“The legal profession has largely been standing in between the unbridled power of the state and the people of Zimbabwe and offering a safety net to human rights defenders facing persecution.  It therefore comes as little surprise that the state is now angling itself for an attack on the independence and self regulation of the legal profession in Zimbabwe."

Arnold Tsunga, Secretary of the Law Society of Zimbabwe, Executive Director of Zimbabwe Lawyers for Human Rights, and recipient of the 2006 Martin Ennals Human Rights Award

The Law Office of Lawrence J. Gist II, through the Human Rights Pro Bono Law Project (as of 09/15/2008 the Human Rights Pro Bono Law Project changed its name to the following: International Humanitarian Law Pro Bono Project), is deeply troubled by the recent attacks against independent lawyers launched by a high ranking member of the Zimbabwe government, specifically, Tafataona Mahoso, the chairman of the Media and Information Commission.

On August 6 and 20, Mr. Mahoso published articles attacking the reputation of the Law Society of Zimbabwe, the organization created by Zimbabwean law to regulate the legal profession. Among many inflammatory accusations, the articles claim that certain members of the Law Society are attempting to bring colonial rule back to Zimbabwe.  This and other false allegations are directed toward the Society's elected leaders who have been openly critical of the government's human rights violations.

The legal threat to the Law Society as can be seen in the following excerpts from two articles by the chairman of the Zimbabwean Media and Information Commission. 

Tafataona P. Mahoso, "Lawyers' Body Fights for Return of Rhodesia," The Sunday Mail, August 6, 2006.

"It is in this context that Zimbabweans who accept the call to reclaim and revalue African society and its assets must also face the fact that the leadership of the LSZ is still fighting either for the restoration of the Rhodesian past or at least for the foreign-sponsored regime change project to reverse the African revolution."

Tafataona P. Mahoso, "LSZ Leadership Supports, Mimics Western Sponsors," The Sunday Mail, August 20, 2006.

"In the last two instalments we implied a number of allegations which still require elaboration and proof: That leaders of the LSZ misrepresent their own views and wishes as those of the majority of practising lawyers in Zimbabwe; that leaders of the LSZ are heavily dominated by white colonial law firms linked to Rhodesian and foreign capital; that the activities of the leaders of the LSZ have tended to support, resemble or mimic those of the Western white sponsors of the regime change politics of the opposition in Zimbabwe; and that because of the link between LSZ leaders and elements of Rhodesian and foreign capital, the LSZ was used as much to oppose the indigenisation of land ownership as it was used to oppose the indigenisation of the judiciary.

In making these observations, it should be born in mind that the question of legality or illegality of the activities of the leaders of the LSZ is not really the issue here since that depends on the nature of the laws Zimbabwe has to govern such activities. The real issue is whether the majority of members of the LSZ really know the full meaning of the activities carried out on their behalf by leaders of the society. The issue is whether the people of Zimbabwe in general know and understand what leaders of the LSZ have been doing in the name of human rights and democracy."

In his articles, Mr. Mahoso mentions by name several well known champions for human rights, rule of law, and democracy in Zimbabwe.  This appears to be an attempt to tarnish their reputations in the eyes of the Zimbabwean public and to pressure them to stop their peaceful and legitimate legal activities. 

Mr. Mahoso has been responsible for closing down all independent radio stations, television channels, and daily newspapers in Zimbabwe.  Given this recent history of government sponsored censorship, several human rights organizations have expressed concern that the recent articles may signal an imminent legal threat to the existence and independence of the Law Society itself.

On August 12, 2006, and in response to Mr. Mahoso’s published accusations,  Zimbabwe Lawyers for Human Rights responded, as illustrated in the following excerpt:

"Dr. Mahoso, in regrettably inciting language but a tired argument, accuses the LSZ of harbouring intentions to bring back Rhodesia or a Western-controlled regime to this country. Many committed lawyers have fought courageous battles against the implementation by this very government of colonial legislation in policies that are dangerous to humanity and negatively affect people's fundamental rights and freedoms. It is a matter of public record that a glut of colonial statutes were used as a "legal basis" for the implementation of Operation Murambatsvina and resulted in displacements, homelessness and loss of life and livelihoods for millions of innocent people who ordinarily look to the state for protection. Victims of Operation Murambatsvina are still homeless over a year after they were dumped. Dr. Mahoso needs to visit Hopley Farm to see for himself how the implementation of such colonial laws by the state has dehumanised Zimbabweans.

