Upper Tribunal (Immigration and Asylum Chamber)

Appellant COM

Appellant CLM

Appellant JG

C.  ZIMBABWE COUNTRY GUIDANCE CASES

Country guidance before RN

“…that in the circumstances it is right to give country guidance in this case, not just because of the passage of time since HS but also because the events of 2008 demand an authoritative assessment from the Tribunal in the form of country guidance.  We do not purport to be able to predict the future and it may well be that events in Zimbabwe change swiftly and fundamentally.  All we can do is to assess the information on the basis of the evidence before us and give country guidance pursuant to Practice Direction 18 and section 107(3) of the Nationality, Immigration and Asylum Act 2002, which makes that guidance authoritative, to the extent that subsequent appeals depend upon the same or similar evidence as that before us.”  (paragraph 33).

“…anything which might draw attention to an individual, suggesting they are an MDC sympathiser or unsympathetic to ZANU-PF, could mark them for special treatment in the present climate” (paragraph 79).

“215. What is clear…is that it has been established by overwhelming evidence that in deploying these militias the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement designed to ensure that there remains of the MDC nothing capable of mounting a challenge to the continued authority of the ruling party.

216. This campaign has been rolled out across the country not by disciplined state forces but by the loose collection of undisciplined militias who have delivered a quite astonishingly brutal wave of violence to whole communities thought to bear a responsibility for the ‘wrong’ outcome of the March 2008 poll.  It is precisely because of that that any attempt to target specifically those who have chosen to involve themselves with the MDC has been abandoned.  In our view there can be no doubt at all from the evidence now before the Tribunal that those at risk are not simply those who are seen to be supporters of the MDC but anyone who cannot demonstrate positive support for ZANU-PF or alignment with the regime.

217. We are reinforced in our conclusion by the reports that even some ZANU-PF supporters have suffered beatings when confronted by the militias and when they have been unable to demonstrate their loyalty.

218. The evidence demonstrates also, in our view clearly and without ambiguity, that the aim of the violence was not limited to delivering for Mr Mugabe victory in the run-off vote, but to ensure that the MDC support base was sufficiently dismantled as to ensure that it ceased to exist in any 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.

219. We are satisfied also that the militias have established no go areas and roadblocks to ensure that abuses that continue in rural areas where the MDC has made inroads into the ZANU-PF vote go unreported wherever possible 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 its potential supporters of the MDC.

…

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.

…

225. …a person who is unable to demonstrate that he is a member or supporter of ZANU-PF or otherwise loyal to or associated with the regime when asked to do so by any of the various groups deployed across the country by the Zimbabwean regime to maintain its authority and hold on power will be at real risk of being subjected to ill-treatment amounting to persecution and serious harm such as to infringe Article 3 of the ECHR.

226. That risk arises throughout the country, in both urban and rural areas.  A person may be faced with a need to demonstrate such loyalty to the ruling party in varying circumstances.  The youth militias, “war veterans” and other groups put together under the direction of the state authorities have established camps or bases throughout the country from which they operate.  Although the evidence suggests that some of those camps or bases have closed down after the run-off vote in July of this year it is plain that many remain and that they are to be found throughout the country in both rural and urban areas.  Ordinary Zimbabwean citizens may encounter these groups at roadblocks set up to establish no go areas or simply when at home as militias move into areas thought to harbour MDC support.”

“228. People living in high density urban areas will face the same risk from marauding gangs of militias or War Veterans as do those living in the rural areas, save that the latter are possibly at greater risk if their area has been designated as a no go area by the militias.

229. The evidence suggests that those living in the more affluent low density urban areas or suburbs are likely to avoid such difficulties, the relative security of their homes and their personal security arrangements being sufficient to keep out speculative visits.  Many of those with the means to occupy such residences are in general likely to be associated with the regime and so not a target on the basis of doubted loyalty.  Others may enjoy such a lifestyle as a result of a more circumspect relationship with the regime falling short of actual association, but which is, nevertheless, such as to give the appearance of loyalty.”

“(1) A significant number of people are receiving treatment for HIV/AIDS in Zimbabwe, and hence a Zimbabwean returnee will not succeed in a claim for international protection on the basis of a diagnosis of HIV/AIDS unless their case crosses the threshold identified in N v United Kingdom.

(2) Though there is some evidence of discrimination in access to AIDS medication and food in Zimbabwe, it is not such as to show a real risk of such discrimination.

(3) The return to Zimbabwe of a Zimbabwean diagnosed with HIV/AIDS does not place the United Kingdom in breach of its obligations under the Disability Discrimination Act.”

“197. It was agreed prior to the hearing of these appeals that they would be concerned with risk to the appellants on return to Zimbabwe on account of their HIV/AIDS diagnoses, and it was not understood that the country guidance decision in RN would be revisited.  Nevertheless it was argued on behalf of the Secretary of State that it was appropriate to revisit RN, and reference is made in the Secretary of State’s skeleton argument and elsewhere to background evidence postdating RN in this regard.

198. The suggestion that RN should be revisited was vigorously resisted on behalf of the appellants, in light of the pre-hearing agreement, but nevertheless some evidence was put in and submissions made regarding the status of RN as country guidance and emphasising the point that RN remains in effect binding country guidance unless very clear and cogent reasons are given for departing from it.  The point is made that if the appeals had been listed as general country guidance then a good deal of evidence would have been provided on behalf of the appellants.

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.”

“12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal.  As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence.

…

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.”

D.  FACT FINDING MISSION OF AUGUST 2010

Background

The FFM report

“To this list should also be added persons that do not demonstrate ‘positive affiliation’ to ZANU-PF: this is especially important in the rural areas and during elections.”

“The violence is mostly in the form of threats claiming that violence in 2008 will be surpassed.”

“This is too much of a generalisation and underplays the complexities of political violence in the country.  I would suggest it either be taken out or developed further to indicate the many different types of political violence which are experienced.  It is definitely not just threats.”

“Movement to urban areas is possible but uncommon as economic reasons prevent people paying for accommodation.  Employment prospects will affect where people migrate to.”

“It is not uncommon as there has been an influx into urban areas, but living conditions are terrible because people cannot afford the costs of accommodation and end up sharing small rooms with many other people.”

The seven voluntary returnees

Tribunal’s summary of the information given by the returnees

E.  EVIDENCE EMANATING FROM FOREIGN AND COMMONWEALTH OFFICE

Background

Appellants’ submissions

F.  ASSESSMENT OF THE GENERAL EVIDENCE

Has there been a material change in the risk of persecution or other serious ill-treatment since RN?

Problems arising from the COPAC process

Geographic differences

Eastern Provinces

Matabeleland

Harare and Bulawayo

The economy

Internal relocation

Teachers

G.  THE SIGNIFICANCE OF FUTURE ELECTIONS

Analysis

The Issues

We are faced with three problems of assessment:-

(i) the likelihood of when and in what circumstances elections will be called;

(ii) whether such elections will be accompanied with enhanced protections against abuse by both internal electoral arrangements and robust independent external monitoring;

(iii) what contingencies we should take into account in considering whether there has been a durable change of circumstances since RN and how long such a change may endure in the future.

(i)  When will elections be called?

(ii)  Protection Against Abuse

(iii)  The Legal Assessment of Future Risk

“131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or government sources, including the US State Department.  At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of art. 3 and that, where the sources available to it describe a general situation, an applicant’s specific allegations in a particular case require corroboration by other evidence.”

“everything capable of having a bearing has to be given the weight, great or little, due to it.  What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues.  Finally, and importantly, the Convention issues from first to last are evaluative, not factual.  The facts, so far as they can be established, are signposts on the road to a conclusion on the issue; they are not themselves conclusions.  How far this process truly differs from civil or criminal litigation need not detain us now.”

“While, for reasons considered earlier, it may well be necessary to approach the Convention questions themselves in discrete order, how they are approached and evaluated should henceforward be regarded not as an assault course on which hurdles of varying heights are encountered by the asylum seeker with the decision maker acting as umpire, nor as a forum in which the improbable is magically endowed with the status of certainty, but as a unitary process of evaluation of evidential material of many kinds and qualities against the Convention’s criteria of eligibility for asylum.”

“359. Colonel Qadhafi may well regard the MOU as a favour done to the UK and could conclude at some point that Libya has done a great deal for the West in its rapprochement and that the West owed it favours in return.  If Libya did not feel that it was receiving enough for what it had done, it could take the view that the benefit was not worth full adherence to the MOU.  There remains room for misunderstandings, although the diplomatic ties and other relationships are growing closer, more trusting and open.

“We reject Mr Sales' submission that SIAC there misapplied the test. It correctly said that it was for it to assess the degree, causes and impacts of the risk and said that it was satisfied that there were real risks of the contemplated events occurring.  That was a correct statement of the test, with the nature of which SIAC was very familiar.  Moreover the statement that those were 'not unrealistic scenarios' seems to us, when read in the context of the paragraph as a whole, to mean that they were realistic scenarios.”

H.  COUNTRY GUIDANCE ON ZIMBABWE

At the point of return

(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.  RE-MAKING THE DECISIONS IN THE FOUR APPEALS

Appellant EM

Appellant COM

Appellant CLM

Appellant JG

Claim to international protection

Article 8

(i) JG has been resident in the UK for 11 years as at the date of decision and approaching 12 years now, with the exception of a short return visit to Zimbabwe in the early years.

(ii) She has three children for whom she has responsibility now aged 13, 9 and 6 the first of whom has been resident here since 2002 and the other two all of their lives.

(iii) JG’s leave to remain expired in 2001 when she could no longer fulfil the requirements to study, but by then the general security situation in Zimbabwe was deteriorating and in 2002 a moratorium on enforced returns to Zimbabwe was begun which has for one reason or another been continued until the outcome of this country guidance case, as the Secretary of State and the judiciary have responded to the sequence of developments in that country.

(iv) Whether JG could ever have substantiated a protection claim to remain or not, it is understandable that she would be unwilling to return voluntarily to a society so ravaged by violence, insecurity and an absence of sound governance as was Zimbabwe under ZANU-PF.

(v) On the evidence before us, each of her children is well integrated into the educational system of the United Kingdom and the social connections and support such participation brings.

APPENDIX A

Summary of Oral Evidence

Appellant COM

1. COM spoke to his witness statement dated 5 October 2010.  He adopted the contents of that statement in which he said that, since his last appearance at the Tribunal in 2009, he had continued to be politically active.  This was evidenced by photographs of COM at vigils as well as meeting minutes to show that he was still attending MDC meetings in the United Kingdom.  On this basis, COM considered that he was “factually an opponent of the regime” (paragraph 4).

2. Were he to be returned to Zimbabwe, COM said that he was likely to go to Highfield, Harare “which is a high density urban residential area”.  Although Highfield was an area where ZANU-PF had begun as a political party, it was also where the MDC had dominated in the elections, since the formation of that party.  ZANU-PF had been using violence to try to get back the ZANU-PF votes in preparation for a new election, which COM said was rumoured to be in 2011.

3. COM said that if returned it would be difficult for him to survive as he would have no job or money as well as no family.  He had no house in Zimbabwe and could not relocate as there was no family to support him.  Although his mother and children remained in Zimbabwe, COM could not go to live with them since he would be placing their lives at risk because of his political activities in the United Kingdom.  If he did try to relocate, he would be asked his history, activities in the UK and political opinion; and once it was discovered that he had been in the United Kingdom for so long “I will be seen as a traitor and treated as an outsider”.

4. COM considered that he would be at risk in the airport in Harare, since his pictures had been displayed on the internet and would therefore be in the public domain.  Even if he managed to get past the airport security, he would be more than likely to face ZANU-PF party members, war veterans and militias at roadblocks.  COM would be asked to produce a ZANU-PF card and sing the latest songs and slogans.  He would be unable to do this.  He would also be unable to produce a ZANU-PF card.

5. In oral evidence, COM said that he had had about 50 photographs of him put on the website.  If returned to Zimbabwe, he said he would continue with his MDC activities since it was “fundamental” that if he started something, he had to keep on going.  If asked by the CIO at the airport, COM said that he would say he had been involved with the MDC.  The CIO would, in any event, already know this.

6. In cross-examination, COM said that he had worked for an international commercial company whilst in Zimbabwe.  However, most such companies had subsequently closed.  It was put to COM that he had attended the airport in Zimbabwe frequently as an employee for a courier company, when he would have been asked questions for the CIO.  COM said, however, that he had only been asked questions about his employment.  He had not been asked about his MDC activities.

7. COM said that his mother-in-law and two children lived in a house in Highfield but he would not wish to return to that house because he did not want to put them at risk.  Asked whether Highfield was a majority MDC area, COM said that it was mixed; he would estimate 50:50.  It was put to him that in his statement he had said that Highfield was MDC dominated.  COM agreed that this was the case.  He would, nevertheless, attract attention if returned because the grassroots of the MDC were more targeted than the upper echelons.  His mother-in-law was over 60 and no longer politically active, whilst the children were minors.

8. COM agreed that there were no roadblocks within Harare but said roadblocks had been set up outside in order to stop people from entering rural areas.

Appellant JG

9. JG adopted her written statement dated 29 September 2010.  In that statement, JG attempted to clarify the position of Prince Edward School, at which she had taught.  Although many of the parents were ZANU-PF, this did not mean, according to JG, that teaching staff were also of that political persuasion.  In Zimbabwe, apart from church schools and a small number of private schools, every school was run by ZANU-PF.  Prince Edward School was more in the nature of a private school at present.  It charged fees in the region of £5,000 per term.  JG felt that many of the children at Prince Edward were pompous and spoiled.  She did not consider that her connection with the school would help her, if she were to be returned to Zimbabwe.  The other school at which she had worked, Domboramwari High School in Epworth, was one of the poorest schools in the region.  The people there were very much ZANU-PF supporters.  However, that did not mean that by having worked there, JG would be “okay”.  If challenged about her political views, it would be hard for her to persuade anyone that she did support ZANU-PF.  Her family came from an MDC supporting area in Manicaland and JG had a Manicaland accent, when speaking Shona.  This was so even though she had grown up in Harare.  It would be obvious to anyone that JG’s children had not grown up in Zimbabwe, on account of their English accents and that they could not speak Shona.

10. Although JG did not believe what ZANU-PF stands for, if she were in a “tight corner I would have to try to say I supported them, but I would feel very uncomfortable about that”.  She would feel like she was a coward and was letting down her friends and family.  Pretending to support ZANU-PF “would be like a mockery of my friends and relatives in light of all they went through.  In any event I don’t think that I would be believed if I tried to pretend I was a ZANU-PF supporter – I don’t think I would be able to deceive them in my circumstances” (paragraph 13).

11. JG said that her sister, T, was in the final stages of applying for a visa to join her sister, S, in Canada.  T was also applying for JG’s mother to accompany T to Canada “which will leave me without anyone in Zimbabwe that I can turn to if I am returned”.  There was also the risk that, once the mother had left, certain male relatives would take over the family home for themselves.  These were the paternal uncles of JG.  In a paternalistic society, such as Zimbabwe, the likelihood was that the house would be taken over by these individuals.

12. JG said that her home area of Queensdale in Harare was “kind of medium density and of moderate affluence – I would describe it as being ‘in the middle’”.  However, although not high density, Queensdale was unfortunately situated not far from Epworth “where many rowdy gangs, radicalised into politics, come from where there is trouble.  It is therefore a vulnerable location despite its reasonably affluent character.”  In Epworth, the law did not exist and there was a gang culture, which was why there were youth or military bases in Epworth, run by ZANU-PF.

13. So far as the house in Queensdale was concerned, this had been partially destroyed during Operation Murambatsvina.  JG’s family had subsequently tried to rebuild the damaged part of the home but had not had the equipment necessary to complete the job.

14. If returned, JG did not consider that she would be able to secure a place at a good school, because such places came up very rarely and would be sought by people who already had contacts in Zimbabwe.  She would be more likely to end up in a school such as the one in Epworth “because no-one else wants to work in an area like that” (paragraph 24).  JG supposed that her sister in Canada could send her remittances occasionally, but these would not be enough on which to live.

15. If JG tried to live elsewhere in Zimbabwe, she would face the difficulty that no-one, not just ZANU-PF diehards, wanted to be associated with an outsider, in case that person turned out to be the bringer of trouble.  JG could not go to her rural homeland in Zimbabwe, a place where she had hardly ever ventured, because it was one run by chiefs who were effectively employed by the ZANU-PF government.  This ancestral area was near Marange in Manicaland, described as a band of land around Inyanga/Makoni.  JG had been there no more than five times in her life, for major funerals when she was a child and so on.  She had uncles and half-uncles in this area, but they were virtual strangers to JG and were not kin to whom she could turn.  Furthermore, Marange was one of two places in Zimbabwe that ZANU-PF “really disliked, largely for reasons of tribalism”; the other one being Bulawayo (paragraph 3).  As a result, Marange received little government assistance and its infrastructure was very poor.  Its people never felt that ZANU-PF represented their interests, but the chiefs were still on the ZANU-PF payroll.

16. JG said that her lung condition also limited the kind of employment she could realistically take on.  She had a fungal growth in her lung, which could not be operated upon owing to the risk of death.  JG felt that she could nevertheless work part-time, perhaps as much as six hours on a good day.  She thought that she could return to teaching as this was “one of the few jobs I could do that is not so physical, and where I can sit down if I feel weak” (paragraph 40).

17. JG’s ex-husband had indefinite leave to remain in the United Kingdom.  He was also from Zimbabwe.  JG feared that, according to Zimbabwean customary law, the ex-husband could seek to take JG’s children off her, were she to return to Zimbabwe.  JG’s eldest son, aged 12, hardly remembered anything about Zimbabwe and her other two children have been born and brought up in the United Kingdom.  Her youngest child was in Year 1 and her middle one in Year 4.  Both were getting on well at school and would, in JG’s view, find it difficult to adapt to life in Zimbabwe.  JG had tried to teach them Shona, but abandoned this project.

18. Cross-examined, JG said that her father was professional and her mother was a matron of a home.  Her sister, S, in Canada was an accountant and had sent JG financial support.  JG also had a sister, J, living in the United Kingdom.  The plan was for JG’s mother to visit Canada only for a short period, following which she would return to Zimbabwe.  JG’s mother had been beaten in April 2010 as she had been walking home from a church meeting.  JG’s mother had not lived in the house subsequently.  JG was asked about the fact that in her statement she referred to her paternal uncles wanting the house, whereas the social worker’s report referred to JG’s half-brothers wanting it.  JG said her uncles were in the forefront of the project to recover the house.  It was possible that they were doing it on behalf of the half-brothers.

19. JG confirmed that her ex-husband did not at present have contact with her children.  However, he might want to take the children away from JG if she were in Zimbabwe.  JG denied that she had been married in the United Kingdom (cf question 65 of the interview record), asserting that she had been married in a customary manner in Zimbabwe, albeit that JG had been in the United Kingdom when this occurred.  JG was asked about the social worker’s report in which JG was described as having a fear of her husband obtaining control of the children whilst in the United Kingdom.  JG denied knowledge of this.  It was put to JG that it was improbable that her ex-husband would launch proceedings in Zimbabwe to secure control of the children.  JG said that in Zimbabwe the law placed men in a higher position, vis-à-vis women.  Her uncle had said that this is what the ex-husband would do.

20. JG was asked about inconsistencies in her evidence in relation to whether she had met the Queen whilst teaching at Prince Edward School.  JG said that she had met the Queen but had not gone to the social function connected with it.  JG had come to the United Kingdom in 1999 in order to study as a nurse, benefiting from a United Kingdom bursary.

