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You are here: BAILII >> Databases >> Upper Tribunal (Immigration and Asylum Chamber) >> CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) (31 January 2013) URL: http://www.bailii.org/uk/cases/UKUT/IAC/2013/00059_ukut_iac_cm_zimbabwe_cg.html Cite as: [2013] UKUT 59 (IAC), [2013] UKUT 00059 (IAC) |
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Upper Tribunal
(Immigration and Asylum Chamber)
CM (EM country guidance; disclosure) Zimbabwe 
CG [2013] UKUT 00059(IAC)
| Heard at Field House | Determination Promulgated |
| On 2, 3, 4, and 5 October 2012 | |
Appellant
Respondent
Representation:
For the Appellant: Mark Henderson, Phil Haywood and Catherine Meredith, instructed by Turpin and Miller
For the Respondent: Colin Thomann instructed by Treasury Solicitor
Public Interest Immunity Advocate: Kate Olley, appointed by the Attorney General
(1) There is no general duty of disclosure on the Secretary of State in asylum appeals generally or Country Guidance cases in particular. The extent of the Secretary of State's obligation is set out in R v SSHD ex p Kerrouche No 1 [1997] Imm AR 610, as explained in R (ota Cindo) v IAT [2002] EWHC 246 (Admin); namely, that she must not knowingly mislead a court or tribunal by omission of material that was known or ought to have been known to her.
(2) The Country Guidance given by the Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) on the position in Zimbabwe as at the end of January 2011 was not vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State's Fact Finding Mission report of 2010. The Tribunal was entitled to find that there had been a durable change since RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Country Guidance in EM does not require to be amended, as regards the position at that time, in the light of-
(a) the disclosure by the Secretary of State of any of the materials subsequently disclosed in response to the orders of the Court of Appeal and related directions of the Tribunal in the current proceedings; or
(b) any fresh material adduced by the parties in those proceedings that might have a bearing on the position at that time.
(3) The only change to the EM Country Guidance that it is necessary to make as regards the position as at the end of January 2011 arises from the judgments in RT (Zimbabwe) [2012] UKSC 38. The EM Country Guidance is, accordingly, re-stated as follows (with the change underlined in paragraph (5) below):
(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, 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 the ZANU-PF.
(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe)).
(3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.
(4) In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like.
(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a "loyalty test"), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF.
(6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile.
(7) The issue of what is a person's home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.
(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.
(9) The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.
(10) As was the position in RN, those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.
(11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN and remains valid.
(4) In the course of deciding CM's appeal, the present Tribunal has made an assessment of certain general matters regarding Zimbabwe as at October 2012. As a result, the following country information may be of assistance to decision-makers and judges. It is, however, not Country Guidance within the scope of Practice Direction 12 and is based on evidence which neither party claimed to be comprehensive:
(a) The picture presented by the fresh evidence as to the general position of politically motivated violence in Zimbabwe as at October 2012 does not differ in any material respect from the Country Guidance in EM.
(b) Elections are due to be held in 2013; but it is unclear when.
(c) In the light of the evidence regarding the activities of Chipangano, judicial-fact finders may need to pay particular regard to whether a person, who is reasonably likely to go to Mbare or a neighbouring high density area of Harare, will come to the adverse attention of that group; in particular, if he or she is reasonably likely to have to find employment of a kind that Chipangano seeks to control or otherwise exploit for economic, rather than political, reasons.
(d) The fresh evidence regarding the position at the point of return does not indicate any increase in risk since the Country Guidance was given in HS (returning asylum seekers) Zimbabwe
This determination is arranged as follows:-
| Paragraphs | |
| Introduction | 1 - 11 |
| Preliminary issues for the management of this appeal | 12 - 63 |
| The procedure for determining disclosure issues | 23 - 32 |
| Extension of the disclosure application | 33 - 54 |
| Whether the present appeal should be listed as a Country Guidance case on the position in Zimbabwe in 2012 | 55 - 61 |
| The appeal of JG | 62 - 63 |
| Issue 1: The effect on the Country Guidance in EM of the materials subsequently disclosed by the respondent | 64 - 113 |
| Introduction | 64 - 71 |
| The previously undisclosed materials | 72 |
| (a) Views as to risks arising from future elections (the so-called "window of opportunity") | 73 - 79 |
| Discussion | 80 - 93 |
| (b) The potential influence of the Zimbabwe Electoral Commission (ZEC), the Southern African Development Commission (SADC)and South Africa on the arrangements for and holding of elections | 94 - 96 |
| Discussion | 97 - 99 |
| (c) Risk of serious harm in urban areas | 100 - 108 |
| Discussion | 109 - 113 |
| Issue 2: Was the Tribunal in EM entitled to find a "well-established evidentially and durable change" had arisen since the time under consideration in RN? | 114 - 139 |
| Introduction | 114 - 118 |
| The rival submissions | |
| (a) Decrease in violence since elections | 121 - 130 |
| (b) ZANU-PF control of relevant instruments of power | 131 - 139 |
| Issue 3: Did the use of anonymous evidence in EM render the decision unfair or unreliable? | 140 - 166 |
| Issue 4: What is the impact of any of the above and/or any fresh evidence adduced in the individual appeal of CM? | 167 - 235 |
| Introduction | 167 - 168 |
| Nature of the fresh evidence | 164 - 171 |
| (a) The outlook for constitutional reform, elections and the conditions in which they might be contested | 172 - 175 |
| (b) Levels of politically motivated human rights violations in Zimbabwe | 176 - 179 |
| (c) Problems in Harare | 180 |
| (d) Returnees to Zimbabwe | 181 |
| (e) Bulawayo and the Matabeleland provinces | 182 |
| The parties' submissions on the fresh evidence | 183 - 188 |
| (1) Appellant's initial submissions | 183 - 185 |
| (2) Respondent's submissions | 186 - 187 |
| (3) Appellant's reply | 188 |
| The Tribunal's findings on the fresh evidence regarding the situation in Zimbabwe as at October 2012 | 189 - 209 |
| (a) The outlook for constitutional reform, elections and the conditions in which they might be contested | 189 - 191 |
| (b) Levels of politically motivated human rights violations in Zimbabwe | 192 - 195 |
| (c) Problems in Harare | 196 - 201 |
| (d) Returnees to Zimbabwe | 202 - 205 |
| (e) Bulawayo and the Matabeleland provinces | 206 - 209 |
| Effect of fresh evidence on country guidance in EM, regarding the position in January 2011 | 210 - 214 |
| Country Guidance in EM, as modified | 215 |
| Summary of the country information on Zimbabwe as at October 2012 | 216 |
| Deciding CM's appeal | 217 - 235 |
| The respondent's submissions | 218 |
| The appellant's submissions | 219 - 225 |
| The appellant's further oral submissions | 226 |
| The Tribunal's findings on CM | 227 - 235 |
| General conclusions | 236 - 240 |
| APPENDIX A: EXTRACTS FROM RN (RETURNEES ZIMBABWE CG [2008] UKAIT 083 AND EM AND OTHERS (RETURNEES) ZIMBABWE CG [2011] UKUT 98 (IAC) |
A |
| APPENDIX B: DOCUMENTARY EVIDENCE | B |
| APPENDIX C: TRANSCRIPT OF ORAL EVIDENCE | C |
Introduction
CG [2011] UKUT 98 (IAC) hereafter EM. The appeals had been identified as suitable ones for the issue of Country Guidance because of conflicting approaches by immigration judges and others as to whether the assessment of general risk given in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 (hereafter RN) remained authoritative or had become displaced by fresh evidence.
(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, 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 the ZANU-PF.
(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe)).
(3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.
(4) In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like.
(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a "loyalty test"), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF.
(6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile.
(7) The issue of what is a person's home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.
(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.
(9) The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.
(10) As was the position in RN, those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.
(11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN, (see paragraphs 62 and 64 above) and remains valid.
(i) What is the impact on the Country Guidance of the material not before the Tribunal at the date of EM that has now been provided to the appellant and/or may be provided following the conclusion of the disclosure process and the claim to public interest immunity made in respect of a volume of material by or on behalf of the Foreign Secretary?
(ii) Was there a durable change of circumstances between the factual assessment in RN and EM?
(iii) Was the Tribunal wrong to give any weight to information supplied to the Fact Finding Mission (FFM) by certain organisations that did not consent to their identity being supplied to the appellant, having regard to the observations of the European Court of Human Rights in Sufi and Elmi v United Kingdom [2011] ECHR 1045, [2012] 54 EHRR 9 ?
(iv) What is the impact of any of the above and or any fresh evidence adduced on the individual appeals?
Preliminary Issues for the management of this appeal
(i) The first issue was how the process of disclosure and further disclosure and evaluation of the PII claim should be undertaken. The parties were at odds as to whether the Tribunal should undertake the exercise for itself in private, appoint a specially appointed advocate to assist them or adopt some other course.
(ii) The second issue was whether further directions for disclosure should be issued. Mr Henderson for the appellant submitted that further disclosure should be ordered of relevant data up to a date shortly before the date set for substantive determination of this appeal.
(iii) The third issue was whether the re-determined appeal should be case managed as a Country Guidance case. Mr Henderson contended that as the Country Guidance in EM had been set aside, directions should be given for the appeal to be listed as new Zimbabwean Country Guidance. Mr Thomann for the Secretary of State opposed that course and indicated that all that was required was that CM's appeal be re-determined in accordance with the Court of Appeal's order.
(iv) The fourth matter concerned JG's future participation in the appeal. We were informed that although JG had been party to the appeal to the Court of Appeal, the legal aid authorities had concluded that she was no longer eligible for legal aid to pursue the asylum appeal before us. She was unrepresented at the direction hearing as her existing representatives could not continue to act for her.
CG [2005] UKIAT 00100 in 2005.
The procedure for determining disclosure issues
(i) to determine if it was relevant to the issues in the appeal, having regard to what was already known to the Tribunal and the appellant; and, if so:-
(ii) to decide whether the claim for public interest immunity was made out;
(iii) if PII applied, to assess whether the material was of such significance to the appeal that fairness required us to direct that the material in whole or in part should be disclosed to the appellant.
This task included completing the process of reviewing the redactions already made during the Court of Appeal proceedings. It was necessary to review the redactions made on relevance grounds, and if we considered the material to be relevant ascertain whether a PII claim arose in respect of it.
Extension of the disclosure application
"While Lord Lloyd's approach must be the starting point for the consideration of this issue, there are limits to the approach he indicated in that case. The decision would not justify the Secretary of State knowingly misleading the Special Adjudicator. The obligation of the Secretary of State cannot be put higher than that he must not knowingly mislead. Before the Secretary of State could be said to be in that position, he must know or ought to have known that the material which it is said he should have disclosed materially detracts from that on which he has relied."
"10. The words I have emphasised point to the inclusion of constructive knowledge. This was taken up by Simon Brown L.J. in Konan v SSHD (CA, 20 March 2000, BAILII: [2000] EWCA Civ 3041), who also observed that (para 24):
" ..the Secretary of State's obligation in a full asylum appeal like this may well be higher than in cases like Kerrouche and . Abdi and Gawe, cases concerned with safe third country appeals".
11. Taking a broad view of the authorities, they appear to illuminate these principles: (1) there is a duty on the part of the Secretary of State not knowingly to mislead in the material he places before the Adjudicator or the IAT; (2) "knowingly" embraces that which he ought to have known; (3) a breach of that duty may found judicial review on the basis that either (a) the decision was reached on a "wrong factual basis" (see Wade & Forsyth, Administrative Law, 8th Ed. Pp.283-284); or (b) the proceedings were tainted with unfairness."
"There was no duty on the Secretary of State to embark upon an investigation to identify evidence not in his hands for the preparation of country reports, in order to assist these appellants in making their cases".
CG [2009] UKAIT 0056.
(2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may
(n) require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents
Whether the present appeal should be listed as a Country Guidance case on the position in Zimbabwe in 2012
"12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters "
(a) relates to the Country Guidance issue in question; and
(b) depends upon the same or similar evidence.
12.3 A list of current
12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable Country Guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law."
(i) The principal issue was whether the assessment in EM was flawed for the reasons of concern to the Court of Appeal. If it was not then its status as Country Guidance when it was issued could be restored pending any change of circumstances. Until these issues were determined it was premature to conclude that the decision no longer had any value as guidance.
(ii) Whereas the EM group of cases involved four appellants from different locations and with different personal histories, the reheard appeal on which we were embarked seemed likely to involve only one appellant from a low or medium density suburb of Harare. This was not a satisfactory basis to make the general appraisal that the Upper Tribunal had delivered in EM.
(iii) Although EM had been under appeal from the Upper Tribunal since March 2011, no fresh evidence suggesting a significant change of circumstances had been presented to us by July 2012 that would have enabled us to explore with particularity what fresh issue was being considered for guidance.
(iv) We had a duty to determine CM's individual appeal in the light of updated information and would receive any fresh information presented to us. If it were materially different from the previous Country Guidance case we were required by the principle in Ravichandran to reach the appropriate conclusions to be drawn from the material as a whole.
(v) It was probable given the importance of the issues remitted to us for adjudication that our final determination would be reported in due course, but whether any fresh evidence was such to make it suitable for reporting as a Country Guidance case was a matter to be considered in the light of what was presented at the appeal and conclusions on it.
The appeal of JG
Issue 1: The effect on the Country Guidance in EM of the materials subsequently disclosed by the respondent
Introduction
"(a) to determine whether the Country Guidance in EM and Others (Returnees) Zimbabwe
(i) any material subsequently disclosed by the respondent in response to the orders of the Court of Appeal and any related further directions of the Tribunal."
"130. Prior to the hearing in October 2010, appellants JG, EM and CLM requested disclosure of all documents within the control of the Secretary of State for the Home Department or other government departments relating to assessments of the political situation in Zimbabwe for the purpose of determining whether to commence enforced returns, pursuant to the ministerial statement of 29 October 2009. That ministerial statement had indicated that the UKBA would begin work on a process aimed at normalising the returns policy to Zimbabwe, moving towards resuming enforced returns as and when the political situation developed. The appellants' purpose was, in essence, to ascertain what lay behind the ministerial statement in October 2010, that the situation was now such that (subject to what might be said by this Tribunal in the present proceedings by way of Country Guidance) enforced returns to Zimbabwe could recommence.
131. In a letter of 18 October 2010 from the FCO Zimbabwe Unit to Mr Walker, it was said that the FCO had always been clear that enforced returns were related to foreign policy considerations, in particular the stability of the inclusive government in Zimbabwe, and were not related to security or safety of returnees. On 20 October the Tribunal directed the disclosure of "any material emanating from the FCO regarding its assessment of the political situation in Zimbabwe from 1 August 2010". On 22 December 2010 certain egrams were supplied to the appellants and the Tribunal, subject to certain redactions and gists. This followed an analysis of FCO material, in which Junior Counsel for the respondent was involved, to identify material potentially falling within the scope of the Tribunal's direction, including (of course) material that might be said to undermine the respondent's case and/or support the cases of the appellants. Ten egrams were identified."
"Whether the respondent failed to comply with its disclosure obligations and whether the respondent's statement of the Foreign Office 'had always been clear that its concerns on enforced returns were related to foreign policy considerations and were not related to the security or safety of returnees' had been misleading."
"264. Drawing all these threads together, we do not conclude that our evaluation of who is or is not presently at risk if returned to Zimbabwe is undermined, by the possibility of a return to violence at 2008 levels in the event of elections being called in the foreseeable future. The combined effect of the evidential uncertainty of when elections may be called and what might happen when they are produces a picture that is too equivocal or obscure to amount to a real risk of future ill treatment."
"It seems to me that it is at least arguable on the material that we have now seen that there was a failure to make proper disclosure to the Tribunal - for whatever reason, it matters not - and, in very brief summary, that it is arguable that the material which related to the Foreign Office concerns that there was a limited window of opportunity in which Zimbabweans might be returned to Zimbabwe and that window of opportunity was limited because elections were anticipated within a relatively short period (various periods are given, including the period of twelve to eighteen months) and that there was a real likelihood of violence at those elections was arguably relevant and might arguably have had an impact upon the critical conclusion of the Tribunal: namely, that the combined effect of the evidential uncertainty of when elections may be called and what might happen when they are, produced a picture that was too equivocal or obscure to amount to a real risk. It is arguable that the additional material might have persuaded the Tribunal that the picture of when elections will be called and what was likely to happen when they were called, was not too equivocal or obscure. I express no conclusion as to whether that is the case since this is simply a permission application."
(a) No later than March 16th 2012 the respondent was ordered to disclose those documents in the respondent's or the FCO's control, dating from 1st January 2010 to 10th March 2011, touching on the timing of elections in Zimbabwe and the risk of a return to violence in connection with those elections. The obligation extended to a manual search by the respondent and a manual and electronic search by the FCO.
(b) No redactions were to be made on public interest immunity grounds (and previously served redacted documents to be re-served in unredacted form) unless a public interest immunity exercise had been carried out and public interest immunity certificates pertaining to the appeal served by the respondent, no later than 16th March.
(c) In the event that the respondent invoked PII for those documents already served on 25th October 2011, the gist was to be provided for the redacted passages [listed in an annex] no later than 4pm on 16th March.
The previously undisclosed materials
(a) Views as to risks arising from future elections (the so-called "window of opportunity");
(b) The potential influence of the Zimbabwean Electoral Commission (ZEC), Southern African Development Community (SADC) and South Africa on arrangements for and the holding of elections;
(c) Risk of serious harm in urban areas.
(a) Views as to risks arising from future elections (the so-called "window of opportunity")
CG] case will create, will be of limited duration. As elections approach in Zimbabwe, renewed political violence may well drive a further change in the ground rules".
Discussion
"The limited window reflects the FCO's assessment that the election, whether early or later, will not be properly supervised and will bring risk to returnees, whether or not identical to 2008."
CG [2005] UKIAT 00100, it was recorded that:
"elections were held in June 2000 and there was a systematic campaign of violence towards supporters of potential opposition politicians. Many acts of violence were perpetrated by ZANU-PF militants and war veterans. Politically motivated violence mostly perpetrated by government supporters against the MDC and commercial farmers continued throughout 2001 after the parliamentary elections and in 2002 in the run up to the presidential election of March 2002".
At [44] the Immigration Appeal Tribunal found that there was "a heightened risk during election periods and their immediate aftermath. This reflects the pattern which has been followed since 2000. Before an election there is intimidation of opposition supporters and those perceived to be encouraging support for the opposition, in particular teachers and civil servants". As we have already noted, the report of the March 2010 CPIA seminar recorded agreement that "each transfer of power and/or elections had come with violence".
"The Source considers that both ZANU-PF and the military are desperate for political legitimacy. They are also very aware of the intense regional pressures to form a civilian government and are keen to rebuild their reputation in the region and with the West, not least because they feel that the relationship with China is not going to be a comfortable one
They will therefore seek to rely as far as possible on measures short of large-scale political violence in the election campaign and believe that they can achieve a clear majority without needing to resort to large-scale violence. Instead they will seek to exploit the deep divisions in the MDC, which is close to fracturing into two distinct factions, led by Makoni and Biti, with the former keeping Tsvangirai as a front."
"The explosion of violence in the run-up to the June 2008 election was probably a one-off. ZANU paid a high price for Mugabe's victory, since SADC observers declared the election did not reflect the will of the people. The preferred model will be the 2005 election, which ZANU won convincingly (recovering the ground they had lost in 2002) and which was not questioned by SADC."
"This is unlikely to be the 'bloodiest election in Zimbabwe's history' (as some commentators say) unless ZANU panics (as well they might)" (our emphasis).
This comment was, however, addressing the "early election scenario" discussed in EM, which the Tribunal in that case considered would not materialise and which we know did not materialise. The comment has no material bearing on the more distant scenario, addressed in that determination.
" There is also the following important point. If, after promulgation of this determination, evidence emerges that elections will be held at a particular time, without any of the safeguards and other countervailing features we have described, then the structures underpinning the Country Guidance system ensure that judicial fact-finders will be required to have regard to the new state of affairs, in reaching determinations on Zimbabwe cases. The effect of Practice Direction 12.2 is such that a Country Guidance case is authoritative in a subsequent appeal, only so far as that appeal relates to the Country Guidance issue in question and depends upon the same or similar evidence (our emphasis). By the same token, we would expect the respondent to take account of that situation, both in reaching decisions on asylum claims involving Zimbabwe (including fresh claims under paragraph 353 of the Immigration Rules) and in deciding whether to give directions for a person's removal to Zimbabwe."
CG [2007] UKAIT 00094), that those known to the security services to be MDC activists and targeted as such might still be at risk of ill-treatment by the Central Intelligence Organisation (CIO) at that airport. The Country Guidance in EM concerned the position after a returnee had left the airport.
(b) The potential influence of the Zimbabwe Electoral Commission (ZEC), the Southern African Development Commission (SADC) and South Africa on the arrangements for and holding of elections
"will be the attitude of the SADC and, in particular, the government of South Africa. Again, the earlier evidence in this regard to which we have been referred paints a somewhat uncertain picture. However, the later evidence indicates a greater degree of commitment to ensuring that any future elections in Zimbabwe are not characterised by the sort of violence seen in 2008" [236].
"if there were elections, it would still be the military forces that had the upper hand SADC and South Africa had reacted weakly which reflected the strong position of President Mugabe" (vol. 4, tab 88). At vol. 4, tab 140 an interlocutor was noted as making the "interesting observation that although SADC wants change in the leadership of ZANU-PF, they do not want any other party other than ZANU-PF to run the country. Their ideal choreography would be a ZANU-PF victory, followed by an orderly succession".
Discussion
"whilst we do not overestimate the power of the Zimbabwe Electoral Commission, we note the evidence that its Chair is an internationally respected jurist, who has already indicated a reluctance to be rushed into elections, before proper preparations have been made; in particular, reform of the electoral roll."
This finding was made in the context of the Tribunal's analysis of when elections in Zimbabwe would be called; in particular, whether they would occur in 2011 (see [235] and [236]). The only other finding in EM relating to the ZEC is at [263], where it was concluded that
"the scenario of elections being held in mid-2011, or slightly later, in defiance of international (especially regional) opinion and the Electoral Commission, and in circumstances where, despite his indications to the contrary, Morgan Tsvangirai decides to expose the MDC to danger by contesting the elections, is an unlikely one, on the balance of probabilities, albeit that there is a chance it might happen".
Those findings proved correct: as at the beginning of 2013, the elections have not been held.
(c) Risk of serious harm in urban areas
"199. The Tribunal in RN noted a difference between the position in, respectively, high and low-density areas of Harare. A person living in a low-density area would, in summary, not be reasonably likely to face a "loyalty" challenge from militia or war veterans. In relation to the period under consideration in RN, however, it was found that the situation would be otherwise in high-density areas.
200. The evidence before us demonstrates that there are difficulties faced by those living in high density areas not faced by those living in other urban areas: there is a greater prevalence of criminal disorder and reduced personal security; where it is available at all accommodation will be very crowded and a lower standard; street traders working in the informal economy may be the subject of harassment from state officials; persons perceived to be active in MDC politics may face the risk of targeted reprisals. The Zimbabwe Lawyers for Human Rights described high-density areas as experiencing "occasional arrests and beatings". The evidence taken as a whole does not present a picture of such intensity or regularity as to suggest that any resident of a high density area having no active involvement in MDC politics would be at risk of harm. The picture of ZANU-PF activity in these areas is significantly different from rural areas: the system of control through ZANU-PF chiefs and village headmen and the ability to monitor the identity of new arrivals in rural communities have no proper counterparts in Harare. We are accordingly unable to accept the evidence of those witnesses who suggested that the risk level was the same in the rural and high density urban areas.
201. It is common ground that the MDC tend to dominate high-density areas. In his response to the FFM team, W80 of the Zimbabwe Human Rights NGO Forum said that it would be difficult for ZANU-PF to harm MDC supporters in MDC dominated areas "because the MDC tend to be quite well-organised in those areas and can protect those who might otherwise be at risk of political violence by the threat of retribution". In his statement on behalf of the appellants, W80 sought to qualify those remarks. He said that what he was referring to were isolated pockets of resistance that had appeared on occasions and he did not mean that there were areas of the country that the MDC controlled or that the MDC could generally protect its supporters. The infrastructure of violence was still intact and ZANU-PF remained in total control of the coercive arms of the state.
202. We accept W80's point that, since ZANU-PF does indeed remain in de facto control of the army, police and similar services, it is wrong to speak of any particular area of Zimbabwe as being "controlled" by the MDC. Nevertheless, it is apparent that in his response to the FFM team, W80 was describing the present position, where in practice it is indeed "difficult for ZANU-PF supporters to harm MDC supporters in MDC-dominated areas". The position might, of course, be different if, immediately prior to an election, Mugabe and ZANU-PF were to launch a significant campaign of violence in Harare, such as in 2008. That is not, however, the position at present.
203. We say this, having particular regard to the latest evidence, from January 2011, concerning various disturbances in Harare, which are said to have been instigated by ZANU-PF elements. The alleged establishment in high-density areas of campaign bases in the homes of ZANU-PF leaders falls significantly short of the kind of militia bases described in the evidence in relation to certain rural areas. There continues to be an absence of reliable evidence that militia bases have been established in Harare. The setting up of campaign bases in peoples' homes is, if anything, an indication of the relative weakness of ZANU-PF in the capital. The report of 26 January 2011 that carried the story of these bases referred to ZANU-PF and MDC youths being engaged in clashes, which, again, differs from the descriptions of what is going on in rural areas, where the picture is often one of villagers being coerced into silent submission by a ZANU-PF gang. Overall, we find that this and the other most recent evidence underscores the position that emerges from the earlier evidence, which is that the focus of such current ZANU-PF activity as there is in the high-density areas of Harare is on MDC activists, as opposed to the general population.
