The world in the last decades has witnessed gross human rights violations that left communities shaken and decimated. After some of these occurrences there was a clear acknowledgement of what happened in different forms. In Rwanda and the former Yugoslavia, prosecution of alleged perpetrators under international law took place. In other cases, such as post-apartheid South Africa, Truth and Reconciliation Commissions were established. Another way of acknowledging and processing such atrocities is through apologies to victims and their families or provision of reparations.
Nevertheless, some situations of gross human rights violations have not been officially and adequately acknowledged, with no progressive steps taken towards justice and accountability. The Gukurahundi massacres in Zimbabwe fall in this category. It is estimated that between January 1983 and late 1987 over 20,000 Ndebele people of the Matebeleland and Midlands regions were killed in these massacres.
THE GUKURAHUNDI MASSACRES AND SUBSEQUENT DEVELOPMENTS
Following Zimbabwe’s independence from British rule in 1980, political tension increased between two political groups in Zimbabwe, namely the ruling African National Union (ZANU), led by Robert Mugabe, and the Zimbabwe African People’s Union (ZAPU), led by Joshua Nkomo. Violence unleashed on the Ndebele people by the Mugabe-led government was a direct result of government efforts to silence the voices of minority groups and growing political critique from ZAPU. The state-sanctioned atrocities were perpetrated by the army unit called the Fifth Brigade. The Gukurahundi Memorial Centre, among others, argues that these violations amounted to genocide as provided under the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, however, there has been no judicial determination that there was genocidal intent.
The massacres ended with the signing of the national unity accord between former President Mugabe and Nkomo in December 1987 and the two parties merging to become ZANU-PF. These acts were superficial political band aids and did not address the intricate scars of such gross violence. The national unity accord was a demonstration of political collaboration but in the process side-lined the victims. While there have been remarks by government officials including Enos Nkala, Moven Mahachi, and former President Mugabe on the occurrence of these gross human rights violations, no one has been held accountable for the violations.
Three decades later, however, justice and accountability for the massacres can still be achieved. During the massacres, the Ndebele people of the Matebeleland and Midlands regions were devastated by violence. In addition to killings, many people were subjected to torture, degrading and inhuman treatment, rape, and sexual violence. Accountability efforts seem deflated given that following the signing of the national unity accord amnesty was granted to security forces and dissidents who were responsible for the gross atrocities. Another drawback for comprehensive accountability is that current state officials, including President Emmerson Mnangagwa, are believed to have been instrumental leaders of the massacres. Hence, while President Mnangagwa after his election displayed an interest to have the Gukurahundi massacres on the national agenda, he has still not followed through on this over two years later. This also raises questions of immunity, which acts as a procedural bar to the initiation of legal proceedings against protected state officials.
Victims and families of victims have expressed grief at the devastation, destruction, and loss that the Gukurahundi massacres left in their communities. The experiences remain fresh in their minds. In a recent documentary, I want my virginity back, commissioned by the Gukurahundi Memorial Centre, victims and their families gave accounts of the gross violations to which they were subjected. Women and girls recounted the sexual violence they suffered at the hands of the Fifth Brigade, with many becoming pregnant and having children who continue to suffer great discrimination, neglect, and instability. It is interesting that the names of some of the soldiers who committed these crimes are known. Why then has there been deliberate inaction by the government to prosecute these members of the Fifth Brigade? The simple answer to this complex question is the nurtured culture of impunity and protection afforded those who perpetrate state-sanctioned human rights violations.
Impunity and lack of accountability have remained a constant in Zimbabwe, and for many it is apparent that the current repressive tactics of the state and the compromised judiciary do not bode well for justice and accountability for the massacres, now or in the future.
RECOURSE UNDER INTERNATIONAL LAW
International law has seen significant shifts that allow for justice to be pursued through different mechanisms and at various levels. Mechanisms that are of particular interest include criminal prosecution before the International Criminal Court (ICC) and universal jurisdiction.
Further pertinent to this discussion is understanding that international law demands that more be done to ensure accountability under both individual and command responsibility. Determining which one or whether both apply is a question under the procedure and form of proceedings, which is informed by the circumstances of each case. Both individual and command responsibility may be relevant to the prosecution of international crimes and there is sufficient guidance on this from the practice of international criminal tribunals.
Individual responsibility entails that individuals who commit war crimes may be held criminally liable under international law. They may also be held criminally responsible for assisting in, facilitating, aiding, or abetting the commission of a war crime. They can also be prosecuted for planning or instigating the commission of a war crime. In addition, civilian officials, military commanders, and soldiers who order or commit crimes against humanity can be held individually liable.
