Lloyd Msipa : Politics and Law

ZANU- PF must change ahead of elections

2011-12-04T12:23:00.001-08:00

The Zimbabwe African National Union – Patriotic Front (ZANU PF) national people’s conference begins in Bulawayo on the 6th of December 2011. This has been dubbed a mini ‘congress’ as fundamental structural changes are expected to take place within the leadership at the top. These changes are according to the National Chairperson of ZANU PF Comrade Simon Khaya Moyo going to be largely minimalistic. There will be no changes at the very top. The majority of Zimbabwe’s provinces are said to have endorsed the candidacy of President Robert Mugabe in next year’s harmonised elections. Comrade Simon Khaya Moyo goes on to say that “ZANU PF was going to pursue the indigenisation and empowerment drive after the conference as the party’s flagship policy in its election manifesto”. And speaking to both Algerian and Nigerian envoys in Harare recently he further stated that "After the conference we will go to the people to ensure that we prepare for the harmonised elections and naturally we are looking forward to winning the elections resoundingly,"Now like may other patriotic Zimbabweans out there, I have the greatest respect for the leadership in ZANU PF, but a distinction must be made between telling some hard truths and being disrespectful. Old ZANU to New ZANUIt is a hard truth that must be said that ZANU PF needs to undergo a major fundamental structural change in order for it to appeal beyond its traditional rural voters. Whilst the legacy of the war of Liberation must be respected and protected, it is however an old political tactic to continue to use the liberation war ethos to win elections today. The world has moved on and it is now imperative for ZANU PF to set old slogans aside and embrace the political revolutions currently sweeping across the globe. ZANU PF has to renew itself in order to survive into the 21 century or it will be forced out of existence.After two decades under Thatcher, poor Tory policies and industrial reform Britain became a shadow of its former self. The Thatcherite years were dogged by continuous industrial action ranging from the mine workers to government workers strikes. This over the years weakened the Tory government as the economy took a knock which provided an opportunity for a ‘New Labour’ lead by Tony Blair that had overhauled itself to come in with new policies towards fiscal prudence, commitment to providing better public services and significant public sector reform.Whilst the indigenous and empowerment process currently underway in Zimbabwe is a good thing. It is not enough to garner the popular vote in next years harmonised election. The people of Zimbabwe want fundamental change and it seems that they are prepared to get this change from whatever source. In this respect, ZANU PF must use its 12th annual conference in Bulawayo to elect a new leadership for ZANU PF. It is imperative that this happens in order for ZANU PF to have a life after the next election. The arguments that ZANU PF will crumble if President Mugabe steps down or that President Mugabe is the only person who can win an election against Morgan Tsvangirai must be dismissed with the contempt they deserve. These arguments make a mockery of all the young capable leaders within ZANU PF and outside ZANU PF.Elections and SanctionsLet me first address the two arguments put forward. President Mugabe and many other nationalists were instrumental in bringing independence to Zimbabwe. With that independence legacy we saw the advent of the one man one vote system non existent before 1980. We saw the legacy of the land reform exercise with millions of Zimbabweans having benefitted thus far. These and many other legacies will forever remain a credit to President Robert Mugabe and other nationalists like Comrade Joshua Nkomo and many others who sacrificed their lives for Zimbabwe. Zimbabweans will be forever be eternally grateful. But Zimbabwe must move on inline with the new world order. In that respect, ZANU PF must elect a new leader who will lead the party in the next harmonised election. There are unfounded fears within ZANU PF that any new person at the helm maybe no match for Morgan Tsvangirai. I beg to differ. Within its rank and file it is possible for ZANU PF to come up with a new leader. That new leader will immediately work to endear him or herself to the people of Zimbabwe between now and the next election with President Mugabe playing the role of a mentor. With the amount of gaffs being made by Tsvangirai on a day to day basis it is possible for ZANU PF to have an electable candidate before the next election.With a new leader at its helm, ZANU PF will have no need to call for elections next year. In fact it will be prudent for ZANU PF to call for elections to be held in 2013. This will be consistent with the natural life of the Parliament of Zimbabwe of five years from the date of the last election held in 2008. In fact the MDC’s have managed to use smokes and mirrors to delay elections in Zimbabwe and hence I do not see why ZANU PF can not seek to delay them further whilst it puts its house in order. Between now and then ZANU PF will have an opportunity to make fundamental headway in rebranding the party, fiscal prudence, commit to provide public services that truly matter to the people of Zimbabwe, like a constant flow of water and electricity. The indigenisation and empowerment exercise currently underway must be intensified with all credit accruing to the new leader of ZANU PF. The indigenisation and empowerment exercise must be complemented by any equally aggressive public sector reform exercise. The privatisation of state institutions like the Zimbabwe electricity Supply Authority (ZESA), the Zimbabwe National Water Authority (ZINWA), Air Zimbabwe and many others that are currently struggling must complement the indigenisation and empowerment exercise that is currently targeting private foreign companies only. Public sector institutions are key pillars of any economy and as long as we do not attend to them Zimbabwe’s economy will remain in comatose.On the issue of sanctions, it boggles the mind as to why the leadership of ZANU PF are calling for elections whilst sanctions are still in place. It is a truism that the economic sanctions on Zimbabwe were put in place primarily to weaken the Zanu-PF led Zimbabwe government and push citizens of Zimbabwe to turn against their elected leadership. This strategy skews any election in favour of the MDC-T and muddles the political playing field. The general idea was to have Tsvangirai and his MDC-T party hijack the reins of power as soon as the people of Zimbabwe, battered by economic sanctions, overthrew the Mugabe administration. ZANU PF under a new leader may possibly be able to petition for the removal of these sanctions failure which ZANU PF must refrain from participating or calling for elections until the sanctions are removed. It will not be in the interest of ZANU PF to go to elections with economic sanctions in place fro the simple reason that the political playing field is skewed against it.Inject new blood in ZANU PF It is not rocket science to see that it is the young leaders in the MDC-T, MDC-M and MDC-N who are benefiting from being part of the Government of National Unity. They are learning on the job the skills of running government and country, whilst the ageing leadership in ZANU PF refuses or neglects to allow new young man and woman into the top leadership positions in the party. It is no secret that if one is to join ZANU PF today, they join the party at cell level and toyi toyi with others there until one is eventually finds their way to the top over the years. This apparently applies to all new aspiring leaders, educated professionals, and all those wanting to make an immediate impact in the party by way of bringing new ideas. This rule, whilst it may have been useful back in the sixties, it is now an outdated method of conscription. ZANU PF needs to adapt an open door policy towards new membership. Appointments to party positions must be upon merit as opposed to a patronage system. These and other new principals will make ZANU PF a party compatible with the new ethos of the 21st century.Factionalism and certainty
One of the many reasons ZANU PF has been dogged by factionalism has been a failure by its leadership to agree on the tenure of the leadership of ZANU PF. According to the wiki leaks revelations, there is a general consensus amongst ZANU PF leaders that president Mugabe must step down and it is in the national interest and party that a new leader be elected to lead the party. Electing a new leader at the National People’s conference in Bulawayo will go a long way in ridding the party of the factionalism that has been largely caused by the uncertainty of what would happen should president Robert Mugabe meet his maker suddenly. A new leader will by all accounts bring confidence and certainty back into the party and hence be better placed to mobilise a largely united party behind him and ZANU PF as a party would have survived into the 21st century.On the other hand if ZANU PF leaders refuse to confront the issue of leadership change at the National Peoples Party conference to be held in Bulawayo, then ZANU PF like UNIP in Zambia will have confined itself into the dustbin of history.

The Assassination of Mummar Gaddafi illegal under International Law

2011-10-21T02:22:00.000-07:00

On the 18th of October, United States Secretary of State Hillary Clinton was in Tripoli, Libya. She stated in unusually blunt terms that she would like to see ‘Mummar Gaddaffi dead’. Two days later she got her wish. Mummar Gaddafi was bombed by NATO aeroplanes as he attempted to leave Sirte and rebels from the National Transitional Authority (NTC) pulled from the drainage pipe an injured Gaddafi who had taken cover to avoid the bombardment coming from NATO Aeroplanes.

Gaddafi was pulled from the drainage pipes alive as video footage has shown and was summarily executed using his own personal golden gun. This was extra judicial killing supported by a whole Secretary of State Hilary Clinton. This was a clear violation of the Geneva Conventions in the acceptance of surrender and the treatment of prisoners of war; military necessity, along with distinction and proportionality.

The issue in Libya is not so much about Gaddafi, but that his murder symbolises the final occupation of Libya. The re-colonisation of Libya by America and NATO forces. It is now a question of America and Europe doing exactly what they please in that country. Not only do they have access to the large oil and gas reserves, but also something the media rarely covers the large water reserves under the Libyan soil.
Under international law there is no rational for the assassination of Mummar Gaddafi. The original reason, which was resolution 1973 which authorised the protection of civilians, was turned into a regime change instrument. The assassination of Mummar Gaddafi is a blunt admission by America, France and Britain that this crusade was not about protecting civilians, but about regime change. This was a breach of the UN regulations. This was a NATO/US operation in a scramble for Libyan oil.

What NATO and America do not realise is that they have now created a very chaotic situation, probably similar to the one in Iraq if not worse. In the competition for the Libyan oil and Gas, the NTC and the crusading countries risk fanning more conflict amongst the Libyans themselves. Sooner rather than later the Libyans will realise that they have jumped from the frying pan into the fire. The imperial solidarity shown when taking over Libya will surely disintegrate as the scramble for these resources begins

And what was Gadaffi’s crime?

Gadaffi’s principle crime was that he refused to take any loans from institutions like the IMF etc. He refused to join the club of International bankers and decided to set up his own Pan-Africanist bank that would have provided loans to African countries. Gaddafi’s Libya was the only African/Arab country that did not owe any country or institution any money.

