ATTACKING THE LAST LINE OF DEFENCE:

The incidents – which have ranged from denial of entry into police stations, denial of access to clients, verbal and physical attacks on lawyers and prosecutors attending police stations, pointing of weapons at lawyers, surveillance of lawyers, their homes and activities, arrest and detention of lawyers, threats and attacks against the families of lawyers, death threats, and public physical assaults on lawyers amounting to torture, cruel, inhuman and degrading treatment – have been well documented and are a matter of public record.

However, in recent weeks, the operating environment for members of the legal profession, more particularly human rights lawyers, has been shrunk to the extent that it is becoming almost impossible for them, as officers of the court, to perform their professional duties and functions.

On Friday 30 May 2008, Zimbabwe Lawyers for Human Rights (ZLHR) was advised by its network partner, the Southern Africa Litigation Centre (SALC), that it had received Mr. Andrew Makoni in its offices in Johannesburg, South Africa. He had fled the country after receiving credible information to the effect that he was on a list of human rights lawyers targeted for imminent assassination for representing members of the Movement for Democratic Change (MDC). This information had allegedly been independently verified from two separate sources to two other lawyers, and has also been publicized by the African Bar Associations (incorporating the SADC Lawyers’ Association, the East African Law Society and the West African Bar Associations, as well as the global legal body, the International Bar Association). He, or other human rights lawyers, were to be made an example to dissuade other lawyers from taking up the defence of targeted human rights defenders in the run-up to the presidential election run-off, and in the face of escalating human rights violations in several provinces.

SALC further advised that it had addressed urgent letters to the Minister of Justice, Legal & Parliamentary Affairs, the Commissioner-General of Police, the Director of the Central Intelligence Organization, and the Acting Attorney-General, setting out the allegations, reminding them of their constitutional obligations to protect lawyers, and requesting a response and action to protect all lawyers in the country. SALC has not yet received a response. Mr. Makoni represents a wide range of human rights defenders, with leaders and members of the MDC forming the foundation of his legal practice.

A week later, reports reached ZLHR that human rights lawyer, Mr. Harrison Nkomo, had also been forced to leave the country after receiving the same information and believing that his life was under threat. He is also currently reported to be in South Africa. Mr. Nkomo represents media practitioners as well as leaders and members of the MDC.

On 9 June 2008, ZLHR was advised that various individuals had gathered around the vehicle of Mr. Alec Muchadehama outside his legal practice in Harare, and were waiting for him to emerge from his office. Vehicles were parked at the exits of the building, as well as outside his home. Realizing that these were not ordinary police officers sent to arrest him, he immediately went into hiding. He, too, represents a significant number of human rights defenders, including MDC leaders and members, and assorted civil society organizations, including the National Constitutional Assembly, the Zimbabwe Congress of Trade Unions, and the Christian Alliance (whose case he was attending when his office and home were surrounded).

These are the most recent examples of a deeply disturbing clampdown on the legal profession, but are not the only cases to have been reported recently to ZLHR. Lawyers who have left the jurisdiction have also been reported to have alleged that mass arrests are being planned in the final weeks before the election run-off, and that human rights lawyers are considered as being a barrier to ensuring that targeted individuals remain in custody while the election is ongoing.

The Constitution of Zimbabwe in its Declaration of Rights, section 13(3), guarantees a person who is arrested or detained the right to obtain and instruct without delay a legal representative of his own choice and hold communication with him. The African Charter on Human and Peoples’ Rights (to which Zimbabwe is a State Party), and the African Union’s Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa (the Principles and Guidelines), both reaffirm these rights.

The Principles and Guidelines further stipulate that every accused person has the right to an effective defence and representation, and that the independence of lawyers shall be guaranteed. In particular, the state is obliged to ensure that lawyers:

1.    are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;

2.    are able to travel and to consult with their clients freely both within their own country and abroad;

3.    shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics

Lawyers also shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a judicial body or other legal or administrative authority, and shall not be identified with their clients or their clients’ cause as a result of discharging their functions (our emphasis). Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

Similar safeguards have been laid out in various United Nations (UN) instruments (to which Zimbabwe is a State Party) and expanded particularly in the UN Basic Principles on the Role of Lawyers, of which the state is well aware as a member of the UN.

Zimbabwe Lawyers for Human Rights (ZLHR) wishes to warn of the dire consequences ahead for human rights defenders, civic organizations and legitimate political party leaders and members as a result of the clampdown on lawyers. Such targeting of lawyers – even the mere allegation that there exists a list of lawyers for elimination – has a chilling effect on all members of the legal profession and, by implication, on the affected individuals whose rights they seek to protect.

We urge our members to remain committed to the representation of all human rights defenders, no matter their political persuasion, in compliance with their constitutional obligations. At the same time, we urge them to exercise vigilance and extreme caution in relation to their security, and to immediately report all threats of attack and/or actual attacks to the responsible authorities, to the Law Society of Zimbabwe and to ZLHR, as well as SADC diplomatic representatives and regional observers in Zimbabwe.

ZLHR further issues an urgent call for the following, as a matter of extreme urgency:

1.    An immediate cessation by members of the police, army and central intelligence and/or other individuals or organs acting on their behalf or with their knowledge or acquiescence, of plans to commit acts and/or ongoing acts of intimidation, threat, attack, abduction (enforced disappearance) and/or extra-judicial execution of members of the legal profession, their families, or work colleagues.

2.    That the Minister of Justice, Legal & Parliamentary Affairs, the Commissioner-General of Police, the Director of the Central Intelligence Organization, and the Acting Attorney General provide a public undertaking that all members of the legal profession will be properly protected by the authorities in  compliance with their constitutional, regional and international law obligations, and will be allowed to continue representing all and any clients who call upon their services without fear or favour.

3.    That the authorities respond immediately to the claims made by SALC, other regional and international law bodies, and affected human rights lawyers and advise of what action is being taken to ensure that members of the legal profession are guaranteed their constitutional rights, including the right to life, and safety and security of their person.    

4.    That regional observer missions currently in the country, and those following, urgently take up this grave matter with the relevant authorities and provide public assurances and information of their interventions to the legal profession in this regard.

5.    That the SADC mediator, President Thabo Mbeki, immediately and diligently investigates this state of affairs and makes a public statement on action taken, information received, and steps which will be taken to ensure the safety of the legal profession and their clients, as well as reduce the threats to peace and security in Zimbabwe and the region in the run-up to the presidential election run-off, and beyond 27 June 2008.