Sharon Hofisi Legal Letters
This study focuses on the National Peace and Reconciliation Commission (NPRC). It specifically deals with the need to foster and recommend realistic and practical solutions to healing and reconciliation in Zimbabwe. It offers these solutions to Governments, policymakers, victims, activists, civil-based organisations, civil society, and the donor community to consider.
National peace is simply presented here as absence of national turmoil whereas reconciliation is seen from the new dimension of moving away from a retributive form of punishment towards restorative justice for the victim and rehabilitation for the perpetrator.
The art of achieving peace and reconciliation differs from one country to another and from person to person, ethnic group to another or one race to another. Essentially, a people-oriented approach will consider the injuries that were committed on various groups who need healing and reconciliation. The basics for peace and reconciliation must be cross-cutting and must end on helping the victim and the perpetrator.
For Zimbabweans, we may have perhaps heard some statements on peace such as those popularised by the late Vice President John Nkomo that “peace begins with me, peace begins with you, and peace begins with all of us”.
We may also be familiar with the words of former and first Executive President of the Republic of Zimbabwe, Cde Robert Mugabe who said a lot on “peace today, tomorrow and forever”. Cde Mugabe was also credited with promoting reconciliation between whites and blacks when Zimbabwe attained independence in 1980.
In theory, it is fine, but at an implementation level, we need to understand that peace-building must focus on a wide range of issues such as family displacements in mining and damming areas; financial losses that were occasioned by the economic downturn, environmental degradation, land redistribution, hate speech, and so on.
Some may even look at increasing conflicts in churches, violence in families or hooliganism in sport, trivialising language in court processes or impulsive profiteering in business.
The whole point is that the functions of the NPRC spelt out in terms of section 252 of the Constitution must guide the peace, healing and reconciliation process.
The Constitution looks at peace and reconciliation by considering post-conflict institutions; national healing, unity and cohesion in Zimbabwe, including peaceful resolution of disputes; truth-telling about the past and facilitating the making of amends and provision of justice; dealing with torture, persecution and other forms of abuse in a rehabilitative way and support-based approach; establishing a complaint mechanism; devising incidental models of peace and reconciliation; establishing methods of dispute resolution such as conciliation and mediation; and above all, making recommendations on legislative responses on persons affected by conflicts, pandemics or other circumstances.
The recommendation on conflicts, pandemics and other circumstances is very important in delineating the role of the NPRC beyond conflicts. The tone is also pitched on the need to deal with pandemics such as cholera, typhoid and the Acquired Immuno-Deficiency Syndrome. People lost their relatives to epidemics and other national disasters such as cyclones, accidents and so on.
It also broadly deals with those ‘affected’ who include the families. Further, other circumstances, which may be considered, include language exclusion in the curriculum, cultural erosion, food distribution, family displacements and disappearances and so on.
It should also be noted that dealing with past wounds, or rather, opening past wounds, demands that the actors in this endeavour find wholesome ways of nursing those wounds. Any approach that ignores this may create a fertile ground for intractability and intransigent behaviour. The social, economic and political costs may be a burden too heavy to bear for our nation. Zimbabwe has a grim past in areas such as pre-colonial wars where ethnic brutality abounded, and colonial repression where racial oppression was dominant.
Add the Entumbane uprisings or Battle of Bulawayo in 1980 and 1981, the much-talked about Gukurahundi debacle and the 2008 electoral violence, to the monetary losses in 2008 and so on and the Peace and Healing Bill becomes open to political, social, legal and economic considerations.
From the perspective of addressing problems of conflicts, Zimbabwe adopts a “peace and reconciliation” approach which involves a “truth-telling” that also deals with pandemics and other situations. What is presupposed is that the past wrongs are being acknowledged but going forward, we need to bring closure to past injuries.
