United Kingdom Asylum and Immigration Tribunal

NM (MDC) Zimbabwe [2002] UKIAT 04263

HX55633-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 01 July 2002

Date Determination notified: 17 September 2002

Before
Professor D C Jackson (Chairman) Mr C A N Edinboro
Between

 

NM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS
1. The Appellant a citizen of Zimbabwe appeals against a decision of an Adjudicator (Mr B M Suchak) dismissing his appeal against a refusal of leave to enter following a refusal of an asylum application. The Appellant claims that removal would be in breach of both the Refugee Convention and the Human Rights Convention. Before us the Appellant was represented by Ms E A Storey of the Refugee Legal Centre and the Secretary of State by Ms A Green.

2. The Appellant has been a professional footballer for four years. His case is based on a threat of harassment and ill-treatment by Zanu-PF supporters because of his membership of the opposition party Movement for Democratic Change (MDC). The Appellant said he joined MDC in 1999 but his problems with Zanu-PF started in September 2001. A group of members came round to his mother's house where he was living and asked for him by name. They told him he should stop working for the MDC, threatened him and said he would be killed if he did not stop. When he reported this to his own party he was told he was not the only MDC supporter that was having such problems. The party told him to ignore the threats and that they were being made because of the support that the MDC was getting. The matter was not reported to the police because the Zanu-PF had warned the Appellant that if he went to the police something bad would happen to him. A few days later men dressed in Zanu-PF t-shirts stopped him and threatened him again saying that if he did not stop campaigning they would kill him. Once again he reported it to his party but not to the police as he did not take the threats seriously. He continued campaigning.

3. The third incident which persuaded the Appellant to leave Zimbabwe occurred in September when fifteen Zanu-PF men came to his mother's house, took him outside and put him in a car and drove him to a secret place. When they got to this place he was told that he would be killed if he did not stop what he was doing. He was injured in the face through slapping. Once again he reported it to the party and he was told not to take the matter seriously as those who had harassed him were "just jealous".

4. After this incident the Appellant said he did not feel safe at his home. He stayed in a variety of places often with friends. He did not think the Zanu-PF members returned to his house while he was in hiding. After the incident in September he stopped campaigning because he knew he would be killed if he continued. He did not have any problems while he was hiding but he stayed only for a short time. He decided to leave the country because of the incident and the threats. He fears that if he returns he will be seen as a traitor by Zanu-PF and, further, that as he has claimed asylum they will believe that he has told stories about what goes on in Zimbabwe.

   The Adjudicator's Approach

5. The Adjudicator accepted the Appellant's evidence save insofar as that he pointed out that although the Appellant said he was in hiding between September and November 2001 he did visit his parents' home. However the Adjudicator felt that the Appellant was involved in a low level way in MDC and the fact that the Zanu-PF supporters having abducted him released him demonstrated a complete lack of interest in him. They did not follow up the activities when he left home. In the light of the lack of interest the Adjudicator concluded there was not a real risk of persecution or breach of any Articles under the Human Rights Convention.

6. Included in the grounds of appeal in which leave was granted is the assertion that the Adjudicator failed to take into account relevant elements of the Appellant's case when assessing whether he would be at risk if returned to Zimbabwe i.e.:

   (a) The Appellant's profile in Bulawayo as a professional footballer publicly supported the MDC.

   (b) That the Appellant's mother had told the Zanu-PF that her son had gone to South Africa to divert their hostile questioning.

   (c) The evidence before the Adjudicator of increasing violence in the February run-up to the elections.

7. In support of the argument as to increasing and continuing violence further evidence was submitted going to the post-election situation in Zimbabwe. Leave to appeal was granted on the basis that continuing interest by Zanu-PF in the Appellant was arguable.

8. Before us objective evidence adduced was:

   (1) (By the Secretary of State) the Country Assessment for 2002.

   (2) (By the Appellant)

   (a) A report entitled Zimbabwe: What Next? dated 14th June 2002 by the International Crisis Group (ICG) which according to an appendix to the report is a private multinational organisation committed to strengthening the capacity of the international community to prevent and contain conflict, the Board containing prominent figures from the fields of politics, diplomacy, business and media.

