Response from the Government of Zimbabwe dated 26 April 2007 MEMORANDUM
T'he maintenance of law and order for any nation comes at a very high cost to the public and law enforcement agents. This is compounded by a situation where there is brazen defiance of the law by those who seek to unseat a Constitional government through violence. The activities of the Movement for Democratic Change (MDC) and allied formations since the beginning of this year (2007) indicates the party as a purveyor of violence and no law enforcement agent would just watch while there is mayhem in the country.
The criminal actions of the MDC have been roundly applauded by some western nations and associated media houses in the support of an illegal regime change agenda in Zimbabwe. There have therefore been grandiose distortions of political events in the country and particularly those of March 11, 2007.
BACKGROUND TO MARCH 11, 2007
On January 28, 2007 at a political raliy in Glenview a high density of Harare Morgan Tsvangirai a leader of one of the MDC factions warned his supporters to brace for mass action. Some MDC legislators also addressed the rally attended by some 600 supporters.
Again on January 8, 2007 at a ground in Masasa an industrial area to the east of Harare, Peter Mudavanhu told MDC supporters of the existence of the so-called Democratic Resistance Committees (DRCs) which would spear-head acts of violence to unseat the government.
Lovemore Madhuku, the National Constitutional Assembly leader (NCA) addressed a meeting on January 31, 2007 at which he indicated that he would go around the country mobilising people to fight until Zimbabwe became ungovernable forcing the Zanu PF govemment to the drafting of a new constitution.
On February 6, 2007 Arthur Mutambara, a leader of one of the MDC factions told supporters at a local hotel of his defiance campaign which he said was in collaboration with the Save Zimbabwe Campaign. He termed his new approach "a clarion call for revolution".
It is from the outlined occurrences above and other series of meetings held around the country that the message of violence through the DRCs became very loud and clear. The first acts of violence where on February 11, 2007 when MDC youths after a rally which had been cleared by Police went on to loot goods and a shop owned by a Zanu PF candidate in the 2005 parliamentary election at the behest of one of the speakers. On February 16, 2007 about 100 MDC youths marched through the city centre of Harare. In the process they looted shops and attacked four police on patrol. Two of the officers suffered severe head injuries and had to be hospitalised.
PROHIBITION ORDERS ON RALLIES IN HARARE
Following the criminal activities of the MDC supporters on February 11 and 16, 2007 and in terms of the law in Zimbabwe the regulating authorities of public gatherings decided to break the momentum of political violence that was building up and issued prohibition orders for at most three months within each of the Harare Police districts. The prohibition order for Harare South district was issued on February 22, 2007 followed by bans in other districts. These bans were publicised in the local media and meetings were held with political parties to alert them of this development. The bans affected all political parties. Elsewhere in the country the regulating authorities did not issue such bans as there were political violence cases.
EVENTS OF MARCH 11, 2007
The events of March 11, 2007 must be looked at from the perspective of prohibition orders that had been issued on February 22, 2007 and the MDC position to defy and encourage lawlessness. In fact the intended rally under the guise of a prayer meeting was intended to defy the banning orders that had been issued.
It might be pertinent to indicate that the banning orders had been issued to thwart political violence, which was characterising campaigning dynamics in Harare.
On the morning of March 11, 2007 Police officers were deployed in anticipation of any violence that would occur. True to form, a Police team on patrol was attacked by rowdy MDC youths at Lusaka Shopping Centre along Mangwende Drive in Highfields. The groups emerged from houses in smaller numbers onto the streets and marched towards 25 police officers who were deployed there to maintain law and order. The rowdy youths threw tear smoke canisters, stones and petrol bombs at the police officers.
The police officers tactically retreated from the youths who were using children as human shields. As the officers retreated two of them namely 034294A Sergeant Makurumure of Harare Central and 053737J Constable Njowa of Harare Central Operations were injured and sustained deep cuts on their heads. Other officers who had been alerted of the disturbances rescued them. They were taken to Harare Central Hospital where they were admitted. They stayed in hospital for two weeks.
