The Functions of Selected Human Rights Institutions and Related Role-Players in the Protection of Human Rights in Zimbabwe

Various violations of the human rights of ordinary people and human rights defenders have been reported in Zimbabwe since the late 1980s. It is widely acknowledged that such violations have been perpetrated mostly by the government through its different organs for political and other related reasons. Human rights violations were also easily committed against ordinary people and human rights defenders because there was no Constitution that adequately protected such people's fundamental human rights (including their civil and political rights and their socio-economic rights) in Zimbabwe. Given this background, the article discusses the protection of human rights in Zimbabwe, in the light of the Zimbabwe Constitution Amendment Act 20 of 2013 (Zimbabwe Constitution 2013). This is done in order to investigate whether the promotion, protection, enforcement and respect for human rights in Zimbabwe has now improved. To this end, the functions of selected national human rights institutions and other related role-players, namely civil society, the judiciary, the law enforcement organs and the Zimbabwe Human Rights Commission, are briefly discussed first. Secondly, the functions of selected regional and international institutions, namely the Southern African Development Community, the African Union and the United Nations are discussed in relation to the protection of human rights in Zimbabwe. Thereafter, concluding remarks and possible recommendations that could be utilised to combat human rights violations and enhance the protection of human rights in Zimbabwe are provided.


Introduction
Several violations of the human rights of ordinary people and of defenders of human rights have been perpetrated by government officials and other related unscrupulous persons in Zimbabwe since the late 1980s. 1 It is widely acknowledged that such violations were perpetrated mostly by the government through its different organs for political and other related reasons. 2 A number of human rights violations were also easily committed against ordinary people and human rights defenders because there was no specific Constitution that adequately protected such people's fundamental human rights 3 in Zimbabwe. 4 Given this background, the article discusses the protection of human rights in Zimbabwe in the light of the Zimbabwe Constitution Amendment Act 20 of 2013. 5 This is done in order to investigate whether the promotion, protection, enforcement and These also include their civil and political rights as well as their socio-economic rights. 4 Dzinesa Zimbabwe's Constitutional Reform Process 1, 2-13; Manyatera and Fombad 2014 CILSA 89, 90-108;Chiduza 2014 PELJ 368, 369-409;Mavedzenge and Coltart 2014 https://constitutionallythinking.files.wordpress.com/2014/10/a-constitutionallaw-guide-towards-understanding-zimbabwes-fundamental-socio-economic-andcultural-human-rights.pdf 5-57. respect for human rights in Zimbabwe has now improved. 6 To this end, the functions of selected national human rights institutions and other related role-players, namely civil society, the judiciary, the law enforcement organs and the Zimbabwe Human Rights Commission (ZHRC) are briefly discussed first. Secondly, the functions of selected regional and international institutions, namely the Southern African Development Community (SADC), 7 the African Union (AU) and the United Nations (UN) are discussed in relation to the protection of human rights in Zimbabwe.
The authors concur with Reif that independent human rights institutions are established, promoted and protected through the Constitutions, laws and other relevant regulations in several jurisdictions. 8 Accordingly, the main functions of independent human rights institutions are inter alia to promote and protect the fundamental human rights of all the people in their respective countries. 9 These institutions can promote good governance in any country in a number of ways. For instance, independent human rights institutions and/or human rights ombudsman bodies can investigate human rights violations in order to improve the legality, fairness and accountability of any governmental administration. 10 Furthermore, national human rights institutions can enhance the protection of human rights in any state by acting as catalysts for the domestic implementation of its international human rights treaties and obligations. 11 In relation to this, the authors submit that although human rights institutions in Zimbabwe, as in many other countries, do not have the power to make binding decisions in matters involving human rights violations and maladministration by the government or other persons, they could still play a pivotal role in the promotion and protection of human rights in Zimbabwe. 12 Thereafter, concluding remarks and possible recommendations that could be utilised to combat human rights violations and enhance the protection of human rights in Zimbabwe are provided.

