MT v The Secretary of State for the Home Department [2012] UKUT 15 (IAC)

[2012] UKUT 00015(IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 11 October 2011
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE STOREYUPER TRIBUNAL JUDGE P R LANE
Between
MTAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentIn the context of exclusion under Article 1F(a) of the 1951 Refugee Convention (Article 12(2)(a) of 2004/83/EC (the Refugee Qualification Directive)):i) The requirement set out at Article 7(1) of the International Criminal Court Statute (ICC Statute) that acts be “…committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack” (the “chapeau requirement”) is an essential element in the definition of a crime against humanity.ii) In principle the question of whether acts are ‘…committed as part of a widespread or systematic attacks directed against any civilian population’ is a matter that could be dealt with in future country guidance cases; although the question of whether there exist acts with such a nexus must ultimately be decided on a case-by-case basis.iii) Commission of a crime against humanity or other excludable act can take the form of commission as an aider and abettor, as a subsidiary (or non-principal) form of participation. Drawing on international criminal law jurisprudence (as enjoined by R (JS) (Sri Lanka) v SSHD[2010] UKSC 15), aiding and abetting in this context encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime, i.e. the contribution should facilitate the commission of a crime in some significant way.iv) The fact that the Article 7(1)(a)-(g)list of acts capable of being crimes against humanity does not include the “cover-up” of murders, whilst a surprising lacuna, should not be filled by judicial interpretation.v) Duress is a defence to international criminal responsibility (see Article 31(1)(d) of the ICC Statute). Again, drawing on international criminal law jurisprudence, such a defence is confined to situations where the defendant’s freedom of will and decision is so severely limited that there is eventually no moral choice of counter activity available. It has four components: the threat must be of imminent death or continuing or imminent serious bodily harm; the threat must result in duress causing the crime; a threat results in duress only if it is otherwise avoidable (i.e. if a reasonable person in comparable circumstances would have submitted and would have been driven to the relevant criminal conduct); and the act directed at avoiding the threat must be necessary in terms of no other means being available and reasonable for reaching the desired effect.Mr M Symes, Counsel, instructed by Birnberg Peirce & Partners for AppellantMr S Ouseley, Home Office Presenting Officer for RespondentDETERMINATION AND REASONS
[1]The appellant is a national of Zimbabwe. She arrived in the UK on 13 August 2007 and claimed asylum on 25 March 2009. The basis of her claim was that in Zimbabwe she had been a police officer stationed at Bulawayo between 2000 – 2007. In 2007 she found herself under pressure from her superiors to participate in various acts against political opponents of ZANU PF, including attendance at MDC rallies where police beat MDC supporters with batons, two incidents in which torture was used ( the “Stephen Mhlanga incident” in February 2007 and the “Gibson Sibanda incident” in April 2007) and in March 2007 she had also been ordered to go to a village near Plumtree, where 30 people had been killed the night before by ZANU PF supporters, and bury the bodies in shallow graves (the “Plumtree incident”). Despite the risks she had been able in mid-July 2007 to desert and travel to Sudan, returning for a brief period in the second half of September in order to try, unsuccessfully, to get a passport for her daughter. She had then travelled, via South Africa, to the UK.[2]On 18 January 2010 the respondent decided to remove her as an illegal entrant having refused to grant her asylum. At the same time the respondent certified her claim under s.55 of the Immigration, Asylum and Nationality Act 2006 because it was considered that Article 1F(a) and (c) of the Refugee Convention operated so as to exclude her from the protection of the Refugee Convention because there were serious reasons for considering she had committed crimes against humanity. Article 1F of the Refugee Convention is as follows:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.”
[3]In R(JS) (Sri Lanka) v SSHD[2010] UKSC 15 Lord Brown said that when considering whether an applicant is disqualified from asylum by virtue of Article 1F(a) the starting point should be the Rome Statute of the International Criminal Court ("the ICC Statute").Article 7(1) of the Statute defines crimes against humanity as follows:
“1. For the purpose of this Statute ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, on other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
[4]The respondent also considered that her claim to be a police deserter was not credible and that she would face risk of being persecuted on return. Her appeal against this decision was heard by the First-tier Tribunal (FTT) (Judge Pirotta) who in a determination notified on 7 April 2010 upheld the certificate and dismissed the appeal. Judge Pirotta considered that the respondent had shown that the appellant had committed crimes against humanity and so fell to be excluded under Article 1F(a) of the Refugee Convention and that in any event she had not established that she was a police deserter or that the Zimbabwe authorities would view her adversely. The appellant was successful in obtaining a grant of permission to appeal to the Upper Tribunal. In a response dated 30 March 2011 the respondent said she agreed with the contention in the grounds of appeal that the FTT judge had materially erred in law by failing to consider the issue of whether the appellant was entitled to rely upon the defence of duress in respect of the s.55(1)(a) certificate. In a decision made on 19 April 2011, the Upper Tribunal (UTJ Storey) decided that the FIT had made a material error of law as just described and set aside its decision. The appeal now comes before this panel for us to re-make the decision. In a case in which a certificate has been made in relation to an asylum appeal, as here, the Upper Tribunal “must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State’s certificate” and, if in agreement with the certificate, must dismiss the asylum dimensions of the appeal without considering any of its other aspects (s.12(2)(b) of the Tribunals, Courts and Enforcement Act 2007; s.55(5A) and s.55(4) of the 2006 Act).[5]In the decision finding a material error of law there was a clear ruling as to the material scope of the appellant’s appeal. It was noted that the respondent had not sought to dispute before the FTT judge the appellant’s evidence that she was a member of the police force in Zimbabwe between 2000 and September 2007 and that accordingly the present hearing would proceed to treat this much of her evidence as established.[6]Before proceeding further we should record our thanks to both parties for their assiduous preparation and helpful skeleton arguments and submissions. With the agreement of both parties we made an anonymity order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 whose contents included an order that all references to certain specified witnesses should be anonymised.[7]At the hearing we heard from a witness, W1, and from the appellant. W1 is a person whom the Tribunal has accepted previously as an expert witness on country conditions in Zimbabwe. It is convenient if we set out a summary of W1’s evidence when dealing with the expert evidence below.