The Assassination of Mummar Gaddafi is part of a bigger plot by America to establish US AFRICOM. The United States Africa Command. Africa Command protects and defends the national security interests of the United States by establishing its ‘defence capabilities’ on African soil and taking over regional organizations. To date no African country except Liberia has co-operated with America in having AFRICOM bases on their soil. It is now quite clear that AFRICOM will now move into Libya. The re-colonisation of Libya will then be complete.
This is happening apparently and surprisingly with own AU and SADC being completely conspicuous with their silence. Whatever the case we see a new developing international trend were the there is a green light in the killing of leaders. This is a new US strategy of benefiting from African resources by creating destabilised states which are chaotic and hence have no central governments controlling anything. We have seen this in the Congo, Uganda, Somalia and now in Libya. This creation of chaos gives them justification for military intervention. We probably will see this soon in South Sudan. As Southern Africa and indeed Zimbabwean we need to be aware of this worrying growing international trend in which the scramble for Africa has taken a new dimension. They kill our leaders and make you believe that you were complicit.

Interpretation of the SADC communiqué on Zimbabwe

2011-06-13T14:37:00.000-07:00

The SADC summit to discuss the political impasse in Zimbabwe held in Sandton, South Africa has come and gone. The three political parties in the Global Political Agreement Zimbabwe went to the SADC summit with different demands and expectations. The Tsvangirai MDC-T political party with the backing of a host of NGO sponsored civil society organisations that included the Crisis Coalition descended on SADC to demand, firstly, the endorsement of the SADC Organ Troika resolution held in Livingstone, Zambia in March 2011. Secondly, they were demanding that the full SADC summit of heads of states and governments to include in its deliberations the issue of security sector reforms and thirdly a definitive timeline for elections in Zimbabwe beyond 2011.
On the issue of the security sector reform, we all know what happened to that. Besides it being not an issue not covered in the GPA agreement, it seemed overtly ambitious for the Tsvangirai outfit to think for a minute that the SADC summit would entertain such preposterous demands. The issue of the security sector is a national security matter way beyond the mandate of SADC. The matter is so sensitive that it raises sovereignty issues.
On the first issue, it is not a secret that the resolution of the SADC Organ Troika of March 2011 in Livingstone was based on the inaccuracies of a report presented to it by the Morgan Tsvangirai MDC-T, which among other things misled the organ to believe that Zimbabwe was under some kind of military rule and that the Zimbabwe government was no longer in charge. This of course resulted in a flawed communiqué from the Organ Troika in Livingstone, Zambia in March.
ZANU PF also had its own set of demands. Notably, the party pointed out to the SADC leaders the ambit of the Global Political Agreement mandate when it came to issues that include the demands for security sector reforms. This was never part of the Global Political Agreement. Secondly, ZANU PF was seeking guidance from SADC with regard to the issue of elections. This requirement for guidance was premised on the basis that the Global Political Agreement that was originally agreed to last for twenty four months had since expired and hence according to the agreement, elections were now overdue.

And thirdly and most importantly, the Livingstone troika summit resolution had deliberately written out the issue of the removal of sanctions on Zimbabwe. It was this resolution that did not mention the sanctions issues as an outstanding issue to be fulfilled by the MDC-T outfit that they clamoured for its adoption and endorsement.
It is in this context and background that the three principals of the Global Political Agreement went to the SADC in Sandton, South Africa. In the latest SADC summit Communiqué, dated the 12th of June 2011, the issue of the SADC Troika communiqué, how it was received by the full SADC summit of heads of state and governments has received multiple interpretations. In particular item 22 in the resolution has been subject to misinterpretation:
22. Summit noted the decisions of the Organ Troika Summit held in Livingstone, Zambia in March 2011.
In some form of desperation, there are those from the Morgan Tsvangirai camp who got so frustrated by the failure of the full SADC summit of heads of States and governments to endorse the Livingstone summit resolutions that they have now resorted to redefining words, resolutions to suit their own ends.
Listening to an online pirate radio station some , ‘political analysts’ being interviewed were at pains trying to equate or run parallels between the word ‘noted’ with ‘endorsed’. Any Zimbabwe Junior certificate student will easily tell you the difference between the words, noted and endorsed. A standard dictionary will tell you that when something is said to have been noted it merely means something that is ‘worthy of notice, something worthy of ‘attention ‘nothing substantive.
When you endorse something it means you ‘support’ that thing. An endorsement is an act of approval. It is a qualifying comment. It is often when something is endorsed a signature is required. Now, for someone to say with no equivocation that the SADC summit endorsed the Livingstone summit resolution by using the word ‘noted’ is not only foolish but thoroughly irresponsible. The bottom line is that the SADC summit heads of state and governments saw through the shenanigans of the Tsvangirai outfit at Livingstone. In particular President Jacob Zuma saw through the games played by the MDC-T outfit. The fact that he requested to meet President Robert Mugabe a day before the SADC summit is instructive.
Another issue that seems to have either escaped or has been ignored by the pirate radio stations is the issue of the sanctions. This had been written out of the Livingstone troika resolution of March 2011. The SADC summit of the head of states and government resolution of Sandton, South Africa brought it back in under points 29-31.
29. Summit recalled its decision taken during the Extraordinary Summit in Windhoek, Namibia in August 2010, mandating the Chairperson of SADC, the Chairperson of the Organ, SADC Facilitator for the Zimbabwe Political Dialogue assisted by the Secretariat to undertake the mission to the United Kingdom, United States of America and the European Union.
30. Summit received a Report on the mission and noted its recommendations.
31. Summit committed to continue dialogue with the western powers on the removal of sanctions against Zimbabwe.
This alone is a major victory for the ZANU PF party in that the MDC-T party has been asked working together with SADC to make sure that they fulfill their part under the GPA agreement. Most importantly to make sure that they engage with their western sponsors to have the sanctions lifted if Zimbabwe is to have free and fair elections. If the sanctions are lifted, the issue of the timeline for elections will no longer be of any significance.
So, however you look or read the June 12, SADC summit resolution, the MDC-T party remains the beast of burden. The burden they have is to make sure the sanctions go before the next election, failure which they would have failed or neglected to discharge their responsibility towards the Global Political Agreement.

Violence and the case for Legitimate elections in Zimbabwe

2011-06-01T18:01:00.000-07:00

Social networks have become the new platform for Zimbabweans domiciled in various countries around the world to pool their thoughts, opinions and arguments together as the quest for a new Zimbabwe narrative slowly begins to take shape. Zimbabwe is a country which many consider to be between a rock and a hard place. Some of us see different, depending on which side of the political divide one is compelled to argue from. Zimbabweans hold different views as to the source of our problems and the route we need to follow in order to solve our problems and hopefully agree on new Zimbabwe narrative or dream as it were. Of the many subjects that are debated on the social networks, the most controversial is the one of elections under the Global Political Agreement (GPA) and the much talked about demand for security sector reforms by the MDC-T party led by Morgan Tsvangirayi.

The issue of elections in Zimbabwe takes centre stage because they will ultimately determine which political party forms the next government in Zimbabwe and why. The ZANU PF party led by President Robert Mugabe wants the elections to be held this year, 2011, hence the demand for the need to speedily conclude the issue of the Constitutional referendum.

On the other hand the Morgan Tsvangirayi MDC-T wants the elections held either next year, 2012 or beyond. Amongst their numerous demands is the call for a free and free poll. Their demand for a free and fair poll is premised on the argument that the ZANU PF party led by President Robert Mugabe uses violence and coercion in order to determine the outcome of elections. And it is their contention that the 2008 elections were worn by Morgan Tsvangirayi and because of the violence the election results failed to translate into political power in order for him to form a government.

The key issue that we need to interrogate fairly is the issue of violence, its source and its implications on a fair and credible poll. It is the issue of violence with regard to our elections to be held either this year, next year or when ever that we need to address for us to fully appreciate the legitimacy and the full import of a real and credible election. My argument in this regard will be premised on the fact that the biggest form of violence ever perpetrated on a people was when with the stroke of a pen the United States of America enacted ZIDERA in 2001 followed closely by its allies in Europe. Lest we forget these economic sanctions became a reality when the MDC-T political party went on a world wide campaign to have Zimbabwe sanctioned.

The impacts of the economic sanctions were and still are the biggest form of violence to have ever hit Zimbabweans. The impact of this violence played itself out during the cholera epidemic, the death of thousands due to HIV complications when the Zimbabwe government failed to provide the necessary imported medication to its citizens. The violence played itself out when inflation reached unprecedented levels. This saw many Zimbabweans loosing their life savings as the value was eaten way by inflation. Whilst not condoning the political violence that happened in the 2008 elections caused by both political parties, it is my humble submission that the economic, political and psychological violence cause by the MDC-T instigate western sanctions on Zimbabweans over the last ten years makes the 2008 election violence seem like child’s play. In other words, comparatively the violence caused by the sanctions have left Zimbabweans more battered compared to the once off clashes that happened at election time.

The fundamental question that we need to ask ourselves now is, how can we justify a credible, free and fair election in Zimbabwe whilst the sanctions are in place? For Zimbabwe to have a real and credible election we need to address the issue of the political, economic and social violence that have been perpetrated on the people of Zimbabwe by the economic sanctions of the west.

The Morgan led MDC-T has been calling for the reform of the army, intelligence, the Police and the prison services as a fundamental requirement for Zimbabwe to hold a free and credible poll. Their argument is that the security apparatus is partisan and hence they will make power transfer impossible in the event that Morgan Tsvangirayi wins the polls. My take on this matter is different. What would make the transfer of power to Morgan Tsvangirayi and his MDC-T party impossible in the event of an MDC –T electoral victory is the fact that any election held in Zimbabwe with the sanctions still in place, its outcome will not represent the true aspirations of the Zimbabwean people, sanction free aspirations. It is my belief that the impacts of the economic sanctions by western powers at the behest of the MDC-T outfit are the biggest form of violence on Zimbabweans from external forces.

