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Cautious reception of power sharing agreement
Zimbabwe Lawyers for Human Rights (ZLHR)
September 17, 2008

Zimbabwe Lawyers for Human Rights (ZLHR) cautiously acknowledges the signing of a power sharing agreement by the political leaders of the Zimbabwe African National Union-Patriotic Front (ZANU-PF), the Movement for Democratic Change (MDC) led by Morgan Tsvangirai, and the MDC led by Arthur Mutambara in Harare on 15 September 2008. If done in good faith by all parties, this can be taken as an historic moment and a positive first step towards resolving the multi-faceted crisis which our country faces.

ZLHR cautions the parties to the agreement, however, that political will, rather than mere appendage of signatures to paper and rhetoric, is necessary in order to ensure a new and improved method of governance. It will require much dedication and non-partisanship from both ZANU-PF and MDC to roll back the disastrous authoritarian policies of the previous government and replace them with people-centered policies and action.

Such commitment will be required not only from political party representatives, but also those in control of state institutions, which continue to exhibit a lack of independence and professionalism, as well as an engrained mindset and modus operandi steeped in intolerance for criticism, lack of transparency and accountability, and subscription to political patronage.

We hope that party-political interests will be swiftly put aside in exchange for a united desire for visible action to alleviate the shameful plight of ordinary Zimbabweans and to restore their dignity.

ZLHR acknowledges some positive aspects of the power sharing agreement such as the need to prioritize economic recovery, stability and growth, as well as to create conditions to ensure that the 2008/2009 agricultural season is productive. If done in a transparent manner, free from the corrupt activities which normally accompany such programmes, and with the full participation of those affected as well as relevant stakeholders within civil society and beyond, this will assist in alleviating the poverty, starvation and politicization of food and other humanitarian aid and assistance which continue to be experienced throughout the country.

So too, ZLHR welcomes the restoration of powers to the Cabinet for the formulation and implementation of policy. We will be looking to them to ensure that they pursue a comprehensive, vigorous and urgent legislative reform agenda.

The provisions seeking to address issues of national healing, cohesion and unity, although very broad and general are welcomed. So, too, are the provisions acknowledging the need for the police, other enforcement agencies, and the uniformed forces to properly interpret and implement security and other legislation, as well as build their understanding of and capacity in the area of human rights, whilst at the same time ensuring that there is an attempt to ensure no future impunity for perpetrators of human rights violations. Much will depend, however, on who controls the law enforcement agencies, and how willing they are to reverse the status quo. We therefore urge the political players to ensure that control of the police is removed from those who, in the past, have used it with impunity for party-political purposes rather than for the professional protection of the public without fear or favour.

ZLHR notes with approval the provisions committing the parties to allow free political activity, as well as respect for state institutions and the rule of law. Again, however, these provisions remain broad and general, and the government must take immediate measures to ensure that they "walk the talk" in this regard. In any democracy, and for peace to be achieved, the rule of just law is essential and non-negotiable.

As regards the media, visible steps must immediately be taken to restore the credibility and independence of the state broadcaster and print media so that they truly function in the public interest. The parties to the agreement must immediately commence the processing of applications for commercial and community broadcasting licences, finalize the long-outstanding application for re-registration of The Daily News, and remove the punitive duty being charged on foreign publications which are meant to restrict their circulation within Zimbabwe. We further emphasize that the parties cannot call on the external media run by Zimbabweans to stop providing the only independent sources of news and information without first creating and ensuring an enabling environment and guaranteeing the safe return and freedom from persecution of our Zimbabwean colleagues from the Diaspora, as well as their freedom to immediately resume their independent broadcasts from within Zimbabwe.

Other aspects of the agreement remain of concern, most fundamentally the process envisaged for constitutional reform. The people of Zimbabwe, and civil society, are at risk of once again being marginalized in the process of constitution-making due to the unnecessary and overriding powers of Parliament at key stages of the process.

Likewise although the need to reform and reconstitute independent commissions is welcome, the powers vested in the President, together with the fact that he merely "consults" the Prime Minister, raise the danger of continued excessive executive interference in appointment procedures and an exclusion of popular and civic participation therein, with potentially severe implications on their transparency and independence, as well as on the protection and promotion of human rights.

ZLHR notes that reference is made in the power sharing agreement to an inclusion of certain Chapters and sections of the "Kariba draft" Constitution in the proposed Constitutional Amendment No.19. We remind the political parties that this document remains shrouded in secrecy and has never been made public. The entire draft should be made public immediately in order for full scrutiny to be brought to bear on provisions which will have an impact on the general citizenry, especially where a document crafted by four individuals is to be relied upon. It is pertinent to sound a note of caution here: the current Declaration of Rights is severely restricted and offers limited protection of fundamental rights and freedoms. To wait 18 months, or possibly more, before this is addressed and people are properly protected, especially in respect of their economic, social and cultural rights is not advisable, and should be urgently addressed.

Finally, ZLHR emphasizes that the authority to govern derives from the will of the people. As such, the power sharing arrangement in itself is a negation of the very fundamental requirement that assumption of office into national political leadership must be anchored in credible electoral processes. Therefore this arrangement of convenience must be short term, and must be used to urgently create conditions which allow for the credible return to electoral legitimacy which places effective popular participation at the centre of our choice of leaders.

* ZLHR is working on a comprehensive analysis of the agreement and its implications, and its full position shall be published upon finalization of this analysis

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