21. JG said that, after all, she did not know if she was well enough to return to teaching.  She was referred to the letter from Dr Russell of 8 October 2010 in which he said that JG “would generally cope with life” and that her condition did not really limit her function too much.  Asked if she accepted this, JG said that she had been having a lot of bleeds and there were “good days and bad days”.  JG accepted that the doctor’s letter had been written in the context of her possible return to Zimbabwe.  JG then said that she considered that teaching was a job with which she would be able to cope.  However, job sharing did not exist in Zimbabwe.  JG accepted that there was a chronic shortage of qualified teachers in Zimbabwe, particularly in the rural areas.  She was asked whether private schools were re-establishing themselves in Harare, to which JG replied that she did not know.  JG accepted that she had taught in a “posh school” without difficulty in Zimbabwe.  JG had had no involvement with the MDC whilst in the United Kingdom.  She did, however, support the MDC “in my mind”.  If returned, JG would not want to be politically involved.

22. In answer to a question from the Tribunal, JG said that her eldest child was being assessed for Asperger’s Syndrome and that he had behavioural difficulties.  JG, if returned, would not go to Queensdale but would have to go to a high density area or to her ancestral area.

Sarah Harland (Zimbabwe Association)

23. Sarah Harland, Coordinator of the Zimbabwe Association, confirmed her written statement of 12 October 2010.  The Zimbabwe Association is a community organisation supporting the Zimbabwean Diaspora in the United Kingdom, largely concerned with asylum issues.  It has approximately 1,000 members, is run mainly by volunteers and its membership is almost entirely comprised of asylum seekers and refugees.  The Association took a close interest in the work of the Institute of Migration.  The Association’s concern was not to discourage voluntary return of those who genuinely wished to go, but to ensure that asylum seekers made informed choices.  Her statement went on to say that she believed IOM was in danger of losing its UKBA funding and that this was relevant, in considering the voluntary return programme run by IOM, and whether this could be regarded as a success.  She had attended an IOM event on 22 September 2010, involving a live video conference with returnees in Zimbabwe.  The IOM provided £500 assistance to a returnee at the airport, upon departure; whilst further support worth up to £1,000 may be provided to support the launch of a business, based on an acceptable business plan, or an acceptable plan for vocational training or job placement.  All assistance had to be spent within six months.  Family groups received a grant for each family member, which could be spent on education and accommodation but, again, a family could not have funding for more than six months of accommodation.

24. At the recent event, returnees had expressed great appreciation for the IOM and said their returns had gone well with the IOM’s help.  One returnee had used IOM funds to restart her father’s business; a second had a cousin in the United States of America who had given the returnee a farm to run in Zimbabwe; a third had started a poultry business.  Ms Harland said that the three returnees did not appear to be at all typical of ordinary Zimbabwean asylum seekers.

25. Ms Harland stated that there were significant class and social divisions in the Zimbabwean Diaspora and that, apart from those with links to the regime, there were those from families who had been well off and of high social class, whose families supported them as students in the United Kingdom for many years.  Some of these students had claimed asylum only when the family could no longer support them because of the state of the Zimbabwean economy.

26. Ms Harland said that since the end of 2008 she had come across only two Zimbabweans who had taken voluntary return.  From figures provided by Mr Walker of UKBA, it appeared that at most 215 asylum seekers had returned voluntarily in any given year.  Ms Harland accepted that the Association saw only a disproportionately small number of those asylum seekers who returned voluntarily.

27. Ms Harland referred to the fact-finding mission report.  In this, eight returnees had agreed to be interviewed although one later withdrew.  The eight “tended to be more from the more recent returnees”.  The IOM speculated that this could be because those who returned earlier had already received the entirety of their reintegration assistance and had less need for continued liaison with IOM.  She inferred from this that the returnees who had agreed to be interviewed had the expectation of receiving funds from IOM.  At the event, it was evident to Ms Harland that the IOM was seeking to encourage voluntary returns by presenting accounts from returnees who said that all had gone well.

28. Ms Harland considered the Zimbabwean community to be distrustful of the IOM, regarding the organisation as closely linked to the Home Office, not least because refusal letters advised recipients to approach the IOM for assistance for returning home.  Ms Harland regarded it as unrealistic to expect returnees to complain to the IOM in Zimbabwe about adverse treatment by local state or ZANU-PF forces.  In 2007, the IOM had provided similar “rosy comments from returnees”, which upon inspection appeared to be similar and positive “notwithstanding deteriorating country conditions” (paragraph 16).

29. Ms Harland’s statement then turned to the reference to the Zimbabwe Association in the FFM report.  The Association was quoted in that report as saying:

“The forum has not come across any cases of returnees from the UK being mistreated and would expect to know of any such cases because its member organisations are represented across the country.  It works closely with the Zimbabwe Association in London and is alerted where there are concerns a returnee might be at risk but has not come across any cases where this has happened.  They are unable to say that there have been no such cases but if there had been they would have been isolated examples.”

30. Ms Harland regarded this as misleading in that the author, W80, had told her that he had actually been asked whether he would be aware of “systematic ill-treatment” of returnees since the Government of National Unity was established.

31. Ms Harland regarded this inaccuracy in the FFM as unsurprising, since other fact-finding reports had been regularly found not to have explained fully the context of questions; and the interviewee had not been told that he or she was to be represented as stating the views of an organisation, as opposed to their own views.

32. Ms Harland considered people working for NGOs in Zimbabwe as “very busy, harassed and pressurised people, and I was not surprised that they had appeared in previous country guidance hearings to have approved Home Office notes without thinking about how the wording might be misunderstood”.  She recalled an instance from the AA(2) case where a representative had initially made a statement saying he had no recollection of approving a misleading note made by the Home Office but had been reminded by the Embassy that he had, following which he explained that he had been asked to approve it at choir practice and had “completely forgotten about it but confirmed that he should not have approved it as written”.

33. Ms Harland said that there was a “general paranoia” amongst the Zimbabwean Diaspora that information disclosed here, such as to the Zimbabwe Association, would get back to Zimbabwe.  It was also generally assumed by informed Zimbabwean opinion that ZANU-PF, the CIO and other security agencies were very effective at achieving infiltration of the Diaspora and put great effort into it.

34. The statement ended by recounting the experience of a UN Special Rapporteur who had travelled to Zimbabwe in 2009 and, despite his UN status, had been lied to by officials, told he would not be let into Zimbabwe and “kept in a small office that looked more like an interrogation room”.

35. Ms Harland was asked about paragraph 12 of Mr Walker’s supplementary statement.  Mr Walker said that the IOM was asked to identify a representative selection of returnees to whom the FFM team could speak.  Mr Walker could not assert positively that those to whom they spoke were a fully representative sample of all failed asylum seekers in the United Kingdom.  He did, however, believe that their circumstances were not particularly unusual.  In this regard, he referred to a 2009 report of The Solidarity and Peace Trust, which stated that “It is only Zimbabwe’s elite who make it to the UK”.

36. Ms Harland said that this was a common misconception in her experience.  A significant number of those who had arrived in the United Kingdom did not fall into this category.  For example, some victims of violence had been helped to leave by their employers or churches, or had found an exit via South Africa.  Many Zimbabweans worked illegally in South Africa.  From time to time there were difficulties in that country for Zimbabweans, such as the outbreaks of xenophobic violence in 2008, which caused people to leave.  There was a class divide within the UK Zimbabwean Diaspora.  The more articulate members of that group might not need the help of the Zimbabwe Association.  The Association assisted destitute people, including those who were no longer eligible for Home Office support.  Ms Harland did not know what the total number of Zimbabweans in the United Kingdom was but she felt that the Association came into contact only with a certain proportion of asylum seekers.

37. Ms Harland was asked about paragraph 13 of Mr Walker’s supplementary statement.  This referred to a survey conducted by UKBA, in which of the 1,058 applications for asylum received during the year, nearly two thirds (627) originated in the large urban areas of Harare, Bulawayo, Mutare, Gweru, Chegutu and Masvingo.  The remainder came from smaller towns or rural areas across Zimbabwe.  Mr Walker considered it significant that, despite extensive contacts in the Diaspora and Zimbabwe itself, the appellants had not provided evidence of those who had experienced ill-treatment on return or would have encountered conditions that breached Article 3.  Ms Harland said that the figures for Harare were not broken down into high density and other areas.  Most who lived in high density areas would also have a rural home area, unless they had originated in Malawi.  She said it was difficult to say whether those whom the Association helped in the United Kingdom had access to funds in Zimbabwe but the majority that were helped had been driven out and she did not consider that they had significant resources.  So far as people without qualifications were concerned, she saw a wide range of skills.  Many were vendors, whom she described as extremely ingenious but lacking in qualifications.  The most useful thing the United Kingdom could do would be to permit Zimbabweans to become useful, by letting them work.

38. She was asked about paragraph 12 of her statement, where she said that since the end of 2008 she had come across only two Zimbabwean asylum seekers who had taken voluntary return.  She acknowledged that there were possibly others with whom the Association had been involved who did not tell her that they were returning.  Most effected what she described as a “quiet return”.  This had to do with the huge fear of infiltration by ZANU-PF and CIO elements.  One of the two voluntary returnees was later murdered.  He had, however, returned to Zimbabwe from South Africa, rather than the United Kingdom.  This fear extended to the British Embassy in Zimbabwe.  There was a reluctance to go to the Embassy in Harare because one might be seen by people watching the premises; or local staff might be ZANU-PF informants.  The same fear applied to the Home Office and Zimbabwean interpreters operating in the United Kingdom.

39. So far as the IOM’s fear of not having its contract renewed was concerned, Ms Harland said that she had spoken to two sources about this.  One of them stood by what had been said to her; the other, however, had reverted to the content of the official minutes, which said that the matter was merely whether the IOM should be invited to quarterly meetings of a Diaspora focus group, until it was clear what the future of the IOM might be.  A senior IOM source, however, had confirmed that there was a fear regarding funding in the general context.

40. Ms Harland did not know what proportion of the Zimbabwean Diaspora supported the MDC.

41. Cross-examined, Ms Harland said that she saw the more disadvantaged members of the Diaspora but she did help small numbers of higher level people.  So far as IOM funding was concerned, she was reliant on her two sources.  She had also seen the minutes of the meeting, which made no reference to any disappointment being expressed regarding IOM, on the part of UKBA.  The returnee who was murdered had not ever been in the United Kingdom, so far as Ms Harland was aware.  She understood that he had been an activist.  Ms Harland had not had any dealings with the seven returnees who were interviewed in the FFM report.  She noted, however, with interest that none of these had told anyone in Zimbabwe that they had claimed asylum in the United Kingdom.  Ms Harland was asked whether, although the IOM did not have a protection mandate, it was reasonable to assume that if returnees receiving IOM assistance had encountered difficulties in re-establishing in Zimbabwe during the timescale with which IOM was concerned, this would have come to the attention of IOM.  Ms Harland said she was unsure of this.  She could not speculate.

W66

42. A country expert gave evidence.  He was identified as W66 in RN and we shall refer to him by that description.  He adopted his statement (in the form of a report) at AB“A” tab 2, page 20.  He said that his expertise and experience were summarised at annex A of the report.  He was still a director of the office of the named NGO in Zimbabwe.

43. In his report, W66 indicated that his understanding was that the respondent considered the test set out in RN, whereby it would be unsafe to return those who could not demonstrate loyalty to the regime, as being too low and that it would be safe to return anyone who did not have some kind of clear anti-ZANU-PF profile.  W66 agreed that there had been developments in Zimbabwe since around two years ago, as a consequence of the General Political Agreement.  He did not, however, believe that these developments had reduced the risk facing returnees to the extent that justified a change to the current approach.  In this regard he agreed with the reports of  W77, W78, Professor Ranger and Mr Reeler.

44. The Catholic Commission for Justice and Peace (CCJP) and Mr Reeler of the Research and Advocacy Unit (RAU) saw an increase in serious violence as being an almost inevitable consequence of Zimbabwe’s moving towards an election in 2011.  W66 agreed.  ZANU-PF had no intention of losing power and would do everything, including using extreme violence where necessary, to “win elections”.  An election in 2011 accordingly promised to be as violent as that in 2008.  The GPA had not significantly altered things to the extent that Zimbabwe could be said to have turned the corner.  ZANU-PF still held all the effective cards and was bent on using violence to keep it that way.

45. W66 turned to the respondent’s FFM report.  It seemed to the witness that the executive summary had attempted to put a positive “spin” on matters.  W66 considered a more accurate summary of the political environment would be along the following lines:-

“Although there has been some opening-up of the political space since the GPA (or formation of the GNU) this has been spasmodic and is of quite limited significance given the continued serious intimidation and violence perpetrated by the ruling party; the current government coalition has to a great extent been a failure (apart from the dollarization of the economy which in turn has given rise to other problems for the vast majority); there are grave fears that the violence will quite rapidly escalate and intensify as the expected 2011 election approaches – indeed, it has already begun to do so and key commentators see much more violence as almost inevitable given ZANU-PF’s track record and determination to stay in power at any cost.”

46. As for the argument that the executive summary was irrelevant and what was important was what the NGOs had said to the FFM team, W66 had difficulties with this also.  The effect of the FFM report in his view was to water down the most worrying aspects of the current position and the expected widespread and serious violence which was likely to come, by “submerging” the views of the most credible human rights voices within a broader range of NGOs, not all of which should be on a par with one another.  In this regard, W66 considered the analyses of CCJP and RAU to be worthy of careful consideration.  He questioned, however, whether the same could be said of the anonymous organisations and also the Bulawayo Progressive Residents Association and Radio Dialogue, which he did not consider should be given equal weight with that of CCJP and the RAU.  First, the key human rights organisations that the United Kingdom courts had looked to in the past continued to be the most valuable source of credible information and their views should be carefully considered.  Their views, together with those of Professor Ranger and W77, painted a bleaker picture than that projected by the respondent.

47. Turning to the respondent’s OGN, W66 noted this referred to selective aspects of the FFM report and he was therefore also sceptical as to how useful the OGN was.  W66 had been asked in particular to comment on the broad suggestion of the respondent, that whilst the political climate in rural areas would be clearly dangerous for those perceived to be non ZANU-PF supporters, this did not apply to the same extent to the main urban centres.  W66 regarded the OGN as fundamentally flawed in this view, in that it painted an altogether unrealistic picture of the reality of life in Zimbabwe.  To begin with, the vast majority of Zimbabweans had strong rural links and indeed referred to their rural homes as “home” which is where in the normal course of events they would seek to return if, as likely, they were returning to the country without realistic prospects of employment or a place to live.  The rural areas would be where one had family and some prospects of support; however, as it was accepted that this would be dangerous for them to do, the alternative suggestion was that they should go to the cities where the political climate was “safer”.  This, however, ignored the obvious issues that would follow; namely, how would the person concerned survive?

48. Inflation had stabilised since dollarisation and more food and other essentials were available in urban shops.  The unemployment position, however, had not improved at all.  A returnee would need to be housed, fed and supported by friends and relatives who themselves would be living a subsistence existence.  For the majority, the availability of goods in supermarkets did not mean availability for them.  Survival in urban centres for returnees was, accordingly, very problematic, irrespective of the political climate.  Shona speakers would also find it hard to relocate to Bulawayo, for language reasons.

49. In any event, W66 regarded the political climate in the urban areas as being far from stable.  Mbare in Harare and Chitungwiza, nearby, had seen and were likely to see more violence as the election approached.  The same could be said for Bulawayo and other urban centres.  Whether the violence would not be as bad as was likely to occur in rural areas was not the essential point.  More recently than the FFM report’s findings, reports in the press had indicated that the human rights situation was deteriorating.

50. W66 said that he was aware that the Secretary of State had announced the previous week the end of the suspension of enforced returns to Zimbabwe.  A mention was made by the Secretary of State of positive statements by Morgan Tsvangirai and to improvements in circumstances in Zimbabwe.  Mr Henderson asked whether W66 was aware that Mr Tsvangirai continued to make positive public statements about the improving situation.  He replied that he was not.  He was aware of positive comments made last year but not that Mr Tsvangirai had repeated them.  In the previous week, Mr Tsvangirai had made a strong statement regarding problems with the present arrangements in Zimbabwe and appeared almost to have given an ultimatum that things had gone too far. 

51. At AB“C” page 8 was a statement dated 7^th October 2010.  Mr Tsvangirai had called on the EU to refuse to accept some recent moves by President Mugabe.  Judges and ambassadors had been appointed in breach of the power sharing agreement.  W66 said that Mr Tsvangirai seemed to be saying that things were bad.  This was the latest reflection of the MDC leader’s view of the current impasse.  W66 had referred to it at the end of his statement at paragraph 20, where he had said that the statement by Mr Tsvangirai seemed likely to significantly increase political tension in Zimbabwe.  So far as a statement from the Foreign & Commonwealth Office (“FCO”) was concerned, he was not aware that enforced returns of failed asylum seekers might destabilise the government in Zimbabwe.  W66 said that he could not see how a decision on returns would destabilise the position.  Things seemed to be hotting up day-by-day.  W66 had seen a Reuters report dated 15^th October 2010 in which President Mugabe seemed to be putting pressure on the Constitutional Outreach Programme and to be preparing for elections next year.  The Reuters report appeared at RB”C” at page 282.  W66 said that the timing was significant.  President Mugabe’s reaction came about a week after the Prime Minister’s statement.  He understood this to be Mr Mugabe’s response.  The President had said that he could not see why the power sharing agreement should last more than four months.  There should then be a referendum on the constitution with elections to follow. 

52. In his report, W66 had said that the elections would be likely in 2011.  Mr Henderson asked why he had formed that view.  He replied that unless he had misread what organisations in Zimbabwe were saying, there was a feeling that elections would be sooner rather than later.  He had no “inside track” knowledge.  Another indication was the resurgence of violence recently, interpreted internally as reflecting the likelihood of an early election.  There had been a lull after the violence in 2008 and in early 2009 but things now seemed to be degenerating again.  There was an indication that ZANU-PF were girding their loins for an election.  W66 said that he believed that all this was linked to the constitutional process.  This in turn could not be separated from the electoral process. 

53. W66 said that it was difficult to say when precisely things began to degenerate.  In his report he relied upon W77’s and Professor Ranger’s analysis.  The power sharing agreement was signed in September 2008.  It was a terrible year.  The new government took power in February 2009 and there was a sense of hope and relief which lasted for several months.  It was probably from the middle or the end of 2009 that things began to emerge showing that the hope that the MDC could effectively wield power and wrest significant control from ZANU-PF was not well-founded.  The trial of Roy Bennett showed that the MDC did not have control of the process.  The impression W66 had this year was that there were serious indications of violence around the constitutional process.  A statement by a human rights lawyer (Tetito) referred to things never being as bad as they were now.  W66 said that he was speaking about the general human rights position.  The rule of law, freedom of expression and the chance of the police prosecuting law breakers were all in issue.  It was not only about people being physically assaulted.  He would not like to give the impression that people were being battered to the same extent as in 2008.  The “A Place in the Sun” report included a conclusion that things were as bad as they had ever been. 

54. W66 said that the constitutional process and outreach programme had begun.  He was really talking about the current year in terms of a deterioration.  He had not been back to Zimbabwe since mid 2009.  Representatives from civil society had reported an increase in political violence.  W80 had made a report on 18^th October 2010.  His statement appeared in AB”A”.  W66 said that in the two months since the Fact-Finding Mission Report had been published there had been more reports of violence in Zimbabwe. 