The lifting of the economic sanctions on Zimbabwe is the barest minimum requirement if we are to ever have a free and credible poll. All this pussy footing about security sector reform and the drafting of a new constitution will not lead us to the Promised Land. The violent assault on Zimbabweans through economic sanctions continues to play itself out in institutions like the Kimberley Processes. Whilst the chair, Congo in this rotation has authorized Zimbabwe to sell its diamonds internationally, the same countries that have sanctioned Zimbabwe continue to make sure by whatever cruel means necessary that Zimbabweans should not climb out of the sanctions hole that they have dug up for them. So how is Zimbabwe supposed to have free and credible elections with this economic assault taking place?

It is a truism that the economic sanctions on Zimbabwe were put in place primarily to weaken the ZANU PF led Zimbabwe government and instigate the citizens of Zimbabwe to turn against its elected leadership. The general idea was to have Morgan and his MDC-T party takeover the reins of power as soon as the people of Zimbabwe, impacted by economic sanctions overthrew the Robert Mugabe administration.

The 2008 election were held in this deeply polarized environment, were sanctions having wreaked havoc on the lives of ordinary Zimbabweans proceeded to stamp their effect on the electoral outcome. Most Zimbabweans voted on empty stomachs. Donor funds fed citizens at MDC-T political rallies compelling many Zimbabweans to trade their vote for food. To this day Zimbabweans are so polarized and continue to be and hence finding a common Zimbabwe narrative will be next to impossible in a country were the sanctions are the determinative factor in everyday life.

Everyday shortages of basic services like water and electricity continue to hound Zimbabweans as the government of national unity that includes the Morgan Tsvangirayi MDC-T fails to call of the hounds of sanctions they invited onto the country. It is this environment that we are being compelled to go for elections, a sanctioned environment. It is perfectly obvious that this environment has been created to bring about only one outcome only. That outcome of an MDC-T electoral victory.

It is the understanding of this sanctioned environment and its attendant effect on the election outcome by our war veterans, army commanders and captains that has compelled them to openly declare that they will not respect an election outcome won by Morgan Tsvangirayi. How can they? It would be morally indefensible for the Zimbabwean security forces to allow the transfer of power to a Morgan Tsvangirayi administration if he should ever win an election with sanctions in place. They have a moral duty to defend the aspirations of the Zimbabwean people’s right to self determination. And those aspirations must be sanction free aspirations to hold free and fair elections without any form of external or internal influence.

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Independence: Taking back our Zimbabwe

2011-04-17T08:41:00.000-07:00

As Zimbabwe celebrates its 31st birthday, it’s now almost fifteen years since Claire Short wrote that infamous letter that saw Britain refuse to fulfill a commitment to pay for the land redistribution from white farmers to black indigenous Zimbabweans. In the letter to Zimbabwe's Agriculture and Land Minister, Kumbirai Kangai, in late 1997, she wrote, 'I should make it clear that we do not accept that Britain has a special responsibility to meet the costs of land purchase in Zimbabwe. We are a new government from diverse backgrounds without links to former colonial interests. My own origins are Irish and, as you know, we were colonized, not colonizers,' she wrote.

In essence what the British were saying was that the past is the past, that the past was done with and Britain was no longer an imperial power and that Zimbabwe’s Liberation war was history. And as Zimbabweans we should get on with sorting out ourselves with no expectation of assistance from the British.

Land redistribution was the pillar of the Lancaster house agreement that brought an end to Ian Smith’s unilateral declaration of Rhodesian independence and the birth of a free nation, Zimbabwe in 1980. Our reason for celebration today. In essence, contrary to Clare Short’s letter, Britain did have a special responsibility, not only as a former colonizer but also mainly because it had failed to act against Ian Smith’s Illegal regime – making necessary a liberation war that cost thousands of lives many of whom have been exhumed from the deep mine shafts of Chobondo in Mount Darwin. All these people died because the British government refused to act against its own ‘’kith and kin’ in Rhodesia.

Given how things have turned out, I am sure if the British Government had a premonition of a future Zimbabwe in which Zimbabweans took their destiny in their hands and proceeded to redistribute land, Clare Short would have facilitated that the Zimbabwe government receive the money to buy back the land which was in the hands of white commercial farmers. The refusal by Britain to fund the land redistribution exercise gave Zimbabweans an impetus to fulfill their own aspirations.

It is at this point in Zimbabwe’s history that we saw the birth of the MDC.

The MDC is a product of the aspirations of the white farmers that were directly affected by the land reform exercise. This political party was put together in order to reverse the gains Zimbabweans have made thus far by the former white farmers. Those farmers that had fled to Britain lobbied the British government through the Westminster foundation to fund the MDC party. In Zimbabwe, although white farmers accounted for only a small proportion of the party, they were highly visible as they were the ones with money and cars. They could be seen delivering propaganda material and running MDC offices. White farmers appeared on Zimbabwe television with Tsvangirai handing over fat cheques to party coffers.

The MDC and its white activists regarded all this as everyday politics in a normal society; Zimbabweans saw this as an affront to the legacy of the liberation war and this concern was not entirely unfounded as evidenced by the role played by the likes of former Rhodesian Selous Scout Roy Bennett and in particular a man nicknamed ‘Monty’ Montgomery.

'Monty' Montgomery headed the MDC campaign in the Hurungwe and Kariba regions in the 2000 election. His family lineage in Zimbabwe went back to the 1890s. His parents were teachers in Bulawayo, at a school once attended by Hendrik Verwoerd, the architect of South Africa's apartheid. Montgomery was conscripted into the Rhodesian police and rose to become an officer in the notorious special branch responsible for the interrogation of political prisoners and 'terrorists' - men like Mugabe, Nkomo, Dabengwa and nationalists.

Montgomery was running an agricultural supply business that had fallen on hard times. He had not taken much interest in politics until his pocket was hit by the land reform exercise. There are many men and women within the ranks of the MDC with a similar history.

As we celebrate the 31st birthday of our Zimbabwe, we need to be mindful of the challenges we face as Zimbabweans from people like him. These are the real enemies of Zimbabwe within our midst and we should jealously guard our independence, legacy and heritage. Some of these enemies are savagely calling for international corporations to disinvest from Zimbabwe, some are calling for sanctions to be ‘lifted’ by day and calling for their tightening at night and at the same time claim to have the people of Zimbabwe’s interests at heart.

We live in a world were our very own Zimbabwean brothers and sisters have turned against their own kith and kin .Those of us that have refused to be colonized mentally have been targeted for persecution wherever we maybe in the world. We must however diligently begin preparing to accept the baton stick as its passed on to us, uphold it and protect the legacy of the war of Liberation of Zimbabwe that it embodies. As Zimbabweans we must make sure that our country never descends into a neo-colonial state. We will be assured of this if in the upcoming elections, we refuse to vote into power any political party that does not have nationalistic credentials. Happy Birthday Zimbabwe.

Lovemore Moyo: The Case of the Matobo Parliamentary seat

2011-03-14T14:27:00.001-07:00

On the 25th of August 2008, Zimbabwe’s legislatures voted to elect a Parliamentary speaker to preside over the August house. The significance of this election was that it ushered in Love more Moyo, Zimbabwe’s first speaker from the opposition bench since independence in 1980. He received 110 votes whilst his opponent, Paul Themba Nyati received 98 votes. It is instructive to note at this point that Love more Moyo had just been elected Member of Parliament for Matobo South.

Paul Themba-Nathan represented the smaller MDC faction then led by Arthur Mutambara, but he had support of President Robert Mugabe's ZANU-PF party. The ruling ZANU-PF party had lost its majority in the 210-seat parliament in elections in March. Final results gave 100 seats to an MDC faction led by Morgan Tsvangirai, the party's presidential candidate. President Robert Mugabe's ZANU-PF got 99 seats and the then Arthur Mutambara lead MDC party won 10 seats and another seat went to Professor Jonathan Moyo who at the time stood as an independent candidate.

Mr. Love more Moyo won 110 votes, thanks to a secret turnaround by most of the ten MPs of the Mutambara faction. It goes without saying that at least three of them soon after lost their seats after being dismissed from the party for refusing to be whipped into line.

The speaker of parliament is the fourth most powerful post in Zimbabwe

It is common knowledge that a few weeks after the election of the speaker of Parliament, the then independent Member of Parliament for Tsholotsho North Professor Jonathan Moyo, MDC’s Moses Mzila Ndlovu, Patrick Dube and Siyabonga Ncube put the house on notice that they would be challenging in the High Court the election of MDC-T Love more Moyo as speaker of the house. The basis of the challenge was premised on the argument that the voting process was flawed and not done by secret ballot and that the behavior of some MDC-T MPs who displayed their ballot papers after casting their votes flawed the election process and this had an influence on the outcome. The matter was first heard in the High Court which initially ruled in favor of Love more Moyo and a subsequent appeal to the Supreme Court rescinded the previous judgment.

In his judgment, Chief Justice Chidyausiku said:

“I have come to the conclusion that the six named Members of Parliament did not vote by secret ballot and therefore their votes were irregular. The inclusion of the irregular votes in the determination of the final outcome of the election of the Speaker constitutes a failure to comply with section 39 of the Constitution, as read with Standing Order 6, providing the election of the Speaker of Parliament by secret ballot, thereby rendering it invalid.”

The MPs named as having displayed their votes were Tendai Biti, the finance Minister, Deputy Prime Minister Thokozani Khupe, Amos Chibaya, Gorden Moyo, Severino Chambati and Piniel Denga.

The effect of the Supreme Court decision instantly rendered the position of speaker vacant. The question on everybody’s mind with regard to this matter is:

Can Love more Moyo constitutionally revert back to his parliamentary seat in Matobo South in light of the Supreme Court judgment that has just ruled his election as Speaker irregular?

Under section 39, the Zimbabwe Constitution provides for the election of the speaker of Parliament.

39 Elections of Speaker and Deputy Speaker
(1) When the House of Assembly first meets………(2) The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers or Deputy Ministers?
Provided that a person who is not a member of the House of Assembly

d) if any circumstance arises that, if he had been a member of Parliament—
(i) the provisions of section 41(j), (k), (n), (o), (p) or (q) would apply
to him and his seat as a member would become vacant; or
(ii) he would be required, by virtue of the provisions of section 42, to
cease to exercise his functions as a member;

Interpretations of this matter have been varied including arguments that make the inference that, since Love more Moyo lost his seat before he was elected speaker by operation of law, it then should follow that the subsequent loss of his position as speaker by the operation of law should reverse the loss of his seat since his loss was premised on him staying on as speaker.

