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ZLHR's position on key political processes and imperatives
Zimbabwe Lawyers for Human Rights (ZLHR)
January 20, 2011

At the start of a new year, in light of the current visit of South African President Jacob Zuma's facilitation team to Zimbabwe, and imminent discussions on Zimbabwe at SADC and African Union (AU) level at the approaching AU Summit, Zimbabwe Lawyers for Human Rights (ZLHR) has felt it timely to comment on political processes and imperatives in our country.

Generally on the Global Political Agreement (GPA) and the Inclusive Government (IG):

ZLHR reiterates that the GPA and the IG it created have contributed to the unacceptable continental trend of compromise and subversion of the will of the people. This route has de-legitimised elections in Zimbabwe by imposing political leaders on the electorate and denying them their right to freely choose their preferred representatives. The GPA has been used, not as a tool to facilitate an environment and institutions that will ensure a genuine, free and fair election in line with the SADC Principles and Guidelines for Democratic Elections and the AU Declaration on Principles Governing Democratic Elections, but rather to stall the urgent imperative for an election in which the free will of the people is expressed and respected.

On the Article VI constitution-making process:

The architects of the constitution-making process have unduly politicised the exercise and have failed to ensure adequate representation of Zimbabweans in processes undertaken thus far. The IG has flouted its own timelines. It has politicised committees, outreach teams and the input of data. The operating environment during the outreach exercise was not conducive to free participation due to intimidation, violence, partisan state institutions, and the selective use and abuse of repressive laws inhibiting free expression, association and assembly. In terms of process, therefore, the Article VI constitution-making exercise has been fundamentally flawed and compromised, and has failed the test of constitutionalism.

On the process of national healing:

The process of national healing is elusive and the Organ has been neither victim-centred, nor victim-owned. It has failed to have any impact or effect and will not be able to deliver as long as there are two centres of power - one which wishes to bury the past's excesses, and another which wishes to bring them into the open and address them in a meaningful manner.

On various state institutions and their reform

State institutions do not belong to any political party and must be impartial in discharging their duty as they have a critical role in ensuring a conducive environment for, and outcome of, any free and fair election. Their partiality played a defining role in the failed 2008 elections.

The Zimbabwe National Army (ZNA) remains loyal to one political party, rather than the state, in contravention of its constitutional mandate and obligations. There is no question that the armed forces must maintain peace and security in a sovereign country. However they must not prey on the fears of civilians, and involve themselves in the activities and campaigns of one political party and dress it up as "national security".

The Zimbabwe Republic Police (ZRP) and the Office of the Attorney General (AG) - more particularly the Director of Public Prosecutions (DPP) - remain compromised and partisan in the discharge of their duties. Cases brought to their attention from the 2008 election period have not been taken up; neither have there been prosecutions of subsequent perpetrators of political violence. Both institutions, through their selective targeting and use of repressive laws against legitimate political activists and human rights defenders; their failure to prosecute known perpetrators; their malicious persecution and prosecution of the innocent; and their disregard for the rule of law, bear primary responsibility for the continued impunity and human rights violations in the country. The latest example of the DPP's renegade action is the unconstitutional usurping by a clique of individuals in the AG's office (whose loyalties are well known), of the powers of prosecutors and law officers to exercise their constitutionally-mandated prosecutorial discretion in matters of bail.

On the legislative reform agenda:

Despite GPA provisions which oblige political parties to prioritise legislative reform, progress in this area has been minimal. The legislative agenda for the last session of Parliament was almost entirely unattained. The executive - through the Cabinet Committee on Legislation - has continued to block all efforts at reform, effectively ensuring that Parliament remains a lame duck in efforts to improve its record on legislative reform. It is only through the introduction of a Private Member's Bill that tentative steps have been taken to facilitate the amendment of the Public Order and Security Act (POSA) in Parliament. However, this incremental and piecemeal approach is not likely to result in greater freedoms as long as POSA is not repealed and other security and media laws are not significantly amended. There has been no progress on reform of laws that directly or indirectly facilitate free and fair elections. Although the government has started to look into amending the Electoral Act, there has been no urgency on their part, and the process remains piecemeal and secretive.

On the state-controlled media:

The reform of the broadcasting sector has been entirely ignored by the IG. The public broadcaster remains entirely controlled by one political party. It has not been transformed into a public service broadcaster and has been utilised almost exclusively by ZANU PF to broadcast its propaganda and views, as well as to attack and discredit its political foes. Print media has likewise suffered under continued abuse of AIPPA. Without significant and immediate reforms, AIPPA and the broadcaster will remain a critical impediment to elections.

On the constitutional commissions:

The Zimbabwe Human Rights Commission has gone for over a year without enabling legislation. It cannot monitor the occurrence of human rights violations or intervene to ensure respect for the rule of law through offering remedies to victims and sending a clear message to perpetrators that impunity will not be condoned. The silence of the commissioners in this regard is worrying. The Zimbabwe Electoral Commission has had limited visibility, has not interacted well with stakeholders, and has made no visible efforts to commence the implementation of necessary changes in relation to the management of elections.

On SADC and the AU and their role as guarantors:

Excluding the political party principals, SADC and the AU, as the guarantors of the GPA, bear the ultimate responsibility for any failure of the parties in the IG to adhere to the provisions and undertakings of the GPA. SADC has failed to rein in the IG on breaches and non-performance of provisions of the GPA. It has failed to focus on core issues around reforms and democratisation, overly concentrating on outstanding power-sharing issues, and even then it has not been effective. Countless resolutions and recommendations have been made and time-lines for action set at various meetings of both the SADC Troika on Politics, Defence and Security Cooperation, and the SADC Heads of State and Government. However, the principals have failed to comply with, and/or implement, these resolutions and recommendations, as well as their undertakings.

