Senator Obert Gutu and Irene Petras on Question Time with Lance Guma

Both MDC formations in the coalition government gave in to demands by ZANU PF that human rights abuses committed before February 2009 should not be investigated by the new Human Rights Commission. Deputy Justice Minister Obert Gutu (an MDC-T Senator) and Irene Petras (Executive Director of Zimbabwe Lawyers for Human Rights) join the programme to debate this controversial concession and also give responses to questions sent in by listeners.
 
Interview broadcast 18 July 2012
 
Lance Guma: Good evening Zimbabwe and thank you for joining me on Question Time. Two weeks ago it was reported that both MDC formations in the coalition government gave in to demands by ZANU PF that human rights abuses committed before February 2009 should not be investigated by the new Human Rights Commission.

This concession set off heated debate and emotions. Tonight on Question Time we have invited the Deputy Justice Minister Obert Gutu, who is also an MDC Senator and Irene Petras, the Executive Director of Zimbabwe Lawyers for Human Rights. We also asked you the listener to send in your questions to help move this debate forward. Senator Gutu and Irene Petras thank you for joining us.

Obert Gutu: Good evening Lance, thank you for having me.

Irene Petras: Thank you very much and good evening.

Guma: Okay let me start with Senator Gutu: we understand MPs from the two MDC formations were pressured into accepting this deal despite their strong resistance in parliament. We are told Justice Minister Patrick Chinamasa told them that the matter had been agreed to by the negotiators from the three political parties. That does not sound very democratic Senator Gutu?

Gutu: Let me start by clarifying the issue regarding how the Human Rights Bill ended up being pushed through the House of Assembly. It would actually be inappropriate I think for anyone to say that members of parliament from the MDC were pressured into accepting something that they did not want.

Ordinarily the MDC has a parliamentary caucus that meets weekly in most cases when parliament is in session and it is at this caucus that all pertinent issues are discussed. There's very honest, very frank, very robust debate and views are not suppressed so for the insinuation that members of parliament were literally forced, if I may use that term, into agreeing to issues that they did not agree with, I do not think that is the position.

For what has happened is that there was a consensus that although there are a lot of things that we as a party are not happy with regarding the Zimbabwe Human Rights Commission Bill with particular emphasis to the cut-off date, it was felt that as a strategic move it is better maybe to have the Bill passed through parliament with all the obvious imperfections that are there so that by the time we go to the forthcoming historic and make or break elections, at least we would have a fully functional and operationalised Human Rights Commission.

Unlike the status quo where we have commissioners who were sworn into office, I think almost two or four years ago, they are occupying office but their Commission is not operational â€" why? â€" because there is no operationalised Act of parliament that would enable the Commission to start looking at human rights issues in a practical sense.

So yes one might say there was concession, yes there was concession but people should also appreciate and I would like listeners to bear with us, to say we are in a very difficult period, transitional phase this so-called inclusive government has been a very difficult experience for us as the MDC and I'm happy to say that when we look at issues, look at the global and holistic picture, it was always going to be difficult to have Zanu PF agree to the kind of Human Rights Bill that we would have wanted as MDC.

So we are saying half a loaf is better than nothing; I think it's better to have a functional Human Rights Commission rather than to have no Human Rights Commission at all going into the forthcoming historic elections.

Guma: Irene Petras, Zimbabwe Lawyers for Human Rights, what's your reaction to that?

Petras: Well Lance I think what we need to put on the table right at the beginning is the Global Political Agreement which was agreed by all three of the political parties that are currently in the inclusive government and now in that Global Political Agreement, undertakings were made to deal (a) with the human rights situation and the violations which continue and which were happening at the time that the inclusive government was set up (b) there was an undertaking that the culture of impunity was going to be dealt with.

So all the cases of political violence and past abuses were going to be looked into (c) there was also an undertaking that issues around national healing and reconciliation were going to be dealt with and by the three parties through the Global Political Agreement.

Now the three parties have been agreeing on the Human Rights Commission but what they haven't done is to show the same kind of urgency in dealing with issues of impunity and in dealing with the issue of national healing and reconciliation.

So now the public has got this perception and this belief that because so much effort and so much talk has gone into setting up this Human Rights Commission, that because the other two issues have been ignored they are going to be dealt with by the Human Rights Commission. And of course we have seen now what has happened and the time limits on what the Human Rights Commission can look at.

Obviously there's a lot of disappointment by the public, by victims and survivors and the families of those victims so I think that the three political parties have all got to share some of the blame for the disappointments that people are feeling now and also they cannot use that as an excuse to just shove aside the issues of impunity and national healing which are also critical issues in the GPA.

