Zimbabwe: Safety and access to justice

Introduction

Zimbabwe has entered a new era. The incoming President, Emerson Mnangagwa, has determined that his government will represent a decisive break with the past; and has declared himself and his party to be the agents of change that Zimbabwe needs. Determined to end years of relative isolation, the President is seeking to present his administration as the solution to a set of complex and inter-related problems. Although many of these problems are large, few are ultimately likely to prove harder than the challenge of promoting equitable and transparent safety and access to justice for all Zimbabweans.

The purpose of this study is to attempt to understand the perspectives of ordinary citizens on an issue of grave importance to them, their new leaders, the country and the international community. The focus of the work was on understanding the lived experiences and perceptions of ordinary Zimbabweans relating to safety and access to justice in their communities. It takes place against a backdrop of an impending election where safety, security and justice[1]will be key issues of concern to people and politicians alike.  Differentiating between the safety and justice concerns of ordinary people on the one hand, and the role of security in the body politick is difficult.    But by focussing on the perspectives of ordinary citizens, this report seeks to be able to offer some insight into the (micro) context within which any (macro) change might land.  This task is made slightly easier by the widely held view (encapsulated in 2015 Sustainable Development Goals amongst others) that security and justice are essential enablers for sustainable development – something borne out by the central importance afforded to safety and justice by almost everyone to whom we have spoken in pursuit of its work.

Zimbabwe has a number of social assets upon which to build:  its institutions are relatively strong; it has decision makers and officials who are skilled at policy development and administration; and it has experienced justice and security actors.  It also has a population which wants to work with government to ensure that the services it delivers are designed around the needs of the citizens.  The country can also rely on significant international goodwill if the forthcoming elections go well.

What we did

The study – carried out in May 2018 – is based on a review of secondary data, and field visits to six urban, peri-urban and/or rural areas in Harare, Mutare, Masvingo, Kwekwe, Bulawayo and Gwanda.  During the field visits, twelve Focus Group Discussions (FGD) were convened, each constructed to capture a cross-section of Zimbabwean society.  This cross-section was designed to represent the views of young people, women, key populations (including the LGBTI community) and people living in both agricultural and artisanal mining areas.  In parallel, fourteen Key Informant Interviews (KII) with senior managers of various Zimbabwean organisations working with local communities, heads and senior practitioners in civil society organisations were also held.  In total the work draws on the views of approximately 200 Zimbabweans.

What we found

Zimbabwe is sometimes held up as an example of how resilient institutions can help to navigate difficult politics.  (Although that is not to say that these institutions would not themselves benefit from transformation.)  And, political violence aside, the relatively low level of inter- and intra-communal violence in the years since independence appear to be a testament to this.  But years of erosion have taken a toll on the resilience and effectiveness of the key institutions, leaving Zimbabwe currently little better than mid-table, for example in the World Justice Project’s Rule of Law Index (2017-18).  It has also left Zimbabweans sure that they shouldenjoy better formalsafety and justice services, but increasingly feeling that they have been left little choice but to take matters into their own hands.

Perceptions of Safety

Zimbabweans have a sophisticated understanding of the mix of factors which affect their safety – as individuals, as members of interest groups and in their communities.

3.1.1    A surge in violent crime, driven by the economic situation, concerns citizens

Citizens report that they have experienced a rise in violent crime in their communities since the Government of National Unity (2008-13) and in particular in recent years.  They believe that this rise is as a result of the economic conditions in the country – something which they acknowledge is not just a recent phenomenon.  But, as previously reported, since the change of government high levels of citizen expectation have generally been disappointed; and there is a growing sense that lack of economic opportunity is driving both crime against the person and the household; and crimes flowing from the negative social consequences of long term unemployment and hopelessness, such as substance abuse and drug taking.  There is some sense that such crime is affecting women and girls disproportionately; and that the authorities are either not paying enough attention or are choosing not to act.

