New Zimbabwe Country Information Note: Deliberate minimisation of real effect of current human rights violations in Zimbabwe

The UK Government wants to be seen as taking a serious position against human rights abuses in Zimbabwe through public condemnation of recent events yet refuses in practice to accept that now is not the time to subject intended returnees to intimating re-documentation interviews by Zimbabwean Embassy officials with a view to detention and removal.

It seems the UK government is merely paying lip service to its international obligations as regards the refugee convention.

The recently published Country policy and information note: opposition to the government, Zimbabwe, February 2019 shows no shift in position as regards assessment of risk on return for Zimbabwean asylum claimants but instead seeks to minimize the disturbances in Zimbabwe to mere civil unrest not giving rise to a Convention reason.

In some instances, the Note makes bold and unqualified statements within the first few pages:

“2.4.9 The tone of political rhetoric has been more conciliatory since Emmerson Mnangagwa came to power, with the president stating in public that open political engagement and dialogue is needed. He responded to the postelection violence in the form of the Commission of Inquiry, and condemned violence during the recent fuel protests (see The political landscape, The political opposition and Treatment of opposition to the government)”.

What could and should have been highlighted following the above summary is that the Minister of State for Africa, Harriett Baldwin, very recently stated: “I have been following the events in Zimbabwe over the last week with growing concern. I summoned the Zimbabwean Ambassador to the United Kingdom to attend the Foreign Office on 17 January to discuss the situation”. https://www.gov.uk/government/news/ministerial-statement-on-zimbabwe

Not only that, she stated as follows on 30 January 2019 ( after Mnangagwa’s supposed condemnation of violence and invitation to dialogue): “…..response of Zimbabwe’s security forces to protests against the petrol price rise has been disproportionate and all too reminiscent of the darkest days of the Mugabe regime. Security forces have used live ammunition, carried out widespread and indiscriminate arrests and unleashed brutal assaults on civilians, with clear disregard for the due process of law…….. Many of us have seen footage of young men, and even children, allegedly scarred from beatings by soldiers. We have also seen atrocious accounts of security forces raping civilians during their violent crackdown, with indications of least nine reported rapes, some of which appear to be politically motivated............. President Mnangagwa’s return to Zimbabwe was a full 10 days into the crisis. He committed to holding his security forces to account for human rights violations and spoke of the urgent need for a national dialogue and reconciliation. I am sure colleagues would agree that words are good, but that they need to be followed by deeds.

President Mnangagwa must act to stop the abuses and make good on those commitments. We are particularly concerned by the targeting of opposition and civil society in the wake of the protests. The abuses have continued since his return to the country. His Administration must act now and learn lessons from the events and the tragic violence that followed the election on 1 August 2018. The President must, as he promised, implement the recommendations of the commission of inquiry into the 1 August violence”.http://www.harriettbaldwin.com/content/zimbabwe-debate

Immediate issues

What people should be keen to ascertain is the current position of the Home Office in relation to the following:

  • Whether in light of the recent political disturbances in Zimbabwe, there has been a shift in those the Home Office consider will be at risk on return.

 

Assessment of risk and CM(Zimbabwe)

There is nothing new in the Note’s acknowledgment that, “Persons involved in actual or perceived opposition activities include members or supporters of political parties, protestors, journalists, civil society activists and teachers”.

The Note states that the case of  CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC), heard in October 2012 and promulgated in January 2013, (which modified the Country Guidance in of EM & others (Returnees) Zimbabwe, heard in October 2010/January 2011 and promulgated in March 2011), the Upper Tribunal found that in general there is significantly less politically-motivated violence in Zimbabwe compared with the situation considered by the Asylum Immigration Tribunal in RN (Returnees) Zimbabwe, heard in September/October 2008 and promulgated in November 2008. CM, states in particular that the evidence did not show that, in general, 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 ZANU-PF (para 215 (1).

The Home Office’s position is that the findings of the Upper Tribunal in CM generally continue to apply.

A person who is, or perceived to be, a supporter of the MDC-T is in general not likely to be at risk of persecution or serious harm in:

  • Low or medium density areas of Harare

  • Bulawayo

  • Matabeleland generally

However, MDC-T members or those perceived to support the MDC are in general likely to face serious harm or persecution in:

  • High density areas of Harare

  • Rural areas (other than Matabeleland where there have been fewer incidents recorded)

As indicated in a previous blog post, the Home Office and the Tribunal have on many occasions either refused or dismissed Zimbabwean asylum claims having regard to CM, concluding lack of risk to the claimant in light of improved or stable conditions in Zimbabwe as well as lack of significant profile.

Having regard to recent background evidence, contrary to the current Home Office position, it can be argued that there is significantly more politically-motivated violence in Zimbabwe than was the position when CM was decided.

