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Wednesday, November 17, 2010

News from JAG

Ben Freeth - Crimes Against Humanity

Dear Jag
Crimes Against Humanity dressed up as a Land Reform Program - what must we do to undress it?
In the recent case in the Upper Tribunal [Immigration and Asylum Chamber] in the UK, another very important Judgment was made exposing the Land Reform program in Zimbabwe for what it is: "Crimes Against Humanity." It is another big step towards truth and accountability in Zimbabwe.
It is important for us to understand what "Crimes against Humanity" are that each victim can be involved in undressing this monster some persist in calling land reform. Justice Ouseley was only asked to look at [K] below; but is clear to anyone that has been a victim of land reform in the last 10 years, that [h] was an overriding factor throughout.
Article 7 of the Rome Statute of the International Criminal Court says:
"1. For the purpose of this Statute "crime against humanity" means any of the following acts when committed as part of a widespread systematic attack directed against any civilian population, with knowledge of the attack:
Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
Persecution against any identifiable group or collectivity on political, radical, national, ethnic, cultural, religious, gender, other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
Enforced disappearance of persons;
The crime of apartheid;
Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Article 30 deals with the mental element of the crime. Guilt requires both intent and knowledge which are elaborated as follows:
"2. For the purposes of this article, a person has intent where:
In relation to conduct, that person means to engage in the conduct;
In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
In this important case Justice Ousley looks at the evidence regarding the farm invasions that "SK" was involved with. It is very familiar to almost every farmer and farm and worker who has lived on a Commercial Farm in Zimbabwe over the last ten years:
"16. In April and October 2002 appellant was involved in two
farm invasions which she had explained in detail and which involved her being part of a large group of Zanu PF activists who attacked two white owned farms. The first attack took place at a place called Manzou Farm where a white farmer had been given an eviction order which he had disregarded. The appellant was with a mob of perhaps one hundred twenty people, including members from different areas and trained youth members and senior leaders.
17. The group was split into two and the senior members which
included the appellant's uncle went to the farmer's house and beat him up. The appellant in the other group was involved in going to the farm workers' houses, beating them up and burning their houses down. The appellant admitted that she was one of those carrying a stick or "chamu", but she was not involved in burning any of the houses. She found the situation very scary and although she did hit people she did not use excessive force.
18. The appellant disliked what she had to do, but was afraid of
the repercussions if she left the youth militia. Rumours abounded about how another girl had tried to escape, had been caught and severely punished."
26. Her evidence about the second was this:
"20. In early October 2002 she and others were involved in
another farm invasion at a place called Bellrock Farm where the white farmer had been given orders to leave the farm and had ignored it. Again she went with a large mob which might have included over one hundred youth members. Her uncle was amongst the senior members of the group.
When they got to the farm her group was ordered to beat the farm workers in the fields and everyone joined in, including the appellant. They chased the farm workers and if they caught up with any worker they beat them until they left the farm. The appellant remembered that she had beaten one woman in particular and she felt very guilty about this. She felt horrible as to what had happened. She stopped hitting the woman when she saw what distress she had caused and the woman scrambled away.

