COMMISSIONS WATCH 3/2021
[23rd February 2021]
The Motlanthe Commission Report : Two Years On, What Has Been Done?
On the 1st August 2018, demonstrators took to the streets of Harare demanding the release of results in elections that had been held a few days before. The demonstration turned into a riot which was violently suppressed by the police and the army. Six people were killed by gunfire and 35 injured, and there was considerable damage to property. Following allegations that the security services had used excessive force to suppress the riot, the President set up a commission of inquiry headed by a former President of South Africa, Mr Kgalema Motlanthe, to investigate the circumstances leading up to the riot, the conduct of the police and army in suppressing it and whether the use of force was proportionate.
The Commission’s report was published on the 18th December, 2018. It is posted on the Veritas website [link] and we analysed its findings and recommendations in a Commissions Watch of the 31st January 2019 [link].
Just over a month after the report was published, on the 28th January, 2019, it was announced that the President had appointed an inter-Ministerial task force “to address issues arising from … the findings of the Motlanthe Commission.” Since then the Government has claimed on several occasions that it was implementing the report’s recommendations but details have been scanty. In October 2019 the then Minister of Foreign Affairs and International Trade said:
“Zimbabwe has rapidly begun the task of implementing the Commission's key recommendations – that include reforming legislation on law and order, freedom and liberalisation of the media and electoral reform."
He added that prosecutions of those responsible would begin in 2020, after investigations had been completed.
In June 2020 the Secretary for Justice, Legal and Parliamentary Affairs (who was also secretary of the Commission) told a State-controlled newspaper, rather ambiguously:
“There has been a lot of compliance. We have complied fully with the Motlanthe Commission, but some of the processes are still ongoing. … To a large extent, we have complied with recommendations of the commission though some of the issues remain work in progress.”
In this bulletin we shall look again at the Commission’s recommendations to see how far they have been implemented in the more than two years since they were made.
The Commission’s Recommendations
The Commission recommended the following measures:
1. Compensation for Victims
Recommendation: All victims of violence, and dependants of the deceased, should be compensated. The Government should set up a committee to assess the amount of compensation and establish a fund to assist those affected.
What has been done? An inter-ministerial committee was set up in 2019 to implement this and other recommendations of the Commission, but the compensation fund has not been established. Compensation has been paid to some victims who suffered property damage caused by rioters, but families of those who were killed, and people who suffered physical injuries, have not been compensated. This is inexplicable since those who were killed and injured by the military and police were identified and named in the Commission’s report.
2. Political Parties
Recommendation: Parties should be registered to ensure accountability of party leaders. The Code of Conduct for Political Parties and Candidates [the Fourth Schedule to the Electoral Act] should be enforced, with sanctions for offenders. There should be a nationwide campaign to educate parties and the public on the parameters for peaceful demonstrations.
What has been done? Nothing has been done to require political parties to register, but as we noted in the Commissions Watch we referred to earlier it may be unconstitutional to do so – it certainly was under the Lancaster House Constitution. In any event it would be dangerous for democracy in Zimbabwe to require parties to register before they could take part in elections. The body tasked with registering parties – presumably the Zimbabwe Electoral Commission – might be coerced by the ruling party into refusing to register opposition parties that posed a threat to the ruling party’s hegemony.
As to making political parties accountable, no new measures have been put in place but the existing ones were pretty drastic anyway. Under section 28 of the Public Order and Security Act – which was in force when the Commission issued its report – conveners of public gatherings which turned violent were liable to recompense anyone who suffered loss or injury, if the police had not been given seven days’ notice of the gatherings or if the conveners had failed to obey police directives as to how the gatherings were to be conducted. Conveners were liable even if the violence would have occurred had they given the requisite notice and obeyed police directives. In other words, their liability was absolute. The Public Order and Security Act has since been replaced by the almost identical Maintenance of Peace and Order Act of 2019, and exactly the same liability is imposed on conveners by section 12 of the latter Act.
