New Zimbabwe Home Office Policy Note April 2018 – After Mugabe, no fundamental change to the political environment or treatment of opposition

“While the tone of political rhetoric has been more conciliatory since Mr Mnangagwa came to power, there is a lack of clear and cogent evidence that the government has fundamentally changed the political environment or how it treats those opposed to the state”, so concludes the Country policy and information note Zimbabwe: opposition to the government, April 2018 published on 30 April 2018 by the Home Office.

 

 

A cautious and prudent approach by the Home Office, clearly intended to save face should Mnangagwa tire of hiding behind the current façade of well-calculated charm and begin to unleash  violence against the opposition in the period before or after the 2018 election results.

 

Apart from noting the obvious, ie Mugabe’s ouster, not much in the publication departs from the previous note analysed in the 2017 blog post: New Zimbabwe Home Office Policy Note 2017: Protestors, Demonstrators and Social Media Resistance Focused.

 

The “new” Note depicts a somewhat half -hearted approach to the art of “research” in relation to the sourced  relevant country information since February 2017.  The Note contains substantial information relevant to 2015 and  in particular 2016, such information already forming part of the February 2017 Note. Of the researched material that is  pertinent to 2017 and 2018, with reference to the Bibliography and the Note itself, any focused immigration lawyer with 4 continuous hours  to spare during  the course of a day, could have readily sourced that material.

Those potentially at risk:

 

As provided for by paragraph 1.2.1; 2.2.1; 2.2.10; 4.2.4; 5.4.1; 5,4,2 and 6.2.8; of the Policy Note:

 

  • Persons involved in actual or perceived opposition activities include members or supporters of political parties, protestors, journalists, civil society activists and teachers.

  • Opposition parties continue to operate and represent a challenge to the government. However, the political space is controlled by the ruling ZANU-PF which uses the state security apparatus to harass and intimidate those in opposition to it. While levels of politically-motivated violence have generally declined since 2008, these fluctuate and human rights violations committed by the security forces and ZANU-PF supporters against opposition party members continue.

  • While the government and its proxies continue to subject some members of opposition groups to harassment, discrimination, arbitrary arrest, abduction and physical abuse, it appears to use less overt violence than previously.   It also uses intimidation, distribution of food aid, and manipulating the courts, to obtain political influence. Levels of politically-motivated human rights violations have declined since the peak at the 2008 elections but continue to fluctuate. Most violations take place in areas dominated by the ZANU-PF, including Manicaland, Mashonaland and parts of Harare. There is evidence that members of smaller opposition parties face lower levels of official discrimination than the larger MDC factions because they do not represent a significant threat to the ZANU-PF.

  • The ICG also observed President Mnangagwa’s initial actions: ‘Immediately upon his return, Mnangagwa said that “Zanu-PF will continue ruling no matter what, while those who oppose it will continue barking”.   Mnangagwa’s new administration rewarded key allies in ZANU-PF, brought in more war veterans and even two senior security service chiefs. It did not include opposition elements or external technocrats as had been expected. Although slightly slimmer in size, its composition reflects a large degree of continuity in substance, with at least a third of the cabinet having served in previous Mugabe administrations. Women and youth are poorly represented.’

  • The Freedom House ‘Freedom in the World 2018’ report stated: ‘Political parties may generally form without interference, and there were some 75 registered political parties in Zimbabwe at the end of 2017, many of which had newly formed ahead of the 2018 general elections. However, new and opposition parties face obstacles in their operations. State newspapers and broadcasting institutions tend not to cover opposition candidates. Opposition gatherings often draw a heavy police presence compared to the ruling party’s rallies, and police often impose restrictions on opposition activities.’

  • The USSD human rights report for 2016 stated: ‘The Central Intelligence Organization (CIO), under the Office of the Vice President, is responsible for internal and external security. All security sector chiefs report directly to the president, who is commander in chief of all security services.’

  • The USSD report also stated: ‘CIO agents and informers routinely monitored political and other meetings. Authorities targeted persons deemed to be critical of the government for harassment, abduction, interrogation, and physical abuse.’

  • The Human Rights Watch ‘World Report 2018’, published in 2018, covering events in 2017, stated: ‘Police abuse continued, using excessive force to crush dissent. Human rights defenders, civil society activists, journalists, and government opponents were harassed, threatened or faced arbitrary arrest by the police. Widespread impunity for abuses by the police and state security agents remained.’