At about 1300 hours, the same group of about 60 MDC youths barricaded Masvingo-Harare main road at Zindoga Shopping Centre where they looted braai meat from some patrons who were braaing meat at the business centre. The same group of youths tried to set on fire a Zimbabwe National Army vehicle B1800 pick up truck Registration number 438897 driven by Major Stanley Dhiamini, which was parked at the shopping centre.
Damage to the vehicule includes broken windscreen and the passenger seats were slightly burnt. On lookers put out the fire before major damage was caused to the vehicle.
The dotous group left the shopping centre and barricaded Simon Mazorodze road near Zindoga shopping centre and intercepted a ZUPCO bus, which was carrying mourners to attend burial at Mbudzi Cemetary. They boarded the bus and robbed mourners of six cell phones and ordered everyone out of the bus. They stoned the bus shattering a number of window panes and tried to set the bus on fire, but failed.
At about the 1440 hours another group of some 200 MDC activists emerged from houses and attacked police officers on patrol at Utsanana Bar corner Mangwende Drive and 216th Street near Mhizha Primary School. The rowdy MDC youths overwhelmed the police officers and armed reinforcements were sent in to rescue the Police officers under attack. Police fired 18 warning shoos into the air but the MDC youths continued their attack forcing the Police to shoot the ring leader Gift Tandare in self defence or protection of other officers. At this time the rowdy youths dispersed.
Comment on information supplied to Commission
The circumstances and background given above summarises political violence by the opposition political parties in the country this year.
It is a fallacy that riot Police `broke up a meeting organised by Save Zimbabwe Campaign' because there was no political rally or meeting in progress in any part of Highfields. The police cannot therefore have participated in an activity that is non-existent.
Gift Tandare, as outlined above, was shot in defence of Police officers who were under attack by the group he was leading. The shooting was carried out in terms of Police regulations and standing orders in the use of firearms.
No formal reports have been made of the shooting at the funeral of Gift Tandare.
Follow-up allegation letter dated 8 June 2007 I am grateful for your note dated 26 April, 2007 enclosing a letter and memorandum from the Senior Assistant Commissioner of Police in response to my letter dated 3 April, 2007.
In the spirit of following up on my letter of 3 April, 2007 and on the information provided above, I would like to establish whether an official investigation was undertaken into the shooting of Gift Tandare as well as into the separate reports of 8-10 other persons being beaten to death and, if so, whether the report is available. I would also be grateful if you could furnish me with a copy of the Police regulations and standing orders in the use of firearms, referred to at p.4 of above memorandum
Response from the Government of Zimbabwe dated 3 July 2007 There is no record of the shooting of Nickson Magondo and Naison Mashambanhaka.
There is no record of the unnamed persons reported dead at Harare hospital. It would be appreciated if the names of the deceased persons could be revealed to enable the police to institute an enquiry.
Regarding the arrest of the Movement for Democratic Change leaders, the Government refers to the document prepared by stakeholders headed by Foreign Affairs including Zimbabwe Republic Police, President’s Departement and Zimbabwe Defence Forces in March 2007.
Regardin the alleged assault of Harrison Nkomo, the Government informed that the latter was never denied access to the arrested parties as alleged. He was not at all assaulted by the police.
Regarding the alleged arrest of Zwelithini Viki, Kudakwashe Mapundu, Lynnette Mudehwe and Sydney the Government informed that these persons, who are leaders of the Zimbabwe National Students Union, were picked up near Quality International Hotel as suspects on 13 March 2007 following their alleged involvement in a meeting by Zimbabwe Congress of Trade Unions calling for mass stayaways. They were interviewed and allowed to go home. They were never at any time charged or detained by the police.
Regarding the arrest of Arthur Mutambara, Sekai Rolland and Grace Kwinjeil, the Government informed that these persons had earlier on been arrested for public violence on 11 March 2007 and were released to their lawyers' custody pending appearance in court. On 17 March 2007, the three went to Harare International Airport with the intention of flying out of the country. They had not notified the police of their intention to leave the country as had earlier on been agreed. This was viewed by the police as an attempt to flee. The three were arrested and made to appear in court on the same day. An order was made by the court for the police to proceed by way of summonses.