Moreover, recent background evidence does indicate a targeting of opposition members/protesters in Bulawayo, such as “Troops return to Zimbabwe's streets with a vengeance”, 24 January 2019, https://news.sky.com/story/troops-return-to-zimbabwes-streets-with-a-vengeance-11615802

A wider pool of persons potentially subject to persecution seems evident and the focus should no longer only be on those able to show a “significant profile” or “significant MDC profile”.

A minimisation of the categories of persons subject to risk, having regard to current background evidence, would serve to exclude a significant number of claimants seeking to rely on the refugee convention.

Assessment of the August 2018 and 2019 violations and abuses

The August 2018 incidences appear within the following paragraphs of the Note:

  • 2.4.12

  • 2.4.14

  • 5.1.1 to 5.2.5- conduct of the elections and challenge to the result

  • 7.1.8 to 7.1.13

  • 7.2.10 to 7.2.22

  • 7.5.6 to 7.5.9

  • 7.7.5 to 7.7.10

  • 8.4.1 to 8.4.5

  • 9.2.8

The 2019 disturbances are summarised as follows within the Note:

  • 2.4.22

  • 7.4.5 to 7.4.11

Home Office position following the political upheavals in Zimbabwe

The Home Office ‘s current position within the Note following the political turmoil is this:

“2.4.23 Although there have been recent protests and civil unrest, the House of Lords has established that a state of civil war or civil instability and/or where law and order has broken down does not of itself give rise to a well-founded fear of persecution for a Convention reason. The onus is on the person to demonstrate why they face a risk above and beyond the general inherent incurred during a time of civil unrest”.

The situation in Zimbabwe can hardly be described as a “state of civil war or civil instability and/or where law and order has broken down”.  This is the Home Office clutching at straws.

The claims that Zimbabwean nationals based in the UK intend to put forward or have recently submitted have their roots within the refugee convention, rising from actual or imputed political opinion.

In light of the increased level of political violence in Zimbabwe, there should be a full application of the principles arising in the Supreme Court in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38 , which is on point with the issues in play: any person who has political beliefs and is obliged to conceal them in order to avoid persecution if he were to reveal them should be recognised as a refugee. In relation to the person who has no political beliefs and who, in order to avoid persecution, is forced to pretend that he does, under both international and European human rights law, the right to freedom of thought, opinion and expression extends to the freedom not to hold and not to express opinions. The right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and the Convention too. Nobody should be forced to have or express a political opinion in which he does not believe. He should not be required to dissemble on pain of persecution. Refugee law does not require a person to express false support for an oppressive regime. Protection should be given to applicants who claim asylum on the grounds of a fear of persecution on the grounds of lack of political belief regardless of how important their lack of belief is to them. Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime (or its agents) as a supporter of its opponents and persecuted on that account. But a claim may also succeed if it is shown that there is a real and substantial risk that, despite the fact that the asylum seeker would assert support for the regime, he would be disbelieved and his political neutrality (and therefore his actual lack of support for the regime) would be discovered. It is well established that the asylum seeker has to do no more than prove that he has a well-founded fear that there is a "real and substantial risk" or a "reasonable degree of likelihood" of persecution for a Convention reason. The starting point must be that the purpose of the Refugee Convention is to protect people from persecution. In the extreme, repressive and anarchic conditions which obtain in Zimbabwe, the risk of being persecuted is all too real and predictable, albeit, on the evidence currently available, the incidence of that persecution is likely to be both random and arbitrary. As a general proposition, the denial of refugee protection on the basis that the person who is liable to be the victim of persecution can avoid it by engaging in mendacity is one that  court should find deeply unattractive, if not indeed totally offensive. Even more unattractive and offensive is the suggestion that a person who would otherwise suffer persecution should be required to take steps to evade it by fabricating a loyalty, which he or she did not hold, to a brutal and despotic regime. If an apolitical individual fails to demonstrate plausibly that he or she is a sufficiently fervent supporter of Zanu-PF, he or she will be deemed to be a political opponent, irrespective of how greatly he or she cherishes the right not to hold a political view. The status of deemed political opponent, whether it is the product of imputation of political opposition or merely the arbitrary decision of those testing the degree of conviction or fervour with which support for Zanu-PF is expressed, is the gateway to persecution and that cannot be dependent on whether the lack of political opinion is due to a consciously held conviction or merely due to indifference. That is why the emphasis must be not on the disposition of the individual liable to be the victim of persecution but on the mind of the persecutor.

Conclusion

Those who do not support ZANU(PF), the political neutral as well as those who have protested against Mnangagwa’s regime whilst in the UK or been critical of its governance, should be able to put forward a viable claim based on either actual or imputed political opinion.

The current situation in Zimbabwe is such that those at risk are not simply those who are MDC supporters but also anyone who cannot demonstrate positive support for Zanu-PF.

The position of the Home Office that the present circumstances in Zimbabwe do not give rise to a Convention reason should be resisted and challenged.

 

Alice Muzira