Alex T. Magaisa
The Midlands Hotel, an imposing structure at the heart of Gweru, is arguable the Midlands city’s most iconic building and, countrywide, it certainly punches in the heavyweight division. It has stood there since 1927, with another icon, the Boggie Memorial Clock, just a few metres away. Together, they form a grand old pair that confers a unique character on Gweru. The owner of The Midlands Hotel completed the triumvirate of the city’s icons. His name was Patrick Kombayi, himself a heavyweight in physical stature, character and in the wallet. One of Gweru’s most famous sons, Kombayi was a flamboyant character who built a large and well-known business empire with Gweru as its headquarters.
On 24 March 1990, Kombayi was shot seven times by a group of men in his beloved home town. They shot him in the groin, plainly with the intention to kill. By some miracle, Kombayi survived the attack. The men who shot him were acting on behalf of a political opponent. His crime, it seems, was that he was contesting with the then Vice President, Simon Muzenda, in the Gweru Urban constituency. It seems the big son of Gweru was considered a genuine threat to the Vice President’s political career.
Things hadn’t always been that bad. Kombayi had once been a staunch Zanu PF man. Indeed, in the 1980s he had earned the distinction of being the first black Mayor of the city. Back in the liberation struggle, he had played an important role supporting the guerrilla movements based in Zambia and Mozambique, a point acknowledged by Edgar Tekere in his book, A Lifetime of Struggle. Always a man with a knack for business, Kombayi had moved to Zambia and built a business empire there. He had selflessly ploughed the profits of his business into the enterprise of liberating his country.
At some point earlier in his life, he had been a student of Robert Mugabe, back when the latter was a young teacher. Ten years after independence, Kombayi had become disillusioned with his former teacher and his fellow comrades from the war years. He had begun to drift away. He would take out the whole back page of Moto magazine, the feisty Gweru-based publication, and flight adverts challenging government policies. He was particularly scathing about ESAP and plans to set up Zimbabwe as a one-party state. When Tekere formed the Zimbabwe Unity Movement (ZUM) in 1989, Kombayi was right there with him. It was the first serious opposition party formed after independence and played an important role in stopping the one-party state. It was on the ZUM ticket that Kombayi was challenging Muzenda, Mugabe’s number two. It was this brave and audacious challenge which nearly cost him his life and left him disabled.
It was just three days before the election date when his assailants shot him. His shop in Ridgement, a suburb of Gweru, had been set ablaze by ZANU PF youths and his supporters had been badly assaulted. He identified the men who shot him. Two of them, Edward Kanengoni and Kizito Chivhamba, were later tried and convicted of attempted murder. But they were immediately released after President Mugabe invoked his presidential powers of pardon. Kanengoni was the chief of the CIO in Gweru at the time and Chivhamaba a member of ZANU PF’s young wing. When Kanengoni died in 2013, he was given national hero status and his remains were interred at the National Heroes Acre. Chivamba is still alive and is a Member of Parliament for ZANU PF and was the ZANU PF chairman for the Midlands Province until his recent suspension. Kombayi, who had to be flown to to Britain for reconstructive surgery, died in 2009. He had finally made it to Parliament and was a Senator for the opposition MDC. Despite his sterling contribution to the liberation struggle, hero status eluded him. But that now is an exclusive estate of ZANU PF and Kombayi’s hero status lies in the hearts and minds of the people of Gweru, his beloved city, and the nation at large. His legacy lives on. His son Hamutendi has carried his father’s torch and in 2013 was elected Mayor of Gweru.
I have narrated this story for four reasons. First, it is a classic illustration of the problem at the heart of Zimbabwe’s gross failure to curb political violence and, secondly, this problem is the abuse of the presidential pardon, more generally the amnesty. Third, it demonstrates the enduring character of violence as a political tool in Zimbabwean politics. However, there is an additional aspect that is not apparent from the story, but which will become evident by the end of this article: the conspiracy of silence by the international community in these early years. My purpose is to explain how these factors have shaped the architecture of violence and impunity in Zimbabwe and what ought to be done to dismantle it. As usual, this historical analysis is not an idle exercise – rather, my thesis is that we cannot understand the deep-rooted nature of the problem of political violence and impunity in Zimbabwe unless we understand its origins and the application of the presidential pardon/amnesty powers.
