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Justice and peace in a new Zimbabwe - Transitional justice options
Max du Plessis & Jolyon Ford, The Institute for Security Studies
June 01, 2008

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Introduction

The second round of Zimbabwe's presidential election is scheduled for the end of June 2008. There has been a sharp increase in state sponsored violence since the first round in March (ICG May 2008), coming after almost a decade marked by violence, intimidation and impunity for which the state itself has been primarily responsible. One of the principal issues for any future political transition will be whether - and how - to formally and publicly deal with past systematic and widespread human rights abuses. This is moreover a core political issue now, not simply a collateral legal or moral one to be left until later.

Part of the challenge is to map a way between sheer moral and legal principle and mere political pragmatism (Emmanuel 2007). One transitional justice option is to now flag, and then later establish, a truth and reconciliation commission which might give incentives to people at various levels to denounce violence and cooperate in peacebuilding, but which need not rule out criminal prosecutions where appropriate. Against the backdrop of an international legal and normative framework which may shape justice options, the first part of this paper addresses the question 'why a truth commission?' We suggest that Zimbabwe's particular experiences necessitate a national truth commission as a viable or necessary option in providing sure conditions and foundations for a peaceable future. The second part of the paper then addresses some considerations relating to how to establish such a formal process, drawing on others' experience. Of course, the question 'how might a commission look?' is (or should be) inextricably linked with the question 'why have a commission anyway - what exactly is it for?'

Engagement on this topic raises a host of difficult questions: in any interim phase, how will negotiations on 'transitional justice' persuade the powerful and prosecutable that it is safe to cooperate? Does a 'restorative justice' approach have stronger credentials than the moral claims for criminal accountability and punishment? If there is 'no peace without justice', who gets to decide what constitutes justice? How far back does 'the past' really go: should any commission deal with abuse allegations arising from the 1980s violence in Matabeleland or restrict itself to the period after 2000? What is the legal and political status of various presidential pardons and amnesties? What is the relevance, utility or propriety of calls for international prosecutions? What is the best role for local civil society? Does the international community have a role to play in transitional justice, or should this be wholly 'locally owned'? How would such a process deal - if at all - with any process on land claims or property disputes: can many of the acts of violence be separated from an enquiry into such questions? With an economy in freefall, what priority of resources and national attention should a backward-looking process have? Overall, in going forward (if and when they can), to what extent should Zimbabweans be concerned with looking back?

The International Crisis Group's view in their most recent report is that while 'Zimbabwe will need a transitional justice mechanism at some stage,' the practical necessities of the immediate crisis (and indeed longer term reconciliation) require that 'guarantees' be given to political leaders and the security forces ('modalities for ensuring military loyalty' and promises of non-retribution) (ICG May 2008:2). This may well be so, and to some extent the subject of the present paper perhaps presupposes a certain quality of 'transition', or relates to matters that lie only on the other side of difficult negotiations, confrontations and compromises immediately ahead.

However, it is clear that these issues will be directly shaping political negotiations now in the interim period - questions about what kind of justice strategy can secure the conditions for a transition to take place at all, and then to take place peacefully. The ICG report seems to suggest that justice issues are not of immediate significance. But it is difficult to see how 'justice' issues can be separated from 'political' issues during this stalemate, since fear of prosecution partly explains hardliners' resistance: the thrust of the ICG report is indeed an acknowledgment of this fact.

In this light, this paper is intended to stimulate more explicit discussion on transitional justice issues and options. Its contribution is at a certain level of abstraction, since the authors are not privy to ongoing discussions between various players on these issues. However, the fact that events and power balances are presently fluid suggests that this rather more general, thematic and dispassionate approach might be preferable.

The context: Violence and impunity in Zimbabwe

The suggestion that a truth commission may be one valuable ingredient in facilitating a sustainable national peace for Zimbabweans proceeds from two related premises:

• That human rights abuses in Zimbabwe's modern history have been serious, widespread, persistent, deliberate, systemic, and conducted largely with impunity
• That it is both right in principle and prudent for peacebuilding prospects that these issues and events be formally and publicly acknowledged and addressed in a way that arrests the pattern of impunity, enables a measure of justice and affords victims due redress, but that does not threaten the possibility that a legitimate transition may occur without serious resistance and conflict now or at a later date. 

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