Position on the temporal jurisdiction of the Zimbabwe Human Rights Commission
11 July 2012
Zimbabwe Lawyers for Human Rights (ZLHR) continues to follow closely, and
with interest, the progress relating to the operationalisation of the
Zimbabwe Human Rights Commission (ZHRC).
ZLHR commends the renewed commitment by the Minister of Justice & Legal
Affairs, and Parliament, to finalise the legislation required to make the
ZHRC functional. This is long overdue. It is also in line with
recommendations to ensure that the ZHRC can commence its operations as soon
as possible, as accepted by the Government of Zimbabwe during the United
Nations (UN) Human Rights Council’s Universal Periodic Review of Zimbabwe
held last year, and as strongly expressed by UN High Commissioner for Human
Rights, Navi Pillay, during her visit to Zimbabwe earlier this year.
The importance of having an operational commission to deal with protection
of human rights cannot be over-emphasised, particularly in a society where
violations of fundamental rights and freedoms remain prevalent. The urgency
of having a functional mechanism to investigate and deal with violations is
further heightened where elections loom, and bearing in mind previous trends
in Zimbabwe where such violations escalate in the run-up to, and following,
key electoral and other political processes.
So too, Zimbabwe remains a country with immense challenges relating to the
continuing culture of impunity for perpetrators of human rights violations.
Without providing mechanisms to investigate and deal with past human rights
violations – whether through trials, national enquiries, reparations,
memorialisation, amongst other means – our society will never be able to
escape the vicious cycle of impunity or ensure non-recurrence of such
heinous crimes.
There has been much debate and speculation in relation to the emotive issue
of the temporal jurisdiction of the ZHRC, which has been set in the ZHRC
Bill as 13 February 2009 – a date agreed by the three negotiating political
parties.
ZLHR has also noted the intention of the government to establish a national
mechanism that will deal with issues relating to post-conflict justice,
healing and reconciliation separately from the ZHRC, although precise
details as to the ambit of such a mechanism remain sparse. This accords with
regional and continental good practice, where human rights institutions and
truth/justice/reconciliation commissions have traditionally been separate
mechanisms.
ZLHR is of the considered view that there is urgent need to approve the
legislation that will operationalise the ZHRC and allow it to substantively
commence its functions. It is a critical institution in the difficult battle
to reduce, stop and/or prevent ongoing and future human rights violations in
Zimbabwe. It must be fully functional in order to play its role as elections
approach. Resistance in relation to the issue of temporal jurisdiction is
delaying such operationalisation and ensuring that the ZHRC cannot act on
any ongoing and future human rights violations.
At the same time the political parties in government must, with urgency and
guided by the recommendations made by survivors of past human rights
violations, establish an independent mechanism to deal with issues relating
to past human rights violations and atrocities. The mandate of this
independent mechanism must be to deal with all past human rights violations
that have occurred in Zimbabwe, including the pre-Independence era, as well
as the post-Independence atrocities of Gukurahundi, Operation Murambatsvina,
and electoral-related crimes, amongst others.
It is the role of government to ensure the speedy establishment of such an
independent and credible mechanism. However political parties, trade unions,
the broad civil society, non-governmental organisations, and survivors of
violations and their families, must also ensure that they play their role in
ensuring that sufficient pressure is brought to bear on the government to
make this a reality and to do so with urgency.
Further, and for the avoidance of any doubt, it must be clearly understood
and stressed that crimes committed in the past remain crimes, whether or not
a national human rights institution or other mechanism exists to deal with
past human rights violations. Government, political players and other
perpetrators of violations must disabuse themselves of the notion that the
creation of such mechanisms removes responsibility and punishment for such
crimes.
There is a constitutional and legal obligation on the police, the
prosecutorial authorities and the judiciary to respectively investigate and
arrest, prosecute, and punish convicted perpetrators. ZLHR expects these
constitutional duties to be carried out without fear or favour, and will
continue to exercise its watchdog role in this regard.