Guma: Now talking about that disappointment from people that Irene is talking about, we have a submission here that came via Face Book from Morris Mbuta and this is directed at Senator Gutu: he says "I talked to one of the MDC legislators who said this concession was a tactic to pave the way for a free and fair election. How is this going to create a free and fair election? And his other question is have you basically traded human rights to win an election?"

Gutu: Let me again maybe clarify the situation that we as MDC, we are obviously are not particularly happy with the final version of the Bill as I've already indicated but we are in a very difficult arrangement. We are basically in a forced marriage with Zanu PF.

I think listeners should understand, listeners should bear with me that this coalition government that we have was not the coalition government that we ordinarily would enter into, it was literally forced down the throats of the main political players as an outcome of the disputed elections of 2008.

I'm sure the history of the matter is quite clear so all we are saying that we are particularly aware as the MDC that people and that includes us, that includes the majority, if not all our supporters, they are not particularly happy with the fact that the cutoff date has been agreed to be February 13 2009 on which date the inclusive government came into existence.

But we are saying, if you look at it from a strategic point of view, I also agree with Irene that issues of impunity, issues of national healing have really not been given the priority attention that one would have wanted ever since the inclusive government came into existence three or four years ago and I'll be the first one to admit that perhaps we should have given more emphasis, we should have actually given more attention to issues of issues of national healing, to the issues of transitional justice rather than maybe just wait and then give the impression that perhaps there was going to be impunity.

And I'm not surprised that the general feeling out there is that there's been impunity or there is now impunity, that all perpetrators of the heinous crimes against human rights dating back to the Gukurahundi era of the early to the mid-80s; Murambatsvina fiasco and the 2008 election fiasco are going to be swept under the carpet.

I can assure listeners that nothing can be further from the truth. The mere fact that the Human Rights Commission Bill has a cut-off date of 13 February 2009 does not by any stretch of the imagination, imply that there has been impunity that has been granted to all perpetrators of human rights abuses…

Guma: But Senator Gutu for this Bill to pass it would have needed support from your MPs and from the reports clearly a lot of your MPs were opposed to this so how did the Bill go through?

Gutu: Look like I've already said, I'll be the first one to admit that not everyone was happy with the Bill coming or going through in the form that it did i.e. with particular reference to the cut-off date but we are saying that we are in a difficult arrangement, where we appreciate that although we as a party are not entirely too happy with this, sometimes you actually have as a caucus to agree on a common position.

And I believe that listeners will agree with me that it is virtually impossible to have unanimity especially on very emotive and you know, very emotive and sensational issues such as human rights issues in Zimbabwe but then as a party we have to move forward and I'm pleased that at the caucus, people, that is all the participants, the various members of parliament who attended, then realised that as a strategic move it is better to have a situation where we have this Bill go through as it is, and then simultaneously move forward to ensure that matters of transitional justice are also given the urgency that they deserve. i.e. make sure that the organ on national healing and reconciliation is fully operationalised because we all know that as I'm speaking to you Lance today, there is no Act of parliament that has been enacted to give the national organ on reconciliation and integration the force of legality.

So we are saying that by doing what we did i.e. by agreeing to have this Bill on the Human Rights Commission go through that would obviously open avenues for us now at this juncture to make sure that issues of transitional justice are also attended to simultaneously…

Guma: Okay let me bring in Irene, point taken there; Irene what would have been the ideal alternative? Senator Gutu seems to be alluding to Zanu PF's well-known intransigence and he's saying this was a necessary strategic move. What would have been your ideal alternative?

Petras: Well I think what should have happened is we should have had a three-pronged way of dealing with this issue and make sure that all three issues were prioritized. So what we should have seen is more sincerity by the inclusive government to prosecute perpetrators of violations which happened either in the election or further in the past.

What we should have also seen is at the same time that the Human Rights Commission was being agreed and set up, the organ on national healing should have also prioritized the setting up of a mechanism which would be able to look at the past human rights abuses; those which happened during previous elections, those that happened during the era of Gukurahundi and all of these past atrocities which are still fresh in people's minds and which need to be discussed and which need to dealt with.

By just dealing with the Human Rights Commission and essentially leaving the impunity, not prosecuting anybody and not showing urgency in setting up that, the transitional mechanism to look at those past abuses we are now in this situation. But what I do want to emphasise is that the Human Rights Commission is a very important body and it would be in the interests of some of the political parties for people to just ignore that Human Rights Commission, to not have any faith in it so that it will not be an effective mechanism in reducing or preventing conflict as we move forward.