[Comment: The Maintenance of Peace and Order Act, like its predecessor, does not cater for spontaneous demonstrations, i.e. demonstrations that are not organised by any specific party or group and so have no identifiable conveners.]
3. Hate speech, abuse of cyberspace and incitement to violence
Recommendation: The laws relating to hate speech, abuse of cyberspace and incitement to violence should be reviewed.
What has been done? Mercifully little so far, because some of the existing laws are chillingly restrictive:
· Under section 42 of the Criminal Law Code it is a crime to make an insulting or grossly provocative statement that causes offence to people of a particular race, tribe, colour or religion. It is a crime even if the statement is true.
· Under section 177 of the Criminal Law Code a person who makes a false statement or “does any act or thing whatsoever” realising there is a risk or possibility of engendering hostility towards police officers or exposing them to contempt, ridicule or disesteem” is guilty of a crime. This section has been used to stifle criticism of the police.
· Incitement to violence is a crime under section 187 of the Criminal Law Code, as read with sections 36 and 89 of the Code.
Abuse of cyberspace will be dealt with by the Cyber Security and Data Protection Bill which is passing through Parliament now. The Bill will amend the Criminal Law Code to create two new crimes: transmitting data messages that incite violence or damage to property (though to secure a conviction the prosecution will have to prove that an accused person intended to incite violence or damage) and sending threatening data messages (in this case a sender will be guilty of the crime even if he or she merely passes on a threatening message).
4. Electoral Reforms
Recommendation: ICT [information and communications technology] facilities should be developed for the speedy transmission of election results to the Command Centre. The Electoral Act should be amended to shorten the time for presidential election results to be announced.
What has been done? No amendments have been made to the Electoral Act since the 2018 general election. The five-day time limit for declaring the result of a presidential election, laid down in section 110(3)(h) of the Act, still stands.
After the country went into lock-down last year as a result of the COVID-19 pandemic, ZEC illegally suspended the holding of by-elections [see Election Watch 1/2020 of the 17th May 2020 [link]. Hence, even if ZEC has developed systems for transmitting election results electronically there has been little opportunity to test them.
5. Law Enforcement
Recommendations: The Commission made several recommendations in this regard:
- The provisions of POSA for deploying the military should be aligned with the Constitution.
- The Police should be given the skills and capacity to deal with rioters. They should also be trained to be professional and non-partisan.
- Deployment of the military to assist the Police should be a measure of last resort in extraordinary situations.
- The Army should conduct an audit of its standing orders and procedures for riot control and law enforcement. The results of the audit, and the lessons learnt and remedial measures taken, should be published in a public report.
- The military in conjunction with the Police should adopt contingency plans for dealing with emergency situations.
- The use of live ammunition as warning shots should be discouraged and should be used only in limited circumstances of danger to public safety.
What has been done? Not very much, but we shall deal with each of the recommendations in turn:
- Deploying the military to assist the police: Section 18 of the Maintenance of Peace and Order Act, which replaced POSA, does comply with sections 213 and 214 of the Constitution, in that it requires any deployment of the Defence Forces to be authorised by the President, and requires the President to notify Parliament promptly of the deployment.
- Training of police in riot control, professionalism and impartiality: It is not known what extra training the police may have had in these respects, but if they got any they did not put it to much use in January 2019 when they suppressed demonstrations against increases in fuel prices. Once again the army was called in, live ammunition was used against demonstrators, and 17 people were killed. In a report on this, the Zimbabwe Human Rights Commission [ZHRC] [link] condemned what it termed unnecessary and disproportionate use of force by members of the army and the police.
- Deployment of military to be measure of last resort: Soldiers have been called in to assist the police in law enforcement on many occasions since August 2018, often enough for their presence to seem normal rather than a last resort. Recent examples are:
- Soldiers and police conducted house to house searches in high-density urban areas in the aftermath of the disturbances in January 2019, and later. We commented on the illegality of soldiers conducting such searches in Constitution Watch 5 of 2019 [link].