55. Mr Henderson asked whether W66 agreed that there were countervailing pressures that would restrain violence once an election was called, as the Secretary of State contended.  He replied that ZANU-PF had not changed.  Neither had President Mugabe.  The balance of forces in the country was not dissimilar to that in 2008.  Police, military and intelligence services were still controlled by ZANU-PF.  Things were not exactly the same as in 2008 and one could not predict whether they would be as bad in the future.  His opinion was that ZANU-PF would not hesitate for a second in unleashing whatever they felt was required to stay in power.  They did not care about SADC, the UN or the EU.  If there was a chance that ZANU-PF would be voted out democratically, they would fight tooth and nail to retain power. 

56. W66 said that the March 2008 elections had actually been quite peaceful.  There was a backlash when ZANU-PF lost.  They were now preparing their forces, the youth militia and the military to win the forthcoming elections in spite of having no great popularity.  The electoral process should be viewed as combined or consolidated, consisting of parliamentary and presidential elections. 

57. Mr Henderson asked about the part of the Fact-Finding Mission Report dealing with the views of organisations in Zimbabwe.  The Bulawayo agenda and the Bulawayo Progressive Residents Association responses appeared at pages 92 and 94 of the report.  How would W66 compare these organisations and their views to those of others, including Mr Reeler?  W66 replied that he would not change what he put in his report.  He had read the Fact-Finding Mission report before making his own.  He had drawn attention to ethnic tensions should Shona move to Bulawayo and to difficulties arising because of differences in language.  He said that he did not know the two organisations particularly well.  He had seen reports from them from time-to-time.  He would himself tend to look at more established human rights organisations for a helpful analysis of the position in Bulawayo.  It was not just that the two organisations were relatively new; he was not aware that they had the same research capacity as others.  So far as the reference to an influx of Shona was concerned, W66 said that he was not sure what the author of the report was saying.  If he was saying that the traditional ethnic mix had been diluted over the years, he was sure that this was true.  It was difficult to know the period of time being considered.  Although there was no legal barrier to relocation by Shona to Bulawayo, it would be difficult for a person if, as a Shona, he or she could not pass himself or herself off as Ndebele.  The obvious port of call for a Shona person was Harare and not Bulawayo.  The first port for an Ndebele person was Bulawayo.  If a Shona went to that city, he or she would be in a weaker position than a native of the city. 

58. Mr Henderson asked whether W66 was aware that there had been an influx of Shona people to Bulawayo.  He replied that he had no knowledge of that.  If someone had said that such an influx had occurred, he would not wish to dispute the claim but he would be surprised to hear it. 

59. So far as the statement of W80 was concerned, at AB”A”, tab 2, page 30, he would agree with what appeared in the statement, particularly at paragraph 8.  Here, W80, whilst accepting that Matabeleland had experienced comparatively less violence than other areas, added “No area can be regarded as safe in the run-up to the election.  A Shona person, without family support in Matabeleland, would face very serious problems in terms of ethnic differences and language and being accepted.”

60. We asked W66 to comment on the claim made by W80 that a person would face very serious problems in Bulawayo in terms of ethnic differences.  W66 replied that it depended to some extent on a person’s class.  A poor Shona person finding himself in a high density suburb of Bulawayo would find it difficult to survive.  It would be very hard to find somewhere to live or to purchase essential goods.  Even if a person were not targeted by reason of his or her ethnicity, he would be very isolated.  It would be almost like arriving in a foreign country without support.  Services had collapsed. 

61. In cross-examination, Ms Grey asked W66 to comment on the authoritativeness of the organisations consulted in the Fact-Finding Mission.  W66 said that Zimbabwe Rights was a good source of evidence.  It had been in existence since the 1980s and a was a member of the Forum.  It was a credible organisation.  Organisation A, one of the anonymous sources, was known to him and he would describe it as a very credible source.  The Research and Advocacy Unit was also a credible source.  Mr Reeler was involved with it.  GALZ was also a member of the Forum and a credible source.  A key activist had passed away in the last year and he was not aware of the current dynamics.  The Zimbabwe Association of Doctors for Human Rights was an organisation set up after W66 left the country in 2002.  It too was a member of the Forum and he knew some of the members.  He believed that it was a credible source.  They made an attempt to capture the views of health workers in Zimbabwe. 

62. So far as Zimbabwe Lawyers for Human Rights was concerned, W66 described it as a very serious organisation.  Those involved tried to build a culture of respect for human rights and to respond to abuses.  They focused on the most arduous breaches of human rights and tried to defend people brought before the courts.  So far as the Counselling Services Unit was concerned, he had great respect for the organisation in what they were trying to do.  They provided help and counselling to those who were tortured or physically assaulted.  He knew a leading doctor involved.  He believed that she was not so astute at political analysis.  They had frontline knowledge concerning the victims of abuse but analysing or drawing conclusions was something he would be less confident that they could do.  The organisation was not a member of the Forum.  He did not know the extent of the presence the organisation had outside Harare.  Organisation B (at page 81) was an international organisation.  W66 said that he did not know much about their involvement but would describe the source as credible.  Their focus was a humanitarian one.  The Forum appeared at page 88 of the bundle (at page 87 of the Fact-Finding Mission Report).  W66 said that the Forum was a coalition but had its own secretariat, lawyers and employees. He agreed with W80’s analysis.  The CCJPZ was an organisation he had huge respect for.  The leadership had changed from time-to-time.  The CCJPZ was a member of the Forum. 

63. The next two, Bulawayo Agenda and the Bulawayo Progressive Residents Association were organisations he knew little of but his impression was that they came into being recently.  The Commercial Farmers Union, at page 99 of the Fact-Finding Mission Report, was not a human rights body.  They used to be concerned with white commercial farmers.  The  membership was now probably 10% of what it was.  The farmers had been driven out.  He did not know what their current role was.  So far as Radio Dialogue was concerned, he did not know much about them but had probably read some of their reports. 

64. Ms Grey asked whether the list of bodies represented a serious effort to engage the views of NGOs and independent voices.  W66 said that he would agree but others might also have been approached.  Ms Grey asked whether other major human rights organisations had been missed out and he replied that he did not think so.  It might have been interesting to get the views of trade unions or farm workers. 

65. W66’s evidence in RN, including evidence on the scale of violence in Zimbabwe, appeared at page 16 of the determination in that case (which appeared in the authorities bundle 1, tab 1 at page 16).  Ms Grey asked how W66 would say that the picture on the ground had changed since then.  He replied that although an election appeared to be on the horizon, it had not been officially set.  The facts were very different, compared with 2008.  In his report, he had described the gist of things.  There were numerous indications that an election was coming.  Zimbabwe’s history indicated that this would be a violent event.  On the ground now, it would be wrong to suggest that things were as bad as they were in 2008.  Ms Grey asked whether he would agree that if there was violence, it was smaller in scale.  W66 said that this was so.  People would say that things might come back or even get worse.  Between the two elections in 2008, there was an attack on the population and an orgy of violence, as he had described in his statement.  Zimbabwe was not currently in the same position, yet.  He did not want to suggest that he had more knowledge than organisations on the ground but his impression was that some on the ground were concerned at what was coming.  There were worrying developments.  However, the numbers attacked were not the same. 

66. Ms Grey asked whether W66 would agree that there were differences between the regions.  He replied that he would not disagree.  The rural areas were more dangerous.  He also agreed (in answer to questions from the Tribunal) that some rural areas were more dangerous than other rural areas.  He said that he had no reason to dispute that in Matabeleland, in the western part, there was not the same level of threat.  This territory was lost to ZANU-PF.  He said that there might be other reasons for political violence there.  ZAPU was resurgent and there were the MDC factions.  People might be targeted as those perceived not to support ZANU-PF.  The risks still existed and would increase as the country moved towards elections.  A person would be at less risk if not politically active. 

67. Ms Grey asked whether there might be a distinction, in relation to a person moving to a city in Zimbabwe, between those going home to urban areas where they might have family and other links and those who might relocate to Harare from rural areas.  W66 replied that this was simplistic in the Zimbabwean context.  Even most urbanised black Zimbabweans had links to rural areas.  If someone lived in a high density suburb of Harare such as Mbare, having left the United Kingdom and returned, he or she might choose Mbare if back-up was available there.  If there was none, such a person would head for his rural home.  He might face danger there, having been absent for a substantial time.  A person with support would be in a different position from someone without. 

68. W66 said that it was reasonable to suggest that there would need to be an individual assessment of a returnee and consideration of the sources of help available in the area he would return to.  Ms Grey asked abut the difficulties that might be faced by a returnee to Harare with a professional background but no family back-up there.  W66 said in reply that people of whatever class who found themselves in a high density suburb would find it very difficult without support and things would be worse as the election approached.  If people could live in a low density suburb, they would have less of a problem. 

69. In paragraph 16 of his report, W66 focused on economic barriers to return.  He was trying to deal with the position before 2009 when there was hyperinflation.  Things had changed with dollarisation of the economy.  Some might say that things had become better but for the vast majority in the country, this was not so.  He agreed that the informal economic sector was expanding and it might be possible for someone to establish themselves there.  He had read a synopsis of the report on this sector which appeared at RB C, tab 7, page 158.  That report did not lead W66 to modify his view that returnees would be able to survive economically in urban areas.  Some might fall within the sector.  If a person were young and dynamic this would be possible.  It depended on the circumstances of the individual.  A returnee trained as a teacher, in circumstances where there was a shortage of teachers, might get employment and be paid in dollars, so as to secure accommodation.  A person with no skills and no family back-up or housing might find it difficult to break into economic self-activity to survive, without support from someone outside Zimbabwe.  In paragraphs 16 and 17 of his report, he had focused on people without support.  Those at the higher end of risk were literally living hand to mouth, day by day.  Ms Grey asked how that would put them at risk from political violence.  W66 replied that in high density suburbs, the indications were that political violence was increasing.  People might be caught up in it as the elections approached.  The MDC remained dominant in the high density suburbs in Harare but ZANU-PF had not abandoned those suburbs.  They might be active there if only to try to stop people from voting, to secure a low turnout in the polls.  A returnee vulnerable for economic reasons would be at risk at the best of times.  He would have fewer means to avoid trouble when it came.  By and large, recent violence was focused on the Constitutional Outreach Programme.  W66 would not, however, want to suggest that there was no other violence but this was a focus. 

70. So far as a distinction between Bulawayo and Harare was concerned, W66 had no reason to doubt the account at page 7 of tab 1 of RB “C”, regarding Chitwungwiza.  W66 said that this reflected paragraph 17 of his report. He had not looked at the detailed reports of political violence and was not aware directly of such violence in Bulawayo. 

71. The Outreach events which formed part of the COPAC process were the flashpoints where people were attacked.  Those events could not be separated out.  The violence was interconnected.  W66 said that he was sure that it was right that those who attended the events and had a political profile were at a higher risk than those whose profile was low.  Those closer to the frontline of politics were more at risk.  Those who avoided the events were not free from risk.  They might just be in the wrong place at the wrong time. 

72. Ms Grey asked whether W66 would agree that circumstances now were not the equivalent of those in RN, where anyone might be caught up at roadblocks and required to demonstrate loyalty to ZANU-PF.  W66 said that things were not as bad now.  The position was different.  He would defer to others in relation to flashpoints where an ordinary, uncommitted individual might be caught up in a need to show support. 

73. Ms Grey asked about paragraph 19 of W66’s report, where he considered an article regarding the CIO training ZEC officials.  This concerned a training course.  The article was dated 7^th October 2010.  Some of those participating were told to switch off their mobile telephones.  Ms Grey suggested that this was not a sinister requirement.  W66 said in response that in paragraph 19 he was trying to give a snapshot of events over the last few days.  He was trying to put a question mark over the electoral process.  W77 might refer to the event in more detail.  He said that it was correct that the new head of the ZEC was a judge from the Supreme Court in Namibia and a respected person.  He agreed that this was one difference between circumstances now and those in 2008.  The article was published in the Zimbabwean which was a newspaper widely circulated in the country now.

74. So far as the elections were concerned, there was much speculation regarding their timing.  This appeared to be based on cumulative indications that they would be held sooner rather than later.  Mugabe had made a recent statement that they would occur after February next year.  W66 did not know whether this was simply posturing on his part.  The NGOs appeared to be expecting elections next year.  Ms Grey asked whether this might be set against concerns expressed by the head of the ZEC regarding work required to be done before the elections, in relation to finances and the electoral role.  W66 responded that this would be to look at it in a rational way.  Things were not rational in Zimbabwe.  The ZANU-PF felt that they had their best chance next year, they would call the elections.  The ZEC did not matter. People were expecting an election.  His view was that SADC and others would have no real influence in securing a fair outcome.  He accepted that this was a matter of speculation on his part but it was based on the history of Zimbabwe over the last ten years.  There appeared to be no principled or pragmatic policy from South Africa.  When President Zuma came to power, there was a feeling that he would encourage a more democratic approach in Zimbabwe.  Morgan Tsvangirai called repeatedly on President Zuma to help get Mugabe to abide by the agreement they had but without success.  W66 said that he did not see things changing in the future in this regard.  He did not recall the Prime Minister saying that he would not participate in elections if this would risk violence as in 2008 (as appeared at AB “C”, tab 1, page 8).  If the MDC took a decision to pull out of elections, this would lead to more complications.  On the other hand, the presidential election run-off had gone ahead in 2008, without participation by Morgan Tsvangirai.  If the Prime Minister could achieve free and fair elections, no doubt he would but the reality was that the MDC was very weak and had little room to dictate developments.  The Prime Minister had popular support but did not control the state machinery.  W66 doubted that he could give effect to his pledges. 

75. In re-examination, W66 said that he agreed with the analysis made by W80 in paragraph 4 of the statement he had made, at page 30 of tab 2 of AB “A”.  He also agreed with the analysis made by Mr Machiso from the Zimbabwe Rights Organisation on page 11, at paragraph 11 of his statement.  W66 agreed that Mr Mavlinga from the Crisis in Zimbabwe coalition was a credible source.  He also agreed with Mr Reeler’s second statement at paragraph 11, page 16 of the same tab.  He also agreed that the RAU was better able to provide a political analysis than the CSU.  He had no reason to disbelieve what appeared in Mr Reeler’s statement although he could not comment directly on the contents.

W77

76. The expert witness referred to here as W77 has worked on Zimbabwean issues since 1990.  He adopted the witness statement which appeared at AB “A”, tab 1 page 26 and the note he had prepared at tab 2 of the same bundle, page 28.

77. W77’s report relied upon published reports of a number of organisations, together with his own contacts, both in the United Kingdom and in Zimbabwe.  W77’s most recent visit to Zimbabwe was in October and November of 2009.  He considered that there had been a “silent military coup” under the control of the Joint Operations Command (JOC), following the signing of the Global Political Agreement (GPA).  The political environment was “rocky” and the economy had only partially restabilised.  The humanitarian situation was “precarious”.  The GPA had provided an opportunity for ZANU-PF to maintain its repressive, kleptocratic and economically bankrupt rule (paragraph 8).  The Southern Africa Development Community (SADC), as guarantor of the GPA, had made efforts to improve the position.  However, despite 16 of the GPA outstanding 27 issues having been agreed, none of these was at the core of the power sharing dispute.  Although the MDC controlled finance and spending ministries, it could not win control of the police.  Tsvangirai was scheduled to be a member of the Mugabe-chaired National Security Council, which was supposed to replace the JOC, but the Security Council looked likely still to be composed of senior army and police officers, who had sworn that they would not recognise a Tsvangirai-led government.  The Council had in any event only met once or twice.  There continued to be violence, farm invasions and human rights abuses, including in the Marange/Chiadzwa diamond fields (paragraph 14).  The MDC, under pressure from ZANU-PF and its own desire to turn around Zimbabwe, had moved from being prepared to compromise on most issues to keep the IG afloat to a more critical stance, but without being able to inform its base or society on its basic thinking.  Without movement on security sector reform, the ZANU-PF grip was unlikely to slacken.  Although ZANU-PF had lost some of its power, it now, through the use of diamonds, had an increased ability to pay and feed its client network.

78. However, so far as political support was concerned, according to a CIO contact of a human rights activist, ZANU-PF was down to its “bare bones”, a matter to some extent corroborated by polling organisations.  The majority of the population appeared to credit MDC with turning round the economy and saw that the former sole ruling party had little to offer (paragraph 21).  ZANU-PF would need a high level of violence to win an election; but such high levels of violence could lead to either/or SADC rejecting it and MDC refusing to participate.  “ZANU may be more in turmoil than MDC, for some not so much over political differences but more between those more disposed towards political violence to solve problems and those who see the dangers.  We could yet see, according to another church activist, the factions becoming kind of ‘pre-warlordism’ – i.e. a situation beginning to develop into the chaos of Somalia” (paragraph 21).

79. Life expectancy in Zimbabwe had dropped from 61 years in 1990 to 34 for women and 37 for men in 2006 and may now be even lower.  85% unemployment in the formal sector had driven tens of thousands of professionals to leave the country to find work abroad, millions of less-skilled others into the southern African region and Europe (paragraph 22).  Before dollarisation, hyperinflation had reached over 231 million% or, according to another estimate, 89.7 sextillion% (paragraph 23).  The MDC-T’s Minister of Finance had dollarised (or in the Bulawayo area “randised”) the economy and there were now goods in the shops although these were 100% imported from South Africa and very overpriced.  Employment was “creeping up”.  Certain factories are either opening up or if they survived through the crisis were scaling up.  This improvement in livelihoods in the urban areas was, however, very partial and largely restricted to those with access to dollars or rands (paragraph 24).  Those who had previously worked in the informal sector had seen their situation worsen and a small rise in employment would certainly not capture their labour power and is not necessarily going to last.  Things were worse in the rural areas, where those without access to dollars were worse off.  The rural poor were more or less out of the mainstream economy, being dependent on harvesting, trading and survival.  After a better harvest last year, there would be a decline in 2010, leading to estimates that around 1.7 million people would be in need of food aid.

80. Western diplomats in Harare had pointed out that development aid hinged on economic and political reform but donors were too familiar with the long history of Mugabe reneging on agreements.  Major funding would not occur until there was a political will and an ability to break decisively from disastrous previous policies.  The United States and Britain, Zimbabwe’s biggest aid donors, were reported to be unhappy that Mugabe had reappointed Gideon Gono as Head of the Central Bank.  Apart from the Chinese, the international community was not going to provide significant aid and support until there was a demonstrated return to the rule of law (paragraph 29).

81. Given the problems ZANU-PF was facing, it was not surprising, in W77’s view, that its response was militaristic.  Despite its supposed disbandment, there was no evidence that the JOC had any intention of abandoning its strategies of maintaining its power.  Its main focus would be on winning elections with the youth militia (“green bombers”) being mobilised under the control of the senior military as the shock troops for a ZANU-PF victory.  Given that ZANU-PF had more or less destroyed the education system, it now had available a pliable youth (paragraph 33).

82. Zimbabwe had a high level of violence and patriarchal attitudes were extremely harsh on women.  40,000 girls were raped annually before they turned 17, according to the Girl Child Network.  Rape was also reported to be used as a political weapon.  It was abundantly clear that there would continue to be great difficulties for the MDC-T in ensuring that the Ministry of Home Affairs, the police, army and CIO could be brought under the effective control of all parties (paragraph 35).

