The Law Report: 2 August 2005 - The Collapse of the Rule of Law in Zimbabwe; Questions over how an Australian Mining Company operates in the Congo
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This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.
Damien Carrick: Today we travel to Africa. We look at the growing controversy surrounding an Australian company which operates a mine near the town of Kilwa in the Congo.
Richard Meeran: What happened was that in October of last year, there was a small-scale rebellion which caused the interruption of operations at a mine which was run by Australian company Anvil Mining. As far as we know, the mining company evacuated its employees on planes that it had chartered and the Congolese Army returned on those same planes, and then took vehicles owned by the company and committed atrocities against the local civilian population.
Damien Carrick: Now lawyers are looking at whether the company could be complicit in the massacre of up to 100 people. That’s later.
But first to Zimbabwe, where a comprehensive campaign to undermine the justice system has helped pave the way for the widespread demolition of urban housing, a policy which has left 700,000 of the country’s poorest people homeless.
In a recent report, the United Nations has slammed the Mugabe regime’s so-called ‘clean out the rubbish’ campaign. Describing the eviction and demolition of urban shanty towns and informal businesses as ‘a catastrophic injustice’, the Zimbabwean opposition says the campaign has nothing to do with concerns about sanitation or crime prevention, rather it’s a direct pay-back on the urban poor for having voted against Mugabe at the last election.
Prominent lawyer David Coltart is the Opposition Justice Minister. He says the demolitions, the ongoing seizure of white-owned farms, the destruction of the free press and the collapse of democracy have been made possible partly because the Mugabe government has been highly effective in undermining the independence of the courts, which in the 1980s were well-regarded internationally. David Coltart told me that there’s little semblance of an effective and independent rule of law in today’s Zimbabwe.
David Coltart: Well, we have all the form of rule of law but very little substance, and we see a judicial system that has been completely subverted. It has been turned on its head. The police are not there to protect the rights of people, we see selective prosecutions brought by the police and the attorney-general, and there’s absolutely no fairness before the courts.
Damien Carrick: Can you give me some recent examples? I guess what comes to mind most obviously is the razing of urban slums, colloquially called ‘removing the rubbish’.
David Coltart: Yes, Operation ‘Remove the Rubbish’ has graphically illustrated what I’ve just discussed. We’ve got a variety of laws in Zimbabwe that govern what should happen when there are illegal structures. Let me stress as well that many of these structures were not illegal, but let’s assume that they all were, the Regional Town and Country Planning Act, the Urban Councils Act and the Housing Standards Act all state that where there is an illegal structure, the occupant of that structure must be given personal notice that the structure is illegal, and should be given a period of a month to remedy it, or to vacate it before it is demolished. And the law also says that the local authority is the institution that should proceed with the demolition. That hasn’t happened in Zimbabwe. Local councils, which are controlled by the opposition, haven’t even been consulted. The police in some instances have moved in without any notice whatsoever, with bulldozers, and just bulldozed some of these homes to the ground, and people have had absolutely no recourse to the courts. When they’ve tried to go to the courts, in one particular case, the courts have ignored these statutes in a brazen example of how they side with the regime, which is pursuing a political objective.
Damien Carrick: Well why are the courts ignoring the statutes which are on the books? Why has it come to this point?
David Coltart: Sadly, in the course of the last five years, the judiciary has been completely subverted. The Mugabe regime has used its acquisition of commercial farms to subvert the judiciary and many judges have received farms and have in that way become complicit with this regime.
Damien Carrick: You’re telling me that the judges have been handed formerly white-owned farms?
David Coltart: Yes, judges, including the Chief Justice, have been handed farms that have been, in many cases, unlawfully seized from their former owners. Not just smallholdings; some of them are highly sophisticated businesses, and in some cases these judges don’t even attend to their duties. In one particular case, this judge is hardly ever in the High Court, because he’s busy farming. So you’ll see that the judiciary has been very seriously subverted through this.
Damien Carrick: And I understand that those judges who’ve refused to come to the party have been severely punished. Several have even been driven into exile. Tell me about some of the more prominent cases, for instance, who is Judge Fergus Blackie?