Farm Workers' houses were set on fire but the appellant was not involved in that. But she did witness the Zanu PF leaders questioning the white farmer when she saw him being beaten badly and his property being destroyed."
Justice Ouseley finds that:
"The violent occupation of farms and forcing people, including farm workers from their houses, was part of the State violence, formal and informal, used to crush opposition and those who were not regime supporters."
"We are satisfied that the intention behind these invasions in general, and it applies as well to the two in which the Appellant participated, was to cause great suffering or inflict serious physical or mental injury. The aim was to drive people from their homes and their work, and to do so in such a way that they would be so cowed by their experience that they would neither return to their homes nor foment opposition outside. It would also deter resistance on other farms or in other potential areas of opposition. The aim was achieved by the mob violence of beatings administered to men and women, burnings and lootings in a deliberately brutal and terrifying experience.
"We are satisfied that these two farm invasions were part of widespread systematic attacks against the civilian population of farmers and farm workers, carried out not just with the full knowledge of the regime but as a deliberate act of policy by it, with the intention of advancing its grip on power, suppressing opposition, and helping its supporters.
"These acts were obviously inhumane, and were, in our judgment, of a similar character to those in sub-paragraph (h) of Article 7. These acts were clearly persecutory acts against an identifiable group, farmers and farm workers. They were undertaken for political reasons, the suppression of perceived opposition and for the financial advancement of the regime members and supporters. There was a clear racial element in the attacks on the farms, and the farm workers who were a necessary part of the white farmers' ability to benefit from the farm.
"...we are satisfied that the two farm invasions were crimes against humanity. No doubt, these actions could have been charged in a variety of ways, including causing grievous bodily harm with intent, affray, violent disorder, and arson. But such an exercise would distract from the true question: did these two farm invasions, with their specific aim, intent and effect fall within Article 7 sub-paragraph (k). In our view, they did."
Justice Ouseley then looks at SK's own criminal part in the Crimes Against Humanity she was part of:
"We now turn to whether the Appellant's participation in them makes her criminally responsible. The Appellant was a participant in serious mob violence. The intention of the instigators and participants, including her, was that the farmer and farm workers be driven from their homes, by violent beatings and burnings, never to return and to deter them from opposition to the regime. The intention was that the farms would then be available for regime supporters....
"The Appellant was not merely present. She was on each occasion a voluntary, even if reluctant, actual and active participant in beatings; even taking her evidence at face value, beating many people hard as part of the aim of driving them away. She specifically tried to demonstrate her loyalty to Zanu-PF in her actions.
"She is plainly criminally liable on a joint enterprise domestic law basis.
"If there is an additional requirement that, in these circumstances, there be a substantial contribution to the crime, we consider that she provided it. That expression is not intended to exclude all but ringleaders and major participants. Each of those who guard extermination camps, for example, make a substantial contribution to genocide.
"Active participation in mob violence which itself falls within sub-paragraph (k) makes a substantial contribution to that crime against humanity..."
There are some farmers and farm workers that feel for whatever reason that they do not want to bother with truth, justice and accountability.
There is a feeling that we should make a deal with those that have committed the Crimes Against Humanity and allow the status quo to persist.
Almost exactly 4000 years ago a big thing happened between Abrahams
grandsons: Esau came back from the bush very hungry. Jacob was
cooking. In Genesis 25 it says:
"He said to Jacob "Quick let me have some of that red stew!
I'm famished."
Jacob replied "first sell me your birthright."
"Look, I am about to die," Esau said. "What good is the birthright to me?"
But Jacob said, "Swear to me first." So he swore an oath to him selling his birthright to Jacob. Then Jacob gave Esau some bread and some lentil stew.
There are some in `organised' agriculture that would sign away our rights like Esau for a bowl of stew because they are desperate and without vision. We need to counter this and build a solid foundation for the future of agriculture and our country by ensuring that title doesn't get swallowed up like Esau's stew; and that justice and the rule of law is able to triumph over wicked ways.
If anyone knows who the owners of Manzou and Bellrock farms are they need to come forward. We need to build on this case with urgency as a start.
At the same time it is critical that each individual victim records his or her own ordeal for the bigger picture regarding the Crimes Against Humanity that have been committed. Together we can all show the "widespread systematic attack," that the land reform program is - and start to bring accountability to the architects. As the truth is exposed and the mosaic comes together, it will become harder and harder for the acts of wickedness to continue.
Ben Freeth. [ ]
2. Eddie Cross - The Cost of Bad Political Leadership
Dear Jag
Last week the United Nations stated that three countries, Zambia, Zimbabwe and the Congo, have a "Human Development Index"lower than they had in 1970. This represents 40 years of lousy leadership and failed economic policies in all three countries. Strangely, all three are enormously rich in natural resources and have great potential.
I was not at all surprised by the Congo and ourselves, but the inclusion of Zambia in this group of three global failures was a surprise. It suddenly made me realize how long it takes to get back ground lost in periods of poor governance and economic collapse. I remember the Zambia episode because I had family in Zambia at the time. It was five years after Independence when Kaunda announced that all companies that employed more than 100 people had to have majority Zambian ownership (sounds familiar!).
The result was immediate, economic activity just crashed, investment fled and Zambia slid into a donga of stagnation and failure. >From a peak when they produced a substantial proportion of the global demand for copper, the newly nationalized mines slumped into insignificance and the former owners took their dollars and invested elsewhere.
When finally, after 30 years, the Zambian people were able to cast off the corrupting mantle of Kaunda, the new government was slow to put things back on their feet. It took another change of government after Chiluba to start things moving and they reversed the policies of Kaunda and sold off the mines. That was in the first years of the new Century and for the past five years, Zambia has been growing rapidly. So much so that they have watched the collapse in Zimbabwe with a sense of justification in their own political and economic actions and policies.

