The phenomenon of arresting and intimidating EHRDs
In State vs Newman Chiadzwa and 27 Ors, the State arrested twenty-eight (28) villagers from Chiadzwa village, under Chief Chiadzwa in Marange. They were arrested on the 2nd of November 2021 and charged with public violence as defined in Section 36 of the Criminal Law (Codification and Reform) Act. The allegations were that they had organised an unsanctioned demonstration at Anjin Investments’ new processing plant in the diamond fields of Chiadzwa, in which the villagers participated and, in the process, allegedly assaulted executives and disrupted operations at Anjin Mine in the same area. After the arrests were effected on 2 November 2021, the Zimbabwe Environmental Law Association (ZELA) together with the Zimbabwe Lawyers for Human Rights (ZLHR) offered legal representation to the accused villagers. The accused’s profiles were varied, they ranged from community leaders, and senior citizens, to community-based environmental human rights defenders working in the Chiadzwa community. The entire group of accused were eventually removed from remand after the complainant withdrew the charges on 14 January 2022.
In addition, there have been other instances of EHRDs arrests in the exercise of their fundamental rights and freedoms such as Never Tshuma the Deputy Chairperson of the Dinde Residents Association who in April 2021 was arrested on allegations of inciting fellow villagers to resist a coal exploration exercise by some Chinese investors in the area. In April 2022 Livson Chikutu a community leader from Chilonga in the Chiredzi district was arrested and charged with incitement to commit public violence as defined in section 36(i)(a) of the Criminal Law (Codification and Reform) Act [Chapter 09:23] for leading the local people in opposing the setting up of a lucerne farming project in Chilonga. In May 2022, an EHRD in Hwange reported that he was being monitored by members of the security sector and this happened at the back of his expressed intention to oppose a coal mining company that wanted to do operations in the area.
An analysis of the phenomenon: The legal perspective
EHRDs are defined by the United Nations as individuals and groups who, in their personal or professional capacity and in a peaceful manner, strive to protect and promote human rights relating to the environment, including water, air, land, flora, and fauna. It is important to note that arrest and intimidation are some of the weapons used to silence EHRDs and this is not peculiar to Zimbabwe. The arrest and intimidation of EHRDs in the exercise of their fundamental rights and freedoms as entrenched in the Constitution of Zimbabwe, 2013 (hereinafter referred to as the “Constitution”) should be looked at in the context of rising tensions between balancing human rights and development. The Constitution is the starting point when it comes to the protection mechanisms that exist for EHRDs in Zimbabwe. The Declaration of Rights as articulated in Chapter 4 of the Constitution provides for rights and obligations that bind ‘the State and every person, including juristic persons, and every institution and agency of the government at every level’ to ‘respect, protect, promote and fulfil the rights and freedoms’. By interpretation, Section 44 of the Constitution protects the fundamental rights and freedoms of EHRDs from any possible action of the State, in its various forms, and any juristic person.
The activities of EHRDs are expressly protected in both Zimbabwean and international law. The right to freedom of expression is canvassed by regional and international instruments to which Zimbabwe is a party and these include Article 19 of the Universal Declaration of Human Rights (UDHR); Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR , Article 9 of the African Charter on Human and Peoples’ Rights (African Charter). Furthermore, the arrest and detention of EHRDs violate their rights to liberty as established in national, regional, and international law. Relevant provisions include Section 49 of the Zimbabwe Constitution which protects the right to liberty. According to the Methods of the Working Group on Arbitrary Detention, detention is arbitrary if, among other things, there is no legal basis justifying the deprivation of liberty, the individual has been arrested as a result of the exercise of their fundamental rights including the right to freedom of expression, or the individual has been deprived of his or her liberty for reasons of discrimination based on political or other opinions. Regionally, Article 9(1) of the ICCPR and Article 6 of the African Charter effectively recognises the right to liberty on such grounds and by such procedure as established by law.
Whilst appreciating the abovementioned legislative framework for the protection of EHRDs, the series of arrests and charges that would appear to have external motivations violate people’s rights to freedom of expression/ conscience and the right to personal liberty. With the documented increase in the number of reported cases of corporate human rights abuses, the United Nations Guiding Principles on Business and Human Rights (UNGPs) offer a normative framework that explores mechanisms to deal with the growing tension between business operations and the resulting adverse human rights impacts. The principles do not impose new legal obligations on businesses or change the nature of existing human rights instruments. Rather they aim to articulate what these established instruments mean, for both States and companies, and to address the gap between law and practice. The UNGPs are grounded in recognition of three (3) fundamental pillars, and these are:
i. States’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms;
ii. The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights;
iii. The need for rights and obligations to be matched to appropriate and effective remedies when breached.
The future of EHRDs protection
On the 28th of July 2022, the declaration by the United Nations General Assembly confirmed the Human Rights Council resolution 48/13 s adopted in October of 2021 that access to a clean and healthy environment is a universal human right. In essence, the resolution notes that the right to a healthy environment is related to existing international law and affirms that its promotion requires the full implementation of Multilateral Environmental Agreements. In addition to the current domestic legislative framework, Zimbabwe must domesticate all relevant international instruments to which it is a party together with the United Nations Guiding Principles on Business and Human Rights which will enhance the domestic protection mechanisms of EHRDs in the conduct of their efforts in protecting the environment. It is against this backdrop that the arrests and detention of EHRDs must be subject to intense review when looking into their legality. This “heightened standard of review” by domestic, regional and international bodies is especially appropriate where there is a “pattern of harassment” targeting such individuals, as seems to be manifesting in the case of EHRDs in Zimbabwe. Considering the foregoing violations and the worrying trend they represent of weaponisation of the criminal justice system to stifle public participation, the government of Zimbabwe is urged to take deliberate steps to advance the respect and protection of the internationally and constitutionally entrenched rights of EHRDs.