DR SIPHOSAMI MALUNGA
THE International Criminal Tribunal for Yugoslavia (ICTY) Trial Chamber has defined instigation as “prompting” another person to commit a crime, while the International Criminal Tribunal for Rwanda (ICTR) describes it as “urging or encouraging” another to commit a crime.
Instigation requires that the instigator actually influences the perpetrator of the crime. A causal link is therefore required between the actions of the instigator and the actual commission of the crime or the criminal actions of the direct perpetrator.
By virtue of the organised, widespread and systematic nature of international crimes, instigators of these crimes play a central role in their commission.
There is no requirement for the instigator to be the architect, planner or primary designer of the crime, but it is necessary that the crime be committed as a result of the strong encouragement or persuasion by the instigator.
To be punishable, instigation must constitute “a clear contributing factor to conduct of the direct perpetrator of the crime”.
In Blaškić, and Akayesu, the ICTY, and ICTR, respectively held that instigation can be implicit, can entail both acts and omissions and unlike incitement to genocide does not have to be public.
The mens rea for instigation as set out in Oric is that the perpetrator must “directly or indirectly intend that the crime in question be committed”.
The mens rea includes dolus eventualis and recklessness and requires acceptance of a risk that the crime will more likely than not follow. The ICTY Trial Chamber concluded that the instigator must be aware that the commission of the crime will more likely than not result from his conduct.
There is a close relationship and overlap between instigation and aiding and abetting, which essentially means providing assistance, encouragement or moral support to the
Implied in the definition is the sense that “instigate” relates to negative or pernicious encouragement. For this reason, under international law, the punishment of instigation has been based on the imperative to hold accountable individuals who, despite not carrying out any elements of the crime themselves, have psychologically prompted other people to perpetrate such crimes.
It is clear that the top political leadership in Zanu instigated the attacks on the civilian Ndebele population by Five Brigade.
Statements by senior cabinet ministers and most importantly, the late former president Robert Mugabe encouraged Five Brigade to go into the Ndebele civilian population and “plough and re-construct”.
Taken together with the meaning of Gukurahundi, which is “the rain that blows away the chaff before the spring rains” this suggests that the Ndebele population was the “rubbish” which Five Brigade were intent on ploughing or washing away. Also, after the 1985 election in which Zapu garnered 15 parliamentary seats, Mugabe told his supporters to “go and uproot weeds from your garden” and this statement was followed by mass violence towards Zapu supporters in Harare.
Statements by the then Minister of State Security Emmerson Mnangagwa, now the President of Zimbabwe, in which he said that “the campaign against dissidents can only succeed if the infrastructure that nurtures them is destroyed” saw Five Brigade attacking the Ndebele civilian population as the perceived infrastructure that nurtured dissidents.
The then Minister of Home Affairs Enos Nkala also threatened to wipe out the Zapu leadership stating that the “… leadership must be hit so hard”.
Statements by Mugabe and his cabinet ministers influenced Five Brigade and Zanu supporters to commit crimes against the Ndebele civilian population and a causal link has been established between the statements and the violence that ensued.
Having shown that the actus reus element for instigation was satisfied by such conduct, it is imperative to turn to the mens rea element.
It can be inferred from Mugabe, Mnangagwa, former Defence minister Sydney Sekeramayi and Nkala’s conduct, among others, that they intended the crimes by Five Brigade to be committed, and in satisfying this element it is imperative to rely on the conditions cited in Orić above, namely that Mugabe, Mnangagwa and Nkala were aware of the influencing effect that their words had on the alleged direct perpetrators and this can be seen by the verbs they used in instructing the audience such as “go and uproot weeds from your garden’ and go and ‘plough and re-construct”.
Mugabe, Mnangagwa and Nkala also had alleged knowledge of the crimes committed by Five Brigade, as the government was made aware of them by the Catholic Commission for Justice and Peace and subsequently set up the Chihambakwe Commission.
They encouraged such crimes as evidenced by their failure to stop them and even going further to say that “the 5 Brigade does not differentiate between the civilian population and dissidents”.
It is not necessary for Mugabe, Mnangagwa and Nkala to have precisely foreseen by whom and under which circumstances the crime would be committed. It is only required to show that they must have at least been aware of the type and the essential elements of the crime to be committed by Five Brigade.
About the writer: Dr Siphosami Malunga is a Zimbabwean international criminal lawyer.