The role of the judiciary
It is submitted that the judiciary plays a key role in the protection, promotion and fulfilling of human rights in any democratic country. 13 Accordingly, the independence of the judiciary does not only guarantee the protection of human rights but it also upholds the rule of law in any country. 14 Be that as it may, it is submitted that the judiciary has in some instances failed to protect the people's fundamental human rights, especially before the enactment of the Zimbabwe Constitution 2013. 15 Notably, the executive and its organs have in some instances refused to enforce binding court orders and decisions that were seemingly unfavourable and detrimental to the aspirations of the Zimbabwe African National Union -Patriotic Front (ZANU-PF   provides that the appointment of judges must be fair and transparent to ensure that relevantly qualified persons are appointed. 35 The Zimbabwe Constitution 2013 also provides for the establishment of an independent and impartial Judicial Service Commission (JSC). 36 Nonetheless, it remains to be seen whether the provisions of the Zimbabwe Constitution 2013 will be consistently and effectively enforced to promote the independence of the judiciary and the protection of human rights in Zimbabwe. 37 For instance, members of the executive are still negatively interfering with the independence of the judiciary. 38 Put differently, despite the enactment of the relevant provisions of the Zimbabwe Constitution 2013, members of the executive are still having some direct and/or indirect interference with the independence of the judiciary in Zimbabwe. For instance, due to such interference from the executive there are still some incidents of human rights violations which the courts are either reluctant or unwilling to adjudicate upon to date. The unlawful delays that were associated with Linda Masarira (a human rights activist)'s trial and the recent criticism by some government officials of the High Court judgement by David Mangota J, who eventually ordered her release from prison after she had been incarcerated for about three months, is a case in point. 39 In this regard, despite the fact that regional and international laws are usually functional at state level only after their provisions have been incorporated into the relevant domestic or national laws, it is submitted that the independence of the judiciary should be protected in accordance with the relevant regional and international laws. Furthermore, the powers of the executive, especially the president, in the appointment, 41 removal 42 and the remuneration of judges 43 still pose a threat to the independence of the judiciary and the protection of human rights in Zimbabwe. In other words, the fact that the president still has the power to initiate and unilaterally appoint a tribunal to investigate concerns relating to the removal of a judge 44 as well as the power to approve the salaries of judges 45 could give him an opportunity to directly interfere with the independence of the judiciary. For example, the president can reduce or increase the salary of judges, especially where the decisions of the judiciary could be detrimental to him or his government, in order to influence the decisions of the courts. 46 Moreover, notwithstanding the fact that the JSC is obliged to conduct public interviews of prospective judges, 47 the fact that the president still has a huge grip on the appointment of judges could continue to give rise to biased and/or politically-related appointments 48 that negatively affect the protection of human rights for all the people of Zimbabwe in the future. and protection of human rights existed in Zimbabwe. 51 Moreover, at the time of the establishment of the ZHRC there was no enabling legislation for it to perform its functions effectively. 52 Consequently, the ZHRC commenced its duties only in March 2010 53 and became fully operational in 2012 after the enabling legislation was enacted. 54 Accordingly, the ZHRC now performs its functions in terms of the Zimbabwe Constitution 2013 55 and the Zimbabwe Human Rights Commission Act. The ZHRC now has relatively broad functions and powers that are enshrined in the Zimbabwe Constitution 2013. 56 For example, the ZHRC now has the powers to: (a) promote the protection, development, attainment, awareness of and respect for human rights and related freedoms at all levels of society; (b) receive complaints from the public and take relevant action, monitor, assess and ensure the observance of human rights and freedoms; (c) protect the public against the abuse of power and maladministration by the government and officers of public institutions; (d) investigate itself or direct the Commissioner General of Police to investigate the conduct of any authority or person accused of violating other people's human rights and freedoms; and (e) encourage the Parliament and other relevant authorities to take effective measures for redress and/or the prosecution of offenders. 57 This could be prima facie proof that the government is now more committed to putting an end to human rights violations in Zimbabwe. 58