204. We accordingly conclude that, at the present time, although a person having no significant MDC profile, returning to a high-density area of Harare, is likely to face more difficulties than someone returning to a low-density area, he or she would not at present face a real risk of having to prove loyalty to ZANU-PF in order to avoid serious ill-treatment. So far as living conditions in high-density areas are concerned, the only witness to assert that the housing in such areas was unfit for human habitation was the person we have described as W79 of the Zimbabwe Human Rights Association. We do not conclude from this that anyone having to live in such a high density area would be exposed to inhuman or degrading treatment contrary to Article 3. Mr Henderson did not attempt to submit to us that this was the case. Whether any individual having to live rough in shanty accommodation or other grossly overcrowded and insecure arrangements would be exposed to treatment of this level of severity would depend on an individual assessment of circumstances including age, gender, health, earning capacity, social assistance arrangements, the presence of young children and the like.
205. We have spoken so far of high and low-density areas in Harare. Professor Ranger, however, told us that there were three kinds of zone in Harare. The low-density areas comprised the white community, the coloured community and Africans "who were not so poor. The low-density areas had more Africans than in the past." Then there were areas of intermediate-density. Here, although there were problems with dereliction, there were not problems with gangs. These he categorised as "medium-density areas". Finally, there were the high-density areas, which, although they had problems, nevertheless "had some services". The Tribunal also notes that appellant JG described her home area of Queensdale as "kind of medium-density". She said that it was not far from Epworth "where many rowdy gangs" existed; and Queensdale might therefore be "a vulnerable location". Many cities in the world, including ones in the United Kingdom, have areas of affluence adjacent or close to areas of relative deprivation. This fact would generally not give rise to a claim for international protection or furnish evidential support for a contention that it would be unduly harsh to expect a person to relocate to accommodation there. Particularly given what we have had to say about the present position of the high-density areas in Harare, we do not consider that the distribution of high, medium and low-density areas has significance, as regards the matters with which we are concerned."
" whilst it may be reasonably likely that ZANU-PF militias etc would be bussed in to that city in order to cause problems during an election campaign, the present evidence is such that it would be merely speculative to conclude this would have a material impact upon those living in low-density areas. In addition, even in this scenario, we do not consider the present evidence suggests that ZANU-PF would be able to engage in the kind of systematic intimidation, which it would deploy in rural areas of the eastern provinces. In this regard, we note the absence of reliable evidence regarding militia bases. The report of 26 January 2011, regarding the alleged use of ZANU-PF leaders' homes in Harare as campaign bases, is said to be confined to high-density areas and, in any case, appears to be of a different and lesser order to the sort of camps and bases established in rural areas in 2008. Whilst we accept the evidence of the appellants, that even in high-density areas in which it dominates, the MDC would be unable to resist a military or quasi-military assault, it is questionable whether ZANU-PF would, in 2011, choose to launch such an assault, given the high-profile nature of Harare and the international condemnation which would ensue. The evidence of January 2011 regarding disturbances in Harare instigated by ZANU-PF elements does not begin to amount to such a state of affairs, notwithstanding the report of Tsvangirai's having raised the disturbances with President Zuma. Those involved in the disturbances were MDC members and supporters (voanews.com article of 24 January) and the evidence of non-political residents suffering in this regard is sparse."
"(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a "loyalty test"), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF."
"a worrying increase in tension" and that ZANU-PF youths were bussed in "to intimidate and assault MDC supporters in three of Harare's high density outlying areas. ZANU youths attacked two MDC-T officials in Budiriro, along with their families, and destroyed and looted their homes. One party official is in hospital with a gunshot wound, a ward chairman is believed to have been abducted and another supporter is in hiding after being assaulted. The militia also attacked people at a bar on Saturday night and smashed TV sets and windows before closing the place down. In Mbare, a Harare suburb, a large group of ZANU youths attacked the MDC office on Saturday, assaulting 24 MDC youths who were guarding the office." In Chitungwiza, "ZANU youth assaulted an MDC official and his family and destroyed his home. Another MDC activist sustained serious head injuries after being assaulted with bottles".
The email concluded that it was "unclear, however, to what extent the violence was planned centrally or reflects lawlessness at local level."
"Mugabe, supported by some of the military, has officially called for elections in June 2011. However, the MDC and a significant part of ZANU-MDC were opposed to elections before further economic consolidation and, on MDC's part, before important electoral, media and security reforms are carried out and a credible long-term monitoring mission established. Constitutionally elections do not have to be held until 2013. A recent increase in ZANU intimidatory tactics (thuggery in Harare, setting up of militia camps) suggests that securocrats are positioning themselves for an early election, but there is no certainty yet."
"Although in general ZANU had lost the major urban areas, there were signs it was mounting a counter attack in Harare. It was possible it wanted to tighten its grip on the city in advance of any demonstrations provoked by a stolen election".
There followed some discussion of militia bases; it seems in the context of Zimbabwe as a whole. The paper contains no reference to any then existing militia bases in Harare.
Discussion
Issue 2: Was the Tribunal in EM entitled to find a "well-established evidentially and durable change" had arisen since the time under consideration in RN?
Introduction
CG [2010] UKUT 363 (IAC) the Upper Tribunal was concerned with the giving of Country Guidance in respect of the position of those in Zimbabwe suffering from HIV/AIDS. At the hearing the respondent (Secretary of State) argued that the panel in RS should revisit the general Country Guidance set out in RN.
"199. We do not propose to dwell on this issue. The status of RN as the relevant Country Guidance is not a substantive issue before us, and we understand that it is likely that later this year RN will be revisited. In any event such evidence as we have before us to the extent that we have considered it appropriate to give consideration to it, indicates sufficiently clearly to our view, that bearing in mind that it is limited evidence only, that there is no reason to depart from RN as the Country Guidance that should lie behind our decision insofar as it is relevant to do so. Matters such as the State Department Report of 11 March 2010, and the report of Professor Ranger, indicate to us sufficiently clearly, that bearing in mind the terms of Practice Statement 12, we have not been provided with the kind of clear and cogent reasons which seem to us to be required in cases involving issues relating to aspects of country conditions as a whole for departing from RN as Country Guidance. It remains therefore very much of significance in this case as background (and in some cases as foreground) to the issues that we must consider."
"69. For the appellants in the present case, Mr Henderson, relying upon paragraph 199 of RS, submitted that, not only should extant Country Guidance provide the starting point, but also that it could be departed from only if there were "clear and cogent reasons" for doing so. In support of that submission, Mr Henderson relied upon what the Tribunal (Carnwath LJ, Deputy President Ockelton and Senior Immigration Judge Storey) had said in paragraph 13(ii) of TK (Tamils - LP updated) Sri Lanka
'(ii) all parties should understand that when a case is set down to review existing Country Guidance, the latter is to be taken as a starting-point. The Tribunal has not ruled out that in some cases there could be a challenge to the historic validity of Tribunal Country Guidance (although such would require the production of evidence pointing both towards and against the accuracy of that guidance at the relevant time: see AM & AM (Armed conflict; risk categories)
(paragraph 70 recites the Practice direction noted at paragraph [57] above).
71. The proposition that a Country Guidance case should provide the "starting point" for a subsequent case that relates to the Country Guidance issue is inherent in the Practice Direction (and its AIT predecessor). Whether the subsequent case is being "set down to review existing Country Guidance" or not, the effect of Practice Direction 12 and section 107(3) of the Nationality, Immigration and Asylum Act 2002 is to require the existing Country Guidance case to be authoritative, to the extent that the requirements in Practice Direction 12.2(a) and (b) are met. This is fully in accord with what the House of Lords (per Lord Brown) held in R (Hoxha) v Special Adjudicator [2005] UKHL 19. If the existing Country Guidance is such as to favour appellants (to a greater or lesser extent), it will in practice be for the respondent to adduce before a subsequent Tribunal "sufficient material to satisfy them" that the position has changed" (Paragraph 66).
72. We do not find that the Upper Tribunal's conclusion in RS at paragraph 199 is of assistance to our task in the present case. There the Upper Tribunal was expressing a view about the need for cogent evidence to depart from an extant Country Guidance case in a case that was not itself intended to be a Country Guidance case on the issue before us. The present cases have long been designated Country Guidance on the issue of a change in circumstances since RN, and we are re-examining all material data to inform ourselves what the present evidential position is. We recognise that the Country Guidance system has limitations if extant decisions become out of date and not based on relevant assessments as close as reasonably practicable to the date of the decision. The solution is two fold. First, in individual appeals where there is fresh material not available at the time of the Country Guidance the Immigration Judge will be entitled to depart from the Country Guidance in the particular case on the basis that the guidance was either not directed to the particular issue in the subsequent appeals, or the factual assessment in the guidance case has now to be updated in the light of relevant cogent fresh information. Second, it is for the Tribunal to identify appeals as suitable for fresh Country Guidance where a fundamental review of all relevant material should be undertaken to see whether the situation has changed. The observations in TK were directed to the first class, rather than setting a test for departure from Country Guidance in all circumstances. We nevertheless recognise that where a previous assessment has resulted in the conclusion that the population generally or certain sections of it may be at risk, any assessment that the material circumstances have changed would need to demonstrate that such changes are well established evidentially and durable. That is the test that we will apply in our consideration of the material but not as a preliminary reason to decide whether we should revisit RN at all.
73. Mr Henderson's related submission regarding RS was that, with the exception of the FFM report, the evidence submitted by the respondent to the panel in RS was in substance no different from that submitted to us; and that, on any reasonable view, developments in Zimbabwe since March 2010 had been a deterioration rather than an improvement. In considering this submission, it is important to bear in mind that, as the RS Tribunal said in paragraph 199, the status of RN as the relevant Country Guidance was not "a substantive issue before us". The focus in RS was the availability in Zimbabwe of medication for the treatment for HIV/AIDS and whether such availability was influenced by political factors. A Country Guidance case provides guidance on the issue that the case is considering rather than generally. Some of the expert material relied on before us was included in the material before the Tribunal in RS where comments of a more general nature were made by the witnesses but that is no reason for us not to evaluate all the material now available to decide the issue at stake in the present case. In short we reject the contention that we should not embark on the enquiry that follows."
CG' determination" than, say, a First-tier Tribunal Judge hearing "any subsequent appeal". It is clear that the Tribunal was not seeking to set a test to be satisfied before Country Guidance could be varied, but merely a means of approaching and evaluating the nature of the changes in the evidence. Where a regime has engaged in persecutory conduct of a particular type even for a limited period, the judge undertaking a subsequent analysis will need to be satisfied that the cessation of the conduct was durable before concluding that either Country Guidance should not be followed or (if engaged in a Country Guidance exercise) that the Guidance itself needed to be amended. There is no rule of law here but simply an application of the precautionary principle relating to the assessment of reasonable likelihood of harm, where the previous assessment of risk was itself based on an unusually virulent and widespread outburst of persecutory activity dating from June 2008, the nature and duration of which needed to be assessed with care.
The rival submissions
(a) Decrease in violence since elections
"it is no longer the professional security staff at Harare Airport who are the main concern for returnees, it is the ill-disciplined, irrational and unpredictably violent militias to be confronted upon return to the home area" (our emphasis).
At [123] it was found that it was "not hard to see how anyone returning from the United Kingdom would be associated with the hysterical propaganda that continues to be peddled to these various groups or militias who appear to be acting with impunity"(our emphasis).
"that the MDC support base was sufficiently dismantled as to ensure that it ceased to exist in a meaningful way as to remain a threat to ZANU-PF's hold on power. That explains why, notwithstanding the talks taking place following the memorandum of understanding and the fact that the elections are, for now at least, concluded, the violence continues".
"Although this violence is not at the level seen during the summer of this year, everything remains in place for it to be repeated, should the regime deem this necessary".
126. The RN Tribunal continued as follows:-
"219. We are satisfied that the militias have established no go areas and road blocks to ensure that abuses that continue in rural areas where the MDC had made inroads into the Zanu-PF vote go unreported wherever possible and so that displaced people are not allowed to return to their home areas.
220. For these reasons we do not see that there can be said to be an end in sight to the real risk of violence being perpetrated on those identified as disloyal to the regime and therefore as potential supporters of the MDC.
221. As we have seen, by the time the hearing was reconvened on 30th October such a power sharing agreement had been reached but, for the reasons given above, that has not led us to a different conclusion from that we reached at the conclusion of the first part of the hearing when we initially reserved our decision.
222. Even though a form of agreement has now been reached in these talks, it remains to be seen whether that will bring about any reduction in the level of risk to those not able to demonstrate loyalty to Zanu-PF. After all, the Memorandum of Understanding that was signed by Mr Mugabe on behalf of his party and the regime contained assurances about the cessation of politically related violence but that has not been delivered. It is not readily apparent how the militias and War Veterans who have been meting out violence would be disbanded without genuine commitment by Mr Mugabe and his senior supporters to the sharing of power. It is evident from the failure to implement the power sharing agreement that no such intention presently exists.
223. For these reasons we are not satisfied that the power sharing agreement has given rise in itself to any significant change on the ground in Zimbabwe, so far as international protection issues are concerned. There is, moreover, no evidence to show that, in the absence of more effective foreign political or other political pressure, the position is likely to change spontaneously."
(b) ZANU-PF control of relevant instruments of power
"263. Although a power sharing agreement has been signed between Mr Mugabe on behalf of Zanu-PF and Mr Tsvangirai on behalf of the MDC, it is too early to say that will remove the real risk of serious harm we have identified for anyone now returned to Zimbabwe who is not able to demonstrate allegiance to or association with the Zimbabwean regime.
264. Further international intervention or some unforeseen upheaval inside Zimbabwe itself may change the position, for example, by giving the MDC real control of the police. In such an eventuality it will be for judicial fact finders to determine the extent to which the evidence before them differs from that which is before us, pending fresh Country Guidance: see Practice Direction 18.2."
CG [2011] UKUT 00445 (IAC), where the Tribunal decided in the autumn of 2011, that it was, in effect, too soon to say that the withdrawal of conventional Al-Shabab fighting forces from Mogadishu in early August 2011 meant there was no longer in that city any real risk to civilians, of the kind described in Article 15(c) of the Qualification Directive.
Issue 3: Did the use of anonymous evidence in EM render the decision unfair or unreliable?
1. Zim Rights 5 Aug 2010.
2. An anonymous organisation 3 August 2010.
3. Research and Advocacy Unit 17 August 2010.
4. Gays and Lesbians of Zimbabwe 17 August 2010.
5. Zimbabwe Association Doctors for Human Rights 12 August 2010.
6. Zimbabwe Lawyers for Human Rights 12 August 2010
7. Counselling Services Unit 12 August 2010
8. An organisation referred to in the report as an international organisation but whose identity and stature was known to the appellants 12 August 2010.
9. An organisation in Zimbabwe 11 August 2010.
10. A major NGO 11 August 2010.
11. Zimbabwe Human Rights Forum 13 August 2010.
12. Catholic Commission for Peace and Justice Zimbabwe 11 August 2010.
13. Anastasia Moyo, human rights activist 16 August 2010.
14. Bulawayo Progressive Residents Association 16 August 2010.
15. An organisation referred to as a faith based organisation but whose identity and stature was known to the appellants 16 August 2010.
16. Major international humanitarian organisation 17 August 2010.
17. Commercial Farmers Union 12 August 2010.
18. Radio Dialogue 16 August 2010.
"Four of the interviewees in the FFM report asked to remain anonymous. Mr Henderson questioned the weight that could be placed upon these, particularly in the light of his submissions regarding Practice Direction 10."
"3. The weight to be attached to the report of the fact-finding mission to Nairobi (see paragraph 80, above)
(a) The parties' submissions
227. The applicants submitted that following NA. v. the United Kingdom, no. 25904/07, §§ 118 - 122, 17 July 2008, BAILII: [2008] ECHR 616, little or no weight should be attached to the report of the fact-finding mission as it did not visit Somalia, did not appear to contact anyone in Somalia, and the majority of "sources" were anonymous, identified only as "an international NGO", "a diplomatic source", or "security advisors". No information was provided about the extent of the sources' presence in Somalia, their roles within their respective organisations, or the type of work (if any) that they carried out in Somalia. This was of particular concern on account of the fact that so few international NGOs and diplomatic missions had any presence in Somalia.
228. In response, the Government submitted that such criticisms were misplaced and unjustified. Although they acknowledged that the mission did not travel to Somalia, they claimed that this was pursuant to advice provided by the Foreign and Commonwealth Office which warned British nationals against travel to Somalia. The Mission went instead to Nairobi, which was the location of the African Headquarters of the United Nations, the location of the highest concentration of inter-governmental and non-governmental organisations operating in and with daily contact to the situation in Somalia. In Nairobi, the Mission was able to interview a number of contacts who had recently returned to Nairobi from Somalia, some of whom had been in Somalia for a number of weeks in the period immediately preceding the mission.
229. The Government further acknowledged that the majority of sources were not named in the report. However, they submitted that anonymity had been granted at the sources' request as they were concerned about the risk to their operations and staff and they asked the Court to take notice of the fact that the sources cited in the report by the Norwegian Directorate of Immigration were also anonymous.
(b) The Court's assessment
230. In assessing the weight to be attributed to country material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (Saadi v. Italy [GC], no. 37201/06, § 143, ECHR 2008 .., BAILII: [2008] ECHR 179. and NA. v. the United Kingdom, cited above, § 120).
231. The Court also recognises that consideration must be given to the presence and reporting capacities of the author of the material in the country in question. In this respect, the Court observes that States (whether the respondent State in a particular case or any other Contracting or non-Contracting State), through their diplomatic missions and their ability to gather information, will often be able to provide material which may be highly relevant to the Court's assessment of the case before it. It finds that the same consideration must apply, a fortiori, in respect of agencies of the United Nations, particularly given their direct access to the authorities of the country of destination as well as their ability to carry out on-site inspections and assessments in a manner which States and non-governmental organisations may not be able to do.
232. The Court appreciates the many difficulties faced by governments and NGOs gathering information in dangerous and volatile situations. It accepts that it will not always be possible for investigations to be carried out in the immediate vicinity of a conflict and, in such cases, information provided by sources with first-hand knowledge of the situation may have to be relied on. The Court will not, therefore, disregard a report simply on account of the fact that its author did not visit the area in question and instead relied on information provided by sources.
234. That being said, where a report is wholly reliant on information provided by sources, the authority and reputation of those sources and the extent of their presence in the relevant area will be relevant factors for the Court in assessing the weight to be attributed to their evidence. The Court recognises that where there are legitimate security concerns, sources may wish to remain anonymous. However, in the absence of any information about the nature of the sources' operations in the relevant area, it will be virtually impossible for the Court to assess their reliability. Consequently, the approach taken by the Court will depend on the consistency of the sources' conclusions with the remainder of the available information. Where the sources' conclusions are consistent with other country information, their evidence may be of corroborative weight. However, the Court will generally exercise caution when considering reports from anonymous sources which are inconsistent with the remainder of the information before it.
235. In the present case the Court observes that the description of the sources relied on by the fact-finding mission is vague. As indicated by the applicants, the majority of sources have simply been described either as "an international NGO", "a diplomatic source", or "a security advisor". Such descriptions give no indication of the authority or reputation of the sources or of the extent of their presence in southern and central Somalia. This is of particular concern in the present case, where it is accepted that the presence of international NGOs and diplomatic missions in southern and central Somalia is limited. It is therefore impossible for the Court to carry out any assessment of the sources' reliability and, as a consequence, where their information is unsupported or contradictory, the Court is unable to attach substantial weight to it."
CG [2009] UKAIT 49. In so far as the Court in Sufi and Elmi was applying its own guidelines in NA v United Kingdom, its decision was not a new development. As we have noted the Tribunal in EM explained why in each case the anonymous source was capable of carrying weight albeit that the weight actually applied to each piece of information provided varied.
"The anonymous organisation interviewed by the FFM team on 11 August 2010 (No 9 above) spoke of people in Zimbabwe being "tentative about the current peace and aware that it is fragile". Again, however, there was concern about the "potential for violence in many rural communities". There was a "general opinion that [the police] are less tolerant of political violence" than in the past; although the evidence overall means that that last remark must be treated with considerable caution. There is, however, support for it in the view of the major NGO interviewed on 11 August (No 10 above) , which considered that in urban areas "the police are more likely to intervene to stop political violence, whoever the perpetrator". The Zimbabwe Human Rights NGO Forum considered that there were problems regarding the constitutional outreach process (about which we shall have more to say); but that otherwise "levels of political violence are currently low, with more emphasis on threats along the lines of stay in line or expect to face worse violence than in 2008". The Catholic Commission for Justice and Peace Zimbabwe considered that there was "little actual political violence at the moment", although this was said to be because the population had been "so cowed by previous violence that they are afraid to do the sort of things that would provoke further actual violence". Whilst we have tempered the weight to be placed on the views of Bulawayo Agenda, so far as more general issues are concerned, it is nevertheless noteworthy that they considered that threats and physical violence within Matabeleland North and South, Bulawayo, Midlands, Masvingo and Manicaland had declined since the formation of the GNU. By the same token, the Bulawayo Progressive Residents Association considered the current situation to be "peaceful - for the moment, at least. Violence is much less widespread and the violence is less open."
"Harare and Bulawayo are, by some margin, the main urban centres in Zimbabwe, each having the status of a Province. Our general assessment of the evidence before us is that, in both of these cities, ZANU-PF's inclination and ability to control and coerce the population is significantly less than in the rural areas of, for example, Mashonaland and Manicaland, where the party has not lost hope of securing electoral success. We have already described the events regarding the COPAC outreach meetings in Harare. Although there was some violence involving the September meetings, the outreach process was quickly postponed when violence flared. This lends support to the view of those, such as the anonymous organisation in Zimbabwe quoted in the FFM report, that the police are generally better disciplined and less tolerant of political violence, in the main urban areas. We have also noted the evidence in the "A Place in the Sun" report, concerning the greater independence of magistrates in those areas, which found support in the evidence of Professor Ranger. The October meetings in Harare went off without any significant violence, albeit that they fell far short of COPAC's wish to engender full and frank discussions between the rival political parties" (our emphasis).
CG [2011] UKUT 445 (IAC) and recognise that an over-prescriptive approach may undermine developing state practice in the European Union, where cooperation with informants in places of potential danger is likely to require assurances of anonymity.
Issue 4: What is the impact of any of the above and/or any fresh evidence adduced in the individual appeal of CM?
Introduction
Nature of the fresh evidence
from the appellant:
i. Mr Mavhinga *
ii. Witness 77*
iii. Witness 66
iv. Mr Reeler
v. Professor Ranger
vi. Witness 83 *
vii. Ms Mukoko
viii. Appellant CM *
from the respondent:
viii. Mr Ives *
ix. Ms Scruton (Mr Griffiths *)
x. Ms Goodier
(a) The outlook for constitutional reform, elections and the conditions in which they might be contested
(b) Levels of politically motivated human rights violations in Zimbabwe
"An analysis of the violations trends during the month of June over the past five years reveals that the month has always had high figures of politically motivated human rights violations compared to the other months".
(c) Problems in Harare
(d) Returnees to Zimbabwe
(e) Bulawayo and the Matabeleland provinces
The parties' submissions on the fresh evidence
(1) Appellant's initial submissions
(2) Respondent's submissions
(i) The updated country evidence, and the evidence particularly regarding Harare, does not cast doubt upon the observations made by the Tribunal in EM regarding the comparative security positions in low, medium or high density areas.
(ii) The evidence of Chipangano activities outside its Mbare base and immediate vicinity is scant and does not found a general risk of persecution in respect of dwellers of high density suburbs of Harare. Still less does it indicate that a returnee to a low or medium suburb of Harare would be placed at real risk of persecution or serious harm on return.
(iii) Further elections will be held at some point in 2013 and that the implementation of the GPA and the adoption of a new Constitution remain incomplete. Nonetheless, the Government of National Unity endures and plans for general elections in 2012 have been finally abandoned. Regional interlocutors remain engaged.
(iv) The COPAC process has not reached an impasse and there remain a number of countervailing safeguards undermining the contention that there is a real risk to a returnee to Harare of persecution or serious harm, let alone a putative returnee to low and medium density suburbs.
(v) Witness 77's evidence largely consisted of broad statements regarding the position in Harare but these were not founded upon specific incidents or reports. His evidence of a deteriorating human rights position in Harare was not reflected in the generally authoritative, albeit inevitably incomplete, monitoring of the ZPP. Some of his evidence, tested in examination, was more nuanced than initially appeared in his written report.
(vi) Mr Mavhinga's evidence was rather general and suffered from an absence of specifics. He accepted that he was not aware of specific incidents of politically motivated violation in Harare's low and medium density suburbs. He appeared to suffer from a lack of awareness or unwillingness to accept a widely reported recent development in the COPAC process, namely ZANU-PF's acceptance that the previously agreed draft of the Constitution, rather than its tabled amendments, would be presented.
(vii) Professor Ranger and W66 were only able to provide evidence indicating broad agreement with Witness 77's report.
(viii) Mr Reeler and Ms Mukoko were not available for cross-examination.
(ix) By contrast with some of the hypothetical answers given by Mr Mahvinga and witness 77 as to what a returnee would be likely to experience on return to Zimbabwe, the evidence adduced by the respondent in the witness statement of Anne Scruton and the UKBA's returns team described the uneventful return of the first 23 enforced returnees.
(x) The monitoring reports from ZPP covering the period from June to August 2012 do not purport to be exhaustive but, significantly, they fail to indicate a rising trend in politically motivated violations over 2012 and the number of incidents reported in Harare is strikingly constant and low. The overall trend for Zimbabwe shows a significant reduction from 2011 levels.
(xi) So far as the activities of the group Chipangano is concerned, the Tribunal has been provided with a number of reports in the public domain regarding its operations. Whilst the appellant submits that its activities are steered by ZANU-PF, the evidence provides at best an ambivalent picture. There is some evidence of a link but more recently, Chipangano has been described as linked to rogue elements within ZANU-PF or as having become financially independent and therefore beyond the party's control.