Regarding the assault on Nelson Chamisa, the Government stated that wilst it is common cause that Nelson Chamisa was assaulted at Harare International Airport on 18 March 2007, he did not make an official report to the police to enable the police to institute investigations. Several attempts by the police to record a statement of complaint have been fruitless. Chamisa is uncooperative in this regard. It should be noted that an assault is a criminal case that requires the complainant to cooperate with the law enforcement agents.
Zimbabwe: Death of Edward Chikombo Violation alleged: Impunity
Subject(s) of appeal: 1 male
Character of reply: largely satisfactory response
Observations of the Special Rapporteur The Special Rapporteur notes the information provided by the Government of Zimbabwe in relation to the death of Edward Chikombo. The SR would request that the Government update him on the status of its investigation into this case.
Allegation letter dated 2 May 2007sent with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Special Rapporteur on the question of torture
We would like to bring to your Government’s attention information we have received concerning the following cases:
On 29 March 2007, Mr. Edward Chikombo, a cameraman for the state broadcaster Zimbabwe Broadcasting Corporation (ZBC), was abducted by armed men from his home in a township outside the capital Harare. His body was found a few days later, in bushes 50 miles west of Harare. Mr. Chikombo was a sympathizer of the opposition Movement for Democratic Change (MDC) and his murder could be linked to the dissemination, out of Zimbabwe, of television images of the opposition leader Morgan Tsvangirai after he was beaten up by police on 11 March.
On 1 April 2007, police arrested Mr. Gift Phiri, a reporter of the exiled weekly The Zimbabwean and beat him severely while in detention. On 5 April, he was released on bail, and immediately hospitalized for treatment. He has been charged with “practicing as a journalist without accreditation and publishing false news”.
While we do not wish to prejudge either the accuracy of these allegations or the question whether Mr. Chikombo was abducted and killed by security forces of your Excellency’s Government or acting on its behalf, we would like to stress that each Government has the obligation to protect the right to physical and mental integrity of all persons. This right is set forth inter alia in Article 7 of the International Covenant on Civil and Political Rights, which provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” We would also like to draw your Government’s attention to paragraph 1 of Resolution 2005/39 of the Commission on Human Rights which, “Condemns all forms of torture and other cruel, inhuman or degrading treatment or punishment, which are and shall remain prohibited at any time and in any place whatsoever and can thus never be justified, and calls upon all Governments to implement fully the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.”
We would also like to refer Your Excellency's Government to the fundamental principles applicable under international law to deaths in custody. Article 6 of the International Covenant on Civil and Political Rights provides that no one shall be arbitrarily deprived of his or her life. When the State detains an individual, it is held to a heightened level of diligence in protecting that individual’s rights. As a consequence, when an individual was last seen alive in State custody, there is a presumption of State responsibility.
In order to assess whether a violent death under circumstances not clarified is attributable to the Government and, if so, whether the use of lethal force was proportionate to the requirements of law enforcement, there must be a “thorough, prompt and impartial investigation” (Principle 9 ofthe Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions). This principle was reiterated by the 61st Commission on Human Rights in Resolution 2005/34 on “Extrajudicial, summary or arbitrary executions” (OP 4), stating that all States have “the obligation … to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions”. The Commission added that this obligation includes the obligation “to identify and bring to justice those responsible, …, to grant adequate compensation within a reasonable time to the victims or their families and to adopt all necessary measures, including legal and judicial measures, in order to … prevent the recurrence of such executions”. These obligations to investigate, identify those responsible and bring them to justice arise also under Articles 7 and 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
We therefore urge your Government to initiate an inquiry into the circumstances surrounding the death of Mr. Chikombo and the treatment Mr. Phiri received while in detention.
We would moreover like to appeal to your Excellency’s Government to take all necessary steps to secure the right to freedom of opinion and expression in accordance with fundamental principles as set forth in article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which provides that "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
Finally, it is our responsibility under the mandates provided to us by the Commission on Human Rights and extended by the Human Rights Council, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters:
1. Are the facts alleged in the above summary of the case accurate?
2. Do the armed men who abducted Mr. Chikombo on 29 March 2007 belong to your Government’s security forces, or are they otherwise linked to your Government?
3. Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries which may have been carried out in relation to the cases of Mr. Chikombo and Mr. Phiri. If no inquiries have taken place, or if they have been inconclusive, please explain why.