My take is different.

Section 39, subsection d clearly provides for the scenario of which Love more Moyo was in on the eve of the election on the 24th of August 2008. He was a Member of Parliament representing a constituency. The constitution clearly states ‘if any circumstance arises that, if he had been a member of Parliament….his seat a member would become vacant….and he ceases to exercise his functions as a member”.

When Love more Moyo was elected speaker his Matobo south parliamentary seat fell vacant. In other words he lost all entitlement to this seat upon his election as the speaker of parliament. This vacant seat which, if we be reminded has been vacant for almost two years. It is therefore possible that the demographics in that constituency have changed and therefore him going back goes against any basic tenets of democratic representation. The fate of this seat is now at the mercy of the electoral commission of whom upon instruction from the President of the country a by-election would have been held. The fact that the president of the country did not call for a by-election in Matobo South and indeed in other constituencies currently vacant is not a valid reason at law to allow Moyo to revert back to the Matobo South seat.

This is not a case of restitution whereby Lovemore Moyo is being compensated for a pre-conceived loss arising from the commission or omission of his party. Besides the Zimbabwean legal system has no such precedent. The election of Lovemore Moyo did not become illegal until the supreme court pronounced it. Hence one can not look at his election as speaker and the subsequent pronouncement of the supreme court as issues retrospectively occurring at the same time. In other words, from the time of his election as speaker his work in parliament was legal and binding to the house. His work and position seized to be when the supreme court pronouncement was made to the contrary.

Lest we forget, we need to be mindful of the fact that the fundamental reason why a member looses his or her seat upon being elected to the speaker’s position has more to do with impartiality in the conduct of the business of the house. Assuming that Lovemore Moyo was now an ‘impartial officer’, how then can he revert back to be partial at the instance of loosing his post.

However the Zimbabwe Constitution as amended provides that the former speaker may constitutional present himself as a candidate for speaker. Provisions under section 39 (2) do provide for that:

‘The Speaker shall be elected in accordance with Standing Orders from among persons who are or have been members of the House of Assembly and who are not members of the Cabinet, Ministers or Deputy Ministers:

Should he fail to be elected into the speaker’s position properly at the next parliamentary meeting, considering that the dynamics within the three political parties in the GPA have since changed, he then joins the ranks of other former members of parliament who are waiting for by-elections in order to recontest their previous constituencies.

The Assassination of Herbert Chitepo

2010-11-15T16:14:00.000-08:00

Herbert Wiltshire Chitepo (15 June 1923 - 18 March 1975) led the Zimbabwe African National Union until he was assassinated on March 1975. Although to this day we still do not know the truth about who his murderer was, the Rhodesian author Peter Stiff reveals that a former British SAS soldier, Hugh Hind was responsible. [1]
Chitepo became the first black citizen of Rhodesia to become a barrister. [2]

1. Early years
Chitepo was born in Watsomba village in the Inyanga District of Southern Rhodesia, now Zimbabwe. His family came from the Manyika clan (Samanyika) of the Shona people. He was educated at St David's Mission School, Bonda, St Augustine's School, Penhalonga and then at Adam's College, Natal, South Africa, where he qualified as a teacher in 1945.
2. Career
After teaching for a year, he resumed his studies to graduate with a BA degree from Fort Hare University College in 1949. He qualified as a Barrister-at-Law, and called to the bar by Gray's Inn, alumni included Winston Churchill. Further still whilst in London as a research assistant at the School of Oriental and African Studies. He was the first African in Southern Rhodesia to qualify as a Barrister. In 1954 Chitepo became Rhodesia's first black lawyer (a special law was required to allow him to occupy chambers with white colleagues). [3] On returning to Rhodesia in 1954, he practised as a Lawyer and defended many African nationalists such as Ndabaningi Sithole in court. In 1961, he served as legal adviser to Joshua Nkomo, founder of the Zimbabwe African Peoples Union (ZAPU), at the Southern Rhodesia Constitutional Conference in London. In the same year (1961)he was also appointed to the Board of Governors of Bernard Mizeki College. Ian Smith's government did not detain him as he did not come out in the open as an official of the nationalist movement and the regime also feared that being the first lawyer, Chitepo was too internationally well-known to be locked up.
3. ZANU
In May 1962 ZAPU was banned because of militarism and Chitepo was persuaded to go into voluntary exile to escape possible detention. He became Tanganyika's first African Director of Public Prosecutions. The Ndabaningi Sithole and Joshua Nkomo factions of ZAPU split apart in July, 1963. Nkomo's supporters founded the PCC-ZAPU (later just called ZAPU again) and favoured a more militaristic approach. As the more moderate faction, Chitepo sided with Sithole and was elected Chairman of ZANU ( having defeated Nathan Shamuyarira ) from its foundation. He held this post until 7 December 1974, when the Lusaka Accord was signed.
Both parties vied for domination but in 1964 both were banned and the leaders were all arrested. Both parties chose to leave the country and reorganize and form armies from outside Rhodesian borders, although they chose different countries to make their base. ZAPU based itself in the West and Zambia where it organized ZIPRA (the Zimbabwe People's Revolutionary Army.) They allied with the Soviet Union and organised a vanguard of highly trained soldiers. ZANU, however, moved into Tanzania and then to Mozambique and set up ZANLA (Zimbabwe African National Liberation Army) which concentrated more on mobilizing the masses in the countryside in a method pioneered by the Chinese.
In January 1966 Chitepo resigned as Director of Public Prosecutions and moved to Zambia in order to concentrate on the armed struggle. He toured world capitals canvassing support for ZANU and for the enforcement of total economic sanctions against Rhodesia. With his friendly disposition, he was very effective and earned for ZANU international recognition and respect.
Sithole and others prepared a comprehensive document giving powers to Chitepo to lead ZANU while Rev. Sithole was in detention and specifically authorising him to carry out the armed struggle. Accordingly, Herbert Chitepo with the military supremo Josiah Tongogara from the Karanga ethnic community,organised and planned successful military guerilla attacks and underground activities in Rhodesia from 1966 onwards. In 1972, he co-ordinated war operations with FRELIMO and opened up the North Eastern region of Zimbabwe as a new and effective war front.
4. Assassination
Chitepo died at 8:05am on March 18, 1975 in Lusaka, Zambia when a car bomb, placed in his Volkswagen Beetle the night before, exploded. He and Silas Shamiso, one of his bodyguards, were killed instantly. Sadat Kufamadzuba, his other bodyguard, was injured. The explosion sent part of the car onto the roof of his house and uprooted a tree next door. Hours later one of his neighbors died of injuries he sustained in the explosion. [4] ZANU at the time blamed Rhodesian security forces.
Zambian president Kenneth Kaunda commissioned an inquiry into Chitepo's death. Documents released in October, 2001, placed the blame on ZANU infighting. However, in his biographical account, The Legend of The Selous Scouts, Lt Col Ron Reid-Daly, Officer Commanding, Selous Scouts Regiment, Rhodesian Security Forces, clearly states that the Rhodesian Central Intelligence Organization (CIO) under the leadership of Director General Ken Flower, masterminded the assassination of Herbert Chitepo, subsequently planting documentary evidence blaming ZANU members.
"The decision by Ken Flower...to assassinate Herbert Chitepo, head of the ZANU War Council, now showed how badly Flower has misread the ZANU/ZANLA situation. The death of Chitepo purged ZANU of its many dissenting factions and a new and highly successful leader emerged. Robert Mugabe gave ZANLA the means to consolidate its efforts by providing ZANLA with an indispensable factor - unity." [pg. 173 The Legend of The Selous Scouts]
5. References
1. Mugabe still fears Chitepo's legacy Institute for War and Peace Reporting
2. Preston, Matthew. Ending Civil War: Rhodesia and Lebanon in Perspective, 2004. Page 98.
3. Time Magazine ,Monday, Mar. 31, 1975
4. White, Luise. The Assassination of Herbert Chitepo: Texts and Politics in Zimbabwe. Page 1.

Lloyd Msipa's public profile - Deborah Islington

2010-08-23T13:30:00.000-07:00

Lloyd Msipa is a Zimbabwean Lawyer and Politician. He was born in Bulawayo, Zimbabwe.He is married with children. He studied political science at the University of Zimbabwe, studied law at Thames Valley University, London United Kingdom (LLB (Hons). He also holds a Master of Laws degree in International Law (LLM) from the University of East London also in the United Kingdom.

He has worked for a number of law firms in London, England and Wales.He is currently the Executive Legal Director of Regency Incorporated plc, UK. His main passion however remains in African politics and in particular Zimbabwe politics. Besides being an aspiring Zimbabwean politician he is also a prolific writer on matters of African politics and law. Lloyd Msipa is an independent-minded leader with an even-keel temperament, charismatic speaking skills and a knack for consensus-building.

He's also a talented, introspective writer. His values are strongly shaped by his expertise as a Lawyer and by Christianity. While private by nature, he is strongly opinionated. Lloyd mingles easily with others, but is most comfortable addressing crowds. Lloyd is known for being unafraid to speak and hear hard truths when necessary. He is armed with shrewd political sensibilities.

Lloyd Msipa’s areas of special interest have been in support for the lifting of sanctions on Zimbabwe. He strongly believes that the economic sanctions on Zimbabwe are doing more harm than good. Lloyd is also the legal lead of the task force members in the United Kingdom Constitutional outreach programme for Zimbabwe. Lloyd is also a member of the International Criminal Law Network (ICLN) based in the Netherlands. He is passionate about reforming the criminal justice system, public education, health care, economic growth and jobs creation sectors in Zimbabwe. As an aspiring Zimbabwean Politician, Lloyd Msipa believes in putting national interest before party politics. To this end he proposes to work passionately with other Zimbabweans of like minds through consensus for ethics reforms. He proposes to work hard to rid Zimbabwean politics of the personality cult. Zimbabwean politics is currently dominated by politics of personalities on all sides of the political divide.