And we all know that whenever an election is coming up, there's a lot of violence, the levels increase, there's a lot of violations and if we have a new Commission which has not got all the baggage of some of these other Commissions which are there like the Media Commission, the Electoral Commission, we have a very good opportunity to provide support to that Human Rights Commission.

At the same time I think we need to keep the pressure on to ensure that this other mechanism is going to be set up to look at the past abuses, that it becomes operational, that it has its own Act of parliament and we must also put pressure on the ministries and those who have control of the justice delivery system to ensure that perpetrators of violations who are very well known, there's a lot of evidence, there's a lot of information about what they've done in the past.

Those people need to face the criminal justice delivery system. We are talking about those who are in control of the police, those who are in control at the Attorney General's office and those who are in control in the Judiciary â€" they must show they are not partisan, that they are willing to look at and to arrest and to prosecute those perpetrators so that people can have confidence that what has happened in the past is being addressed but at the same time they can bring any new violations to a Human Rights Commission which will be able to investigate and try and either reduce or prevent conflict arising as we move forward.

Guma: Isn't the problem Irene the fact that we already have a coalition government comprising the victims and the perpetrators and it seems it goes without saying that nothing can be achieved as long as we have this coalition government because you cannot seriously expect the perpetrators to agree to themselves being prosecuted?

Petras: Well I think that's the conundrum that we have; you do have all sorts in the inclusive government and we've seen through this whole debacle there's not really any sincerity or urgency to address issues which have happened in the past. I think it's very problematic that the organ on national healing is set up in the office of the president rather than being set up as an independent institution which can go out and do its own investigations and make its own recommendations on the type of mechanism that should be used.

The organ has also not prioritized issues which have been raised by victims; they seem to want to try and push some things under the carpet, they don't even seem interested in setting up a mechanism which is going to deal with some of the difficult issues, so when you do have that kind of situation it's going to be very difficult to deal with issues of the past and also if people think that we are in a transition, that's also sometimes a mistake to think like that because we still are in a conflict situation.

And like you say we still have perpetrators and victims who are together, you've got parts of the government which wants to bring accountability, which wants to fight impunity, but you have another part of government which is pulling in the opposite direction and wants people to forget about what happened and as long as you have those two centres of power it's basically very difficult to deal with those issues of the past.

Guma: Senator Gutu we have a question for you, it's come via Face Book, it's from Sibanengi Dube in South Africa. He says what is clear now is that too many concessions are being made without the consent of the masses, even if concessions are necessary there should be a bottom line. Your comment to that.

Gutu: I've been deputy minister in this government for just over two years now and I can assure you that working in this inclusive, this so-called inclusive set-up is a real nightmare particularly in my ministry where issues to do with justice delivery system you know are far from being the ideal set-up of what we would want as human rights defenders some of us.

But then we should then look at the whole issue in a very holistic manner. I agree that look, there has been a lot of compromises but then when you look at each and every compromise that we as the MDC have made as a party, it has never been a sign of weakness. If you look at it critically, if listeners look at all the concessions that we've made, they've actually been made with the best interests of Zimbabwe at heart.

They have been made with the interests of moving the country forward rather than moving it backward. Our counterparts in this so-called inclusive government are just obsessed with one issue and this one issue is about power retention. Power retention at whatever cost. So we are saying look dealing with such a recalcitrant partner in a very unhappy and pretty dysfunctional system, what should we do as MDC?

Because there's no point if you are going to be headstrong and there's not going to be any movement at all then the problem is that the people of Zimbabwe are going to suffer cumulatively. Our colleagues on the other side of the political divide are not bothered. They know that their days are numbered and obviously they will never accept a situation where the train of democratization moves at a supersonic speed. No they will not do that.

My own experience in this ministry, in this government, has actually taught me to say look, we are in a very awkward situation, this is the kind of job that no-one would want to have. It's frustrating; you are dealing with people who'd make sure that each and every day they will put spanners into your work. They'll make sure that nothing positive comes out for the benefit of the generality of the people of Zimbabwe.

Guma: But Senator Gutu are you making sure as a party that you are making decisions that are supported by the people because as Sibanengi seems to be suggesting decisions are now being made at the top on behalf of the people, rather than the other way â€" you representing what the people want.

Gutu: Yes I can actually assure my brother Sibanengi that whatever we are doing as a party is actually done with the best interests of the people at heart. We never have in the MDC a top-down kind of approach to politics. If anything we have the converse. What we do is that we hold meetings, we hold rallies countrywide, we are always in touch with the grassroots, each and every move that the party makes we have a message card that is generated from the national information and publicity department at Harvest House of which I am a member.

