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V. Arbitrary Arrest and Detention of Civil Society Activists

An arrest or detention is arbitrary when not carried out in accordance with the law, or if the law allows for the arrest and detention of people for peacefully exercising their basic rights such as freedom of expression, association, and assembly.19 

Zimbabwe is a party to the International Covenant on Civil and Political Rights, which guarantees in article 9 that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”20  Article 9 further mandates that persons be informed at the time of their arrest of the reasons for the arrest and the criminal charges, if any, against them.  They must be brought “promptly” before a judge or other authorized judicial officer, and have the right to challenge the lawfulness of their detention before a court. In addition, victims of unlawful arrest or detention have “an enforceable right to compensation.”21 The purpose of this guarantee is to obligate the state “to define precisely the cases in which deprivation of liberty is permissible and the procedures to be applied” and to ensure that “the law itself must not be arbitrary” in this regard.22  The prohibition against arbitrary arrest and detention is also found in the African Charter on Human and Peoples’ Rights.23

Zimbabwe’s constitution also contains guarantees against arbitrary arrest and detention.  Section 13 (1) states that “No person shall be deprived of his personal liberty save as may be authorized by law,” and in execution of the order of a court.24 Section 13 (3) of the constitution highlights the suspect's right to be informed of the reasons for arrest and to have a legal representative, and section 13(4) refers to the right  of a suspect to be brought before a court without undue delay.

Under Zimbabwe’s Criminal Procedure and Evidence Act, once a suspect is arrested, the authorities must submit provisional charges to the competent judicial authorities within 48 hours or release the suspect. If further investigations are required, then the police must obtain a court order for further detention.25 However, police sometimes hold detainees for more than 48 hours without seeking the required 48-hour extension from the courts, in violation of the constitution.26 

The breakup of peaceful protests by Zimbabwean authorities (even if effected without unwarranted or excessive use of force) violates the rights to freedom of expression, association, and assembly. These rights are enshrined in Zimbabwe’s constitution and international law.27 While these rights are not unlimited, international human rights law prevents governments from arbitrarily restricting these rights.28 Furthermore, the African Commission on Human and Peoples’ Rights has repeatedly affirmed the rights to freedom of expression, association and assembly.29 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.30

The police have often used key provisions of the Public Order and Security Act to justify arrests that violate the rights to freedom of expression, association and assembly.31 Sections 25 and 26 of POSA grant the police wide powers to prevent and breakup public gatherings if they are deemed to endanger public order. The police have used these provisions to strictly monitor public meetings or violently disrupt peaceful demonstrations.

The police have also loosely interpreted certain provisions of POSA.  Section 24 of POSA merely requires that the police be notified ahead of time about a public meeting; once the police have been notified, the meeting can go ahead.32 However, according to civil society activists who spoke to Human Rights Watch, police authorities insist that police permission—and not mere notification—is required to hold public meetings, gatherings or demonstrations. This permission is granted or withheld on arbitrary grounds and is frequently denied to activists who try to hold public meetings or demonstrations. Activists who go ahead with such meetings are then arrested for holding a meeting without permission.

The broad wording of key provisions of POSA and the misapplication of some provisions of the act has resulted in violations of the rights of Zimbabweans to freely assemble, criticize the government and the president, and engage in, advocate, or organize acts of peaceful civil disobedience. Most of the activists who have been arrested under POSA informed Human Rights Watch that charges against them were either dropped or dismissed in court. 

The police have also regularized the practice of arbitrary arrest through the use of other acts such as the MOA.   Peaceful demonstrators are sometimes arrested and charged under the MOA with “conduct likely to provoke a breach of the peace.” Under the act, violators must pay a fine in order to be released from custody.33 According to several lawyers and civil society activists interviewed by Human Rights Watch, those charged who refuse to admit guilt and pay the fine, or say they are unable to pay it, are often threatened with more serious charges and told that they will be detained for 48 hours or more.  The inhumane conditions in many of Zimbabwe’s police cells, and the fear of police brutality while in detention, force many civil society activists to pay the fine and accept guilt for crimes they have not committed to secure a quick release. The deliberate misuse of the MOA by the police leads to the arrest and detention of activists even for the peaceful exercise of their basic rights.   It also allows the police to avoid a judicial review of the legal grounds for the arrest, and constitutes an abuse of police power. 

Arbitrary arrest and detention of NCA and WOZA activists

Repeated incidents of arrest and detention of civil society activists are exemplified by the case of two non-governmental organizations, the Women of Zimbabwe Arise (WOZA) and the National Constitutional Assembly (NCA).  Members of these two organizations appear to have been targeted for their public criticism of the government’s policies, and in the case of the NCA for its perceived alliance to the political opposition.

