The Zimbabwe Human Rights NGO Forum wishes to correct certain erroneous impressions that may have created by recent statements in the Herald and on ZBC.
Mr Terence Hussein, of Hussein, Ranchod and Company, who has represented Zanu (PF) in many of the election petitions currently before the High Court, has alleged that the report issued by the Forum – “Who is Responsible?” – is a fabrication. He alleges that the report was dismissed as irrelevant and unreliable by High Court judges, and that the report contains factual allegations that were contradicted in the evidence given during the High Court proceedings.
The Daily News report contained one factual inaccuracy, and that is in the title of the Report. The details cited by the Daily News article are contained in the report – “Who was Responsible?” – published in July 2001. The article however erroneously refers to the report as “Who is Responsible?”, which was a report issued by the Forum on 20 June 2000 . This may have led to confusion on the part of Mr Hussein who appears to be referring to “Who is Responsible?” and not “Who was Responsible?”
The first report was based upon the statements taken from all the cases dealt with by the Forum in the pre-election period in 2000. The second report was based on a larger set of statements concerning to the pre-election period from those seen both before and after the pre-election period. The second report is based upon a much larger number of cases, and also contains details about the alleged perpetrators of the organised violence and torture. Both these reports refer to a very large number of incidents of alleged human rights violations. Both these reports were issued in order to draw attention to matters of national concern.
Lawyers acting for the MDC sought to introduce in evidence the 2000 report, together with various other reports, including the reports of the EU Observation Mission, the Commonwealth Observer Group, the International Rehabilitation Council for Torture Victims (IRCT), and Amnesty International. All these reports were accepted into the court record by the judges, but the judges made it clear that the petitioners would be unable to rely upon them unless the compilers of the reports testified to the reports and could be cross-examined thereon. They did not reject “the report in its entirety”. We do not know of a single case on record where the judges made critical comments about the 2000 report along the lines suggested by Mr Hussein. Indeed it would be surprising if they had made these comments given the fact that the report had not been entered in evidence. On the other hand in the Marondera East petition, the IRCT report was actually entered into evidence through the testimony of Dr Inge Genefke, Honorary Secretary- General of the IRCT.
Mr Hussein is quoted as having commented “most of the things contained in the report contradicted evidence given before the courts.” Again this is not accurate. Mr Hussein makes reference to only two of a very large number of incidents related in both the first and the second report. More than one witness made statements about each of these incidents, as can be seen in the second report. The cases in which the two incidents have been referred to are sub judice and awaiting decisions from the respective judges. It is misleading for Mr Hussein and the Herald to suggest that the court has not accepted the veracity of these witness statements. Only when judgments are given in these cases will it be possible to determine whether the court believed the witnesses or not.
It is true that in some cases part of the testimony given in court is not consistent with the statements previously made by the witnesses to the Forum. With such a large number of alleged violations it would indeed be surprising if there were to be no contradictions at all. One possible reason for some of the contradictions is that the people giving testimony were seriously psychologically disturbed as a result of suffering gross human rights violations they allege they suffered. The question that the courts must decide is whether these contradictions lead to a conclusion that they are lying or the contradictions are the product of mental disorder arising from trauma. Here the testimony of other witnesses will be crucial in establishing the truth.
In the cases heard by the courts so far many of the allegations of human rights violations contained in the reports and testified to in court have been accepted by the courts as being credible. So far the applicants have succeeded in four election petitions, with the judges in these cases ruling that the violence had seriously prejudiced the outcome of the election results. Additionally in the judgment in the Buhera North case the judge called for action to be taken by the authorities concerning the summary execution of Tichaona Chiminya and Talent Mabika, a case referred to in detail in both reports.
Virtually all the persons whose statements appear in the reports of the Forum in respect of the general election and the election petitions made complaints to the police about their torture and ill-treatment. They have mostly been denied redress mainly due to the Clemency Order of October 2000. Furthermore, almost none of those denied clemency have either been arrested and tried.
When a State declares impunity in situations where it is accused of gross human rights violations, the general presumption of innocence must shift to a presumption of guilt. If this were not so, the State would be happy for the law to take its usual course, and for all allegations of serious crimes to be investigated and for charges to be brought where the presumption of innocence seemed unjustified.
The Human Rights Forum does not make unsupported statements, but rather bases its statements on reliable evidence that we believe is likely to stand up in court. When previously the Human Rights Forum documented the gross human rights violations committed during the Food Riots in 1998, Government categorically dismissed these allegations. However, in a series of civil suits brought by the Forum on behalf of those victims, the court accepted the evidence of the claimants and granted them damages.