Willowgate and Shava
Kanengoni and Chivhamba are not the only men who have benefited from the presidential pardon or amnesty. In 1989, Frederick Shava, former Minister of Labour and Social Welfare and senior member of ZANU PF, was convicted of perjury. He had lied under oath to the Sandura Commission, which was investigating large-scale corruption. Shava spent just one night in prison. The next day he was released after President Mugabe granted him a pardon. “Who amongst us has not lied?” said Mugabe at the time, justifying the pardon. “Yesterday you were with your girlfriend and you told your wife that you were with the Prime Minister. Should you get nine months for that?” It was a casual justification of using the presidential pardon. The release of Shava forced Patrick Chinamasa, the Attorney-General at the time, to drop plans to prosecute other senior Ministers who had also committed perjury when they lied to the Sandura Commission. Shava went into the background, where he eventually secured political rehabilitation. Today, he lives in New York, where he is Zimbabwe’s Permanent Representative to the United Nations. That episode signified a casual attitude to corruption which would soon engulf the nation and become the scourge at the centre of its collapse. Today, corruption has become a way of life and those who are wealthy by corrupt means are applaused as heroes.
Victoria Falls Road massacre
On 11 February 1983, Lieutenant Edias Ndlovu, his wife, Jennifer Khumalo, and two other unidentified persons were callously murdered along the Bulawayo-Victoria Falls road. Their assailants were four soldiers from the notorious Fifth Brigade. Describing the gory scene at the inquest, the Magistrate said, “I find that the female bodies were stripped of their pants and dresses and that the possibility of sexual assault cannot be discounted… The indications are that the deceased were tied with pieces of fibre, were got down on the ground and repeatedly stabbed with bayonets, much as a hunter slaughtering a wounded animal with a spear…”
This event was part of the Gukurahundi massacres. In one of the few officially recorded cases of Fifth Brigade atrocities, the four soldiers were tried and convicted of murder and sentenced to death. However, in June 1988, the four murderers were released under an amnesty granted to members of the security forces. This amnesty covered members of the security forces who had already been convicted or were awaiting trial. Clemency Order No. 1 of 1988, following the signing of the Unity Accord between ZANU and PF ZAPU on 22 December 1987, granted amnesty “with respect to all human rights violations committed by the state security forces and so-called dissidents between 1982 and the end of 1987”. Another beneficiary of that amnesty was a CIO officer who just a week before had been convicted of murdering a political detainee in cold blood.
The use of amnesty in 1988 after the Gukurahundi atrocities was justified on the basis of trading off justice for peace – that it was a necessary part of the package to end hostilities that had taken place between 1983 and 1987 in the Matabeleland and Midlands regions. Yet the truth was that these members of the security forces and the dissidents had committed gross human rights violations, and some of them had actually been tried and convicted in court. In any event, it was a top-down approach which involved virtually no consultation with the victims and survivors, who were simply expected to forget and move on. This was problematic, as explained by a lawyer quoted in a 1993 Amnesty International report: “For those who were untouched, they might as well have been reading about Lebanon. Those people have nothing to forget, nothing to forgive. But in Matabeleland, every family was touched. Every family suffered.”
What is apparent in all these cases is that perpetrators were not only pardoned or given an amnesty by the President, but that they were subsequently rewarded. But how did a country that fought against human rights violations and to install freedom get to this point? In order to understand the casual attitude adopted by government in these cases and in future instances of gross acts of violence, we have to go back to the beginning. Amnesties and pardons were not only institutionalised at the beginning, but they have become an integral part of Zimbabwe’s architecture of violence and impunity. Zimbabwe will not resolve the problem of political violence, particularly state-sponsored political violence, unless there is a better grasp of the genesis of the problem and the extent to which it pervades the infrastructure of the State and, indeed, society at large. To use a dictum first coined by Professor Jonathan Moyo years ago and subsequently popularised by his counterpart Professor Masipula Sithole, we have to understand how the ‘abnormal’ became ‘normalised’.
How it all started: The Lancaster House Agreement
As with all narrativess of Zimbabwean law and politics, we have to return to the Lancaster House Agreement (LHA), the document in terms of which the new State of Zimbabwe was founded. Two critical and related things happened at when this document was signed. First, there was a general amnesty granted to Rhodesian security forces and guerrillas for the atrocities and human rights violations during the war. Second, senior members of the Rhodesian security establishment were retained in the security apparatus of the new Zimbabwean State. Both had profound and lasting effects on the new State – a lot of which is still felt to this day. The problem is summed up in the following words by Amnesty International in a 1993 report on Zimbabwe entitled, Drawing a line through the past:
“The army, police and other security agencies had been responsible for widespread extrajudicial executions, ‘disappearances’, torture and other human rights violations which had been thoroughly documented by both domestic and international human rights organisations. At independence, however, essentially political considerations dictated that not only would past human rights violators not be brought to justice, but they would be retained in their positions in the security apparatus, with no investigation or calling to account for the deeds of the past.”