In the past year the police have on numerous occasions arrested members of the NCA throughout the country (the numbers arrested amount to several hundred).34 The authorities have then either released without charge or dropped all charges against the NCA activists taken into custody; Columbus Mavunga, information officer for the NCA, told Human Rights Watch that none of the NCA’s members has been tried in a court. The repeated cycle of arrest, detention, and non-pursuit of charges is applied to deter activists from carrying out their work. According to one activist who spoke to Human Rights Watch, “They either assault you physically or psychologically. If you are detained for three days or so the charges are dropped. Sometimes they arrest you and release you with charges and you go for remand hearings three or four times and then the charges are dropped. Sometimes you go for a year and then they drop the charges. It can have a traumatic effect.”35

Women belonging to WOZA have been subjected to repeated arrests and detentions for engaging in peaceful demonstrations. In the past year alone police have arrested women from the organization on four separate occasions.36 

In February 2006, almost 200 women from the organization were arrested on Valentine’s Day for demonstrating against the government’s political and economic policies.37 During the arrests, police kicked and beat the women with batons. Many of the women were quickly released after they paid fines to the police for breaching the peace under section 7 of the MOA. However, according to WOZA 63 of the women were held in detention for three days, until a magistrate charged them with holding a demonstration without permission under POSA and released them on free bail. These charges were later changed to a violation of section 7 (c) of the MOA: "Doing an act which is likely to lead to a breach of the peace or to create a nuisance or obstruction."38 




19 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Zimbabwe, May 13, 1991. Article 9(1) states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”  According to the UN Working Group on Arbitrary Detention, the deprivation of liberty is arbitrary when a case falls into three categories: when there is no legal basis to justify the deprivation of liberty, when the deprivation of liberty violates certain articles of the Universal Declaration of Human Rights and the ICCPR, and when international norms relating to the right to fair trial are ignored or only partially observed.  UN Commission on Human Rights, Working Group on Arbitrary Detention, http://193.194.138.190/html/menu2/7/b/arb_det/ardintro.htm  (accessed October 18, 2006).

20 ICCPR, article 9.

21 Ibid.

22 Manfred Nowak, CCPR Commentary (Kehl am Rhein, Strasbourg, and Arlington, VA: N.P. Engel Publisher, 1993), pp. 160, 172.

23 African Charter on Human and Peoples’ Rights (ACHPR), adopted June 27, 1981, OAU doc. CAB/LEG/67/3rev.5 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Zimbabwe in 1986, article 7.

24 Constitution of Zimbabwe, 1979, section 13 (1).

25 See  Zimbabwe’s Criminal Procedure  and Evidence Act, section 32 (2);  Human Rights Watch interviews with human rights lawyers, Harare,  September 21–October 5, 2006.

26 Under the Criminal Procedure and Evidence Act, section 32 (3) (b), police are required to obtain authorization from a public prosecutor or magistrate for an additional extension of 48 hours.  International legal standards require that detainees be brought before a judicial officer promptly, though “promptly” has not been clearly defined.  However, the Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, has questioned whether detention for 48 hours without being brought before a judge is not unreasonably long.  Report of the Human Rights Committee, vol. I,  A/45/40, 1990, para. 333, Federal Republic of Germany.

27 These rights are enshrined in sections 20 and 21 of the Zimbabwe constitution, ICCPR articles 19, 21 and 22, and ACHPR articles 9, 10 and 11.

28 CCPR Committee , General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.1,  May 26, 2004, para. 6.

29 African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression in Africa, I(1), Gambia, October 2002.

30 African Commission on Human and Peoples’ Rights, Resolution on the Right to Freedom of Association, Tunis, March 1992.

31 The Public Order and Security Act (POSA), 2002. Sections 23–31 of the act regulate the organization and conduct of public gatherings and provide the police with extensive powers to control them.

32 Section 24 of the POSA requires the organizer of a public meeting or gathering to notify the regulating authority (in this case the police) of the intention to hold a public gathering. The organizer of a public gathering is required to give at least four clear days’ written notice of the holding of the gathering to the regulating authority for the area in which the gathering is to be held.

33 Miscellaneous Offences Act of Zimbabwe, 1964. The MOA provides for the punishment of a broad range of offenses including penalties for “riotous or indecent conduct,” “threatening or abusive behavior,” or conduct likely to provoke a breach of the peace.

34 On May 11, 2006, 41 members of the NCA were arrested in Harare during demonstrations calling for a new constitution in Zimbabwe. On July 12 the NCA held demonstrations in Harare, Mutare, Bulawayo, Gweru, and Masvingo.  In Mutare 14 people were arrested and 128 people were arrested in Harare. The state did not pursue charges against them. In September demonstrations were held in Mutare, Bulawayo, Gweru, and Masvingo, with 170 people being arrested in Mutare. In Harare, the demonstrations did not take place because four activists were detained.

35 Human Rights Watch interview with NCA activist (name withheld), Harare, September 26, 2006.

36 Women from the organization were arrested in Bulawayo and Harare in February, May, August and September 2006. In August 100 WOZA women were arrested and currently face charges under section 37 of the Criminal Law (Codification and Reform) Act for “participating in a public gathering with the intent to cause public disorder, breach of peace or bigotry.” See public statements by WOZA, http://www.kubatana.net/html/archive/women/060214woza.asp?sector=hr&year=0&range_start=241  (accessed October 10, 2006).

37 Human Rights Watch interview with Harrison Nkomo, human rights lawyer, Mtetwa and Nyambirai law firm, Harare, September 26, 2006. See also public statements by WOZA, http://www.kubatana.net/html/archive/women/060214woza.asp?sector=hr&year=0&range_start=241 (accessed October 10, 2006).

38 Ibid. See also “63 members of WOZA to be charged under the Miscellaneous Offences Act,”  WOZA statement, May 10, 2006, http://www.kubatana.net/html/archive/women/060214woza.asp?sector=hr&year=0&range_start=241 (accessed October 10, 2006).