MARCH 10 began on a sombre note for me. At the Dutch Reformed Church along Samora Machel Avenue in Harare, we marked five years since the disappearance of pro-democracy campaigner Itai Dzamara.
Itai’s wife, Shefra, spoke such moving and powerful words. His children were there. One of my colleagues later told me he had to leave the room for a while. It was moving. Bishop Ancelimo Magaya preached that truth, justice and peace are inseparable.
Rosely Hanzi of the Zimbabwe Lawyers for Human Rights (ZLHR) spoke of how lawyers obtained a High Court judgment ordering the authorities to investigate and provide periodic reports. The judgment gathers dust today. Itai was abducted in the Robert Mugabe era. Today’s rulers assure all that we are in a “new dispensation”.
No sooner had the words been spoken than the long-endured ghost of abductions and torture reared its ugly head again. This time, the victims are Movement for Democratic Change (MDC) Alliance MP Joana Mamombe and Youth Assembly leaders Cecelia Chimbiri and Netsai Marova.
What the three endured constitutes the most egregious suffering a human being can experience, as proscribed by the constitution: unlawful and arbitrary detention (Section 49), infringement of human dignity (Section 51), violation of bodily and psychological integrity — including sexual assault (Section 52), torture and cruel, inhuman and degrading treatment — including being forced to eat and drink human excreta and urine (Section 53) and violation of equal protection of the law (Section 56).
This followed an arrest for exercising their constitutional rights to speak out by means of a demonstration in Harare’s Warren Park suburb on May 13.
While those arrested for breaking the law must face due process, a search at several police stations across the capital by ZLHR failed to locate the trio. The three were only found in the late hours of May 14, dumped in Musana communal lands in Bindura South, and with various injuries consistent with aggravated assault and torture.
The Ministry of Information, Publicity and Broadcasting Services, through its Permanent Secretary, Nick Mangwana, was to issue a statement on May 15 implying that the three went missing while police were looking for them to interview them for the “illegal demonstration in Warren Park”.
The statement did not mention that the trio had been arrested, as earlier reported in the Herald newspaper on May 13, in which police national spokesperson Assistant Commissioner Paul Nyathi was quoted as confirming the arrest. Indeed, the trio stated that they were initially taken to Harare Central Police Station upon arrest. A series of three tweets by the Zimbabwe Republic Police (ZRP) on May 14 was to state that the trio was not in police custody.
Bizarrely, Nyathi later told a press conference in the presence of Home Affairs minister Kazembe Kazembe that it was actually untrue that he had confirmed the arrest to the Herald and the Daily News. It is clear that a cogent explanation is needed on how and why the trio left police custody. Similarly, explanation is needed on the contradictory statements issued by the police.
Everyone is justified to worry for their security and safety if people in police custody can go missing. The state is duty bound to account for all its citizens and to protect and ensure their security and well-being, even if under lawful detention. No citizen should live in fear of extra-legal treatment, either at the hands of the state or non-state actors.
Under our constitution, enforced disappearance is unlawful, and all people are accorded equal protection and benefit of the law. Individuals should not be placed out of reach of the protection of the law, including through arbitrarily detention.
Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearances defines an enforced disappearance as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. For unclear reasons, our government has refused to subscribe Zimbabwe to this convention.
Covid-19 regulations and their enforcement do not alter things. In fact, the UN Working Group on Arbitrary Detention recently in Deliberation No. 11 on the prevention of arbitrary deprivation of liberty in the context of public health emergencies, states that emergency powers must not be used to deprive particular groups or individuals of liberty. Specifically, detention must not be used to silence the work of human rights defenders, journalists, members of the political opposition or any person expressing dissent.
For whatever reason, and under whatever circumstance, no one should be abducted or tortured. The law provides for the mechanisms through which even those who break the law are arrested, tried and, if found guilty, treated. The judicial process remains the arena for findings of guilt and meting out punishment. This is due process.
Sexual assault continues to be used as a weapon of abuse and torture. Whether one has committed an offence under the country’s laws or not, sexual assault can never be an appropriate response. Penetration by objects in terms of our law is sexual assault as opposed to rape. But more progressive nations, including South Africa, have since designated such conduct as rape in their laws.
Once a culture of disregard of the law and human rights takes root, and a cycle of violence and abuse of due process is established, no one is safe, including perpetrators.
It is folly for anyone to derive pleasure in ascribing the heinous crime to “self-abduction” and other shocking explanations and justifications, and to revel in a false sense of security. The culture of violence must be nipped in the bud. It is inexplicable to apportion blame to the victims in whatever manner or form.
Similarly, arguments that a “third force” may be behind the abductions do not absolve government of its responsibility of protecting and ensuring the safety and security of citizens. Whatever that “third force” may be, government must unmask it. Failure to do so is abrogation of duty, yet the highest duty of government remains protecting the life, security and well-being of its citizens.
On the one side, it has become abundantly clear why civil society has for so long been calling on the government to ratify and domesticate the International Convention for the Protection of All Persons from Enforced Disappearances, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Our Criminal Law (Codification and Reform) Act also needs reform, to include a standalone offence of torture, accompanied by severe consequences.
On the other side, government and its apparatus must mend their ways and abide by the dictates of the law. The time is now for the government to categorically state its repugnance towards such savage and barbaric conduct by unmasking and bringing perpetrators to justice.
If the government shares the same standards of law abidance that it demands of its citizens, it is critical that the government condemns the violations both in speech and deed.
Episodes such as these simply serve to remind of impunity and the unjust past Zimbabweans have long suffered. If our leaders are sincere in charting a path to a truly new dispensation, the strongest condemnation of these acts is the adoption of concrete and meaningful steps towards ensuring justice for all.
What human rights groups in Zimbabwe have documented shows that abductions and torture are systematically used. A pattern is apparent, with people who are vocal against misgovernance, mostly human rights activists and opposition political leaders, falling victim. The abductions and torture are meant to send a message and instil fear.
While others survive to tell the tale, others are not so lucky. Some like Patrick Nabanyana, Rashiwe Guzha and Itai Dzamara are still missing. Abductions and torture are not self-inflicted. There are instigators, there are masterminds, there are those who authorise, and there are those who execute. These perpetrators live among us and, unless justice prevails, our collective security and safety are at risk.
Kika is a human rights lawyer and serves as programmes co-ordinator at the Zimbabwe Human Rights NGO Forum.