Whereas national peace and reconciliation is done by the NPRC in Zimbabwe, elsewhere, both negotiating a grim past and the making of memory were done under a Truth and Reconciliation Commission (TRC). For South Africa, the records of the hearings of the TRC are the repository of South African memory (Nuttall and Coetzee 1998). I may not deal with whether or not Zimbabwe needs a TRC because such an argument has been overtaken by events.
Suffice to state that critics of TRCs like Ingrid De Kok, in the article, “Cracked heirlooms: memory on exhibition”, 1998, developed notions of the TRC as elegy: a way of remembering, which allows the bereaved to reassemble life, but always with the acknowledgment of the destruction and contradictions that caused bereavement.
De Kok considered the South African TRC as both a cornerstone of political transformation and a fatal compromise; the result of years of negotiation, 300 hours of committee hearings, and a marathon five-hour debate in the National Assembly, and the country’s attempt to effect national reconciliation on the basis of respect for the historical record, for human rights, for individual and collective trauma.
Other countries established institutional containers designed to sustain peace and reconciliation at community level such as the Gacaca courts in Rwanda which have been seen, as their name suggests, and from the manner in which they operated to deal with perpetrators of the Rwandan genocide, as a real “bed of soft green grass”.
This is because the traditional way of resolving conflicts took into consideration the wisdom and guidance of community leaders and created champions of social change in concerned communities.
Add the International Peace Institute’s 2013 Report on the AU Panel of the Wise, which focused on peace, justice and reconciliation in Africa and it becomes important to use extensive approaches to combat impunity and lasting peace and reconciliation in Zimbabwe.
The Report deals with seminal cases for countries such as South Africa, Mozambique, Rwanda, Sierra Leone, Morocco, Ghana and Liberia, but is important for Zimbabwe because it also deals with emerging cases in countries such as Burundi, Togo, Kenya and Zimbabwe.
Using the African concerns and the United Nations’ triangle of peace and security, human rights and development to add to our normative framework under the Constitution, it can be forcefully argued that the NPRC must strive for institutional legitimacy lest it be labelled as an appendage of the State.
Readers may need to consult the “Handbook on Reconciliation after Conflict” that was prepared by the International Institute for Democracy and Electoral Assistance, edited by David Bloomfield, Theresa Barnes and Luc Hyse in 2003.
In a foreword to this handbook, Archbishop Desmond Tutu, said “there is no handy roadmap for healing. There is no shortcut or simple prescription for healing the wounds and divisions of a society in the aftermath of sustained violence. . . examining the painful past, acknowledging it and understanding it, and above all transcending it together, is the best way to guarantee that it does not — and cannot — happen again”. From all this, we learn that processes and theories on memory are not done in a particular way, usually using national events and circumstances.
The absence of a duly constituted NPRC was for long seen as an ongoing constitutional violation and the severity of the violation was exacerbated by the fact that in terms of section 251 of the Constitution, this Commission would be rendered defunct 10 years after the Constitution became effective, that is, in August 2023 (CISOMM 2016: 20).
By 2016, about 20 percent of the NPRC’s lifespan had already expired before it had become operational. There was even fear that it could either be one of the Commissions that could have been removed on the basis of fiscal “bleeding” or could be bundled together with the Zimbabwe Gender Commission and the Zimbabwe Human Rights Commission (ibid).
There is contention on whether or not it is necessary for the operations of the NPRC to be backed by an enabling law. Those who believe that the NPRC is at large to operate without some guiding legal framework rely on section 342 (3) of the Constitution to use the “reasonable necessity or incidental” doctrine, while those who support the need for a law or at least, the interpretation of the intention of the framers of the Constitution.
For now, the relevant constitutional provisions have not been brought before the courts of law so that judges will review the intention of the framers. Constitutionally speaking though, the NPRC is one of the five independent commissions that are envisaged in Chapter 12 of the Constitution of Zimbabwe, 2013.