1979 and 1980 Amnesty
The amnesty under Amnesty (General Pardon) Ordinance 12 of 1980 was part of the LHA, which included an amnesty for what were regarded broadly as acts of war. This amnesty was agreed to at Lancaster House even though during the war the nationalists had been continuously calling for the trial of Rhodesian leaders who presided over human rights violations. In addition, before the 1980 amnesty, as the end of the war was in sight, the Zimbabwe-Rhodesia Government, led by Bishop Abel Muzorewa had in 1979 already granted a general amnesty to members of the Rhodesian security forces. The purpose of this amnesty was obviously to protect members of the regime who had committed human rights atrocities during the war. It was a pre-emptive move just in case there would be a new government that might want to pursue vengeance. They needen’t have worried because the LHA provided for the amnesty anyway, which was eventually declared in 1980. But the 1979 amnesty had set a precedent for any furture government: that they could violate human rights and before depature they could always grant amnesty.
The 1980 amnesty, like land rights, parliamentary clauses, pension rights and dual citizenship, was seen as part of the package to reassure the white minority that there would be no vengeance. It was believed this would be an incentive for them to stay on and help the country with their knowledge and experience. It is arguable, though, that a key motivation on the part of the new government was to prioritise stability over justice. Indeed, Mugabe himself had survived two assassination attempts in the period leading up to independence on 18 April 1980 and threats of a military coup by disgruntlement white officers were ever present.
However, noble though the objectives of the amnesty might have been at the time, it is this episode that set a bad precedent which would have serious consequences for the new nation-state. Amnesty International was critical of the fact that in retaining those who had flagrantly violated human rights, the new government went ‘far beyond’ their Lancaster House obligations. According to Joseph Lelyveld, who interviewed the then Security Minister Emmerson Mnangagwa in 1983, the retention of human rights violators in senior security positions was justified by necessity: “Zimbabwe could not be expected to dismantle its only security agency,” Mnangagwa had explained.
Amnesty International was critical of the 1980 amnesty. It argued that the reasoning put forward for the amnesty − that colonial abuses were part of the war effort − was a ‘serious distortion’ because the colonial State was ‘a system of institutionalised racial domination which depended on systematic and often legalised human rights violations for its maintenance… The Rhodesian security forces carried out many extrajudicial executions of prisoners, civilians or others not taking an active part in hostilities, acts which are prohibited under the international humanitarian law of armed conflict as well as international human rights standards.” The perpetrators knew what they were doing. As a State, Rhodesia had a duty to protect, which it deliberately breached.
What is clear is that, just like the whole LHA itself, the amnesty agreed at Lancaster was certainly a compromise driven by politics of expediency. Justice was sacrificed on the altar of stability. Yet, as we shall see, this top-down approach which grossly disregarded the views of victims and survivors would be repeated several times after independence. It gave existing and future members of the security establishment the reassurance that they could violate human rights and still be guaranteed protection of the State through amnesty laws. As Amnesty International wrote: “The amnesty for Rhodesian human rights violators was not by itself responsible for the continuation of the same abuses in independent Zimbabwe. However, it did provide the environment − and the means − for continuing human rights violations.”
Indeed, as Amnesty International correctly explains, the task of integrating the guerrilla armies and the Rhodesian security forces was made easier by the fact that both sides had a “shared military ethos − including the notion that they were beyond the reach of the law – [which] proved stronger than their previous differences.” The instrument of the amnesty facilitated that.
Indemnity for human rights violations
Another instrument, quite like the amnesty and which also planted the poisonous seed of impunity, was the indemnity legislation inherited from the colonial State. The Indemnity and Insurance Act was enacted in 1975 after victims of torture brought a number of claims against members the Rhodesian security forces. The legislation protected members of the Rhodesian security forces and ministers for acts committed in ‘good faith’ to protect the security of the State. The legislation also gave the Minister for Law and Order authority to terminate any actions for damages pending at the High Court. It also applied retrospectively, indemnifying perpetrators for acts committed since 21 December 1972, the date on which the second phase of the war commenced with the Rex Nhongo-led attack on Altena Farm at Centenary.
The indemnity legislation was effectively a licence to impunity. Members of the security forces could violate human rights without fear of civil or criminal prosecution. It allowed members of the security forces to commit atrocities, such as the bombing of refugees at Nyadzonia and Chimoio, knowing full well that they would be protected by the law.
Most notably, the indemnity laws continued after independence. As noted in a