The appellant

[8]In her evidence to us the appellant confirmed that her ethnicity was Shona and her religion was Christian (Roman Catholic). She had been a police officer in Bulawayo in the duty uniform branch. She had not voted in any elections before joining the police, and police in Zimbabwe were not allowed to vote (she added later that no one in her family was involved in politics).[9]In cross-examination the appellant was asked why, if she was now saying she was just a uniformed duty officer, she had said in her screening interview that she was a police detective and submitted a January 2007 payslip describing her as being in criminal investigations. She said she had only been assigned to criminal investigations for three months, being trained during that time in fingerprint techniques and scene of the crime work. (Later she added that during this time she had also attended courts to present the police cases). She said she had joined the police because she had been inspired by their crime-prevention role. Until 2007 she had not come to understand that the police force had a record of brutality against political opponents and others. She had not seen anything else herself to suggest that this was the case before then, except when it came to the Riot Squad.[10]Asked if she was not aware that the police had used violence in the 2002 elections, she said she knew about that to some extent but she and her colleagues always believed the MDC were making up claims about police brutality. She and her colleagues did not discuss political matters. Asked if she had ever witnessed ZANU-PF youth militia being “attached” to her police station, she said she had not although she had seen the Riot Squad being involved in dealing with riots and demonstrations. Her work in the charge office meant she saw persons when they were brought in to the police station for questioning and also afterwards when, and if, they were charged/released. She had seen MDC activists brought in to the police station and being arrested and charged for public order offences, but she had never seen any of them being ill-treated. The questioning of such people was done by the CID. If someone who had been in a cell complained that they had been beaten, she and her colleagues told them to fill in a form and raise the matter in court. In her time as a police officer, only one or two people had done that. In the course of a year probably no more than 4% of suspects had injuries when brought into custody. Such injuries could be for pub fights and the like. She had never seen someone injured after having been put in the cells. She described her police station as a ground floor building having 8 rooms comprising a main office, a charge office, an administration office, a CID room, a briefing room and a general kitchen. At the back there were four cells. She estimated that on average her station dealt with three detainees a day, 60-80 per month.[11]Asked if she had heard about police officers being sacked or disciplined for political reasons in 2005-2006, she said this had not happened in her station but she had heard about it in 2006 over the police radio and through police circulars. She was also aware of a Police Commissioner’s Directive giving instructions about the transfer of political suspects. She did not think that to be a police officer she had to support ZANU-PF; she had been neutral; she did not support any party. She had heard however that a police commissioner had said all police should be ZANU-PF.[12]Asked if she had ever arrested any ZANU-PF supporters she said she never had. When she first became aware of police mistreatment of MDC supporters in February 2007 she never thought to question her orders as this would have caused her superiors to think she supported the MDC. She did not know the political affiliation of her immediate superior. There had only been two occasions when she had been asked to arrest MDC supporters. On a third occasion she had feigned illness. She was never suspended.

The Stephen Mhlanga incident, February 2007

[13]The appellant then described the first incident in which she was involved in such an arrest, in mid-February 2007, involving Stephen Mhlanga. She was with five other police who raided his house, arrested him and, en route back to the police station, took him to a bushy area by a river, where he was questioned for about two hours about his MDC connections. She was the most junior officer there and her role was just taking notes. Some of the officers there were verbally aggressive and poked him and threatened to throw him in the river. He was very scared. He gave them the information they wanted. After they had taken him to the police station he was put in the cells. She did not inquire if they had ill-treated him there, although she knew he was released the next day. She did not protest to her superiors about his ill-treatment as they would, she said, have labelled her as an MDC sympathiser.

