The general mantra that “Zimbabwe is open for business” that has formed the campaign stance of
President Mnangagwa should be matched by a similar call to declare the Zimbabwe Courts and its
police systems also “open for business”. The police should be able to answer to all cases of past human
rights violations that have been leveled against them. The Forum argues this point from the standpoint
that punishing all state security agents who were involved in cases of human rights violations especially
those of a political nature has a deterrent effect in the context of entrenched regimes committing large scale crimes such as the Zimbabwean government since they do not expect to lose power nor to be
punished.⁷² The gravity of punishment sends a message to other regimes and other potential violators
that they too cannot continue committing such crimes and hope for amnesty in future. Deterrence is
premised on either the notion that you are likely to be caught and punished for what you do and or that
punishment will prevent a rational decision maker from committing the crime. Indeed, the fact that
large - scale crimes continue to occur worldwide despite several prosecution initiatives for such crimes
may show that the threat of prosecution alone may not be an adequate deterrent.
If the government refuses to implement an honest and genuine prosecutorial approach to the past
human rights violations by the police, the international community must be called upon to enforce other
universal human rights norms applicable to apprehend and punish those who commit international
crimes, as more potential violators will be forced to consider the consequences and start to be dissuaded
from launching criminal campaigns.
Who to prosecute
Questions that have been asked in Zimbabwe center on the time that since elapsed since some of the
crimes that have been raised by the Forum were committed by the accused state security agents. It is
true that some of the cases have already suffered the prescription period and thus cannot be
prosecutable. Technically this would be right but the Forum argues to the contrary and in this report,
argues that there is a strong legal case against ordering cases based on prescription especially where it
can be proven that there were genuine obstacles that were presented to the victims by the police, the
accused and the state.
Secondly, the question of who to prosecute considering the certain waves of political disturbances
where orders were said to be coming from “above” continues to raise its ugly head. The Forum believes
that while there can be no excuses for those state security agents who committed torture, there can be
other criteria that can be discussed at a national level and in parliament to prosecute perpetrators., In this
proposition, the Forum is guided by what transpired during Alfonsin's time in Argentina. At the time of
reckoning with their past, Argentina proposed three categories to choose those who to prosecute. The
categories were divided among a) those who gave the orders to violate human rights, b) those that
carried out the orders and c) those who engaged in human rights violations beyond the actions they
were ordered to take.
One of the most difficult issues that the Zimbabwean legal system and victims alike should confront is
the excuse that some of the state security agents did not know that their actions at that time constituted
criminal acts. The argument emanates from the reasoning that in most instances, the political
⁷² See C Villa - Vicencio „Why Perpetrators Should Not Always Be Prosecuted: Where the ICC and Truth Commissions Meet‟ (2000) 49 Emory Law
Journal 210.
Anti-Impunity Report
37
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