Command responsibility means that “military or civilian leaders are liable for serious abuses committed by persons under their command or authority if they knew or should have known of the abuses and did not take measures to prevent them or punish the perpetrators”. For instance, members of the Fifth Brigade reportedly told locals that they had been ordered to “wipe out the people [Ndebele] in the area” and to “kill anything that was human”. Some of the leaders of the army are current government officials, and it is highly probable that the ZANU-PF government would not allow for its cadres to be prosecuted. Both types of responsibility can be applied in criminal trials before the ICC and national proceedings such as universal jurisdiction cases.
With an understanding of the attitude of denialism by the ZANU-PF government of any human rights violations, it may be time that we pursue alternative paths to justice and accountability. Zimbabwe acceded to the Genocide Convention in 1991, and it was domesticated by the Zimbabwean Genocide Act of 2000. This means that national proceedings can be instituted under the Genocide Convention. Section 5 of the Genocide Act requires the Attorney General to authorise prosecutions. This presents a challenge, as the executive exercises great influence over the Attorney General, taking away independence, impartiality, and integrity in the decisions made by the office of the Attorney General.
Pursuance of justice through the ICC would potentially allow for the prosecution of high-level commanders. However, Zimbabwe is not a party to the Rome Statute establishing the ICC. Thus, without a referral or the Office of the Prosecutor initiating investigations proprio motu, the chances of accountability at the ICC are very low. Zimbabwe civil society has the opportunity to mobilise and utilise efforts of the past three decades through documentation and evidence gathering to present a case to the Office of the Prosecutor with the hope that an investigation may be initiated. There is a great interest in the affected communities to tell their stories, and mobilising through victims’ stories and the additional evidence available, such as mass graves, will kickstart the process of justice.
As an alternative, because crimes against humanity are considered to be crimes of universal jurisdiction, all states are responsible for bringing alleged perpetrators to justice. In terms of article 7 of the Rome Statute, crimes against humanity constitute a widespread or systematic attack against any civilian population including acts of murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape and sexual slavery, etc. A fair evaluation of the massacres will show with high probability that what happened constitutes crimes against humanity as defined.
Civil society can therefore pursue the institution of universal jurisdiction cases against alleged perpetrators in countries that have the capacity to do so. These cases could take a similar form to the proceedings initiated on the basis of universal jurisdiction in Argentine courts concerning crimes against the Rohingya by the Burmese Rohingya Organisation UK (BROUK).
As is the inherent challenge of international criminal justice mechanisms, the efficiency and effectiveness of such efforts are highly reliant on the cooperation of the state, in this case the Zimbabwean government. If history is anything to go by, the Zimbabwean government will be reluctant to cooperate or even allow access to government documents and to those in the leadership who planned and coordinated the massacres. While this may not inhibit instituting proceedings, evidence is of paramount importance. Victim and witness testimonies are crucial, and the risk of intimidation, harassment, and tampering is very high.
Mass graves are significant in proving the mass atrocities, and yet the government has made efforts to conduct exhumations and reburials, thereby destroying the evidence. This has been met by both support and criticism from families of victims and civil society. In October 2020, Gukurahundi survivors and activists challenged these acts in the Zimbabwe High Court, arguing that the process of reburials cannot be handled by people implicated in the massacres. The court dismissed the application. A concern is that the proposed exhumations and reburials may result in evidence tampering and destruction. This is particularly important as the international law framework lacks a clear procedure, apart from requiring states to cooperate, for the production of evidence.
For now, the Gukurahundi massacres remain a story of loss, hopelessness, and devastation. Deliberate inaction by the ZANU-PF-led government has frustrated the hope of the majority of Zimbabweans for an economic system that is vibrant and a political system that respects diversity and honours democracy. Justice and accountability remain a far-away dream for the victims and families of the Gukurahundi massacres. Many understand that an official acknowledgement would allow for accountability and justice efforts to begin, also making way for formal apologies for the destruction and loss suffered and the provision of reparations. Reparations would allow for investment in psycho-social support for the brokenness that such violence births and continuously rebirths for a society. Universal jurisdiction remains an option for justice, and this will require creative lawyering and the intervention of the international community to rally behind the victims and to also provide resources to support such efforts.
Ruwadzano Patience Makumbe is a Zimbabwean lawyer currently affiliated with the Asia Justice Coalition. She is interested in international justice and international human rights law, providing support to organizations in Africa, Asia and the UK.