83. Although there had been a period of quiet immediately after the GPA and a swearing into office of the IG, ZANU-PF now felt more in charge and violence and violent rhetoric were on the increase.  Mugabe retained control of the military and intelligence forces and the whole system of governance (“organised chaos”).  Faced with the refusal of the west to remove sanctions, Mugabe and his followers had throughout 2010 upped the “anti-imperialist” rhetoric (paragraph 36).

84. W77 considered that the problems he had described meant that it was very early days to be reassessing the likely impact for returning failed asylum seekers (paragraph 45).  Nothing suggested that the bureaucracy, military police and militia would quickly change their trademark modus operandi (paragraph 45).

85. Zimbabwe’s police state was vindictive and vicious; but it was also inefficient, porous, distorted by personal loyalties and corruption, with divided loyalties (paragraph 46).  Accordingly, its efficiency was limited.  It was estimated that more than 20,000 former police and army staff, from rank and file to very senior levels, had left Zimbabwe since 2000.

86. Anyone who had been in the United Kingdom for a number of years would be viewed with some suspicion by nationalist elements.  These would essentially see any opposition to the regime as part of the “regime change” agenda of the British and USA governments.  Little protection could accordingly be expected from the authorities.  Militias and soldiers continued to be deployed against the population and there was nothing to indicate that forthcoming election would be any different from that in 2008.  Although Mugabe had to take a view at some point as to how much he would have to listen to SADC concerns, the fact that SADC or AU peacekeeping forces have already been ruled out, despite demands for them from elements in MDC and civil society, it meant Mugabe was likely to believe he would not face ultimate changes (paragraph 48).  Violence against actual and presumed opposition supporters continued.  Such violence was perpetrated by informal state structures and youth militias.  This was attested in many reports available from the London/International Office of the Zimbabwe Human Rights Forum.  ZANU-PF youth militia were under the control of the security forces and were used by them to infiltrate the MDC and other opposition elements (paragraph 53).  Although the state had been in severe economic decline for years, it had always found resources to fund its system of repression and rewarding its supporters, often by printing money and now through the use of diamonds.  Brief and very localised incidents of reconciliation appeared to have ceased as ZANU-PF had attempted to reassert its hegemony over previously loyal areas.  There might be greater intimidation and ill-treatment in rural areas but the nature of ZANU-PF violence, either random or selective, was such that few areas were “completely safe” (paragraph 54).  In rural areas the authorities/local chief structures were keen to know who was in their areas.  Local government structures had either been bent to ruling party purposes or under their control to begin with.  This included chiefs who were paid members of the party/state apparatus and who reported any suspicions they had on local residents and newly arrived people to the authorities, including the CIO (paragraph 56).  Returnees to urban areas, especially if there was no family or other support, would find it next to impossible to sustain themselves.  Risks of relocating were likely to increase as the election approached (paragraph 55).  “All of the above meant that there would be a risk of ill-treatment for returnees for not supporting ZANU-PF, for having been out of the country for some time and for those having been associated with the opposition and/or an NGO.  If taken together, these seem to indicate a cumulative risk.” (sic)

87. A Harare based activist considered that teaching was still a very high tension and risk sector “especially in the times of the constitution outreach and debate process – and the prospective outreach about healing and justice – where teachers, potentially literate community advisers and leaders, are being seen as a threat, again” (paragraph 61).

88. 2011 was likely to be an election year, with even the Zimbabwe Electoral Commission believing it was not possible to provide the necessary structures for a free and fair poll.  There were reports of ZANU-PF gearing up for intimidation in both constitutional and electoral terms, with the expectation that violence would be particularly directed at areas that abandoned ZANU-PF in 2008.  ZANU-PF’s capacity and willingness to use violence did not appear to have abated “although intimidation and some violence rather than systemic violence were the current characteristics” (paragraph 62).

89. At paragraph 63, W77 provided a “balance sheet”.  Amongst the factors noted were the stabilisation of the economy, a constitutional reform process having begun with meetings around the country (but with reports of the youth militia being used to control/divert the process); the return of the BBC to Zimbabwe, but with no indication from ZANU-PF that they had any real intention of changing behaviour or policy and increasing hate speech in the state controlled media; ambiguous acknowledgements that torture and abduction may have taken place, whilst defending this on the grounds of it being a battle against “neo-colonialism”; reports of continued repression, abductions and refusals to free political detainees; high food insecurity; continuing farm invasions; continuing use of the youth militia to attack suspected opposition figures and supporters, those speaking out at constitutional outreach meetings (or even attending them); every indication that violence such as that seen in 2008’s election periods would recur; … for regional or continental pressure to ensure that GPA commitments were honoured; and police still arresting and beating up demonstrators and opponents of ZANU-PF.

90. In W77’s short further report of 11 October 2010, he gave a brief description of Zimbabwean civil society.  There was a wide range of groups within Zimbabwe that fell within civil society, with different interests and variations in expertise and methodology.  Comments from civil society could be misinterpreted as often contrary to western notions.  There was a degree of acceptance of violence, intimidation and political interference, as being normal.  Also, W77 said that a phrase that seemed expressed with caution could be hiding a good deal more.  It was debatable whether this stemmed from Shona culture, often deemed to be somewhat passive, or from the experience of self-censoring after a decade of violence.  W77 identified the Research and Advocacy Unit as authoritative in terms of human rights monitoring and analysis.  It was the successor to the Amani Trust, which came under regime scrutiny in the early 21^st century, with the result that Tony Reeler was forced to flee the country.  The Amani Trust separated into an organisation treating victims and counselling them, as a Counselling Services Unit and a Research and Advocacy Unit.  The Counselling Services Unit was not geared to information collecting and analysis.  W77 also considered the CCJPZ as having recovered its purpose and being instrumental in providing information from areas to which other organisations were unable to gain access, given that their structures went down to parish level throughout the country.

91. He said that he had read the reports prepared by Professor Ranger and W66, and had heard W66’s oral evidence.  He did not take issue with anything he had heard or read regarding the current position in Zimbabwe.  W77 said that he is the chair of Zimbabwe EU Network.  This network is both church based and secular and lobbies on behalf of the Zimbabwean civil society, particularly in the European Community.  Irish and British organisations are part of it, as are French and Belgian NGOs.  It spreads across the European Union.  The National Reference Group mentioned at paragraph 5 of his statement is the counterpart in Zimbabwe.  Members of this group include Crisis Coalition Zimbabwe, the Zimbabwe Lawyers for Human Rights Group and trade unions in Zimbabwe.  A contact in the FCO, a desk officer, was in broad agreement with the views W77 expressed in his statement.  President Mugabe had ordered Tendai Biti to set aside money for an election and a referendum next year.  W77 doubted that the funds were available but did not think that this would be an obstacle to calling the election.  If Mugabe wanted this to happen, it probably would.  He had available an alternative source of revenue in the form of diamonds.  W77 said that he had seen the statement made by Dewa Mavhinga and agreed with what was in it.  He was surprised that the Crisis Office had not been approached by the respondent for its view.  He had also read Mr Reeler’s two statements and strongly agreed with what was in them.  He and his unit were an authoritative source.  He also agreed with what Mr Reeler had said in his second statement about the CSU.  This did not exist to do the same job as the RAU.  That was why the Amani Trust had split.  He did not disagree with anything Mr Reeler had said. 

92. W77 said, in relation to the statements from the CCJPZ, that W78 had been optimistic in his first statement.  So far as the Fact-Finding Mission report was concerned, W77 was aware of the sources and organisations consulted.  Radio Dialogue had been set up a few years ago by Father Nigel Johnson.  They worked with young people and were involved with community outreach.  They were unable to get a broadcasting licence and were on air for perhaps a couple of hours a day.  Bulawayo Agenda was a local organisation that promoted dialogue.  It played a role in a southern consortium of NGOs.  The organisation was thought to have an authoritarian style of leadership.  The Bulawayo Progressive Residents Association was new.  It took part in demonstrations when allowed to.  It was a citizens group, not a monitoring group.  Members were young activists concerned with community issues.  Neither was seen as research oriented.  The people involved would tend to be youngish, well educated and middle class with some university education.

93. Mr Henderson asked about the mention made by the interviewee from the Bulawayo Progressive Residents Association regarding an influx of Shona to Bulawayo.  W77 said that people moved around.  Perhaps Shona people moved to Bulawayo on occasion but nothing in particular on this had passed his desk.  Those who were educated and literate and able to move and had no problems speaking or communicating with fellow Zimbabweans might move there.  They might be English speaking and liberal or progressive types.  Shona and Ndebele were very different languages.  The two ethnic groups had an antagonism historically and little in common in terms of language or culture. 

94. In cross-examination by Ms Grey, W77 said that he largely agreed with W66 in relation to the reliability of the contributors to the Fact-Finding Mission.  He was aware that Bulawayo Agenda had calved off other organisations.  They had a broader reach than Bulawayo itself.  He agreed that it was not unreasonable to make contact with the two Bulawayo groups.  They might provide raw information or anecdotal evidence.  Ms Grey asked whether the view expressed in paragraph 5 of W77’s first statement, regarding the shutting down of political space, was an over-generalisation of what had happened, including in relation to political space at a local level.  He replied that attempts to open up space had been largely stymied by ZANU-PF structures.  These included the local chiefs and the youth militia, and it did not strike him that the space had ever been that large.  There was intimidation, the establishment of militia bases and control at the top.  There had been attempts by churches and NGOs to engage with the COPAC process.  Participants were viewed with suspicion in some areas controlled by ZANU-PF.  So far as Matabeleland was concerned, ZANU-PF might increase tension to remind the Ndebele people on occasions that they still had a presence.  So far as a distinction between Matabeleland and Manicaland was concerned, he would seek to balance this with his second statement.  In Harare, there might be some space amongst the NGO community to organise and attend meetings.  Bulawayo had a more tolerant feel to it but there might still be threats from the police, implementing the POSA. 

95. Ms Grey asked about the Outreach Report in RB “C” and the contrast which appeared between Harare and Bulawayo, at pages 6 and 10, for example.  W77 agreed that this showed that meetings went better in Bulawayo.  He accepted that there were differences between areas and a distinction between rural and urban areas, where chiefs and headmen had a particular role in the former.  In urban areas, there were local government structures and the police force.  W77 said that the MDC controlled local structures in Harare, although they had not been in power in the past.  When the MDC moved into local councils, ZANU-PF responded by abolishing those councils and seeking to establish commissions.  The MDC tried to take power back but had no source of revenue.  In rural areas, the headman or the chief would have influence.  The picture was mixed.  ZANU-PF also had structures in place.  There was a coalition in name between the MDC and ZANU-PF.  People would be loyal in terms of ideology or to those who paid them.

96. Ms Grey asked how this might affect an individual returning to an urban area, perhaps to Harare, with no political profile or interest.  W77 said that a person’s class, identity, and where they came from would all be important.  ZANU-PF violence might be random or directed.  In high density urban areas, curiosity about who was returning might be present, as it would in rural or quasi-rural areas. 

97. So far as W78’s first statement was concerned, at paragraph 13, W77 agreed that a person might be able to stay in an urban area.  If a person had dollars or rand he could buy stuff in the supermarkets.  This would not apply to many people.  It was possible to stay in an urban area without facing political violence.  If a person had money, he might move to a low density suburb.  The location was important.  In W77’s view, having dollars enabled a person to survive and live where there might be no random violence, police or spy networks, as there would be in high density areas.  All economic transactions in Zimbabwe took place in dollars, rand or the Botswana pula. 

98. Ms Grey asked W77 whether he would accept that Zimbabwe was no longer in a period of widespread and indiscriminate violence, as had been the case after the elections in 2008.  He replied that the violence was taking a different form.  It was particularly bad in 2008.  Violence began to increase from 2009, in about mid-July, when the first Constitutional Outreach meetings were held.  The farm invasions which began in about 2000 had never really finished.  There was also intra ZANU-PF fighting.  The COPAC process kick-started the increased violence.  Ms Grey asked whether it was the case that the violence centred on the Outreach meetings and those not interested in attending would not be at risk.  W77 said that he had two comments in response.  ZANU-PF might force villagers to attend meetings.  The violence was more to do with the elections rather than the constitutional process, which did not mean that much to ZANU-PF.

99. The Constitutional Outreach process was rolling.  Ms Grey asked how the risk of violence would continue in a high density poor area, such as Epworth in Harare, once the process had passed on to another area.  W77 replied that in some places ZANU-PF would attack the MDC.  The militia might be bussed in or moved around.  They might have bases near areas which had voted ZANU-PF in the past.  Although there would not be violence in all places, there was some evidence of intimidation after the process had been completed in an area.  There was a sliding scale of risk.  MDC activists would be more at risk but ZANU-PF might punish communities as well as individuals.  The threat to those at the bottom in terms of risk, in high density areas, would involve a random element.  A person might be asked for a ZANU-PF card by the police or the militia.  A person might even be confronted by MDC youth although this was not common. 

100. So far as road blocks were concerned, 2008 was an exceptional year.  They were more random or sporadic now.  Intimidation tended to be used but violence and the structures used in the past were ready to be used again.  Some areas were safe, including the northern suburbs of Harare such as Borrowdale.  The high density urban areas were less safe.  This appeared in paragraph 54 of his report.  Some areas fell in between and were neither completely safe nor completely unsafe.  The low density parts of the major cities including Harare and Bulawayo fell into this category, as did parts of Matabeleland.  There were some medium density suburbs that were not completely safe.  There might be a risk of incursion by ZANU-PF.

101. Ms Grey asked about the contact TS referred to in W77’s statement (at paragraph 60).  Should  the Tribunal rely on W77’s evaluation of him as a credible source?  W77 replied that this was so.  The source was anonymous.  However, he had the source’s permission to reveal his identity to the Tribunal.  TS’s organisation was Source P.  He appeared in RN as source TS.  W77 said that the risk of harm would be greater for those perceived to be supporters of the MDC.  The risk of being stopped and questioned was still there.  W77 said that the risk was there for people in general although it was higher for those associated with the MDC.  At the moment, the violence was focused on the COPAC process but there were still farm invasions and intra ZANU-PF violence.  The risk would be great for those going to rural areas as enquiries would be made of returnees.  In high density urban areas, the risk might be the same.  The economic and political circumstances would be significant to the fate of returnees.  People would still face questions about why they had left Zimbabwe.  Ms Grey asked how W77 would distinguish between the risk faced by families known to be politically active and those who would return to families with no known profile.  W77 replied that the latter would face less of a threat but there might still be questions.  If a person were stopped and challenged and not believed, ZANU-PF might fabricate evidence against you.  A person might be subjected to theft if he returned with money.  It might be possible to dispel suspicion but the questioner might not find a person credible.  The family might be disliked. 

102. Ms Grey asked whether W77 was offering his opinion or was aware of particular incidents.  He replied that he was basing his comments in part on Mr Reeler’s evidence in his statements.  He did not know much about returnees from South Africa.  He had no useful comparison to make between returnees from South Africa and those from the United Kingdom.  South Africa and Botswana might push people across the border, although there might still be a confrontation with immigration officers in Zimbabwe.  He did not know if returnees in this category were tracked to their home areas.  So far as the timing of elections was concerned, W77 would bow to Professor Ranger’s expertise.

103. In re-examination, W77 said that he had known source TS for twenty years.  This man fled into exile from Zimbabwe.  Some of those who fled to South Africa would be viewed as traitors as they were former members of the militia.  There was tension in the relationship between Zimbabwe and South Africa.  However, the mention made by the Forum of hate speech against the United Kingdom would not apply to South Africa.  W77 said that he agreed with what appeared in Mr Reeler’s first statement regarding the need to show loyalty and the spectrum of risk.  If a person moved to an urban area in a non-election period, the risk might not be particularly acute but the key word there was “particularly”.  The picture was mixed in urban areas.  In the second half of 2009, the risk in urban areas increased.

Professor Ranger

104. Professor Ranger is an acknowledged expert on Zimbabwe.  He adopted his witness statement at AB “A” tab 1 and his note at tab 2 in the same bundle at page 26.

105. In that report, Professor Ranger said that the economic situation, following the Government of National Unity, had improved for those who had access to dollars or rands and that there was “certainly less violence now than there was during the election period in 2008”.  A process had been established to facilitate “national healing”, albeit that that was proving difficult.  The Zimbabwe Human Rights NGO Forum had sent facilitators out into the countryside to brief people about transitional justice and to ask their views about how it might be achieved.  Those reports, however, made “sobering reading”.  51 parliamentary constituencies were chosen, on the grounds that they had the most continuous record of violence since 1980.  In most of these, there were reports of harassment and intimidation, either during or immediately after the consultation.  Having said this, there were nevertheless “many relatively open discussions”.  It was widely said there was relatively little violence currently in Matabeleland but it was undoubtedly there that “the coiled spring of trauma and memory is tightest”.

106. Professor Ranger noted that in June 2010 the Bar Human Rights Committee of England and Wales, the General Council of the Bar and others had published a report examining the state of the rule of law after the GPA of September 2008.  The report found that rule of law issues had not improved since the signing of the GPA and many interviews expressed the view that the position was even worse.

107. Professor Ranger’s report discussed the constitutional outreach programme.  This had been designed to solicit opinions on a new constitution for Zimbabwe.  It was said that 560,000 people had attended meetings.  However, civil society organisations had denounced the process as being dominated by politicians and had called for boycotts.  The independent press had been full of reports of violence and threats of violence.  At some meetings war veterans had demanded support for the so-called “Kariba draft” of the constitution, which favoured presidential power.  In other meetings, people have been assaulted for expressing their views.  In some places chiefs and headmen had excluded strangers and MDC supporters.  Professor Ranger considered that there was an unresolved legacy of violence from the past and that human rights abuses continued in the present.  However, the most pervading emotion in the countryside and townships was a “fear of renewed violence”.  That included violence that a referendum on a new constitution; but the two scenarios that made people fear the most were the general election which both Mugabe and Tsvangirai would “call in 2011” and the “in-fighting within ZANU-PF when Mugabe eventually goes”.  Although polls put ZANU-PF support only around 20%, few would, according to Professor Ranger, welcome elections as things were.  Judge Mtambanengwe, a former student of Professor Ranger, had the unenviable task of being Chairman of the Electoral Commission.  He was an admirable man with an excellent record as a judge in Namibia.  Judge Mtambanengwe’s view, however, was that an election was impossible in 2011 because the voters roll needed to be totally reconstructed.

108. Professor Ranger considered that people feared the election even more than they hoped for it, because they expected a repeat of the violence of 2008.  There were reports in the press that rural bases from which ZANU-PF operated its violent interventions in that year still existed or were being revived.

109. Professor Ranger considered that it was likely there would be elections in 2011, despite Judge Mtambanengwe’s objections and the fears of many people.  A report of 10 September 2010 in the Zimbabwe Independent stated that Mugabe had ordered his Finance Minister to set aside US$200 million in the budget to be delivered in November for fresh elections the following year.  A plebiscite on the draft constitution was likely to be held early to mid 2011 while “no-one knows when new elections would be staged…  Mugabe’s direction reflects his unflinching determination to have fresh polls next year, whatever the electoral environment”.  A report in the Standard of 12 September suggested that Tsvangirai and Mugabe had struck a deal on the polls, and an election was the only way to close this particular chapter.

110. The Daily News reported on 19 September that there had been violence during COPAC meetings in Mbare.  ZANU-PF supporters had realised they were outnumbered and resorted to intimidation and later violence.  However, police arrested only MDC supporters.  In the light of this, COPAC announced that further meetings in Harare had been “indefinitely suspended”.  Tsvangirai said that he would not countenance any election if it was a declaration of war.