The Gibson Sibanda incident April 2007

[14]The next MDC arrest incident in which she was involved was at the end of April 2007, involving Gibson Sibanda. She was one of seven police officers present on a raid on his house. Others had hit him with batons, but she had only slapped him. She did not think he had been offered or received any medical treatment for his injuries. After the interrogation, conduct of his case was left to the detectives. She saw him the next day. She did not notice any new injuries.[15]She said that in 2007 she had been involved in policing eleven MDC rallies/demonstrations. She and her colleagues had been deployed as a second line behind the Riot Squad, helping chase and disperse the demonstrators. Excessive force had only been used on some of these occasions. The Riot Squad used tear gas and batons; they needed to use force against the MDC mob. She did not participate in any beatings-up; she used her baton just as a form of prodding to encourage people to disperse. Very few ZANU-PF supporters turned up or became confrontational towards the police.

The Plumtree incident, March 2007

[16]The appellant was asked about the Plumtree incident which she said had happened in March 2007 (i.e. after the Stephen Mhlanga incident but before the Gibson Sibanda incident). ZANU-PF supporters had gone to a village near Plumtree in the evening and set fire to houses of MDC supporters. Some 30 were killed, including children. When she got there it was the next morning and the village was deserted. No one knew where the perpetrators had gone. The CID officers present told her and others to bury the bodies in shallow graves. She was traumatised and shocked. She did not try and quit the police straight afterwards because she was scared.[17]The appellant was then asked why, having travelled to Sudan on 13 July 2007, she had returned to Zimbabwe on 16 September. Her main reason, she said was to try and get a passport for her daughter, and also to see her mother. She knew she was taking a risk but from what she had heard from police colleagues that she had met by chance in Sudan, she counted on her employers not yet realising she had in fact deserted. She had not told her employers she was going to leave. She travelled on a passport issued in Zimbabwe.[18]Asked why, after arrival in the UK in October 2007 (and even before she had claimed asylum on 25 March 2009) she had gone to the Zimbabwe Embassy in London to renew her passport, she said she had done so because that was the only way of getting ID. She believed it was safe to do so because she was in the UK. She was also asked why she had not gone to UKBA to claim asylum earlier. Initially she did not reply but went on to say it was because she thought her visa was still valid. She agreed she had lied to the supermarket company, Asda, when she had applied for a job from them as in fact she knew her passport was not (as she had told Asda), with the Home Office. She had not claimed asylum until she had been arrested while working. She had been told in Zimbabwe not to claim asylum as the CIO back in Zimbabwe would learn about that.[19]In reply to questions from the panel the appellant said that during the arrest of Gibson Sibanda she was one of two present who had not been issued with a baton. It was in 2007 when she had first seen circulars giving details of officers alleged to be MDC supporters. Even before seeing them she knew that it would be risky for any police officer to question a beating-up of a suspect by the police. Further, “a bell” had started “to ring” with her about the true nature of police mistreatment of MDC supporters in early 2007 when she began feigning illness. Once she had used the sickness excuse one or two times, she thought she should not use it again.[20]Asked further about the Plumtree incident in March 2007 she said that the police had tried to carry out an investigation into who had been responsible for the killings. Her clear information when she went there was that it was ZANU-PF supporters who were responsible. She and others had been told to go there to investigate but they were not given the opportunity (she asked about taking photos, but was told there was not much point). She agreed that burying bodies was a way of assisting a “cover-up”. She knew she was “covering up” serious crimes.[21]She said that when she had left for Sudan in July 2007, she believed the ban on police resignations was still in place.[22]We heard oral submissions from the parties which are summarised below at paras 58-73. At the end of the hearing we directed that the parties had permission to submit further case law and submissions dealing with the possible crimes against humanity dimension of the appellant’s role in the Plumtree incident in March 2007. We duly received further submissions from both parties.

Background Evidence

[23]It is not intended that we summarise each and every item of background material; these are listed in Appendix C. It will assist, however, if we summarise key parts of this evidence relating to police activities and conduct in Zimbabwe in general and in Bulawayo in particular. These furnish a useful prologue to our summary of the expert evidence, which follow them.

The Republic of Zimbabwe Police (ZRP)

[24]In its November 2005 report the Zimbabwe Human Rights NGO Forum described the police as being divided into specialised units, namely the Duty Uniform Branch (DUB), the Police Protection Unit (PPU); the Support Unit (a paramilitary branch), Criminal Investigation Department (CID), the Staff Branch and the Technicians Branch. It describes the police force as dominated by a “culture of impunity”. The March 2003 report by Zimbabwe Human Rights NGO Forum on Torture by State Agents in Zimbabwe, June 2001-April 2002 noted that in 2002 the percentage of police perpetrators identified by victims was 12% (ZANU-PF supporters accounted for 46%). Numerous reports highlight the fact that during Operation Murambatsvina (Restore Order or Clean up Filth) in May 2005, which according to UN estimates left 700,000 people without homes or livelihoods, most of the widespread demolition of urban markets and homes had been carried out by the police, with help from the army and National Youth Service. The Human Rights Watch report of May 2007 (“Bashing dissent”) stated that the police routinely used unnecessary force to disrupt peaceful protests and subject activists to severe beating and other mistreatment in police custody. The culture of impunity within the police is also the main theme of the September 2009 Amnesty International document:
“Zimbabwe: the toll of impunity”
.

