Sigh of relief to CSOs as Abel Chikomo is acquitted
25 November 2013
On Friday 22 November 2013 a Harare Magistrate Elijah Makomo set free Abel Chikomo. Abel Chikomo, a journalist and lawyer by training is the executive director of the Zimbabwe Human Rights NGO Forum. Chikomo had been on trial for allegedly running an “unregistered” organisation in contravention of the Private Voluntary Organisation (PVO) Act (Chapter 17:15). Chikomo was acquitted after his lawyer, Selby Hwacha, of Dube Manikai and Hwacha Attorneys and Board member of Zimbabwe Lawyers for Human Rights applied for discharge at the close of the State case after arguing that State prosecutors had failed to establish a prima facie case against the human rights campaigner. Please read more here.
Chikomo was first brought to court in 2011 on charges of running an ‘illegal’ organization after his organisation conducted a legitimate and lawful survey on transitional justice in Harare’s Highfield suburb. It took almost three years to bring him to trial. The case had been postponed several times in a move seen as attempts to harass Chikomo by keeping his life in limbo and interfering with his right to privacy and exercise of his profession. Some of the postponements were on 14 & 28 October 2013, and prior to that on 11 July 2013, when Chikomo had been served with summons by two police officers only identified as Detective Gandidzanwa and Chipwanya to stand trial on 01 August 2013 at Harare (Rotten row) Magistrates Court but on 1 August the case failed to take place. Yet again on Tuesday 19 November 2013 the trial was postponed to Friday 22 November after a top government official, Sydney Mhishi, failed to show up in court to testify as a State witness.
In acquitting Chikomo, the Magistrate noted that this was a case that should not even have been brought before the court because there was no evidence or merit.
In his defence the human rights campaigner stated that Section 2 of the PVO Act exempts “anybody or association of persons, corporate or unincorporated the benefits from which are exclusively for its own members. “He said the Zimbabwe Human Rights NGO Forum is a forum, association and common law universitas (entity) of 20 member organisations.
The Law that governs registration of non-governmental organisations in Zimbabwe
According to leading Zimbabwean legal experts we consulted, the registration of non-governmental organizations (NGOs) in Zimbabwe has been addressed through legislation since the colonial era; after attainment of independence, this legislative tradition was maintained. During the pre-independent Zimbabwe theWelfare Organisations Act (1967) was the main legislation used to register NGOs. This instrument was repealed by the Private Voluntary OrganisationsAct (“PVO Act”).
However, there are other ways in which NGOs can operate in Zimbabwe. For instance NGOs can register as non-profit making or charity organizations, trusts and common law universitas.
The Zimbabwe Human Rights NGO Forum (NGO Forum) has been operating as a common law universitas. The use of the membership form known as “universitas” originates from common law practice of recognizing an organisation, which has members, a constitution and activities that are entirely for the benefit of its members. Such an entity is excluded from registering under the PVO Act and is therefore not viewed as a PVO, but as the corporate form “universitas”.
Therefore, the Forum does not fall into the definition of PVOs as defined by the PVO Act. Under the PVO Act, organizations that are registered will be deemed to be Private Voluntary Organizations. PVOs are defined as “Any body or association of persons, corporate or unincorporate, or any institution, the objects of which include or are one or more of the following that provides for the provision of all or any of the material, mental, physical or social needs of persons or families; the rendering of charity to persons or families in distress; the prevention of social distress or destitution of persons or families; the provision of assistance in, or promotion of, activities aimed at uplifting the standard of living of persons or families; the provision of funds for legal aid; the prevention of cruelty to, or the promotion of the welfare of animals.”
In addition to the Forum many other organisations in Zimbabwe exist under many identities and carry out work which one might view as that of a PVO. Examples include organisations registered as institutions under the Health Professions Act or under the Psychological Practices Act, but rendering help to persons in distress in the form of medical counselling for victims of torture or organized political violence.
However, despite different legal regimes that allows establishing and setting up an NGO in Zimbabwe, their legal basis has always come under attack from the government. The Forum was one of the victims of such attacks on NGOs by the GoZ. The director of the NGO Forum Mr. Abel Chikomo was therefore formally charged for operating in violation of the Private Voluntary Organisations Act Chapter 17:05 (PVO Act) . The prosecution case was based on the false premise that the NGO Forum is a Private Voluntary Organisation (PVO) in terms of section 2 of the PVO Act and therefore bound to register under the Act.
Under the Zimbabwean law, the Forum is not a PVO. Its Constitution exhibits the qualities and capacities necessary to form a common law universitas. For instance Para 4 of the NGO Forum’s Constitution states that the NGO Forum has perpetual succession and is capable of acquiring and owning property and doing anything that bodies corporate may lawfully do. Further that it is capable of suing and being sued in its own name.
