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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
on the Global Political Agreement (GPA) and the Inclusive Government
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.
Article VI constitution-making process:
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.
process of national healing:
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.
state institutions and their reform
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.
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
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.
legislative reform agenda:
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.
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.
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.
and the AU and their role as guarantors:
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
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.
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
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
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:
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
and fast-track prosecution of known perpetrators of electoral-related
violence in the courts of Zimbabwe which are regularly publicised.
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.
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.
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.
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
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.
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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