I myself am the provincial spokesperson of the MDC in the Harare Province and it is one of my tasks to make sure that at each and every meeting that we have and we have at least one meeting every week, every Monday at about 5.30pm we have a meeting as the provincial executive to meet and brainstorm and also ensure that we are in touch with the structures. We go back to the structures, we hold meetings, we hold rallies, we send out fliers, we will never have a situation where people are just told that this is what we have decided to do on your behalf. We don't operate like Zanu PF and I think this is why we are arguably the biggest and most popular political party at the moment in Zimbabwe.

Guma: Irene, let me bring in you here. Justice minister Patrick Chinamasa was claiming that there was no need for MPs to keep arguing over this clause because the negotiators had already agreed that complaints emanating prior to February 2009 would be dealt with by the organ on national healing and reconciliation. What is the difference? Is there a technical difference between this organ on national healing dealing with these complaints or the Human Rights Commission? What's the difference between the two?

Petras: Well the Human Rights Commission will be dealing with issues which have arisen since the inclusive government was formed and the organ is supposed to have a backward looking mandate and look at past abuses which have happened. So generally that is the separation between the two.

Guma: Is that a necessary separation? Is that just not being too technical for nothing? One body could simply do everything could it not?

Petras: Well I think it depends; if you look in the region, it's not a common practice, in fact I can't really think of a single human rights commission which has had that backwards looking mandate. There's always some kind of mechanism which has been set up which is separate from the human rights commission to look at what has happened in the past…

Gutu: Exactly, exactly.

Petras: …and that is to make sure that the human rights commission can function effectively, obviously resources are going to be limited and as their priority they need to have promotion and protection of human rights moving forward as their mandate. So that's why you see even in Kenya, in South Africa, Uganda, lots of different places, they have set up these mechanisms to look at past abuses.

But the one thing that I wanted to stress and which the minister Chinamasa seems to be trying to gloss over and get people to forget is that we also have criminal law in this country and we have Acts, we've got the Criminal Code, we've got lots of legislation which talks about crimes which have been committed and how people should be punished for that. So we must not forget that there is that whole criminal justice delivery system and perpetrators need to face justice.

The commissions, whether it's a human rights commission, whether it's a truth and reconciliation commission are not able to look at those issues of justice and that's where the criminal law comes in. By failing to use that criminal law, by failing to bring perpetrators before the courts, having them arrested, having them investigated, having them prosecuted, he is the one who is advocating for impunity and that is something which everybody needs to fight and everybody needs to say â€" no we want perpetrators to face the law and to be accountable for the crimes that they have committed in terms of the law as it stands in this country now.

Guma: How do we move forward as a country? Obviously a lot has happened in the past; we've had the Gukurahundi massacres, we've had election violence in 2002, we've had Operation Murambatsvina, we've had the June 2008 political violence â€" in terms of a model of how to move forward Senator Gutu, what would your suggestion be? The South African route of a Truth and Reconciliation Commission? What's the best way forward?

Gutu: In fact let me start by thanking Irene for really coming out very clearly on what exactly the position is and I'm sure this will help listeners. Going forward we really should not necessarily copy and paste what other countries have done, like what South Africa has done, what Kenya has done but we can actually learn from their experience, we can learn from the Kenyan experience, we can learn from the experience of South Africa, we can learn from the experience of Myanmar, from the experience of Cambodia.

All I am saying is going forward we should not really cry over this issue of saying because there is this cutoff date so what will happen to perpetrators of human rights abuses prior to February 2009, that has been taken into account. All we are saying is and I want listeners to understand me clearly on this one, we should then look as these issues all the time holistically. We have not at all abandoned the people.

All we are saying is we have made a very strategic move backwards and a few months from now people will appreciate why we as the MDC came up with the decision that we did. It was for their benefit. Going forward I suggest that we can actually learn to capacitate the organ on national healing and I'm happy that the draft constitution, although it's not yet in the public domain has actually a particular and separate chapter that deals with the national healing program.

It actually has what it is going to be called I believe a national peace and reconciliation commission which will be a constitutionalised body and that's a critical advantage for us as human rights defenders to say look once we have the new constitution, and it is coming soon, it is going to have a separate national peace and reconciliation commission that will obviously give impetus to these issues to say what will happen to the Gukurahundi issue, what will happen to Marambatsvina, what will happen to all these other human rights abuses that have taken place in Zimbabwe, even prior to independence.

