has for some time now without elucidation, been saying that if he assumes power he would pardon military generals accused of human rights transgressions.
What has been missing from his pronouncements though is the public policy guidelines on how that will be executed. In other words, the MDC-T policy on transitional justice seems opaque or non-existent. In the absence of that policy blueprint it becomes difficult to appreciate what informs his remarks on such important policy issues.
Assuming his pronouncements on the need to pardon the brutal military generals who dabble in politics and in the process violate the constitution and laws of the land amount to his party’s policy position, then it is really unfortunate given the levels of impunity associated with the state security apparatus.
Given the massive human rights violations associated with President Robert Mugabe’s three-decade authoritarian rule, Zimbabwe needs human rights trials in order to deter future violations.
The main justification for such trials is that punishment is necessary to prevent human rights violations as the country grapples with a violent past and the urgent need to change and transit to a democratic dispensation.
Given successful human rights trials in post-war Germany and Europe in general, Yugoslavia, Rwanda and South Africa, human rights prosecutions during and after the transition can lead to improvements in rights protection.
The justification for human rights trials is rarely merely retributive as some might argue. The purpose is not only to punish perpetrators, but to use the penalty to deter future violations.
The deterrence hypothesis says increases in the probability or likelihood of punishment should diminish repression if there are trials against human rights violators.
Studies in Europe, South America and parts of Africa such as Rwanda and South Africa show that in countries going through transition, where human rights trials took place, there is less repression than countries without trials.
Consistent with the deterrence argument, it has also been proven countries with more accumulated years of trials after transition are less repressive with fewer accumulated years of trials.
In addition, studies have shown countries surrounded by more neighbours with transitional trials are less repressive, which suggests a deterrence impact across borders. It is also argued truth commissions are associated with improvements in human rights practices.
These postulations suggest both normative pressures and material punishment are at work in transitional justice, and that the combination of the two, as in the case of human rights trials or hearings combined with truth commissions, is more effective than either pure punishment or pure normative pressure.
However, realist scholars argue human rights trials do not deter future violations and that in some circumstances they actually lead to an increase in repression. The threat of prosecution could cause powerful dictators or insurgents to entrench themselves in power rather than negotiate a transition from authoritarianism.
For instance, in the mid-1980s, scholars of transitions to democracy also generally concluded that trials for past human rights violations would undermine new democracies, and thus not have a deterrent effect on future human rights violations.
However, human rights trials are required in Zimbabwe because violators, including security forces, war veterans and militias, believe they are immune from legal responsibility for their actions. They are fortified in this belief by amnesties granted to them by the government, in particular an amnesty granted in October 2000 which pardoned all politically-motivated crimes committed in the run-up to that year’s elections, except crimes of murder, rape and fraud.
This was a retrogressive policy by Mugabe’s government because it encourages impunity and denies justice to the victims of human rights violations. Tsvangirai should not send signals which encourage further human rights violations as the country prepares for elections.
Impunity is failure in law and practice to hold perpetrators of human rights violations accountable mainly through the justice system. Zimbabwe has been a victim of both de facto and de jure impunity which has led to egregious abuses from the Matabeleland and Midlands massacres in the 1980s, the 1985 retributions by Zanu PF supporters against Zapu followers after general elections, the 1990 elections abuses to the infringements since 2000, particularly the 2008 election atrocities.
Perpetrators of all these outrages have largely not been prosecuted. Resultantly, this has led to citizens losing faith in government, security forces and criminal justice system. It is therefore a matter of serious public interest for the MDC-T to clearly state its public policy on transitional justice.
Perpetrators of past human rights crimes enjoyed de facto immunity from prosecution since, more often than not, the police turn a blind eye to their activities. This type of impunity takes place when the state, through its security apparatus and justice system, fails to prosecute individuals who violate human rights as a result of lack of capacity, but in the Zimbabwean case its due to lack of political will.
The situation in Zimbabwe is worsened by de jure impunity where laws or regulations allowing people to get away with committing crimes strengthen the impact of de facto immunity by making it difficult or impossible to bring to the justice system perpetrators of human rights violations.
The perpetrators’ belief in their immunity is encouraged and re-enforced by political leaders’ words and deeds.
International human rights treaties, to which Zimbabwe is party, impose on the country the obligation to stop and prevent gross human rights violations, investigate, prosecute and remedy injustices and abuse. Victims of human rights violations have a right to justice and reparations from the government.
That is what Tsvangirai and others must always remember when they talk about human rights violations and transitional justice.
The African Charter on Human and People’s Rights places obligations on states to ensure protection of the rights enunciated in the charter and for individuals to have human rights violations against them presided over by competent national institutions such as the courts.
Equally, the International Covenant on Civil and Political Rights (ICCPR), to which Zimbabwe is party, requires states to adopt measures including the legal route to protect the fundamental rights of citizens. The UN Human Rights Committee, an independent body made up of experts whose role is to monitor compliance with the ICCPR, has observed that a state’s failure to investigate and bring perpetrators to justice especially with respect to crimes such as killings, torture and ill-treatment, is considered a violation of international law.
Zimbabwe has violated its state obligations under international human rights and humanitarian laws. As such perpetrators of human rights abuses must be held to account.
Ruhanya is a PhD candidate and director of the Zimbabwe Democracy Institute.