 

The problem with Mnangagwa and ZANU(PF):

 

The Home Office in their Note seems not to be altogether buying the false mantra that the “ military intervention” of November 2017 was not a coup:  “2.2.11- In November 2017, Robert Mugabe was forced by the military to step down as president. This followed a period of internal conflict within the ZANU-PF, during which different factions jockeyed for position to succeed Mr Mugabe. After the military’s intervention and Mr Mugabe’s “resignation” Emmerson Mnangagwa, the former vice president who had fled the country, returned and was inaugurated as president on 24 November 2017. President Mnangagwa has since consolidated his position within the ruling party, appointing his supporters to the cabinet while factional opponents within ZANU-PF have been side-lined or expelled”.

 

As provided for by paragraphs 2.2.11; 2. 2.12; 2.2.13; 3.2.4; 6.1.7 and 6.9.1 of the Policy Note:

 

  • President Mnangagwa has promised ‘free, fair and credible’ internationally observed elections, which must be held by 22 August 2018, and has acknowledged the need for the rule of law, economic reform and responsible government. However, he has yet to propose, amongst other things, substantive legislative and security sector reform or devolution of power.

  • While the tone of political rhetoric has been more conciliatory since Mr Mnangagwa came to power, there is a lack of clear and cogent evidence that the government has fundamentally changed the political environment or how it treats those opposed to the state.

  • The Zimbabwe Peace Project (ZPP) December 2017 monthly monitoring report noted: ‘There have been messages of peace and reconciliation from key political figures raising hopes that this may help towards fighting polarization and also promote tolerance. President Mnangagwa has called for peace and forgiveness while War Veterans Secretary General Victor Matemadanda has asked for tolerance describing the political arena as a market place of ideas where people win or lose through their ideas. These pronouncements are encouraging as the nation gears for the 2018 elections. ‘However there have been arrests of activists on charges of undermining the authority of the President. Some of these activists have been allegedly assaulted by ruling Zanu PF activists who claim to be defending President Mnangagwa. A worrying trend of Zanu PF taking matters in its own hands threatens peace especially as the 2018 elections approach”.

  • The ZPP observed in its January 2018 report covering December 2017: ‘The tensions between the G40 and Lacoste factions of ZANU PF seem to be continuing in communities with no easy solution in sight. From reports received in the month under review citizens perceived to be G40 are being targeted in all manner and sorts. When former Vice President Joice Mujuru was expelled from ZANU PF citizens perceived to have been her supporters suffered abuse to the extent of being denied food and other aid when distributions were conducted in communities. History seems to be repeating itself with G40 loyalists. Food aid should not be used to settle political scores rather standards for food aid distributions should be followed. Tensions are also growing between aspiring candidates as primary elections draw closer.’

 

 

Demonstrators:

 

As provided for by paragraphs 2.2.20; 2.2.21 and 6.1.6 of the Policy Note:

 

  • Demonstrations about the government’s management of the economy are seen by the authorities as politically-motivated, even though people without strong political views have taken part. The police have historically sometimes used excessive force to disperse demonstrators and people have been arrested and detained under public order offences for a few day.

  • It is unlikely that a person will be at risk on return purely for having taken part in demonstrations. However, those organising a demonstration may be at risk if the government perceives them to be political agitators. This will depend on their profile, activities and past experiences with the authorities.

  • The Freedom House ‘Freedom in the World 2018’ report stated: ‘Antigovernment demonstrations were not as widespread in 2017 as in 2016, when authorities had responded to a popular protest movement with massive crackdowns. Nevertheless, a number of demonstrations took place in 2017 and state security forces continued to employ excessive force to disperse protestors. Opposition and civil society activists were arrested and charged with crimes such as “subversion” and “insulting the office of the president.” ‘In November, after Mugabe was placed on house arrest by the military, thousands of people took to the street to demand his resignation without incident. But in December, several people in Matabeleland were assaulted and arrested by security forces for demonstrating against President Mnangagwa, raising concerns about continued repression following Mugabe’s fall from power”.

 

Human Rights Defenders and Civil Society Groups­prominent, vocal activists considered more at risk:

 

As provided for by paragraphs 2.2.22 and 7.1.6 of the Policy Note:

 

  • The authorities use legal restrictions to impede or interfere with the activities of civil society organisations and human rights defenders perceived to be critical of the government. Prominent activists, who are vocal in their criticism of the government, may be at risk of serious harm or persecution.

  • The summary of stakeholders’ submissions to the Universal Periodic Review prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21: Zimbabwe, 23 August 2016, included the following submissions: – ‘human rights defenders continued to face harassment, violence, arbitrary arrest and malicious prosecution – [ISHR (International Service for Human Rights)] – ‘human rights defenders, particularly those working on issues of corruption, public accountability and democratic governance, have been subjected to intimidation and harassment by the Central Intelligence Organization.