To this end he proposes to work hard and contribute in the rebuilding of political institutions that will be accountable to the Zimbabwean people. These political institutions will govern Zimbabwe in an established ethical manner. Lloyd believes passionately that strong institutions of government are what Zimbabwe needs. He believes passionately the personality of a leader will not be significant if the country has strong institutions of government.

The Death Penalty, National Security and the Zimbabwe Constitution

2010-08-16T16:19:00.000-07:00

The Zimbabwe government through the inclusive government is currently carrying out rigorous outreach programs in Zimbabwe and abroad over the contents of the new proposed Zimbabwe Constitution. The proposed draft constitution will be presented as referendum to the people of Zimbabwe who will choose to either accept it or reject it.
One of the fundamental issues that has raised sentiment amongst Zimbabweans at home and abroad has been the issue of the death penalty. The death penalty consists of legally putting a convicted felon to death for a prescribed offence. Under our current Zimbabwe Lancaster house constitution, two offences immediately come to mind that attract the death penalty. Notably unmitigated first degree murder and high treason. Those calling for the abolition of the death penalty in Zimbabwe have sighted reason ranging from the barbaric nature of the act of putting another human being to death and that the process of putting somebody to death maybe riddled with loopholes as in some instances the actual perpetrator of the crime goes free whilst an innocent person is put to death. Valid arguments one might say, but are they sufficient in the context of our situation as Zimbabweans.

The death penalty put into context has been used since time immemorial. In the holy bible, the death penalty was used for crimes ranging from murder, witchcraft and kidnapping. The United Sates of America, China and a myriad of African countries including Zimbabwe still use the death penalty. In the United States half of all death penalties are carried out in the state of Texas. The electric chair or lethal injection is used following long periods of incarceration of convicted felons, the infamous “death row”. In China the death sentence has been used more frequently recently for drug trafficking offences. In fact a few of our Zimbabwean nationals have been caught in this net.

In Zimbabwe we have tended to use the death penalty to remove the worst criminals from society making our country safer for those who live within the confines of the law. It is an acceptable truth that a dead criminal can not commit further murders. Those who are calling for the abolition of the death penalty need to realise that taking another persons life is no small matter. Also committing high treason is no small matter either. Zimbabweans who are campaigning for the abolition of the death penalty tend to conveniently forget that we are all going to die and most of us are made aware of this truism well in advance. For instance a person diagnosed with a terminal disease like cancer. It seems apparently acceptable to us Zimbabweans to be sentenced to death by our family doctor when we have not committed a crime, yet find it totally unacceptable to be sentenced by a Judge to death for a prescribed offence which in most cases involves the taking of another person’s life.
In Zimbabwe the death sentence has been used sparingly. High Court records show the number on death row totals 47. A person convicted and sentenced to death in Zimbabwe gets an automatic appeal to the Supreme Court. This gives the accused person(s) any opportunity to introduce evidence that may have been either overlooked or not considered in the court of first instance. Failure to get relief from the Supreme Court, a convicted felon has another chance to apply for a pardon from the president of Zimbabwe. These checks and balances in the Zimbabwean legal system minimises any chances of miscarriages of justice.
In the event that a convicted felon fails to get a presidential pardon it must naturally follow under the law that the death penalty must be exercised. Zimbabwe is a country that is in an economic lock jam as a result of the illegal sanctions that have been imposed by western nations. The government does not have the resources to spend on criminals in jails indefinitely. Money is not an inexhaustible commodity and the government may very well better spend our (limited) resources on the old, the young and the sick etc., rather than on the long term imprisonment of murderers, rapists, etc.

However, I believe the most important reason for keeping the death penalty in our statute books relates to matters of national security. Zimbabwe is a country coming out of a revolution. The land reform exercise that began in earnest in the year 2000 left a lot of people disgruntled such that high treason against an elected government can not be ruled out. The Constitutional Amendment Act No. 17 of 2005 empowered the government of Zimbabwe to seize or expropriate farmland without compensation and bars courts from adjudicating over legal challenges filed by dispossessed and aggrieved white farmers. Section 2(2) of the above amendment provides that ‘all agricultural land – (follows the description of such agricultural land identified by the Government)…is acquired by and vested in the State with full title therein…; and…no compensation shall be payable for land referred to in Paragraph (a) except for any improvements effected on such land before it was acquired’.

The practical implications of the Constitutional Amendment Act No. 17 resulted in
farm seizures, where the majority of the approximately 5000 white farmers were
forcibly ejected from their properties with no compensation being paid for the land,
since, according to the Zimbabwe Government; it was stolen in the first place.
The dispossessed white farmers could resort to armed conflict and the fear of that happening is a reality. The realisation that the SADC tribunal or any other Court has no jurisdiction over Zimbabwe without the consent of the Parliament of Zimbabwe is slowly sinking in. High treason in Zimbabwe is not something new and we can not expose ourselves by legislating against our interests. In 2004 Zimbabwe was used by coup plotters Simon Mann and his cronies as a transit point on their way to Equatorial Guinea to try and topple a democratically elected government. This serves to confirm that the sentiment for high treason in Africa is well and alive.
Zimbabwe has just discovered that it is rich. In fact Zimbabweans have just discovered that they rich. The same farms that we have expropriated have yielded more than just crops. Diamonds have been found in Marange and elsewhere. The discovery of these diamonds makes Zimbabwe a prime target for treasonous activity. Morgan Tsvangirai, the leader of the main opposition party Movement for Democratic Change (MDC) has been charged with treason three times, the last just ahead of the 2002 presidential elections. This trial lasted almost two years. It ended with a surprise acquittal.

Ndabaningi Sithole, the leader of the Zimbabwe African National Union (ZANU) was also charged with plotting to overthrow the government. This was just ahead of the 1996 presidential elections. But he was found guilty. He was sentenced to five years in prison, but released because of failing health.
The discovery of diamonds in Zimbabwe may actually raise the stakes in the Zimbabwean political arena. Zimbabwe is going towards any election. In the event of political parties and those who back them, fail to carry the people’s mandate treasonous actions may become the norm. Politics will become a zero sum game. It is this fight for the distribution of our resources that will make Zimbabwe a sitting duck if we abolish the death penalty. The death penalty in our constitution will serve as a deterrent to those who might be tempted to temper with our sovereignty.
The writer Lloyd Msipa is based in the United Kingdom and can be contacted at lmsipalaw@gmail.com

Land and the new Zimbabwe Constitution - Lloyd Msipa

2010-05-27T09:37:00.000-07:00

ZIMBABWEANS are on the verge of writing a new Constitution. The last substantive Constitution of Zimbabwe was the Lancaster House Constitution. It was foisted on the country through a rigorous process of negotiations and compromises between our former colonisers and our then new crop of leaders that led the war of liberation for Zimbabwe.

The residual document, the Lancaster house Constitution, has been our supreme law for the last thirty years with nineteen amendments to date. Zimbabweans are in agreement that this document has outlived its usefulness. Zimbabweans are currently consulting on the possible contents of a new constitution.

What is significant with this new constitutional consultative processes currently taking place in Zimbabwe and indeed abroad is that Zimbabweans have this tremendous opportunity to craft their own supreme law taking into consideration our tumultuous history over the last thirty years. No peoples in Africa have thus far had the opportunity to redress post-colonial land imbalance by way of a constitution, which is the unique situation Zimbabweans find themselves in.

Our history as Africans and indeed the history of Zimbabwe is rich with lessons of which this new constitutional consultative process must take cognisance of. The protracted war of liberation in Zimbabwe was a war brought about by the uneven distribution of land and other resources amongst the indigenous citizenry. Most of the injustices we are currently wrestling with emanate from this legacy.

Following the colonisation of Zimbabwe, the indigenous citizenry were removed from the most arable land in Zimbabwe and relegated to the so-called Tribal Trust Lands. These were sandy small plots of land that were not suitable for any form of commercial farming. This scenario of colonial subjugation became the epicentre of the fight for land and for Zimbabwe’s resources in general.

The Constitutional consultative processes currently taking place must prioritise and clarify the legal position regarding the ownership of land in Zimbabwe. There are many reasons why I think this is the most important issue the new constitution needs to address.

In the first instance, by taking into account that the identity of any country is grounded on its land, it naturally follows that the identity of Zimbabwe, and indeed that of other African countries, cannot be divorced from its land. The war of liberation in Zimbabwe was itself premised on the imbalance in the ownership of land.

Post-independence, where it was clear that the economy of Zimbabwe was largely agricultural based, 70% of all the arable land continued to be owned and controlled by a mere five thousand white commercial farmers. Now the prevailing situation of a legal tug of war between Zimbabwe’s former white farmers and the Zimbabwe government, in relation to the legality of the SADC Tribunal, is a result of this ongoing conflict over the land issue.

It is in this respect that the methodology used to determine ownership of land in Zimbabwe needs to be inputted into our supreme law -- the Constitution of Zimbabwe. The challenge and question that comes to mind is how we will write this into the constitution equitably without further alienating other citizens who are “citizens by colonisation”.

In all fairness, the indigenous black Zimbabwean population represents at least eighty percent of the population of Zimbabwe. In this regard, a constitutional provision on land ownership reflecting this demographic reality needs to be put in place, and has to ensure that land is continually and fairly accessible to all indigenous Zimbabweans and held in trust for future generations.

What are the advantages of having such a provision in the Constitution?
We have a generation insisting on completing the liberation struggle by seeing through land redistribution, but it is unfortunately slowly reaching its natural life-cycle and a new generation that wants to embrace globalisation and is unwilling to endure the discomfort such a position inflicts on the country by way of the sad reality that as the land changes hands, pre-existing partnerships with international players also dissolve.

The above has been obvious with the retreat of international investors from the country, organised bad publicity in defence of the status quo, an unwillingness to help the nation find its way through this necessary and new situation. Hence this generation seems unwilling to protect this legacy. In the long term will it pay off?