David Coltart: Well Fergus Blackie is a judge first appointed by Robert Mugabe in the mid-1980s. He served as a High Court judge – and I stress the point about Robert Mugabe – until he was pretty much hounded out of office a few years ago.
Damien Carrick: Why was he hounded out of office?
David Coltart: Well we was outspoken. He was one of the independent judges, and the final straw was when he found that the Minister of Justice was in contempt of the High Court, and that inflamed the passions of not just the Minister of Justice but also others in government, and they then embarked on a campaign of retribution.
Damien Carrick: And there’s another judge, Justice Michael Majuru. Tell me about him.
David Coltart: Michael Majuru was an Administrative Court judge. Our Administrative Court presides over land matters, and also general administrative law matters. He handed down a judgment in relation to an application brought by an independent newspaper for an operational licence, and he ruled in their favour, and was then subjected to a barrage of abuse in the government-controlled press and was threatened by the government. He feared for his life and is now in exile.
Damien Carrick: How do the courts operate under these kinds of pressures? I mean do people just buckle, as these judges do and walk out and leave?
David Coltart: Well not all of them do. Our highest court is called the Supreme Court of Zimbabwe. We have one judge left there who is a remnant of the previous Supreme Court, Justice Wilson Sandura, very brave and courageous and principled man, but he is only one judge of six Supreme Court judges. You’ll find a similar percentage in the High Court. There are a few remaining independent judges left over, and there are more at the lowest level of courts in the magistracy. But the vast majority of our High Court judges, unfortunately, now appear to owe their allegiances to the regime, and one simply doesn’t get justice on any politically-related case.
Damien Carrick: When we’re talking about the corruption or the corrosion of public institutions which contribute to a collapsing of the rule of law, we have to look not only at the judiciary but also at the police and at the Attorney-General’s Department and a whole range of other institutions.
David Coltart: Absolutely, and Parliament as well. Parliament in the last five years has subverted our laws. We’ve seen the promulgation of statutes that are draconian, indeed I would term them fascist. For example we’ve got the Public Order and Security Act which requires political parties to seek police permission prior to holding meetings, and the police are given very wide powers to ban those meetings. The so-called Access to Information and Protection of Privacy Act is an Act designed to cut down on the freedom of the media, and has been used to effectively ban the daily newspaper, an independent daily, with the largest circulation in Zimbabwe, and so we see that law itself, parliament itself has been subverted, turned on its head. And law, far from being used as an instrument to protect human rights, is used as an instrument to suppress Zimbabweans’ human rights.
Damien Carrick: Now as I understand it, not only is legislation being amended, there’s now serious talk about the Mugabe regime amending the Constitution, the sort of core document, which spells out everybody’s rights and responsibilities. What’s been proposed, and what do you think about those proposals?
David Coltart: This is a matter of deep concern. In March this year, through chicanery and abuse of the electoral process, the Mugabe regime has effectively secured a two-thirds majority in Parliament, which it needs to amend Zimbabwe’s constitution. In particular, they say that they’re going to introduce a Senate, which the country can ill afford at present. I haven’t seen the details of the amendments, but there is some discussion that the executive is going to be given powers to appoint members to the Senate, that it won’t even be done through democratic process, and in a very disturbing development, they say that they are now going to attempt to nationalise land that has been identified for resettlement, and by that they mean all the land acquired from predominantly white commercial farmers. They’ve been deeply frustrated in that, despite all the flaws in the legal system, lawyers and farmers’ organisations have taken a variety of constitutional points and have delayed the process in attempts to protect farmers’ rights. And very few of these land cases have been resolved, to the great embarrassment and frustration of the regime.
Damien Carrick: Even though if the cases are heard, it’s more than likely that the judges will come down in the government’s favour?
