Taking transitional justice to the people

The Forum released an interim report last week highlighting some of the key findings of its Taking transitional justice to the people programme. Excerpts:
Many years of direct and structural violence in Zimbabwe have left the country with a physically and emotionally wounded people; property destroyed; populations condemned to the Diaspora as political and economic refugees and many internally displaced peoples. Attendant on all this is the politics of violence and intolerance, which pervades Zimbabwe’s political space and peoples.

The Global Political Agreement (GPA) between the two MDC formations and ZANU (PF) in September 2008 provided the necessary reprieve to ask questions about the transition of the country into a democracy.

(Pictured: The grisly remains of MDC-T activist Joshua Bakacheza who was allegedly murdered by Zanu (PF) supporters.

The space or opportunity brokered by the GPA motivated the Zimbabwe Human Rights NGO Forum (the Forum) to set out a series of meetings in its Taking Transitional Justice to the People Program to consult and educate Zimbabweans who have gone through epochs of state sponsored and politically motivated violence in their lives on the nature and processes of transitional justice.

The exercise was not in any way structured to begin processes of transitional justice or national healing in Zimbabwe. However, it was set to begin consultations, educate and equip citizens with the necessary and background information on transitional justice and redress in all its forms.

From January 2008June 2008 the Forum visited thirteen constituencies and met and discussed with people from all backgrounds; teachers, police officers, mothers, youths, elderly people, clergymen, traditional leaders and other professionals.

The Forum conducted sessions in schools, town halls, in both rural and urban settings. Public discussions were held in English, Shona, Ndebele and Tonga speaking communities. In these open forum discussions, people expressed themselves in their language of choice.

In the consultative meetings, actors, sponsors and victims of violence were discussed. The participants noted the manifestations of these violent acts in rape, torture, murder, extortions, kidnappings, blackmail, disappearances, destructions of property, humiliations, selective food and agricultural input distributions and so many other methods.

Actors in violence were identified as men, women and youths, soldiers in uniforms, the policemen on duty, secret police and youth from the National Youth Training Service commonly known as the Green Bombers among others. The victims also cut across sections of Zimbabweans from all walks of life.

The transitional justice approaches that dominated the Taking Transitional Justice to the People’s discussions were truth commissions, reparations, truth for amnesty and prosecutions. The participants made interesting contributions that should be used to inform and shape the direction of transitional justice discourses in Zimbabwe.

What became clear was that people want to talk about their past and they need the platform to do so. What they were not sure about was the possibility, in light of the fact that Zanu (PF) still wields enormous power to scuttle the process before it even begins.

Truth seeking and Truth Commission
Victims noted that the truth commission approach seemed to offer an opportunity for a public platform for victims. Victims noted that what they hoped to receive from a truth seeking process was acknowledgement by the perpetrators and the state for the harm suffered. Issues around victims feeling respected and recognized kept coming up in the meetings.

Most of the victims insisted on a public way of truth seeking because they felt that since most of the violations were done in secret, the perpetrators would feel secure knowing that the victims would not air their grievances or tell their stories in public.

The participants pointed out that a truth commission would need to be formed by the people and not on their behalf. It was strongly put across that people, who have unquestionable integrity, are morally upright and with experience, should sit on such a body. The participants strongly held the view that people needed to control what the commission would do if it were set up.

Participants recalled and mentioned the previous commissions set by the government whose reports were never made public, for instance, the Chihambakwe Commission set to establish what happened in the Midlands and Matabeleland Disturbances between 1983 and 1987.

While some participants felt that these commissions can be formed and report to
the parliament, they remained skeptical of parliament-controlled commissions which they viewed as close to political manipulation by political parties having the majority in parliament. To protect the integrity of any such commission, the participants suggested that their compositions should consist of representation from the civil society, judiciary, faith-based organizations and ordinary people.

Participants also noted the limitations of the truth commissions and suggested that a Truth, Justice and Reconciliation Commission was the way to go.

The participants acknowledged the weaknesses of truth commissions and aired their reservations around such processes. It was noted that under truth commissions, perpetrators of past violence often do not own up. Often, political parties protect their henchmen as a way of covering up the truth and avoiding prosecutions.

The participants accepted this problem and concurred that given such challenges, the process had to be gradually implemented with all sensitivities acknowledged.

Given this point, some argued that for Zimbabwe to achieve transition to democratic governance and have a complete break with the past, transition would mean the dismantling of Zanu (PF) control of the state and other functions which do not necessarily need to be controlled by the party such as state institutions the police, army, CIO, state parastatals and so on.

The participants pointed out that as long Zanu (PF) still had power, it would stop all forms of transitional justice that would amount to punishment of their own. It was noted that any truth commission set to deal with Zimbabwe’s past needed to create trust to enable the people to approach it for truth telling. Gender activists were concerned that commissions often leave out women representation on their panels.

The participants suggested that the composition of the commissions must have women who understand the concerns of women who will appear before them.
Some participants at the meetings argued that the Government of National Unity (GNU) lacked the legitimacy of taking a lead in transitional justice processes in Zimbabwe, because some members of the GNU were also actors in violence.