   (b) A report from the Physicians for Human Rights of Denmark dated 21st May 2002, "We Will Make Them Run", a study of post-presidential election activities in Zimbabwe.

   (c) Extracts from two reports on political violence connected with and subsequent to the elections (dated 19th March 2002 and 28th March 2002) by the Zimbabwe Human Rights NGO Forum.

   (d) A letter from the Home Office indicating that returns of failed asylum seekers to Zimbabwe continued to be suspended.

9. Although returns are suspended the issue for us is whether if the Appellant were returned there would be a serious possibility of persecution or breach of his human rights. Ms Storey drew our attention to various aspects of the objective evidence. She pointed to the statement in the report of the Danish physicians that President Mugabe had stated publicly that the government "intends to repress its political opponents" and a senior member of Zanu has declared the government will not respect the rulings of a court.

10. As to the obstacles in the way of an atmosphere in which there could be political activity, Ms Storey pointed to the ICG report in which is recorded that the Commonwealth empowered South Africa and Nigeria to facilitate party to party talks between Zanu-PF and the MDC. Talks however had been broken off at least on the surface because of the end of an MDC lawsuit challenging the March elections. The report also points out that the MDC is struggling to ensure its survival and that it was concerned at the continuation of violence and intimidation against its supporters.

11. In the ICG's opinion any change in the disastrous economic policy would depend upon political resolution. According to the Danish physicians multiple accounts have been given of "across the board" discrimination in some districts in which MDC supporters and their children are systematically denied access to healthcare, schooling and food including some international donor funded feeding schemes. The continuing violence is supported by a report of specific cases contained in the report of the Danish physicians. It was not safe, said Ms Storey to send the Appellant back - he was a well known local figure who had actively campaigned for the MDC.

12. Ms Green stressed the need to focus on the particular case. She argued that the Adjudicator considered all the objective evidence. MDC support was not enough for the Appellant to succeed and there was nothing exceptional in his case. The Adjudicator was correct in his assessment of the evidence which was before him but Ms Green agreed that we must consider the case in the light of the new objective evidence. Both representatives agreed that in considering this evidence we should take into account the purpose of the reports.

    The objective evidence before the Tribunal

13. As the key to this case must lie in the up-to-date objective evidence we turn first to that. In the CIPU Report it is recorded (para 3.52) that after President Mugabe's victory in March 2002 "youths and members of the police embarked upon a campaign of retribution against MDC officials and suspected supporters". It is said that thousands of MDC supporters including two MDC MPs fled their constituencies in Manicaland province in a wave of violence that affected the area after the elections. After the elections themselves, the report records the Commonwealth Observer Group Report as noting that the elections are not allowed for a free expression of the will of the electorate and castigated the police for refusing to attend to reported cases of attacks against MDC supporters. In a further comment (para 5.87) it is said that opposition political activists particularly those belonging to the MDC have been targeted and attacked by government supporters since the parliamentary elections in June 2000. There were reports in 2001 of a growing number of abductions of MDC activists.

14. The report of the ICG records that in the aftermath of the elections Zanu-PF party and the government "are systematically using violence to intimidate the MDC". As Ms Storey pointed out it records the stalling of the talks between the parties and the discrimination and distribution of food in respect of MDC supporters. The report of the Danish physicians points out that the political violence had been systematically documented and analysed over the last two years and showed that only a very small number of human rights violations were committed by other than bodies affiliated to the government. It is said that post-election period "politically motivated, government endorsed violence continues against those perceived to be supporters of the opposition". The previous trend of failure of the police to arrest and prosecute perpetrators of "political" crimes continues. There is political manipulation of food distribution Cases of pre and post-election violence against MDC supporters are listed. The conclusion of the investigation is that political motivated torture continues to be a post-election problem. It was noted that all of the thirteen cases cited where there was torture or ill-treatment for political motives no prosecutions against perpetrators were brought.