David Coltart: Yes, absolutely. For example, I was involved in a constitutional test case earlier on this year before the Supreme Court and, quite frankly, it was unanswerable. What the Supreme Court has done in that case is it was argued in March, and we still don’t have a judgment. This is an urgent application brought to the Supreme Court in terms of our declaration of rights, and it still hasn’t been adjudicated on. Now we’ve got this constitutional amendment which seeks to nationalise everything and drive a horse and carriage through all the rights that farmers had, in an attempt to bring this whole process to an end.
Damien Carrick: In other words, don’t even bother coming to the courts, don’t waste our time with these cases which have delayed, if not stopped, the process of expropriation.
David Coltart: That’s all that has happened, you’re absolutely correct. All that we’ve done is delay the process, and expose the cavalier way in which subordinate legislation such as the Land Acquisition Act has been dealt with in Parliament.
Damien Carrick: Now I know that you’re both a politician and a lawyer, and I understand that many opposition politicians have died as a result of opposing the government. Tell me, what are the kinds of pressures put upon lawyers who bring actions against the government?
David Coltart: Well, lawyers are not immune at all. Lawyers have been detained and assaulted and tortured. Gabriel Shumba, a relatively young lawyer who in a particularly bold way represented opposition politicians in Harare, the capital, was tortured and is now in exile. Beatrice Mtetwa, who won the IDA Human Rights Lawyer of the Year Award a couple of years back – a woman lawyer, I stress – was assaulted by the police. I have been detained, my house has been searched, I have survived an assassination attempt. So lawyers who stand up are subjected to very similar abuse to members of other professions and the public.
Damien Carrick: I understand that something like six opposition MPs have died, or been tortured and killed.
David Coltart: Of the 57 opposition MPs who were elected to Parliament in June, 2000, six died by the end of that five-year term in March this year, as a direct or indirect result of torture or other unlawful conduct perpetrated by state agents.
Damien Carrick: Politicians and lawyers are people who are relatively well-resourced and presumably that would provide some protection from being susceptible to government pressure, but of course ordinary Zimbabweans are far, far worse off.
David Coltart: Oh, absolutely. Tens of thousands of Zimbabweans in the last five years have been tortured, have been assaulted, have been deprived of food, have been subjected to all sorts of other indignities in violation of their rights.
Damien Carrick: Lawyer and politician David Coltart, the Shadow Justice Minister of Zimbabwe; a white MP, whose electorate is in an overwhelmingly black area of Bulawayo, Zimbabwe’s second-largest city.
You may have seen a few weeks ago a Four Corners program on ABC TV that reported on the bloody and brutal suppression of a small civil uprising involving about 20 rebels, some wearing sandals, that took place in October last year in the town of Kilwa in the Congo.
The rebellion was brutally quashed by the Congolese military, who killed up to 100 villagers.
Four Corners explored the role of an Australian company in the massacre. Perth-based Anvil Mining operates a highly lucrative copper mine nearby, whose operations were disrupted by the small rebellion.
Richard Meeran is a special counsel with Slater and Gordon. Acting on instructions of a number of human rights groups, he recently submitted a complaint to the Australian federal police, calling on them to investigate the events in October last year.
Richard Meeran: As far as we know the mining company evacuated its employees on planes that it had chartered, and the Congolese Army returned on those same planes, to Kilwa, and then took vehicles owned by the company, and committed atrocities against the local civilian population. The conduct of the Congolese military is a matter of record. It’s been well-documented for a number of years that they have been involved in committing atrocities against civilians. And when they knew they were coming, the local population ran away. A number of them unfortunately were captured. Some of them were beaten and tortured; we understand from investigations that there were some rapes that occurred, but in addition to that, a number of people were taken to a place by the military and shot and buried there. According to the local UN group which conducted an investigation afterwards, between 30 and 100 people were summarily executed, and a number of other people were tortured and subjected to other kinds of violations.
Damien Carrick: So what involvement do you say Anvil, the mining company, had with the events of October 2004?
Richard Meeran: Well, what we know – and I don’t think there’s any dispute about this – is that the military came in to Kilwa in planes that had been chartered by Anvil Mining, for other purposes no doubt, but that’s how they came in. And that while they were in the town, they used vehicles that belonged to Anvil Mining. Now this is important, because the geographical isolation of Kilwa meant that it would have been very difficult without the provision of transport facilities for the Congolese military to have done this. What we don’t know, and what remains to be seen, is the precise circumstances under which these vehicles were provided and this transport was provided.