Bulawayo

[25]According to the US State Department Report for 2002, in November 2001 hundreds of war veterans and ZANU-PF supporters attacked shoppers, schoolchildren and other persons in Bulawayo, causing numerous injuries. No arrests were made. A Human Rights Watch Report for 2009 (“Video and Shadow”) notes that in 2002 the presence of youth militia increased, particularly in Harare and Bulawayo. A “Zimbabwe: Post-Presidential Election Report” of May 2002 by Physicians for Human Rights, Denmark, documents an incident that year in Bulawayo in which youth militia beat nine people. Initially uniformed police from the Support Unit watched on and did not intervene although they did later move in to rescue the nine.[26]Physicians for Human Rights Denmark in a 17 April 2003 report entitled “Peaceful Protest and Police Torture in the city of Bulawayo 24 February – 25 March 2003” chronicle the detention of civilians at Queen’s Club Sports Ground during the above dates when Zimbabwe played overseas teams in the World Cup cricket competition. It is stated that “the current authors are aware of 15 detainees in relation to the first match in Bulawayo, of 42 detainees in relation to the second and of 23 detainees in relation to the third. All those detained have reported torture or serious ill-treatment”. The report went on to note that all the interviewees reported that their abuse took place at least in part at Bulawayo Central Police Station. The interrogators were said to be from the Law and Order section of the police and those inflicting beatings being the CID.[27]A US State Department Report February 2005 says that at this match 80 persons were arrested. This report also describes four women’s account of ill-treatment by police at Central Police Station, Bulawayo on 8 March 2003 following 21 arrests at an international women’s rally demonstration. There were similar reports of police ill-treatment at several other stations in Bulawayo, including the Nkulumare Police Station which concerned the detention of seven civilians on 18-19 February 2003. This report also notes that, in order to put pressure on the church not to criticise Mugabe, the government had charged the Catholic diocese of Hwnge and the Catholic Mater Dei Hospital in Bulawayo for allegedly handling foreign exchange illegally.[28]The 2006 Freedom House Report noted that Operation Murambatsvira began on 19 May 2005 in Harare and soon spread to almost every urban area including Killney and Ngozi Mine (both suburbs of Bulawayo). The Zimbabwe Human Rights NGO Forum Political Violence Report 2005 records that in September 2005 thirteen members of Women of Zimbabwe Arise (WOZA) were arrested at a demonstration and spent the night in the cells.[29]The US State Department report of February 2007 records that on 16 May 2006 in Bulawayo three church leaders from the Christian Alliance were briefly held accused of planning nationwide demonstrations in commemoration of the first anniversary of Operation Murambatsvina. On 29 November 2006, also in Bulawayo, 57 WOZA demonstrators were arrested for holding an illegal demonstration and it was reported some were assaulted whilst in detention.[30]The Zimbabwean Human Rights NGO Forum Political Violence report for July 2006 notes demonstrations by students in March and by students and the Bulawayo Residents Association in June 2006. The Zimbabwe Human Rights Forum report of December 2006 “Who Guards the Guards?”, which documents reports of police human rights violations in that period, noted that the majority were from Harare and that there were “very few cases from Bulawayo” (although press reports for Bulawayo were nearly 10% of the total). A table in this report lists five names of police perpetrators from Bulawayo (the highest was from Harare: 27).[31]The Human Rights Watch report for May 2007 (“Bashing dissent”) documents mass arrests following an aborted prayer meeting in March, including in Bulawayo. The Zimbabwe Human Rights NGO Forum in a December 2007 political violence report notes that in April 2007 82 members of WOZA were arrested for protesting against incessant government cuts in 2007. In the course of the same series of incidents 6 members of WOZA in Bulawayo were allegedly taken by force from their various homes by the police in vehicles bearing South African number plates to a secluded area 40 km away from Bulawayo. They were questioned about the whereabouts of the WOZA leaders. They were not released until the next day. Also in 2007, on 19 April two National University of Science and Technology (NUST) students were reportedly abducted and tortured by suspected CIO operating in Bulawayo. In May police dispersed students at NUST in Bulawayo. In August at NUST a student representative was arrested and tortured at Bulawayo Central Police Station. In October of the same year police arrested 158 members of WOZA in Bulawayo for protesting.

Expert Witnesses

[32]The appellant’s representatives produced written reports from two witnesses, W1 and W2. In view of the anonymity order it is inappropriate to give any further particulars about them save to say that both parties accepted they had relevant expertise based in part on their own contacts within Zimbabwe with a wide range of actors.

