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Lawyers to sue China over Zimbabwe
Wilfred Edwin and Francis Ayieko, The East African (Nairobi)
May 05, 2008

Lawyers from East Africa and the Southern Africa Development Community (SADC) are seeking legal action against the Chinese government over arms supplies to Zimbabwe.

The East African Law Society and the Law Society of the Southern Africa Development Community say they have finalised preparations to institute legal action at the International Criminal Court (ICC).

Two weeks ago, the 77,000-tonne An Yue Jiang ship carrying several container loads of weapons for the Zimbabwe Defence Force, including three million rounds of AK47 ammunition, 1,500 rocket-propelled grenades and more than 3,000 mortar rounds and mortar tubes, was denied entry by several Southern African countries.

The ship was turned away in Durban and Cape Town, where dockworkers refused to unload the cargo, and later from Beira port in Mozambique, where it was refused permission to dock.

Tom Ojienda, president of the East African Law Society, told The EastAfrican last week that the two bodies will approach the ICC to investigate why China is sending arms to Zimbabwe given the current political situation there.

Mr Ojienda said that the two organizations will seek court redress on the post-election situation, including torture and assaults carried out on citizens.

"The two organizations are going to engage the African Union and the United Nations, into actively addressing the situation.

The lawyers were speaking at an emergency Pan-African summit in Dar es Salaam on April 21 to discuss the election crisis in Zimbabwe.

The summit asked the African Union not to recognize results of the vote recount. Instead, it wants the continental body to appoint an independent high level Pan-African panel of eminent persons to deliver a political settlement to the country.

Saying that the electoral crisis in Zimbabwe can only be resolved through a political settlement that reflects the will of the people as expressed during the March 29, election, the meeting also wants the AU to call upon China and other countries "that are propping up the Zanu-PF regime," to desist from such actions.

It also called on the AU to openly condemn the state campaign of violence against the people of Zimbabwe for exercising their democratic rights.

The summit, called by the East Africa Law Society, brought together 105 representatives of civil society, the legal fraternity, trade unions, academia from 21 African countries.

According to the participants, the mediation efforts spearheaded by SADC and endorsed by the African Union have failed to deliver the necessary solutions to Zimbabweans and to uphold the will of the people.

"The entire mediation process has lacked transparency, neutrality, openness and consultation of the majority of the people. The SADC-elected mediator has shown a clear bias for the incumbent government and he should be removed from the mediation process with immediate effect," they said.

However, they said they recognized the important role played by certain countries and individuals in attempting to resolve the crisis in Zimbabwe.

"We are encouraged by efforts and support of particular African heads of state who recognized that the will of the people as reflected on March 29 has been compromised in the subsequent electoral process," they noted.

According to the statement, realization of the change for which the people of Zimbabwe voted on March 29, 2008 is being threatened by Zanu-PF's attempts to cling to power "through coercion."

Civil society in East and Southern Africa has demanded a rethink of the AU approach on handling the Zimbabwe post-elections crisis, in a move that could put President Jakaya Kikwete, the current chairman of the AU in a precarious political situation, given the current continental political divide.

The entry of civil societies also marks another acid test for Tanzania. Tanzania and Zimbabwe have had a cordial relationship since the latter's war of liberation, and last year, President Kikwete - then SADC chairman - appointed South African President Thabo Mbeki to head a peace mission to Zimbabwe in regional efforts to pursue a long lasting solution even before the election.

The summit participants were shown digital photos of people with severe injuries allegedly resulting from the systematic Zanu-PF terror campaign between March and April 2008 in various parts of Zimbabwe against people suspected of being Movement for Democratic Change sympathizers.

It is also not lost on analysts that Zimbabwe has put President Kikwete on a diplomatic collision course with regional power South Africa for the second time in as many months, after the Comoros military intervention, which South Africa disputed.

Prof Haroub Othman of the Institute of Development Studies at the University of Dar es Salaam and chair of Zanzibar Legal Services Centre said the Zimbabwe crisis is a symptom of widely practices politics of exclusion in Africa.

Prof Othman said that regional bodies such as SADC, AU and Comesa should not only integrate economically, but should also seek to bring into harmony adherence to democracy and human rights, and must have charters addressing human-rights issues.

Through the ongoing delay in announcing the presidential results and through spurious attempts by Zanu-PF to have a recount in some parliamentary constituencies, the summit participants said, the election process has been negated and any run-off as a result of a recount or an announcement of results will be illegitimate.

According to them, the announcement of the presidential results has been deliberately delayed to prevent a possible run-off. "These results are corrupted and compromised," they claimed.

They said that although the AU mediation process delegated to SADC was supposed to deliver an election that was broadly accepted by the people of Zimbabwe, the delay in announcement of presidential results and the recount in some constituencies have prevented such outcome.

"The Zimbabwe Electoral Commission has not acted independently and is discredited. The judiciary has been compromised and is not independent. The military is politicized and has excessive control over the government. Zimbabwe is in a constitutional crisis and the legal environment has been compromised and does not provide for and protect the rule of law," they said.

And for some foreign countries that they feel are using the crisis in Zimbabwe to push their agenda in Africa, they said a statement: "Certain international countries such as China are propping up an illegitimate regime through a range of activities from diplomatic silence to the provision of arms and ammunition to Zanu-PF. That must stop.

They said that the international norm of "responsibility to protect" places primary responsibility in the hands of the state to protect its people from crimes against humanity, genocide, and war crimes.

However, where the state itself is the perpetrator of such heinous crimes, and/or where it fails or neglects to protect its people, the international "responsibility to protect" cannot be stopped by self-serving claims of sovereignty on the part of armed and predatory elites.

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