3.1.2    Pressure on gender roles is contributing to a rise in domestic violence

Perhaps partly associated with this rise in violent crime driven by the poor state of the economy is an increase in domestic violence, again affecting women and girls disproportionately.  But interviews also suggest that changing gender roles in (especially traditional) society is also to blame.  Many people, including many women, appear to believe that the role of providing for a family is that of the man.  With men experiencing difficulty in obtaining a stake in the formal economy, women have – as is often the case – had to step in as providers and protectors for their families.  The tensions resulting from this emerging role reversal are causing difficulties within families, households and communities.  The police response to domestic violence is cited as a further source of difficulty.  Citizens report that some police personnel still assume that a woman victim of domestic violence has in some way “earned” their punishment and they are often, therefore, left to the mercies of their menfolk.

3.1.3    A rise in violence associated with the informal economy

Another consequence of the poor economy is the increasing reliance of many on the informal economy.  But many respondents reported that they are uncomfortable with the rising level of violence associated with it.  Women of all ages in particular report increasing levels of unwanted and unwarranted harassment and violence on taxis, on the streets and in their communities. As previously reported, the informal economy is the only credible source of livelihood for the vast majority of Zimbabweans.  By definition unregulated, and largely unpoliced, the informal sector appears to be setting its own rules and limits.  People report that the police are barely responsive to the situation, and whilst they appreciate interventions by the military many citizens also report becoming unwitting victims of the brutal street justice meted out by some soldiers.  And this same street justice is affecting those people trying to make what passes for an honest living on the streets.  In many respects, the extractive brutality of the police is being replaced by that of individuals in the military, who lack the professionalism to behave in any other way.

One particular sector of the informal economy is experiencing a significant wave of violence.  Communities built around artisanal mining, itself a valuable contribution to the economy, report that they are suffering violence from both the politically-associated “machete” gangs which control the business; and the military which purports to try and control them, but which is in fact in direct competition with the artisanal miners.  To compound this, variability in production leads to lean periods and periods of high income.  During the lean periods, desperate artisanal miners often turn to robbery, theft and even murder to assure their livelihoods.

3.1.4    Pardons may be putting unrepentant criminals back on the streets

In an effort to reduce prison over-crowding, a large number of prisoners have been pardoned and returned to the streets and their communities.  Although some of those released may well have been improperly imprisoned themselves, many citizens believe that the releases have contributed to the supply of people in their communities with a penchant for criminal violence; and blame the policy for exacerbating their safety concerns.  There is some evidence to suggest that a number of people released under the Presidential pardon have indeed been re-arrested for new acts of criminal violence and subsequently re-imprisoned.

3.1.5    Concerns about the election

Fears about the forthcoming election – and the nature of the political dispensation which will flow from it – have focussed minds on a source of potential external threat.  Perhaps picking up on government’s desire – verging on need – to bank a credible election in 2018, coupled with statements of international support for Zimbabwe’s new dispensation, people are apprehensive about the forthcoming plebiscite.  Despite the oft repeated urging of political leaders of all stripes to avoid violence and intimidation in the electoral process, citizens report that they still feel under pressure to conform to norms which may owe more to the practices of the past than any new, more liberal direction for the future.  For instance, some say that they are routinely required to show their voter registration documents in exchange for goods and services from government.  Others report being asked for their voter identification number and watching it being entered into a ledger but with no explanation as to why.  Citizens fear that to not conform will leave them even more vulnerable, although to what proximate threat is hard to say.  It is not clear that this is an officially sanctioned practice – it could just be evidence of an ingrained habit borne of years of top-down direction.  But older voters, with experience of a number of elections in Zimbabwe’s recent past are unsure to what degree official assurances about free and fair elections can be trusted.