(xii) Recent evidence suggests a crackdown on the activities of extortion groups linked to Chipangano. Overall, the evidence does not show that Chipangano's activities are a recent phenomenon or that its activities have made a significant difference to the security situation in Harare. There is some evidence of incursions beyond Mbare, linked to recent events and of Chipangano's activities spreading to neighbouring high density areas but, in the round, the most that can be said is that its activities have intensified in Mbare, albeit not to a degree which has led to a significant rise in the overall number of human rights violations in Harare.
(xiii) The date most often referred to in relation to the holding of elections is June 2013. Witness 77 suggests that there has not been sufficient progress towards security reforms to prevent the violence of the 2008 elections being repeated. He accepted in oral evidence that future progress could not be ruled out. Reforms and further progress in the implementation of the GPA are, however, one facet of the potential safeguards in place which militate against a repeat of the indiscriminate violence of 2008. Monitoring and the role of the Electoral Commission have repeatedly been cited as important to free and fair elections and the role of South Africa and SADC remains capable of bringing pressure to bear.
(xiv) So far as the imminence of elections is concerned, the current timeframe is not significantly different from that considered by the Tribunal in EM in March 2011, when most observers predicted elections in late 2011 or 2012.
(xv) The recent country evidence does not show that the COPAC process has stalled, the Second Stakeholder Conference being scheduled to take place in late October. The countervailing factors in the assessment include the prospect of monitoring by SADC and the AU, the prospect of further legislative changes, including the implementation of a new Constitution and a new Electoral Amendment Act, the ongoing engagement of SADC and South Africa, the lack of likelihood that ZANU-PF would seek to engage in a campaign of violence resembling 2008 as such a campaign would not result in legitimisation, doubts that the MDC would willingly partake in a poll resembling that of 2008, evidence of disunity within ZANU-PF and a disconnect between pronouncements by security chiefs and their actions in private and the views held by the rank and file.
(xvi) These factors are particularly pertinent in relation to Harare, where ZANU-PF has little prospect of significant electoral success and where the eyes of the international community and civic society are firmly directed. The election would be supervised by an Electoral Commission, the Honourable Justice Simpson Mutambanengwe remaining at its head and with likely scrutiny by the international community.
(xvii) The respondent accepts that there is a credible risk of violence instigated at local levels and a risk that violence would be deployed following a disputed election but the prospect of such violence rendering a returnee to a low or medium density suburb of Harare at risk remains a matter of speculation and does not amount to a real risk.
(i) Both the disclosed material and the updated material showing circumstances since March 2011 reveal a reduction in violence since the 2008 peak.
(ii) In her statement, Ms Mukoko referred to a worrying rise in militia activity in Harare in the informal economy sector but what was not clear was the geographical location or whether the incidents had spread beyond Mbare.
(iii) The ZPP reports did pick up on violations by Chipangano, which also featured in the press reports before the Tribunal. The high point of claims that Chipangano had links with ZANU-PF appeared to be the article in The Zimbabwean published on 2nd August 2011 (A's singular bundle at page 167) and a Voice of America article (page 162).
(iv) There was, however, no evidence of specific incidents outside Mbare or in low or medium density areas. September 2012 saw a crackdown on the incidents related to the Mbare Bus Station, where mention was made of Chipangano's influence in Mbare and surrounding suburbs. All of this formed the background to the recent backlash against the gang. Overall, the evidence showed that Chipangano was not engaged in a political campaign.
(v) They were engaged in criminal activities, carried out under claims of political cover, with the addition of incidents where people were asked for ZANU-PF cards or shepherded into meetings. A gang member appeared to have confessed that there were links with ZANU-PF. Evidence from the Harare Residents' Trust, in the South West Radio report at tab 33 of the respondent's rebuttal evidence bundle suggested that ZANU-PF no longer had control of the gang.
(vi) Evidence before the Tribunal in EM included a news article published on 16th August 2010, regarding the eviction from markets by the gang of MDC-T youths in Mbare. The updating evidence did not show any substantial change since then.
(vii) Although Ms Mukoko, Mr Mavhinga and Witness 77 opined that there had been an intensification of activity, these claims were not borne out by the trends shown in the ZPP reports and the evidence of a recent backlash against Chipangano from army members, the police and perhaps even within ZANU-PF.
(viii) Beyond Mr Mavhinga's evidence there was scant evidence of specific incidents involving Chipangano. At its highest, the evidence perhaps suggested some intensification in Mbare, consisting of the attempts by touts and rank marshals to intimidate drivers.
(3) Appellant's reply
(i) The increased militia activity in Harare is relevant to the RN loyalty test risk. There was a risk that violence would increase again through the forthcoming elections and the apparatus of oppression remains in place.
(ii) Elections would be called by June 2013 at the latest.
(iii) The recent police activity, which included beating up touts and innocent people, did not amount to a crackdown on Chipangano, still less a block on the power or influence of ZANU-PF.
(iv) The Tribunal should prefer the direct evidence given by the appellant's witnesses and the senior figures in Zimbabwe who have provided statements to the evidence from the newspaper articles relied upon by the Secretary of State. There is, in any event, no inconsistency between the two. The suggestion that there has been a reduction in violence and intimidation is a misconceived spin on the ZPP monthly reports.
(v) The evidence shows that Chipangano and the gangs are linked to ZANU-PF and that their activities are not limited to Mbare, which is simply the focus of their Harare activities. Everything is in place for violence to resume should the regime deem this necessary.
(vi) The position is arguably more acute than was the case at the time of RN as elections would be underway by June 2013.
(vii) Chipangano's activities were recorded as having extended beyond Mbare, and in any event Mbare and surrounding areas covered a large part of Harare. The evidence showed that most Harare public transporters suffered problems at the hands of the militia.
(viii) The evidence also showed consistently that the security apparatus remains solidly behind ZANU-PF.
(ix) The appellant's experts all agreed that there had been little progress in reforms. A new Constitution might be in development but it would have limited impact without real reforms to the security apparatus. The COPAC process showed that ZANU-PF might be happy to be flexible on presentation but would not be willing to compromise on the retention of power.
(x) Witness 77's and Ms McGregor's work was of great importance, there being new and compelling evidence of the position in periurban areas, for example. Witness 77 had access to a variety of good sources.
(xi) Mr Reeler's report considered the ZPP monthly summaries and he concluded that they were not a true reflection of the position. There were two monitors per constituency and they were able to report only what came to them. They might pick up matters arising as a result of the COPAC process but there was significant underreporting of violations and abuses.
(xii) The monthly reports did not show the extent to which the poor in high density areas have to buy ZANU-PF cards or are required to show loyalty to the party. The reports give no clear indication of what constitutes a violation. Violations are only recorded if they arise as a result of the political process. If events in the political process did not occur, the numbers of violations would drop but it did not follow that violence and intimidation by Chipangano dropped.
(xiii) Witness 77's evidence was also supported by Professor Ranger. Mr Mavhinga had been prominent in Zimbabwe civil society for some time and was able to attend and give evidence before the Tribunal. His evidence had significant weight. His view was that SADC would not intervene in any meaningful way.
(xiv) All the witnesses called by the appellant took the view that militia activity in urban areas is increasing. Mr Mavhinga said that there was no crackdown on Chipangano; action has been taken against the touts, which some say are linked to ZANU-PF. The evidence does not show real police action, in his view.
(xv) In relation to the countervailing factors identified by the Secretary of State, there was no substantial sign that SADC or the AU would be in place to monitor the elections.
(xvi) The prominent judge chairing the ZEC was a titular head only.
(xvii) All the commentators agreed that real reform of the security forces was missing and any disunity in ZANU-PF did not amount to a substantial safeguard. There were isolated news reports, including the article entitled "security chiefs panic" but this fell far short of showing a durable change.
(xviii) Overall, the evidence showed that militias allied to ZANU-PF were now active, a few months before the elections. The evidence of the enforced returns was of limited weight as the particular returnees would have failed under RN and so would be able to demonstrate loyalty to ZANU-PF. The ILPA correspondence exhibited to Ms Scruton's witness statement was of importance here.
The Tribunal's findings on the fresh evidence regarding the situation in Zimbabwe as at October 2012
(a) The outlook for constitutional reform, elections and the conditions in which they might be contested
(b) Levels of politically motivated human rights violations in Zimbabwe
"officials exercise caution in considering and assessing ZPP's data. While the ZPP may go to reasonable lengths to confirm the veracity of reported cases of politically motivated human rights violations, it does not set out how exactly the events and motivations of the perpetrators are verified. Conversely, ZPP (or indeed other sources referred) does not claim to have documented all incidents of human rights violations; not all will come to the attention of and be documented by ZPP monitors for a variety of reasons including, for example, victims' fear of reprisal. The quantitative data should therefore not be considered comprehensive or exhaustive but an indication of the levels, nature and distribution of politically motivated human rights violations in Zimbabwe in the period concerned".
We endorse and apply that observation. We also agree with Mr Thomann's submission, that the ZPP reports did pick up on violations by Chipangano in Harare (as to Harare, see further paragraphs 196-201 and 211-213 below). The overall evidence as to the downward trend of politically motivated human rights violations in Zimbabwe is, in short, cogent.
(c) Problems in Harare
(d) Returnees to Zimbabwe
(e) Bulawayo and the Matabeleland provinces
Effect of fresh evidence on Country Guidance in EM, regarding the position in January 2011
"Following a worrying rise in political violence and intimidation at the start of the year, Zimbabwe's human rights situation by the end of 2011 had returned to the relative stability experienced in 2011 (COIS, July 2012, 14.69)."
The report described the early spate of politically motivated human rights abuses as targeting "political and civil society groups". No mention is made of loyalty challenges or the like being applied to the general population. In its March 2012 report, the ZPP, whilst noting the rise in PMVs that month, said that "compared to the same period [January to March in 2008, 2009, 2010 and 2011] the levels seen so far are still lower than in previous periods" (14.56). It is also noteworthy that Ms Mukoko of the ZPP refers to a rise in what she describes as militia activity in Harare since the beginning of 2012 (Appendix B paragraph 39). Insofar as she may have been referring to the activities of Chipangano, we refer to what we have found at paragraphs 196-201 above.
(i) Country Guidance in EM, as modified
(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, 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 the ZANU-PF.
(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe)).
(3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.
(4) In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like.
(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a "loyalty test"), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF.
(6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile.
(7) The issue of what is a person's home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.
(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.
(9) The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.
(10) As was the position in RN, those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.
(11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN and remains valid.
(ii) Summary of the country information on Zimbabwe as at October 2012
Deciding CM's appeal
The respondent's submissions
(i) It remains the position that CM has accommodation available in what his own evidence indicates is a sought-after suburb of Hatfield.
(ii) As a returnee to, at worst, a medium density suburb of Harare, he would not be at risk of persecution or serious harm. Mr Mavhinga conceded that he is not aware of a single incident in low or medium density parts of the city and this picture is consistent with Professor Ranger's evidence in October 2011, summarised at paragraph 128 of EM (and see also paragraph 100 of EM, the evidence of Witness 77). There is no reported evidence suggesting that areas such as Hatfield can be compared to townships, let alone Mbare, in respect of security.
(iii) CM has not provided updating evidence casting doubt on the EM Tribunal's finding that health issues he has mentioned do not preclude him from working, if need be in the informal sector. The updated evidence regarding the security position in Harare does not show that CM will be at risk on return.
(iv) The assessment of risk to CM proceeded on the basis of a preserved finding that any political profile he had in Zimbabwe was "of the lowest level", as found by the Tribunal in EM. He claimed to be politically active in the UK but waited some two years before joining the MDC here and the minutes provided at meetings at his local branch showed that his record of attendance was irregular and characterised by a conspicuous lack of activity.
(v) The Tribunal had previously noted that his return would be to a low or medium density suburb and that even in the unlikely event of his returning to a high density suburb, there was no real risk of his being subjected to a loyalty test ([295-296] of EM). CM's case in October 2012 is that he would be at risk on return as he intends to relocate to join his brother in Karoi, Mashonaland West. He claims he would there be at risk of having to demonstrate loyalty to ZANU-PF or attend ZANU-PF meetings. In fact he would not have to relocate to Karoi, Mashonaland West.
(vi) He claims that he needed to move to Karoi by reason of his fear of persecution, linked to his profile in Hatfield as an MDC activist and his claim that even in a low or medium density area he would be randomly at risk, even absent profile, of subjection to a requirement to demonstrate loyalty.
(vii) He states he would be without means in Hatfield and his house there was dilapidated. He also relies upon his medical condition as well as his age and the state of the economy. He had been previously economically active in Harare and his reason for the failure of a business set up with his son, D, of the business premises being destroyed by politically motivated persons, was not accepted by the Tribunal.
(viii) CM claims also to be at risk of targeted at the airport as a known MDC activist of interest to the security services. There is no real prospect that any CIO agent infiltrating CM's local branch would report him as someone worthy of intensive interest. The letter of support from W83 of 20th September 2012 does not detract from this assessment; nor does the oral evidence of CM and W83. CM would not be at risk on arrival at the airport or en route to Hatfield and would face no real risk that he would have to demonstrate his loyalty to ZANU-PF.
(ix) The updated evidence does not show that his medical condition would put him at risk, drugs being available in Harare to treat his ill-health. CM remains capable of economic activity, and has previously held well paid employment. He might have to resort to the informal sector. He has a house available in a low or medium density suburb and the updated evidence does not cast doubt on the Tribunal's earlier assessment that he would not be at risk by reason of his claimed former role as an MDC organising secretary at local level.
(x) CM had changed his evidence regarding the enquiries he made of his aunt, in the light of the respondent's case that CM could rely on the prospect of support from this relative. CM had failed to show a real risk in Hatfield.
The appellant's submissions
The appellant's further oral submissions
(i) CM's risk arose in consequence of his low profile in the MDC in Zimbabwe and his activities at his local branch here in the United Kingdom. W83 had given evidence of CM's activities. A photograph showing CM appeared on the MDC website.
(ii) CM was a local activist engaged in fundraising activities and likely to be of interest to ZANU-PF and the CIO, particularly with the elections being imminent. There was a real risk of intrusive questioning at the airport in Harare. Even if he were able to pass through the airport, he would be at risk in Hatfield.
(iii) There was an existing finding regarding his MDC activities there. Hatfield is a medium density suburb. The problems regarding CM's house were reiterated.
(iv) The Secretary of State speculated that CM might receive help from his aunt. In the light of all of this, CM would relocate to be with his brother but he would face problems in Karoi, where there was a real risk that he would have to attend ZANU-PF meetings although he did not wish to do so. CM's brother lived in a high density area in Mashonaland West.
(v) In summary, CM was a refugee in the light of HS and RT.
The Tribunal's findings on CM
General conclusions
Decision
We re-make the decision in the case of CM by dismissing his appeal on asylum and human rights grounds. He is not entitled to the grant of humanitarian protection.
Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008), we continue the anonymity order in respect of CM.
Signed
The Hon Mr Justice Blake
Chamber President
Date 31 January 2013
CG [2008] UKAIT 00083 AND EM AND OTHERS (RETURNEES) ZIMBABWE CG [2011] UKUT 00098 (IAC)CG [2008] UKAIT 00083
"Political violence is on the rise again in Zimbabwe despite the signature less than two weeks ago of an agreement to establish a unity government in which power would be shared by the long ruling ZANU-PF party of President Robert Mugabe and the Movement for Democratic Change, now in majority in Parliament, MDC officials said.
Some of that violence has been taking place in Mbare, a populous Harare suburb where according to MDC sources some 61 families were attacked by ZANU-PF militia members in full view of police at the Matapi station, who took no action.
Witnesses said two truckloads of ZANU-PF militia including the notorious Chipango gang associated with ZANU-PF invaded the police station singing songs denouncing the MDC and beating party members while the police passively looked on."
And in an Independent on line report of 25th September a spokesperson for the National Constitutional Assembly, a forum for trades unions, NGOs and church organisations, said that he feared that the power sharing agreement was designed simply to absorb the MDC rather than to share power with it:
"We will be happy if it fails. The people were running Mugabe's torture camps in the June election are now the same ones who are explaining the agreement to people in the rural areas.
"They are saying it gobbles the MDC up into Zanu-PF," he added.
MDC spokesperson Nelson Chamisa said on Wednesday night political violence was continuing in some parts of the country. He gave details of three separate incidents, and added that no arrests had been made despite reports to the police. "Zanu-PF torture bases are still operational in Mbare and other parts of the country, but the police are not doing anything to dismantle them."
"New polls are "the only way forward", Movement for Democratic change spokesman Nelson Chamisa told the BBC.
Neighbouring Botswana has also called for new elections, after a regional summit on Zimbabwe was postponed.
At a summit in Swaziland to discuss the deadlocked power-sharing agreement was postponed for a week after the MDC insisted that its leader Morgan Tsvangirai be granted a passport."
The European Commission:
"Currently there are very few (if any) gross violations of human rights in terms of assaults, murders etc but the threat of repetition of this violence remains. Perpetrators are still deployed to rural areas and there is an atmosphere of fear, intimidation and mistrust."
"The police . Have not generally taken steps to protect victims In some cases the police have been perpetrators themselves."
" It is likely to be very difficult for [voluntary returnees from the United Kingdom] to return to their communities, particularly in the rural areas. The environment remains quite tense, and there is likely to be suspicion about returnees' political affiliation. It is likely that they would find it harder than others to get access to food and services."
Zimbabwe Human Rights NGO Forum:
"the police are not doing anything to protect the victims and have even been perpetrators themselves.
We have regular reports of discrimination on the part of the government in distributing aid.
Returnees would come back to a situation of uncertainty, economic disaster, hunger and poverty. They would not be able to rely on social or health or education services, unless they could afford to go privately. The local authorities are likely to be suspicious of them, just by the fact of having been to the UK. They might well be labelled sell-outs or MDC supporters. They would be disadvantaged if they tried to get access to GMB food, land or BACOSSI distributions. In certain areas, depending on the profile/activism of the returnee and the local presence of Zanu-PF supporters/youth militia, they might be at risk of physical harm. Returning to urban areas is probably safer than to rural areas. It is hard to predict how the central authorities would react - some returnees might be welcomed back to prove that the government is reformed and ready to welcome back its citizens. Others might be arrested."
Zimbabwe Lawyers for Human Rights:
"Overtly, there has been a reduction in the level of violence compared to the electoral period, but this might give a false picture because many of the internally displaced people have not yet returned home. In addition, the structures of state control remain in place. After the signing of the deal there was an easing of the situation but in the last couple of weeks, we have seen authorities returning to their usual attitudes and behaviour."
Witness 4 of Source D:
"There are signs of hate speech starting again e.g. over sanctions and MDC being puppets of the West. And in rural areas things are still tense. The deal has not changed realities on the ground. Some of the celebrations over the signing of the power-sharing agreement were broken up. People are still fearful and suspicious, and afraid of retribution if they show support for MDC. An MDC event in Makoni to explain what was happening was disrupted by soldiers, who wanted to make people attend a rival ZANU-PF meeting."
Source R:
"[Source R] continues to get reports of beatings and torture of MDC supporters around the country e.g. 15 people were treated in Buhera, Manicaland on 1 October. Structures of control and intimidation are still in place (made up of army, war vets, CIO and rogue elements of the police) but the bases/structures are more active in some places than others. In some areas, the ZANU PF activists are telling the MDC to forget the agreement, as it will not be implemented. In addition there is a purge exercise going on among ZANU PF local structures to ensure only Mugabe loyalists attend the Congress in December."
CG [2011] UKUT 00098 (IAC)
(1) Appellant
Witness 77
Anthony Reeler
Professor Ranger
Witness 66
Mr Mavhinga
Justina Mukoko
Witness 83
The appellant
(2) Respondent
Debbie Goodier
Wayne Ives
Anne Scruton
IN THE UPPER TRIBUNAL
Field House,
Breams Buildings
London
EC4A 1WR
Tuesday, 2nd October 2012
BETWEEN:
Appellant
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
MR MARK HENDERSON (instructed by Turpin & Miller) appeared on behalf of the Appellant.
MR COLIN THOMANN (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
MR HENDERSON: Could you state your full name, please?
A. My name is Dewa Mavhinga.
Q. And the address at which you are presently living?
A. No 2. Whitehall Road, Cambridge City, 5HLT.
Q. Thank you. I think that you have a part C paginated bundle there. Is the bundle you have a bundle with your witness statement in?
A. Yes.
Q. I think that it is page 27.
A. Yes.
Q. That is your statement, is it?
A. Correct.
Q. Are you familiar with the contents of that statement?
A. Yes.
Q. And is what you said that in that statement true?
A. Yes.
Q. Do you have a date when you signed it? It is the last page of the statement, page 34. Can I check? Were you asked to sign the statement?
A. I checked this by email and confirmed by email that it was a correct statement.
Q. So you have not actually signed it yes?
A. Yes.
THE PRESIDENT: Which day did you confirm that it was correct?
MR HENDERSON: Can I lead on this?
THE PRESIDENT: Yes.
MR HENDERSON: Did you approve that statement by email on 26th September?
A. Yes.
THE PRESIDENT: I have inserted that at the back of the statement so I have an up-to-date picture.
MR HENDERSON: Right. I just have a couple of additional questions for you. Firstly, you referred at paragraph 11 of your statement to the draft Constitution is apparently subject to political negotiation. Can you just tell us what the latest is on that in terms of what is happening COPAC process?
A. That is correct. There is negotiation in terms of proceeding to a second all stakeholders' conference to discuss the contents of the draft Constitution, where initially civil society groups excluded and where ZANU PF, from the ruling party, had submitted a number of reforms, so now it appears that there could be agreement and there could be a second stakeholders' conference early next month and thereafter a referendum on the Constitution.
THE PRESIDENT: So the process that is presently envisaged is possibly a second stakeholders' conference next month, which means November - or are you doing this as of September - and then a referendum after the second stakeholders' conference?
A. Yes, discussions of that and perhaps by the end of October there should be a second all stakeholders' conference and, possibly, in November a national referendum on the Constitution.
Q. Do these developments and the possibility that a draft Constitution will be agreed affect your prognosis of what is likely to happen in the forthcoming elections?
A. Not at all. What is happening with the Constitution is that it is a political negotiation in a compromise document that does not address the fundamental aspects of transforming the society in Zimbabwe in terms of the infrastructure of violence and the security forces, which are the major issues for us in Zimbabwe.
Q. Now, the Home Office have referred to the role of the Zimbabwe electoral commission and I think that ...
THE PRESIDENT: This is the second question that you are going to ask?
MR HENDERSON: Yes. And you mention the electoral commission at paragraph 10 of your statement. You refer to the current chairman of the commission being an improvement. Who actually is the former chairman?
THE PRESIDENT: I think that we had this, did we not? Was it (name given) in 2010?
A. No.
THE PRESIDENT: Then we know the answer.
MR HENDERSON: Very well. What role is the current chairman actually currently performing?
A. A minimal role in terms of overseeing the work of the electoral commission.
Q. And why is that?
A. I believe you have an article that speaks to that.
Q. Just hold on one second.
THE PRESIDENT: This is another?
MR HENDERSON: Yes. You have referred us to this, but just sort of summarise what the problem is with the chairman?
A. The chairman is not full, he is an acting chairperson of the commission, who is from the previous commissions that had been responsible for disputed elections in Zimbabwe.
Q. I am sorry, who is the acting chair?
A. The deputy chairperson of the commission is Ms Joyce Kazembe, who has been with the electoral commission for the last 15 years, so the improvement in terms of Justice Simpson Mutambanengwe as the chair person, he is not effective because he is not substantively getting out there.
Q. And why is he not actually being the chair, what is wrong with him?
A. There have been reports, credible reports, about his physical function, his health condition, as well as he is initially based in Nambia where he has to travel to Zimbabwe, but primarily it is due to his health that he is unable to effectively discharge the duties of chairperson of the commission.
THE PRESIDENT: This document you have just handed up, is this dated 6th March 2012?
MR HENDERSON: I am instructed that it is.
THE PRESIDENT: And that is a time, is it, 06.43?
MR HENDERSON: Yes.
THE PRESIDENT: Does that relate to the report in the Zimbabwean or the date that someone downloaded it?
MR HENDERSON: The date on which it was downloaded is right at the bottom of the page. That is today. We see that at the bottom right-hand corner.
THE PRESIDENT: I see. But the report itself dates ...
MR HENDERSON: I understand that it dates from 6th March. I have been told that that is right.
THE PRESIDENT: OK. Those are your two supplementaries.
MR HENDERSON: I am sorry, I have a couple more brief questions. Some of them are arising from the sort of ...
THE PRESIDENT: That could have been dealt with in the witness statement.
MR HENDERSON: Some of them could not be, sir, because they are arising from late evidence any by the Secretary of State ...
THE PRESIDENT: What are your other two topics?
MR HENDERSON: I am just finishing on this topic. What is the affiliation of the acting chair, political affiliation?
A. ZANU PF, from the ruling party.
Q. What is the current position in relation to the Electoral Amendment Act?
A. We have from 2011 an Electoral Amendment Bill that passed through Parliament but has not been signed into law by the President, so it is before the President at the moment.
Q. I will just check. There were initially moves to allow the diaspora to vote, which ZANU PF opposed?
A. That is correct.
Q. The Bill now before Mugabe, does that include the right of the diaspora to vote or not?
A. It excludes the right of the diaspora to vote.
Q. The Secretary of State has drawn attention in the latest submissions to their point that the MDC ... it is said that the MDC might pull out of elections. You have indicated that elections have to be held next year. Have the MDC adopted any position that they may pull out of the elections that are required by law next year?
A. No.
Q. In material served this morning, the Secretary of State has produced an article. This is page 8 of the updating bundle that Mr Thomann has just given you. It is an article that starts at page 9. "Police in Harare have launched a city-wide crackdown on a gang linked to the notorious Chipangano group arresting more than 300 people since Wednesday". Then it says that the operation has targeted suspected members of the Mandimbandimba. What is that?
A. Mandimbandimba is a name that refers to touts who frequent the city, mainly young men.
Q. This is a crackdown on touts. You referred in your statement to a range of activities being carried out by ZANU PF militia in Harare including requiring people to attend ZANU PF meetings. Is there any crackdown on those sorts of activities?