The Forum enquired on what could be done to ensure that the transitional justice process was achieved in the light of these arguments. They argued that justice delayed is justice denied and something has to be done to expedite the process of transitional justice.

Against this background, some participants argued for a new constitution and a new government that can be mandated to carry out the transitional justice process legitimately instead of the current arrangement.

In addition it was also noted that all transitional justice mechanisms should be part of a holistic, integrated process; truth telling without prosecutions will not be acceptable. Participants noted that “transitional justice processes should be conducted to their logical conclusion. Truth telling without justice (prosecutions) is not enough

(Pictured: ZDF commander Constantine Chiwenga and Attorney General Johannes Tomana greeting each other Victims of abuse called for complete reform of state institutions.)

Avenues for transitional justice

(a) Truth for amnesty
One other avenue for transitional justice process is truth for amnesty in which the offender would trade truth with general pardon from the government. Participants felt disparaged by situations where the state can give amnesty in exchange for a truthful account from a perpetrator.

Victims argued that while the state can give amnesty, total forgiveness, healing and reconciliation can only come from the injured person or survivor of that violence, therefore people were not comfortable with general pardon for criminals.

(b) Reparations
Reparations were suggested as one method that can be used to achieve national healing and effective transitional justice. Reparations are the same as compensations. The participants were informed that reparations have to take place at various levels; the government and perpetrator levels. To be effective, it has to be commensurate to the harm done.

What came out of the meetings was the observation that some people who committed acts of violence could not afford to pay material reparations. It was pointed out that under such circumstances the government had an obligation to pay.

The difficulty with this approach was that government gets its resources from taxing people and therefore if the government were to pay it would be tantamount to
victims/survivors compensating themselves.

(c) Prosecutions
There was general consensus among participants on the need to have prosecutions for violations that have taken place in the past. What was contentious in all the areas visited by the Forum was the form the prosecutions would assume, who would be prosecuted, for what violations and by which adjudicating body.

The retributive effect of prosecutions appealed to most of the participants who felt that before there could be any forgiveness and reconciliation the perpetrators had to be punished for their wrongs.

(d) Institutional reforms
In Zimbabwe, the police and military have in many ways played a partisan political role. Recently, ‘the heads and other senior members of both the police and army have made public statements committing the loyalty of the security forces to the ruling party and denouncing the opposition MDC as violent, treasonous and the enemy of the State’.

The above background motivated the strong arguments for institutional reforms. It was pointed out that the writing of a new constitution should set the tone for institutional reforms in the country.

Participants observed that reforms in the security sector would help in professionalizing the security institutions, making them understand their mandate and that officers with dirty hands should be removed and public confidence restored in security institutions.

Participants also noted the need to transform traditional leadership institutions. It was observed that the majority of the traditional leaders took part in or directly sponsored and condoned violence.

Timing of transitional justice process
There were serious debates on when the process of transitional justice should begin and how far back this process would go in terms of Zimbabwe’s history of organized violence and torture.

The participants could not agree on a particular cut-off date or period. Some argued that the history of Zimbabwe did not begin in 1980 and therefore Rhodesian violations needed to be taken into account.

Other participants argued that there was not sufficient memory left to fully account for the violations, as most of the actors were presumed dead or very old.

Some participants argued that ignoring pre-1980 occurrences diminishes the role of the liberation movement survivors in the acts of violence and presumes the official pardon and reconciliation pronouncement by Mr. Mugabe in 1980 were cathartic enough to effect lasting national healing in Zimbabwe.

Other dates proffered were 1983, 2000 and 2008. The choice of dates and periods for national healing seemed motivated by the individual circumstances, where violations did occur in that year or if a relative was killed or injured.

Those in Matabeleland provinces favoured the timing of transitional justice around the 1980s because this is when the vicious cycle of violence landed heavily on their communities at the back of armoured carriers and tanks in the era of Gukurahundi.

Recommendations
The participants suggested the following recommendations during discussions:

The participants noted the need for a formal and comprehensive process of national healing, reconciliation and transitional justice to begin in Zimbabwe.

They suggested that for transitional justice to be effective the local communities needed to be involved and take ownership of the process.

Decentralization and restructuring of judicial processes in the event of massive prosecutions of many offenders was also recommended.

The participants noted the capacity of the Zimbabwe judicial system and its past record in dealing with political cases as needing innovative and immediate reforms and decentralization, particularly of the court system in order to deal expeditiously and conclusively with cases of violence.

The participants noted the challenges, which the victims and witnesses faced such as the long distances to the courts and the resistance by some perpetrators to stand before the courts and traditional leaders. The participants suggested the need for victim friendly processes that would also be accessible.

It was also recommended that women and men of integrity constitute any body that might be created to deal with transitional justice issues such as truth seeking or prosecutions, on an equal basis to ensure that interests of both sexes are equally and fairly heard.

The participants also voiced concerns on the involvement of actors in the former regime in any bodies that might be created and recommended victim-centered processes more than anything else.