111. The report ended by noting the Zimbabwe Inclusive Government Watch issue published on 17 September, covering the month of August, which did not deny that human rights abuses and incidents of violence “are currently less frequent than they were in the horrific election period during 2008”.  Nevertheless, in terms of impunity and the potential for violence, little had changed.

112. In his document of October 7 2010 entitled “Comments on the Home Office submission and executive summary”, Professor Ranger did not consider that the basis for the executive summary was sound.  Professor Ranger had noted in particular the comment “While some organisations noted that influential MDC supporters could be at risk, ordinary opposition and MDC supporters were not thought to be at any particular risk”.  However, the Research and Advocacy Unit were the one asked about “profiles of victims of violence – why are these people targeted?” to which their response was:-

“In terms of profiles, the risk would be as follows:

1. Office bearer in MDC/polling agent during elections.

2. Members of MDC (known or discovered).

3. Suspected MDC members (and possible to discover membership).

4. Those linked with NGOs, Zimbabwe Electoral Support Network.

To this list should also be added persons that do not demonstrate ‘positive affiliation’ to ZANU-PF: this is especially important in the rural areas and during elections.”

113. Professor Ranger noted a comment of the Zimbabwe Human Rights Association that “People who work in the human rights areas or who push HR issues are seen as enemies or opposition in political terms.  Therefore anyone who interacts with these people is also a target…  Also, resistance to participate in ZANU-PF activities is a key factor in violence – anyone who resists in this respect is also a target.”  Professor Ranger went on to set out quotations from the transcripts of the FFM report in respect of a number of other organisations.  He concluded that “A very different and more alarming set of conclusions could be reached on the basis of the comments presented in the Home Office report”, compared with what was said in the executive summary.

114. He had read the witness statements made by others which appeared in AB “A”.  There was nothing with which he would disagree in those statements.  Mr Henderson asked Professor Ranger whether he thought that enforced returns, which were suspended until the week before the hearing, might destabilise the Zimbabwean government, as the Secretary of State appeared to believe.  He replied that this was hard to answer.  It would depend on the size of returns and the period of time concerned.  Before the announcement made by the government, it had not occurred to Professor Ranger that this issue was at stake.

115. So far as the Fact-Finding Mission was concerned, the Secretary of State had approached two organisations in Matabeleland. Professor Ranger said that he was aware of Bulawayo Agenda and had attended meetings called by the organisation.  They were involved in seeking to ensure that issues of public concern were debated.  Meetings had been held in Matabeleland north but mainly in Bulawayo itself.  He did not think that the organisation had a research or reporting capacity in relation to human rights issues.  Professor Ranger said that he knew the Bulawayo Progressive Residents Association existed but was not aware of them as a significant organisation.  In Harare, there was a residents association with representation in the townships.  Bulawayo had nothing like that.  He had read the report from the organisation.  It appeared to be concerned with domestic issues.  Mr Henderson asked about the mention made of an influx of Shona people to Bulawayo.  Was Professor Ranger aware of this happening in recent years?  Professor Ranger said that it depended on the period of time they were talking about.  The last sentence in the material at page 94 might refer to decades.  The police and civil servants in Matabeleland tended to be Shona.  This was resented but had been the position since the 1980s at least.

116. Shona people from Harare returning or moving to Bulawayo might find profound difficulties in relation to accommodation.  Bulawayo had much low density housing.  Up to ten percent of the stock had been lost without replacement.  There was intense competition for housing in the city.  The practical business of moving to Bulawayo would be very difficult, even if a person did not face violence.  Mr Henderson asked whether the absence of family ties or language might affect a person’s ability to survive economically.  Professor Ranger said that language would not be a problem.  The influx of Shona over the decades had meant that Shona was used, with Ndebele, in Bulawayo.  Long term residents might speak some Shona.  The informal economy was not thriving in Bulawayo, partly because of the impact of Operation Murambatsvina.  Many of those who left Bulawayo after the destruction of their housing were in the informal economy and they had not returned.  There was some fear of martial law in Bulawayo, largely from clashes between the police and informal vendors.  Bulawayo Agenda had discussed this, in relation to a disproportionate lack of investment in industry and economy.  The first Shona influx occurred when Bulawayo was a major industrial city in the 1940s and 1950s.  It was no longer a major centre as most industry had ceased to operate.  Difficulties might well result from the lack of jobs and housing.

117. Professor Ranger said that the COPAC teams held meetings in high density areas in Bulawayo.  A friend, formerly of the Amani Trust, had worked as a COPAC facilitator.  A report had been prepared after two or three days of meetings.  The Bulawayo event was overshadowed by the COPAC meetings in Harare which led to violence.  This was less so in Bulawayo.  Many of the same patterns emerged.  Meetings would be announced and then not held.  There would be no real discussion.  The COPAC meetings in Bulawayo were violently noisy, if not subject to violence by means of sticks and stones.  The police had tightened up in Bulawayo.  The art gallery had closed.  It had held events since the 1980s.  An artist there had been arrested and faced a serious charge.  The director of the gallery had also been charged.  The impression that Bulawayo was more tolerant and that there was less interference in things was shaken up by that episode.

118. Professor Ranger said that the government had thought that a statue of Joshua Nkomo would please the people in Bulawayo.  However, the best tender came from the North Koreans, who were very unpopular in Matabeleland as they had trained the notorious Fifth Brigade.  The statue had arrived covered in a black cloak.  Stones were thrown.  Joshua Nkomo’s own family requested that it be removed and it was now placed next to a statue of Cecil Rhodes, behind the museum.

119. Mr Henderson asked about JG’s case and the schools she had taught at.  Was Professor Ranger aware of the Prince Edward School?  He replied that he had attended debates and Latin competitions there.  The school motto included the last words of Cecil Rhodes.  It was not a ZANU school.  Mr Henderson asked whether the fact that JG taught as a trainee teacher there in 1992 and 1993 would mean that she would be seen as associated with ZANU-PF.  Professor Ranger replied that this was not at all the case.  Nor would JG necessarily be seen as supporting the opposition.  She had taught at evening classes and said many who came were ZANU-PF officers.  However, pupils came from the wealthiest families in Harare.  The school was able to defy the Ministry of Education effectively.  So far as the second school JG taught at was concerned, the “Rock of God”, Professor Ranger had not visited it.  He doubted whether a teacher there would be associated with ZANU-PF.  The school was supported by a Canadian NGO.  When JG taught there, ZANU-PF was the sole party in power and responsible for the education system.  Teachers had a professional independence from the party until the 2000s.

120. Mr Henderson asked about Professor Ranger’s view on the future elections, and his comment that they were expected in 2011 and likely to be violent.  The Secretary of State would say that they were likely to be held later and that some safeguards would be in place to protect people, including the appointment of a Namibian Supreme Court judge in charge of the electoral commission.  Professor Ranger replied that he had known this judge since he was a student.  He was a splendid man who had fallen out with the military side of ZANU.  He had worked for the past decade in Namibia and had a successful judicial career.  He continued to live in that country.  He had an impossible task in the elections as the voters roll was in chaos but there had been chaos in all previous elections and this would not stop them from taking place.  There were some measures intended to protect people in place in 2008 and that was why the March elections in that year were relatively successful.  Publicising the results and the votes cast made it difficult for ZANU-PF to carry out too much rigging.  The party had agreed to the safeguards without understanding fully their implications.  There was then violence in the June elections.  There had been further reforms to the process recently.  It had been announced that results would be posted publicly and the overall outcome would be published within a week.  It had been said that there should be a police presence in each polling station.  Human rights organisations in Zimbabwe had commended some suggestions and criticised others.  If the elections were held later, perhaps these measures would be implemented.  Even though the Namibian judge had said that the roll was chaotic, nothing was being done to resolve it.  The fact that he might say that the elections could not happen yet did not mean that they would not be held.  Mugabe had insisted twice in the past week that there would be elections as the present power sharing arrangement was unworkable.

121. Mr Henderson asked whether Professor Ranger was of the view that ordinary people would receive more protection from ZANU-PF violence than in 2008.  Professor Ranger replied that after the votes had been cast, they might be counted more accurately.  The key question was how to get people to vote.  There were increasing reports that people in rural areas were told that when they voted MDC last time they lost their cattle, whereas if they voted MDC this time, they would lose their lives.  Rigging the election did not just mean manipulating the vote.  What was needed was a significant monitoring force.  Neither Mugabe nor Morgan Tsvangirai had asked for such a force and the SADC had not said that they would provide it.  Without such a force, the opportunities for violence would be there.

122. Ms Grey asked questions by way of cross-examination.  So far as the Forum report was concerned, the evidence at AB “A” Tab 2, page 11 showed cases where meetings arranged as part of the constitutional renewal process led to violence or could not be held. There was a report on the position in June 2009, showing no reports of violence.  The second report (page 16) showed the position in June 2010.  The summary contained no reports of violent reprisals.  The closest to a report on such an incident appeared at page 50 but this concerned another process.  Professor Ranger said that he agreed that he read this evidence in that way.  In his own report, he had tried to include some instances where there was an atmosphere of violence, including the harassment of churches.  There was a relevant quote in his report on page 4.  At page 50 was material on Bindura.  Ms Grey asked about other quotes, including at page 3 of Professor Ranger’s report.  He had highlighted difficulties in the transitional justice process before going on to comment on the following page that nevertheless, there were many relatively open discussions as part of the process.  Ms Grey suggested that the 2010 report showed many such instances, as at page 78 under “Observations” and also at page 70.  When the original reports were looked at, there was a rich picture of a debate which was largely open and constructive and the fact that a debate could take place was indicative of the opening up of political space to some extent, since 2008.  Professor Ranger replied that he had focused on material which showed what happened to people.  Discussions on the ground had been going on even in 2008, in the midst of periods of violence.  When Zimbabwe gained independence, there was almost no NGO presence.  It was difficult to find out what went on in Matabeleland in the 1980s.  From the late 1990s on, there had been a revolution in Zimbabwean civil society, with the establishment of many NGOs.  The Peace Project had reported all through even the worst violence.  Ms Grey asked whether the relatively open discussion in the constitutional outreach process was indicative of the opening up of political space.  Professor Ranger replied that it would be dangerous to take the exercise as proof of improvement.  Immediately after the Government of National Unity was established, there was an attempt to destroy the type of organisation having this sort of discussion.

123. Ms Grey asked about the second part of Professor Ranger’s report, the assessment of evidence from professionals.  This included the report “A Place in the Sun” at AB “B”, tab 3, page 112.  Ms Grey asked whether the contrast or distinction between threats made in rural areas and in small towns and the position in Harare and Bulawayo was a fair one.  Professor Ranger replied that this was so.  The magistracy were under greater threat in the smaller towns.  Ms Grey asked whether the ordinary citizen harassed by the police would see the magistracy as the first port of call.  Professor Ranger agreed.  There were spectacular examples of magistrates dismissing charges brought against people.  He would not, however, say that the magistrates had become bolder.  Some had always been bold.  In Harare and Bulawayo, there was a picture of the magistracy retaining independence and resisting intimidation.  This was so even in 2008.  Professor Ranger accepted that his report at page 5 might be qualified in this respect.  So far as the constitutional outreach programme was concerned, Ms Grey drew attention to the report at the RB “C”, tab 1 at pages 1 to 10.  In the overview, the position of Bulawayo was described as relatively peaceful although there were incidents of coaching and harassment.  She asked how that report from the Peace Project matched the account Professor Ranger had given earlier.  He replied that they did not match well.  What he had tried to reflect was intransigence and the non-meeting of minds.  It was possible to see the outreach report as more positive than the source he had relied upon.  He agreed that the COPAC process was the focus for the problems of intimidation and violence at present.  Ms Grey asked about the report from the Peace Project at AB “B”, tab 3, page 84, dealing with the position in August 2010 (at page 241).  Most incidents were tied to the ongoing constitutional process.  Professor Ranger agreed with that assessment and noted that the report stated that most rural communities had suffered harassment and intimidation.  He accepted that there was a contrast or regional pattern, as appeared in the same report, comparing Matabeleland, north and south, for example.  He had not seen the tables which appeared in the report on this particular topic.  Ms Grey asked about the graph which showed the position from March 2008.  There was relative stability from November 2009 to the present.  Professor Ranger agreed that this was what appeared from the graph.  Ms Grey suggested that there had been no recent deterioration but a continuing pattern from late 2009 onwards.  Professor Ranger replied that he thought many were saying that the situation was now worse than it was before.  People felt that there was no protection built in and that there would be a repetition of the violence in the past.  The tension shown in the COPAC process could easily lead to a resumption of violence.

124. Professor Ranger agreed with Ms Grey’s suggestion that a contrast might be drawn between the intensification of fears and the situation on the ground, which might be unchanged.  He said that the MDC had provided one of the two chairmen in COPAC.  They spoke positively of it initially although there had been later disruption.  This might be a reflection of what went wrong in Harare.  The province where there was most violence was Manicaland.  This had a strong MDC presence.  Professor Ranger said that he thought that further COPAC events in Harare were not taking place but he did not know whether this was the result of a problem with funding.  At page 7 of his report, he had mentioned under-funding as an issue.  COPAC was a preparation for a new constitution and a referendum.  In 1999 and 2000, there was violence associated with a referendum even though there was no consultation prior to it.  Ms Grey asked how these events would have an impact on an ordinary Zimbabwean citizen with no particular profile who might experience a COPAC event in his or her town, compared with the position once the process had been completed, perhaps a week later.  Professor Ranger replied that after COPAC there would be a referendum and then the elections.  The ordinary villager would then learn that these things were not done and dusted.  The message left behind would be that it was too dangerous to support the MDC.

125. Ms Grey then asked about section 6 of Professor Ranger’s report, dealing with elections.  She asked whether the appointment of Judge Mtambanengwe was a real change from the position in March 2008.  Professor Ranger replied that the electoral commission was not really expected to do its job.  Who could know whether the current head would be effective.  The commission was also responsible for running the referendum.  Ms Grey drew attention to tab 2 of RB “C” at page 72.  This showed that deadlines had been missed.  Public consultation was intended to end in November 2009, almost a year ago.  Did this suggest that the process would require at least another year?  Professor Ranger agreed.  Ms Grey asked whether this evidence showed that there was no real “gap” between COPAC and the elections.  Instead there would be a series of events likely to show how well the process was going.  Professor Ranger agreed that some were saying that there would be no elections until all the steps had been gone through.  Others, including President Mugabe, were saying that elections were so important that they should go ahead.  There was real uncertainty.  If the elections were called, their timing might be opposed by civil society.  If President Mugabe was determined to hold the elections, he would ignore the constitutional outreach events.  There were several pending by-elections and the balance of seats in Parliament no longer reflected the outcome of the March 2008 elections.  One of the factors in the mix might be the unwillingness of some MPs to subject themselves to elections.  Ms Grey asked about the suggestion at page 137, paragraph 3, that polls might be at least two years away.  Professor Ranger said that he had no knowledge of the “private whisperings” referred to although the newspaper carrying the article was to be trusted.  Civil groups were concerned and did not want the elections to be held before the constitutional process had been completed.  Although there was uncertainty, this did not necessarily argue in favour of delay.  The calling of the elections would be a high stakes decision.  President Mugabe was painting it as a key election in the history of the country.  It was correct that control of the elections was not exclusively President Mugabe’s.  An agreement between ZANU-PF and the MDC was required.  Morgan Tsvangirai had his own pressures and his time as president of the MDC was also running out, according to the constitution.  Morgan Tsvangirai had not taken a strong, consistent position and had said many different things about the timing of the elections and the guarantees required.  Nobody could say where safeguards were coming from.

126. Ms Grey then asked about the response of the business community, the evidence at RB C at page 139.  Professor Ranger said that the business community was disappointed with the Government of National Unity and had hoped for more investment.  The Zimbabwe stock exchange was in difficulty.  The timing of future elections was highly uncertain.  Professor Ranger agreed that his fear was that if the elections took place, the violent events of 2008 would be repeated.  He also agreed that Morgan Tsvangirai had assured his supporters that he would not go into a violent election or take part.  It was hard to believe, however, that he would not take part if the elections were called.  Ms Grey asked whether the two possibilities in that event were that he would pull out or that the electoral commission would suspend the process.  Professor Ranger said that this would be good to see.  The MDC continued to learn.  They saw that pulling out last time did not do any good.  They hoped to get SADC support.  The option of withdrawing would put Morgan Tsvangirai in a difficult position, as had happened in the past.  He accepted that it might be right that exposure to violence inflicted on his supporters would be a compelling factor.  Ms Grey asked whether SADC could play a key role in deploying monitors and perhaps a peacekeeping force.  Professor Ranger replied that the possibility of such a force being present was low.  Monitors were sent last time.  The MDC had in the past convinced African observers and others to be present.  There was no reasonable prospect, however, of a peacekeeping force.  He agreed that SADC in South Africa were under pressure to see the stabilisation of Zimbabwe.  This was one of the assumptions of the Government of National Unity but it had not worked out.  The presence of monitors had a stabilising presence but there would have to be more of them, early on.  The patterns of the past were not cheering.  Since the Government of National Unity, South Africa had not been able to apply adequate pressure.  There was a possibility that this would occur.  All things were possible but Professor Ranger would have thought that it would be very unlikely.

127. In re-examination, Professor Ranger was asked whether or not the friends he kept in regular contact with in Zimbabwe, as he had not returned to the country since December 2008 in view of his ill-heath, were in a good position to advise him.  He replied that it varied.  His old friends were becoming decrepit.  He returned to Zimbabwe to teach after he retired from Oxford.  He had many younger colleagues and many who were involved with COPAC.  Many were returning to work as advisors to political parties.  He had friends involved in all the processes and he was in regular communication with them.  He would return to Bulawayo in a month’s time and would see many of those involved.  Particularly useful were those in an intermediate position, participating in research or meetings.  He was in email contact with them.  ZANU-PF saw him as a British historian.  He was on good terms with those opposed to ZANU-PF.  He agreed that so far as political space was concerned, although it would not have been possible to hold an outreach meeting in, say, June 2008, it would have been possible by October that year.  It would also have been possible earlier than June.  June 2008 had been a particularly bad month.  The incidents of violence and harassment peaked between May and June.  The graph Ms Grey had asked about showed a level of violence similar now to the level in about October 2008.  The graph would not cause him to change his evidence.  He was concerned with potentialities.  President Mugabe’s record in terms of respecting matters agreed with Morgan Tsvangirai was not good.  He was certainly capable of announcing elections without agreeing this with the Prime Minister.  President Mugabe was bound to the COPAC timeline to no greater extent than he felt himself bound by any other agreements.  After June 2008, his credentials as President were very shaky and there was a period in which he backtracked.  In recent months, the trend on the radio was to refer to him with his fullest possible title.  His role as President was now emphasised more than in the past.