A. No. The article is referring specifically to a crackdown on the Mandimbandimba touts.
Q. Can you just tell us briefly how this current sort of dispute between the touts and the police and the army started?
A. Well, we understand that it was initiated following an alleged beating of soldiers in uniform by the touts and then a revenge attack by the soldiers in uniform a few days later in which the police then joined in, so it was basically a revenge attack that saw the police joining in.
Q. Obviously, one of the issues is that evidence put in by the Secretary of State that the police have reformed and you have said in your statement that you do not consider that the police have reformed. Does the conduct of the police over the last few days in relation to this dispute lead you to believe that they have reformed?
A. Not at all. In fact, it would confirm that the police have not reformed as they are indiscriminately beating up people in response to these fights between soldiers and the Mandimbandimba group and not at all applying or maintaining law and order. What is happening is that there is an indiscriminate random beating of members of the public.
MR HENDERSON: Those are all my supplementary questions, sir, other than the fact that you see at paragraph 27 that you explain how you obtained a secret video of a forced meeting in Harare this year or how Crisis obtained it. Would this be a convenient moment to show it?
THE PRESIDENT: Yes.
(Problems with playing video)
MR HENDERSON: I wonder if Mr Thomann wants to start and then we can maybe show this at the end.
THE PRESIDENT: You have not had sneak preview.
MR THOMANN: I have seen it.
THE PRESIDENT: Then you are better informed than we are. Can you just remind me for my note the date of the events shown in this thing?
MR HENDERSON: I will have to ask. Mr Mavhinga, at paragraph 27, the video that you provided us with, which you refer to at paragraph 27, do you happen to know the date upon which the video was actually taken rather than obtained by Crisis or delivered to Crisis?
A. I believe it was in March or April of this year, 2012. It is dated.
Q. It is dated on the video?
A. Yes.
THE PRESIDENT: We will have to leave it there and let's move on.
MR THOMANN: Mr Mavhinga, is it right that one of the things that your coalition of organisations does is monitoring human rights abuses?
A. Yes, that is correct.
Q. Can you help me with information relating to Zimbabwe? Are you aware of any reports of adverse repercussions for people returning from the UK since April 2011?
A. No, and we have not been monitoring that particular aspect.
THE PRESIDENT: So the answer is in two parts: I am not aware of any adverse information but you do not maintain monitoring of that particular problem?
A. That is correct.
MR THOMANN: You provided us with your views on the situation in Mbare and high density suburbs, are you aware of information as to human rights abuses in the low and medium density suburbs?
A. Yes. In our view, generally, the medium density suburbs and the high density suburbs are more or less the same in terms of demographics and in terms of human rights abuses occurrences.
Q. How would you describe the differences in terms of human rights security between a high and a low density suburb?
A. Well, in terms of the numbers of people and political activities, they are much higher in high density suburbs than in lower density suburbs.
Q. One of the suburbs that we are interested in today is Hatfield, how would you characterise Hatfield?
A. Hatfield is a medium density suburb that is bordering the peri-urban and high density areas of Epworth at the edge of Harare.
Q. Are you aware of any reports of abuse of persons in Hatfield?
A. Not at the moment.
Q. Would you take the view that, compared, for example, with Mbare, Hatfield would be a more secure area?
A. Not necessarily given its proximity to Epworth.
THE PRESIDENT: Not necessarily more secure, but if you have not had any reports of abuse from Hatfield and you have from Mbare, does that help you answer the question?
A. I would be unable to say categorically that Hatfield is more secure than Mbare or Epworth.
MR THOMANN: As regards the high density areas, the focus of much of the information that the tribunal has is on Mbare, could you help us on whether there are any distinctions between Mbare and other high density suburbs around Harare?
A. Perhaps an additional aspect for Mbare is that it is a residential area with huge numbers of people staying there and it is also a transport hub for the capital and, perhaps, the nation in terms of people travelling there and doing informal business in that area, which would mean that even those that live in other high density suburbs would on a daily basis travel to Mbare to engage in informal businesses like buying and selling ...
Q. In terms of reports that you monitor of human rights abuses, how would you say those differ between Mbare and other high density suburbs?
A. I am sorry, come again.
Q. In terms of the number and frequency of human rights abuses that you monitor, how would you say Mbare compares to other high density suburbs?
A. In terms of reporting, there have been more reports, public reports, of abuses in Mbare than in other high density suburbs given the numbers of people travelling to do business there and those that relate to attack on individuals doing informal businesses.
Q. What, if anything, would you say the significance is of Chipangano being based in Mbare? Would that make a difference to the human rights position between Mbare and other high density suburbs?
A. It would contribute but Chipangano I know is also operating in other high density suburbs across the city.
THE PRESIDENT: I am told, by the way, that our equipment does not recognise your CD. Anyway, think about it.
MR THOMANN: Are you aware of reports of actual infringements by Chipangano outside Mbare?
A. Yes.
Q. And how frequent are those compared to Mbare?
A. I cannot say offhand whether they are more frequent than in Mbare because the reports have related to other high density suburbs, for example, in Budiriro, for example in Epworth and Glen View; we have had reports on Chipangano activities in those areas.
THE PRESIDENT: Just for my note, if I can interject at this stage, this group, when did evidence of its existence become known to you?
A. In terms of ZANU PF ...
Q. No, the Chipangano.
A. I am trying to explain that ZANU PF youth used militia activities because this name emerged perhaps over the course of the last three years, but in terms of their activities, in terms of the existence of the group of ZANU PF aligned supporters who commit these various abuses, it has been ongoing for some time, but ...
Q. I am asking specifically about this group with this name. We have a vast amount of information about what has been going on in Zimbabwe for some years, but this group emerged about three years ago. When did you first become aware of this group's activities and existence?
A. I believe in 2009 ... yes, I believe in 2009.
Q. And has there been any change in the scale of its activities since 2009?
A. It would appear that now is much more organised, much more widespread in terms of the reports. Initially, it was only in Mbare that we had reports of these activities, but now even in other cities across the country we have had reports of Chipangano related activities in Marondera in Bindura and other groups that appeared affiliated to it, even in Kwekwe, so it appears the activities are increasing and the level of organisation.
MR THOMANN: You said that this is a group that has been around for some time.
A. Yes.
Q. And in terms of its current activities, would you accept that there has been a degree of a backlash against it?
A. No, I would not. I would want to distinguish perhaps if there is reference to the Mandimbandimba. Because, if you look at Chipangano as distinct from the touts, then there has not been any backlash, there is a measure or degree of impunity for their activities. We have not had any records of investigations or police arrests or convictions in terms of some of the crimes and abuses that they have committed.
Q. Have you had records of ZANU PF which was distancing themselves from this group?
A. Yes, there have been reports of ZANU PF officials distancing themselves from these reports, but these reports are contradicted by conduct on the ground. We also had reports of senior ZANU PF officials working hand in hand with this group and the failure or the unwillingness by the police to take action on Chipangano. That also testifies to the links with senior ZANU PF officials.
Q. Do you have a copy of the appellant's singular bundle? I think that it may have been one of the lever-arch files you have been given. If you look at page 33 of that bundle, do you find a report in the Zimbabwean?
A. Yes.
Q. And that has a description of Chipangano in the first paragraph. "It is a terror group that is owned, managed and financed by some rogue elements within ... party", the reference being ZANU PF. Then the pronouncement is that "Chipangano has made Mbare and surrounding suburbs no-go areas for MDC activists and peace-loving people of Harare". Would you accept that the rogue element is an accurate description?
MR HENDERSON: Sir, can you just read the next sentence?
MR THOMANN: Yes, of course. "Chipangano is a renegade unholy ..." Is that the sentence?
MR HENDERSON: Yes.
MR THOMANN: "Chipangano is a renegade unholy and ruthless rag-tag terror group who is owned and financed by some politicians in ZANU PF." Then the next sentence, too?
THE PRESIDENT: The witness can read it. The question is what?
MR THOMANN: Do you accept the description as linked to rogue elements in ZANU PF?
A. No. In fact, the challenge is that there has been an attempt to disown for the purposes of publicity and propaganda, which is something that ZANU PF use very well [SSHD unable to confirm], when, in fact, in terms of the benefits of the terror activities of the party, these are benefiting senior members. What I would accept that is that perhaps there would be a level of in-fighting between individuals who seek to control [SSHD unable to confirm] this instrument of violence and then for individuals to benefit from it, but that it is a rogue element, I would not accept.
Q. If I have this right, the quotations are in the smaller case in the middle of this piece and that is a quotation prescribed to Didymus Mutasa, is it?
A. Yes.
Q. Who is ZANU PF's secretary of administration.
A. Yes.
Q. If you look thorough to page 81 of the bundle, there is an article, a briefing by your organisation, which is dated 3rd April 2012. It is describing Chipangano "as an infamous name for the ZANU PF aligned youth militia based in Harare's ... suburb of Mbare". I am interested in the second column three lines from the end, from the bottom, "In the MDC Parties it appears that only the victims are speaking out. Even as they speak, the voices do not bring any confidence to ordinary residents of Mbare. The Mps are equally petrified of Chipangano". Then "Chipangano is reported to be behind a state of violence in many parts of Harare beyond Mbare. In mid-March 2012 the group discussed it in an MDC team rally in Sunningdale bearing many and causing serious injuries. The same grouping was behind the spate of violence in Chitungwiza in late 2011. I am in no doubt that Chipangano was in Mutare during President Mugabe's birthday celebrations in the eastern border town at the end of February 2012".
MR HENDERSON: Again, could you just read to the end?
MR THOMANN: Of course. "As many residents reported instances of violence with many being forced marched to Sakubva stadium for the festival of Mugabe's birthday".
Are those the sort of events that you were describing, these sorts of incidents?
A. Yes, this will be part of the activities carried out by ZANU PF.
Q. Are you aware of any reports of incidents in the lower and medium density suburbs of Harare?
A. No, not at the moment.
Q. You were taken a moment ago to the article at page 8 of the supplemental bundle. You have already been taken to the headline at page 8, which is police launch crackdown on Chipangano linked gang. Your evidence a moment ago was, was it not, that you considered this to be a separate entity that was being cracked down upon, the Mandimbandimba touts?
A. That is correct, yes.
Q. So your view is, is it not, that Chipangano is not implicated in this particular activity?
A. Well, this group is associated or linked to Chipangano.
Q. That is what the police says.
A. Yes.
Q. So you would agree with that, you agree that Mandimbandimba are linked to Chipangano?
A. But not necessarily Chipangano itself not at the core of the militia.
Q. Linked but not the same as?
A. Correct.
Q. And then the piece finishes with a citation. I think that it is a citation by a person called Muchenwa. Is that somebody you have heard of?
A. No.
Q. Let me ask you then, simply, your opinion in relation to the citation, which is quoted as "People are wondering why this is happening, because they have been doing this for years. Many believe that it is a sign of ZANU PF in-fighting with one faction vying for Chipangano's heads". The question for you is, if this is a group that is linked to Chipangano and the police are cracking down on it, does that in any way alter your views on the degree of protection that can be expected from the police?
A. Not at all. Firstly, what is happening here is that the use of the words "cracking down" would imply that there is a measure of law and order in this, but it is not the case, because what is done is random beatings of individuals believed to be members of Mandimbandimba and this is really in response to an initial beating of soldiers, so it is just a revenge attack. If the police are really cracking down, then what would have to happen is that they would arrest without beating up individuals and then they would press charges as the case maybe, but this is not happening. I would not accept that the police have improved in terms of ending impunity or restoring the rule of law.
THE PRESIDENT: I think a few moments ago you were asked whether you knew who Muchenwa was, it looks as if, if you go to the previous page 9, paragraph 4, Simon Muchenwa is South West Radio Africa's correspondent in Harare. Does that ring a bell?
A. Not at all, no.
Q. The South West Radio Africa ...
A. Yes, I know it and the writer of the article, Alex Bell, I know him very well, yes.
Q. And your views of their reliability as a journalistic source is what?
A. Credible, yes.
MR THOMANN: Can we then look at another bundle, which is the Debbie Goodier bundle?
MR HENDERSON: That is the other lever-arch file in front of him.
MR THOMANN: Could we start at tab 21 of that? Do you find there a report in a publication called "News Day"?
A. Yes.
Q. And it mentions Kombi operators approaching President ....
A. Let me just find it.
Q. It is tab 21.
THE PRESIDENT: That was probably the same bundle as I had the last one in, but maybe ...
MR THOMANN: I was on the respondent's bundle previously, this is Debbie Goodier's bundle.
THE PRESIDENT: But she is a respondent.
MR THOMANN: The previous bundle was the appellant's bundle.
THE PRESIDENT: It must be labelled wrongly.
MR THOMANN: Did the tribunal follow me at all?
THE PRESIDENT: Yes, I did. The last document that I was looking at was South West Radio which I have as part of the tab that you handed up this morning which I have called tab 67 in this bundle.
MR THOMANN: Yes.
THE PRESIDENT: Did I put it in the wrong place?
MR THOMANN: No. The tribunal has the right bundle. It is two different bundles for the witness.
THE PRESIDENT: I see.
MR THOMANN: Have you got to tab 21?
A. Yes.
Q. News Day: Kombi operators. First of all, are you aware of an incident between Kombi operators and the touting group? Are you aware of the ongoing tension between Kombi operators and the touting group in Harare?
A. Yes.
Q. And you mentioned an intervention by the armed forces.
A. Yes.
Q. In terms of the operators approaching President Mugabe, what do you consider to be the significance of that?
A. Well, I would not put much significance on that in terms of them having support to stop the ongoing activities of the ZANU PF aligned groups.
Q. And then, if you look at the last two paragraphs of that report, it mentions the police spokesperson, Inspector James Sabau, saying that he will now engage all stakeholders to try to get to the bottom of the problem. He had met the operators today and yesterday and "we will meet the touts to try and address the problem". What do you consider the significance of that to be?
A. Well, I believe that it could be political grandstanding, because what you have here is a straightforward criminal matter, because, where there is extortion or where the touts are forcing Kombi drivers to pay something, the police should simply arrest the individuals implicated and not have to go to President Mugabe for intervention, so this actually confirms that, really, there is no rule of law, because it does not to take the President to intervene for simple criminal matters to be processed or to be addressed.
Q. So you do not think that this is part of a pattern of civic stakeholders and the police standing up to this group?
A. No, I do not see it that way.
Q. Could you turn, please, to tab 30 of the same bundle? You should find there a report again from South West Radio Africa, which is headlined "Harare gripped with fear, soldiers embark on revenge attacks".
A. Yes.
Q. What is mentioned there is a "report on September 11th of the Zimbabwe National Army being deployed, deploying its military police to restore order and peace at the charge office commuter omnibus rank in Harare". Can you first of all confirm where that charge office commuter omnibus rank is in Harare?
A. It is in the centre of the capital, it is in the city centre.
Q. And can you confirm whether you are aware of that incident?
A. Yes.
Q. Do you accept that that is a different group to the overall police operation, there being the army and the military police involved?
A. I am not sure I understand your question, sorry.
Q. We looked a moment ago at what was called a police crackdown arresting 300 people.
THE PRESIDENT: So you are referring back to the ...
MR THOMANN: The previous report. Do you accept that that is a different group involved here, being the army?
A. No, this is basically the same area and incident.
Q. The same area, but the previous report was something attributed to a police inspector, this is a newspaper report about army activities.
MR HENDERSON: Sir, I understood that Mr Thomann was actually referring to the report before last which was the police crack down of 300 ...
MR THOMANN: Yes.
THE PRESIDENT: Quite. I think that the question is, are the army and police different?
A. Yes.
MR THOMANN: Are there two forces involved here or one in your view?
A. I am sorry, in what sense, I am failing to get the question.
Q. The reference in this article is to the army and the military police operating a crackdown on this day and the previous article we looked at in the supplemental bundle referred to a police crackdown.
A. Yes.
Q. Which was described as a city-wide crackdown on gangs linked to the Chipangano group.
A. That is correct, yes.
Q. Is your recollection that this is the same incident or that these are two separate incidents?
A. It is the same incident triggered by the same set of events.
Q. You say that it is triggered by the same set of events, but do you accept that it is two different responses to it?
A. I believe that it is the continuation of the same response by members of the army and the police, because what had triggered this event was the beating up of soldiers and in that case, usually, the ... and then other soldiers have responded by beating up the touts and then the police joined in, so it is basically the same series of events.
Q. We get quite a lot of that story reflected in the substantive article, you will see that the original problem took place opposite the central police station, but no police intervened. It said then that the soldiers came back and soldiers continued with the assaults and told the touts to beat up their own colleagues ... It seemed to be something starting, as you said, an attack upon soldiers, but then do you see the middle of that second page, there is a paragraph that says, "He said the soldiers had vowed to continue"?
A. Yes.
Q. And then it looks as if the journalist - in the following paragraph - "This time the military police quickly intervened and stopped the violence escalating". Are there three lots of people here, military police, soldiers and police or is it two lots, military and police, or is it one lot, the police?
A. Well, there is the police and then we have soldiers, but from soldiers they also have within their group the military police.
Q. Yes, like the RMP in the UK, yes.
A. Yes. So these are the groups.
Q. Military police are a sub-head of soldiers.
A. Yes, correct.
THE PRESIDENT: I am not quite sure what you get out of that piece, but that is one of the questions that you want to know, is it?
MR THOMANN: The tribunal will wish to note that there is a reference to the originating incident at tab 32, but I do not propose and I do not need to ask ...
THE PRESIDENT: I have been through this quite quickly. However, you are not putting this forward as an example of good impartial law and order keeping, are you?
MR THOMANN: I certainly am not.
THE PRESIDENT: I am rather relieved to hear that.
MR THOMANN: Moving beyond Harare to Karoi and Kariba in Mashonaland West, what can you tell us about the human rights position there?
A. Broadly, Mashonaland West is one of the violence hotspots what is possibly being perceived as a ZANU PF stronghold and also being the President's home province, so from that point of view we have had reports of violence and in some cases involving members of the security forces.
Q. Are you aware of Karoi and Kariba being particular hot spot areas of difficulty?
A. Yes. Karoi and Maringa Kariba, yes.
Q. In terms of the security situation, how would that compare to living in a low or medium density suburb in Harare?
A. It would be difficult to make a general comparison, because some of the areas are rural areas with a different set of challenges than urban areas, where you have traditional chiefs or headmen who control movement in and out of the areas, but also with urban areas you have got the militia groups, like Chipangano, playing a similar role, so it is difficult to have a clear comparison of the security level, but the bottom line being that the security levels are quite low, owing to a failure by state security agents to maintain law and order or to perform their constitutional duties.
Q. If we move to the political developments, you said in your previous statement to the tribunal that you feared then a violent election in 2011.
A. Yes, that is correct.
Q. What do you think is the significance of that not having happened?
A. Well, myself and many others were of the view that we would have elections and violent ones at that in 2011, given the pronouncements, particularly by ZANU PF. We had drawn from a resolution ... a Congress, a resolution that they would insist on elections but perhaps we underestimated the desire for them to regroup and to consider their benefit from the inclusive government in terms of economic benefits and financial benefits, particularly from the diamond fields in the east of the country, in Marange.
Q. What do you think was the contribution of civic groups, like yourselves, in putting pressure on halting an early election not happening?
A. Well, I believe there was a significant contribution by certain civic groups, particularly in exposing the challenges of the environment and also in persuading the Southern African Development Community to push for conditions to be in place in order for credible elections.
Q. You mention in paragraph 7 of your statement a group around General Mujuru.
A. Yes.
Q. Broadly, what is your assessment of that particular group's approach to a possible transfer of power?
A. The challenge that is there ... my analysis is that following the mysterious death of General Mujuru, in August 2011, it appears that there has been a holding back by this group in terms of seeking to engage around transfer of power or the succession of President Mugabe, because of the widespread suspicion that General Mujuru was murdered for his position which was to say that there should be peaceful transfer of power or that President Mugabe should step aside.
Q. When you describe a willingness to negotiate, that was to negotiate a peaceful transfer of power.
A. Yes.
Q. Is it your view that that group is still to be found within ZANU PF?
A. Yes, but the death of the late General Mujuru significantly impacted on the capacity to seek to reach out to progressive actors saying that they were hoping for democratic change or other plans. Death was felt to have occurred because he was reaching out to the MDC [SSHD unable to confirm].
Q. You mentioned a COPAC process earlier in the draft Constitution.
A. Yes.
Q. And you will be aware of the change of position by ZANU PF in mid-September, the draft to be put to the all stakeholders' meeting.
A. Perhaps I would qualify that. It is not necessarily a change of position, but ZANU PF insisted on a raft of amendments to the draft. That it demanded should be considered. And that there should be a report on the outreach meetings that we carried out to gather the views of the people on the Constitution. So what is there now is that ZANU PF is insisting that on condition that their amendments will be tabled at the second all stakeholders' conference they would be willing to go along, when, in fact, initially, the agreement among all the political parties was that only one document would go to the second all stakeholders's conference, which is a draft Constitution without ZANU PF amendments.
Q. I have somehow get a record of that. Is this an accurate summary of what you have just told us? Prior to September 2012, ZANU PF were asking for a range of amendments to the COPAC draft, now they are prepared for those amendments to be put to a second stakeholders' conference and that is the change?
A. Let me come again. The change is that prior to September 2012, ZANU PF had put amendments that it had demanded should be discussed by the political parties before second stakeholders' conference.
Q. And now they are allowing those amendments to be discussed by the second stakeholders' conference?
A. Yes, but the initial agreement had been that no other amendments would be taken to the second all stakeholders' conference.
Q. I appreciate that. The question was about ZANU PF change of position and I was asking you what the change of position was.
A. OK.
Q. What do you attribute this change of position to?
A. I believe that it is part of the delaying tactics by ZANU PF, given that the constitutional requirements for elections, the current term of Parliament and the President expires in June 2013, by which time we must have elections as a country and, therefore, to take the amendments which they previously agreed was ZANU PF's senior party representatives in COPAC, so COPAC is also made up of ZANU PF, so for them to have a separate list of amendments that effectively re-writes the draft Constitution and insists that they should be discussed at the second all stakeholders' conference would only achieve the effect of delaying the entire process or derailing the process as we approach elections, leaving the real risk that Zimbabwe would again go to elections in the absence of credible reforms.
Q. We may have been proceeding too quickly on this. Could you look at tab 8 of the respondent's bundle? That is the Debbie Goodier's bundle.
THE PRESIDENT: Can we call it the "Rebuttal Bundle"?
MR THOMANN: Yes. You should find South West Radio Africa report headed "Principals agreed to let COPAC deal with Constitution".
A. Yes.
Q. Can I ask you to turn the page and just read to yourselves the first four paragraphs? (Pause)
A. Yes.
Q. Do you accept that that is an accurate summary of the developments in September?
A. Perhaps ... just to qualify that this process is proceeding at two levels, the COPAC process. There is the Constitution of Select Committee of Parliament COPAC process, that is in charge of the draft Constitution in terms of the Government's views. Then there are the principals in Zimbabwe, the political leadership comprising President Mugabe, Prime Minister Tsvangirai and Deputy Prime Minister Mutambara.. Then there is the second all stakeholders' conference which is supposed to look at these processes. These processes are going on in parallel. They are not necessarily in line. So the challenge that is there is that COPAC had agreed ... as I said previously, ZANU PF have got senior representatives in COPAC and yet after they had reached an agreement as political parties in Parliament in charge of this process, ZANU PF as a political party then disowned that agreement and came up with this amendment, so ZANU PF is now coming outside of COPAC when it has got COPAC representatives. So this is the challenge, that ZANU PF in addition to what it has agreed within COPAC it has also disowned and insisted on amendments that must be addressed not by COPAC but by the second all stakeholders' conference, but, ultimately, it would still be up to the political leadership led by President Mugabe to decide on the contents.
Q. You have described it as a parallel process, would it be more accurate to say a sequential process in that COPAC comes up with a draft, it goes to the stakeholders' conference and as a third stage it goes back to the principals?
A. No. The confusion there is that there is an attempt to have a people driven process in terms of the global political agreement, so, on paper, it is supposed to be sequential, where COPAC goes to the second all stakeholders' conference and then thereafter to Parliament for discussion, and then thereafter to a national referendum and then, if accepted, it is then into law. But on the ground now what we are having is that the political negotiations are taking an upper hand in terms of the process and COPAC, even though it is ZANU PF in it, has not threatened the process. ZANU PF has disowned the initial agreement that they have made with their representatives and they are insisting that the draft that is there is not reflective of their views as a party. Therefore, they now want to go to the second all stakeholders' conference, not within COPAC, but with their own set of amendments which they are insisting should carry the day. The major differences, really, are around the issue of executive powers, around the issues of amending the powers of the attorney-general in terms of prosecution and the human rights and the impunity and the terms of office and other things.
Q. If following that it is correct that those amendments were dismissed by the MDC and President Mugabe agreed that the COPAC draft, the original draft, without the amendments, should go to the stakeholders' conference ....
A. I am afraid I would have to disagree because that was not the agreement.
Q. Well, it says here, "On Wednesday, Robert Mugabe, Prime Minister Tsvangirai and Deputy Prime Minister Mutambara met in Harare and agreed that the COPAC draft would be the only document used during the forthcoming second all stakeholders' conference". So do you accept that?
A. My understanding is that there are three documents that are supposed to go to the second all stakeholders' conference and one of the documents, which is the national outreach report, containing the views of the people, is actually subject to a Supreme Court application to force COPAC to produce that report of the views of the people so that, even as we speak, there is a Supreme Court case that is pending, that it has to decide on whether or not that document has to be submitted, because one ZANU PF official applied for that to be presented.
THE PRESIDENT: All right. Can we try to get some clarity on this, please? It seems that this Radio report, although it is published on the internet, reports what you have just been shown, that fourth paragraph, and it appears that this report dates from 20th September, although it was printed out later. Now, do you accept that that report is accurate in so far as it goes or do you think that it is wrong?