Damien Carrick: Now you believe that Anvil has some responsibility for what occurred. I understand that you’ve actually submitted a complaint to the Australian federal police; what are you arguing, what have you said to the Australian federal police and what do you want them to do with this information?
Richard Meeran: Well I’ve been instructed by human rights organisations, two in the Congo, one in the UK called Raid, and also the Human Rights Council of Australia, to file a complaint with the Australian federal police requesting them to investigate whether or not certain human rights violations, crimes against humanity and war crimes, may have been committed by Anvil in relation to this massacre in October of last year. So I’m not in a position, at this stage, certainly, to say that crimes have been committed, or that Anvil is necessarily responsible. As I indicated earlier, it does depend on the precise circumstances under which these vehicles were given to the Congolese military.
Damien Carrick: But you’d be arguing that if those circumstances do exist, that there could be scope for a prosecution under Australian law in Australian courts for what took place in faraway Eastern Congo?
Richard Meeran: Certainly. As a result of certain amendments to the criminal code in Australia, which were introduced as a result of the Rome Statute on the International Criminal Court, it is now a criminal offence under Australian national law for an Australian national to commit war crimes or crimes against humanity, even where those offences have occurred overseas. So it is a criminal offence here in Australia for those types of offences to be committed by an Australian resident in another country.
Damien Carrick: In order for any prosecution to proceed, of course, that will turn on the exact circumstances of what took place back in Kilwa in October, 2004, I understand that initially in an interview with ABC-TV’s Four Corners, Anvil’s head said the use of the vehicles was provided at the request from the military of a legitimate government of the country. But in a recent press release, Anvil gave a statement to the Stock Exchange that they now say that the vehicles were commandeered. If that’s the case, that would indicate that they didn’t really have any choice in how the vehicles were used, or any say in how the vehicles were used.
Richard Meeran: That’s exactly right. If indeed the vehicles were taken by force, and they had no choice in the matter, then probably no offence would have been committed. But you’ve pointed to the inconsistency in the statements that have been made by the company. This suggestion that vehicles were commandeered has only emerged recently. It wasn’t something that was said by Anvil at the time, it’s never been mentioned before. But as you say, if it turns out that that is what happened, then probably that will be the end of the matter.
Now I think another point that I should clarify is that obviously we’re not saying, or it’s not been suggested, that Anvil might have committed these atrocities themselves as the principal offender. But under the relevant legislation, it is also an offence to aid and abet counsel, or procure the commission of offence. So in this instance, what we’re asking the AFP to look into specifically is whether an offence of aiding and abetting counsel or procuring an offence by the Congolese military was committed by Anvil Mining.
Damien Carrick: Let’s talk more generally about multinationals operating in developing countries. The Congo, as I understand it, is very much a war-ravaged country which has endured decades of misrule and, more recently, a ferocious civil war. What does the Kilwa massacre say to us about the broader implications of Australian companies who operate in countries like the Congo, where there are concerns about human rights, and indeed economic exploitation?
Richard Meeran: Well, companies are in a difficult position when they operate in conflict zones like that. And I think the importance of the companies themselves observing some respect for human rights is much greater in this type of situation. Companies in this position have the potential to influence what happens in these countries. For instance, if Anvil Mining was to say to the Congolese military ‘If you want us to continue investing in your country and operating this mine, then you need to be more attentive to international human rights obligations than has so far been the case.’ Then that might make a difference, and I think all companies that operate in these areas have an obligation, at least a moral obligation to use their influence in that manner. There is a growing recognition amongst multinational companies, that they have a function as good corporate citizens.
