PEACE WATCH of 18th November 2009 [Abuse of Law toHarass Unionists]

Written by Veritas

Thursday, 19 November 2009 06:47

PEACE WATCH
"If there is to be forgiveness and national healing, then the truth must be acknowledged." ( Pictured: Wellington Chibebe, Secretary-General of ZCTU] Continued Abuse of Law to Harass Civil Society

The police have again misused the Public Law and Security Act [POSA] by arresting trade union leaders in what seems like a deliberate effort to deny civic society organisations the right to go about their legitimate business peacefully. This police action is also in open defiance of the widespread outrage provoked by the arrests on similar charges less than two weeks previously of two senior officials of the National Association of Non-Governmental Organisations [NANGO] in Victoria Falls and two staff members of the Zimbabwe Election Support Network [ZESN] in Dete in the same police district. [Outlined in the last Peace Watch of 8th November]. The NANGO and ZESN cases are still pending before the courts, but many legal observers consider that these cases involved blatant misuse of POSA and police powers of arrest.

ZCTU Leaders Arrested – Further Misuse of POSA
On Sunday 8th November Lovemore Matombo, president of the Zimbabwe Congress of Trade Unions [ZCTU], was arrested by police while addressing members of the organization at Victoria Falls. Also arrested were four other union officials, Michael Kandukutu, Percy Mcijo, Dumisani Ncube and Nawu Ndlovu. Police alleged they had contravened the Public Order and Security Act [POSA] by holding a public meeting without having notified police. The five were detained in custody until Thursday 12th November when a magistrate threw out the charges and ordered their release, saying the police had failed to specify facts suggesting the accused had committed the offence alleged. The magistrate pointed out that trade union meetings are not covered by the POSA provisions regulating meetings, and advised the police to acquaint themselves with the law. But meanwhile the unionists had the indignity of being arrested and detained for 5 days and nights in disgusting conditions. The police cells were low-roofed with poor ventilation, dirty [thought not as filthy as some in Harare] and for the first few nights so overcrowded their was no room to attempt sleep; no blankets or mats were issued, and sanitation facilities consisted of a bucket. And these are respectable and respected citizens, who had no cause to be detained. The unionists were holding the first of a country-wide series of meetings, and their whole itinerary and work schedule was interrupted. The arrests caused grave concern to their families and anxiety to the unionists, knowing that on previous occasions when unionists were detained they had been beaten or tortured.

POSA and Trade Union Meetings
As the magistrate said in throwing out the police case against the ZCTU officials, the POSA provisions on notifying meetings do not apply to trade union meetings. Section 26A of POSA states that the relevant sections do not apply to gatherings listed in the Schedule to the Act, and paragraph (j) of the Schedule lists “[gatherings] held by a registered trade union for bona fide trade union purposes for the conduct of business in accordance with the Labour Act”. Police cannot credibly plead ignorance, because this is not a new exemption; it has been part of POSA from the start in 2002, and before that it was in the corresponding provisions of the Law and Order (Maintenance) Act.
The unionists had with them a copy a High Court declaratory order which clarified the fact that, under the Schedule as read with 26A of POSA, unions do not have to seek police permission for their meetings. They also had a copy of POSA indicating this, which they showed to the police. They say the police told them that they had to arrest them nevertheless, as orders had come “from above”. Not only was the whole “incident” a gross violation of people’s rights to go about their lawful business but it was a huge waste of the resources of the police and the justice system.
In their comment Zimbabwe Lawyers for Human Rights [ZLHR] accused the police in this case of malicious and unjustifiable action in using POSA as a tool of repression, and drew attention to police awareness of the fact that the High Court had declared that POSA does not apply to ZCTU meetings. ZLHR accordingly called for a Parliamentary committee of inquiry into the unlawful actions of the police, particularly in the north-western region of the country, the scene of this and other recent arrests under POSA. ZLHR also called for an inquiry into the role of the Attorney-General and Director of Public Prosecutions, accusing them of failure to execute their constitutional and professional duty to advise the police of their continued misinterpretation and misapplication of the law.

International condemnation of ZCTU arrests
The African Regional Organisation of the International Trade Union Confederation (ITUC-Africa) wrote to President Mugabe pointing out that the arrests amounted to improper interference in legitimate trade union activity protected by International Labour Organisation Convention 87, which Zimbabwe has ratified. The Presidency of the European Union expressed its concern and called for the early release of Mr Matombo and his colleagues and for a halt to all state violence and intimidation of members of civil society and political activists in Zimbabwe. Messages of solidarity condemning the arrests poured in from other unions, including COSATU and the Australian Council of Trade Unions.

Targeting of Unionists Subject to UN Probe
Zimbabwe is already been investigated by the International Labour Organisation [ILO], a United Nations organ, for alleged violations of trade union rights by the Government, including breaches of the ILO conventions on freedom of association and collective bargaining, the banning of peaceful protests by workers, and the prohibition of the holding of workshops and Workers Day’s celebrations. A three-member team of ILO officials was in Zimbabwe in August to conduct an official ILO probe into the allegations, the most serious of which was that ZCTU leaders, labour and workers rights activists were brutally assaulted in 2006 after staging protests aimed at forcing the government to improve working conditions. Lawyers representing the union leaders alleged at the time that their clients were tortured while in police detention at Matapi Police Station in Mbare. The ILO report is not yet out, but Zimbabwe could face blacklisting from the ILO if it concludes that trade union rights have indeed been violated. The arrests and detention of the ZCTU officials at Victoria Falls not only damage Zimbabwe’s reputation but also increase the chances of that risk becoming reality.
The Constitution [section 21] and the Labour Act [section 4] expressly recognize the right of workers to form and belong to trade unions as a fundamental right, and to engage in the lawful activities of their unions for the advancement and protection of their interests. Unfortunately the ZANU-PF government has for many years perceived the ZCTU as a political opposition force, an attitude that has translated into frequent police harassment of ZCTU and its affiliated unions and their officials. As recent events demonstrate, in spite of the inclusive Government and MDC-T and ZANU-PF co-Ministers of Home Affairs, there has been no fundamental change of heart by police.

Urgent Need to Retrain the Police
These latest incidents once again underline the need for effective action to change the police mindset towards the rights of freedom of assembly and association. As long as POSA remains on the statute book it must be implemented fairly and impartially. The GPA states in Article 12(1)(b) “that the Government shall undertake training programmes, workshops and meetings for the police and other enforcement agencies directed at the right of freedom of assembly and association and the proper interpretation, understanding and application of the provisions of security legislation” and in Article 13 that “State organs and institutions do not belong to any political party and should be impartial in the discharge of their duties.” The inclusive government is being very dilatory in ensuring that police are retrained to observe basic rights, to understand the laws they are entrusted to enforce and to enforce them impartially.
In a statement after the unionists were released, ZCTU Secretary-General Wellington Chibebe said that comments made by the police that the ZCTU should have sought police clearance before holding the meeting smacked of a police force that acts on political decisions and not on whether one has a case to answer or not. "This is not the kind of police that Zimbabweans want, but unfortunately we have to live with such. This points to the fact that we definitely need to reform the police so that we have a professional non-partisan force. The infamous POSA clearly does not cover trade unions but the police continue to disrupt trade union activities in the name of POSA. The police should be undoubtedly ashamed of their actions."

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