A. I believe that this portion is not correct, in my view.
Q. So it is not true that Mugabe and Mutambara and Tsvangirai have agreed that the only draft for the second stakeholders' conference will be the COPAC draft?
A. Yes, my understanding is that ZANU PF amendments will be tabled and, in addition to that, another document, the outreach report, is also supposed to be tabled.
Q. And are you aware of any press reporting which supports what you have just told us? Where do you get your information from?
A. There are a number of press reports relating to the court challenge from last week. I believe they are available on the internet. To the effect that the matter is not finalised before the Supreme Court.
Q. The Supreme Court may be looking at something, I do not know, and it may be that what is said here is not comprehensive of all the processes. I am just trying to start off to see whether that statement in itself is or is not an accurate of a recent announcement last week or the week before about this process. I am just trying to go to that. Do you follow?
A. Yes. My understanding is that the ZANU PF separate amendments as a document and the national outreach report, as a separate document, in addition to the COPAC drafts, are the three documents that will be presented to the second all stakeholders' conference. That is my understanding.
Q. OK. That is your understanding and, if your understanding is right, then this report is wrong, because this report says that the only document will be the COPAC draft, so the question that I then ask is, do you base your understanding on recent press reports?
A. Yes.
Q. About the same announcement?
A. Yes, about the negotiations relating to the second all stakeholders' conference, because this is something that is being negotiated even as we speak in terms of ...
Q. I appreciate that it is a moving ball, but ... I think that you have made it plain that you do not agree that that is an accurate statement?
A. No.
MR THOMANN: If you look at tab 3 of the same bundle, you will find a report that says that COPAC delays second all stakeholders' conference.
A. Yes.
Q. If you turn the page, just under the second ring binder, there is the citation by Maddock Chivasa, spokesperson for the National Constitutional Assembly, who dismisses the whole process as a pointless exercise and now needs to be concluded. He said that the outcome would not represent the views of the people of civic society organisations. Then in the next two paragraphs he says that the same political parties that drafted the COPAC draft will also decide what to include after the second all stakeholders' conference. They should just complete their draft of the Constitution, bring it to a referendum and let Zimbabweans vote on it. And then he added that ZANU PF might still bring their own version of the charter to the conference and have their delegates make a contribution based on the amendments that they want.
A. Yes.
Q. Is that the concern that you were referring to a moment ago or are you referring to separate information that you are aware of?
A. No, this is not the concern that I was referring to.
Q. Hypothetically, if ZANU PF had made a climb down in the middle of September that permitted the COPAC process to continue, what would you say the significance of that was in terms of the outlook for an ordered election?
A. I would not put much significance into that so-called climb down, given that at the end of the day the real issues are not about a new Constitution for Zimbabwe. The issues would relate to how to end violence, to dismantle the infrastructure of violence and to end impunity and this is unlikely to be achieved because there is a new document. It is about the conduct, it is about state institutions that are partisan and politicised and supportive of ZANU PF. Those are the bigger questions of the day and these are not necessarily addressed in the draft Constitution, because it is a compromised document that is subject to political negotiation by the political parties.
Q. Do you consider a willingness by ZANU PF to give way on an issue like this as a sign that it is flexible or more flexible in terms of reaching agreement on the road map to elections?
A. No. I believe that ZANU PF ... if there is any perception that ZANU PF has climbed down, it is probably part of a bigger political game plan for ZANU PF, because, in any case, if you look at the contents of the draft document, they do not go far enough to ensure the necessary amendments that would create an environment conducive to the holding of free and fair elections in Zimbabwe, so for ZANU PF it would be a win-win either way, whether there is a draft Constitution that goes to referendum, because the contents are already watered down, so they may want to maximise on the concessions from the other political players, but, certainly, for reforms the Constitution is not enough to deliver non-violent free and fair elections in Zimbabwe.
Q. You say that it would not go far enough. Is it your view that the new Constitution would go some way towards ensuring greater democratic space?
A. Perhaps on paper, but the bigger issues have to do with the existing institutions that are unwilling to implement reforms on the ground, in fact, what we have now, the Lancaster House Constitution that we have at the moment, can also deliver a measure of democratic elections if it is applied to its letter and spirit, but that is not happening on the ground.
Q. You mentioned earlier that it is your view that the MDC would not refuse to participate in an election that was not free and fair. Do you recall?
A. I am sorry.
Q. Do you recall in response to a question by Mr Henderson at the outset that you mentioned that it was your view that the MDC would participate in an election even if it were not free and fair?
A. I believe that, given the political impasse that is there in Zimbabwe and when the appropriate time comes for elections, in terms of the (unintelligible) which would be around June 20 2013, the MDC would not pull out of elections or at least they have not indicated anything that would hint that they would pull out of elections.
Q. Again, assuming that it is accurate that the MDC on this occasion dug their heels in and insisted that the agreed COPAC draft went to the stakeholders' conference, would that change your views on that? What significance would that have on your views of ...
A. What significance would ...
Q. What significance would MDC digging their heels in on the COPAC draft and ZANU PF giving way have on your views of MDC's readiness to insist upon other democratic changes?
A. Not much significance, because for ZANU PF the big game in town is not the Constitution or referendum but elections and retaining political power or state power, so for them the Constitution is not the big game, as long as there are the mechanisms to ensure that they have their way. In 2008, in March, we had reasonably acceptable conditions in terms of on the paper, regulations for free and fair elections, but the game changer was the violence and the intimidation from ZANU PF when they changed to the security forces for support to cause violence with impunity, so these are the big questions that need to be addressed and not certainly what you read on paper.
Q. Would you accept that a conducive environment is important for elections to take place?
A. Yes.
Q. And is it your view that part of that is the messages sent out by the political parties?
A. Yes.
Q. Could you look at tab 44 of the bundle? That is again the rebuttal bundle. If I can then ask you about the Herald.
A. Yes.
Q. Can you first of all confirm what the nature of the Herald is? Is it an independent or a state-owned newspaper?
A. The Herald is s state-owned newspaper.
Q. And what significance does that have in terms of the independence of the articles in it?
A. Predominantly the Herald publishes views aligned to ZANU PF and, effectively, acts as a propaganda mouthpiece for ZANU PF.
Q. We see the headline there in the article is "Zimbabwe heeds President's anti-violence call".
A. Yes.
Q. And then the editorial commences, "Zimbabweans across the political divide must rally behind President Mugabe's call for people to desist from violent campaigns and concentrate on working for the development of the country. Our country has seen enough violence and we urge Zimbabweans to close ranks and work towards uplifting the Motherland".
A. Yes.
Q. What in your view is the significance of that type of message and article appearing in the Herald?
A. Well, if you look at the context, the editorial is probably from ZANU PF, given that this was on 14th August, two days before the SADC Summit in Mozambique, so this was the time for ZANU PF to speak to SADC to give the message that they are for peace, when, in fact, the conduct on the ground is contrary. For me and colleagues in the civic society movement we are more interested in action on the ground by the police, ensuring that there is law and order and ending impunity. President Mugabe is saying this about anti-violence but perpetrators of violence from 2008 have not been brought to book or they have not been held accountable, so for us that action to hold accountable those who commit violence would be stronger in terms of words than this speech before the SADC Summit, which is meant to be really an exercise of propaganda, as President Mugabe is going to Mozambique to meet other heads of state and also to try to influence them to be soft on Zimbabwe, so that they accept, you know, messages coming from ZANU PF, because this is in the media.
Q. Leaving aside your concerns as to the background of this article, do you consider it to have any significance for the political culture to have this sort of article in the Herald?
A. Not really, not really, because people would be reading between the lines. Like I said, what would have a significant impact on the political culture is action to say that those who commit violence would be held accountable. In terms of the political agreement, the global political agreement, signed by the political parties on 15th September 2008, they committed to apply the laws of the country impartially and to ensure that those that commit violence are held accountable, but nothing has happened, so the people of Zimbabwe know that nothing is happening, so, when empty words are uttered, as in this case, they would also read between the lines and know that this is really not what they mean, because these are people in power, who can push for law and order to be implemented but it is not happening.
Q. Do you know whether Mugabe has ever issued a similar statement in recent years?
A. Yes. In 2009 on a number of occasions Mugabe has said these things and called for non-violence, but we have challenged him to say that there is need for appropriate action and not just to say that there should be no violence when the police are looking the other way, when violence is committed.
Q. The opening paragraph refers to a call by President Mugabe. Do you remember what the occasion was for that call?
A. There have been a number of occasions, but the one that was perhaps the most prominent one was the National Healing occasion where leaders from the three main political parties came together, under the auspices of the organ for national healing and reconciliation and unity and cohesion to jointly call for peace in the country, and the other occasion was on the national heroes day in the second week of August 2012. So these calls have been made but without the necessary action to back them up.
MR THOMANN: Mr Mavhinga, I have no further questions. Thank you very much.
THE PRESIDENT: Is there any re-examination?
MR HENDERSON: Yes, I have just a couple of questions.
MR HENDERSON: You were asked about the links or otherwise between the Chipangano militia and ZANU PF. Who is the leader of the Chipangano militia?
A. The Chipangano militia group is led by the provincial Harare province youth chairperson of ZANU PF.
Q. You spoke about the sort of daily reports about the COPAC process, would it be frank to say that this is a confusing situation at present?
A. It is, yes, given that it is subject to political negotiations that are ongoing, yes.
Q. And I think that you said that the political negotiations are continuing at several different levels.
A. Yes, correct.
Q. And you referred to applications, I think, to release particular drafts.
A. Yes.
Q. Is that because people have not actually seen some of these drafts which are being discussed?
A. That is correct, yes, and they had been in agreement that the drafts and the material gathered from the outreach process would be made available to the public at some point.
Q. Finally, you referred to the role of civil society in making representations in 2011. Can I just take you to your witness statement where you deal with the role of SADC from paragraph 19? You continue to be involved in the negotiations with SADC since 2011?
A. Yes.
Q. And you set out there what has happened. Since making this statement, has your view changed about SADC's ability or inability to influence what will happen in the elections next year?
A. No, it has not changed.
MR HENDERSON: I have nothing further, sir.
THE PRESIDENT: Thank you. Can I ask you about paragraph 29 of your statement, please? You are talking about someone returning from the UK to Zimbabwe with no family to support him and going to a high density or peri-urban area, but I think that you told us a little earlier in your evidence that you did not record or you did not monitor what happened to people who were returning from the UK to Zimbabwe. That is right, is it not?
A. Yes. As an organisation we were not monitoring that, but ...
Q. So is your statement based upon information or is that guesswork or hypothesis?
A. It is based upon information that we gathered and also ...
Q. OK, based upon information. From where did you get the information?
A. From part of the business that we have been doing in the general course of our duties. I will just check. And also at a personal level I live in the UK, in Cambridge, but from time to time I travel to Zimbabwe and I ...
Q. I imagine that you are not looking for work in the low-density areas when you are doing that - is that right?
A. Yes, but I am talking about contact or the observation of the activities of ZANU PF groups across the country or in Harare.
Q. Is it based on personal observations; is that what you are telling me?
A. Part of it, yes, but part of it on information, yes.
Q. So when did you last, personally, observe what you are telling us about in paragraph 29?
A. Well, I was last in Zimbabwe in July and I did observe that.
Q. July of this year?
A. July of this year, yes.
Q. And what did you observe then?
A. In particular the requirement for testing their knowledge or presentation of ZANU PF cards.
Q. How did you observe that?
A. When visiting Houghton Park, a suburb that is adjacent to Mbare, I came across one such group that required people to present cards and also to join a ZANU PF meeting..
Q. All right. This could potentially be of some interest and importance, so can I just make sure that I have got it down. When visiting Houghton Park and that is next to Mbare, when visiting that area, which is a high density suburb - is it?
A. It is a medium density suburb, but there is really not much difference between medium and high density.
Q. I think that I have got that. And you saw what?
A. On this occasion there was a meeting of the ZANU PF group, where everyone, really, was required to attend, but it was convened by the ZANU PF group.
Q. And you came in when you saw the meeting or you saw people being required to go to the meeting?
A. People being required to go to the meeting.
Q. How were they being required to go?
A. Basically, being shepherded to say everyone - this is a shopping centre where there are a few shops, so everyone within the vicinity would be directed to the meeting, whether or not there is another route that you are taking, you are specifically directed to the venue of the meeting.
Q. Yes. What about cards? Did you say something about cards?
A. Yes, there is also a requirement ... I did not witness the aspect of presenting ZANU PF cards, but the requirement to attend a ZANU PF meeting, a planning meeting, but I know that from other observations people also would be required to present cards, including what is captured on the video.
THE PRESIDENT: Which, sadly, it does not seem to be compatible with our machine, though one lives in hope that we might find some way of playing it.
MR HENDERSON: We can ...
THE PRESIDENT: Before we deal with the technical stuff, let us complete this. I do not think that we are going to get much further than this witness. I do not know whether that is bad news for your scheduling. I think that that will do from us. Have my questions prompted any response from someone?
MR THOMANN: I have got some supplementals arising out of it.
MR THOMANN: Were you required to attend this meeting?
A. Yes.
Q. And to produce a membership card?
A. Not on this occasion, no.
THE PRESIDENT: I think that the witness said that he did not really see the requirement for producing a membership card, but he knows that from other information, including the video that we cannot see.
MR THOMANN: You have mentioned the incident in the video. Is it right that those are the two occasions that you are aware of that being required? You have not mentioned any others in your statement.
A. Going back to the beginning of the inclusive government in 2008, in my previous work with Human Rights Watch, we did record a number of occasions where people were required where buses or public transportation was just directed to ZANU PF meetings and where people were asked questions on ZANU PF, on their knowledge of party slogans to find out whether or not they had been attending these nightly vigils that were called by ZANU PF. So, perhaps, for this year those two occasions, yes, but, if we are to go further back to 2009, then there are many more incidents where we did record ...
THE PRESIDENT: I am pretty sure we do not need to ask you about 2009.
A. OK.
THE PRESIDENT: I think that we are particularly interested in this moment in your evidence is 2011 and 2012. If you have any more information about this activity during those periods, that would be of interest.
A. OK.
MR THOMANN: The statements in your witness statement, the observations about what is currently happening in Harere, the militia activity, is that based just on your observation or is it also based on the work of your organisation and others doing similar work?
A. Observations on the militia activity?
Q. Yes, your opinion on the current level of militia activity.
A. That is based on the work that my organisation is doing and other organisations.
MR HENDERSON: The only point is I wanted to go to paragraph 29.
THE PRESIDENT: That is really all that I put into play, so I think that is the limit of the ....
MR HENDERSON: Yes, that was the only other point.
MR HENDERSON: On paragraph 29, you refer to somebody returning from this country with no family to support them would end up in a high density or peri-urban area.
A. Yes.
Q. Why would somebody with no family or no other independent support end up in a high density or peri-urban area?
A. Well, clearly, there will be nowhere else to go because of the intransigent arrangements in the low density areas in Zimbabwe, where no one is permitted to sleep on the streets.
Q. I think that you refer to that at paragraph 31.
A. Yes. In terms of informal means of getting income or places where they could build shacks, that would be in the peri-urban areas and not in the low density suburbs where there is surveillance and they cannot build shacks. [SSHD unable to confirm]
MR HENDERSON: I have nothing further, sir.
[END It is not recorded that the video was shown during which Mr Mahvinga stated 'It is January 2012 in Buririo and the representative of the ZANU PF local structures in that suburb is doing the speaking.]
IN THE UPPER TRIBUNAL
Field House,
Breams Buildings
London
EC4A 1WR
Wednesday, 3rd October 2012
BEFORE:
BETWEEN:
CM
Appellant
Respondent
MR MARK HENDERSON (instructed by Turpin & Miller) appeared on behalf of the Appellant.
MR COLIN THOMANN (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
MR THOMANN: Could you give the tribunal your name and title, please?
A. Sure. My name is Mark Griffiths, I am the assistant director in the UK Border Agency responsible for country returns, operation and strategy, responsible for returns to Africa and the Middle East. My role in relation to the witness statement of Anne Scruton, which is one of the exhibits here is that I am her line manager and, unfortunately, she is unable to participate today.
S her line manager how much day-to-day contact do you have with Ms Scruton?
A. Anne will be more aware of the details of the returns processes to Zimbabwe, I am aware of the overview and I do participate in our regular conference calls managing the enforced returns process.
Q. Do you have a copy of her witness statement in front you?
A. I do.
Q. Have you had a chance to read that?
A. I have, yes.
Q. There is one matter that I will ask you about. Is the content of that consistent with your understanding of the position?
A. It is, yes.
Q. In paragraph 6, four lines from the end, it mentions that there have been 22 returns.
A. Yes. That figure should, in fact, read 23. I believe that it a typographical mistake.
THE PRESIDENT: That is a typo as opposed to ... So delete 22 and put 23?
A. Yes.
MR THOMANN: Other than that you said that your understanding is effectively the same?
A. That is right.
MR THOMANN: I have no further questions.
THE PRESIDENT: Just whilst we are on the topic and before it slips my memory, we see that the enforced returns or returns of failed asylum seekers started 6th April 2011. Have they now been suspended after the Court of Appeal or are they continuing?
A. No, they continue. Our last enforced return was in July, I believe. I will clarify that.
THE PRESIDENT: Thank you.
MR HENDERSON: Mr Griffiths, is it your understanding of the criteria for selecting returnees used internally by the Home Office which was communicated in the letter exhibited to the witness statement?
A. Yes, the factor for return, that is right; the factors that are considered when we decide whether to remove somebody to Zimbabwe.
Q. I just want to ask you a couple of questions about paragraph 8 of Ms Scruton's statement. This says that all arrivals are observed by the migration delivery officer in Harare. Is that right?
A. That is right. Or a representative of that migrations delivery office.
Q. The witness statement said by the migrations delivery office, but you think that it might not be by the migrations delivery officer?
A. In all but four of the enforced returns, it has been by the migrations delivery officer or a representative of the migrations delivery officer in those four enforced returns.
Q. Who is the representative?
A. It will be a member of embassy staff. It will either be our British consul based in Harare or it will be the immigration liaison officer, also based in Harare.
Q. From where did they observe the returned?
A. Physically on arrival. The returnee is observed approaching the immigration desk, accompanied by escorts. A migrations delivery officer makes contact with the lead escorts of the group and asks if there are any issues on the flight that are relevant. He then withdraws and allows the subject to pass through immigration control.
Q. How does the migrations delivery officer get air side?
A. He has an air side pass.
Q. And how does the make contact with the escorts?
A. He has their contact details by mobile phone. It is quite apparent when the flight embarks that the escorts will be visible, he may know them already, but it is apparent.
Q. So the Zimbabwean authorities will be aware that this is a returnee who the migrations delivery officer is observing?
A. Possibly, yes.
Q. Has there been any discussion with the Zimbabwean authorities about this process?
A. I could not answer that question. What, with the migrations delivery officer?
Q. Yes, with the migrations delivery officer going air side to sort of make contact with escorts who are sending back the asylum seekers.
A. I would imagine there will be local discussions about what he is doing at the airport, but I could not answer that question specifically.
Q. Do you know if any thought has been given to whether or not this has any relevance to the risk that the failed asylum seekers may face through attention being drawn to them in this way?
A. I do not believe so. I understand that it is done in a very managed and careful way.
Q. What do you mean by "managed and careful way"?
A. Tactful, not wishing to draw any adverse attention to the group.
Q. You say a "tactful way", how is it tactful?
A. Most of the observation is taking place from a distance, so, aside from the initial contact with the lead escort, then the migrations delivery officer observes the passenger's transit through the airport, which usually takes between 40 and 60 minutes.
Q. When you say observed from a distance, what is the distance?
A. Can I just refer to my notes while answering?
Q. Yes.
A. Are you aware of the migrations delivery officer's response to your supplementary questions before I attended this hearing today?
Q. No. I am sorry, there has been a response from the migrations delivery office to our questions. We put questions in writing.
MR THOMANN: The email response from the migrations delivery officer was not passed on.
MR HENDERSON: Could we see that?
MR THOMANN: I will have to check, but I do not see why not.
MR HENDERSON: We will see that before we do any further cross-examination.
(Pause)
MR THOMANN: I am seeing this for the first time, but I can tell that this email is incomplete, the second part of it.
(Pause)
I have had a read of that, the exchanges and the preparation is probably, in my view, legally privileged, but I cannot see, having read it, that there is anything in that exchange which the respondent would object to Mr Henderson seeing. There are email exchanges before it and after it which deal with how the witness evidence should be presented ...
THE PRESIDENT: LLLP. Is there any sensitivity in the actual email addresses or the identity of any of the personnel corresponding?
MR THOMANN: The problem is ... but what I can do, if we are given a moment's break, is copy the content and provide it to Mr Henderson if that will assist.
THE PRESIDENT: I rather think that Mr Henderson would quite like to know, if he's asking questions blind and there is something that might guide him. Is there any way that you can read out any of the pertinent answers or are they too lengthy to do that?
MR HENDERSON: Even if it involves a short break, I would rather see it.
THE PRESIDENT: Yes, sometimes seeing things given from diplomatic sources creates one or two problems.
MR HENDERSON: Mr Thomann is saying that there is not a problem with the ...
MR THOMANN: I would probably need formal instructions which I can take if we are given a moment.
THE PRESIDENT: Yes. (Discussion re provision of document)
MR THOMANN: The tribunal will see that I have blanked out the address and time at the top of it, because that was the easiest way of arranging a redaction. My understanding is that it was sent at 10.27 yesterday and it formed part of a chain of emails we prepared for the witness evidence which is why the others have not been provided. There is a prospect that that it would have been provided to me. These things are usually provided to me by my instructing solicitor. What I should have said earlier is that I do not recall having seen it in my in-box yesterday.
MR HENDERSON: This is the answers to the questions that we posed in writing, so I have no further cross-examination.
THE PRESIDENT: I see. Can you give us a moment to read this then? (Pause) Thank you very much for coming. It looks as if much of the information has now been provided, so we do not have any questions for you. We appreciate your presence today. You can now be released.
THE PRESIDENT: We now go back to W77.
MR HENDERSON: Can you just confirm your name?
A. W77
Q. And there is one preliminary point. The tribunal granted you anonymity after you gave evidence in October 2010. Would you ask to retain that status?
A. Yes, for the safety and security of our staff and programme in Harare.
THE PRESIDENT: What did we do last time? Did we assign a number?
MR HENDERSON: Yes, W77.
THE PRESIDENT: You appreciate that what we did we anonymised you as a witness with a summary of your evidence attached as an appendix to the judgment. That is presumably something that like that we are probably thinking of doing this time.
A. That is absolutely fine by me.
THE PRESIDENT: We will direct that you be known in the published report of these proceedings as W77.
MR HENDERSON: Do you have part C bundle there, the report from you?
A. Yes.
Q. At page 1. Do you recognise this report?
A. Yes, I wrote it.
Q. I have just a couple of supplementary questions and I indicated to the tribunal yesterday that you had done part of the work in your report before you actually went on annual leave and you are just back. Would you just tell the tribunal what the current position in relation to the COPAC process?
A. Yes, it has been quite a process, I think. The latest position is that ZANU PF having objected to the finalised draft to the three political parties, having put in 266 amendments, have changed their tactics and is now allowing that draft to go through. There are some questions to be raised still about what is the status of those amendments and will they be discussed in the second stakeholders' conference, the date of which has been put back to towards the end of this month.
THE PRESIDENT: Whilst I am on the topic, do you know when the second stakeholders' conference is precisely?
A. No, because it was going to be around this time, the 4th or 5th, and I think that it was put back ... well, theoretically, to about 27th/28th.
Q. Of October?
A. Yes. But that is not certain, like many other things. There is also a court hearing to try to get COPAC itself to release the reports from the hearings that they undertook throughout the country over the last year and that is still a secret document though widely leaked.
Q. Who are the claimants in those proceedings?
A. ZANU PF. At the present time we have the possibility of three separate documents, but only one of which is actually a draft Constitution. The other aspect is that there is no saying what will actually happen in the second stakeholders' conference and some are fearful; - in the MDC and the civic society, indeed - that there will be use of militia to disrupt the proceedings, as happened in the previous COPAC hearings, and that those ZANU PF amendments, loosely known as the Kariba Draft, may well be up for discussion and that might be part of the final submission but nobody is completely clear about that.
MR HENDERSON: You obviously have seen Mr Mahvinga's statement and your heard his oral evidence yesterday, for the sake of saving time, can I just ask you whether or not you agree with his analysis of the effect or lack of effect of the COPAC draft being passed in terms of the prognosis for the elections?
A. The COPAC strategies are geared far more towards elections than getting the Constitution entirely geared to their taste, because, I mean, the Constitution could involve free and fair elections. Essentially, I agree with Dewa Mahvinga's view points on COPAC not being the main thrust that winning the election is the main thrust.
Q. It would appear from the reports that we are getting from what you say, in your report and your current evidence, that ZANU PF may have chopped and changed their position recently.
A. Yes. I would take the view that ZANU PF is quite a canny body of politicians and militia people who are quite prepared to be flexible on short-term tactical manoeuvres in order to maintain what you might call their inflexible long-term strategy of maintaining power and access to resources at all costs.
Q. Just taking these points very briefly, and again it might help you by reference to Mr Mahvinga's evidence, you heard Mr Mahvinga's evidence on the current state of the Zimbabwe electoral commission yesterday. Do you agree or disagree with that?
A. I agree and I would also put in the strong point that Joyce Kazembe, the acting chief, has a very long history of working with the Zimbabwe electoral commission with all its inability to run a free and fair election structure. (Inaudible) It is quite a militarised body, although there are some good people on it. The back-up office staff, as is common in many Zimbabwean institutions, military people or ex-military people.
Q. Do you mean by that the secretariat?
A. The secretariat, yes.
Q. Just moving to the Electoral Amendments Act, which we were told yesterday is currently before Mugabe but he has not yet signed it.