The land re-distribution exercise embarked upon by the Zimbabwe government post 2000 has had its takers and also at the same time there are those hell-bent on reversing it to the detriment of the indigenous populace. Some of those bent on reversing the gains of land reform are unfortunately sons and daughters of the soil.

The current land ownership is currently held in place by sheer political will and this will in the long run prove not to be sustainable. The Land Reform Act, in particular under 16B of the Constitution of Zimbabwe (Amendment No 17, 2005), has been the subject of legal challenges at international institutions like the SADC Tribunal.

Of late, the same institutions have pronounced decisions that are not tallying with the national psyche. This is potentially fresh ground for future conflict amongst Zimbabweans themselves. In this instance between Zimbabweans who stake their claim on the land by virtue of being indigenous to the land, and those that have acquired their citizenship through “colonisation”.

It is, therefore, important that the constitutional consultative processes currently underway factor in this reality. It represents a clear and future danger if it is not adequately clarified in the new constitution.

My proposal would be to have a provision in the constitution that limits ownership of land percentage-wise between indigenous Zimbabweans and those who came to be Zimbabweans by other means.

For example, land ownership in Zimbabwe for non-indigenous Zimbabweans should be limited to plus or minus twenty percent. This inputted into the Zimbabwe constitution will go a long way in making sure that we have put paid to this emotive issue. After all, no minority anywhere in the world has ever owned 70 percent of the arable land.

Secondly, the new Constitution needs to clarify the position of land ownership under national law, as it relates to international law. The Zimbabwe constitution (current amended version) leaves a lot to be desired as it does not clarify Zimbabwe’s obligations under international law. This has provided numerous loopholes in land litigation cases.

The United Kingdom became a member of the European Union in 1973. This did not mean that European law was to automatically take precedence over British national law. The British parliament needs to sit and come up with an enabling legislation allowing whatever provision signed for to take effect. What this means is that the British parliament is superior to Brussels. Zimbabwe needs to adopt its own ways to which our constitution, the national law, relates to international law and our treaty obligations.

Lastly, the new Constitution of Zimbabwe needs to make more use of entrenchment clauses to guard against arbitrary amendments. This is particularly important when it comes to the provision on land ownership in the new constitution.

An entrenchment clause will make it difficult or next to impossible to make certain amendments on the constitution once it has been written. The entrenchment clause may be made to require consent from various parties that may include a two thirds majority in both houses (Senate and Legislature) and the consent of the people of Zimbabwe by way of a referendum.

For example, if as Zimbabweans we are in agreement that non–indigenous Zimbabweans’ ownership of land be limited to twenty percent, then an entrenchment clause should be used to protect this constitutional reality.

Any attempt to amend the constitution that goes against the spirit of a valid entrenchment clause would render it unconstitutional. Given the history of Zimbabwe and the general resistance by minority Zimbabweans against the land reform exercise, it is justified to protect the rights of the majority of Zimbabweans, especially when it comes to land ownership by way of a constitutional provision.

Lloyd Msipa is a Zimbabwean lawyer based in the United Kingdom. He can be contacted on e-mail lmsipalaw@googlemail.com

More young Zimbabweans needed to enter mainstream politics –Lloyd Msipa

2010-05-17T12:42:00.000-07:00

In a recent radio interview in Tanzania, the Deputy Prime minister Professor Arthur Mutambara decried the mediocrity that characterizes African politics in general and Zimbabwe in particular. His assessment of the African political landscape could not have been far from the truth. In fact this observation, I am convinced came in the back drop of the recently held parliamentary elections in the United Kingdom. These elections ushered in the youngest Prime minister in over two hundred years of British politics David Cameron, the leader of the conservative party aged 43.

The elections as we are all aware were characterized by high levels of polarity amongst the electorate following the expenses scandals that rocked West minister. This scandals did not spare any of the political parties, be it labour the conservatives or the liberal democrats. Of most importance to the subject matter is that the elections resulted in a hang parliament, in which none of the three major political parties managed to garner the 326 parliamentary seats required to form a majority government.

The result was the formation of a coalition government between the conservatives and the liberal Democratic Party with David Cameron, the leader of the conservatives becoming prime minister and Nick Clegg the leader of the liberal democrats taking up the position of the deputy prime minister.

What is important to note from this is that, whilst the politicians were bickering on who should form the next government; the civil service swiftly moved in and facilitated high level negotiations between the three parties. And forty eight hours later the country had a new government in place.
Now, if we drew a parallel with our own situation in Zimbabwe after the March 2008 elections, it seems the Deputy Prime minister has made an interesting observation that requires further interrogation. Our politics are most definitely mediocre. They are characterized by politics of personality and this engenders mediocre. The leader of the political party is central to both government and civil institutions. There is no clear demarcation between state institutions, political parties, civic institutions in Zimbabwe.

Zimbabwean civil and political institutions need to be brought to life. And the only way this can become a possibility is if there is a sudden avalanche of new, young political players that enter mainstream politics.

Zimbabwean political parties across the political divide are bottled necked at the top. The reason for this bottle neck is because there is no sufficient movement at the bottom of all these political parties to unsettle those at the top to move on. Politics does not attract many Zimbabweans despite many having gone through programs in political science at the University of Zimbabwe and elsewhere. This has resulted in the political parties being identified with the leaders that have occupied that space for many years. For example it is a truism that one can not imagine a ZANU PF without President Robert Mugabe. And equally true one can not imagine an MDC without Morgan Tsvangirayi. To demonstrate the extent of personality politics the latter is referred to as MDC-T. What does this say about our politics? Can you imagine the labour being called New Labour- G (Gordon Brown) our politics are dominated by personalities instead of the political party as an institutions being stronger than the individual.

Zimbabwe needs a new breed of politicians that will take Zimbabwe beyond the politics of personalities. We need to usher in a new politics that is based on institutions being stronger than the personalities that lead them. For example, if Zimbabwe had strong institutions by way of the civil service, the inconclusive election outcome of March 2008 would not have required SADCC or the AU to settle the differences.

In the United Kingdom for instance power passed within labour, a political party, from Tony Blair to Gordon Brown. And when the labour party got less votes in the recently held parliamentary elections, Gordon Brown, the leader passively resisted to hand over power, the political institutions moved in swiftly to usher him along. This only happened because the mechanisms within the labour party to replace him were already in motion the moment he lost the majority seats in the House of Commons to rival parties as the leader of the party.

Even closer home, the Africa National Congress (ANC) party recalled a sitting president from his position. This is the strength we need to cultivate in the new political culture of Zimbabwe, strong institutions. The need for new young players in Zimbabwean mainstream politics is a prerequisite for this to happen. It is not possible for Zimbabweans to expect the current crop of elderly politicians to do this, MDC, ZANU PF or otherwise.

As young Zimbabweans we need to move beyond the politics of blame, excuses, violence, fear and realizes that we are the masters of our destiny. We need to move and take up the challenge of entering politics in our country. Zimbabwe needs young and brilliant minds that will move swiftly to put in place civil and political institutions that are independent of the various political parties. This will make politics more attractive for future generations to come. There are sufficient young and brilliant Zimbabwean minds sitting both at home and in the Diaspora that need to make a conscious decision to enter politics and become part of the solution.

The question we need to consciously ask ourselves is: How long can we rely on external organizations and governments to help us govern our own country? One can count the number of young politicians in Zimbabwean mainstream politics in one hand as compared to the large number of geriatrics that occupy the rest of mainstream politics. By entering mainstream politics in large numbers we will nudge the old generation to move on. Large numbers of young politicians will make it increasingly more difficult for our leaders from yesterday to hang around longer than is necessary to do so. Power struggles within political parties will fast become a thing of yesterday as leaderships in political parties change hands more frequently.

The entry into mainstream politics by young Zimbabweans in large numbers will transform our politics from mediocrity to excellence. As Hobbes once said, “As in the case of all human dilemmas, the anger, heartache, and despair is for the most part entirely too self-conscious. It is no one man's responsibility to make the world safe for democracy, but everyone's to make it safe for unself-conscious acts of compassion and charity. "Don't be afraid," Siddhartha Gautama (Buddha) said,” of doing good."

Land distribution, economic empowerment : Zimbabwe's only way forward - Lloyd Msipa

2010-04-26T17:24:00.000-07:00

I read Senator Gutu's note on empowerment and land redistribution published elsewhere.In his opening paragraph he states that "A people who do not own and control their natural resources and thus control their means of production is an oppressed people"....I could not agree with him more. Zimbabweans have to own and control their resources, the exploitation of the same and the marketing thereof....

He however proceeds to state that "the government of Zimbabwe should be thoroughly ashamed of the fact that three decades after independence the country still has not crafted a holistic, progressive and definitive policy to empower previously disadvantaged people, the majority of whom happen to be blacks and other non-Caucasian people such as Indians, Greeks and people of mixed blood. One wonders what the government was doing all these years by failing to formulate a policy that should have been amongst the top agenda items upon achieving our independence in 1980".

Considering that the honourable Senator has now been part of that government that he so vehemently castigates for a little over a year now, there is little or no evidence of any changes he and his colleagues have introduced as policy makers to better the lives of the same poor Zimbabwean people that he seeks to speak on behalf of. To the contrary we have witnessed his colleagues from his political party been caught up in all soughts of scandals ranging from corruption at government and local government level over the allocation of stands, luxury vehicles to outright theft ....Can the honourable Senator then have the tenacity to point at the speck in the eye of others whislt conveniently ignoring the log in his own.

The land acquisition exercise however imperfect was a necessary step in redressing the imbalances that existed and mind you still exist in the distribution of wealth in Zimbabwe.If i may remind the honourable Senator that when the colonisers came to Zimbabwe and drove indigenous Zimbabweans into TTL'S (Tribal Trust Lands) in their millions, no law was adhered to.They did not gently coax the indigenous zimbabweans to move. There was resistance, blood was shed, there were violations of human rights culminating in the hanging of the leaders of that particular resistance in the name of sekuru Kaguvi, Mbuya Nehanda and others.So, i pause a question to the honourable Senator: Can we expect the reversal of this cruel exercise to be peaceful......lets get real.