128. The Tribunal asked whether a person with no visible political background or affiliation would be at risk, if he were returned in, say, January or February 2011.  Professor Ranger replied that there was some truth in the assertion that the mere fact that a person had been in the United Kingdom would be a disadvantage but that would not put him in danger.  There were large numbers of Zimbabweans in danger through developments that had been discussed in the evidence.  Such a person would not be at risk at the airport.  So far as roadblocks were concerned, there were some in Manicaland.  A person might be stopped when travelling to a rural area, in order to stop access there.  Broadly speaking, a person could get to the major towns without being stopped.  The high density areas of Harare were more difficult.  Some had cholera.  There were shortages of water and power.  There were three kinds of zone in Harare.  There was small scale, low density housing.  Those housed there were now the white community, the coloured community and Africans who were not so poor.  The low density areas had more Africans than in the past.  In areas of intermediate density, social services had collapsed and they were in terrible disrepair.  There were problems with dereliction but not with gangs.  These areas might be described as “medium density areas”.  There had been an extension of party politics in these areas.  Even low density areas like Mount Pleasant had suffered trouble at the hands of ZANU-PF.  The areas one might describe as townships voted heavily in favour of the MDC, as did Chitungwiza.  There were problems in the high density areas, although these had some services.  There was also a struggle in the informal economy which tended to be about survival.  Market stalls were still destroyed in Bulawayo and Harare.  Some Zimbabweans present in the United Kingdom did not wish to return because they could not return in splendour.  They had no resources and would not be able to buy a house.  They might fear losing face.  Many Zimbabweans took the view that it would be marvellous to come to Britain.  They were not told that it rains here.  They feared being found out if they did not succeed.

129. Ms Jegarajah asked whether an active MDC member, known to the CIO, would have problems on return, at the airport.  Professor Ranger replied that such a person would face more problems than those without such a profile.  Lists were made and MDC members were in more danger.  President Mugabe might decide to eliminate activists.

130. Mr Henderson asked whether the medium density areas were occupied by poor white and not so poor black people.  Professor Ranger replied that this was so.  Such people would not be destitute.  There was also a geographical element in Harare.  There was proximity between white suburbs and high density areas.  There had been violence in Epworth, a squatter settlement.  There were areas in a buffer zone between the good areas and the areas of potential violence.

Mark Walker

131. Mr Walker was Assistant Director in the Directorate of Central Operations and Performance in the UKBA and Head of the Country Specific Policy Team.  He is now Head of Country Specific Litigation Team in the Appeals and Removals Directorate of UKBA.

132. Mr Walker adopted his statements of 2 September 2010 and 15 October 2010.  The first of these exhibited certain records of information that were provided to a joint FCO/UKBA fact-finding team that visited Zimbabwe in August 2010.  The team’s work led to the FFM report of September 2010.  The sources contacted by the team were informed that if they did not respond to the invitation to comment on or approve the records within seven days, it would be assumed that they were content that the records were accurate.  COIS, however, will continue to seek positive confirmation.  Speaking before the FFM report was published, Mr Walker’s first statement opined that the final version of the report will probably present the information thematically, as well as records of what individual sources said, and would include an executive summary.  There would, however, be no further analysis and no further information, apart from that in the records attached to the statement, unless the information was proactively provided by the sources in response to a request that they confirm the accuracy of the records.

133. Since 26 September 2006 the Secretary of State had deferred involuntary removals of failed asylum seekers to Zimbabwe.  However, she now considered that it would be safe to resume involuntary returns of those who had been found not to have a protection need.  The precise timing of the resumption of enforced returns would take full account of the situation inn Zimbabwe, including the political situation, and each removal would be considered carefully on a case by case basis.

134. There were currently three general Assisted Voluntary Return programmes (in addition to the Facilitated Return Scheme for foreign national prisoners):

Voluntary Assisted Return and Reintegration Programme (VARRP), for those who had sought asylum and those with certain forms of related temporary status in the United Kingdom.  Returnees received support in acquiring travel documentation, flight to country of origin and onward domestic transport, airport assistance at departure and arrival airports and up to £1,500 worth of reintegration assistance per person including £500 relocation grant on departure for immediate resettlement needs, additional luggage allowance and, once home, a range of reintegration options.  The majority of returnees were said to use their reintegration assistance in income generation activities.

Assisted Voluntary Return for Families and Children (AVRFC), was for families comprising a maximum of two adult parents or legal guardians and at least one child under 18, who had either sought asylum or were in the UK illegally and who wished to return home.  Such returnees received support in acquiring travel documentation, flight to country of origin and onward domestic transport, airport assistance at departure and arrival airports and up to £2,000 worth of reintegration assistance per person including a £500 relocation grant on departure for immediate resettlement needs, additional luggage allowance and, once home, a range of reintegration options.  The scheme was said to offer flexibility of reintegration for the whole family and increased emphasis was placed on the use of reintegration assistance for educational needs, as well as income generation.

Assisted Voluntary Return for Irregular Migrants (AVRIM), was for migrants who had not sought asylum but who were in the United Kingdom illegally and who wished to return home.  Such returnees received support in acquiring travel documentation, flights to country of origin and onward domestic transport, and airport assistance at departure and arrival airports.  There was generally no reintegration assistance for AVRIM applicants.  However, there was discretionary reintegration assistance of up to £1,000, considered on a case by case basis, available for vulnerable applicants.

135. The respondent had since 1 September 2006 enforced the removal of 81 Zimbabweans who were refused leave to enter and who did not claim asylum.  Mr Walker was unaware of any reports that any of these returnees had been mistreated.  In January 2009 the respondent arranged the escorted voluntary return of a foreign national prisoner to Zimbabwe.  The escorts did not accompany the returnee through immigration control at Harare and he passed through these without difficulty.  However, the escorts were arrested and detained overnight before being deported the following day.

136. The respondent made enquiries with a number of other governments about their experience of returning immigration offenders to Zimbabwe.  This information was set out in the report compiled by the Intergovernmental Consultations on Migration, Asylum and Refugees.  Mr Walker had been unable to obtain reliable information about the number of travellers between the United Kingdom and Zimbabwe.  The only carrier currently operating direct flights was Air Zimbabwe, which operated two direct flights a week.  Other airlines offered indirect scheduled routes from the United Kingdom, mostly via Johannesburg or Nairobi.

137. In his supplementary statement of 15 October, Mr Walker addressed the question posed by those representing the appellants in the present case, regarding access to the persons in Zimbabwe who had been interviewed by the team in respect of the FFM report.  Mr Walker said that some sources who had provided guidance for use in previous Zimbabwe country guidance cases had been distressed by the manner in which they had been approached by representatives of appellants in those cases.  One source had contacted the British Embassy in tears, seeking to retract his statement after being telephoned at night by an appellant’s representative and asked whether he wanted to be responsible for Zimbabweans being returned to Zimbabwe to face torture.  Another feared for his job after representatives of an appellant had contacted his boss.

138. Mr Walker’s supplementary statement dealt with the witness statement of Anthony Peter Reeler, which stated that Mr Reeler had not been informed in his interview with the FFM team that if he agreed to be identified he might be contacted by the lawyers for the appellants.  Nor was he asked whether he was speaking in his personal capacity or on behalf of his organisation.  Debbie Goodier, however, had provided a statement regarding her interview with Mr Reeler.  Ms Goodier explained the purpose of the meeting to him and discussed the question of attribution.  Mr Reeler responded that he was happy for the views he expressed to be publicly attributed to him.  She could not recall whether Mr Reeler was also asked whether he would be speaking in his personal or organisational capacity.  However that question was asked in the email sent to Mr Reeler on 19 August 2010, seeking confirmation that the note of the meeting accurately reflected what he had said.

139. Mr Walker agreed with the criticism levelled by Mr Reeler at the FFM report, that it failed to indicate whether the sources were speaking in a personal capacity or on behalf of their organisations.  However, the sources were asked to confirm this, although not all did so.  To date, all but one had so confirmed the position.

140. Mr Walker dealt with the questioning by Mr Reeler of the expertise of some of the organisations that the FFM team had spoken to, noting that Mr Reeler accepted that most of the organisations “do have expertise in the monitoring of political violence”.  Fact-finding missions aimed to cover as broad a range of views as possible and in the present case the COI Service had sought to interview individuals and organisations likely to have knowledge of the political and humanitarian situation, focusing on those involved in human rights and humanitarian issues in Zimbabwe, including international and domestic organisations.  An initial list of potential sources was sent to the FCO, inviting their suggestions for other sources, based on local knowledge.  The aim was to achieve as balanced and representative a sample for interview as possible, though Mr Walker said that the final selection of sources was also influenced by practical factors such as availability, timing and location.  Mr Walker was “confident that the sources who were represented in the FFM report provide a comprehensive and accurate picture” (paragraph 7).

141. Although agreeing that it was probably true that a large proportion of civil society in Zimbabwe had been infiltrated by the regime, Mr Walker considered that the organisations that the FFM spoke to were amongst the most vociferous in defence of democracy and human rights in Zimbabwe and that none shied away from reporting negative information.  As for the suggestion of Mr Reeler that the sources might have wilfully provided false information because they were concerned to keep relations with donors on a good footing, Mr Walker said in eight years working in Country of Origin Information and Policy, he could not recall a single instance of a human rights or humanitarian organisation seeking to increase the flow of aid by underplaying the seriousness of a problem.  On the contrary, the opposite was more likely to be true.

142. Mr Walker regarded as “untrue and offensive” Mr Reeler’s suggestion that the United Kingdom government sought to manipulate the evidence it obtained by withholding funding from those who were unhelpful.  As for the assertion that the British Embassy had been infiltrated, Mr Walker had not heard of this.  So far as the Embassy’s interaction with civil society was concerned, Tim Cole, the Deputy Head of Mission, had said that the Embassy had partnerships with a number of groups, including civil society organisations, in Zimbabwe, representing a range of views and opinions.  That information was used to inform the Embassy’s own analysis.  The Embassy did not attempt to exert influence over the nature of the information gathered or the conclusions which organisations drew from that information, by linking these issues with funding decisions.  To do so would undermine the objectivity of the Embassy’s own analysis.

143. So far as the assertion regarding W80 was concerned, that he was asked if he was aware of systematic ill-treatment of returnees, Mr Walker said that this gentleman was mistaken and that neither he nor any of the other sources had been asked whether they would be aware of treatment of returnees from the UK, systematic or otherwise.  W80 had volunteered information about what his organisation would be expected to know, unprompted, in response to a question whether he was aware of any returnees from the UK.

144. Mr Walker did not regard the circumstances of the returnees to whom the FFM team spoke as particularly unusual.  He noted a report of the Solidarity and Peace Trust that it was only Zimbabwe’s elite who made it to the United Kingdom.

145. A survey conducted by UKBA indicated that two thirds of asylum applicants originated in the large urban areas.  The rest came from smaller towns or rural areas across the country.

146. So far as Sarah Harland’s assertions regarding the IOM’s motivation were concerned, Mr Walker stated that her evidence was based on a misrepresentation of what had been said by Phil Douglas.  It was in the context of a discussion about whether IOM should be invited to attend Zimbabwe Diaspora events that Mr Douglas said that although UKBA was currently in a contractual relationship with IOM, there was no certainty that IOM would be the provider when that contract came to an end.  That was simply a “statement of fact” and, in fact, UKBA was “very pleased with what IOM has delivered in Zimbabwe” (paragraph 14).  Any criticism by Professor Ranger of the executive summary of the FFM report was led by the fact that the respondent did not rely on the executive summary but, rather, on the substance of the report as agreed by the sources.

147. Mr Walker said that it has not been possible to get as much information in the FFM as one might ideally have wanted and this accounted for the absence of a “trade union voice”.  They chose a combination of organisations that COIS relied on and considered to be reliable, as well as suggestions made by the FCO.  Mr Walker selected one organisation.  Those selected were ones with whom it would prove possible to hold meetings.

148. Mr Walker was asked about the letter of 18 October from the FCO, regarding the reasons why, hitherto, it had not been considered desirable to enforce returns to Zimbabwe from the United Kingdom.  He said that if Morgan Tsvangirai had been perceived by his supporters to be compliant in large-scale forced returns, that might have caused problems for the MDC.  It might also have been thought by ZANU-PF that the MDC was seeking to have voters shipped back in order to vote for him.

149. Cross-examined, Mr Walker agreed there had been no forced removals from January 2002 to November 2004.  In July 2005 forced removals had been deferred, pending the country guidance in AA no. 1.  Removals had occurred for a short period in July 2006 but had been suspended once again in September of that year.

150. Regarding the announcement on 14 October 2010 by the Minister for Immigration that forced removals would recommence, once the Tribunal had delivered its determination in the present case, Mr Walker said that the policy on removals was under continuous consideration by the respondent.  Mr Walker was asked how the position had changed since a statement made on 2 September 2010, which indicated that forced removals would not resume.  Mr Walker said that the FCO considered that the political situation was right.  The reason the policy had not been changed was not about the safety of returnees but because of the FCO’s concern to be as helpful as possible to the Government of National Unity.  This was not Mr Walker’s knowledge of the position but his understanding of the government’s concerns.  Asked about the press release concerning enforced returns (P128A of Tab 2 of respondent bundle B), Mr Walker said that paragraph 2 of the statement was wrong.  This said that returns had been suspended in September 2006 because the safety of returnees could not be guaranteed.  The press office had been told about this error.  A complaint had been made to them about it.

151. Mr Walker said he was aware of a body of opinion to the effect that elections in Zimbabwe might be likely in 2011 and that this would lead to an increase in violence.  Indeed, there was a reference in the FFM report to an election unleashing “unprecedented violence”.  Asked if it was not therefore a bizarre time to change the policy on returns, Mr Walker disagreed, citing the reasons he had given.

152. The executive summary of the FFM report was written by the Zimbabwe Country Officer in COIS and revised by the line manager.  The summary had not been written by Mr Walker or Ms Goodier.  She was not a Zimbabwe specialist.  Mr Walker said that the reference on page 5 in the executive summary of the FFM report to there being “fears that the current situation may deteriorate ahead of national elections which are likely to take place in the next couple of years” were not words that he would have chosen.  He emphasised that these were “fears”.  He accepted, however, that it was a minority view that the elections might be later than 2011.  Mr Walker said it was probably the case that the civil society witnesses who had spoken to the FFM team had indicated that the situation in Zimbabwe had deteriorated since the interviews undertaken in August.  Mr Walker did, however, want to consider all the evidence before committing himself on that matter.

153. Mr Walker was asked about the document at Tab 30 of Authorities Volume 3, which was a document prepared by the Home Office in September 2005 detailing Home Office organisational changes in response to recommendations made by the Advisory Panel on Country Information in March 2004.  In particular, Mr Walker was referred to the passage wherein the Home Office Minister “accepted the panel’s advice that as a matter of good practice, the two functions [country information and policy functions carried out by Country Information and Policy Unit] should be undertaken by different parts of the organisation; and that Home Office country information material would not be perceived as impartial while it was being produced by a unit that was engaged in the development of country specific asylum policy”.  Mr Walker said that he was unaware of that particular passage but knew about the policy in question.  Mr Walker was also asked about the minutes of the Advisory Panel on Country Information meeting on 8 September 2005 (Tab 34):

“2.1 The chair noted that following the Panel’s recommendation, the Home Office had separated the country of origin information (COI) and policy functions, with the COI element being transferred to research development and statistics (RDS).  He invited Dr Gary Raw to introduce paper APCI5.1 which outlined the organisational changes that had taken place.

2.2 Dr Raw noted that the separation of COI and policy functions had taken place in two stages.  The functions were initially separated within Country Information and Policy Unit (CIPU) in December 2004.  In order to minimise disruption, the relocation of the COI function to RDS was carried out after the publication of the April 2005 country reports and took place on 1 June 2005.  The move to RDS had the twin objectives of removing COI from the policy area and placing it in an environment where it would benefit from the input of professional research expertise.”

154. Mr Walker said that the separation had not been completely achieved and that UKBA were a customer of the COIS.  He was aware of the comments made by the Tribunal in the country guidance case of AA no. 1.  Before going on the FFM visit to Zimbabwe, Mr Walker had discussed the matter with the head of the COIS service and it had been decided that the best way of obtaining relevant information was for Mr Walker to be involved in the process; but he went as a customer, in order to describe what information was needed.

155. Mr Walker was asked in particular about paragraph 146 of AA no. 1.  This passage dealt with criticisms adopted by the Tribunal in that case regarding the information obtained by a delegation consisting of Home Office and FCO officials who had gone to Zimbabwe, prior to the hearing, in order to undertake a fact-finding exercise:-

“146. First, although no doubt Home Office officials have a very wide competence, it is surprising that the investigation facts and country circumstances was made by policy staff.  It was not made by, or analysed by, members of the Country of Origin Information staff.  The way in which the investigation was conducted, and the way in which the results were presented to us, gives rise to the possibility – we say no more than that – that the investigators may have had existing policy in mind rather more than the discovery of new facts.  We emphasise that we do not suggest at all that the process of gathering information and reporting it to us was intended to mislead: but we have to recognise that, as Mr Walsh in particular made clear, the results of the investigation were being put to us very clearly in the context of government policy and the government’s view.”

156. Mr Walker was asked whether, in the context of the current FFM report, he had gone to Zimbabwe with the view that the evidence regarding country conditions no longer supported the position taken by the Tribunal in RN.  Mr Walker said that this was the case.  He disagreed, however, that his view had an effect on the FFM report.  The COIS would not allow their objectivity to be skewed and the Home Office would not have the “slightest interest” in skewing the evidence in order to ensure that a person was returned who would be at real risk.  That would be the Home Office’s “worst nightmare”.

157. Mr Walker denied that the Operational Guidance Notes (OGNs) represented policy and that there had perhaps been a lazy use of that expression.  OGNs take the facts and the relevant law and apply them as best can be.  It was put to Mr Walker that the FFM report could not be impartial.  Mr Walker disagreed and said that its contents had not been affected by Home Office policy.  The team had gone to Zimbabwe in order to obtain knowledge from persons to whom they spoke.

158. Mr Walker was asked about paragraphs 6 and 7 of his supplementary statement:

“6. Mr Reeler questions the expertise of some of the organisations the FFM team spoke to, although he accepts that, of the organisations that agreed to be identified in the fact-finding mission report ‘…most do have expertise in the monitoring of political violence…’.  As with Country of Origin Information Reports that are produced by COI Service, fact-finding missions aim to cover as broad a range of views as possible.  COI Service sought to interview individuals and organisations likely to have knowledge of the political and humanitarian situation, focusing on those involved in human rights and humanitarian issues in Zimbabwe, including international and domestic organisations.  An initial list of potential sources known to cover issues of interest was sent to the Foreign and Commonwealth Office (FCO), inviting their suggestions for other sources, based on their local knowledge.  The aim was to achieve as balanced and representative a sample for interview as possible, though the final selection of sources was also influenced by practical factors such as availability, timing and location.  The programme of interviews was then arranged by the British Embassy in Harare.

7. With finite time and resources, it is not possible to speak to everyone who may have something of value to say, but I am confident that the sources who are represented in the FFM report provide a comprehensive and accurate picture.  There is one other source in particular who we would very much have liked to talk to but it was not possible to arrange a meeting.  Fortunately, much of that organisation’s knowledge is published and is contained in the written evidence.  I note also that at least ten of the sources in the FFM report are also represented in the appellants’ evidence.”

159. Mr Walker was asked about the April 2008 review of COI fact-finding mission reports and guidelines, prepared for the Advisory Panel on Country Information by Dr Alan Ingram of University College London (Authorities, Vol 3, Tab 31).  In particular, Mr Henderson referred to paragraph 2.6:-

“2.6. FFMs to date appear to have conducted of the order of 17-42 meetings/interviews per visit.  In some settings this may provide comprehensive and adequate coverage, but in many it may not.  With this in mind ideas about sampling, balance and representativeness in the identification of interviewees are crucial and require deeper and more explicit consideration, particularly in view of the complex political contexts where FFMs are likely to be undertaken.”

160. Mr Walker said that he had not seen this Review.  He had, accordingly, also not read paragraph 2.16, where a concern was expressed that a consultation of UKBA in order to gain a full picture of the range of information that an FFM mission could seek to obtain might infringe the integrity of the COI process; and that it was accordingly recommended that it should be made explicit that the purpose of such consultation was solely to inform and improve the FFM process and not to serve any other policy objectives.

