Obstacles to Mugabe's prosecution

By Lloyd Msipa
THE article by Bekithemba Mhlanga entitled, ‘Human rights violators must be held to account’ makes disturbing reading, especially when he misrepresents factual issues.
May I take this opportunity to state the facts, as I comprehended them while listening to Morgan Tsvangirai's address at a public meeting in London.
Beki starts from the premise that “you could have heard a pin drop at Camden Community School hall” when Tendai Biti supposedly said that the “people of Zimbabwe were prepared to forgive Robert Mugabe” for gross human rights violations after being asked a question concerning the position of the MDC on the matter.
The unfortunate part is that I happened to be at the same meeting on that Sunday afternoon. It so happened that it was not Tendai Biti who answered that question, but the party president, Morgan Tsvangirai.
Tsvangirai offered a political answer to a question that is otherwise highly sensitive especially at this juncture of Zimbabwean politics. I gather Beki either failed to grasp the contents or possible political implications of an answer in the alternative.
Zimbabwe is a country in a very precarious position. The government of Zimbabwe has not ratified the Rome statute. This is the statute that brought into existence the International Criminal Court.
The International Criminal Court opened its doors in July 2002 and its first indictment is the former warlord Thomas Lubanga Dyilo from the Democratic Republic of Congo. The International Criminal Court was able to indict Thomas Lubanga Dyilo for war crimes and other crimes against humanity because the DRC has ratified the Statute of the International Criminal Court.
Zimbabwe’s situation is precariously different because we have not ratified the ICC Statute. This makes it rather difficult for the ICC to investigate our cases. Zimbabweans can readily point to two major events in our history that warrant the attention of the International Criminal Court, notably the Gukurahundi massacres in the 1980’s and more recently Operation Murambatsvina.
Unfortunately, since the ICC Statute does not provide for retrospective investigations or trials (that is trials for events before July 2002), the Gukurahundi massacres do not fall within its Jurisdiction. This I would argue is the reason why the MDC president was not outright in pronouncing what Beki and others wanted to hear.
However, it is heartening to know that it is still possible for Robert Mugabe to be brought before the ICC for the Operation Murambatsvina human rights violations under Customary International Law.
This makes the assumption that a country does not have to ratify the ICC treaty in order for it to be bound by international laws for crimes against humanity.
Custom or an established pattern of behaviour by States binds all States. I would, however, hasten to say that Customary International Criminal law has not been tried and tested yet on a sitting or former head of State.
Charles Taylor was indicted on the basis of Liberia having ratified the Rome Statute. So it is still early days for us to call for Mugabe’s persecution under International criminal law without understanding the fundamental obstacles that have to be overcome before that can happen.
I can understand why Tsvangirai refused to be drawn into this matter. I do not think his response presented a policy shift by the MDC at all.