The Zimbabwe government has been according to my opinion been more humane than the colonisers in the land acquisition exercise. The courts have been made available to those who felt their case needed adjudication....and as usually the former land owners decided to use our own institutions against us.There are indigenous Zimbabwean farmers who have been given offer letters for farms but have failed to occupy them because the former white farmers have either refused to vacate those farms or have filed one appeal after another in our judicial institutions and the SADC Tribunal in Namibia....This has resulted in farms lying derelict for many years....which according to you ...are called unproductive.

This scenario has duplicated itself at Chiadzwa mine and other mines.Andrew Cranswick, CEO of ACR the purported owner of the said mine is on record of having said of Chiadzwa mine "We were lobbying government and offering a joint venture because it is an extraordinary deposit, a bit like the Botswana deposit and we felt it fair to share it with the local community and the country at large"....What community?.As a member of the senate iam sure you are privy to some of the information on the issues that are really taking place at this mine.The government does not have total control of this mine.The Chiadzwa case is still in the courts as i write, hence the government has not been able to fully exploit this resource. The only way the government has tried to make this national resource revert back to the people of Zimbabwe has been through the cancellation of the licence granted to ACR. Iam sure you are aware litigation is currently taking place as to the legality of the cancellation of this licence by government.

In other words, the so called "whites" you so much sympathises with are fighting you the government of Zimbabwe with all they have including the media.If you the honourable Senator, one who is bound by the principle of collective responsibility to tow the government line, you publicy violate this principle, we hold very little hope for winning this battle against subjugation and poverty.

Since the signing of the GNU agreement, it is agreed in the provisions of the government of national unity agreement (Article iv, section 4, under sanctions and measures that you as a party have agreed to recognise the sanctions on the country of Zimbabwe, call for the removal thereof...In fact your colleagues in the MDC have been in the forefront calling for these sanctions to be removed as they are affecting the poor people of Zimbabwe. The very same people you pity as living on 2 dollars a day.What i can not understand is how you can violate principles you have signed up to respect and then turn around and accuse others of breaking the law.

As a lawyer iam sure you are familiar with the provisions in the empowerment regulations.I do not see what the holla ballo is over the 51 percent requirement on investing in Zimbabwe. It is not like Zimbabwe is the first to inact such a regulation. If you have ever tried to start a business in Botswana iam sure you will be suprised that they have the same regulation in place. Then why the noise .....read between the lines Honourable Senator Gutu. Our problem is that we are trying to take over the control of our resources. The same problems that make places like Iraq and Afghanstan permanent war zones is the same problem Zimbabwe is going through.This argument of equitable distribution of resources amongst Zimbabweans, the poor etc etc ..that you labor so much is now over cooked.Nobody said that if we take back our resources we seize to became a class society. The truth is as the bible says is that "we shall always have the poor amongst us (Mark 14 :7. So lets get real and call a spade a spade and join hands as Zimbabweans and pull in the same direction

Let’s stop intellectualising the Sanctions issue and fight this evil

2010-04-15T15:21:00.000-07:00

I listened to a program recently whereby some Zimbabweans who have failed or refused to buy into the idea of inclusivity as represented by the Government of National Unity (GNU) in Zimbabwe, were making idiotic suggestions on the subject of the lifting of sanctions on the people of Zimbabwe as represented by the economic embargo on Zimbabwean companies and government officials by the European Union and the Americans through the Zimbabwe Democracy Economic Recovery Act. (ZIDERA)

All major political parties on the Zimbabwe political landscape have signed up to have this imperialistic nonsense removed, yet some idiotic Zimbabweans who have other agendas that do not include the reconstruction of Zimbabwe are suggesting that the Americans and the European union should lift the economic sanctions on Zimbabwe and substitute them with International arrest warrants targeted at ZANU PF officials as a way of arming twisting them to concede to MDC –T demands. The same characters who are calling for this impossible scenario have also gone to the extent of sighting the arrest of Augusto Pinochet in London under the Universal Jurisdiction principle as the modus operandi to which they base their unilateral dreams.

Every sane Zimbabwean should now be calling for the repeal of all sanctions imposed on the country as the last ten years have proved that their only purpose has been to kill millions of Zimbabweans as the country struggles to import basic necessities like chemicals for water purification, HIV and AIDS medication and supplementary foodstuff for the rural folk. It was mind boggling to listen to Zimbabwean nationals proposing that the west issue international arrest warrants on elected government officials.

To demonstrate the shallowness and stupidity of some of these foolish and desperate ideas, those discussing them never bothered to try and understand, let alone even consider the practicality or possibility of their ideas. Zimbabwe is a sovereign country that stands guided by international norms and laws like any other country. It is not a banana republic as some out there may imagine. It is not possible for any country to suddenly wake on any one day and issue international arrest warrants on government officials of another country without following the jus cogens under international law.

International arrest warrants can only be issued by internationally recognised legal institutions like the International Criminal Court (ICC) for a defined international violation. And the ICC can only issue valid warrants on individuals who belong to member countries. Zimbabwe has not ratified the Rome Statute hence the ICC has no jurisdiction over Zimbabwean public officials whatsoever (ZANU, MDC or otherwise) . Another institution that has the power to issue such warrants is the United Nations Security Council. This will all know requires the consent of all the five permanent members of the Security Council. That is a process on its own.

The purported arrest of Augusto Pinochet following his arrival in London was fraught with discrepancies under international law as the basis is not a developed norm. (That of Universal jurisdiction) It relies heavily on domestic norms vis a vis international legal principals. It is an under developed international principal hence practically of no use. That explains why then Jack Straw the then Justice Secretary intervened.

As Zimbabweans we need to be speaking positively about our country. We need to be speaking out against International embargos that restrict trade and the importation of basic commodities that make our country function. The reality on the ground is that Zimbabwe as a result of the sanctions can not import medicine for our brothers and sisters. The Zimbabwe government can not import spares for motor vehicles used by the ambulances, police and fire services.

Motor vehicles accidents are happening on a daily basis because the machinery that was used to fix the roads are grounded, large numbers of people are dying needlessly as a result. There are no ambulances to ferry the injured to hospital. If by some fluke one makes it to hospital there is no medicine to talk about. The police can not respond to crime because they have no vehicles as they are grounded as they can not import spares for the large number of Land rover defenders that are of British origin.

If our leaders on all sides of the political divide have realised that Zimbabwe will not move forward if we are not united, it then boggles the mind to think why Zimbabweans living abroad find it prudent to intellectualise the issue of sanctions, whilst large numbers of their kith and kin continue to die back home. Our role in the Diaspora is to educate those that manufactured these sanctions as to what the real impact of the embargo has been.

Lloyd Msipa is a Lawyer based in the United Kingdom and he can be contacted at lmsipalaw@googlemail.com

Is Zimbabwe ready for a woman President?

2010-01-03T10:50:00.000-08:00

The major political party on the Zimbabwe political scene, the Zimbabwe African National Union -Patriotic Front (ZANU PF) recently held its 5th national congress in Harare, Zimbabwe. There were a few leadership changes in the upper echelons of the political party. Of notable significance was the elevation of Mr John Nkomo from the position of National party chairman to that of the a co-vice president of Zimbabwe partnering Amai Joyce Mujuru, the elevation of Mr Simon Khaya Moyo, the Ambassador to South Africa as the new ZANU PF party national chairman and the formal readmission of Professor Jonathan Moyo, the Member of Parliament for Tsholotsho in the party structures and his subsequent appointment into the party central committee. Most of the other appointments were peripheral in their national outlook. President Robert Mugabe was duly endorsed by all the 10 provinces as the party leader until the next congress in the next five years.

However, a disturbing trait seems to have developed in the aftermath of the congress following the swearing in of Mr John Nkomo as co-vice president of Zimbabwe. It has now become common practice to refer to Amai Joyce Mujuru as the “first” co-vice president of ZANU PF and of the republic Zimbabwe and Mr John Nkomo as the “second” co-vice president of ZANU PF and of the republic of Zimbabwe. Under the agreement of a government of national unity (GNU) currently in place in Zimbabwe, between ZANU PF lead by president Robert Mugabe, MDC-T lead by the Prime minister Morgan Tsvangirai and MDC-M lead by Deputy Prime minister Professor Arthur Mutambara, section 20, subsection 1.6 of the agreement signed in Harare under the supervision and guarantor ship of SADC spells out the composition of the executive within this government of national unity as follows:

that there shall be a President, which office shall continue to be occupied by President Robert Mugabe. There shall be two vice presidents who shall be nominated by the President or ZANU PF. That there shall be a Prime Minister, which office shall be occupied by Mr Morgan Tsvangirai and that there shall be two deputy Prime Ministers, one from MDC-T and the other from MDC-M.(clause 20.1.4)

And In the event of any vacancy arising in respect of posts referred to in clauses 20.1.6 and 20.1.7(b) above, such vacancy shall be filled by a nominee of the Party which held that position prior to the vacancy arising.

It is this last provision read together with the Constitution of Zimbabwe that should give us Zimbabweans reason to earnestly debate what this means. In my own view, the developing trait of calling Amai Mujuru first vice –co president pits her as the natural or constitutional successor to President Robert Mugabe. The very act of labelling which co-president is number one or number two did not exist or was at least played down during the reign of the late co-vice president Joseph Msika.

What this means is that in the event of the death or incapacitation of President Robert Mugabe, Amai Mujuru according to the provision of the GNU has to be appointed acting president of Zimbabwe in President Robert Mugabe’s place pending any presidential election as read with the constitution of Zimbabwe.
The GNU agreement stipulates that in the event of a vacancy….such a vacancy shall be filled by a nominee of the party which held that position prior to the vacancy arising.

The Constitution of Zimbabwe provides that any acting president can run the country for a period of ninety days after which any election is to be held. If Amai Mujuru becomes the acting president for the republic of Zimbabwe for the constitutional 90 day period, precedence in other African countries tells us that an acting president has any eighty percent chance of becoming the substantive head of state and government due to advantages linked to incumbency.