A. That is true. He should have done it within two weeks of getting the Bill, but there is a feeling that maybe they are hanging on to see if it is in line with the impending Constitution (inaudible) .
Q. You said in your report that ZANU PF would not let through with that legislative process any provision allowing the diaspora the right to vote. What has happened with the proposal to allow the diaspora the right to vote?
A. There was a proposal in the draft Constitution for the diaspora to vote. They were not counted in the census. As part of the Electoral Amendment Act going through, the MDC came to the conclusion that the diaspora would not indeed be allowed to vote, citing some financial reasons, but we also think highly ideological reasons from the viewpoint of ZANU PF, given that they think that the diaspora is MDC or certainly not pro ZANU PF.
Q. Again, do you agree or disagree with the evidence that Mr Mahvinga gave about whether the MDC were likely to pull out of elections if ZANU PF used their 2008 antics?
A. I think that on this occasion it is extremely unlikely, because there was a lot of flack last time and there were accusations that they had not defended their supporters sufficiently, although that is possibly ... The likelihood is that Tsvangirai is so much wanting SADC to take steps that, unfortunately, have not really happened, but he is still hanging on in there, if you like, but it is very unlikely that he will be trying to go against SADC. SADC would be very displeased if he pulled out of the election.
Q. Just turning briefly to the second issue that you dealt with in your report from paragraph 23, what developments have there been in urban areas, firstly just to confirm what is your opinion there based on?
A. The opinion there is based on a couple of things in terms of conversations that I have had recently, one with Dr Joann McGregor, who has written extensively, although not yet published, on the whole way that the militia phenomenon known as Chipangano in Mbare and neighbouring areas has been taking over all sorts of aspects of rent control, market stall control, hassling people at bus stations, and how this spread into other urban areas, which I think is in certain points of this particular piece. I also had a reasonably long conversation with Mike Davies who was the ex-chair of the combined Harare residents' association. We had long discussions about the emerging gang violence in urban areas, particularly in Greater Harare .
Q. You also make references in this section of your report to the views of your local partners.
A. Sure.
Q. What do you mean by "local partners"?
A. These are the four national reference group members. I am chair of the Zimbabwe Europe Network and we have a Zimbabwe International Reference Group comprising major human rights organisations, the NGO coordinating body, the Zimbabwe conference and trade unions, and they were on a delegation to watch the European (inaudible) and they come fairly regularly, and that is also part of the kind of background knowledge of what is happening in the urban areas where they mostly operate.
Q. You indicate in your report that there has been a rise in ...
THE PRESIDENT: Mr Henderson, I do not want to ... I think that you said five minutes, you have now gone to ten and it is coming up to 15. You are here to ask one or two supplementaries.
MR HENDERSON: I am sorry, my recollection was that yesterday you said that I could have 15 minutes in evidence in chief. I am almost at the end.
THE PRESIDENT: Well, that is your little warning sign.
MR HENDERSON: You say in your report that there is currently a marked rise in militia violence including Chipangano. Can I take you to the statement of Jestina Mukoko at page 24, who is the executive director of the Zimbabwe Peace Project. I believe that you have read this statement.
A. I have.
Q. Do you agree with what is said there?
A. I have worked closely with Jestina in the past. Yes.
Q. I think there were questions yesterday about what is Chipangano, what is the militia. How would you describe Chipangano?
A. I think that it is an aspect of the informal nature of state violence. ZANU PF merges into Chipangano and other gangs. But also there is a certain criminal element, but it is mostly politicised criminal violence being used through informal organs of the state with a certain amount of plausible deniability to SADC that they are actually ZANU PF.
Q. Do you agree or disagree with Mr Mhavinga's analysis of the actions of the police and army in the last couple of weeks?
A. Yes.
MR HENDERSON: Thank you.
MR THOMANN: Can I ask you first of all about the position overall in Harare and one source there you refer to in footnote 38 of your evidence is the Zimbabwe Peace Project monitoring.
A. Yes. (Inaudible)
Q. Do you accept that that is generally an authoritative source of trends in violence?
A. Largely speaking, yes, but one of the problems is that their verification system is very good on what they can verify, however they do not necessarily pick up all incidents. As the statement from Jestina Mukoko says, they have to have their monitors anonymous, so it is only when violations are reported, and that can be difficult in urban areas, because the numbers of people and just general (inaudible) .
Q. Would you accept that the general trends upwards or downwards you would expect to be reflected in the Peace Project reports?
A. The general trends have changed quite a lot over the last two years.
THE PRESIDENT: I think that the question is would the ZPP monitor reflect the trends even if it cannot reflect everything whichever happens?
A. That would be correct, yes.
MR THOMANN: Could we have a look at those? You will find in the respondent's bundle. You will find the first at page 419.
THE PRESIDENT: That is tab 7 in mine.
MR THOMANN: It is the bundle with the fewest tabs. It should have ten tabs.
THE PRESIDENT: I think that that first bundle you opened, we are calling the rebuttal bundle, but I think that the one that you have now been handed goes by the title of the respondent's bundle.
MR THOMANN: If you would look at page 419 of that, the very start of tab 7, you will find there the June 2012 Monthly Monitor Report.
A. Sure.
Q. Is that the report that you cite and rely upon in your footnote?
A. I have cited several of these Monthly Monitor Reports.
THE PRESIDENT: 38 cites June 2012.
A. Yes, OK.
MR THOMANN: What I would like you to have a look at is the entry for Harare on page 423. You will find there a table.
A. Yes.
Q. Would you accept that the overall number there recorded is 14 violations? I think that you are on a different page, but I am happy to be on your page if you wish.
THE PRESIDENT: It is page 5. I think that your attention was being directed to the left-hand column number 3, Harare, and 14.
MR THOMANN: What would you say is the significance of the difference between the violations recorded for Harare and for other regions in the table, if you move upwards, for example, Manicaland 37, Midlands 64?
A. There are two possible explanations, one is that the Harare violations have decreased and the other is that people are unable actually to get hold of the number of violations that have taken place. Either of these are possible.
Q. What do you think it says in terms of the difference in security between those regions?
A. I think that what is suggested is that violence moves around from province to province and place to place, depending on the requirements of the militia, the ZANU PF etc. The trends can be up and they can be downwards. There have obviously been periods where they have been quieter, notably around 2009, but I think that you need to look at the kind of longer term trends and how that ties in to things like electoral cycle, SADC summits and things of that nature. There is a lot of externally driven causes for the rise and fall in violence, it is hard to predict. The other aspect, I suppose, is that, if intimidation appears to be working, then sometimes violence might not be necessary, but it is all (inaudible) .
Q. Do you accept that in relation to Harare, it describes a single incident only of the Chipangano gang chasing away a Ready(?) S.A employee?
A. Yes, this one with the three assaults.
Q. You mentioned trends a moment ago. Page 421, the one you were on a moment ago, still in the June report. Would you have a look at figure one?
A. Yes.
Q. They are trends for PMV. That is politically motivated violence, is it?
A. It is.
Q. And what do you say is the significance there of the June reductions from 3,758 in 2008 to 42 in 2012?
A. The June 2008 figures are abnormally high. This is when there was a rampage in violence. That figure is an extremely high figure. There does seem to have been a reduction in 2010. They went up again in 2011. It has gone down again in 2012. If we have a June election in 2013, my estimate will be that it will be much higher, but at the moment it is low - but bearing in mind what I also said about the reporting problem.
THE PRESIDENT: Yes. Well, I have got a note that one obviously has to be cautious about imagining that any one organisation can capture every incident in every part of Zimbabwe all of the time, but I think that the line that has been put to you is that, does this at least show us the trends, because, presumably, those problems about recording everything are a constant and there you have got a snapshot of June records with whatever deficiencies records may have, 2008 to 2012.
MR THOMANN: If one compares the figure with 2011, what do you consider that says, if anything, about the trends in violations between last year and this year in June?
A. Well, the trend as shown by ZPP appear to be downward and I think that that is indisputable. They are possibly the more conservative of some of the organisations trying to collect cases of violations, because they do very much rely on this verification. It is often thought that people who are reporting political violence, like Amnesty International and Human Rights Watch, they are often accused of double counting things. There is no great evidence for this, but, largely speaking, Amnesty, Sokwanele and other organisations, have reported higher figures in the past than ZPP for the reasons that I outlined.
Q. If we move to July 2012, page 411, that I the previous tab, you should find the ZPP Monthly Monitor for July 2012. Could you again turn to the politically motivated violence figure at figure 1 on page 413?
A. Yes.
Q. You should find there a figure of 375 violations.
A. Yes.
Q. And again could you compare that to, for example, 2011's figure? What do you think the significance there is?
A. Well, it obviously has decreased according to the ZPP method of counting, given that it (inaudible) .
Q. If you look at the final indent below that figure, you should find a 12th July incident.
A. Yes.
Q. "About 15 ZANU PF youths suspected to be members of the notorious Chipangano gang harassed and displaced a female dance group owner from her house in Mbare accusing her of performing with the dance group at ... The trust is accused of supporting MDC".
A. Right.
Q. Do you accept that that again does pick up a Chipangano violation?
A. It does pick up one of the Chipangano violations, certainly.
Q. Do you accept that that in this report it does not pick up any others?
A. No, (inaudible) which ZPP do pick up those violations, that is all that (inaudible) certainly.
THE PRESIDENT: This is PMV, politically motivated violence.
A. Yes.
Q. So someone is making a distinction between crime, extortion and politics?
A. They may well make that distinction. (Inaudible) where they might set the boundaries for political and criminal violence.
Q. But this is what it is telling its readers it is analysing?
A. Yes. I suspect the point there is that it is certainly not a criminal activity in terms of extorting money or anything, but it is at least something political. If Harare residents' trust is deemed by Chipangano to be supporting to the MDC.
Q. Quite .
A. (Inaudible)
MR THOMANN: There is another entry for Harare on page 417. Again, what do you think is the significance of the overall figure there for Harare of 14?
A. Well, it is a very low figure. Obviously, as it says here, a slight decrease in the PMV.
Q. Again, in the last indent box next to it, it speaks of politically motivated violations still continue in Mbare township and sometimes victims report to police who are not arresting the perpetrators who are mostly members of Chipangano.
A. Yes.
Q. Do you accept that that it does not record any incident of violations by Chipangano outside Mbare?
A. Well, it does appear to be that.
Q. What do you think is the significance of that?
A. People are scared to report Chipangano and that the police, they know, will not take any action whatsoever nor (inaudible) except that one incident that we were talking about yesterday.
Q. You accept that it says that the violations continue in the Mbare township.
A. Yes, certainly.
Q. And your response to that is that there may be violations elsewhere but they may not be being reported?
A. There may be violations throughout greater Harare and indeed other townships but they are not being reported.
THE PRESIDENT: Is there any reason why they would report in Mbare but not elsewhere?
A. Well, Chipangano's base is in Mbare.
Q. One would have thought that they might have been able to influence more coded silence or a marker or something where they are based.
A. There is something of that, obviously, but ...
Q. I just wanted to know whether you had any information that you could throw light on.
A. No, not really.
Q. So it is supposition to some extent?
A. Yes.
A. Supposition but widely believed and widely reported, but not necessarily verifiable. That is the element here.
MR THOMANN: If we look at the third report, that is the August 2012 report, you should find at tab 5, again figure one is the starting point that I would like to ask you about and that is the trends for politically motivated violations.
A. 405?
Q. Yes. How do you interpret the reduction in 2010 and 2011 figures and the 2012 figure?
A. I can only repeat what I said before, really.
Q. Could you look at the last indent on that page?
A. Yes.
Q. It mentions a positive note. That is when it refers to the joint monitoring and implementation committee. Could you explain to us who that creature is?
A. It is part of the global political agreement whereby the three parties will set up a monitoring committee to which people could be brought for human rights violations and that there would be some action taken. SADC has tried on occasions to help this committee but not with any great success. It is rare that JOMIC is seen on the streets, as it might be, so it is quite a difference, but, if it is just highlighted there can be other areas. [SSHD's notes say 'Highfield' not 'highlighted']
Q. You have described questions that you have as to the effectiveness of JOMIC in your statement. What do you think is the significance of patrols actually being on the streets of Harare by August 2012?
A. I would not be surprised if this is not something to do with the SADC summit to some extent, I think, taking place in that particular month. It may be that they became suddenly more active as far as their numbers ... I do not really know, actually, because when I was writing my report I had not yet seen this.
Q. You also mentioned the increasing visibility of the body had led to a freer atmosphere. Are you able to comment on that?
A. (Inaudible) .
Q. Can I ask you to look at the Harare entry again, please? It is at 408. Again, you will see the overall figure, 16.
A. Yes.
Q. Would you accept that that shows a relatively stable picture?
A. Yes, within the limitations that I have described.
Q. Now, I do not propose to ask you about the table next to it, because what you should see there is that by error somebody appears to have copied the Masvingo entry into the Harare column.
A. Yes.
THE PRESIDENT: So we delete the comment alongside "Mahvinga", because that is just a repeat?
MR THOMANN: Yes.
THE PRESIDENT: This comes out, I see, about a month after the events; 14th September is the publication date of this document.
A. Yes.
MR THOMANN: I have not found an October one.
THE PRESIDENT: Presumably, it will come next week or the week after. I have only taken that from 403, which says that August was published on 14th September and 14th, 17th, 24th, well ...
MR THOMANN: You mentioned Chipangano and the tribunal was interested yesterday in how long this group has been on the scene for. Can you help with that at all?
A. I think that it is about five years. But they always put a shadowy militia group in front of it, so who had heard of it and who had not at certain points is unclear, but, to my knowledge, in general, it was morphed from other ZANU PF militia gangs, anyway.
Q. Do you accept the types of activities described by it, pressure on market holders, pressure to pay affiliation, are not recent ones, they have been tactics which have been in place for some time?
A. Yes. I think that the point about Chipangano is (a) it is very heavily linked into the Harare youth ZANU PF and through that to the senior military people [SSHD unable to confirm]. What has happened is it has become more systematised, but also in time militia have been using different places (inaudible) there is still some of that going on. This appears to be about control of people, control of resources on a fairly systematic basis in order to recapture in a sense the urban areas from the MDC, because the MDC took control of nearly every county and there is (inaudible) pattern of trying to unseat these people to undermine the MDC Council, so this is one aspect of that whole overall strategy to drive out MDC (inaudible) in those areas and to undermine their power or the split ...
Q. Would you accept that the type of activities that were described yesterday and that you have described are not properly described as systemic? They do not appear to have a pattern or a system to them.
A. Well, as far as I can see there is a fairly common pattern of extortion from those wanting allegiance to ZANU PF, a pattern of violence, a pattern of intimidation and creating no-go areas in Mbare for MDC Councils. It seems to me that there is a strong pattern of asserting local control which the MDC have not been able to launch a major response.
Q. The reason that I ask you is that you say in paragraph 19 of your statement, three lines down, "ZANU PF's capacity and willingness to use violence do [not] appear to have abated, although intimidation and some violence rather than systemic violence are the current characteristics".
A. Yes, this is the more informal (inaudible) practice that I was talking of. (Inaudible) .
Q. Do you recall that there was evidence of Chipangano activities the last time this tribunal convened?
A. I cannot recall.
THE PRESIDENT: I have looked through our summary of your evidence which does not claim to perfection and I did not see the name and, although I would not claim to have any capacity to remember all these names over two years, speaking only personally, it did not ring a bell as I was reading it up to this one.
MR THOMANN: Can I give you a chance to read what we had about Chipangano last time around which is found in volume 2?
THE PRESIDENT: Volume 2 of last times evidence or of this evidence today?
MR THOMANN: No, last time's evidence. Page 111.
(Copies handed)
Q. Having refreshed your memory of that, how do you say that the tactics have changed between the tactics that are referred to here?
A. Well, the group have various arms, they are now better organised, as far as I understand much better at collecting revenues and it is a much more coherent pattern of a multiple strategy for control, ideological and intimidatory tactics, a closer relationship as far as I understand it with the senior ZANU PF people and also the fact that they have found how lucrative it is. Some of them are extremely well off now, so there is no reason for them not to become better organised and to ensure that they continue their activities. That is what I mean by a more systematic approach.
Q. When it says in the first paragraph "ZANU PF Mbare youths, popularly known as Chipangano, are closing down all markets belonging to opposition supporters in the area of Mbare", do you accept that as a summary of the position in August 2010?
A. I would be surprised that they actually closed down all the markets at that time. It may well be the case ... it is quite possible. I don't know, to be honest.
THE PRESIDENT: Who is the informant, the Zimbabwe Mail? Is there any help you can give us for that?
A. The Zimbabwe Mail is, I think, different from the Sunday Mail, which is definitely a ZANU PF paper. I think that it is one of those independent but not very widely-read newspapers.
Q. But certainly not linked to ... well, it probably would not be linked to ZANU PF, would it?
A. No, I believe it is independent.
MR THOMANN: You described one of the times that you say that ZANU PF, in your view, is gearing up for old election tactics is what happened in the recent census.
A. Yes.
Q. I think that you deal with that at paragraph 4 of your report. There you say in the lasts three lines, "A census process has begun although interrupted by military activities including demands to be employed as enumerators - this is seen a further intimidation of the population, meaning figures are unlikely to be accurate".
A. But the census (inaudible) .
Q. Yes, but before that military personnel wanting to be involved as enumerators, do you accept that a potential motivation there is to be paid as an enumerator?
A. Yes. I certainly accept that that is true, but it could be a reason for disruption of the results.
Q. Can you help us at all with the sort of financial awards that enumerators would expect?
A. That would be in double figures. I don't know the figures. It is a long time since I got that one.
THE PRESIDENT: I am sorry, I am a bit behind, just remind me, which paragraph we are on?
MR THOMANN: Paragraph 4 of the report, the last four lines. Could you turn to the respondent's bundle? That is again the bundle with the fewest tabs. If you look at tab 1, I would like you to have a look at page 6 on that, they should find there there are sections dealing with the census.
A. Yes.
Q. Could you first of all read to yourself 201?
A. (Pause) Yes.
Q. Do you accept what is stated there as the chronology of how the census took place?
A. Yes.
Q. What do you know the significance is of the outcome of teachers continuing to be employed as census operators and the army being restricted to being self-enumerators and providing protection?
A. To be honest, this was after I finished my report, so I did not go into the census in any great detail and how that finished off, but, certainly, the acting finance minister, Gordon Moyo, respects civil society. It seems to suggest here that they are certainly going to try to employ teachers as the enumerators, but I do not have the information as to how substantial that was. The census did take place.
THE PRESIDENT: It did take place, yes. This may be an unfair question given what was said just now, do you have any information as to how the census was viewed on completion?
A. I have some knowledge of what happened during the process. People are highly suspicious that involvement of the army, whether it is as enumerators or accompanying others, was viewed with great suspicion. Not everybody felt able to register. There was a certain degree of fear and mistrust attached to the census.
MR THOMANN: What do you think the significance is of the quote by Minister Biti, the MDC Finance Minister, at 2.03 in the middle of that paragraph, where he says that he would like to advise that the process will end today and he was happy to say that the process was using UN principles and SADC guidelines?
A. Biti has always been an optimist but presumably it is reasonably correct from his viewpoint. The viewpoint I was expressing certainly came from civil society people in the early part of that programme and from certain news reports.
Q. If you turn the page, we find a reference to disturbances in the second paragraph down.
A. Yes.
Q. "... population centre was marked by disturbances when ... thousands of prospective enumerators wishing to take part in the process jostled at various centres countrywide to take part in the process". Do you accept that that is the type of disturbance that was recorded rather than army disturbances during the census being carried out.
A. There was also an incident that I think that I mentioned in my report of the police raided a school while the census is going on. I think there was violence certainly at the start and at the time I was doing my report that is due to (inaudible) .
THE PRESIDENT: Whilst we are on that page, do you see under the last quotation at 2.03, at least 30,000 enumerators mostly drawn from the education sector took part in the exercise and the source for that is the Herald, 28th August.
A. Yes.
MR THOMANN: You mentioned a school incident. Are you able to help us whether that was an incident that took part at the start during the training of enumerators or whether it took part during the census?
A. During the census, as I recall.
Q. I know that it is in the appellant's singular bundle. It is not one of the ones that I have flagged up. 113, I think. It is page 28. The entry for 8th August 2012. I think that it is the first four lines there that you were referring today. It says, "Today for the second day running ... girls' school ... enumerators undergoing training".
A. Yes.
Q. "Similar reports are coming in from the rest of the country ..."
A. Yes.
Q. Do you accept that this is again an incident before the census took place?
A. Well, yes, obviously.
Q. Are you aware of any reports of violence or disruption during the actual census?
A. That I have not seen, no.
Q. What do you think the significance of that is in terms of the role of the army in the census?
A. It appears that they were told not to disrupt the census if that is indeed the case that there was less violence and fewer instances of violence as the census actually got underway.
Q. Does that change in any way your view on whether ZANU PF is gearing up for an election using old tactics?
A. No, I do not think that the census is a particularly strong part of the evidence regarding ZANU PF being ready to use violence whenever necessary. As I said before, the tactics change but the long-term strategy is to maintain power.
MR THOMANN: What do you think the significance is of the administrators standing up to the army's demands to take part and be enumerators?
A. Very brave.
Q. Security sector reform I want to talk to you about next. Would you accept that the army, the pattern of the army, does not represent any uniform picture of support for either political party?
A. There appears to be low level soldiers who in the past were disenchanted with their pay, not being paid (inaudible) ... The picture changed to some extent after they were paid. Most of the overt or pro-MDC soldiers or police or whatever have been chased out or put into what you might call non-combative roles in the security forces. The top ranks of generals are ZANU PF. There are some distinctions between the low level and the senior level and some feeling that the medium level are dissatisfied with the way that some of their superiors act and are looking at possible other options, but the senior staff are strongly ZANU PF and will not salute Tsvangirai as he has no liberation credentials.
Q. You have included various articles in your footnote 36. One document that you may have at the end of the Mahvinga evidence is the bundle that I handed to the tribunal yesterday.
A. Yes.
Q. Could I ask you to turn to page 60? Do you find an article headlined "Zimbabwe Army Generals have no support"? You will see that you have cited at footnote 30 an article with that title.
A. Right.
Q. You have cited an article called "Generals have no support" dated 9th July, the same date.
A. Yes.
Q. But you have cited a Daily News version. Now, that appears no longer to be readily available, which is why the Mahandra radio report, with the same title of the same date, is in the bundle. Could you first of all comment on Mahandra Radio as a source of information?
A. Well, it tries to promote debate on Zimbabwean issues, it is reasonably independent, it reports what it says. It is taking part in the general debate about where the security service positions themselves. There is quite a big debate about that, so I have tried to reflect that in my report from different angles.
Q. Yes, you will find there various quotes from Giles Mutsekwa's article, the secretary for defence in Prime Minister Morgan Tsvangirai MDC. What I would like you to read is the last two paragraphs of that.
A. (Pause) Yes.
Q. Is that in your view a reflection of the evidence that you gave a moment ago of the army support at the higher echelons of ZANU PF not being reflected at grassroots level?
A. I did not say all grassroots, I said some.
Q. Yes.
A. This seems to be particularly about feeling what certain military leaders have said that they will not salute Tsvangirai and he is a security threat. They said that at a meeting that some of our partners were at in Sandton at Johannesburg. This is being seen in certain circles as a plot. You would certainly have a few in the military at lower level who would be interested in taking part in a coup, equally I think that it would be very foolish... (inaudible) in favour of letting MDC win. As I said, there is a debate going on about how best the Generals position themselves in [context of a] history of ZANU PF in-fighting and vying for power. Also reflecting itself in terms of an alternative policy position being sought. There is a sense in which army people who are generally intelligent may be testing the wind, maybe looking for alternative possibilities, but more or less that is a backstop position if everything goes wrong, because the totality of the army is of massive support for ZANU PF . Given the fact that there has been a militarisation of most of the state institutions, retired military people are running a large number of the institutions, then there is no reason for them to want to salute Tsvangirai. But my experience and view is that of the institutions that they will support ZANU PF.
Q. You say that there is broad support or the totality is one of support, if you look over the page at page 306, which is a continuation of this article, we are still in a quotation by the MDC defence minister and what is said here in the fourth paragraph down is, "In the last elections heard in 2008 a number of constituencies with large military garrisons voted against Mugabe".
A. Yes.
Q. What do you think the significance of that is?
THE PRESIDENT: I am sorry, you say in the quotation?
MR THOMANN: I think that we are still in the quotation.
THE PRESIDENT: The quotation closed, did it not, at the bottom of the previous page?
A. He is not the defence minister he is responsible for defence in Morgan Tsvangirai's office.
MR THOMANN: Do contradict me if you wish, I read that as still being the account of the defence minister, it may not be, because it continues the next paragraph down, "she said that the Generals were saying ..."
THE PRESIDENT: That is Priscilla Misihairabwi-Mushonga.
MR THOMANN: Whether or not it is a citation, do you accept that a number of constituencies with large military garrisons voted for the MDC?
A. Yes a number and since then, of course, they have been paid better. (Inaudible).
Q. As I was going though this, I was drawn to the sub-paragraph just above that. I think that this is meant still to be what Muchange is saying rather than the journalist, but whoever: "The chief of staff and a few other elite officers have benefited hugely from Mugabe's patronage, whereas at the level of colonel and brigadier and below, the support dwindles according to Mutsekwa".
A. That is not a quote from Muchange.
Q. No, It is according to Mutsekwa. Do you agree with that?
A. It is certainly true that the top ranks have gained more than the middle and lower.
Q. I have got that from your evidence, but level of colonel and brigadier.
A. Being an optimistic, I have to say Mutsekwa is an extreme optimist and has said that the diamond revenue would come through the fiscus and other things would happen and a number of things that never happened would take place [SSHD unable to confirm]. It is not like that he is a key expert.
MR THOMANN: Another article that he mentioned in that footnote 30 is one called "Security chiefs panic".
