Bridging the Accountability Gap: The opportunities that documentation through digital evidence presents for legal accountability and restorative justice in Zimbabwe
By Ruwadzano Patience Makumbe
Civil society has been the stronghold in effecting paradigm shifts and changes in societal challenges such as inequalities, promotion of human rights including health and access to justice. In executing this role, the focus has always been on documentation of violations with an aim towards evidence-based reporting. This has predominantly been successful and so much positive change is due to the important advocacy and lobbying by civil society. However, with this much success, new technologies can be harnessed to end impunity and enhance access to justice for victims. The last two decades have seen the increased importance of new technologies including digital evidence such as pictures and videos in the documentation of human rights violations by communities and civil society groups. This abundance of digital evidence available, however, has up until now not matched the level of legal accountability one would expect or facilitated restorative justice for victims. It is essential that we interrogate why that is the case and how civil society can be supported to begin the process of ensuring such accountability.
The storytelling role of civil society through the use of open-source evidence has undoubtedly empowered communities and victims to tell their stories. Such evidence has evolved, giving agency to victims to claim and access justice. Open source evidence such as pictures and videos available online has presented new opportunities in the investigation and documentation of human rights globally. The International Criminal Court which is mandated to adjudicate over the most serious crimes has relied on digital evidence and continues to explore how digital and open-source evidence can facilitate the work of the OTP, and the ICC more generally. This brings to mind the case of Prosecutor v Mahmoud Mustafa Busayf Al-Werfalli who was the commander of al-Saiqa, an elite unit within the Libyan National Army. Based on evidence collected on social media, the ICC issued an arrest warrant against Al-Werfalli on 15 August 2017. Similarly, the reliance on digital evidence posted online and on social media platforms by the UN Commission of Inquiry on the Protests in the Occupied Palestinian Territory, the Independent, Impartial Investigative Mechanism for Syria and the UN Fact-Finding Mission for Myanmar are indicative of the underlying role of digital evidence in legal accountability.
It is therefore important that we understand what this means for legal accountability in Zimbabwe. Legal accountability for human rights violations in Zimbabwe is a blurred area with many unacknowledged gross violations including the terror campaigns which were orchestrated in the Matabeleland region from 1983 resulting in the death of over 20 000 people. Cases of the enforced disappearances of Itai Dzamara and many others and extra-judicial killings of over 30 civilians perpetrated in August 2018 and January 2019 also illustrate the culture of impunity in Zimbabwe. In as much as these cases are known, there remains accountability and restorative justice gaps. It is from this perspective that it is necessary for civil society in Zimbabwe to undertake documentation of human rights violations with an eye for legal accountability. What makes the context in which the 1983 violations were perpetrated different from violations in the last decade is an increased online presence, access to electronic gadgets and internet connectivity. Society has the power to capture human rights violations and hold evidence that would have ordinarily been unavailable. The opportunity to use this digital evidence to secure legal accountability through criminal prosecutions is now available. Citizen journalism now means that individuals and communities can show violations through their own eyes. However, this storytelling endeavor should not only be limited to documentation but should bring justice through the eyes of the law.
This is important in the fight against impunity and also ensuring that victims receive justice through access to an effective remedy and also access to the truth. Drawing from international human rights law and international humanitarian law, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), provide that by protecting the right to an effective remedy, the right to equal and effective access to justice, the right to adequate, effective and prompt reparation for harm suffered and the right to truth are also protected.
Efforts should, therefore, be on how this level of accountability can be facilitated. The first major hurdle is the need for civil society to advocate for an independent judiciary and the respect for the separation of powers and the rule of law in Zimbabwe. This is critical as a weakened judiciary does not uphold fairness and legality. The courts should provide support for victims and not seek to protect the perpetrators of human rights violations. Further, there is also a need to fight impunity for perpetrators of human rights violations. Following the extrajudicial killings perpetrated in August 2018 and January 2019, there have not been any prosecutions, meaning that no one has been held accountable. This has further validated the culture of violence in Zimbabwe and amassed feelings of fear and vulnerability for anyone who wants to argue for accountability for human rights violations. This makes it important to invest in educating communities of their rights to hold the government accountable. This accountability also includes investment in the strengthening of local institutions including the judiciary. Institutions such as the Independent Complaints Mechanisms which is provided for in section 210 of the Constitution should also be established to ensure access to justice for victims and an end to impunity.
There are various tools that are available to support legal accountability and restorative justice in Zimbabwe. The primary tool is realizing that through collective action, change can be achieved. There is a need for communities and civil society to continue working together and build a strong voice against impunity in Zimbabwe. A common objective to rebuild Zimbabwe’s accountability system should be on the agenda and efforts must be concentrated towards this. As civil society organizations continue to document human rights violations, it is important that lawyers are also involved, providing support in building evidence. It is also important to understand that with digital evidence for legal accountability, it is necessary that considerations to the laws of evidence are given and this may require that as resources are invested in cameras and smartphones promoting citizen journalism, the focus should also be given to software that allows for the preservation of the evidence’s chain of custody, metadata including date and location, etc. Accessible and affordable internet connectivity should also be considered with attention being paid to the realities of gender disparities in access to both electronic gadgets and internet connectivity. Resources should also be invested in the preservation, verification, and authentication of such evidence to ensure that such evidence is deemed admissible in courts and to dispel any arguments on evidence tampering and deep fakes.
In conclusion, accountability for human rights violations continues to shrivel in Zimbabwe at a time when it is necessary to rebuild the country towards sustainable development and economic growth. New technologies present opportunities to bridge that gap if harnessed and incorporated in current efforts on human rights advocacy. Digital evidence is an avenue to tell the story of victims but it is also a tool to empower victims by seeking justice and truth which facilitates restorative and transitional justice.