4. In the event that the alleged perpetrators are identified, please provide the full details of any prosecutions which have been undertaken. Have penal, disciplinary or administrative sanctions been imposed on the alleged perpetrators?
5. Please indicate whether compensation has been provided to Mr. Phiri or the family of Mr. Chikombo.
Response from the Government of Zimbabwe dated 4 September 2007 This memorandum seeks to respond to the inquiry by the Office of the United Nations High commission for Human Rights dated May 2, 2007 in the cases of alleged human rights abuses on Gift Phiri by the Police and the alleged kidnapping and subsequent discovery of a dead body of Edward Chikomba (incorrectly spelt as Chikombo in the UN inquiry).
The Zimbabwe Republic Police is not aware of any beatings on Gift Phiri while he was in police custody or the motive for the alleged kidnapping and subsequent death of Edward Chikomba.
Gift Phiri The facts pertaining to Gift Phiri are that he is a stringer for a weekly newspaper ‘The Zimbabwean' and he wrote an article that appeared in that paper of 16-22 November 2006. The article contained false information. Part of the article had the following sentence, "Go now - Generals tell Mugabe as ZANU PF loses support" This was false as there was no time or occasion when the Generals ever said this to the State President.
Following the publication of the article, it was noted that Gift Phiri was practicing journalism without having been accredited by the Media and Information Commission which is a statutory requirement under the Access to Information and Protection of Privacy Act Chap 10:27 for all practicing jourrnalists.
On 1 April 2007 Gift Phiri was arrested and detained by Police. At no lime was he assaulted while in police custody. On 5 April 2007 he was taken to court where he was remanded out of custody to the June 4 2007. While in court, Gift Phiri never raised any allegations of assault by the Police while in Police custody. It is custom in Zimbabwe that all suspects brought to court are asked by the presiding magistrate if they have any complaints against the Police or about their treatment while in Police custody. If such complaints had been raised al this stage, the magistrate would have, as is the norm, ordered that an investigation into the allegations be looked into before the case the suspect is facing goes for trial.
The following charges were preferred against Gift Phiri:
i. Contravening section 79(1) of the Access to information and Protection of Privacy Act Chap 10:27 "Practicing journalism without accreditadon by the Media and information commission”. This discovery was made after the publication of the said story.
ii. Contravening section 80(1)(b) of the Access Chapter 10:27 "Abuse of journalistic privileges". This is in respect of the false allegations about the story on Generals.
Gift Phiri last appeared in court on the June 4, 2007 and the case was remanded to July 9, 2007 for trial. Harare Central Crime register numbers 30/04/07 and 170/04/07 refer.
Edward Chikomba At the time of his alleged kidnapping and subsequent death, Edward Chikomba was not a cameraman for the state Broadcaster (Zimbabwe Broadcasting Corporation) as alleged in the United Nations High Commissioner for Human Rights document. He was retrenched together with others during the retrenchment exercise carried out by the ZBC in 2001. The Police are not aware about Edward Chikomba's political affiliation or of his alleged dissemination out of Zimbabwe of television images of the opposition leader Morgan Tsvangirai. However what is clear is that there was no secret about the injuries suffered by Tsvangirai and therefore any alleged smuggling of television images would only have been an act in futility as the pictures were in the public domain. Any photographes or cameraperson could take the pictures.
The circumstances of his disappearance are that on 29 March 2007 at around 1800 hours it is alleged that Edward Chikomba was bundled into an Isuzu twin cab as he was about to get to his house in Glenview, Harare. Four men are said to have been involved in the abduction. The truck is said to have driven at a high speed towards the city center of Harare.
On the same day Chikomba's relatives who indicated that they had heard him shouting for help as he was taken away made a report at Glenview Police station. The police opened a kidnapping docket with the following crime register number, CR 716/03/07.
On 01 April 2007 the now deceased's body was found at Old Lands farm in Darwendale. The police took it to Chinhoyi hospital mortuary. The body was collected on 5 April 2007 from Chinhoyi Hospital mortuary by a relative of Chikomba for burial in Harare. The Criminal Investigations department is carrying out an investigation of murder in connection with the case. So far no one has been arrested in connection with this case.