- Soldiers man roadblocks together with the police to enforce lock-down restrictions on movement. Soldiers are also deployed to patrol high-density areas and clear city centres. Their involvement in enforcing the lock-down has been institutionalised in regulations under the Public Health Act, which include members of the Defence Forces in the definition of “enforcement officer”.
- Armed soldiers recently arrested 12 opposition party officials in Chinhoyi, on charges that they gathered at party offices in contravention of lock-down regulations.
- Army to audit its standing orders for riot control and to publish results: If the Army has conducted such an audit, the results have not been published on the ZNA website, or anywhere else as required by the Motlanthe Commission.
- Army and police to adopt contingency plans for emergencies: Presumably contingency plans have been prepared but they have not been published.
- Live ammunition to be used only in limited circumstances: Live ammunition was used in January 2019 to suppress disturbances, as we have already mentioned. In this regard it should be noted that under our Constitution the right to life is sacrosanct: security services, whether police or army, are not allowed to kill people when suppressing even violent riots.
6. Nation-building and Reconciliation
Recommendation: A multi-party reconciliation initiative, including youths and with national and international mediation, should be established to address the root causes of the post-election violence. The Zimbabwe Human Rights Commission and the National Peace and Reconciliation Commission should increase their efforts to implement their mandates.
What has been done? While the two Commissions have certainly been active, the multi-party reconciliation initiative has not taken off. The President established a Political Actors Dialogue [POLAD] as a forum for leaders across the political spectrum to meet and discuss issues of common interest. The forum is open to representatives of all parties that took part in the 2018 election, regardless of the support they received from voters, but the main opposition party, the MDC-A, has refused to join it. The smaller wing of the MDC has indicated it may withdraw from it as well, which would leave POLAD even less representative of Zimbabwe’s political opinions than it was before.
The Government has resisted any suggestion that national or international mediators should be brought in to help negotiate a way out of the country’s political impasse.
Recommendation: All those responsible for alleged crimes on the 1st August 2018 should be prosecuted. Members of the Army and Police who were in breach of their professional duties and discipline should be identified as soon as possible for internal investigations and appropriate sanction, which should include hearing from victims and their families for impact assessment.
What has been done? While rioters were arrested and prosecuted, nothing seems to have been done to sanction members of the security services. Quite the reverse, in fact. The tactical commander of the unit of the Presidential Guard force deployed to deal with the demonstrations, Brigadier-General Sanyatwe, retired from the Army in December 2018 with the enhanced rank of Lieutenant General and was appointed ambassador to Tanzania.
It has to be pointed out that some legal changes are being made, though they are not directly related to the Motlanthe Commission’s report. For example:
- a Bill to set up an independent mechanism for dealing with complaints against the security services, in compliance with section 210 of the Constitution, has been drafted and is ready to be presented in Parliament.
- The Access to Information and Protection of Privacy Act, which stifled freedom of expression and press freedom, has been repealed, though not totally because journalists are still required to pay for accreditation under the Act.
The pace of these changes has been glacial however. For example, the Zimbabwe Independent Complaints Commission Bill has taken the Government seven years to prepare, and needed an application to the Constitutional Court by Veritas to jog it along.
The delay cannot be attributed to the COVID-19 pandemic because the legal reforms that are needed to democratise Zimbabwe and to implement the Commission’s recommendations can be developed, drafted and passed by Parliament even if the country is in lock-down. The pandemic has however been used as a pretext for ignoring the Commission’s recommendation that soldiers should be called on to assist the police only as a last resort. As we have noted, soldiers have been manning roadblocks and helping to clear city centres during lock-downs.
A further point we should make is that the Government has not been open about its implementation of the Commission’s recommendations. The Commission obviously wanted the public to be kept informed about the steps that were being taken – for example, the Army’s audit of its standing orders for riot control – but few if any details have been disclosed. We urge the Government to make those details public.
On the information available, it seems that very little has been done to implement the Commission’s recommendations. If the Government has done more than we have suggested in this Commissions Watch, in the interests of transparency and trust building it should make public what more it has done. As things stand, it seems that the Government lacks the will to implement the report properly.