W1: written reports

[33]There were three reports from W1, the most relevant being that dated 14 April 2011, which set out his understanding of the events since 2007 and the latest political situation in Zimbabwe. Given that W1 in his oral evidence and Mr Symes in his submissions did not seek to argue that this evidence disclosed a greater degree of risk to failed asylum-seekers on return than identified in current Tribunal country guidance, it is unnecessary to say anything more about those parts of this report addressing this aspect.[34]As to the earlier political history of Zimbabwe, W1 states in his April 2011 report that in the last nine years an estimated 25,000 people have been the victims of human rights abuses, including: endemic torture, beatings, murders and disappearances An estimated 200,000 became displaced persons. Operation Murambatsvina in May 2005 saw widespread demolition of urban markets and homes, most of them carried out by the police with help from the army and National Youth Service, and, according to UN estimates, left 700,000 people without homes or livelihoods. MDC members were the prime targets. The state-sponsored violence was compounded by total impunity for state forces and their non-state surrogates. A key feature of the ZANU style is the demand for overt loyalty.[35]As regards the police, from early 2000 there was evidence of police refusal to enforce the law when it came to on-the-ground operations conducted by the youth militia. One of W1’s sources (cited at para 8.82) said that the general public and low-level police were only mildly aware of police ‘misdemeanours’ prior to 2000, during the time when the police had a reasonably professional image. But since 2000 all senior police officers have made plain their allegiance to ZANU-PF on a number of occasions.[36]In 2007 there had been attacks on police stations and a passenger train which the regime blamed on the MDC.[37]W1 cites one of his sources (his report para 84) stating that it would be very unusual for someone working in the ZRP in the years after 2000 to have access to any media other than pro-ZANU-PF sources. If a normal police officer had no social networks (church, family or other) or no direct personal experiences of police misbehaviour, it was highly unlikely he or she would have reason not to believe the propaganda supplied. Further, political tension was less in Matebeleland (of which Bulawayo was a part) and there was a more limited ZANU-PF presence, with the result that much policing activity was devoted to dealing with ordinary criminality. Being a serving police officer would mean that fellow churchgoers critical of ZANU-PF were likely not to raise political matters with you.[38]A recent estimate was that since 2000 some 20,000 former police and army staff from all levels have left Zimbabwe having quit government service. Many more may have left the services without being able to leave Zimbabwe. Overall, current staffing levels of the police are about 30,000 and the army about 35,000. Thus at least a third of relatively professional staff have left and been replaced by graduates from the National Youth Service.[39]According to one of W1’s sources (his report, para 88) there were a number of periods when police resignations were banned: 2001, 2002 and following the 2005 election. In 2002-2004 the problem of deserters had led to the creation of a “Commissioner’s pool” to retain, but quarantine, senior officers suspected of insufficient loyalty.[40]The appellant’s account of the AWOL procedures applied in her case was found by one of W1’s sources to be plausible. It was plausible also that in 2007 someone with sufficient funds would have been able to sort out a passport for a minor Zimbabwe national. The legal requirement was that – assuming the parents were both in Zimbabwe – at least one should attend at the passport office when applying or otherwise someone with a power of attorney to act on their behalf. Should an internal police procedure for an officer being AWOL be carried out, this would not necessarily interfere with the Registrar General’s procedure in issuing a passport, but since the passport office would be one of the first agencies to be told of someone being AWOL, it would be advisable to avoid it.[41]In 2007, writes W1, Zimbabwe’s border with Botswana was porous.[42]W1 also produced copies of a number of emails and a “Note” from one of his principal sources dated 7 October 2011 which described: ‘youth militia’ presence at police stations in Zimbabwe as being ‘commonplace’; during the 2005 elections violence being more limited in Bulawayo; and during 2006-2009 there being a significant shakeup of the police resulting in a new round of witch-hunting by the police for opposition supporters. A 10 October 2011 note from the same source stated that bringing a case of desertion from the police to court might result in imprisonment of not more than two years. “However, other measures, non-judicial, are possible, such as harassment about housing, or debts real or alleged”.