The role of the ZHRC
Nevertheless, despite the positive developments stated above, it is submitted that the mere fact that the ZHRC is now fully functional does not by itself guarantee the adequate promotion, realisation and protection of human rights in Zimbabwe. 59 In this regard it is submitted that several factors such as the independence, appointment of the chairperson and other members of the ZHRC, prevailing working conditions, accessibility, accountability and the actual mandate of the ZHRC must be carefully 51 party 69 and who have the relevant qualifications must be appointed to head or become members of the ZHRC.
It is further submitted that the government and all the relevant persons should provide conducive working conditions for the members of the ZHRC to enable them to execute their duties without any undue interference from the executive and/or without the fear of reprisals and dismissals. 70 Such conditions include adequate security of tenure, 71 protection from arbitrary removal from office, 72 adequate resources and remuneration of members, and absolute financial independence of the ZHRC. 73 However, it remains to be seen whether these conditions will be adequately and consistently provided in Zimbabwe. For instance, the president solely is empowered to appoint members of the tribunal that hears any matter regarding the removal of the members of the ZHRC. 74 Consequently, it is possible for the president to circumvent the relevant provisions of the Constitution 75 and arbitrarily remove any member of the ZHRC from office by constituting the aforesaid tribunal on a political and/or partisan basis. Moreover, given the prevailing economic challenges in Zimbabwe, it is highly unlikely that the government will consistently promote the financial independence of the ZHRC and provide adequate resources and remuneration for the members of the ZHRC in the near future. 76 Furthermore, the ZHRC must be accessible 77 to all persons to enable them to enable them to timeously report human rights violations and/or seek redress for such violations. a key role in the promotion and protection of human rights 86 in many democratic countries, especially in developed jurisdictions. Put differently, civil society complements the role of national human rights institutions in the promotion, protection and realisation of human rights in most democratic countries. 87 Similar views are echoed by Maseng, who argues that the role and mandate of civil society is usually manifested in the following two ways: One is democratic consolidation and the other is democratic transitions. In democratic consolidation civil society plays a role through the support and maintenance of democratic principles and institutions. Equally, in democratic transitions civil society plays a major role in mobilising pressure for political change. 88 In this light, some regional and international instruments have been agreed to globally to promote the role of civil society in the protection of human rights globally. 89 For example, the Declaration on Human Rights Defenders protects the rights of human rights defenders and CSOs globally. Such rights include inter alia the right to discuss and develop human rights ideas and advocate their acceptance, 90 the right to criticise state institutions and their agencies and/or to make proposals to improve their functioning, 91 and the right to provide legal assistance or other relevant assistance to promote human rights globally. 92 Nonetheless, despite these international efforts to entrench the significance of the defenders of human rights and other members of civil society in the promotion and protection of human rights, their work has been severely undermined and limited in Zimbabwe, especially from the 1990s to date. 93 In other words, although both the state and civil society working together contributed significantly to the attainment of independence and the development of Zimbabwe in the late 1970s and early 1980s, 94  or no such co-operation and contribution were achieved by the state and civil society in Zimbabwe from the 1990s to date. For instance, in its attempt to promote and protect human rights in Zimbabwe, civil society has had several obstacles placed in its way, such as intimidation and detention by the police, violent disruption of its assemblies and protests by the police and members of the ZANU-PF, propaganda, threats of closure of its organisations, frivolous court charges, and deterrence from participating in international and regional meetings from the 1990s to date. 95   other relevant authorities should consistently strive to protect all the people, especially vulnerable individuals, against human rights violations. 113 All the law enforcement agencies in Zimbabwe are obliged to carefully and consistently execute their duties in terms of the Zimbabwe Constitution 2013, the relevant law, and international standards. 114 For instance, the ZRP is obliged to perform its duties without fear or favour and in accordance with regional and international bodies. 115 The Zimbabwe Constitution 2013 also provides that the ZRP is responsible for detecting, investigating, protecting and securing the lives and property of people against crime. 116 The ZRP is further obliged to preserve and maintain internal security as well as law and order in Zimbabwe. 117 Similar functions are also bestowed upon the ZRP in terms of the Police Act. 118 Likewise, all the members of the intelligence services must perform their duties in a non-partisan manner and in accordance with the Zimbabwe Constitution 2013. 119 Prisons and correctional services members are also required to be non-partisan in order for them to treat all the offenders and/or accused persons in a fair and lawful manner, in accordance with the Zimbabwe Constitution 2013. 120

The duty to respect and uphold the rule of law
The rule of law could be defined as the observed body of international accords and treaties, state constitutions and written laws which embody the human rights traditions accepted virtually universally, and which protect individuals and order society in the nations of the world. 131 The rule of law is important for the strengthening of democracy in any country, and all the law enforcement agencies in Zimbabwe should therefore carefully exercise their duties 132 with due regard to the relevant human rights standards and the rule of law. 133 In this light it is submitted that all the law enforcement agencies in Zimbabwe should carefully protect all the human rights that are provided in the Zimbabwe Constitution 2013, 134 especially, the rights to life; freedom from torture or cruel, inhuman or degrading treatment or punishment; liberty; privacy; human dignity; the freedom to demonstrate and petition; the freedom of expression, assembly and association; and the freedom to demonstrate and petition. 135 It is also submitted that all the law enforcement agencies should consistently cooperate with the members of the public to enhance the protection of human rights in Zimbabwe. 136 For instance, it is reported that the law enforcement agencies, especially the ZRP, have to date failed to consistently uphold the rule of law in politically-related matters involving members of the opposition political parties and other human rights defenders in Zimbabwe. 137  allegedly conducted unlawful or arbitrary arrests 139 and have tortured the defenders of human rights and members of the opposition political parties. 140 Consequently, the protection and promotion of human rights has been severely compromised and negatively affected in Zimbabwe. In this regard, it is submitted that all the law enforcement agencies should execute their duties in accordance with the Zimbabwe Constitution 2013 and without any interference from the government. 141 It is also submitted that all the law enforcement agencies should not be directly or indirectly affiliated to any political party to combat the biased application of the law. In addition, any such law enforcement officials that contravene the Zimbabwe Constitution 2013 by their unlawful and biased application of the law should be tried in the relevant courts and punished without fear or favour.

