Zimbabwe: Mugabe's Sleight of Hand

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Zimbabwe Lawyers for Human Rights recently reported that President Mugabe did NOT sign the Global Political Agreement. Well, he signed half of it. The entire 36 page document was ratified into law by Parliament as Constitutional Amendment 19. President Mugabe, however, only signed an 18 page document. The result is potentially unenforceable as “It is impossible, legally, to have an act in two different versions-one version approved by Parliament, another by the President.” The missing pages included clauses governing the mandated Constitutional revision and referendum process. This means that the entire agreement can be declared null and void, or those pages not signed by the President are not enforceable.

The Global Political Agreement (GPA) is the result of negotiations that occurred after contested Presidential and Parliamentary elections in March 2008. Although now-Prime Minister Tsvangirai received the majority of votes, he purportedly did not receive the necessary 50% +1 required to win outright, forcing a run-off election. Tsvangirai subsequently withdrew from the run-off over concern for the extreme levels of violence that occurred, including deaths, disappearances and torture and Mugabe was declared the winner. The Southern African Development Committee (SADC) stepped in and negotiated a political settlement that became the GPA and is now the guarantor of this agreement.

ZANU-PF’s commitment to the GPA has been suspect from the beginning including refusing to cede control of the Attorney General office and Reserve Bank and chipping away at the Parliamentary majority position Prime Minister Tsvangirai’s party MDC-T secured in the 2008 elections through pressing criminal charges. Further, while levels of violence have abated, political violence is an on-going concern including the recent murder of an MDC activist.

The law is meant to define the parameters that regulate behavior and establish social control. It is not meant to be a blunt weapon of force to repress, dominate and terrorize citizens. Mugabe’s political party, ZANU-PF, consistently uses the law to manipulate and oppress from laws used to stifle dissent such as the Public Order and Security Act, to withdrawing from the SADC Tribunal, to entering the agreement with false intentions by building in an escape hatch.

ZANU-PF’s withdrawal from the SADC Tribunal and the failure to sign all pages of the GPA are essentially contract disputes and there is no applicable court to turn where a judge can decide which terms apply and should be enforced. Instead, the judge is SADC, who must remove the blinders of reverence towards a one time freedom fighter and see him as the leader of a party of freedom oppressors. SADC announced today it will convene an extraordinary summit in three weeks to address the outstanding issues surrounding the GPA and it MUST force a resolution on both these concerns. 

The judge is also the international community, who bears the burden of standing strong in speaking out against the injustices occurring in Zimbabwe while still standing in solidarity with the people of Zimbabwe by providing appropriate humanitarian aid to repair the schools, hospitals, water treatment plants and sewer systems, electrical capacity and agricultural industry. Finally, the judge is us, who must continue to demand respect for the rule of law and insist on accountability and an end to impunity for those who use violence to retain power and control.

SADC Tribunal Struggles for Legitimacy

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UPDATE, September 24, 2009
“SADC Executive Secretary Tomaz Salamao told VOA that Harare’s move to repudiate the tribunal has been referred to the ministers of justice of the regional bloc’s member nations who have been asked to provide legal guidance to SADC heads of state.”

I know, I know. “Not another rant about international courts and why they are so fantastic,” you say.  Well, fooled you. I am not going to defend international tribunals as a concept or theory. It’s been done to death. However, I am asserting that if you are going to go through all the bother and effort of establishing an adjudicating body, setting up rules and procedures, selecting judges, hiring staff and building a brand spanking new courthouse, maybe you should first make sure the tribunal has the proper legal authority to try cases at all.

The Tribunal was established in 1992 as an institution of the Southern Africa Development Community’s (SADC) originating Treaty and was sworn in November 2005. It has jurisdiction over disputes between SADC States or disputes between persons and member States; but in order for a person to bring a case before the court, they have to have exhausted all legal options first in that State. Since the Tribunal received its first case in 2007, five suits have been filed; two contract claims against SADC, a contract claim against Zanzibar and two cases against the government of Zimbabwe.

And now we come to the crux of the issue. One case against Zimbabwe deals with demands for compensation for injuries suffered as a result of political violence and is still pending. The other case, Campbell v Republic of Zimbabwe, is a land seizure case decided in May 2008. The Tribunal determined that the plaintiff’s farms were illegally seized by the government and the plaintiffs were owed compensation. In the course of litigation, the plaintiffs were granted orders demanding that the government cease expulsions from the farms under litigation. Not only did the government of Zimbabwe not comply with the cease and desist order, it failed to comply with the final decision in Campbell. Now, Zimbabwe is saying that the tribunal has no force and refuses to recognize it as a legitimate body of legal authority. Thus, it can ignore decisions on any pending or decided cases.

SADC itself was established by an overarching treaty that contains language stating a tribunal will exist. The structure, rules etc of the Tribunal were then laid out by a Protocol to that Treaty. Zimbabwe’s argument hinges upon ratification of that Protocol; to enter into force, it required ratification by two-thirds of the SADC member States. Not only has Zimbabwe itself not ratified the Protocol, only five SADC members have ratified thus far.

The problem is contradictory language. Zimbabwe Human Rights NGO Forum argues the SADC Treaty states the tribunal is exempt from the requirement that all protocols be ratified by two-thirds of member States. Therefore, the Tribunal became a binding legal authority when the SADC Treaty was ratified. However, the Protocol itself states that it requires two-thirds ratification to take effect. Under international law, the Treaty should trump an underlying Protocol; getting that in writing is a different story.

So what are the options? SADC’s annual summit convenes this week. SADC can expel Zimbabwe for non-compliance, but if it wasn’t expelled following the election violence of last year it is unlikely to expel it for a breach of the SADC Treaty that is arguably not a breach at all. SADC can push for ratification at the Summit to close this loophole, however Zimbabwe can still say the Tribunal had no binding force until such time as the ratification process is complete and still claim cases decided prior to that time are nullified. If SADC does not ratify the Protocol, there is nowhere Mike Campbell or future potential plaintiffs seeking to sue any party at the Tribunal can turn to for redress as there is no higher applicable legal authority. The court for the African Union, the African Court on Human and People’s Rights is not functioning.

So what does all this mean? It means Campbell was awarded a hollow victory. It means one more instance where Zimbabwe eludes the rule of law, although this time its due to sloppy language creating a loophole large enough to drive a legal train wreck through. It means future litigants have no recourse. It means SADC needs to step up and get its act together. It means the SADC Tribunal is in the same league as the Inter-American Court of Human Rights, the ECOWAS Community Court, the International Criminal Court etc in struggling for legitimacy and compliance with its jurisprudence. On the other hand, the US Supreme Court had the same problem once upon a time and seems to do okay now. I always try to end on a glass half full note.

On a side note, the Campbell farm was burnt to the ground yesterday including crops and a linen factory, destroying the livelihoods and housing for over 60 people. An independent documentary, Mugabe and the White African, detailing the Campbell’s legal battle in the SADC tribunal is also showing in limited locations.