A. Yes. This is in footnote 36.
Q. Footnote 36. Can you recall what that article contained?
THE PRESIDENT: I have a query. This is July 2011 or 2012 or, perhaps, we will find out by looking at it. 2012 it looks like. I just made a marginal note to ask you. Now we have got the details we can get it.
MR THOMANN: Sir, do you remember reading that out or citing it?
A. Yes, I do. I put it in because I wanted to show the debate going on about the role of the security forces. The main thrust of my report that was in there anyway is about ZANU PF and the military trying to maintain complete control for the next elections and thereafter.
THE PRESIDENT: Do you accept that, if what is said in that article is accurate, security chiefs are forming a plan B for the time when they are no longer in control?
A. I do not read it quite that way. I think that what there has been is what happens a lot in Zimbabwe that all sorts of people have different conversations and fly kites to see which way the wind is blowing, etc. The Wikileak stuff about backstabbing about Chwenga, who is the Zimbabwe defence force's commander, are all symptomatic of some of this in-fighting, seeking to see where the wind is blowing. I think that, if you bear in mind things like what happened to Charles Taylor, who got immunity, promises may not mean a right lot, General Malone is too aware that officers may not (inaudible) political formation comes into power, if it ever did (inaudible) . They will also be aware of the efforts of Mujuru, who is closely associated with Mukoni and elements in MDC, but in many people's estimations they attempt to put the frighteners on anybody who was seriously entertaining, allowing them the Solomon Mjuru assassination as an attempt to put the frighteners on anyone seriously entertaining allowing MDC negotiation. [SSHD unable to confirm]
Q. That was August 2011, was it not?
A. That was August 2011, yes. The circumstances since then are very unclear situations as to what actually happened. There are all sorts of ...
THE PRESIDENT: I think that we have the data on that. Thank you for reminding us.
MR THOMANN: Do you accept that the efforts described here postdate that moment?
A. They do, yes. It is certainly true (inaudible) that there were a lot of army officers (inaudible) etc.
THE PRESIDENT: Looking at the last two documents that we have just been looking at, if, taken at face value would suggest, that at least below the top general level there are senior officers who are looking both ways and looking at other strategies, what is your overall comment upon what weight we should give to this?
A. As I say, a lot of it is testing the water, to see what alternatives there actually are, whereas at the same time continuing their major thrust of this strategy to keep ZANU PF in power.
Q. But were you getting reports like this in 2009 and 2010, for example?
A. Not to my knowledge, actually, no. One thing is that, of course, SADC has had large number of officers and people have tried in the past to use SADC army that surrounds it to see what people are actually thinking. Conversations with senior army people are not something I am able to undertake.
MR THOMANN: Let's move on to the police. You do accept that there is a difference in the makeup of the police between urban and rural areas?
A. There has been a large process of weeding people out who have been unreliable. Police throughout (inaudible) rural areas (inaudible)
Q. Do you accept that the rank and file are not selected, though, for political allegiance?
A. They are not selected on political allegiance but it is assumed they would have it.
Q. Taking the situation in Harare, where the police would have day-to-day contact with the population, what significance do you think it is that the population ... it has on that, that the majority of the population in Harare are MDC supporters?
A. I am sorry.
Q. What impact do you think that it has on individual officers on the beat in Harare that their day-to-day dealings are with the population which is in the majority of MDC supporters?
A. They get on with their duties, but to some extent are one of the most corrupt institutions in Zimbabwe. Their main day-to-day interactions with the population should not be shaking them up and down for money, also protecting ZANU PF demonstrations or turning a blind eye to violence and extortion [SSHD unable to confirm]. That on the local population (Inaudible) .
Q. Would you accept there would be a difference by reason of that day-to-day exposure between the attitude and makeup of the police in Harare compared with rural areas?
A. They would not be so much involved in day-to-day violence and the activities I have described, but there may well be bussed in to help in a particular situation. They would expect them to be loyal to the regime.
Q. If I can move on to political developments, you have said that you consider one of the key developments to be the impending deadline for elections. That is paragraph 2. This is the version that you sent before you went on your annual vacation.
A. That is right.
Q. What is your up-to-date view on how likely elections are and when they are likely to be?
A. The impression I got yesterday was that the court had granted an extension to the deadline to ZANU PF - of President Mugabe rather - to have to call elections by the end of March 2013 - to call an election by that date.
THE PRESIDENT: This may be an odd message and in which case tell me I am getting the wrong end of the stick. My reading on elections was that there were court proceedings about a group of by-elections which were due to be heard which were in court and someone had asked for an extension for the date when the writs must be moved for those by-elections.
A. Yes. That is now March 2013.
Q. So that answer was, in fact, related to the litigation about the by-elections.
A. Yes. There are 32 by-elections.
Q. Yes, they are sometimes called a mini-general election.
A. That is right, yes. There has a call that those be harmonised with the forthcoming general election.
Q. Because at one stage those writs were due to be moved by 1st October, were they not?
A. That is right, the date has slipped.
Q. And then they went back to court and the judge has now said that you do not have to move the writs until March.
A. Yes, that is the judgment from yesterday.
Q. I see.
A. (Inaudible) .
THE PRESIDENT: No, I mean, before I took a note down, I wanted to see what I was taking a note about, but, actually, it sounds like my question might not have been quite so stupid as I thought it might have been, after all.
MR THOMANN: What do you think that ZANU PF's objective is in terms of elections, would they like to have them sooner or later?
A. ZANU PF have historically always wanted to have early elections, they are concerned about Mugabe's health, they are concerned about the in-fighting that might occur if he dies before elections [SSHD unable to confirm] and so they have always sought to bring these as early as possible despite the fact that there would be no money in the budget actually to have them. Firstly, the MDC would wait as long as possible they would like the conditions to be in place for free and fair elections, which is still not (Inaudible) .
Q. What, if any, significance do you think that ZANU PF's objective of having elections early would have on their willingness to compromise with regard to the circumstances in which that election takes place?
A. I think that they would prefer to have elections under the current Constitution, but it is not the be all and end all of their argument or their strategy.
Q. Do you accept that ZANU PF's objective of having early elections is a matter which may drive ZANU PF to be more flexible than it would otherwise be?
A. No, I do not think so. Let me start again. I think that (inaudible) situation, but their ultimate strategy remains the same. I am sorry I keep saying that but ...
Q. You were asked earlier in chief about the Constitution and the COPAC process and you mentioned that COPAC is an organisation made up of the three parties.
A. Yes. (Inaudible) .
Q. Would you have a look at tab 7 of the respondent's rebuttal evidence? You find there an article by South West Radio Africa.
A. I have it.
Q. What is your observation on the reliability of that as a source?
A. They are reasonably credible. They report what they can. They are independent of most (inaudible) .
Q. You should find an article headed "COPAC in U-turn over civic participation" in this paper.
A. Yes, that is right.
Q. If you turn the page, could you read to yourself paragraphs 3 and 4 ...
THE PRESIDENT: Is that from the Parliamentary Select Committee?
A. Yes. (Pause) Yes.
MR THOMANN: What do you think the significance is of the proposal to permit participation by civic society?
A. As far as I am aware, there has been some major debate between COPAC and the civil society. There have been a number of different meetings to try to ensure that the views of civil society are reflected at the stakeholders' conference. It was going to be a massive thing that civil society makes the point that civil society is made up of very pertinent bodies, who debated the Constitution, and they represented a significant constituency, essentially the lawyers, etc, so it would be unfeasible for civil society not to be there to have a voice given that COPAC is largely a Parliamentary process. Civil society are involved in some of the (inaudible) and given the draft Constitution will be released at that particular stakeholders' conference the civil society ... I think that COPAC more or less accepted that.
Q. Do you read that as a positive sign in terms of the political space that there is currently?
A. It is obviously better if civil society is inside rather than outside.
THE PRESIDENT: Do we read this that previously the arrangements for the stakeholders' conference were set up not to include them and now it has been accepted that they should be included?
A. That is right.
MR THOMANN: The final paragraph of the article says, "He added that COPAC also decided to allow, diplomats, local and international media, the judiciary and other interested stakeholders to observe the process. This has eased fears of violent disruption".
A. There are two paragraphs you have missed out there.
THE PRESIDENT: Yes, read those as well.
MR THOMANN: Read all of it to yourself or should I read it out to you?
THE PRESIDENT: I am sure you can read it for yourself.
A. (Pause) Yes, I think there were a lot of suspicions about ... I am sorry I was reading the wrong bit here, was I not? If Shishagia [?] think that it is a concern that ... Certainly the MDC elements in it would be concerned to avoid disruption. They are very concerned that ZANU PF and Chipangano or whoever they might use to disrupt the process that the whole debate that has been going on about the Kariba drafts that ZANU PF have been trying to run versus the first draft Constitution, all of these will create a very confused situation, so inviting outside people in is certainly a good tactic, whether it will work is another matter or whether people will come. I assume that most of the diplomats would go.
Q. I think that you told us at the start of your evidence that this has now been put back from October 4th, tomorrow, this weekend, to some time at the end of the month.
A. That is right, that was my latest information. It might change.
Q. Quite.
MR THOMANN: You may remember I asked Mr Mahvinga yesterday what he thought the significance was of the ZANU PF change of position on the documents that the COPAC will be working from; what is your view of the significance of that change?
A. I, largely, as I do on most things agree with (particularly) Dewa Mahvinga ... I think that the change he point to [had] various aspects one of which was the fact that there was the SADC meeting, (inaudible) changed tactics that different ZANU PF factions had different views on how best to approach this Constitution process and that the key issue would be what might happen at the second stakeholders' conference and whether items, like security reform and electoral reform, were going to seriously be considered.
Q. Do you consider this to be an occasion where the MDC put down its foot and prevailed?
A. Not really, no.
Q. Why do you say that?
A. I think that it is more to do with the divisions inside ZANU PF and the desire to give SDAC - kind of toss them a bone, if you like, and say that, look, we can be flexible if we want to be, and then go back to their ways. It is not the first time that this kind of concessions are made, but then clawed back.
Q. When you mention there are divisions inside ZANU PF, what sort of factions are you talking about?
A. There are a number. The two major factions are the one led by the late Mujuru, whose wife (inaudible). There is the Mujuru faction. Then there is the Mnangagwa faction which is reportedly more hard line and at the moment seems to be more favoured by Mugabe although he hasn't formally named a successor. The other factions - well, different people come and go, so getting information on it is quite difficult even though we have certain lines to certain people. Sidney Sekeramayi is a contender. Certainly, Kasukwere has made quite a lengthy ...
THE PRESIDENT: I am sorry, I have to try to get some of this down. Can you just take the names a little bit slower. Sidney?
A. Sekeramayi.
Q. And?
A. Saviour Kasukwere. He is largely in charge of the indigenisation aspect, so he is pretty hardline, believed to have the ear of Mugabe. The other thing to be taken into consideration is the fact that Jonathan Moyo has been the chameleon. He seems to be able to influence the President. For instance, it was thought that Moyo was the one telling Mugabe that his position would be compromised under the draft Constitution, hence the 266 amendments that appeared. Since then, obviously, there has been a difference of opinion within those factions as to how best to approach this COPAC Constitution process.
MR THOMANN: What would you describe the position of the Mujuru faction as?
A. At the moment I would say that they are not in favour. They are the ones who are deemed to have been talking to the MDC on a number of occasions. There were even rumours that someone had a deal but that was never proved. I think that they have rowed back from those kind of conversations but they are a little out of favour, I believe.
THE PRESIDENT: Away from Mugabe or ...
A. Mugabe, yes. There is possibly a patriarchal element there, too, towards Joyce Mjuru a woman.
MR THOMANN: When you say there were rumours of a deal, what sort of deal do you mean?
A. There were rumours that Tsvangirai would do a deal with the Mjuru faction but then of course there were rumours of a deal with Mnangagwa. None of this can be taken as anything other than rumour but the deal would probably involve some significant immunity [Appellants unable to confirm]. It was never proved, it was rumours going around. Sometimes these rumours are started quite deliberately to discredit other factions.
Q. You mentioned the Electoral Amendment Bill and the progress of it.
A. An Act now.
Q. Yes. Can you help us at all how that will assist in terms of free and fair elections?
A. I do not have precise information, but it (inaudible) It has elements of free and fair elections in it.
Q. Could you have a look at tab 64 of the rebuttal bundle? That is an article in the Herald. "The Zimbabwe Electoral Amendment Bill passed".
A. Yes.
Q. Then a few paragraphs down, it says "Some of the amendments brought by the Bill include the introduction of a polling based voters' roll. The Bill will also ... with Zimbabwe Electoral Commission to announce an evidential election results within five days of polling. The new Bill also established an electoral court to speedily deal with any electoral disputes and polling station based voters' rolls would be introduced, although ... Patrick Chinaza agreed to postpone their introduction. Police officers will no longer be allowed polling booths inside polling stations while the visually impaired would be allowed to bring any person of their choice to assist them in voting in the presence of a polling officer".
A. Yes.
Q. What is your view on the significance of those changes for the prospect of a fair election?
A. If brought in and if the atmosphere was correct, it would obviously at least provide the possibility of a much freer and fairer election system. The problem is, of course, that those limitations are not necessarily going to be implemented with the security situation. To some extent in 2008 there was the ability to vote reasonably freely, it is what happened afterwards that was the problem. The 2005 elections were not on the actual day of the election completely violent, which is the characteristic of how elections.
Q. Was there then a requirement for the result to be declared within five days?
A. No, which is why it took a month. (Inaudible) It took them a month to release those results.
Q. What impact do you think that that will have on the prospect of post-polling violence?
A. It should in theory, at least, dissipate the kind of anxieties, the ability of militia to gather their troops to ... it should in theory, at least, reduce the violence, but this also depends on the context that I have described, intimidation and violence beforehand ...
Q. You were asked about the electoral commission earlier and is it right that your views of Mutambanengwe and Kazembe reflect those of Mr Mahvinga yesterday?
A. Yes.
Q. And you mentioned that there were a number of good people in the electoral commission.
A. Yes.
Q. Who did you have in mind?
A. The University of Zimbabwe law lecturer called Jeff Boulter, who is a good legal expert I don't personally know many of the others.
Q. He is a commissioner, though, is he not?
A. Yes.
Q. Do you have views on the other five commissioners?
A. I know that mostly they have some kind of connection with the military.
Q. In terms of the current head remaining in place, the acting head, what do you think his significance will be if there is a dispute as to ...
A. It is a she, Joyce Kazembe.
Q. My apologies, the actual head, not the acting one.
A. Simpson Mutambanengwe?
Q. Yes.
A. He is a well-known lawyer who has practised in Namibia in the Supreme Court there.
THE PRESIDENT: He is a judge in Namibia, is he not?
A. Yes.
Q. Is he still a judge?
A. He is a judge. He has been in very poor health. In fact, he has been in poor health since he was actually made the chair of the commission, so his impact has not been great, so this has not been helpful to having a free and fair election because of Kezembe and problems involving the electoral commission.
MR THOMANN: Do you accept that he does remain in place, though?
A. He is a titular head, I would say.
Q. Are you aware of any report that he has resigned?
A. I have not heard that.
Q. Do you accept that the overall makeup of the electoral commission is an improvement on that in 2008?
A. It is a cosmetic change.
Q. What about the commissioner personalities that you have mentioned, do you think that that is an improvement?
A. I am sorry, personalities of who?
Q. The personality of the eight commissioners, do you think that constitution is an improvement from 2008?
A. Not particularly.
Q. Why do you say not?
A. Well, they are not independent. Their ability to reflect what is going on has never been very high except in terms of those who have turned a blind eye to violent elections that there are elections free and fair. They have not been able to bring in a new voters roll and the current one is a shambles. There are people on it who are 140 years old. One element would be how ... is to deal with this extremely corrupt system they have inherited which is largely speaking why they have not been able to change anything up to this particular election ... The Bill is still not passed, we still do not know what is happening while it is President Mugabe. Up to now they had been unable to really change the way that ...
THE PRESIDENT: Is there any connection with this incomplete process of electoral legislative reform and the judicial decision to defer the mini-general elections?
A. That is an interesting point. I would be interested to hear what civil society and legal people in Zimbabwe thought on that one.
Q. Do we know who the claimants are? I thought the claimants were ZANU PF.
A. Yes.
Q. So they were asking for an adjournment in this particular case?
A. Yes, we think so as to harmonise the elections with the mini-by elections, the mini-elections.
Q. With the main election?
A. Yes.
Q. And there have been no by-elections since 2008?
A. No, the agreement of the global political agreement was that there would be no by-elections. There was some kind of feeling that they might just bring Mps in from the same party, but that did not happen either, so there has been quite a gap.
Q. So as Mps resign or die or something ...
A. And deaths in general, others taking their place so ...
Q. Numbers go down. But no by-elections was a term of the agreement itself?
A. That is right, yes.
MR THOMANN: What do you think the significance of the electoral commission's role was in the process which has led to elections not being called to date?
A. That I do not know.
Q. Are you able to help us at all with the Human Rights Commission bill that you mention in your report?
A. Yes.
Q. I think that it is only mentioned. Can you help us with what that will involve?
A. It does bring a Human Rights Commission, but with severely limited powers. It is likely that no human rights abuses committed before 2009 will be eligible for investigation. It has not really started work and as far as I know it does not have any money.
Q. Moving on to regional engagement, what is your assessment of the current engagement of South Africa?
A. South Africa or SADC?
Q. South Africa to begin with.
A. South Africa is a chief player in this. It is Zimbabwe's neighbour, it suffers from the Zimbabwe crisis. At the same time a lot of events in South Africa are having to take up President Zuma's time, like the diamond mines. Those sorts of things. They are fitful on the Zimbabwe issue. They have tried to visit on a number of occasions and it has been postponed by ZANU PF. They have a committee that visits them regularly (inaudible) a respected member of the African National Party (Inaudible) and has made some encouraging noises. It has always been implementation, so even while they have made significantly more noises about the need for a new (inaudible) and free and fair elections and the need for a number of key reforms, they have not really been able to facilitate that beyond what was done in the global political agreement. There is a feeling, of course, that the old liberation movement of solidarity still persists. A highly critical report by the South African Generals ordered by Mbeke about 2008 violence that has never been released about the conduct of the Zimbabwe Armed Forces has been sat on for two or three years now. The relationship is a tricky one because there are elements in the ANC who would support lots of what ZANU PF do and would use that to reflect back on what they perceive is a corrupt South Africa. South Africa have to play a very careful card. They do not like to be seen as this kind of regional hegemon telling everyone else in the region what to do, for obvious political reasons. I think that the picture is quite focused on South Africa and its ability through SDAC to affect what is going on. There is a great deal in Southern Africa of reliance on sovereignty and non -interference as a kind of key organising principle for different nation states, so, even if you have a regional body, there is very strong feeling that it is interfering with individual states' affairs. This has happened.
Q. You mentioned SDAC's potential role in the change of position in your evidence and the change of position in September on the documents to be put to COPAC. What do you think the significance of that ...
A. I am sorry, what is it?
Q. This was your evidence earlier. You mentioned that one of the factors that could have driven that change of position might have been that there was a SADC meeting in the future. What do you think the significance is of ZANU PF's readiness to change their position on the eve of a SADC meeting?
A. Well, it is part of the pattern that occurs on occasions like this. There were a number of initiatives before the SADC Heads of State meetings in 2009 and 2010 in terms of promises to free up the media airways, promises to suspend or amend or even repeal the two key pieces of repressive legislation, i.e. POSA, but after SADC had the state meeting nothing really changed. So I can see that this is part of a kind of PR pattern, if you like.
Q. Would you accept that the position as regards South Africa's engagement process remains broadly as it was the last time we met at this tribunal?
A. Yes. I think that looking at it on a long-term basis that Zuma has a great interest, but that does not necessarily translate into all aspects of South African policy. But, as I said before, it is fitful.
Q. Moving on to the SADC, you mentioned concerns about SADC observers in your statement.
A. Yes.
Q. What is your current assessment of the likelihood that there would be SADC or AU observers?
A. By insistence it may well come. They would be invited and come. But they would only come for a limited space of time. They would not deal with issues wider than the actual conduct of an election. Quite specifically, I think Dewa Mahvinga referred to some of the meetings that they had with SADC. He said that certain items they could not deal with because it was interference with another nation's affairs, things like security sector reform, the conduct of the armed forces. These are areas that they will not go to, but these are the key areas.
Q. I think that he mentioned in his statement the requirement to confine the army to barracks during the election process.
A. Yes.
Q. Are you surprised that that was not something that was countenanced by SADC?
A. No.
Q. Do you consider it likely that there would be additional funding for observers?
A. If they can find the money, but observers were expected in Angola, so I think they quite specifically told the delegation of civil society people that they really did not have much in the coffers to mount a full-scale observation level and monitoring.
Q. What do you think the prospects are of external funding being found?
A. There may be some through UNDP, which has happened in the past. I think that western governments - you know what we call the fishmongers group of western donors are unlikely to fund and there would have to be certain conditions in place but they have not yet put any in place. They would perhaps have a proposal, but this is some way down the line.
Q. In paragraph 4 of your witness statement, you mention a number of potential tactics.
A. Yes.
Q. You believe that ZANU PF is gearing up for elections and you mention "disenfranchisement through voter roll chicanery, gerrymandering of constituencies and manipulation of polling stations".
A. Yes. (Inaudible) .
Q. Then you say "With no movement on security sector governance, there are concerns that retrenched soldiers are still on the payroll, busy organising structures of violence. Legislation to establish a Human Rights Commission passed through Parliament but its provisions on impunity for abuses until recently attracted much civil society criticism. A census process has begun ..." Then there are lines that we looked at earlier.
A. Yes.
Q. In terms of the potential of tools available to ZANU PF, what do you consider the risks would be if violence were resorted to?
A. ZANU PF has always used tactics of violence sometimes being used, sometimes being threatened, always being implicit.
Q. What do you think the prospects would be of an election resembling 2008 being recognised by SADC?
A. I think that that would be quite difficult, so the tactics might be lower scale violence, intimidation, and remember what happened in 2008 when SADC recognised the election repeated very frequently, especially in the rural areas, especially in those areas that historically ZANU PF like Mashonaland and Manicaland, Operation.
Q. Looking at the position in Harare, do you accept that the international spotlight would be on Harare to an extent that it would not be, for example, in Mazvingo or in rural Maniciland?
A. Yes.
Q. What impact do you consider that that would have on any considerations of the likelihood of violence?
A. It would not necessarily affect it, but, again, ZANU PF have to think of the best ways of getting that vote to their side and that will not just something that happens over the days of elections, it will be a longer term process. Elections are not stolen in a few days, they are stolen in six months.
Q. What impact, if any, do you consider it will have on ZANU PF's choice of tactics that support in Harare is broadly MDC?
A. It has changed, because at one time they decided more or less, I think, that they were not going to win in major urban centres and there obviously has been this attempt to reach out to the cities through a number of different tactics, like people withdrawing city constituencies, so they have large pieces of commercial farms, peri-urban areas, settlers that are forced to support ZANU PF or do support them, anyway, so there has been, both formally and informally, and this is something that Joanne McGregor's report, which when it is published you will be able to see, looks at quite substantially, the use of both formal and informal state mechanisms to recapture the cities for ZANU PF. How successful that will be is another matter. Chipangano is just merely one aspect of reasserting control in the cities and urban area. JUDGE LANE: Have constituency boundaries been redrawn so that the new elections when they come next year will be fought on those new boundaries?
A. Not yet. This is previous.
JUDGE LANE: I am sorry, I did not quite hear that. They have already redrawn the boundaries, so the 2008 elections were fought on the sort of redrawn boundaries that you have just described.
A. Yes, that is right.
THE PRESIDENT: So that is not a change since 2008?
A. No, but it is a previous tactic no change but a tactic they will try to use again [SSHD unable to confirm], no doubt, if they can.
JUDGE LANE: But from what we all know not very successfully in 2008.
A. No, indeed, but they are of course aware that that was not very successful.
MR THOMANN: What would the role of the electoral commission be if there were suggestions that boundaries would need to be redrawn?
A. They would, in theory, at least be expected to be the body that would draw up those constituencies and there will be the expectation, no doubt, that the census would be useful for that, but this is looking like a longer term process than one related to the 2013 election.
Q. The last thing you deal with is the humanitarian position in Zimbabwe. You mentioned particularly food shortages in your statement.
A. Yes.
Q. Are you familiar with the World Food Programme"?
A. I may well have done. I do not work at all in the humanitarian sector, so ...
Q. Your area of expertise is not dealing with the humanitarian position. Are you more interested in political development?
A. I am more a human rights ... my institution .
Q. You may or may not have seen C.O.I.S information on the World Food Programme. Are you aware of any World Food Programme initiatives?
A. No, I am not.
MR THOMANN: Thank you, that is all.
THE PRESIDENT: Thank you very much. It is ten to, Mr Henderson. Do you know roughly how long you might be?
MR HENDERSON: Maybe about 15 minutes.
THE PRESIDENT: Shall we go to five-past and see what happens?
A. I would prefer to do that.
THE PRESIDENT: I think that we would prefer to facilitate that, if you are comfortable at the moment?
A. Yes.
Q. You have been giving evidence since 11 o'clock, you do not need a break?
A. No, I am fine.
MR HENDERSON: Have you got the short bundle with your report in it?
A. Yes.
Q. You were taken to a number of the ZPP monthly reports.
A. Yes.
Q. I had already taken you to the witness statement from them this morning, but if I could just turn to a statement that I had not taken you to and that is the statement of Tony Reeler.
A. Yes.
Q. That starts at page 15 of the bundle.
A. Yes.
Q. Can identify a couple of points in particular and get your view on them? Firstly, paragraph 29, on page 22, one of the most significant recent developments has been an appreciable rise in ZANU PF militia activity in urban areas and over the last nine months, for example ...
THE PRESIDENT: I am sure he can read it. This is arising from cross-examination, is it?
MR HENDERSON: Yes.
THE PRESIDENT: Let's have the question.
MR HENDERSON: Do you agree or disagree with that?