That new commission is going to be tasked now to look at those issues. So when you look at it we have actually scored a spectacular win and people of Zimbabwe will appreciate this when the new constitution comes on board to say the MDC has not made a stupid concession. If anything it is a very strategic concession that will move this country forward.

Guma: Irene â€" your way forward in terms of transitional justice for the country?

Petras: Well I think the one thing that we need to stress is the issue of impunity is critical. We need to fight that and we need to continue fighting that as we move forward so I think that we need to keep pressure and keep asking questions on the prosecuting authority, on the police and put pressure on them to make sure that cases where there's information, where there's evidence the perpetrators have committed violations, face the full wrath of the law.

So anything, and I want to link that also to this mechanism which may be set up if the constitution, the new constitution comes into force that that cannot be the be-all and end-all. We have to learn from the experiences of other countries, we cannot sweep past abuses under the carpet. Even in South Africa, the Truth and Reconciliation Commission we see so many years later, that there's now a push to deal with perpetrators because impunity just continues.

Perpetrators think that they can get away with their crimes and that they will be able to repeat those and nothing will happen to them. So I think it's up to us particularly those who are in civil society, those who are in the public and to keep pressure on to make sure that these mechanisms that are set up will deal with the issue of impunity and that there is a measure of justice for the victims of violations and also these other forms of transitional justice including reconciliation, truth telling and moralization and those kind of things.

But the moment that we try and stop justice from taking its course and we try not to use the criminal law and we try to avoid prosecutions where there is very clear evidence then we are going to be in trouble.

Guma: I was just about to wind up but we've just received more questions. I'll direct one final one probably to Senator Gutu √ɬ¢√¢‚Äö¬¨" this is from Tinomudaishe Chinyoka he says several jurisdictions have categorized some events occurring before February  2009 as crimes against humanity. To what extent would you agree with this?

Gutu: I would readily agree with that to say look, crimes against humanity have been committed in Zimbabwe, as a practicing lawyer myself I would agree. When you look at it, Gukurahundi is a crime against humanity because the unfortunate deaths of plus or minus 20 thousand people cannot be anything but a crime against humanity. It is actually genocide in my humble opinion.

When you also look at the destruction of Marambatsvina, the brutal destruction of people's habitats, and to the lack of compensation thereafter can also I think safely be classified as a crime against humanity. When you look at the brutal murders and the horrific rapes that took place in 2008, particularly during the presidential election run-off that obviously would equate to a crime against humanity.

So I just agree with this and say look there is nothing that as Irene correctly pointed out that is going to be put under the carpet, there is no impunity I can assure listeners that there is no impunity, there is the criminal law that has always been there and conveniently our colleagues across the political divide would want the impression given that there is nothing that is going to happen to perpetrators of human rights abuses.

Obviously that's a political spin that they are giving to their supporters and to the world, deceiving the world in the process but we are saying that all those who have committed human rights abuses should know that their day with the law is coming and it's coming very soon. Or put alternatively â€" all those who have committed human rights abuses should know that the chickens are coming home to roost.

Guma: Irene, we'll give the final word to you. Supposing this Bill passes through, becomes law, Human Rights Commission starts its work, this clause, is this something that will be binding? That Zanu PF will say that anything that happened before February 2009 you can't touch us or are there other ways of proceeding, let's say maybe we will have a new government?

Petras: Well Lance there are always other ways of proceeding and we've seen that throughout history. Even if you take the example of Argentina: you can go for decades and decades with people trying to push things under the carpet, trying to escape justice for some of the gross violations which happened and what have we seen in those countries?

We've seen that the people will continue to put pressure and they'll make sure that they will have their day where they can come, speak about what happened to them and get some measure of redress. I think that listeners need to just keep that in mind, to make sure that they continue to keep the pressure on and to make sure that whatever we do, we fight impunity but also we try and give the Human Rights Commission a chance to prove itself when it comes to issues which are happening now and issues that might happen in the future.

Because while we want to look at things that happened in the past we also want to prevent those terrible things from happening again and if the Human Rights Commission can be an ally in that then I think we need to try and support the work that it does and to strengthen it but at the same time we need to demand from people within the police, the prosecution and the judiciary that they also play their part in terms of the constitution and they bring people to justice.

Guma: Well Zimbabwe, many thanks there to Irene Petras, the Executive Director of the Zimbabwe Lawyers for Human Rights and Senator Obert Gutu who joined us to discuss this very, very contentious and emotive subject. Many thanks for your contributions.

Gutu: Thank you very much Lance.

Petras: Thank you.

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