The role of the UN
It is submitted that independent human rights institutions (HRIs) play an important role in the protection and promotion of human rights globally. 142 The significance of the HRIs has been recognised by the UN and its relevant organs since 1946. 143 For instance, the UN Commission on Human Rights introduced the Guiding Principles Relating to the Status of National Institutions (Paris Principles) in 1992, and they were adopted by the General Assembly in 1993. 144 These Paris Principles provide useful guidelines on the formation of human rights institutions as well as the standards and principles that must be employed by such institutions in order for them to perform their functions effectively. 145  also provide the assessment and accreditation criteria for any new or existing HRIs, which are usually employed by the International Coordinating Committee's Sub-Committee on Accreditation (ICC SCA). 146 The ICC SCA is empowered to review, analyse and make recommendations regarding any accreditation application in order to ensure that all the HRIs in the member countries comply with the Paris Principles. 147 The ICC of HRIs develops and co-ordinates the joint programmes and/or activities of HRIs globally. 148 Moreover, the ICC of HRIs supports the creation of HRIs and it works hand in glove with international human rights organisations such as the OHCHR. 149 Furthermore, the UN General Assembly adopted the Basic Principles on the Independence of the Judiciary in 1985 150 in order to enhance the protection of the independence of the judiciary in all jurisdictions globally. These Principles provide inter alia that the independence of the judiciary shall be constitutionally guaranteed by states. The same Principles stipulate that all governments and other institutions must respect and observe the independence of the judiciary in order to ensure that the judiciary executes its duties in accordance with the law, without any undue interference from the executive or any other person. 151  Furthermore, although the ACHPR provides for the establishment of independent HRIs to protect and promote human rights in Africa, 163 the role of HRIs has been severely compromised and negatively impacted by the ZANU-PF government in Zimbabwe to date. 164 The ACHPR also obliges all HRIs to assist the AC in the implementation of its provisions and the promotion of human rights in Africa. 165 Be that as it may, the ZHRC has found it difficult to consistently comply with the provisions of the ACHPR, in part due to interference from the executive and lack of adequate funding for its programmes. 166 This has also negatively affected the co-operation of ZHRC and other related regional and international human rights institutions such as the International Coordinating Committee of National Human Rights Institutions (ICCNHRI) and the Network of African National Human Rights Institutions (NANHRI). 167 More may still need to be done on the part of the AU in order to effectively discourage human rights violations in Zimbabwe. This follows the fact that the AU failed to condemn the election-related violence, rigging and other human rights abuses that were allegedly committed by the ZANU-PF government in 2008 and 2013. In this regard, it is submitted that the ZANU-PF government should abide by the Zimbabwe Constitution 2013 and other relevant regional and international instruments in order to enhance the protection of human rights in Zimbabwe. 168

The role of the SADC Tribunal
The SADC is the Southern African economic community. It promotes inter alia the creation of a free and common trade market amongst its members. 169  It is submitted that the removal of the human rights jurisdiction of the SADC Tribunal could give rise to more human rights abuses and the weakening of the rule of law in the SADC member states. 183 Moreover, it is submitted that the suspension of the SADC Tribunal has left SADC citizens with few or no regional remedies for any human rights violations by their governments. 184 In this regard the authors concur with Mogoeng J, who correctly argues that the SADC Tribunal was established inter alia to ensure that the SADC member states did not undermine the objectives of the SADC Treaty by violating people's human rights with impunity. 185 Accordingly, a new SADC Tribunal that has the legal jurisdiction to hear human rights disputes should be speedily established to effectively enhance the protection of human rights in the SADC member states.

The role of the SADC Organ on Politics, Defence and Security
The SADC established the Organ on Politics, Defence and Security in 1996 (SADC Organ on Politics) 186 as an institutional framework for coordinating policies and related aspects on politics, defence, and 180 Campbell

The role of the SARPCCO
Zimbabwe is a member of the SARPCCO. The SARPCCO 194 was incorporated into the SADC Protocol on Politics to enhance regional policing and human rights norms in the SADC. 195 The SARPCCO provides principles, guidelines and codes of conduct that are generally aimed at promoting human rights and effective law enforcement in the SADC. 196 Although some of the SARPCCO guidelines are not binding, they are generally enforced in accordance with the international law and related bodies that promote human rights and democracy in society. 197 The SARPCCO Code of Conduct outlines police officers' duties and how such duties may be executed to protect people's human rights in the SADC. 198 For instance, police officers are prohibited from using excessive force, torture and any other inhuman and degrading treatment or punishment against accused persons. 199 Despite the existence of these SARPCCO guidelines and the Code of Conduct, the ZRP has sometimes failed to abide by its constitutional obligations and violated people's human rights, especially during elections, peaceful demonstrations and petitions. 200 It remains to be seen whether the ZRP will in future consistently abide by the SARPCCO Code of Conduct, principles and guidelines to promote and protect human rights in Zimbabwe. 201