Where once they suffered from snide remarks by Zimbabweans about the Zambian Kwacha, they gasped as we went even further and more rapidly than they had, down the slope of inflation and collapse.
Once economic growth resumes, people relax and think that times are better and they can look forward. However, they seldom count the real cost of the wasted years and here is the United Nations reminding them of just that, Zambians are worse off today than they had been after Independence in the early 60's. What a tragedy and what a waste of all the hopes and aspirations of the struggle for democracy and independence.
In Zimbabwe the failure has been even greater than it was in Zambia and more precipitous. The foundations of the collapse were laid in the first two decades of Independence when the new Government could do no wrong and was allowed to get away with both economic and political violations that in other areas of the world would have wrought instant condemnation.
Poor macro and micro economic policies retarded growth and distorted incomes, the budget deficit ran at unsustainable levels through the whole period increasing public debt, which at Independence had been a paltry $700 million, to $6 000 million equal to two years exports or 80 per cent of GDP. When finally the State went just too far, the collapse was instant and dramatic. Mr. Mugabe ordered the payment of Z$3,5 billion to war veterans - unbudgeted and completely beyond the capacity of the economy. Punishment by the markets was immediate and the Zimbabwe dollar crashed.
10 years later the inflation peaked at world record levels, a loaf of bread cost a billion Zimbabwe dollars and salaries were worthless hours after they were paid. All savings were destroyed - the accumulated surpluses of a century of hard work and effort by the entire nation, wiped out. All banks, building societies, all pension funds and other financial institutions were bankrupted. Tax revenues were essentially worthless. Zimbabweans were beggars and 75 per cent of the entire population was being fed on a daily basis by a consortium led by the United States in the largest food aid programme in any country at any time in history.
Rescued by South Africa and the region, the Transitional Government was negotiated and came into being in February 2009. The Zimbabwe dollar was abandoned, the Reserve Bank isolated and rendered ineffective and the economy completely liberalized - no exchange controls, no price controls. What remained of the economy was kept afloat by nearly a billion dollars of aid and over a billion dollars of remittances from the 5 million Zimbabwe refugees that had fled the chaos into other countries, especially South Africa.

In February 2009, the total tax collected was $5 million. The Minister had to borrow funds from a local company to pay the 250 000 civil servants $100 a month irrespective of seniority. Our international debt had soared to $7,6 billion - ten times the debt in 1980 and equivalent to 5 years of exports and 150 per cent of GDP. Zimbabwe was suddenly in the lowest quintile of the poor in the world, surrounded by the debris of 100 years of conflict, hard work, development, aid and hopes. The most educated people in Africa with one of the most highly qualified (in academic terms) governments in the world were on the bones of their backsides.
It was the consequence, not of "sanctions" as the Zanu PF propagandists would argue, but of poor government and bad policy. First, by Ian Smith who took us into the political morass of UDI and then a futile war where we would win all the battles and lose in the end. Then the flawed process leading to the formation of a Zanu PF government with all the promise of a new start, only to find ourselves caught in a savage struggle for complete political control that was to persist through the demise of Zapu in 1987 and the elimination of all the attempts at democratic plurality in the 90's to the struggle against the MDC after 2000.
In the process we have destroyed what was once a diversified and vibrant economy, we had wrecked our agricultural system - not just the farming industry but the support infrastructure and organized marketing that carried it through the years of UDI and was the backbone of growth from 1980 to 1997. Our manufacturing industry lies in shreds and our financial sector is still very fragile. We are heavily indebted and have little to show for it. Our people are poor, marginalized and humiliated and it will take us many years to recover to where we were at Independence in 1980.
The extent of this collapse is still not fully appreciated by Zanu PF.

However it is clear that they fully understand the reasons and the remedies. This collapse was a deliberate act of national economic suicide and the so-called "indigenisation" laws are simply an extension of this economic sabotage and subversion. The reason? Any economic recovery will be attributed to the MDC and its team of Ministers and quite rightly so.
Since Mr. Mugabe simply refused to implement agreed GPA based reforms some three weeks ago, Mr. Tsvangirai has been engaged in an exercise to bring the influence of regional leaders into the crisis. He has refused to meet Mr. Mugabe and is touring the country holding report back meetings. He has written to all African leaders who have a role to play and this past week MDC raised the temperature by closing down the Senate when the illegally appointed Governors tried to enter the Senate Chamber.
This has now triggered a response from the region and a SADC summit has been called and some SADC leaders are pushing for the immediate deployment of a SADC team to oversee the reform and electoral process.
Mr. Zuma has also come in with a strong message calling for the immediate implementation of all outstanding agreed GPA reforms and the holding of an election as soon as possible.
Eddie Cross
Bulawayo, 13th November 2010

4. J.L Robinson - Zimbabwe
Dear Jag
Senator Roy Bennett has adequately explained the political landscape in Zimbabwe and Zanu's plan to win the next election to legitimise their next proposed five year plan.
Political Science Professor John Keane has a political term for the new normal state of Zimbabwe - "Despotic Capitalism."
He goes further and sums up Iran (whom Zanu is befriending) as "the thuggish, populist dictatorship of Ahmadinejad that hallucinates on brute secular power. It climbs Jacob's Ladder only because it hopes religious rhetoric will camouflage its foolish mistakes."
Zanu emulates Iran in terms of brute secular power but with an odd Zanu Bishop here and here to pray for them.
In the global context his summary of the global trend of countries "wilfully ruining their ecosystems. It's as if they are performing an experiment to see which one will be the first to be ruined by environmental catastrophe."
A Zanu governed Zimbabwe appears to be hell bent on delivering both "despotic capitalism and environmental catastrophe."
J.L. Robinson

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