A. Yes, I do.
Q. And just moving back he deals ... well, at paragraph 24 he refers to the peak rise in both rural and urban areas, etc. Then from paragraph 25 he explains the basis and the role of the ZPP monthly reports.
A. Yes.
Q. And indicates that they do not give a true reflection of what is going on on the ground, especially in urban areas. Then he goes on to explain that they do not seek to collate human rights violations like the old Human Rights Forum reports.
A. Yes.
Q. They tend to monitor political process.
THE PRESIDENT: It is a lot of preamble, Mr Henderson, can you get your question out?
MR HENDERSON: What I want to ask the witness about - and I am summarising rather than reading it ...
THE PRESIDENT: Well, I think that this is a slightly odd way of re-examining and ...
MR HENDERSON: It arises out of Mr Thomann's cross-examination.
THE PRESIDENT: It is a slightly odd technique you are adopting, but ask your question.
MR HENDERSON: Are you familiar with what Mr Reeler says about the ZPP reports, if I could look at the conclusion ...
THE PRESIDENT: You can ask that question. Are you familiar with what Mr Reeler says about the ZPP reports?
A. Yes.
THE PRESIDENT: So he is, so you do not need to read it out.
MR HENDERSON: And do you agree with his analysis and his conclusion and, in particular, at the end of paragraph 28 that these are examples rather than a national picture?
A. Yes, I think Jestina Mukoko, who is the director of ZPP, would probably accept this herself, that it is an incomplete picture, based on their particular factors of verification and reporting of their monitors.
Q. And she indicated that that should be a rise in violence ...
THE PRESIDENT: Mr Henderson, focus on the questions, please.
MR HENDERSON: Can you just go back to page 17 of the Home Office's very small bundle? It is a clip of press cuttings.
THE PRESIDENT: Page 18?
MR HENDERSON: Page 17, but the report begins at page 16.
THE PRESIDENT: "Generals had no support".
MR HENDERSON: This is, as you said, reporting the views of the Secretary of Defence for the MDC, who was saying that the army chiefs' statements were designed to unsettle ... It is the last paragraph on the first page.
A. Yes.
Q. You gave evidence that there were a range of political views, no doubt, in the army. You were not taken to the last two paragraphs of the report. Could you just read those, the bottom two paragraphs on page 18 and tell me whether you agree with those?
A. (Pause) Yes, that was more or less my analysis.
Q. You said that there is a vast amount of commentary and different people suggesting different things. Are you aware of any commentator who you would regard as serious who would say that one can expect some lower ranks of the army to revolt if they are required to play a role again in the election violence?
A. Not in what I have read.
Q. The Electoral Bill, juts to confirm, it is currently before Mugabe.
A. Awaiting signing.
Q. It has not been signed?
A. It has not been signed. It should be signed within two weeks of receiving it.
Q. Do you know when he received it?
A. I do not know the precise date. I think the two weeks have gone.
Q. Finally, we have seen the reports that civil society are now to be let in to the stakeholders' conference.
A. Yes.
Q. Would you just turn to page 16 of part C , the bundle with your report? This is Mr Reeler's statement dated 25th September. He says at paragraph 6 that the next stage of the COPAC process currently is a very confused situation. Information that we have just received suggests that this could be held next month but completely in-house with all representatives of civil society excluded. The exclusion of civil society representatives was also a recent development.
A. Yes.
Q. Would you agree with Mr Reeler that it is a very confused situation?
A. Yes.
Q. My final question, would you just turn over the page to paragraph 9, and read paragraph 9 and tell me whether or not you agree with that?
A. It is certainly true that a large part of the civil society have seen it as a compromise document but it is a further document basis of a people driven Constitution.
Q. And just to clarify, that was the compromise document originally drawn up in the inter-parte negotiations in COPAC, so there are not any further compromises that were made as a result of the demands that ZANU PF have recently made?
A. No.
MR HENDERSON: I have nothing further, sir.
THE PRESIDENT: Thank you.
JUDGE LANE: The first question is just a small question that arises from something in Mr Reeler's reports. Paragraph 24 is talking about groups that operate in urban areas. Chipangano we have heard a lot about that. Just to clarify, Al-Shabab in the Midlands, that has a resonance which ...
A. It is an interestingly provocative name. They changed that from (inaudible) .
Q. Do you know anything about that group?
A. Well, Chipangano was always affixed with the word shadowy then Al-Shabab even more so.
Q. But you would not take it to be Al-Shabab in the sense as its name is understood in Somalia?
A. No.
Q. My other question was concerning the position of the Generals and you were telling us earlier by reference to a number of articles, including the one "The security chiefs panic", that the Generals were testing the waters as to what might be the position if ZANU PF did not win the election, in which case they would no doubt be looking to safeguard their positions in a new state of affairs. In so far as Generals are doing that, and I accept the position is (inaudible), but in so far as they are doing that, would that not point towards there being a reluctance on their part to engage in electoral violence to drive a ZANU PF victory on the basis that, if it failed, they would be in a very difficult position vis-ΰ-vis seeking before the international community to be exculpated from their prior misdeeds?
A. It is certainly a reasonable reading. I would not take it any further than to say that this is in a sense testing the water, if their preferred tactic fails, if the strategy, rather, of being prepared to use violence does not work, and I cannot see why that would not work, because ...
Q. You have got to be sure that it is going to work, have you not? You have to be sure that your violence or that ZANU PF is going to deliver a ZANU PF victory. If you try it and it does not work, then you are left with a difficult position personally, are you not?
A. That is undoubtedly true. What happened, when they did not use violence in 2008, in the first round of voting, was that it was not successful, so the second round was accompanied by mass violence, so I would think that the lesson they would draw from that - or I am very sure they would draw from that - is that violence works.
Q. But you also told us earlier that you think they would be lower key this time because, if they had an election as violent as 2008 in 2013 that would not play at all well with the region.
A. It is a complex situation. They used violence and it won the election, but the violence was so extreme that the region won't accept it. They have to make a calculation on what kind of violence, what kind of softening up of the electorate, what kind of intimidation will work before this next election. It seems that the structures are there ready to be used but how they will be used and in what areas and what form that will take is as yet uncertain.
THE PRESIDENT: I have recorded your evidence previously this morning that it is unlikely that it will be the same form of violence and the same intensity of violence.
A. Sure.
Q. There may be intimidation and there may be other tactics used but not a mere repeat of what happened in the re-run elections of 2008, the second round.
A. Yes, I think that you will probably see a fair bit of rounding up of villagers to attend what we call all-night vigils/purges to declare allegiance to ZANU PF, tightening up the judicial chiefs' control over the population, selected use of violence. These will be tactics used both in the rural areas and in urban areas, as I have already described.
THE PRESIDENT: Thank you very much.
MR HENDERSON: Could I ask a question arising out of that?
THE PRESIDENT: What is it? What is the question and I will tell you whether you can ask it or not? What is the question?
MR HENDERSON: It is a question arising out of the ...
THE PRESIDENT: Yes, but what is the question?
MR HENDERSON: I want to ask the witness about the gist that we were given yesterday on a point that is relevant to the questions that the tribunal just asked.
THE PRESIDENT: It does not sound like it arises out of that. Well, one more.
MR HENDERSON: You have just indicated that ZANU PF would prefer to use intimidation and lower level of violence so they do not have to then deal with as much criticism from the international community. A gist we were given yesterday indicated that ZANU PF would use just enough violence, as much as violence as they needed to, to win the elections but not more. Would you agree or disagree with that?
A. I think there are elements of control and elements of lack of control. What happened in 2008 was both formal and informal violence unleashed. ZANU PF can control the formal violence from the state rather better than the militia. The militia is ill-disciplined, they tend to be on drink or drugs. They can take place fairly quickly. The danger is always that, while they have a strategy of violence or controlled violence, it may boil up and you may get quite irrational violence, if you want to put it that way.
THE PRESIDENT: Right. Thank you very much. You are free to go now.
THE PRESIDENT: That is your statement?
A. It is.
Q. You are happy with it, are you?
A. I am, yes.
Q. And you can adopt it?
A. Yes.
Q. No one wants to ask you any questions apart from the question that I am about to ask you. I am going to ask you this question. If you think that in answering it you may need to reflect upon it, take a pause and do not just rush at it, OK. As you know, we in the tribunal have been engaged for some weeks in the process of some further information, originally ordered I think by the Court of Appeal, and one of the documents that the appellant has received I think yesterday evening is the document that is now before you. In its full context it was a document that I think under tab 148. I want to ask you, that is, we are told, an FCO paper by which do we understand to mean that that was a paper that the FCO produced for its own purposes and is it based by an official at the FCO on information currently available to him or her?
A. Yes, it was an analysis paper produced for internal use by the FCO by an official on the basis of information that they had gained at that time.
Q. I recall - we have not got the confidential version of that paper - it is March 2011.
A. Yes.
Q. Is it the first part of March or ...
A. To my recollection, it was early March, but I cannot recall without seeing the original.
MR THOMANN: I am told that it is likely to have been before 11th because that was the disclosure ...
THE PRESIDENT: Before yes, I think that it is 4th March 2011. Thank you very much. You may go.
THE PRESIDENT: It is important that you speak slowly and clearly, please, so we can hear you. It is important that we do. We start from the position that you have made, I think, two witness statements quite recently for this appeal.
A. Yes.
Q. You have seen those witness statements, have you?
A. I have seen them.
Q. You are happy with them. They represent what you want to tell us?
A. I am quite happy.
Q. Very good. It is likely that what will happen next is that you will be asked questions from the gentleman on my left.
MR HENDERSON: You say in the statement that you just made today and the final paragraph that you would not want to attend those ZANU PF meetings as you do not support ZANU PF. Would you actually attend them?
A. I would because if I do not I will fear that I would be victimised at any time if I don't, so attending does not mean that I am attending wholeheartedly, it is just for fear for my life.
MR HENDERSON: I have nothing further, sir.
THE PRESIDENT: Thank you.
MR THOMANN: You say at present your house in Hatfield still remains unoccupied is that right?
A. It is correct, yes.
Q. And you say that it is located in [name of road]?
A. Yes.
Q. And you may have heard if you were here yesterday that there was a debate as to the difference between the low and medium and high density suburbs. Do you recall that you initially described Hatfield as a low density suburb?
A. Originally, but that was an error. It is a medium density.
Q. Can you explain why you made that error?
A. Well, I think at the time I was under a bit of stress and I was just answering everything very quickly and I do not know whether it was or not whatever I was saying at that time, but I realised it was an error.
Q. Was part of the error that the residential area around [name of road], in fact, has the character of a low density area; the buildings are spaced out? Was part of the error that the area is actually low density that you live in?
A. It was an error when I said it was low density. It is medium density.
THE PRESIDENT: And that includes [name of road] itself?
A. Yes.
Q. That is also medium density?
A. Yes, it is medium density.
Q. I should say - and you ought to be aware - that with the wonders of modern technology that we have had a quick look at Hatfield on Google satellite in order to try to get a sense of the location. When I briefly did it, I did not see [name of road] come up. Is it near any main thoroughfares [name of road]?
A. Near main what, sorry?
Q. Is it near any particular main through road through the Hatfield area?
A. No, it is not.
THE PRESIDENT: I see.
MR THOMANN: How would you describe the house?
A. It is a three-bedroomed house, lounge and dining, bathroom and toilet.
Q. Does it have a garden around it?
A. A small garden, yes.
Q. And are those the types of houses that are on [name of road]
A. Yes, those are the type of houses.
Q. What would you describe as the difference between that sort of area and a township like Mbare?
A. Like?
Q. One of the townships.
A. OK. In a township, you have a dining room and a kitchen and probably two bedrooms and the toilets sometimes they are not inside, they are outside.
Q. You have attached to your witness statement a report. It is page 41 of the bundle of your specific evidence. Mr CM, is that an article you have seen before?
A. I know that it was with my statement.
Q. Have you had the chance to read it before?
A. I have not had chance.
Q. Would you like a chance now to have a look at it?
A. (Pause) I have seen this before.
Q. If you turn the page, page 42, in context, the article refers to someone involved in illegal settlements and the quote that I am interested in is in the second paragraph down starting "Obviously".
A. Yes.
Q. It says there, "Obviously, they ... airport and the nearby medium density suburb of Hatfield". I think that the article has been provided in support of your case that Hatfield is a medium rather than a low density suburb, is that right?
A. That is correct.
Q. Would you accept that read in context that quote indicates that it is a desirable place to live?
A. I am not understanding you.
Q. Do you accept that a reading of this quotation is that persons are to be envied if they live in or near Hatfield?
A. They live near Hatfield.
Q. Do you accept that ...
A. They are near Hatfield, yes.
Q. Do you accept that Hatfield is a desirable place to live in the Harare context?
A. It is.
Q. Can you explain why?
A. Because the houses that are there already are desirable places to be, but the shanty places where they are building now it is not desirable.
Q. Now, you have mentioned that you were interested in relocating to Karoi near Kariba, is that right?
A. Yes.
Q. And is it right that that is Mashonaland West?
A. Yes, it is.
Q. Can you confirm why you would be interested to locate there given the answer that you gave to Mr Henderson a moment ago?
A. I would not want to go back to Hatfield because of fear, because these people are exactly the same people who are the ZANU PF people, so, if I go there, I know quite a lot of these people, you know, these are people who will be looking for me.
Q. You remember that in your previous appeals you were not believed as regards people looking for you in Hatfield.
A. In the previous ...
Q. In the previous stages of this case, do you remember that you were not believed as regards people looking for you in Hatfield?
A. They have always been.
Q. Do you have any new information on that?
A. Not at the moment, but they have always been looking for me ever since I left.
Q. That particular factor apart, there is no reason for you not to live in Hatfield?
A. There is a reason for me not to live there.
Q. Is the only reason that you have that people are looking for you?
A. Yes - for fear of my life.
Q. In terms of the work that you have done in the past, you have given evidence previously that you worked as a business manager for [S] Finance.
A. That is when I was still working.
Q. And you said that you worked after that with your son, D
A. Yes, which never took off very well. It collapsed.
Q. When you say that it never took off very well ...
A. It did not do very well. We started and it never went too far.
Q. What sort of work was it?
A. It was like we were supplying, you know, consumables and furniture. It did not go too far.
Q. Why do you say it did not go too far?
A. Because we didn't do very well.
Q. Do you recall that previously you were not believed as regards your business being attacked in the previous stages of this appeal?
A. Previously?
Q. Do you recall that in previous stages of this appeal you were not believed on that aspect, your business being attacked?
A. It was.
Q. Do you have any new evidence on that?
A. Not new, but the old.
Q. When you say "old evidence", do you have anything apart from your own oral evidence?
A. What I am trying to say is that when it was attacked it never went very far and nothing happened from that time.
Q. Is there any reason why you would not be able to start another business idea with your son, D?
A. D is in Masvingo now and starting any business would need money and I have not any money at all and with the economy in the country now I do not think that it would work out.
Q. When you say that D is in Masvingo, is he working in Masvingo?
A. No, he is not. He is looking for a job there.
Q. If you were back in Hatfield, would there be any reason why D could not join you back at the family home?
A. Well, he has got his own wife and child, so he would not join me at all. He is not working, I am not working, so it is impossible.
Q. You have described all your children as MDC supporters.
A. Yes, I do.
Q. Are you aware of D having had any difficulties as a result of that?
A. Well, when in Masvingo right now he has not had any difficulties, but when he was in Harare he used to.
Q. What sort of difficulties do you mean?
A. Because he was reluctant to go the ZANU PF meetings because he was an MDC supporter.
Q. That is not something that you have mentioned in any of your witness statements, is it?
A. I am sorry.
Q. You have not mentioned that in your witness statements, have you?
A. I am not too sure if it is there. I don't think that it is there.
Q. I will be corrected if it is there. Can you explain why you have not mentioned that in your witness statements?
A. I think that I overlooked it.
Q. You knew, did you not, that an essential part of your case was going to be that you were going to be at risk in Harare, so would it not be something that you would mention if your son had had difficulties in Harare? Why have you not mentioned that beforehand?
A. I said I overlooked, I think.
Q. Is not the answer that you are now trying to support your case with things that did not actually happen?
A. No.
Q. You have another child in the UK, is that right?
A. Yes, I have, S.
Q. How old is S?
A. How old?
Q. Yes.
A. He is 23.
Q. 23. Can you tell us where he lives?
A. He is in Oxford.
Q. In Oxford. And what is he doing?
A. Nothing.
THE PRESIDENT: Does he have a right to live here or ...
A. No.
Q. So he has an uncertain status?
A. Yes. He has not got the right to live here.
Q. Has he had a negative decision about his future stay or ...
A. Negative, yes.
MR THOMANN: If he were to return with you, is there any reason why he could not live with you in Harare?
A. That house is not habitable at the present time, because it is dilapidated.
Q. You mentioned it having a leaking roof at the moment.
A. Yes, the tiles have been removed.
Q. Now, if that were repaired, would there be any reason for you not to return?
A. I do not see it being repaired because there is no money to repair the roof. It costs a lot of money.
Q. Now, one economic activity that you mentioned you were engaged in before you left Zimbabwe was looking for properties for your aunt. Is your aunt still in Harare?
A. No, she is here.
Q. She is in the UK. And what is she doing?
A. She is doing care work.
THE PRESIDENT: She has a visa for that?
A. Yes, she has.
MR THOMANN: And you mentioned previously that she supported you in Harare.
A. Originally, yes.
Q. Is there any reason why she could not support you now if you went back to Harare?
A. Are you talking about my auntie?
Q. Yes.
A. No, my auntie is here.
Q. Yes, is there any reason that she could not send remittances over to you in Harare?
A. She did not support me when I was in Harare.
Q. You mentioned that you looked for some properties for her?
A. Yes, because they intended to buy a house in Harare which they did not buy. That was before I left. When they said can you look around to see if there are houses of a reasonable price, because they intended to buy a house but they did not buy a house.
Q. Is there any reason why she could not tide you over with some funds when you return to Harare?
A. Well, I do not think that she has any money, enough money to look after me while I am there, even at that time she was not earning enough money.
Q. Presumably, she is on a careworker's salary at the moment.
A. Yes.
Q. And have you asked her whether money would be available?
A. Whether?
Q. Have you asked her whether she could support you?
A. No, she could not. She said so.
Q. Have you asked her?
A. Yes, I did. I did talk to her some other time but she said she could not.
Q. When you asked for support previously, what sort of support was it?
A. Support from?
Q. You have mentioned that you have asked your aunt for financial support. When did you ask your aunt for financial support?
A. I cannot remember. I cannot remember that.
THE PRESIDENT: You cannot remember asking her or you cannot remember when you asked her?
A. I cannot remember asking her.
MR THOMANN: For all we know she would be willing to support you.
A. Sorry.
Q. Is it not right that you do not know whether she would be able to support you or not?
A. She would not be able to support me.
THE PRESIDENT: Why do you say that?
A. Because in care work she is not earning enough money to do so.
Q. That is your judgment, is it? It is your judgment that she would not be able to support you?
A. It is my judgment, yes.
MR THOMANN: May I suggest to you now then that there would be enough money from her to make a real difference to your start in Harare - do you accept that?
A. I do.
Q. You mentioned activity in Reading in the context of an MDC branch and previously you have provided us with minutes of meetings. Those minutes, you may recall, did not record any activity or contributions by you to those meetings. You have not provided us with any additional ones, is that right - any further minutes.
A. No further minutes have been provided.
Q. Do you accept that the minutes that you provided previously reflect your attendance but lack of contributions to those minutes?
A. I do not know why you say lack of my contributions, I am not ...
Q. Well, on the minutes you provided previously, there are not any contributions from you to the meeting that have been recorded?
MR HENDERSON: I am not sure that he understands.
MR THOMANN: The minutes that we looked at previously did not show you as saying anything at those meetings which the minute taker recorded.
A. Yes, I do agree on that, I did not contribute, it did not show me contributing saying something, but ...
Q. Do you accept that that is because you do not tend to say very much at those meetings?
A. I did not say much.
Q. You say that you would be of interest to the CIO in Harare when you returned.
A. Yes.
Q. Do you accept that if the CIO were aware of the minutes of your meetings in Reading that they would not find anything there that you have contributed?
A. Yes, but the fact that I am a member of the MDC and, you know, we contribute funds to support our party at home, that would matter to them.
MR HENDERSON: I have just been given, I think, by your legal representative a photograph. Is that right?
MR HENDERSON: There are copies for the tribunal as well. W83 was going to refer to this. It is a printout from the MDC website.
THE PRESIDENT: This is a bit ... Anyway.
MR HENDERSON: It is evidence that W83 was going to give.
THE PRESIDENT: Well, for God's sake it should be before us before this stage is reached in the proceedings.
MR THOMANN: Have you got a copy of that photograph?
A. Not now. (Handed) I have got it.
Q. Do you recognise yourself?
A. Yes, I do.
Q. Are you the gentleman on the far right?
A. Yes, I am.
Q. Do you accept that all that shows is that you attended a function in April 2011?
A. I do agree.
MR THOMANN: Those are all my questions.
THE PRESIDENT: Mr Henderson.
MR HENDERSON: Just in relation to your aunt, you said that she was a low-paid care worker. You obviously have some familiarity with how much she earns as a care worker if she said that she was low paid. But on your understanding would she have enough money to repair your home in Harare?
A. No, she would not.
Q. Mr Thomann asked whether she might be able to tide you over. I am not sure whether it is tied you over until what, but just to clarify in your statement you say that as a 60-year old man, you would not be able to compete for work. Do you think that that situation would improve with time or not?
A. It would never improve at all.
Q. And, apart from the problems in actually living in your home in its dilapidated state, if you were to go back there now, would you be able to find the basics of life, like sort of having food to eat?
A. It would be very, very difficult for me to find that.
MR HENDERSON: That is it.
JUDGE LANE: How old is your aunt?
A. She is nearly 60. About 57, nearly 60.
Q. She is younger than you?
A. She should be, I think so.
THE PRESIDENT: Thank you. There are no further questions from us. That completes your evidence.
MR HENDERSON: Could you confirm your name, please?
A. My name is [W83].
Q. And your current position?
A. I am [representative] of MDC UK and Ireland.
Q. And, if you could speak reasonably slowly, so that everyone can make a note of what you are saying ... You have made a witness statement in this case. Can I ask you to confirm that that is your signature and you signed that statement yesterday and you are familiar with the contents?
A. Yes.
Q. And is what you said there true?
A. Yes.
Q. You have drawn attention to a photograph ... is this a printout from
your organisation the MDC UK and Ireland website?
A. Yes, it is.
Q. Is that an official website?
A. Yes, it is.
Q. And why did you draw attention to that picture in this case?
A. It was to show that CM actually travelled to Leeds. It was the day that I was elected as [ ] of MDC UK and Ireland. I also know that the people that are in the photograph are members of Reading.
Q. I want to ask you about one further point. You refer in your statement to the political temperature arising in paragraphs 17 and 20, with the anticipated elections. Do you have any recent example of that rising temperature?
A. There are many examples. On 29th September, some MDC representatives were going to the 13th anniversary of the MDC in Bulawayo.
Q. I am sorry, I do not mean to interrupt you, but you have actually mentioned that in your witness statement. Is there anything more recent that you would like to say?
A. The Minister of Finance Offices were barricaded by ZANU PF war veterans. The ZANU PF war veterans were demanding an increase in their pensions. They were also saying that he is responsible for not supporting the land issue. They specifically said that the Minister of Finance has not provided funding for them to have inputs.
Q. To have?
A. To have inputs for funding purposes. The story is actually widely reported in the Herald, today's Herald.
Q. What is the name of the Finance Minister?
A. He is Tendai Biti.
Q. He is MDC?
A. Yes, he is also the Secretary General of MDC.
Q. And that is just in the last 24 hours.
A. Yes.
Q. These elections are required now by Zimbabwe law to be called in June.
THE PRESIDENT: Where are we travelling, Mr Henderson? He is not your country guidance witness, is he?
MR HENDERSON: No, sir.
THE PRESIDENT: There might be a more ...
MR HENDERSON: I do not think that this is controversial.
THE PRESIDENT: You never know until it comes out, do you, and then I should have stopped you a long time before?
MR HENDERSON: The Home Office have put in press reports about your organisation, the MDC, opposing the elections being brought forward from when they were required to be held in June next year, so opposing earlier elections without reforms. Why have the MDC opposed the elections being brought forward, earlier elections?
A. The MDC's view is that there are not sufficient reforms, particularly in the security sector, but for practical purposes the MDC is actually ready for the elections. I mean, the latest slogan for MDC is the MDC (unintelligible) for real transformation and it is actually a campaign slogan towards the elections.
Q. It has been suggested that when the elections must be called in June the MDC might have pulled out if there was violence and not contest them. Is that right?
A. That is not what is happening on the ground, because there are different political strategies, but in terms of actually the MDC are getting ready for those elections. As the General Assembly, we have already started funding Members of Parliament in the constituencies. The branches themselves ... Reading is also twinned to Mashonda(?) East. They are actually mobilising resources for the funding of those elections in Zimbabwe.
MR HENDERSON: Those are all my questions.
MR THOMANN: I have just one question for you. That relates to your paragraph 20 of your statement. What I am interested in is your opinion that there is a current likelihood that someone being returned would be stopped and asked what they were doing in the UK and whether they have any connection with the MDC. You say that that is your opinion. Do you have any evidence to support that?
A. Well, I do not have any evidence to support that but it is based on contact that I have and I (unintelligible) and I also know very well how government works (unintelligible)
MR THOMANN: Thank you. I have no further questions.
THE PRESIDENT: Thank you.
Note 1 The respondent has clarified that some of the documents discovered in the course of the unlawful detention litigation were copied to officers of UKBA (although she says there was no suggestion that her case workers or legal team had possession or sight of the subsequently disclosed FCO materials at the time of the decision to refuse asylum or resist this appeal). [Back] Note 2 2)Dealing with a case fairly and justly includes
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Upper Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
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