The legal profession is acutely aware of, and not happy with, the drastic deterioration of national well-being and the erosion of fundamental rights and freedoms in Zimbabwe since approximately 1999. The country is in the midst of crisis on almost all fronts, resulting from the collapse of good governance, economic mismanagement and the dramatic deterioration in human rights and the rule of law. ZLHR supports and stands together with the LSZ and the majority of its members in the legal profession in Zimbabwe in continuing to provide an important voice and conscience in the defence of the rule of law, constitutionalism, the independence of the judiciary and the promotion and protection of human rights. ZLHR further remains confident that Dr. Mahoso's strategy to stir disharmony and disaffection in, and hatred for, the independent legal profession to achieve the chaos he has unleashed and achieved on the media profession will not work."

In addition, on August 23, 2006, the International Bar Association voiced its concern regarding the attack on the Law Society of Zimbabwe, as illustrated in the following excerpt:

"Justice Richard Goldstone, Co-Chair IBA Human Rights Institute, and retired South African Constitutional Court Judge said today that, 'The Law Society of Zimbabwe is a democratic and independent institution performing a very necessary role in a particularly difficult period in Zimbabwe's history. He added, 'The LSZ should be completely separate from the Executive, accountable to the law, and above all else to the nation's Constitution. For a law society to face criticism from a government-appointed official for carrying out this essential role in this environment carries all the outcomes of a threat.'"

The Human Rights Pro Bono Law Project cites the following well established provisions of international law in support of the Law Society of Zimbabwe, and calling upon the Zimbabwe government to take appropriate steps to desist its attacks and ensure the Society’s lawful status.

The 1990 U.N. Basic Principles on the Role of Lawyers provides, in Article 24, that: 

"Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity.  The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference."

The Basic Principles also uphold lawyers' freedom of expression:

"In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights..." 

The human rights community, including The Human Rights Pro Bono Law Project, collectively supports the position that the Zimbabwean government should support the work of lawyers and human rights advocates like those named in the articles. Through various modes of communication, the human rights community has urged the Zimbabwe government, specifically President Mugabe, to make clear its support for the legal profession in Zimbabwe, and for its rights to regulate its own professional association which may speak freely on matters of public policy, including engaging in public criticism of government policies.

The 1998 U.N. Declaration on Human Rights Defenders states that:

"The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration."

Zimbabwe’s human rights obligations include both the commitments contained in the Constitutional Bill of Rights and the international treaties to which it is a State Party. Zimbabwe is State Party to, amongst others, the International Covenant on Civil and Political Rights (ICCPR). In addition, the African Charter on Human and Peoples Rights and the Resolution on Human Rights Defenders in Africa by the African Commission, and the International Covenant on Civil and Political Rights require that the government guarantee respect of human rights and fundamental freedoms throughout the country.  This includes the freedom to form, operate, and participate in independent associations.  Supporting the work of independent lawyers and human rights defenders is essential if the government is to begin fulfilling its international obligations in this regard.

Under Zimbabwe’s legal system, international treaties which have been acceded to or otherwise ratified are not automatically incorporated into national legislation. According to Section 111b of the Zimbabwean Constitution, international conventions, treaties and agreements which have been acceded to, concluded or executed only form part of Zimbabwean law once an Act of Parliament has been passed. Neither the ICCPR nor the African Charter has been incorporated into Zimbabwe’s domestic laws.