3.1.6    The pressures of an unresolved past

Behind all these current concerns lurks the spectre of Zimbabwe’s unresolved past.  A recurring theme in some of the FGDs was the enduring damage of past events like the Gukurahundi killings and the electoral violence of previous elections, particularly those in 2008.  Aside from the trauma associated with being a primary victim of events like these, the ramifications for ordinary people rumble on. Secondary victims, including families and descendants of primary victims, report enduring difficulty with obtaining basic documentation such as birth certificates and National Identity Cards. The impact of these difficulties is hard to quantify, but aside from access to government services, the lack of formal means of identity means that another generation is being side-lined in the education system with obvious consequences for their access to the economy in the future.  Solving these problems is not straightforward.  But tackling the bureaucratic obstacles might well prove easier than addressing the very real need for reconciliation and restitution over the years to come.

3.2 The role of the security sector

As well as these perceptions about the communities within which they live, citizens also fear that competition within and between formal security sector institutions leaves them additionally vulnerable.  This report is not primarily about the formal security sector institutions but these reflections might offer useful insight to those planning work with them in the future:

3.2.1    The police are resentful about the events of November 2017

The police are filtering back onto the streets and into communities in Zimbabwe.  Although their removal, following the resignation of the former President in November 2017, was initially welcomed, it has become clear to many that society does indeed want and need the legitimate services of the police.  But a new problem has appeared.  It is clear that the police – mostly individuals, but perhaps also at an institutional level – are resentful about the manner of their removal from public life.  Many have suffered a reduction in living standards with the reduced opportunities for extortion.  But they are also still smarting at their treatment at the hands of the military in recent months, which they regard as a form of humiliation.  Now that the police are returning to something like normal duties (albeit with reduced levels of corruption), they appear to be engaging in what might be described as ‘revenge indifference’, often refusing to take action whilst urging complainants to seek the help they need from the military.

3.2.2    Growing discomfort with the perceived militarisation of society

Related to the growing sense that Zimbabwean society is lacking something important through the absence (or inactivity) of the police, is a growing concern about the behaviour, impunity, and lack of appropriate experience and training of the military.  Citizens generally acknowledge that the military were a necessary presence in their lives during the transition.  But they now believe that the absence of the kinds of mediation and community conflict resolution skills which the police offer are a threat to their everyday safety and welfare.  Even the very best military training is poor preparation for police work in communities, and every day citizens observe examples of overzealous action taken by some soldiers trying but failing to promote the rule of law.  The result is a growing apprehension (verging on fear) about the conduct of the military in civilian life.  Citizens now appear to understand that the roles of the police and the military are different; and that – in the right place and at the right time – they need both.

Perceptions of justice

Similarly, Zimbabweans have a sophisticated understanding of issues related to justice as it affects them in their communities.

3.3.1    Justice is beyond the reach of ordinary people

In exploring citizen perspectives on justice, there is a clear sense that ordinary people believe they should be able to enjoy equitable access to fair dispute resolution mechanisms. They want to have access to courts and lawyers; and they want to benefit from justice mechanisms which uphold the law. But there are two key constraints which hinder this access: the cost of legal recourse and, related to this, the time it takes to get it; and external interference in the processes.

Ordinary people cannot afford the costs of legal representation.  And they cannot afford the cost of travelling to and from courts which often schedule hearings far away which are delayed or adjourned frequently. As a result, people either abandon formal legal proceedings; or do not initiate them.  There is a real sense that the costs and logistics of formal legal recourse are forcing people to turn to community based (and entirely unregulated in a formal sense) justice.  In many peri-urban (and in some urban areas), this can take the form of vigilante justice.  (Traditional dispute resolution mechanisms continue to be used in rural areas.)  Citizens also believe that those who can pay, can pay for the result they want.  They almost never take cases against important or influential people or institutions fearing that the justice system will simply be bought off.

3.3.2    The criminal justice system is not working as well as it should

Aside from the cost of access to the formal criminal justice system, the sense that vested interests will always outgun the little person acts as a brake on the effectiveness of the system as a whole. Justice denied leaves a lingering sense of resentment amongst a population which expects and wants better from the formal mechanisms.  Court officers, lawyers and the police are all seen to be complicit in perverting the course of natural justice, further undermining confidence in the system. These problems are further amplified by the shortage of personnel in a criminal justice system which is beset by – real – backlogs and delays.  One of the consequences of this is that detainees can remain in jail for a very long time awaiting trial.  Some people believe that this too is evidence of corruption in the system, potentially leading to a lack of fairness and miscarriages of justice.