161. Mr Walker was asked about the September 2008 document prepared for the Advisory Panel on Country Information, entitled “Fact-finding missions – methodology and guidance”, written by Nick Swift of COI Service.  Paragraph 4.1 of this made it clear that FFMs were an extension of the routine desk-based research used to produce COI Reports and that FFMs were not “seeking to find the truth; they are simply looking to obtain a range of views from informed parties on the issues in question”.  At paragraph 4.2, the relative advantages and disadvantages of giving interviewees advance notice and editorial control were discussed.  The main disadvantages of giving prior notice and “sign off” were that opportunities for eliciting fresh spontaneous material were reduced and the need to obtain consent built a delay into the process.  The paper considered that the advantages outweigh the disadvantages.  The consent element, in particular, gave the process inherent robustness and transparency “which obviates the need for extensive verification”.

162. At paragraph 5.2, there was discussion of feedback to the effect that the term “fact-finding mission” was misleading because the missions actually obtained the views and opinions of sources rather than facts.  It was noted that “fact-finding mission” was simply the accepted term used by all countries which carried them out, although a recent COIS FFM in 2007 had been caught “information gathering mission”.  Consideration could be given to reverting to that term in the future.  At paragraph 5.5, referring to the report of Alan Ingram, it was considered not to be feasible to apply social research models of sampling to COIS FFMs “which often have to be arranged at short notice and draw upon a relatively small pool of suitable sources”.  To some extent the sources used were self-selecting owing to practical considerations of availability, geography and timing.  Although seeking to make samples as representative as possible, FFMs made no claims about the validity of the sample and simply stated who was interviewed and what they said.  It was left to the user to assess the value of the information provided by each source, as well as the overall balance of the sample.  At 5.7 it was stated that the existing process whereby there was internal verification by two team members followed by explicit agreement from the interviewees that the information had been recorded correctly was inherently robust and transparent.

163. Mr Walker said that he was aware of the existence of this document.  Asked whether he accepted the statements to which reference had just been made, Mr Walker said he would need to consider that matter.  Mr Walker had not been guided by the existence of the document in framing his input to the FFM visit to Zimbabwe.  Mr Walker became aware of the document only after the visit had taken place.

164. Mr Walker was asked about the APCI document of April 2008 entitled “Evaluation of the report of the fact-finding mission 11-20 February 2008 Turkey” prepared by Dr Fiona Adamson of SOAS and Dr Başak Çali of UCL.  Mr Walker was unaware of this document.  Mr Walker, however, agreed with the following passage, as shown to him at the hearing:-

“We note that statements by interviewees should not necessarily be treated as authoritative but rather in many cases as opinions or impressions.  Especially, given the relatively small sample, it is unclear how representative the opinions presented in the report are.  When facts or statistics are quoted by interviewees they should be backed up with written sources whenever possible.  Also, a statement by an interviewee that no statistics exists in a particular area should not necessarily be taken as authoritative.

HO: agreed.  The statements by the interviewees do contain opinions and impressions, as do many COI sources.  They will be used in context of other authoritative material.”

165. Mr Walker was asked about the minutes of the 7 October 2008 meeting of the Advisory Panel on Country Information (Authorities, Vol 3, Tab 35).  At paragraph 3.9 of the minutes, Nick Swift of the Home Office stated that “The FFM report was not designed to be a ‘standalone’ document, but to supplement the COI Report.  Also, the information contained in FFM reports did not claim to be ‘objective fact’, but the views of the individuals interviewed.  Mr Swift said that these points would be made clear in the introductory sections of future reports of FFMs.”  It was put to Mr Walker that this had not happened in the case of the present FFM report.  Asked about paragraph 7 of his supplementary statement, Mr Walker said that he might not have used the word “comprehensive” on reflection, but nevertheless, given the degree of unanimity in the responses, he considered that these fitted with other evidence, outwith the FFM report.  Although the team could have interviewed more individuals, he considered the range was sufficiently representative, particularly given COIS and FCO involvement.

166. Mr Walker was asked whether the team had been briefed by the COIS as to the relative weight to give to the views of the persons interviewed as to the research capacity of their organisation.  Mr Walker did not know and the team had not looked into the issue of the research capacity of the organisations but that the COI and the FCO had been of the view that they were credible organisations.

167. Mr Walker could offer no comment on whether anyone who was interviewed had not realised what they were doing, when asked to sign a record of the information provided at the meeting.  One source who had chosen to remain anonymous was an organisation which had worked worldwide and whose reliability was unquestioned.  Two other anonymous sources were amongst the best known international organisations in the world and were also reliable.  One was a source that was also one of the witnesses for the appellants.  The fact that these assessments had not been reduced to writing did not affect the issue of the weight to be given to the views concerned.

168. Mr Walker described himself as having the function of a tool on the FFM visit.  The respondent had declined to adduce the personal notes taken by the members of the team, which were likely to be in the nature of personal jottings.  They had relied on the approval process of what had been described as “transcripts”, albeit that that expression might be regarded as a misnomer.

169. Mr Walker’s understanding was that they would be speaking to individuals as representatives of different organisations for whom those individuals worked.  Mr Walker was aware of one person who had not been speaking in that regard, as matters transpired.

170. Mr Walker was asked about one of the anonymous interviewees who (respondent D, divider 1, page 33) but apologised not just for being unable to put the comments on the record but also for not being “more candid”.  Mr Walker said this had not occurred to him as being a problem but the responsibility for the accuracy of the FFM report had been that of the COIS.

171. Mr Walker was referred to page 6 of bundle D, where the representative of Gays and Lesbians of Zimbabwe (GALZ) was recorded at page 69 of the FFM report as saying that “in high density areas openly gay men may face taunting and harassment”.  In the email recorded at page 6, however, the interviewee was recorded as saying that openly gay men in high density areas “may face violence, taunting and harassment”, with the marginal comment that “although isolated, it’s important to highlight its occurrence [i.e. violence]”.  Thus, in the published FFM report, the reference to violence had been omitted.  As to whether this raised concerns about the reliability of the report altogether, Mr Walker accepted that this had been a serious omission.

172. At page 85 of the FFM report, in the record of what was said by a major NGO, which asked to remain anonymous, Mr Walker was referred to pages 27 and 28 of respondent D, divider 1, where the interviewee had asked for amendments to be made to the record; but these had not been taken into the published document.  Mr Walker admitted that this was a concern but he nevertheless did not accept that these matters undermined the validity of the report.

173. Mr Walker was also referred to bundle D, pages 68 to 71, concerning the response of Zimbabwean Lawyers for Human Rights.  Their record in the FFM report had originally said:-

“Those who are more politically active are more likely to be attacked, for example MDC councillors or people who have positions in MDC structures, however the nature of violence depends on the area and the perpetrator of the violence.

The violence is mostly in the form of threats claiming that violence in 2008 will be surpassed.”

174. The last sentence in the passage just quoted was the subject of an email comment from the interviewee stating:-

“This is too much of a generalisation and underplays the complexities of political violence in the country.  I would suggest it either be taken out or developed further to indicate the many different types of political violence which are experienced.  It is definitely not just threats.”

175. It could be seen from the FFM report that the passage had, in fact, been taken out.  Mr Walker said that that was not necessarily how he would have approached the task.

176. Later in the same response there was this passage:-

“Relocation to rural areas is very difficult as there is no land available to be allocated to new arrivals without the authority of the chief in that specific area.  Movement to urban areas is possible but uncommon as economic reasons prevent people paying for accommodation.”

177. Again, there was an email comment as follows:-

“It is not uncommon as there has been an influx into urban areas but living conditions are terrible because people cannot afford the costs of accommodation and end up sharing small rooms with many other people.”

178. It was put to Mr Walker that this comment, which was relevant, had been omitted from the published report.  Mr Walker admitted that the matter was unsatisfactory but it did not undermine the general validity of the FFM report.

179. Mr Henderson then asked Mr Walker about the criticisms of the FFM report voiced by W66 and Professor Ranger.  Mr Walker said he disputed all their comments (appellant bundle A/Tab 2/pages 20 et seq).  So far as the executive summary placing a more positive spin than they would justify was concerned, Mr Walker said that that was a matter of opinion.  Mr Walker had, however, argued strongly against the inclusion in the report of an executive summary; but he had been overruled.

180. Mr Walker recollected that other interviewees had been asked about the profiles of victims of violence, not just the Research and Advocacy Unit (report, page 30); although it was only that organisation which had provided a specific answer on this issue.

181. Mr Walker was asked about paragraph 3.6.10 of the respondent’s OGN (RB/1/RB/1) which suggested that the FFM visit had found facts, which was inconsistent with the respondent’s evidence to the Advisory Panel as to how FFMs should be used.  Mr Walker said he was not sure he agreed with that question, in that the FFM was part of the factual basis on which the respondent made decisions regarding international protection.

182. In the FFM report the Zimbabwe Human Rights NGO Forum is recorded as saying that MDC supporters would be relatively safe if relocating within MDC dominated areas, noting that the MDC is “quite well organised” and can “protect” those at risk of violence (OGN 3.6.17).  Mr Walker was referred to the witness statement in appellant A/2/30) of W80 of the Zimbabwe Human Rights Forum, in which he said:-

“6. The summary refers to there being areas in which the MDC can protect its supporters by the threat of retribution.  What I was referring to there was isolated pockets of resistance that have appeared on occasions.  I did not mean that there were areas of the country that the MDC controlled or that the MDC could generally protect its supporters.  As I said to the Home Office, the infrastructure of violence is still intact and ZANU-PF remains in total control of the coercive arms of the state.  There is little therefore that the MDC can do other than rely on popular support in the areas I referred to.”

183. Mr Walker said that the source, W80, was a reliable one and that he did not dispute the last sentence of paragraph 6 of W80’s statement.

184. Mr Walker disputed, however, paragraph 2 of W80’s statement, where the latter asserted that he “was actually asked whether the forum had reports of systematic ill-treatment of returnees since the GNU and it was the systematic ill-treatment of returnees as I said we would expect to hear about if such a thing was occurring”.  Mr Walker said that the interview with W80 had stood out in his memory because the team had been taken aback that W80 had volunteered what he did.  Mr Walker did not accept that W80 had referred to “systematic” ill-treatment.  Mr Walker disagreed that W80’s recollection was better than his in this regard.  Mr Walker was “absolutely clear” that they had not asked W80 merely about whether reports of systematic ill-treatment had reached him.

185. Mr Walker was asked about Mr Reeler’s second statement and Mr Reeler’s third statement (A1/2/108).  This statement took issue with paragraph 8 of the supplementary statement of Mr Walker.  Mr Reeler claimed that he had actually said that “It should be noted that it is generally considered in Zimbabwe that a large proportion of Zimbabwean civil society organisations have been infiltrated by the regime although the extent of the infiltration is very difficult to prove.  Mr Reeler said that his statement was about the general perception, which was not possible to prove.  Mr Reeler did not know to what extent the British Embassy had been infiltrated.

186. Regarding paragraph 10 of Mr Walker’s statement, in which he took issue with Mr Reeler as suggesting that HMG “seeks to manipulate the evidence it obtains by withholding funding from those who are ‘unhelpful’.  This is untrue and offensive.”  Mr Reeler said his statement had made no such claim, nor would he do so.  Mr Reeler denied that he had made a general allegation about what the British Government might do in this regard; and he was not suggesting that Zimbabwean civil society organisations would give evidence that they knew to be false.  His point had been that there could be a tendency to exaggerate the expertise and knowledge of the organisation in interviews with important funders or potential funders and to provide answers which it is thought would be helpful.  That could lead to information being less valuable “without any deliberate process of manipulation taking place” (paragraph 4).

187. Mr Walker stood by what he had said in his supplementary statement.  He was also asked about the comments in the third statement of Mr Reeler regarding the Bulawayo Agenda and the Bulawayo Progressive Residents Association, two organisations interviewed by the FFM team, which according to Mr Reeler did not have the research capacity in relation to human rights violations.  Mr Walker accepted that those organisations would not as such have such research facilities.  By the same token, the Institute of Migration did not monitor the human rights abuses but had a wider migration role.  Mr Walker did not know when the IOM’s contract with UKBA was coming up for renewal.  He agreed, however, that the IOM had not been invited to certain Diaspora meetings, pending resolution of the contractual position.  As for the returnees being quoted as saying very similar things, Mr Walker did not regard that as strange.  He said that the returnees actually had said the same things.  He did not know whether the returnees he had interviewed in Zimbabwe were the same as those who had taken part in the video link conference meeting, described by Ms Harland.  The returnees who had agreed to talk to the FFM team were inevitably self-selecting.  Entitlement to further funding for a returnee was not subject to that person “having to make IOM happy”.

188. Mr Walker had not checked in advance about the asylum claims that the returnees had made, whilst in the United Kingdom.  The team did, however, have background papers on the returnees; but these had not been published owing to the risk of the returnees being identified.  Only one of the seven returnees had approved the transcript of the meeting.  Mr Walker was unsure whether good practice considerations indicated that, in the circumstances, the transcripts of the returnees should not be used.

Debbie Goodier

189. Debbie Goodier confirmed her witness statement of 15 October 2010.  She is a Senior Country Researcher in the Country of Origin Information Service of the UKBA.  She led the joint FCO/UKBA fact-finding team that visited Zimbabwe in August 2010.  She was also involved in the process of writing up and finalising the FFM report, which was published on the Home Office website on 21 September 2010.

190. On 17 August 2010 she and Andrew Jones of the FCO interviewed Anthony Reeler of the Research and Advocacy Unit.  At the beginning of the meeting Mr Reeler was handed a copy of the fact-finding mission Terms of Reference and Interview Guide (exhibit 1).  The purpose of the meeting was explained to Mr Reeler and the question of attribution was discussed with him.  Although Ms Goodier could not remember whether she or Andrew Jones led that part of the discussion, she could confirm that Mr Reeler responded that he was happy for the views he expressed to be publicly attributed to him and that he had already spoken to solicitors based in the UK.  It was also explained that a note of the meeting would be prepared and sent to him to approve.

191. Ms Goodier could not recall whether she or Andrew Jones also explained that in seeking approval Mr Reeler would be asked whether he was speaking in his personal capacity or on behalf of his organisation; but that question was asked in an email sent to Mr Reeler on 19 August 2010, seeking his confirmation of the note of the meeting.  Mr Reeler responded on 19 August 2010.  He was sent an email on 3 September 2010 from the FCO seeking his confirmation that the note accurately reflected what he had told the team.  Mr Reeler responded on 6 September 2010, stating that he had made some amendments and additions and was now happy with the amended document.

192. Cross-examined, Ms Goodier said that she was aware of recommendations relating to the preparation of fact-finding mission reports, following the FFM report on Turkey.  She had not received any guidance in relation to the present exercise regarding what weight was to be given to the various sources.  She did not know who had chosen the individuals to be interviewed.  Ms Goodier did not have any role in approving the summaries.  Her role was limited to being a conduit to the researcher who had written the executive summary.

APPENDIX B

SUMMARY OF EVIDENCE REGARDING TIMING AND CONSEQUENCES OF ELECTIONS

Timing of elections

1. The appellants’ witnesses were of the view that it was likely elections would be held in Zimbabwe in 2011.  That was the view of W66, although he admitted in cross-examination that he was unsure whether Mugabe’s statement that elections would occur after February 2011 might be simply posturing on the part of the President.  NGOs were, according to W66, expecting elections in that year.  If ZANU-PF felt that that would be their best chance, then elections would be called, regardless of the views of the Zimbabwe Electoral Commission.  W77 considered that 2011 was likely to be an election year, notwithstanding the Electoral Commission’s belief that it would not be possible to provide the necessary structures for a free and fair poll.  Professor Ranger considered the two scenarios people feared most were a general election which Mugabe and Tsvangirai would call in 2011 and the infighting within ZANU-PF when Mugabe were eventually to go.  Elections in 2011 were, in the view of Professor Ranger, likely despite the objections of the Chair of the Electoral Commission (Judge Mtambanengwe).  Mugabe had ordered his Finance Minister to set aside US$200 million to pay for fresh elections in 2011. 

2. A newspaper report of 12 September suggested Tsvangirai and Mugabe had struck a deal regarding elections, as being the only way to achieve resolution of the impasse in which they found themselves.  In cross-examination, however, Professor Ranger agreed that the fact the constitutional process was running far behind schedule suggested that elections might have to be held later.  There was uncertainty as to whether the COPAC process leading to the adoption of a new constitution would necessarily precede presidential and other elections.  If elections were called prematurely, their timing might be opposed by civil society.  However, if Mugabe were determined to hold elections, he would ignore the constitutional process.  On the other hand, one of the factors in the mix, according to Professor Ranger, might be the unwillingness of some MPs to subject themselves to elections.  Asked about an article indicating that the polls might be at least two years away, Professor Ranger said he had no knowledge of the “private whisperings” referred to in it, although the newspaper carrying the article was in his view to be trusted.  The present uncertainty, however, did not necessarily argue in favour of delay.  It was right that the control of elections was not exclusively within the power of President Mugabe and that agreement between ZANU-PF and the MDC was required.  Morgan Tsvangirai had said many different things about the timing of elections.  In re-examination, Professor Ranger said that Mugabe was capable of announcing elections without agreeing this with Tsvangirai; and Mugabe found himself bound by the COPAC timetable to no greater extent than he had felt himself bound by other agreements.

3. A report of 14 September from swradioafrica.com described ZANU-PF as having “kicked into election mode”.  On 28 July, The Zimbabwean had spoken of the “possibility of elections next year”, which led the Transitional Justice Project within the Zimbabwe Human Rights NGO Forum to shift focus from trying to make the GNU work to preparing for elections and making sure that they worked.  On 15 October, Reuters reported that Mugabe had said that, after a constitutional referendum, elections would be held “by mid next year.  I don’t see any reason why we shouldn’t have elections next year.” On 29 October, a British Embassy egram considered that “An election lies ahead, but when is as yet impossible to predict”.

4. On 25 November, radiovop.com reported that, although Mugabe was “feverishly pushing for elections by June next year”, the President was “facing stiff resistance from his MPs who were opposed to the polls”.  Prime Minister Tsvangirai, meanwhile, was “cautiously saying he wants elections but under conditions free of political violence and intimidation”.

5. In an interview on swradioafrica in June 2010, Anthony Reeler of the RAU had said that “Whether it’s in 2011 or 2012 or 2020, the crisis will be resolved by an election and that election has to be genuine, free and fair and able to be accepted by the entire international community”.  A Reuters article of 27 August quoted the Zimbabwe Electoral Commission as saying that an election in 2011 was not likely and that funding was the biggest challenge to holding an election.  In addition, the voters’ roll in Zimbabwe was a “shambles”.  This was the view of the Chair of the Commission, Judge Mutambanengwe.  An online report of 20 July had said that, whilst in public ZANU-PF and the MDC were telling their party supporters to stay ready for elections, “privately their officials say the polls are at least two years away”.  This was the article about which Professor Ranger was asked in cross-examination.  Lovemore Madhuku, head of the pressure group called National Constitutional Assembly, said that there was “nothing inevitable about next year”.  Madhuku did not think that ZANU-PF was sure about the electoral outcome “and I don’t see how they can be in any hurry”.