15. Included in the report is an extract from Zimbabwe Human Rights NGO Forum Political Violence Report dated 3rd May 2002. It is there said that with no impending elections there seemed no tangible explanation for the political motivated violence still persisting in Zimbabwe and that the post-election period had witnessed a sustained attack on known or suspected supporters of the MDC. It is said that from the period 1st January 2002 to 30th April 2002 cumulative totals of cases reported to the organisation included 961 cases of torture, 55 cases of death or execution and 144 of unlawful detention.

    Conclusions

16. It seems to us the picture painted by the objective evidence confirms that which comes across from reading any newspapers i.e. that the immediate future in Zimbabwe is bleak. The objective evidence points strongly to a continuation of political violence against the MDC and its supporters and there is no indication that that violence is confined or indeed targeted at leading MDC activists. Indeed in one case a beating seems to have been administered simply because perceived MDC supporters fled through the garden of the house of the person beaten.

    Conclusions

17. On the Adjudicator's findings the Appellant was an active MDC supporter even though as an activist he may have been at a low level. In his asylum interview he indicated that he was on the Youth Campaign Committee and that was how the Zanu-PF members or supporters knew who he was. We accept that as a professional footballer he would be known within the local community and it is clear from the evidence accepted that his support of the MDC was also known. We appreciate that once he went into hiding he received no further visits from Zanu-PF supporters but at that time he was not engaging in any political act or expressing any political opinion.

18. All the objective evidence before us points to a deterioration of the situation as regards the relationship between Zanu-PF and the MDC. The reports on which we must primarily rely are the work of a respectable organisation, the ICG has some high powered members on its board and its aim is the laudable one of understanding and acting to prevent and contain conflicts. In order to do that conflicts must be identified and we see no reason to doubt either the tone or the details of its report. The Physicians for Human Rights from Denmark is an organisation focussing on the protection of human rights but that does not mean that its evidence is slanted. While obviously it will stress the breaches of human rights we have no reason to doubt that had the human rights record improved or had the risks been lessened this would have been included in the report. Thirdly there is nothing in the CIPU Report to contradict the evidence in the other reports before us and indeed it refers to a campaign of retribution against MDC officials and "suspected supporters".

19. There is clearly a risk of violence which is to be run by any MDC supporter in the current climate. On the other hand specific cases cited in the reports are relatively few in number if one takes into account the fact that the MDC is one of the major political parties in Zimbabwe. But all the reports refer to the continuing campaign of violence against MDC supporters. The Appellant is a known such supporter, and is no doubt known within the community within which he lives. On the evidence before us it seems to us that there is some degree of risk of ill-treatment if the Appellant were to be returned to Zimbabwe because of his past actions. If however he continued to be active politically that risk would on the objective evidence be substantially increased. While it is true that the Convention is not an instrument to be used to protect a person from activities from which he could desist without any interference in any fundamental right, in our view the right to political participation is such a right and is protected by the Convention.

20. Further in the context of Zimbabwe the threat made by Zanu-PF supporters would seem to be by agents either directly of the state or at least encouraged by the government. Secondly there is no evidence to show that police interest in such violence is such as to provide any kind of adequate protection.

21. The Adjudicator took the view that because the Appellant had been released by Zanu-PF supporters then he was of no interest to them. We respectfully disagree with that view for it has to be remembered that when the Appellant was released the threat was made to kill him if he continued campaigning for the MDC. Further the fact of release does not of itself mean that interest in the person released ceases. It simply means that on that particular occasion the matter would be taken no further. In any event on the objective evidence before us the current situation in Zimbabwe is if anything worse than it was when the Adjudicator heard the case and certainly worse than that reflected in the letter of the reasons for refusal (dated 21st November 2001).

22. In the particular circumstances of this Appellant given the knowledge of his active support for the MDC and his occupation in his community we hold on the evidence adduced before us that as at the date of the hearing before us there is a serious possibility of persecution should the Appellant be returned to Zimbabwe. The asylum claim therefore succeeds.

23. As to the human rights claim, before the Adjudicator the Appellant relied on Articles 2, 3, 5 and 8. For the reasons advanced in relation to the asylum claim the Appellant succeeds on his claim based on the right of protection from ill-treatment set out in Article 3. There is therefore no need to consider claims under the other provisions and we were not addressed in regard to them.

24. The appeal is allowed.

    D C JACKSON
    CHAIRMAN