By failing to take strong action to prevent or punish breaches, SADC has encouraged - whether actively or by its own inaction - impunity and continued non-compliance with its own deadlines and benchmarks. This calls into question SADC's political will. The regional body has also allowed the IG to unacceptably stall in taking urgent and meaningful action to implement reforms critical for a fresh election, which is the main purpose of the GPA.

The AU has played almost no role although it is a co-guarantor, and must take more initiative and responsibility in ensuring adherence by the IG to the provisions of the GPA. In line with this view, ZLHR has sent a delegation to the imminent AU Summit and sideline meetings to engage various organs and stakeholders, deliver our contribution to the roadmap to elections, and highlight priority areas in which the AU must maintain greater oversight and action for the next 6 months.

Now that SADC is taking responsibility for producing a roadmap to elections there is need for stronger action and repercussions for non-compliance with benchmarks set for an election, implementation of all (not selective) provisions of the GPA, and resolution of other outstanding issues. It is necessary for SADC and the AU to have regard to the will of the people, rather than the politicians, in Zimbabwe if they are to play a critical role and be taken seriously. Failure to do so will be seen as culpability for another failed election in Zimbabwe and the ensuing regional instability, lack of peace and regional development and integration.

On the way forward:

In light of the failure of the GPA and the IG to deliver, ZLHR believes that there is now need to move towards the urgent finalisation and implementation of a comprehensive and decisive roadmap to fresh elections which are genuine, free and fair. ZLHR notes that the three political parties bear primary responsibility for the recommended action. They owe it to Zimbabwe to put the people of our beloved country first and to remember that they are servants of the people. The role and responsibility of SADC and the AU in ensuring a conducive environment for free and fair elections in Zimbabwe in the shortest time possible cannot be underestimated. There must be political will manifested through clear time-lines, and repercussions for non-compliance.

Once the conducive environment is established, the election must take place - irrespective of whether or not a new constitution has been put in place. In any event, the process leading to the crafting of this elusive constitution is fundamentally compromised and flawed. Even if a new constitution emerges before an election, it can only be a transitional document, and the struggle for a people-owned constitution must continue under a new government with one centre of power.

Short-term benchmarks to test political will and readiness for elections:

ZLHR has outlined in its Position Paper comprehensive benchmarks and minimum requirements anchored in the SADC Principles and AU Declaration on Democratic Elections. Some must be implemented by the IG, whilst others will require regional commitment and cooperation. However, the following must be completed before the end of June 2011 as evidence of political will on the part of the IG, SADC and the AU:

• Enactment of amendments to the Attorney General's Office Act to establish and resource an independent National Prosecuting Authority (NPA) which is separate from the AG, followed by a vigorous public selection process to appoint a Director of the NPA who is not compromised and will carry out their professional mandate without fear, favour or political allegiance against all perpetrators regardless of political affiliation.
• Investigation and fast-track prosecution of known perpetrators of electoral-related violence in the courts of Zimbabwe which are regularly publicised.
• Issuance of a directive to the ZRP structures down to local level by the Commissioner-General of Police (which is made public) to accept and investigate all complaints of criminal acts, regardless of political affiliation (real or perceived) of the complainant. This must be in addition to a system of reporting by the ZRP which will be published on a monthly basis in order to restore public confidence in the criminal justice system.
• Measures must be taken to urgently resource the courts - particularly the Magistrates' Courts - and put in place a security plan for judicial officers and prosecutors to ensure their protection during elections and thus their independence and effectiveness.
• Enactment of legislation to operationalise the Human Rights Commission, together with immediate human and financial resourcing. The Commission must have a protective mandate empowering it to independently and effectively investigate violations and act to prevent, minimize or resolve conflict, particularly during elections. It must be entirely independent of the executive and must publicly and regularly report to Parliament.
• Immediate repeal of AIPPA and enactment of reforms to broadcasting legislation, followed by a public application process to a re-constituted Independent Broadcasting Authority which will result in the licensing of private and community radio stations. Such stations should be broadcasting before the end of April 2011 and should not be subject to persecution and interference.
• Immediate revival of an independent Mass Media Trust and publication of its operational plan to return the ZBC to its public service mandate and ensure against partisanship and hate speech. This plan should begin to be implemented before the end of March 2011.
• ZEC must produce and publish an audit of its structures, personnel and operations. It must undertake public consultations with stakeholders on necessary electoral reforms and also publish its plan on cleaning the voters' roll to ensure its public acceptability.
• The legislative agenda for the next session of Parliament must be realistic, time-bound, and prioritise reforms of all laws impacting on elections. Urgent public consultations must be held with stakeholders. This, in addition to an audit of laws impacting on elections, must be used as the basis of this legislative agenda and the enactment of such laws and amendments must be completed within the time-frame.
• Immediate engagement of the security sector by senior military structures in SADC and AU to establish a firm agreement on military role (or non-role) in electoral processes.

As the SADC - mandated facilitator, South African President Jacob Zuma, consults around the development of a comprehensive "roadmap" to elections, the views of the civil society and other stakeholders apart from the three main political parties must be heard and must be taken into account. After all, the impact and effects of a contested, illegitimate and violent election and its aftermath are felt by the generality of the Zimbabwean public, and they have a right to input in efforts to prevent or minimise such occurrences.

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