Now that the NPRC does not have a substantive chairperson following the passing on of its Chair, we may simply need to emphasise that such appointment is a prerogative of the President who does so “after consultation with the Judicial Service Commission and Parliamentary Committee on Standing Rules and Orders”. Although the framing of the constitutional provisions may give the sad impression that the President is given insurmountable powers to disregard the roles of the JSC and Parliament in that he is not obliged to appoint the chairperson ‘in consultation’ with both institutions, it may be stated here that the NPRC is located among constitutionally established independent commissions and must provide for a favourably normative version of memory.
Constitutionally speaking, the NPRC must also protect, promote, respect and fulfil the objectives of independent commissions spelt out in section 233 of the Constitution such as: supporting and entrenching human rights and democracy; protect the sovereignty and interests of the people; promote constitutionalism; promote transparency and accountability in public institutions; secure the observance of democratic values and principles by the State and all institutions and agencies of government, and government-controlled entities; and ensure that injustices are remedied.
Individual or popular sovereignty can only be meaningful if the Constitution is also considered as the sovereign, which encourages political will. Although the NPRC is also affected by national sovereignty, and the use of Presidential powers, it must also operate from the perspective of sovereigns such as Parliament, the people, and the Constitution.
Further, there is need to adopt a grassroots approach which involves thousands of people who feel that negotiating the past must be predicated on certain benchmarks. Some think we should consider pre-colonial, colonial or post-colonial past. There is also need to balance between normative approach to NPRC operations as well as traditional methods of achieving peace such as involving traditional leaders in the exhumation of bodies of mass killings during the liberation struggle.
What we learn from this is that the NPRC must involve the people in benchmarking the extent to which transitional justice, peace and reconciliation should go from a Zimbabwean perspective. It must not, say, focus on Gukurahundi as a stand alone issue. In essence, achieving healing and reconciliation for all goes beyond “mighty is right”, “white and black”, “Shona and Ndebele” or “civilisation arguments”.
We must go beyond the need to get international or political sympathy and move towards real empathy, genuine peace and reconciliation in a rainbow lifestyle, as well as emphasise on equitable resource distribution, respect of the provisions of the Bill of Rights and all these must foster a sustainable culture of peace and reconciliation.
Admittedly, events such as Gukurahundi have dominated the national debate for long; they bear on the social cost of peace and healing in national healing, but we need a sustainable solution across all spheres of victimhood mentioned above. At one point, Cde Mugabe described Gukurahundi as a “moment of madness”. This statement shows that the NPRC must go beyond mere focus on various conflicts and move towards empowering victims to forgive and forget; and to empower them towards being survivors and victors as informed by the Victim-Survivor-Victor (VSV) model. Those affected such as the families of the victims must also be included in the healing and reconciliation process.
For instance, Zimbabwe is politically divided into 10 provinces. Each province has real problems and the NPRC must look at that. We even need behavioural healing and reconciliation in pockets of political administration such as sports where hooliganism and tribal cards are played periodically.
What do the processes on peace and reconciliation mean to Zimbabwe? Is it about past injuries, the present or the future? At the centre of these questions is the need to scale conflicts in Zimbabwe. Some would want to focus on pre-colonial, colonial and post-colonial periods. When we combine the reality of injuries with the methods of dealing with the same, we can speak without exaggeration of a national healing and reconciliation crisis.
There is need to prevent present and future wounds by using rights-based approaches to peace and healing. Chief among them are the constitutional functions shown above. There is also need to promote constitutional literacy for all Zimbabweans using a broad strategy which involves civil society organisations (CSOs) or community-based organisations (CBOs), law-based organisations and academic institutions and working groups on transitional justice. These institutions will make the grassroots approach effective since they are close to the people. Their inputs will also feed into the NPRC’s institutional legitimacy.
From the perspective of working groups, the NPRC must also consider guiding principles for transitional justice policy and practice in Zimbabwe as laid down in the National Transitional Justice Working Group Zimbabwe (NTJWGZ), 2015.