6. On 30 September, a report in The Independent of Zimbabwe quoted Morgan Tsvangirai saying that he was no longer certain that elections would be held in 2011.  The MDC had to be sure that there would be no violence or repetition of what had happened in 2008.  The Financial Gazette, two weeks earlier, had carried a report from its correspondent in Harare, regarding the SADC summit, which concluded that “talk of elections is premature and ill-advised”.  The correspondent considered that the MDC was in danger of “falling into a ZANU-PF elections trap”.  On 12 September, however, it had been reported that Tsvangirai and Mugabe had, according to the former, agreed to hold elections in 2011.  The Chair of the Electoral Commission said that rushing to hold a new vote before thorough preparations would inevitably result in a disputed outcome.  On 5 October, Justice Mutambanengwe was quoted as stating that his organisation did not have the funding to run a full and fair poll, thereby contradicting a statement in October by his deputy, Joyce Kazembe, who had claimed that the Commission was ready to conduct national elections if the leadership and government asked them to do so.  According to the report, (in thezimbabwean.co.uk) Mutambanengwe appeared determined to counter her conflicting messages.  The allocation of money for a poll would only occur in January 2011.  On 16 November, thezimbabwemail.com quoted COPAC’s co-Chairman Mwonzora as saying that Mugabe’s and Tsvangirai’s call for elections in 2011 “could just have been a case of nervous excitement”.  Mwonzora said that there was “nothing on the table to impel his committee or the Zimbabwe Electoral Commission to hold elections next year”.  His organisation did not “listen to what leaders say at rallies when they are talking to their voters” and none of the leaders had gone to Parliament to request an election for 2011.

7. On 23 November, thedailynews.co.zw reported that the Executive Secretary of the SADC had said that it was “premature for President Robert Mugabe and Prime Minister Morgan Tsvangirai to talk of holding elections next year when they had not fully implemented the issues agreed in the Global Political Agreement”.  On the same day the British Ambassador in Harare was reported as saying that the political climate was not conducive to a free and fair general election.  On 21 November, The Standard reported that some ZANU-PF MPs had boycotted their party’s caucus meeting, which was designed to force them to endorse Mugabe’s push for early elections.  A source said “It’s only Mugabe and a few people who want elections to be held next year”.  Another source, however, said that if the President says there are to be elections “there will be elections”.

8. On 29 November, radiovop.com reported that President Zuma of South Africa had visited Zimbabwe and met Mugabe and Tsvangirai.  According to a government source, Zuma “was in a no nonsense mood and told the leaders that he was fed up with continuously having to discuss simple issues which could be resolved amicably”.  President Zuma felt that “only credible elections will help resolve the political crisis in Zimbabwe”.  Reporting on the same visit, another internet site said that the talks had been expected to focus on the timing of new elections “after the ZANU-PF party had declared that polls would be held around June 2011”.  After the meeting, none of the leaders “would elaborate on the timeline for elections or the future of the unity deal”. 

9. The evidence supplied by the parties up to 28 January 2011 also contains a substantial amount of material relating to the timing of elections. Despite the public pronouncements at the ZANU-PF annual conference in December and party hardliners pushing for an early poll, voanews.com reported on 11 January that Mugabe was “amenable to a delay”, given the “intense pressure for a slower pace towards elections” from the SADC. A referendum on the constitution in September 2011 looked like “a more likely timeline”, according to the report. Reuters had reported on 14 December that analysts considered the elections could still be postponed for at least a year due to regional pressure. A professor of political science at the University of Zimbabwe was quoted as saying that, despite Mugabe’s apparent preference for early elections, “His major problem is that SADC is not convinced that early elections are good for Zimbabwe or the region”.  The Chair of the National Constitutional Assembly considered that ZANU-PF “might not call early elections for strategic reasons”. This report echoed one in the Zimbabwean.co.uk of 8 December, which quoted a “well-placed source” in civil society in Zimbabwe as saying that SADC had told Mugabe that he could not unilaterally call for elections without SADC’s involvement and input”.

10. On 4 January 2011, an Angolan press report referred to Zimbabwe’s state-owned Sunday Mail as saying that it would not be possible to hold elections because the constitutional reforms needed to be completed first; and that Zimbabwe had informed the SADC it was not feasible to hold elections “in the first half of 2011”. A report in the standard.co.zw of 10 January claimed Mugabe had angered hardliners by supporting the recommendations of his deputy, Joice Mujuru, to set aside plans to hold elections in 2011, and that constitutional changes needed to come first. Political observers were said to have expressed the view that “it was highly unlikely that polls would be held this year”.

11. On 18 January, the MDC’s finance minister said in Johannesburg that it was a “probability” that elections would see a repeat of the violence of 2008. Although asserting the MDC would not boycott the elections, if called in 2011, the minister, Mr Biti, said that, if conditions were “in any way close to June 2008, it would be immoral for us to lead people to the slaughterhouse”. A report in zimonline.co.za of 19 January observed that, although Mugabe had said elections must take place in 2011, “they may yet be postponed to 2012 or 2013”.

12. In the House of Lords on 27 January 2011, the Minister of State said “Mr Mugabe seems to be pressing for early elections”. The “sensible view”, however, was for elections to come only after the constitutional process had been completed. The United Kingdom government would press for EU monitoring to play a part “when elections come in sight”. On the same day, zimonline.co.za said that “rising reports of political violence suggest a vote is imminent (sic) either at the end of the year or early next year”.

Consequences of elections

13. As can be seen from the foregoing, the question whether the calling of elections is likely to unleash the sort of violence seen during 2008 (or worse), with war veterans, youth militias and the like subjecting people on a wide scale to “loyalty tests”, and with the prospect of violent retribution in the event of failure, cannot be entirely separated from the question of when such elections are likely to be held.  A rush towards early elections, say in the middle of 2011, would fuel fears that ZANU-PF and Mugabe are determined to retain power by any means possible, including violent coercion.  On the other hand, such a move may well be opposed by the international community, in particular the SADC and President Zuma of South Africa.

14. Entirely understandably, the appellants’ main witnesses and various of the civil society organisations interviewed by the FFM team were extremely concerned that any future elections will be attended by the widespread serious violence seen in 2008.  W66 noted grave fears that violence would quite rapidly escalate and intensify as the expected 2011 election approached, in view of ZANU-PF’s track record and determination to stay in power at any cost.  Zimbabwe’s history indicated that the coming election would be a “violent event”.  W66 considered that the SADC and others would have no real influence in securing a fair outcome.  Whilst that was necessarily speculation, he based it on the history of Zimbabwe over the past ten years.  Although when President Zuma came to power, there was a feeling he would encourage a more democratic approach in Zimbabwe, there did not appear to be any principled or pragmatic policy coming from South Africa.  Asked about Tsvangirai’s statement that he would not participate in elections if this would risk violence as in 2008 (appellants’ bundle C), W66 did not recall the Prime Minister saying this; but if the MDC did pull out, this would lead to “more complications”.

15. W77 doubted that, despite its supposed disbandment, the JOC had any intention of abandoning its strategies of maintaining power for ZANU-PF.  As before, youth militia or “green bombers” would be mobilised under the control of senior military as “shock troops for a ZANU-PF victory”.  The destruction of the education system in Zimbabwe meant that ZANU-PF now had a “pliable youth”.  In his “balance sheet”, W77 put on the debit side “every indication that violence such as that seen in 2008’s election periods would recur”.  There would need to be regional or continental pressure to ensure that GPA commitments were honoured.

16. We have already noted Professor Ranger’s description of fears regarding future elections.  He regarded the Chair of the Electoral Commission, a Namibian Supreme Court Judge whom Professor Ranger had taught as a student, as a “splendid man” but Mtambanengwe faced an impossible task as the voters’ roll was in chaos and there had been chaos in all previous elections.  On the other hand, there had been some measures in place to protect people in 2008, which was why the March elections in that year had been relatively successful.  In particular, publicising the results and the votes cast had made it difficult for ZANU-PF to carry out too much vote-rigging.  There had also been further reforms in the process recently, in that results would be posted publicly, the overall outcome would be published within a week and there was supposed to be a police presence at each polling station.  Human rights organisations had commended certain of the proposals, whilst criticising others.  Professor Ranger considered that, if the elections were held later, then perhaps these measures would be implemented.  However, nothing appeared to have been done to resolve the problems regarding the electoral roll and the Commission could not stop elections happening if Mugabe insisted.

17. Professor Ranger agreed in cross-examination that Tsvangirai had assured his supporters that he would not go into a violent election or take part in one.  Professor Ranger nevertheless found it hard to believe that Tsvangirai would not take part in elections if they were called.  This time, however, Professor Ranger acknowledged that there was an Electoral Commission that could suspend the process and the MDC also hoped to get SADC support.  Tsvangirai’s withdrawal might be a compelling factor if MDC supporters were being exposed to violence.

18. Professor Ranger regarded the prospect of an SADC monitoring system or even peacekeeping force as being low.  There had been monitors present in past elections.  Nevertheless, Professor Ranger agreed that the SADC and South Africa were under pressure to see the stabilisation of Zimbabwe.  There was a possibility that South Africa would apply adequate pressure, although Professor Ranger regarded this as very unlikely.

19. Anthony Reeler considered that long-term SADC observers were needed both before and after the election, as well as independent control of the election process.  He thought there was no sign that SADC had the will or ability to impose this.  If the election went ahead without such measures, it was likely to be a very violent situation “at least comparable to 2008” or indeed “worse than 2008”.  Dewa Mavhinga of Crisis Zimbabwe Coalition said that although limited electoral reforms had been undertaken, these had not been “around prevention of violence”.  Civil society groups were demanding that SADC should deploy monitors “with significantly more authority than mere observers”.  The forthcoming election was likely to bring organised violence throughout Zimbabwe, although it was difficult to predict how the worst of the violence would be distributed.  The witness thought Mashonaland would suffer especially badly.

20. W78 of the Catholic Commission for Justice and Peace Zimbabwe considered that “We are now back on the road to the violence we saw during the 2008 election”.  The MDC had failed to gain a real control over the Home Affairs Ministry.

21. On 28 July, Zimbabwe Human Rights NGO Forum, speaking of their shift in emphasis from the working of the GNU to preparing for elections, stated that they were “very mindful of the fact that there might be a repeat of political violence”.  Without saying what they were doing, the spokesman indicated that the Forum was putting in place strategies that would assist victims and try to mobilise the grassroots to stop fighting political wars among themselves.  On 5 December, Justina Mukoko of the Zimbabwe Peace Project gave a speech entitled “Political violence in Zimbabwe: a curse or an age old tradition”, in which she said the fear for elections in 2011 was that they would “prove to be more violent than the ones held in 2008”.  Although violence had been perpetrated with impunity in Zimbabwe since colonial times, only recently had attacks occurred mainly against those promoting the democratisation of the national government.  She said that the 2005 elections had been “relatively peaceful”, compared with 2008.

22. In the FFM report, Anthony Reeler of RAU said that that organisation was currently researching communities where militia bases existed and looking at northern Zimbabwe “where the violence was worst in 2008.  We are looking at what was in place in 2008 where there were multiple bases which explicitly targeted MDC and non-participating voters.”  He considered that ZANU-PF was currently identifying areas for bases to open in January 2011.  They were also recruiting youth to operate from these bases.  Some bases would be used “again and again, and others will be set up anew”.  One constituency they had monitored had five bases, whilst in other areas the bases would rotate, “being in existence for only a week or two, then moving on to another area.  There is no strong evidence of bases in urban area[s], although Epworth did have a base in 2008.  Rural districts can become no go areas in the election run-up and visitors to an area will be closely monitored.  In urban areas, retaliation violence is not uncommon.  Some MDC communities have developed a strategy where all members carry a whistle to attract other members if there is violence so the community can protect themselves.”  The issue of whether there was a base at present in Epworth (a township to the south-east of Central Harare) was also the subject of comment from the Zimbabwe Human Rights NGO Forum in February 2010, which spoke of the “alleged reopening” of a militia base in Epworth.  The Zimbabwe Association of Doctors for Human Rights were recorded in the FFM report as saying that it had heard that bases were being set up in a similar way to those established in 2008.

23. We are aware of what was said on behalf of the appellants regarding the weight to be placed on the Counselling Services Unit’s response to the FFM team.  We consider, nevertheless, that some weight can be placed upon the comments of that Unit regarding what it considered to be the nature of the victims of violence in 2008, given that the Unit’s remit extends to assisting those who are or had been the subject of such violence.  The CSU considered that in the 2008 elections, “80% of the victims of such violence were known to have had a role in the electoral process above and beyond of merely being opposition supporters.  Most of the abductions and executions were at the hands of a death squad and took place on four particular days period (sic) with the victims being clearly targeted for their political effectiveness rather than random killings.”

24. The major international organisation interviewed on 12 August told the FFM team that there was “great potential” for violence levels to increase or even exceed 2008 levels, when the elections came round.  Violence in connection with elections would, it thought, follow the pattern of 2008 and be targeted at areas that were previously ZANU-PF strongholds.  The organisation considered that “targets will primarily be political activists and former ZANU-PF voters who defected to the MDC”.  The anonymous organisation interviewed on 11 August, likewise, had a fear that “any future election will lead to more violence”.  The major NGO interviewed on 11 August noted actual and implied threats that victims of violence in 2008 could expect the same in the run-up to the next elections.  The potential for political violence was “significantly higher in most rural areas, with the exception of Matabeleland North and Matabeleland South, than it is in urban areas”.  The Zimbabwe Human Rights NGO Forum were quoted in the FFM report as saying that the “infrastructure to deliver large scale violence remains in place”.  The Catholic Commission for Justice and Peace Zimbabwe said that there was “potential for even higher levels of political violence before the anticipated 2011 elections than were in 2008”.  However, the source said that it was “not however possible to predict with any confidence” in that if ZANU-PF thought it could win by sleight of hand it may decide to use such means; otherwise it might unleash “unprecedented violence on the basis that it has nothing to lose”.

25. We have already mentioned the interview given by Anthony Reeler on swradioafrica on 18 June 2010.  Here, Mr Reeler said that peacekeeping forces were put into “failed states”, which was not so with Zimbabwe.  The best that could be hoped for from the international community and SADC was an “incredibly intense observation and that would require the cooperation of the state in Zimbabwe, where you have observers observing the Electoral Commission, the police, the army, the prisons, the civics, the political parties, the rallies, there are different ways of doing this thing”.  Mr Reeler thought that such very intense observation “could ensure a genuine election”.  Although Zimbabwe was in many ways a disaster, there were encouraging signs, such as the people’s demand for democracy.

26. The swradioafrica.com article of 19 November, referring to the SADC troika meeting on Zimbabwe, recorded SADC leaders as “pushing for the immediate deployment of an SADC team to oversee the reform and electoral process.  But some observers remain concerned that other leaders in SADC are firmly on Mugabe’s side and are not impartial enough to help run free elections in Zimbabwe.”  On 23 November, the same organisation reported that the regional SADC block had said that an independent investigation was required in Zimbabwe “to verify reports of violence and intimidation before a general election could be held”.  Civic leaders were insisting such elections could be held only if soldiers returned to their barracks to allow for the smooth running of an election that was free from militarisation, manipulation and violence.  On 29 November, South African President Zuma was said, during his visit to Zimbabwe to meet Mugabe and Tsvangirai, to have indicated that he wanted SADC “to be heavily involved and wants an election roadmap which is credible.  Zuma does not want bloody elections and does not want members of the intelligence and uniform forces to interfere with elections.  In short, Zuma effectively wants elections to be run by SADC together with the Zimbabwe Electoral Commission.” Commenting on this visit, a British Embassy egram of 1 December concluded that “despite his many other distractions, Zuma remains engaged on Zimbabwe” and concerned that elections proceed without violence in a free and fair manner.

27. On 7 January 2011, a research group called “Afrobarometer” said an opinion poll indicated 7 out of 10 Zimbabweans feared intimidation and violence “if elections go ahead this year”; but despite these fears, 70% still wanted elections in 2011. According to zimonline.co.za on 19 January, a three month investigation had revealed plans for more than 80,000 youth militia, war veterans and soldiers to be deployed across Zimbabwe “in an army-led drive to ensure victory for President Robert Mugabe in the next elections”. The report said the Joint Military Operations Council (JOC) planned to intervene before foreign or even local election observers were on the ground. Their plan was to unleash violence and terror to ensure that “a thoroughly cowed electorate will on voting day back Mugabe in enough numbers to save the veteran President” from a second round of voting in the Presidential elections. The JOC were said to have worked “quietly” and “almost unnoticed” to reactivate the structures that waged violence in previous polls, “apart from the occasional [reports of] human rights groups or the media of resurgent violence in some parts of the country”. Referring to Laurent Gbabgo, President of Ivory Coast, who in late 2010 refused to cede power after defeat at the polls, the report described Zimbabwe’s generals as fearing that SADC “is unlikely to accept another blood-soaked second round election for Mugabe or allow him to refuse – Gbabgo style – to hand over power to a victorious Tsvangirai”. The report contained a list of senior soldiers who would be based in particular districts, across Zimbabwe.  A ZANU-PF spokesman dismissed the report as an attempt to smear his party.

28. Tsvangirai was quoted on 7 December as saying that one of the fundamental issues to be addressed was that of violence in any future elections. Civil society groups were pressing the SADC to deploy monitors, although how this would be done was not clear.

29. A number of the recently produced reports concerned the release by the organisation WikiLeaks of US diplomatic emails, some of which involved Zimbabwe.  The leaks suggested Tsvangirai had met US officials to discuss policy, as a result of which there were suggestions the Attorney General would charge him with treason, and also contained the alleged observation from a minister of the government of South Africa that Mugabe was a “crazy old man”. Voanews.com commented on 10 December that these leaks “could lead to instability and violence” ahead of the election expected in 2011.

30. A report in the zimbabweamail.com of 26 January 2011 claimed that ZANU-PF had set up “campaign bases in various constituencies” in Harare. The bases were said to be “confined to high-density areas”. According to “some residents” this involved turning the homes of some district level party leaders and losing parliamentary candidates into campaign bases “to organise meetings where youths spend most of their time strategising for the next election”. This was said to have “unsettled residents” and resulted in clashes between ZANU-PF and MDC youths in Mbare and Budiriro.  An ZANU-PF spokesman denied his party was setting up bases, saying it was a normal part of party activity for members to meet for “mini rallies” at their leaders’ homes.

31. The Minister of State in the Foreign Office told the House of Lords on 27 January that the United Kingdom government “has contributed to the UN funding of the constitutional review process, with a referendum due to be held in the summer of this year. We are also working with international partners, particularly the Southern Africa Development Community, on a process to seek to ensure that elections, when held, will not see a repeat of the violence of 2008. The prospects for credible elections will be greater if sufficient time is allowed for important reforms to be implemented”. In the same debate, the Minister told peers that “Jacob Zuma has said, while leading SADC’s support programme, that he will take personal responsibility to see that the constitutional process goes forward and that the country is properly prepared for elections. We support him in these aims; that must be the right way forward”.

32. According to zimonline.co.za, again on 27 January, Morgan Tsvangirai had told President Zuma “that a SADC-backed election roadmap would still fail to deliver free and fair polls in Zimbabwe in the face of resurgent political violence that has in recent days spread into urban areas”. Zuma was said to be drafting a roadmap, whereby “elections will follow a referendum on a new constitution and will also set milestones such as electoral reforms, the role of the security forces and how to smoothly transfer power”. The MDC reportedly said escalating political violence from ZANU-PF hardliners and the military would render the roadmap “meaningless”.

APPENDIX C

DOCUMENTARY MATERIAL