The logic behind discussing the Zimbabwe crisis on the sidelines of the tripartite summit this weekend seems to be this: if pressured by a greater community of African leaders Zimbabwean President Robert Mugabe might loosen his deadly stranglehold on the government of national unity and back down from his determination to hold elections this year before democratic safeguards are in place.
But the risk of this gambit is clear. It could demonstrate to the SADC’s prospective economic partners just how divided the body is.
It does not help that Mugabe assumed chairmanship of the African Union’s powerful security organ for June — in a sense he will outrank those seeking to pressure him into making concessions.
Few dispute that Mugabe’s Zimbabwe has been, and remains SADC’s albatross. It has, for example, resulted in misalignments with Africa’s other regional organisations, which are pertinent to the coming free-trade negotiations. As Nicole Fritz of the Southern Africa Litigation Centre explained: “Both the Economic Community of West African States and the EAC [East African Community] secure the rights of individual access to their respective regional courts, recognising that such access is critical to protecting human rights and encouraging economic growth.
“SADC’s justice ministers, on the other hand, announced after the May 20 extraordinary summit that they were extending the suspension of the SADC Tribunal for another year and would initialise a process to amend the legal instruments relevant to the tribunal’s constitution.”
It is the right of individuals to access the SADC Tribunal — the body’s regional court that has ruled against the Zimbabwean government on the contentious land-grab issue — which Namibian human rights lawyer Norman Tjombe believes the SADC justice ministers have in their sights.
‘They envisage a court like the International Court of Justice, which is a court only for countries against countries,” he said, adding that SADC’s leaders had outgrown the humanistic era of Nelson Mandela and Desmond Tutu, in which the idea of the regional court was born.
“But then again,” Tjombe said, “it took SADC from 1992 to 2007 to appoint tribunal judges. It wasn’t even a priority at the start and all along it was actually just international powers pushing for it.
“Now that geopolitics are shifting, with Southern Africa looking east, whatever interest was there is dead and to be frank the Swedes and Finns and Germans driving this thing are getting fatigued too.”
Many of the civil society leaders and human rights activists who loudly decried the initial suspension of the SADC Tribunal in 2010 appear equally worn down. ‘This thing [the tribunal] is not going to fly, it’s dead,” lamented one human rights lawyer who did not want to be named lest she “give them more reason to push through their amendments”.
The role of the South African government in the sidelining of the tribunal is as interesting as it is opaque. Asked whether South Africa supported a strong regional court, the deputy director general of the department of international relations and cooperation, Santo Kudjoe, replied that it did indeed.
“There is a broad consensus in the region to have a tribunal,” Kudjoe said. “However, there has to be a broad understanding of the legal framework establishing it and it is also critical to understand that the implementation of the aims and objectives of SADC does not depend on the tribunal.”
At the extraordinary summit in May, South Africa’s deputy minister of justice agreed with his counterparts that the legality of the tribunal was beyond dispute and yet joined his fellow ministers in saying they would not make any recommendations to the summit leaders about measures they should take about the Zimbabwean government’s non-compliance with the tribunal’s 2008 finding against it. “That’s completely conflictual,” said Fritz. “My sense is that they don’t know how to negotiate their way out of the hole that they have dug for themselves.”
A group of SADC lawyers who did not want to be named alleged that South African Justice Minister Jeff Radebe and his Zimbabwean counterpart, Patrick Chinamasa, “were working on a political, ‘extra-legal’ solution to the tribunal’s finding against the Zimbabwean government in respect of its land-reform programme, to help Chinamasa off the hook and effectively help South Africa duck the rulings of international courts in the future”.
The ministry of justice denied this. “I would dispute that too,” said Fritz, “but we are aware that Chinamasa is under orders from his politburo to take a harder line on the issue and we’re getting reports that chief justices are attending SADC summits with specific instructions on how to engage on the tribunal issue.
“South Africa knows that Zimbabwe is prepared to throw everything at this issue and if they want to retain a semblance of unity on the regional integration issue they’re going to make some concessions to Zimbabwe,” she said.
University of Johannesburg vice-chancellor Adam Habib said the South African government “thinks Mugabe’s a mad hatter, but they conceded that he advanced a redistribution agenda on the land question, and land redistribution is important to them because, like it or not, they’re nationalists.”
For Professor Ian Taylor of the University of St Andrews in Scotland, the decision to extend the suspension of the tribunal exemplifies a fundamental flaw in the constitution, of both SADC and the African Union.
“If you went through a list of members — Namibia, South Africa, Botswana, Mauritius – you’d think they’d be at the forefront of the continent in pushing forward good governance, however you want to define that.
“Instead, you find the opposite, with SADC undoubtedly the weakest regional body on a continent of weak regional bodies. There aren’t any criteria for joining these organisations like there is at, say, the European Union. You simply have to be in the neighbourhood.”
Sean Christie is the Open Society Foundation’s fellow on foreign policy reporting
Zimbabwe on the boil
Violence and new claims of voter fraud have raised tensions between Zimbabwe’s rival parties that could hurt President Robert Mugabe’s bid to hold elections this year.
The Movement for Democratic Change said Zimbabwe still has to deal with the threat of violence and put in place electoral reforms, a position backed by most regional leaders, including President Jacob Zuma, who want to see more reform before any new poll is held. But the past two weeks have cast fresh doubt over Zimbabwe’s readiness to hold free elections, ahead of the extraordinary summit this weekend.
Finance Minister Tendai Biti, an official of the MDC and its most senior negotiator on a road map for elections, blamed Zanu-PF for a petrol bomb attack on his home and threatened to quit government.
A report this week by South Africa’s Institute of Race Relations suggested there are more than 2.5-million fake voters on Zimbabwe’s voters’ roll. Earlier, a report by the Institute of Security Studies said Zimbabwe had 40 000 registered voters over 100 years old. — Jason Moyo