W1: oral evidence

[43]W1 reminded the Tribunal that his report produced for this hearing dated 10 March 2011 had been written before the Tribunal had reported its country guidance case EM and others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) on 14 March 2011; but he did not consider that for the purposes of this appeal anything turned on any differences between the views expressed in his report and the assessment made in EM.[44]Asked about developments in Zimbabwe post-EM, WI said that ZANU-PF had sought to make political capital out of the events of the Arab Spring by organising a petition against UN sanctions imposed on the Gadhafi regime: these sanctions were portrayed as a “western plot” and Mugabe continued to voice support for Gadhafi. ZANU-PF were continuing to press for presidential elections this year rather than in 2012 and had been behind increased incidents of violence, particularly in Harare.[45]W1 said that from the very beginning of Zimbabwe as an independent state the police force has been aligned with ZANU-PF. Its ranks were drawn heavily from former liberation fighters but its politicisation had been a gradual process. From 2000 the police had become more involved in direct violence against the MDC and had developed closer links with ZANU-PF youth militia. Youth training had started in 2003 and induction of youth militia into the police sped up in 2005. At the same time there had been an ongoing struggle between those in the police who saw their role as a professional body devoted to upholding law and order and those who wanted it to be a political tool of ZANU-PF. The picture nationally was mixed, with the police in some areas being able to maintain a professional ethos. Attempts by some NGOs to provide human rights training to the police had ceased in 1998/99. The process of politicisation went through different phases: very pronounced in 2002 around the elections that year; marked by less violence during the 2005 elections; in full swing during 2007. The high point was 2008 when there were increased numbers of ZANU-PF youth militia who became police.[46]Mr Ouseley asked W1 about mention in his report that there were various periods when the government banned police resignations. W1 said that the ban on resignations was accompanied by a procedure for putting officers whose loyalty was suspect on watch; the numbers involved had been as many as several thousand. He confirmed that given the high levels of bureaucratic inefficiency, it was quite possible that the Zimbabwe authorities could take over 90 days to identify certain persons in the police as deserters to the border and airport authorities.[47]Asked about levels of political violence in Bulawayo since 2000, W1 said that although in 2000-2002 there had been incidents of violence in that town, the fact that it was used as a commercial site by white farmers and had been more sympathetic to the MDC position on most issues meant that ZANU-PF had accepted it would not win political control of this area. He did not accept that levels of police violence in Bulawayo had been as high as in other areas. He agreed that Zimbabwe-wide the great majority of those in the police force and other areas of the security sector would be pro-ZANU-PF supporters. He accepted that nevertheless police in Bulawayo would generally act under orders from the higher echelons of the ZRP. It was likely that all serving police would have been aware of statements from some senior government officials that all police should support ZANU-PF, but statements from other senior officials had not been on the same lines. It was also important to bear in mind that there were differences in approach from different parts of the police, e.g. between those responsible for riot control and law and order on the one hand and those doing ordinary criminal investigation or traffic control work on the other.[48]W1 said he accepted that police officers in Bulawayo would have been aware that there were police abuses against MDC members and supporters, especially during the policing of MDC rallies; but sometimes, especially when it came to whites, they preferred to leave it to the youth militias to do the beating up. Police virtually never arrested ZANU-PF members or, if they did, the latter were released very quickly without follow-up. After the 2008 elections there were general amnesties for known ZANU-PF supporters. From 2006 onwards there had been an increasing incidence of ZANU-PF militia being “attached” to police stations to help them in policing MDC rallies etc. Serving police officers working in police stations would have been told about this.[49]In reply to questions from the panel, W1 said that up until 2007 the media in Bulawayo was very much monopolised by ZANU-PF papers and radio/tv stations. In 2007 there was a well-known incident involving a Catholic Archbishop speaking out against the Mugabe regime and youth militia were deployed to try and obstruct his dissemination of pastoral messages.[50]In a report dated 25 March 2010 W2 described the ZRP as comprising various departments including the uniformed police, Criminal Investigation Department (CID); Traffic police; and specialised units such as Police Internal Security and Intelligence Unit (PISI) and the Riot Police.[51]The ZRP has a “dual tradition of following professional police procedure in some instances and abandoning this and following political directions in others”. W2 described 2000-2002 as a transitional period which saw the most experienced policemen leaving and being replaced in many instances by former members of the youth brigades, resulting in increased levels of violence against criminals and political suspects by the police, and a return to the utility of 1980s-style state-sponsored violence as a political tool.[52]W2 said he was aware that in 2006 there was a ZRP directive banning resignations. W2 said that for a member of the ZRP to refuse to take part in an interrogation if called upon to do so would be treated as insubordination, - the penalties for which would range generally speaking from a verbal or written warning, to a forcible transfer or dismissal; there can also be harder penalties, including a fine, and arrest/imprisonment. “If the person continued to refuse to participate in interrogation they would presumably be suspected of having a political agenda and supporting the opposition. This could result in the “defaulters” being arrested and imprisoned/tortured themselves”.[53]W2 said that mass desertions and resignations of army and police during the last decade had led to the authorities clamping down on those trying to leave legally. “If MT had tried to resign, it is likely that her resignation would have been blocked/rejected and she would have been questioned as to why she wanted to resign. Her political loyalties would have been questioned, and she would have had to ‘prove’ her political allegiance by participating in more political interrogations/violence against opposition activists”.[54]W2 assessed that in 2000 and 2002 the levels of police violence associated with the elections was just as high in Bulawayo as compared with other areas. Around the 2005 elections however, Bulawayo had much less violence than the rest of the country.[55]W2 did not find it implausible that MT had only been asked in 2007 to get involved in violence against MDC activists.[56]For police who went absent without leave (AWOL), W2 said his understanding was that there would first be a letter sent by the individual’s branch/depot. If that received no response, there might then be a follow-up letter from a senior commanding officer, copied to all the main police depots in Zimbabwe advising them that the subject is AWOL. The family of the subject would also be notified. In some instances, a warrant of arrest may be issued for desertion of duty.[57]W2 also dealt with risks the appellant was likely to face on the basis she was a deserter.