Liberation Tigers of Tamil Eelam (LTTE): Killings of Opposition Activists and Other Individuals. Violation alleged: Deaths due to attacks or killings by paramilitary groups or private forces.
Subject(s) of appeal: 5 males
Character of reply: no response
Observations of the Special Rapporteur The Special Rapporteur regrets that the Liberation Tigers of Tamil Eelam (LTTE) has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Allegation letter dated 24 September 2007 I am writing concerning recently reported killings of opposition political party activists and other individuals by the LTTE.
According to information that I have received:
Mr Nadaraja Kumaran (alias Murali), a political activist who operated a political office of the Tamileela Makkal Viduthalai Pulikal (TMVP) in Thambalagama (Trincomalee District), was killed at his home by LTTE cadres on 29 August 2007.
According to information I have received on 30 August 2007, Mr S.Srininvasan and Mr C.Wasanthan, Eealam People’s Democratic Party (EPDP) members in Batticaloa, who worked from a political office at Chenkalady, Batticaloa, were shot dead on the Eravur Krishna Kovil road by LTTE cadres riding on a motorcycle. Their bodies were reportedly taken to the Eravur hospital mortuary.
According to information received Mr Subramaniam Shantipan was killed by LTTE cadres while driving his family on a motorcycle along Dutch Road (Jaffna District) on 30 June 2007. He was the postmaster at the Sub-Post Office at Mirusuvil Junction. Because this was in a high security zone, it was patronised mainly by soldiers who used it to send letters and money orders home. LTTE cadres had warned him twice not to work there. He had also been requested by LTTE cadres to use his position to gather intelligence. He had disregarded these requests and warnings.
According to information received, Mr Sinnappan Michael was killed after being abducted by LTTE cadres. He was abducted on 8 September 2007, and the following day his headless body was found in Veerapuram (Vavuniya District). He had previously refused orders to serve in the LTTE.
Without prejudging the accuracy of the reports received, I would like to recall that the LTTE has formally committed itself to international human rights standards, which prominently include the right not to be arbitrarily deprived of one’s life and the right to freedom of opinion and expression. The Charter of the North East Secretariat on Human Rights states (Article 1) that “[all] persons deserve to be treated with … respect for their humanity” and reiterates that “[all] persons have the right to life” (Article 5.1). It also enshrines the “right to be free from incitement of discrimination, hatred or violence” (Article 1.5) and protects the “right to express … opinions and beliefs freely”. In this connection, I would also note that the LTTE is subject to the legitimate demand of the international community, first expressed in the Universal Declaration of Human Rights, that every organ of society respect and promote human rights, including rights to life, freedom of opinion and expression, and freedom of association.
I would also recall that the LTTE has formally taken upon itself obligations under the Geneva Conventions and its Additional Protocols. Among these obligations is that contained in Article 3 common to the Geneva Conventions, that “violence to life and person, in particular murder of all kinds” is prohibited against “[p]ersons taking no active part in hostilities”.
I would further like to recall that in Article 2.1 of the Ceasefire Agreement, the LTTE committed to “abstain from hostile acts against the civilian population” in accordance with international law.
I would also reiterate my earlier observation that “[t]he LTTE should unequivocally denounce and condemn any killing attributed to it for which it denies responsibility. Mere denials are neither adequate nor convincing”. (See Report on Mission to Sri Lanka, E/CN.4/2006/53/Add.5, para. 84).
Moreover, it is my responsibility under the mandate provided to me by the Commission on Human Rights and extended by the Human Rights Council, to seek to clarify all cases brought to my attention. Since I am expected to report on these cases to the Council, I would be grateful for your cooperation and your observations on the following matters:
1. Are the allegations summarized above factually accurate?
2. Does the LTTE consider any of the killings justified? If so, on what grounds? Does the LTTE unequivocally denounce and condemn these killings?
3. I am aware that the LTTE operates its own law enforcement machinery in areas of Sri Lanka under its control. Has this law enforcement machinery taken any steps to investigate the killings, identify the perpetrators, and bring them to justice in any of the cases listed above? If no inquiries have taken place or if they have been inconclusive please explain why.