However, under international law, international treaties must be observed in good faith by those States which have ratified or acceded to them. Furthermore, a State Party may not invoke the provisions of its national law as justification for its failure to implement a treaty. In this sense, States Parties are obliged to repeal or amend domestic laws to ensure that they are consistent with international treaties as well as to adopt measures to ensure the implementation of the obligations contained in the treaties to which they are party.

The rights to freedom of expression, association and assembly are fundamental to the work of human rights defenders. These rights are enshrined in the Constitution of Zimbabwe (sections 20 and 21), the ICCPR (Articles 19, 21 and 22) and the African Charter (Articles 9, 10 and 11).

While the rights to freedom of expression, association and assembly are not unlimited, international human rights law prevents governments from arbitrarily restricting these rights. In respect of rights contained in the ICCPR the UN Human Rights Committee has stated:

"States Parties must refrain from violation of the rights recognized by the Covenant and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.”

The African Commission on Human and Peoples’ Rights (African Commission) has repeatedly affirmed the rights to freedom of expression, association and assembly. The African Commission’s Declaration of Principles on Freedom of Expression in Africa, adopted at the 32nd Session of the African Commission held in October 2002 in Gambia, reaffirms the fundamental importance of freedom of expression as a means of ensuring respect for all human rights, stating that freedom of expression is a fundamental human right and an indispensable component of democracy. The declaration makes clear that any restrictions on freedom of expression should be prescribed by law, serve a legitimate interest and be necessary and in a democratic society. This echoes the language of the ICCPR which states:

"No restrictions may be placed on the exercise of [the right to freedom of association] other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."

In 2004 the African Commission on Human and Peoples’ Rights appointed a Special Rapporteur for Human Rights Defenders in Africa. In its resolution, the African Commission called upon member states:

"to promote and give full effect to the UN Declaration on Human Rights Defenders, to take all necessary measures to ensure the protection of human rights defenders and to include information on measures taken to protect human rights defenders in their periodic reports"

A well-functioning justice system is vital to virtually all efforts to improve respect for human rights. Zimbabwe’s human rights defenders have worked for truth, justice and reparation on behalf of the victims of human rights violations and have consistently insisted on the independence and impartiality of the judiciary as the cornerstone of human rights protection.

In support of the Law Society of Zimbabwe, and human rights in general, The Human Rights Pro Bono Project joins several human rights organizations, such as Amnesty International, in actively advocating the following ten recommendations to the Government of Zimbabwe:

1.         Repeal or amend all national legislation which is incompatible with international human rights law and standards including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. In particular, the government must amend or repeal repressive provisions of the Public Order and Security Act, the Access to Information and Protection of Privacy Act and the Private Voluntary Organizations Act. Any law that replaces the Private Voluntary Organizations Act should be fully in line with Zimbabwe’s human rights obligations and international standards in respect of human rights defenders.

2.         Ensure that the principles contained in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms are incorporated into national law and fully implemented. Authorities at all levels of government should explicitly commit themselves to promoting respect, protection and fulfillment for human rights, and to the protection of human rights defenders.

3.         Fully implement the recommendations contained in the report of the African Commission fact-finding mission to Zimbabwe. Specifically, Amnesty International, has urged the Government of Zimbabwe not to undermine the African Commission on Human and Peoples’ Rights in its efforts to discharge its mandate under the African Charter, to which Zimbabwe is a state party.

4.         Incorporate international human rights law and standards into national law and ensure all provisions are fully implemented. As Zimbabwe has ratified, inter alia, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, national legislation must be brought into line with the fundamental rights and freedoms contained in these legal standards, recognizing and impartially enforcing them.

5.         Issue invitations to the following: the UN Special Report on torture and other cruel, inhuman or degrading treatment or punishment, the promotion and protection of the right to freedom of opinion and expression, the independence of judges and lawyers and the Special Representative of the UN Secretary General on the situation of human rights defenders and the African Commission Special Report on Human Rights Defenders.