Damien Carrick: Of course the whole kind of Anvil situation – it isn’t a black and white story. I mean it could be argued that companies such as Anvil, in operating such ventures, contribute to the wealth and health of the area where they are operating. I understand that in the region of South East Congo there have been improvements in health and infrastructure and there have been benefits from employment. And I understand that even something like 10% of the profits from the mine are being ploughed back into the community in all sorts of development projects. I mean companies like Anvil are contributing, aren’t they?
Richard Meeran: I don’t dispute that at all. I think it’s important for developing countries to benefit from foreign investment and from the investment of multinational companies. I don’t dispute that for one moment. I can’t comment on exactly what Anvil may or may not be contributing to this particular community, but I don’t dispute that at all. The only point I’m making is that when they do operate in these countries, that they need to bear in mind their moral and possibly legal obligations, to respect human rights and international human rights standards.
Damien Carrick: Richard Meeran, who recently moved to Australia from London, where he had worked for many years on civil litigation involving foreign companies in Africa.
His most famous case involved an issue that Australians are too familiar with.
Richard Meeran: Well that’s a case that I was working on for several years, involving seven and a half thousand South African asbestos miners, who were employed in some of the most atrocious conditions in the mines of a British-owned company over quite a long period of time. Large numbers of them developed mesothelioma, which is a fatal cancer of the lining of the lungs, associated with asbestos, and many others developed asbestosis. And I think the important feature was that this company was operating in a manner that simply wouldn’t have been permitted in the UK, or in any Western country.
For instance, about 6% of the people we represented were employed in mines under the age of 7 years old, without any respiratory protection whatsoever, in very, very hazardous conditions. And this was during a period when the hazards of asbestos were well known. We had a report from a South African government inspector that children had been found encased in sacks of asbestos, being beaten with whips to make them work harder. So the asbestos issue is a very serious issue all around the world, including in Australia. But I think the conditions that South African asbestos workers were employed under were really unparalleled, because the companies were able to get away with them under the past regime.
Damien Carrick: Where did you bring your court action? In what jurisdiction?
Richard Meeran: Well that was a case that was brought in England because the parent company was an English company. That was important that we were able to do that because certainly at that time, it would not have been possible to bring a case like that in South Africa. In 2003, the case was settled, and following that, compensation was paid to the claimants.
Damien Carrick: Now you’re currently involved in another case involving South African miners; can you briefly tell me about that?
Richard Meeran: That’s a group of test cases on behalf of silicosis victims who worked in South African gold mines. The number of silicosis victims from gold mines in South Africa is thought to be anything between 50,000 and 500,000.
Damien Carrick: How do you contract silicosis?
Richard Meeran: By excessive exposure to silica dust which is the main type of dust in a gold mine, and again, because of the history of South Africa, workers in these gold mines were exposed to very high dust levels, largely unprotected, for many, many years. And in fact the dust limits in the gold mines were based on the assumption that 15% of the workforce employed for 20 years or more, would develop silicosis.
Damien Carrick: Now presumably the conditions which gave rise to the asbestos case and also the gold miners’ case in South Africa, they’re now historical, in the sense that companies no longer operate in those ways. But presumably around the world at the moment there are a lot of cases involving multinationals and current practices. Can you tell me about some of those?
Richard Meeran: There are many, many cases, not just in the area of mining but in the chemical industry and other industries too. And I think that this highlights the twofold purpose of these types of actions. One obviously is to compensate people who have been injured, and to hold the companies accountable for having caused those injuries. But the other, equally important, reason for bringing these cases is the deterrent value that they bring, because a company which has to participate in an expensive legal action and compensate its workers is going to think twice before doing the same thing again. And for us I think, that principle of deterrence is an important reason for doing these cases.
Damien Carrick: Richard Meeran, special counsel with Slater and Gordon.
I did of course approach Anvil Mining for its views. I was informed that Anvil CEO Bill Turner is currently in Canada and unavailable for an interview.
That’s The Law Report for this week. A big thanks to producer Anita Barraud and technical producer Brendan O’Neill.
Guests on this program:
David Coltart,
Opposition Justice Minister, Zimbabwe
Richard Meeran,
Special Counsel, Slater & Gordon
Presenter: Damien Carrick
Producer: Anita Barraud
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