Perversely though, the criminal justice system is thought to work relatively well in instances where there are no elite interests involved.  If, for example, a case of sexual violence makes it through the filters of culture and police indifference, the formalcourts are considered to deal with them fairly and well. (Although it takes a degree of tenacity to get a case to court in the first place.)

3.3.3    Traditional justice is excluding the people it is meant to serve

Ordinary people are increasingly concerned that traditional justice mechanisms are being compromised by rent seeking, political co-option and influence peddling.  In Zimbabwe, traditional justice mechanisms have generally been thought of as accessible to rural people and as acceptably fair forums within which justice of a type can be seen to be done (albeit often to the detriment of the interests of women and other minorities).  But the spectre of corruption is starting to permeate the traditional mechanisms too. Low level factors (such as nepotism) are reported to be increasing; as is the co-option of the traditional structures by political interests.  This has a particularly detrimental effect on issues of inheritance and access to land and water – easily the most significant disputes at local level for both women and men.

3.3.4    Minorities are routinely excluded

Neither the formal nor the traditional mechanisms of justice appear to handle the concerns of minorities particularly well.  Women, disabled people and internally displaced people find access to either system particularly difficult.  But at least they are acknowledged as having rights, even if they are subjugated to the interests of local (and usually male) elites.  Zimbabwean society continues to frown on homosexuality, and people from the lesbian, gay, bi, trans and intersex (LGBTI) communities who suffer doubly from societal disapproval and a legal system that does not either recognise or uphold their rights.  This is symptomatic of a legal system which cannot or does not adapt to embrace emerging and/or new ideas of inclusion and protection.  Whilst the LGBTI community is a prominent example of this, others might include the protection of illegal migrants and sex workers, groups which society generally disapproves of; and for whom there is no societal will to adapt the law in order to extend its protection to them.

Conclusion

There is a growing sense amongst ordinary people in Zimbabwe that their safety is under increasing threat; and that the mechanisms of justice are either effectively denied to them or are co-opted by elite interests and will work against the citizen. What is striking about this is not any form of hopelessness about the situation, but a strong sense on the part of ordinary people that this is not right; and that Zimbabwe could and should be better than it is.

The lack of safety appears to stem from the dire economic situation and the violence increasingly associated with the informal sector; apprehension about the forthcoming elections and the nature of any future dispensation; and the ability of elites (even local ones) to act with impunity.  This lack of safety is amplified, in part, by fears that the police and military are both part of the solution but – unfortunately – currently part of the problem; and that ordinary people will be the victims of any tension between the two.  Put simply, there is little confidence that actions by, and choices made about, the security and justice sectors in Zimbabwe will place the needs and interests of citizens at their heart.

The lack of access to justice is at once both easier and harder to define.  The justice system suffers from the same corruption and co-option problems of other sectors, including the security sector.  But there is a latent capacity in the sector to be better and to do the right thing.  The problem is both political will and the incentives which govern the behaviour of the people in the system.  But citizens want and need better access to fair and effective justice mechanisms, and are willing to collaborate with them to secure the improvements that they want.

Against this backdrop, there is much that can be done to ameliorate the situation.  The structural problems of delivering safety, security and access to justice for both citizen and state should not be underestimated. But, as in other areas, it is clear that ordinary people want to work with government to achieve both cultural and institutional reform for mutual benefit.  The creation of forums within which citizen and state can work collaboratively first to identify the problems that they share, and then to develop solutions which meet the needs of both would be a good starting place.  As would a clear and unequivocal statement about the centrality of the rights and interests of ordinary citizens in defining the future role and purpose of the security and justice sectors in Zimbabwe’s civilian-led democracy.