6.         End the human rights violations by the police and other law enforcement officials and ensure that police officers abide by the highest standards of professionalism and respect for human rights. The Government of Zimbabwe must cease to use the police and other law enforcement officials for political purposes, including for the suppression of peaceful public assemblies and the persecution of opposition parties, independent media workers and human rights defenders.

7.         Protect the right of all Zimbabweans to an effective remedy, including access to justice, restitution, compensation and rehabilitation, by respecting the judgments of the courts of Zimbabwe (without prejudice to the right of appeal) and enforcing judicial remedies.

8.         Protect the independence and impartiality of the judiciary as the cornerstone of a State committed to upholding its human rights obligations. Measures should be put in place to ensure that the independence of the judiciary is safeguarded in line with the UN Basic Principles on the Independence of the Judiciary.

9.         Investigate all cases of torture, ill-treatment, unlawful arrest and detention and, if sufficient evidence is gathered, prosecute the suspected perpetrators. Ensure that prompt, thorough and impartial investigations are conducted into all human rights violations, including those committed against human rights defenders. If sufficient evidence is gathered, the suspected perpetrators should be prosecuted and the victims or their relatives provided with full reparation. The results of such investigations should be made public.

10.       Ensure that human rights defenders have equal access to the law and that judicial investigations and proceedings against them are conducted in accordance with international law and standards for fair trial.

SAMPLE LETTER

H.E. Robert G. Mugabe

Office of the Executive President

P.O. Box 7700 , Causeway Harare

Republic of Zimbabwe

Fax: (011.263.4) 70-05-72

H.E. Boniface Guwa Chidyausiku

United Nations Representative of Zimbabwe

128 E. 56th Street

New York, NY 10022

Fax: (212) 308-6705

Phone: (212) 980-9511, 5084

H.E. Machivenyika Tobias Mapuranga
Ambassador of Zimbabwe to the United States
1608 New Hampshire Avenue, N.W.
Washington, D.C. 20009

President Mugabe:

I am deeply troubled by the recent attacks against independent lawyers launched by a member of your government, Tafataona Mahoso, the chairman of the Media and Information Commission.   On August 6 and 20, Mr. Mahoso published articles attacking the reputation of the Law Society of Zimbabwe, the organization created by Zimbabwean law to regulate the legal profession. 

Among many inflammatory accusations, the articles claim that certain members of the Society are attempting to bring colonial rule back to Zimbabwe.  This and other false allegations are directed toward the Society’s elected leaders who have been openly critical of the government’s human rights violations.  

Mr. Mahoso has been responsible for closing down all independent radio stations, television channels, and daily newspapers in Zimbabwe.  Therefore, I am concerned that the recent articles may signal an imminent legal threat to the existence and independence of the Law Society itself.

The 1990 U.N. Basic Principles on the Role of Lawyers provides, in Article 24, that:  “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity.  The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”

The Basic Principles also uphold lawyers’ freedom of expression: “In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights…”  It is precisely these legitimate activities that Mr. Mahoso appears to condemn.
  
In his articles, Mr. Mahoso mentions by name several well known champions for human rights, rule of law, and democracy in Zimbabwe.  This appears to be an attempt to tarnish their reputations in the eyes of the Zimbabwean public and to pressure them to stop their peaceful and legitimate legal activities. 

The Zimbabwean government should support the work of lawyers and human rights advocates like those named in the articles.  I urge your government to make clear its support for the legal profession in Zimbabwe, and for its rights to regulate its own professional association which may speak freely on matters of public policy, including engaging in public criticism of government policies.

The 1998 U.N. Declaration on Human Rights Defenders states that: “The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.”

In addition, the African Charter on Human and Peoples Rights and the Resolution on Human Rights Defenders in Africa by the African Commission, and the International Covenant on Civil and Political Rights require that the government guarantee respect of human rights and fundamental freedoms throughout the country.  This includes the freedom to form, operate, and participate in independent associations.  Supporting the work of independent lawyers and human rights defenders is essential if your government is to begin fulfilling its international obligations in this regard.

Thank you for your attention to this most serious matter.  I will continue to monitor this and similar cases closely.