 

 

Social Media inspired Groups:

 

As provided for by paragraphs 4.8.1; 4.8.2 and 4.8.3 of the Policy Note:

 

  • An International Business Times report, ‘“We are at the tip of the end of President Mugabe” Zimbabwe’s Tajamuka campaign says’, dated 29 July 2016, stated that: ‘Since May 2016, a flurry of citizen or civil activism movements have been rising and spreading, and are calling for much yearned social, political and economic change – areas where they believe standard opposition politics have not delivered as hoped. The country has been rocked by two peaceful campaigns known as #ThisFlag and #Tajamuka – both of which have vowed to protest until Mugabe steps down.

  • The Freedom House ‘Freedom on the Net 2017’ report stated: ‘Citizens have increasingly turned to digital tools to engage in activism and mobilize for political and social issues in the past few years. WhatsApp has become particularly popular for organizing and sharing information, especially during the #ShutDownZim protests beginning in July 2016, which urged citizens to stay at home from work for two days in protest of the government’s alleged negligence and mismanagement of the country. During the protests, WhatsApp became inaccessible for several hours, leading to strong suspicions of deliberate government interference, particularly given various threats that had been made by public officials against social media…The protests were inspired by the #ThisFlag social media movement launched by Pastor Evan Mawarire through his spoken word commentary that criticized Zimbabwe’s state of affairs in a YouTube video that went viral in April 2016. Throughout 2016 and 2017, Mawarire continued to post critical commentary on his social media pages, including via livestream, to call attention to the ongoing governance issues in Zimbabwe, leading to his arrest on several occasions… ‘Many other social and political activists turned to social media to livestream or report on public events such marches and civic meetings. In one successful campaign, online mobilization and digital activism was credited with saving the creative community space and tech hub, Moto Republik, from the Harare City Council’s plans to demolish the building in March 2017…       An innovative structure built out of scrap containers, the tech hub had been the nerve center of recent online activism, including the @OpenPartyZim, #ThisWeek, Zambezi News, as well as other youth online media platforms.’

  • The Freedom House ‘Freedom in the World 2018’ report stated: ‘In October 2017, the ministry for Cyber Security, Threat Detection, and Mitigation was established, with the government saying it was needed to respond to threats against the state posed by the purported abuse of social media. Soon after, police arrested Martha O’Donovan, a project manager for the online station Magamba TV and a U.S. citizen, for a tweet that allegedly insulted Mugabe. She was charged under the CLCRA with subversion and insulting the president, and was free on bail at year’s end.

 

Conclusion

 

Paragraph 2.2.2 of the new Note summaries the position in relation to the current country guidance caselaw, “ In the case of CM (EM country guidance; disclosure) Zimbabwe, heard in October 2012 and promulgated in January 2013, (which modified the Country Guidance in of EM & others (Returnees) Zimbabwe, heard in October 2010/January 2011 and promulgated in March 2011), the Upper Tribunal found that in general there is significantly less politically-motivated violence in Zimbabwe compared with the situation considered by the Asylum Immigration Tribunal in RN (Returnees) Zimbabwe, heard in September/October 2008 and promulgated in November 2008. In particular, the evidence does not show that, in general, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to ZANU-PF (para 215 (1)”.

 

The focus on a significant MDC profile however does not factor into the equation that matters have considerably moved on since CM was decided 5years ago. Since 2016, there has been the emergence of social media activism and the diaspora protest movement proceeds even more vocally against the Mnangagwa regime. The new Note, makes it clear that persons involved in actual or perceived opposition activities include protestors and civil society activists.  CM does not delve into matters appropriately as regards issues of risk on return for persons who fall into these risk categories. CM does not appear to have considered at all or to any particular extent the relevant case law of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), which sets out the relevant factors to be considered when assessing risk on return having regard to sur place activities.

 

Paragraph 2.2.9 of the new Note states, “The political landscape in Zimbabwe has seen some change since CM was promulgated in 2013 but has remained relatively stable as a result of the threat posed by the state security apparatus and relative weakness of opposition groups. The MDC splintered into three groups though the MDC-T faction remains the main opposition to the government but is less of a political force than it was when EM and CM were heard”.  It is however not everyone who is in active protest against ZANU(PF) that is a supporter or member of the MDC.

 

The conclusion that, “there is a lack of clear and cogent evidence that the government has fundamentally changed the political environment or how it treats those opposed to the state”, seems to be a  tactful approach by the Home Office  intended to avoid  or delay a re-visitation of the country guidance caselaw of CM. The 2018 elections are only a few weeks away. Following the outcome of that election, there might be much more sufficient material laying bare the latent violence that is the culture of ZANU(PF), thereby necessitating the need for new country guidance caselaw.

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