4.8 Command responsibility In any allegation of state involvement in gross human rights violations the matter of command responsibility is extremely important, and this involves evidence of two kinds. Firstly, that state agents with command responsibility can be shown to have been involved in the perpetration of gross human rights violations, either by being present at such abuses, or by evidence showing that they issued instructions for the violations to take place. Secondly, since the state has an obligation under constitution and law to prevent and halt such abuses, that there is evidence that the state or its agents failed to exercise this duty. The first, for obvious reasons, is generally very difficult to prove, although plausible allegations can frequently be made. The second is less difficult, since the existence of reports of gross human rights violations should lead to the state taking positive steps to investigate reports and take actions to stop such abuses. In the case of Zimbabwe, the second of these issues – failure to prevent or investigate – has received considerable attention from 2000 onwards. There are a number of high profile cases in which the Zimbabwean government has shown no inclination to investigate, even under instruction from the Zimbabwean courts themselves. The notorious case involving the alleged murder of two MDC members by Joseph Mwale is well known, and Joseph Mwale remains at large despite a ruling by a High Court judge that he be investigated and attempts by the Attorney-General’s Office to force the ZRP to conduct such investigation69. However, there are many such other cases, and the most high profile case occurred on 11 March 2007 when the now Prime Minister, Morgan Tsvangirai, Minister of Finance, Tendai Biti, and 28 others were brutally tortured in police custody70. On the contrary, several hundred people were arrested at and around the MDC headquarters in Harare shortly before the SADC meeting. 30 of this group were systematically tortured at the Harare Central Police Station over a two day period, the motivation appearing to be the extraction of confessions of having participated in several bombings which had taken place around the country and thus provide a justification for the March 11th strong arm tactics that Mugabe could present to his SADC peers. This led to the Southern African Litigation Centre SALC submitting a dossier to the National Prosecuting Authority [NPA] of South Africa, seeking an indictment for 14 individuals on the basis of their command responsibility and actual involvement in the torture. This case is still pending more than a year later. This incident provided good evidence of the Zimbabwe government’s omission in dealing with its constitutional responsibility, as none of the ZRP officers were even investigated, and even the President of Zimbabwe, Robert Mugabe, publicly condoned the March 11th torture. As the President said: “Of course he was bashed. He deserved it. I told the police to beat him a lot. He and his MDC must stop their terrorist activities.”71 This public condonation of gross human rights violations is not an isolated incident, but, as a report of the Human Rights Forum demonstrates, it has been continually recorded since 2000, and even earlier72. The Zimbabwe government, officers of the government, members of the ZANU PF party, and even state agents are endlessly recorded making statements inciting violence, condoning violence, propagating hate speech, and making racist remarks. The public record here is very clear and strongly establishes the omission of the ZANU PF government of Zimbabwe in exercising its constitutional and legal duty. At least one detailed analysis of command responsibility has been carried out on the violence, albeit dealing only with the period 2000 to 200373. In this analysis, which was based on the public reports of the Human Rights Forum74, a total of 1,352 individual names were recorded in the reports given to the Human Rights Forum. 69 70 71 72 73 74 Page 24 See Redress (2005), ZIMBABWE: THE FACE OF TORTURE AND ORGANISED VIOLENCE. Torture and Organised Violence in the run-up to the 31 March 2005 General Parliamentary Election, LONDON: REDRESS TRUST. See also “Editorial”, The Zimbabwean, 6 May 2009, where it was that Joseph Mwale was seen sitting 4 rows away from Robert Mugabe at the latter’s birthday celebration, clearly demonstrating the impunity accorded to violators of human rights by the Zimbabwean government. [http://www.thezimbabwean.co.uk/index]. See Zimbabwe Human Rights NGO Forum (2007), At Best a Falsehood, At Worst a Lie? Shooting Oneself in the Foot? Comments on the Zimbabwe Republic Police Report “Opposition Politics in Zimbabwe. A Trail of Violence. June 2007. HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. President Robert Mugabe addressing a ruling party rally on 29/03/07. See Zimbabwe Human Rights NGO Forum (2007), Their Words Condemn Them: The Language of Violence, Intolerance and Despotism in Zimbabwe, May 2007, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM. See Reeler, A.P. (2003), The Perpetrators of Gross Human Rights Violations in Zimbabwe from February 2000 to March 2003, Paper presented to “Civil Society and Justice in Zimbabwe: A Symposium”, organised by the Zimbabwe Human Rights NGO Forum, Themba Le Sizwe and the International Bar Association, Holiday Inn, Johannesburg, 11-13 August 2003. Zimbabwe Human Rights NGO Forum (2000), Who is responsible? A preliminary analysis of pre-election violence in Zimbabwe, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM; Zimbabwe Human Rights NGO Forum (2001), Who was responsible? A consolidated analysis of pre-election violence in Zimbabwe, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM; Zimbabwe Human Rights NGO Forum (2002), “Are They Accountable?: Examining alleged violators and their violations pre and post the Presidential Election March 2002”, HARARE: ZIMBABWE HUMAN RIGHTS NGO FORUM.