Submissions

[58]Mr Ouseley addressed us first on the issue of credibility. He asked us to find that whilst it was accepted the appellant had been a member of the ZRP from 2000-2007, she had not been able to give a credible account of her role whilst serving there. She had only claimed asylum after having been arrested for illegally working. She had given inconsistent evidence about whether she was a duty officer (constable) or a detective and whether she had seen any MDC supporters transferred from her police station as political suspects. Her account of having no awareness of the close interconnection between the police and ZANU-PF until early 2007 was simply not plausible. To the extent that she had admitted to involvement in certain incidents involving mistreatment of MDC supporters, she had clearly sought to minimise her own level of participation and complicity beyond what was credible. Only under questioning had she admitted that her role in the Plumtree incident was essentially to help “cover up” a mass murder. On the strength of W1’s evidence, it was not plausible she could have been as unaware as she claimed of the long-standing political policy of the ZRP to harass MDC supporters and of the significant number of incidents in which police used unacceptable levels of violence against MDC supporters. W1’s report had described an increasing politicisation of the Zimbabwean police since 2000. The police force had been staffed from its creation with war veterans and the police had acquired a reputation early on as undisciplined, violent and corrupt. Even those who tried to be neutral professionals would have known they had many colleagues who were not.[59]As to the letters the appellant had produced from the Zimbabwe police saying that she was being treated as a deserter, Mr Ouseley asked us to find that they were not genuine and had been produced to help provide the appellant with a cover story. For a genuine deserter to have gone back to Zimbabwe within a few weeks of deserting would have been bizarre and highly risky. On her own evidence she had no “Plan B” or story ready to tell the Zimbabwe authorities if they had stopped her at the point of return or subsequently – that was something which, if her account were true, she must have worried might happen. Her attempt to explain why she had felt it safe to go to the Zimbabwe Embassy in London to renew her passport, when she was saying the authorities of that country would have classified her as a deserter, did not ring true; especially as she would plainly have known that some Zimbabwean CIO were active in the UK.[60]According to W2, Bulawayo had witnessed its share of violence used by the police and ZANU-PF against MDC supporters in 2000-2002 and, at a reduced level, in 2005. On the appellant’s evidence most of the cases of arrests of MDC supporters in Bulawayo must have passed through her police station, yet she said she had seen nothing wrong except in two cases. The truth was far more likely to be that she was a front-line pro-ZANU-PF police officer in an MDC stronghold. The picture she sought to present, that neither she nor her colleagues ever talked about politics and the conflict between ZANU-PF and the MDC, was far-fetched.[61]As regards the appellant’s attempts to say she had tried to desert as soon as she reasonably could, she would in truth have known well before 2007 that she was working in a force that routinely ill-treated MDC members and from early 2007 would have had plenty of opportunity to desert earlier than she said she did. Regarding the first incident involving maltreatment of Stephen Mhlanga, even if it were accepted she was just a note taker, that was not a minimal role and her presence there lent support to the torture used. Similarly, even if during the Gibson Sibanda incident she only slapped him, that was still behaviour that must have put, or helped keep, that gentleman in a state of fear. She was a team player. She was complicit. She was there, voluntarily, participating in breaches of basic human rights.[62]As regards whether the appellant’s crimes amounted to crimes against humanity, Mr Ouseley asked us to regard the police as part of the repressive apparatus of Mugabe’s essentially one-party state which from an early time had been used as a political tool to punish dissent from ZANU-PF policies. There had been a targeting of many in the civilian population on a country-wide scale since 1988 and the level of impunity within the police and other security services was widespread and systematic. The background evidence clearly established that the crimes committed against the civilian population included murder, rape, enslavement, forcible transfer of population and torture.[63]Turning to the issue of whether the appellant had a defence of duress, Mr Ouseley accepted that this was a defence provided by the ICC Statute to exclusion under Article 1F(a).[64]As regards mens rea, it was clear from R(JS) (Sri Lanka) and other cases that mere membership of an organisation – in this case the Bulawayo branch of the ZRP - was not enough. But the appellant’s involvement with police abuses in Bulawayo went well beyond that. To have been called to attend at two torture scenes, 11 demonstrations and the Plumtree crime scene, shows she must have been trusted to be loyal. She voluntarily joined a brutal police force, she had personal involvement in the “cover-up” of a mass murder and in two incidents of torture. The test of duress is a high one requiring a person to show that not to follow an order put them in grave and imminent peril. Yet even after these incidents she did not leave immediately.[65]With respect to the Tribunal’s request to know the respondent’s position on Article 1F(b), Mr Ouseley said that clearly the crimes she had been involved in were serious and the context was non-political. As regards Article 1F(c), Mr Ouseley relied on the respondent’s Reasons for Refusal letter.