Edward Madziwa

On 21 December 2001, the Congress of the United States of America approved the Zimbabwe Democracy and Economic Recovery Act (ZIDERA) generally known as “sanctions”. At the time when the original ZIDERA (sanctions) was enacted, a number of demands were submitted to the Zimbabwean Government for it to address. In July 2018, shortly before the Zimbabwe 2018 Harmonised Elections, the United States government renewed some of the provisions of the original ZIDERA (sanctions) through the ZIDERA Amendment Act (S.2779). If these requirements are addressed ZIDERA would be lifted.

Asylum seekers and refugees are among the world’s most vulnerable people. They frequently attract opposing views and are seen as a burden to society, which is an unfortunate reality. Most contemporary state practices fall short of the required standards, despite the existence of structures and a comprehensive international and regional legal framework to protect these vulnerable individuals. Zimbabwe has ratified several international and regional human rights treaties, but its domestic legislative framework undermines its commitments to uphold the human rights of asylum seekers and refugees. Against this backdrop, this dissertation focuses on the growing convergence of immigration, refugee, and criminal law. The Immigration Act [Chapter 4:03] and the Refugee Act [Chapter 4:02] are the two main pieces of legislation that create this quagmire while also regulating entry and exit from Zimbabwe. Although these two pieces of legislation apply to various categories of migrants, it is contended that authorities favour the enforcement of immigration laws over asylum and refugee laws on asylum seekers, particularly those found in Zimbabwe without prior authorisation. This violates Article 31(1) of the 1951 Geneva Convention Relating to the Status of Refugees, (1951 Geneva Convention) which places asylum seekers between a rock and a hard place. Regardless of how they entered the country, Zimbabwe has an international obligation to accept and not expel any asylum seekers who are present on its territory. However, the incorrect application of the Immigration Act on asylum seekers undermines Zimbabwe’s adherence to its commitments made under the 1951 Geneva Convention thus defeating its object and purpose. By denying asylum seekers of their most fundamental human rights and branding them as criminals in violation of the Immigration Act, this practice militates against asylum seekers’ best interests. This dissertation seeks to ascertain the extent to which the penalisation of asylum seekers is a violation of Zimbabwe’s commitments under the 1951 Geneva Convention, 1967 Protocol and the 1969 OAU Convention Governing Specific Aspects of the Refugee Problems in Africa. To show a common thread of practice and perhaps consider some of the best practices coming from other jurisdictions, this dissertation also discusses South Africa’s approach as far as the penalisation of asylum seekers is concerned. The penalisation of asylum seekers is an extremely harsh measure that should only be used a last resort. Such a practice constitutes a violation of Article 31 of the 1951 Geneva Convention and its 1967 Protocol as well as the 1969 OAU Convention. Recommendations are thereby preferred on how best to minimise cases of penalisation of asylum seekers by resorting to alternatives to detention and guaranteeing the effective protection of asylum seekers who find themselves illegally in Zimbabwe.

A close analysis of some of the countries that have experienced a wave of secessionist movements like Spain, Zambia and Zimbabwe makes it apparent that a criminal penalty is visited upon the pioneers of such a movement.  Given such developments, most leaders of the secessionist groups have been charged with treason, terrorism or rebellion and arraigned before municipal courts. This highlights the inherent difficulties associated with fully exercising the right to self-determination beyond the decolonisation context. This study undertakes to investigate the full exercise and impact of municipal criminal laws on the right to external self-determination through secession. This study focuses on the secessionist movements in Spain, Zambia and Zimbabwe; the subsequent trials of the leaders of these movements and how these trials impact the full exercise of the right to self-determination, as provided for in various international and regional treaties and conventions.