The PVO Act is viewed as draconian and outdated; “there is good reason to consider that certain provisions of the PVO Act, which was passed in 1966 at the height of apartheid, are unconstitutional. Section 6 of the Act seems to violate the freedom of assembly and association enshrined in section 58 as read with section 86 of the new the Constitution of Zimbabwe. Section 21(3) of the old Constitution, which was operational when Chikomo was charged did say that the mere fact that registration is required of an association does not amount to a violation of section 21(1) unless one can show that it is not reasonably justifiable in a democratic society.”
It can therefore be deduced from the NGO Forum case that the establishment and registering of NGOs in Zimbabwe is at the whims and caprices of the State officials who can use the existing legislation to yield undesired effects. Whether an organisation is or isn’t operating as a PVO and then ought to register hinges on the matter of interpretation. This is a serious infringement on the freedom of association and other related freedoms, which requires that interpretation of the Bill of Rights should be less strict to promote enjoyment of human rights.
Other cases of grave concern
On 11 August 2012 police arrested 44 members of the Gays and Lesbians of Zimbabwe (GALZ) after the launch of their annual report on human rights violations. The Board Chairperson of GALZ, just like the Forum Director, also faced charges of operating an unregistered organisation.
On 7 March 2013, police renewed their onslaught against prominent human rights campaigner Jestina Mukoko by summoning her to report at Harare Central Police Station for allegedly operating an “unregistered” organisation. Detective Chief Inspector Run’anga and Chief Superintendent Charles Ngirishi on Wednesday 06 March and 07 March 2013 telephoned Mukoko’s lawyer, Beatrice Mtetwa, summoning her to report at Harare Central Police Station to answer charges of running an “unregistered” organisation.
However, Mtetwa advised Run’anga that the Zimbabwe Peace Project’s board had resolved that it be represented by Dr Solomon Zwana, the organisation’s chairperson and not by Mukoko, since she is simply an employee of ZPP and that she could not answer registration queries as she does not have board authority to speak or act on behalf of ZPP. However, Run’anga insisted that the police were interested in having Mukoko at their “offices”. Mtetwa also advised Run’anga that ZPP is a registered organisation and had provided its registration papers and Constitution to the police last month.
Apart from the registration-related cases, Zimbabwe government’s history of treating NGOs has a very dark underbelly. The cases are too numerous to mention here but one that might be worth mentioning here is the one relating to the Women of Zimbabwe Arise, who have been harassed for exercising this right at every turn. For example, on Friday, September 20, more than 100 WOZA members staged a follow-on peaceful demonstration in Zimbabwe’s second largest city, Bulawayo. WOZA members marched to the main offices ofThe Chronicle, Bulawayo’s largest state-owned daily newspaper, to present a petition to the new Zanu-PF government that demanded an urgent review of civil servant salaries, revival of the economy, and respect for basic constitutional rights. Read more here.
Serious concerns have previously been raised on Zimbabwe’s reluctance to adhere to international norms and standards relating to civil liberties.
On 27 February 2013, in Geneva, three United Nations Special Rapporteurs issued a rare public joint statement urging the Government of Zimbabwe to respect international human rights norms and standards pertaining to freedoms of association, of peaceful assembly and of expression in the run up to the constitutional referendum on 16 March and subsequent elections which may take place next July. They did so after they had received increasing numbers of reports about acts of intimidation and harassment, physical violence and arrests against civil society actors, mostly working on human rights issues.
In addition the Forum, members and partners have raised these issues at the African Commission. According to the Forum’s Statement to the African Commission on Human and Peoples’ Rights at the recently 52nd Ordinary Session of the African Commission on Human and Peoples’ Rights, civil society organisations stated that:“The operating environment for human rights defenders and civil society remains heavily constricted. Human rights defenders are still viewed as enemies of the state working towards effecting illegal regime change in the country. This has resulted in continued attacks and persecution of the human rights defenders.It is our view that this trend will continue, as it is government’s effective tool to curtail democratic trends, since freedom of association is a sin qua non to the full realization of a democratic and open society.
In its statement dated 22 November 2013, after the acquittal of Chikomo, Amnesty International joined the call by saying that the acquittal was encouraging, but the fact that it comes after three years of harassment is further confirmation that the police continue to abuse the law to hamper the work of human rights defenders, Amnesty International said. “Bringing unfounded criminal charges against human rights defenders is one of the tools which have been consistently used to harass and intimidate Zimbabwe’s civil society. The Zimbabwean authorities must not let such conduct by police tarnish the new government’s pledges to improve their human rights record. They must act urgently to end the malicious use of spurious charges and trials against human rights defenders, and publicly denounce these practices.”, said Amnesty.
These sentiments have been echoed by Frontline Defenders who in their statement also dated 22 November 2013 says, ‘[They] welcomes this important ruling and urges that the Zimbabwean authorities consider this judgment before charging other human rights defenders under the PVO Act.
In a letter to President Robert Mugabe dated 4 September 2013, Human Rights Watch also identified the need for the new government to uphold activists’ rights to organize and operate freely without government harassment, as one of the key priority areas.