[66]The thrust of Mr Symes’ submissions was as follows. We should find the appellant a credible witness. She had afforded viable explanations of difficult points in her evidence. The expert evidence of W1 and W2 bore out that in Bulawayo even in 2002 and 2005 the number of violent incidents directed against MDC or other opposition to ZANU-PF were on a much lower level than in Harare. Despite Mr Ouseley’s attempts to re-characterise it, W1’s evidence was that the politicisation of the Zimbabwean police was a gradual process, and the struggle between professional elements and the more ZANU-PF- minded officers varied in nature and balance from area to area. In Bulawayo the police could very well have been predominantly a body performing a public service. W1 had said it was entirely plausible that it might take several months for the bureaucracy-prone police to notify border posts about suspected or known deserters and the appellant had a strong family motivation: to see her mother for possibly the last time and to try and help her daughter. When assessing her credibility, it had to be borne in mind that her asylum interview had failed to follow proper procedures for suspected exclusion cases. She had not been given the opportunity to detail relevant incidents and the surrounding circumstances.[67]As regards risk on return, it was entirely credible that she would face persecution for having deserted, being liable not just to criminal punishment under the Zimbabwean Police Act but also adverse treatment for having been disloyal. Given the evidence that there was a blanket ban on resignations from the police force when she left Zimbabwe in 2007, it was inevitable she would be classified as a deserter. She would face second-stage interrogation on return and would thus experience ill-treatment at the airport: see AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061 and HS (Returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094. She could not be expected to lie. By analogy with Article 9(2)(a) of 2004/83/EC (the Qualification Directive), she was someone who had refused for legitimate reasons of conscience to perform acts contrary to international law. If W1’s figures were right, there had been a significant number of police who had left the force by resigning or deserting when they could, and so this would be a sensitive point with the Zimbabwe authorities, who would want to be seen to be cracking down.[68]Turning to exclusion and first of all Article 1F(a), Mr Symes first submitted that the evidence clearly did not establish that the appellant had been a (co-)principal in commission of any of the crimes listed in Article 7 of the Rome Statute (for full text see Appendix A). She was effectively a bystander or someone with only minor or incidental involvement. She had not inflicted any significant suffering. There was neither actus reus nor mens rea for any torture. The offence of aiding and abetting needed specific intent and that was lacking. She had not intended to carry out torture or “cover up” evidence of murder. At Plumtree she arrived at the last minute and only carried out orders. She was not reckless; she had done all she could to minimise her own involvement. By contrast with the appellant in SK (Article 1F(a) exclusion) Zimbabwe [2010] UKUT 327 (IAC), who had a high level of involvement in the attacks against white farmers, the appellant in this case was in a very lowly position with limited knowledge of wider patterns of police abuses and limited involvement in any wrongdoings.[69]Clearly, following the guidance given by the Supreme Court in R(JS) (Sri Lanka) the respondent could not deduce her complicity as a non-principal from the mere fact she was a serving police officer. So far as concerns whether she was involved in a joint criminal enterprise, the legal test was that she had contributed in a significant way. That was not the case here. As regards aiding and abetting, Mr Symes added, it was even clearer that the legal test here required a “substantial contribution”. Again that was not the case here. Her involvement was low-level and involved no command responsibility. She had decent motives for joining the police force and serving in it. In the context of events that arose from early 2007 she did her best to minimise her role. She was unable safely to extricate herself earlier than she did especially given that to have spoken out at any stage would have risked making herself the target of ill-treatment as a traitor. She had explained that after the Plumtree incident it had taken her some time to track down the details of her cousin, so she could arrange exit to Sudan.[70]Also relevant were background factors such as the dominance in Zimbabwe media of ZANU-PF versions of events portraying MDC supporters as thugs or persons who falsely alleged police violence; and the evidence showing that Bulawayo was relatively quiet in 2005 and until 2007. It was wrong to overlook that the vast majority of human rights abuses committed by the Zimbabwe regime were committed by the Riot Police and ZANU-PF youth militia, not the ordinary uniformed police.[71]The Court of Justice ruling in Cases C-101/09 and 57/09 known as B and D v Germany (Area of Freedom, Security and Justice) [2010] EUECJ C-101/09 (09 November 2010) disclosed that there was no high test of duress; para 97 suggested a lighter test. In any event under the ICC Statute she met the test. She suffered from ongoing threats.[72]Concerning Article 1F(c), it was clear from the Court of Appeal judgment in Al-Sirri[2009] EWCA Civ 222 that for this sub-paragraph to be engaged there had to be an international element; that was entirely lacking here.[73]As regards Article 1F(b), it was clearly perceived both under the 1951 Convention and under Article 12 of the QD, that only very serious crimes were covered. Regarding the exemption in the latter for “particularly cruel actions”, it could not be said that any of the appellant’s actions fell into that category, which envisaged malice and personal desire to harm. Arguably when 1F(b) was involved the decision-maker had to take into account a wider range of factors than under 1F(a). Under the latter a crime had to be a listed crime. Further and in any event, the case law made clear that when state actors were involved in a political struggle with other organised groups, their actions were covered by the “political” proviso: see Lord Mustill in T[1996] 2 All ER 443. Significantly the Rome Statute only dealt with politically motivated crime as a crime of persecution.

Cited in 3 later judgments