T r a n si t i o na l j us t ice o p t i o n s fo r Zi m ba bw e: a g u i d e to k e y co n cep t s Human rights and the concept of transitional justice in Zimbabwe At least since the start of colonialism, human-rights violations have been part of Zimbabwe’s history. The abuses of the colonial period were a major motivation for the liberation struggles that culminated in Zimbabwe’s independence in 1980. It was hoped then that the government of Zimbabwe would make certain that the pain and suffering caused by Rhodesians could never happen again. It is important to mention, without excusing the fact, that an amnesty was part of the peace settlement that led to Zimbabwe’s independence.7 There was thus no discussion or public consideration of whether to hold actors from both sides accountable for their alleged crimes. Indeed, some alleged perpetrators, including some high-ranking Rhodesian military and intelligence officers, became part of the Zimbabwean government – a fact that may help to explain the continuation of certain abuses under the new government. 8 Victims and survivors were powerless as they watched their abusers not only get off scot-free but also be given key positions in the new government. The policy of national reconciliation pronounced by the new government was for people to simply forgive and forget. Thus, there was a general acceptance of ‘post-war impunity’ (see key terms below), as a way of starting the healing process and allowing the country to start afresh.9 Searching for the truth, it was said, would reopen old wounds and impact negatively on reconciliation. As mentioned earlier, this would be unacceptable today as violations of human rights – including crimes against humanity (discussed below), genocide, and cruel and degrading treatment – are now internationally recognised crimes. The general sentiment in international law now favours a culture of accountability, and has little tolerance of impunity regarding human-rights violations. Accordingly, new international instruments have been developed, such as truth and reconciliation commissions and the concept of prosecution under universal jurisdiction.10 Transitional justice has been of increasing concern for Zimbabwean citizens since the publication of a report on the human-rights violations (popularly known as Gukurahundi11) that took place in the 1980s in Matebeleland and the Midlands. The report was published by the Catholic Commission for Justice and Peace in Zimbabwe and the Legal Resources Foundation in 1997.12 Since then, there have been a number of initiatives concerned with transitional justice, some of which address the violations of the 1970s war of liberation.13 These include a symposium held in Johannesburg in 2003 that was organised by civil-society organisations from Zimbabwe and South Africa. The symposium explored issues of redress, amnesty and impunity, and made strong recommendations for the establishment of a truth, 7 The Lancaster House Agreement of 1979 created the Constitution of Zimbabwe, which is still the current constitution, albeit with recently promulgated amendments that limit individual freedom. One of the conditions of the Lancaster House Agreement was to allow Rhodesian perpetrators to go unpunished to ensure a smooth transition. 8 In his book, Serving Secretly, An Intelligence Chief on Record, Ken Flower, who was the head of the Rhodesian Central Intelligence Organisation, tells of how he was invited to stay on after independence and continue to lead the organisation. Mugabe apparently assured him that he wanted to ‘draw a line through the past’ even though Flower had been instrumental in an assassination attempt against Mugabe himself during the 1979/1980 election campaign. 9 When the peace agreement was entered into in 1979, Robert Mugabe agreed that all Rhodesian perpetrators of humanrights abuses should go free. These words were spoken by Mugabe in his ‘Independence Message’ in 1980: ‘If yesterday I fought you as an enemy, today you have become a friend and ally with the same national interest, loyalty, rights and duties as myself. If yesterday you hated me, today you cannot avoid the love that binds you to me and me to you. The wrongs of the past must now stand forgiven and forgotten.’ 10 Examples of such instruments include the South African Truth and Reconciliation Commission of 1995, and the international criminal tribunals of Rwanda (www.ictr.org) and Yugoslavia (www.icty.org). The principle of universal jurisdiction is most clearly demonstrated in the mandate of the International Criminal Court (ICC), which was established by the Rome Statute of 17 July 1998 and which entered into force on 1 July 2002. The African Charter on Human and Peoples’ Rights, was adopted by most of Africa’s governments in 1981 and entered into force on 21 October 1986; Zimbabwe is a signatory to this charter. 11 A Shona word meaning the rain that washes away the chaff from the last harvest before the spring rain. 12 CCJP & LRF 1997. 13 See Reeler 1998, 2000. 3