For instance, Zimbabwe has no TRC and one of the reasons for not establishing such is steeped in amnesty. The NTJWGZ suggested that amnesties must have strict guidelines although they play an important role of persuading perpetrators to cooperate, these must not apply to perpetrators of international crimes, crimes against humanity, murders and sexually related crimes.
Eventually, constitutional principles on good governance such as vertical and horizontal accountability must be considered important. This is because the amnesty process must not end up benefiting perpetrators at the expense of the victims. Further, the Constitution enjoins the NPRC to respect sovereignty and interests of the individual. As such, the guiding principles chosen by the NPRC must be acceptable to stakeholders especially the victims.
From the perspective of civil society organizations, collective reports are very important. For instance, the Civil Society Organisation Stakeholders Report of 2016 on Zimbabwe Second Cycle United Nations Universal Periodic Review (UNUPR) had 68 CSOs, which had been monitoring implementation of 130 recommendations accepted during the first UN UPR review in October 2011.
The Report noted that Zimbabwe had committed to ensure that the Organ on National Healing and Reconciliation and Integration (ONHRI) fully implemented its mandate. It also noted that whereas the Constitution provides for the establishment of the NPRC, the NPRC Commissioners were appointed to deal with a Commission that was not yet operational. The Government of Zimbabwe was encouraged to ensure that the NPRC is constitutionally compliant, effective and independent in spirit, word and action.
Law-based organisations may need to focus on the role of litigation or alternative dispute resolution methods in ensuring that victims are compensated while academia and CSOs may immensely contribute to advocacy and research.
Researchers in countries Sierra Leone partnered local Non-Government Organisations like Fambul Tok to evaluate the impact of community based reconciliation. They found that while the program led to greater forgiveness of the perpetrators and improved social capital, it also worsened psychological health. Ultimately, this research would inform government and CSOs on areas of future partnerships. The NPRC must also work with various partners to fund its operations.
As we look into the future, it is also necessary to look at the general relationship between the three branches of government and independent institutions from the perspective of international organisations. We may use the Latimer Principles to illustrate this position. There has been talk about the need for Zimbabwe to rejoin the Commonwealth and the belief is that section 12 of the Constitution which deals with foreign policy will be instructive in this regard.
In the likely event that Zimbabwe rejoins the Commonwealth, it has to be noted in this article that the Latimer Principles are important in signposting how the NPRC can both be independent and normatively operate. On a cursory basis, we may understand a lot on this operation from the Commonwealth (Latimer) Principles on the Three Branches of Government.
Although Zimbabwe is currently out of the Commonwealth, the Commonwealth is an organisation of values, and the values-or principles of Latimer House were strengthened in the declarations in Singapore (1971), Harare (1991), and Millbrook (1995). The primacy of the accountability of State institutions and the relationship between the three branches, and their independence can still be informed by the Commonwealth Principles which are situated on the need to establish or enhance appropriate oversight bodies in accordance with national circumstances. Such institutions must play a key role in enhancing public awareness of good governance and rule of law issues.
Now that the NPRC is “too late too little”, it must not have selective visibility if it is to make an impact in peace and reconciliation. It must use the reports from other national independent institutions to inform its processes. It must also utilise social media to get a measure of the concerns of the general populace in benchmarking conflict, pandemics and other circumstances on healing and reconciliation. Equally important, its pursuit of peace and reconciliation must always be backed by veneers of legality and legitimacy. At the top of what is both legally and legitimately consequential should be the respect of the general will of the people. The people are the important source of institutional legitimacy, including independent commissions.
Similarly, Zimbabweans must also support the NPRC so that its roles are there for us all to see. They must contribute towards good governance by respecting the constitutional principles, asserting their sovereignty, and respecting vertical and horizontal applicability of the Constitution. Hopefully, this will enable the NPRC to maintain a national character or at most deal with the pertinent question on whether it is an appendage of the State.
Sharon Hofisi is a lawyer and is contactable at [email protected]