The question that Zimbabweans need to ask themselves is, are we ready for a woman president? What would be the overall implications of this to the overall stability of Zimbabwe as a nation? Will the man in competing political positions take this “laying” down literally?

Zimbabwe by its very nature is largely a paternalistic society like many other African countries were the very idea of a woman president is impossible to fathom, well at least at this stage of the young democracy. In a paternalistic society women in leadership positions are only tolerated in as far they report to a man above them. This I suppose is a natural consequence of our culture. Both public and private institutions in Zimbabwe have a general aversion to having a woman as the CEO or the President of a company. Are we then ready as a young country that has known one leader since independence to embrace a woman president in a post Mugabe government. As Zimbabweans we need to begin to discuss this issue, forge our own political realities as we begin a new decade, cognisant of the fact that our President Robert Mugabe is also human and will as nature demands exit the political scene when he is eventually recalled by his maker.

It is a truism that the stability and future success of a post Mugabe Zimbabwe era will largely depend on who succeeds him. As things stand now it appears that the “first” co-vice president, Amai Joyce Mujuru is the legal option available to ZANU PF and indeed Zimbabwe despite the rumblings of other political players in the background.

The Government of National unity in Zimbabwe has by default created a new political reality of which neither ZANUPF nor the MDC’s can claim centre stage. The two MDC’s have by default become the custodians of the new economic reality, in which Zimbabweans have tasked both MDC parties to recover the countries fortunes and reinstate its national and international creditworthiness, whilst at the same time ZANU PF lead by president Robert Mugabe has by default become the custodian of the liberation war legacy and the attendant land reform exercise. And it is because of this, it seems the GNU maybe the political reality in Zimbabwe for sometime to come. The successor to President Robert Mugabe will need to have the same degree of umpf (sic) that has been exhibited by this man in the last thirty years for Zimbabwe to continue on this very delicate road to prosperity without compromising the legacy of the liberation war as the work to restore Zimbabwe to its former glory begins in the new decade.

Contextualising the SADC Tribunal and the land issue in Zimbabwe – A socio –legal perspective

2009-10-19T17:01:00.000-07:00

Introduction

The land redistribution exercise in Zimbabwe has introduced a new dimension in the interpretation of international law, treaty law and general legal norms under domestic law. What has been controversial has been the interpretation by the different schools of thought as they seek to address, explain the new situations that now arise as different international institutions seek to do justice to the land question in Zimbabwe brought about by past colonial injustices.

The authorities in Zimbabwe following the fallout with their former coloniser, Britain over the methods for land acquisition agreed to at the Lancaster House Constitution in 1980 embarked on a land acquisition exercise designed primarily to empower the indigenous black Zimbabwean. Past colonial legacies and injustices had dispossessed a majority of some 12 million black Zimbabweans of their land and proceeded to relocate them in arid sandy small holdings commonly referred to as Tribal Trust Lands.

The Lancaster House Constitution

In the opening speech of the Lancaster House negotiations, land was one of the paramount issues mentioned by the patriotic front among the nine they had been presented for discussion. The British government insisted on stringent provisions in the constitution protecting the rights and privileges of the few white Zimbabweans that owned 70 percent of the arable land. This in itself served to perpetuate the status core whereby the rights and privileges of the few white settlers would be protected. The negotiations nearly collapsed due to this particular provision. An agreement was eventually reached and the Patriotic Front announced it as follows:
"We have now obtained assurances that ... Britain, the United States of America and other countries will participate in a multinational donor effort to assist in land, agricultural and economic development programmes. These assurances go a long way in allaying the great concern we have over the whole land question arising from the great need our people have for land and our commitment to satisfy that need when in government".

A provision was included in the Lancaster House Constitution protecting any acquisition of land by any other means except on a willing buyer willing seller basis. This provision was to remain in place for a period of ten years. The Lancaster House Agreement together with the ancillary agreements of paying for the land offered did not perform to expectation. For example the willing buyer and willing seller agreement was not adhered to in many ways.
For example the white commercial farmers that held the bulk of the land failed to offer land in sufficient quantities to enable the new Zimbabwe government to adequately resettle the multitudes of Zimbabweans that were waiting to be resettled. Secondly the white commercial farmers were offering land that was in areas that had poor rainfall patterns, unsuitable for the black indigenous farmer who was coming from a subsistence type of farming. Further to this if the white commercial farmers did offer any good land at all, the market price was such that it made it impossible for the government to afford it. This was made more difficult by the “fair market” clause incorporated in the agreement. All this was exacerbated by the slow flow of promised funds from Britain the former coloniser.
In 1981 the Zimbabwe Government held a conference with the objective of mobilising funds for the purpose speeding the land reform exercise. Great Britain, The United States and other western countries were invited. Great Britain was reminded of her obligation towards Zimbabwe as per the Lancaster House conference. However funds were not forth coming. Hence after seven years of independence the Zimbabwe government had managed to settle a total of 40 000 families from the original target of 162 000 families.
The Land Reform and Resettlement Programme
The desire by the Zimbabwe Government to settle the 162 000 families failed to materialise as the government failed to get land in sufficient quantities to reach this target. By 1995 the Zimbabwe government had only managed to resettle 71 000 families. As the thirst for land among the indigenous Zimbabweans and the constant reminder to government of the reasons for the liberation war by subsistence farmers in the communal areas, the government was now compelled to act. As the pressure for land reached fever pitch, communal farmers began the process of resettling themselves on farms owned by white commercial farmers.
This cajoled a government that was procrastinating into action. The Land Acquisition act 1992 was enacted as a follow up to the 1985 Act to deal with this new demand. This act was enacted to allow the Zimbabwe government to compulsorily acquire land for resettlement and at the same time provide fair compensation for land acquired for the purposes of resettlement. The former land owner was left with an option of contesting the price set by the acquiring authority if not in agreement with it. It is important to point out that at this time the government was still in bargaining mode and the land targeted at this stage was derelict land, under-utilised land, land owned by absentee landlords, land adjacent to communal areas and land from farmers with more than one farm or oversized farms.
The Zimbabwe Government at this stage still gave the farmer the option of challenging the acquisitions by written submission within thirty days after it has been gazetted in the government gazette.
In September 1998 the Zimbabwe Government convened another donor conference in an attempt to mobilise international support for the land reform exercise.

It is instructive to point out that of the 48 countries and numerous donor agencies represented at the conference agreed that the need for land reform in Zimbabwe was urgent in order to redress the colonial imbalances that existed. A number of countries pledged both financial and material support for this exercise.
As a follow up to the 1992 land acquisition Act, the government of Zimbabwe gazetted a list of 1,471 farms it had ear marked for compulsory acquisition. Previous owners still had the provision to legal recourse for challenging the acquisition by way of submissions within a thirty day period to the government of Zimbabwe. It was at this point that Britain showed even greater signs of withdrawing aid. When the labour government came to power in 1997, the Zimbabwe government petitioned Prime Minister Tony Blair to honour the commitments made by the previous conservative government regarding the financing of the land acquisition exercise.
On 6 November 1997 Clare Short sent a letter to Kumbirai Kangai, Minister of Agriculture in Zimbabwe in which she stated that
"We do not accept that Britain has a special responsibility to meet the costs of land purchase in Zimbabwe". We are a new government from diverse backgrounds, without links to former colonial interests. My own origins are Irish and, as you know, we were colonised, not colonisers."
This letter caused a rift with the Zimbabwean government, which asserted that the Lancaster House Agreement of 1979 had contained a continuing pledge from the United Kingdom government to assist in the land reform exercise. Former White commercial farmers began challenging the acquisition of their previous farms in the national courts. This prompted the Zimbabwe government to amend the Constitution by way of amendment no 17. Cited under the Constitution as amendment (no 17) of 2005, section 16B. This amendment was retrospective.
(2) Notwithstanding anything contained in this Chapter—
(a) All agricultural land—
(i) that was identified on or before the 8th July, 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or(ii) that is identified after the 8th July, 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes
no compensation shall be payable for land referred to in paragraph (a) except for any improvements effected on such land before it was acquired.
a person having any right or interest in the land—
(a) shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge; (b) may, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.
Amendment (no 17) 2005 section 16B of the Zimbabwe Constitution made it unlawful for an interested party to challenge the acquisition of the actual land acquired by any acquiring authority. It only allowed for an interested party to challenge the value of the improvements made on the land.

SADC (Southern Africa Developmental Community) and the SADC Tribunal
Following the Constitutional provision barring former commercial farmers from challenging the actual acquisition of their former farms under Zimbabwe domestic law, a few of the aggrieved former white farmers decided to take their legal battle to the SADC Tribunal.
The SADC Tribunal derives its origin from SADC, an institution original established in 1980 under Article 2 of the SADC treaty with its headquarters in Gaborone, Botswana. It was original a loose coalition of African nations with the sole purpose of coordinating developmental projects within its member states, hence lessening dependence on the then apartheid South Africa. The original members of this institution included Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Tanzania, Zambia and Zimbabwe.
The SADC Tribunal was established in 1992 under Article 9 of the SADC Treaty as one of the institution of SADC. The summit of Heads of States or Governments which is the supreme Policy Institution of SADC pursuant to Article 4 (4) of the protocol on Tribunal appointed the members during the summit of Heads of States and Governments held in Gaborone, Botswana in August 2005. One of its vital components for sustainability has been its legitimacy and effectiveness in regional integration. It is important at this stage to mention that the SADC Tribunal was modelled on the European Union model as a dispute resolution mechanism among states.

However the approach adapted by member states when it came to creating the SADC Tribunal was to achieve dispute resolution without necessarily affecting the sovereignty of the member state. Hence a pan africanist institution was the ideal model. It is in this light that the jurisdictional scope of the SADC Tribunal together with its applicable laws in the said jurisdiction, decision enforcement, its independence, impartiality and the protection of human rights would be closely monitored. This was to be so in light of the fact that SADC as an institution is largely not self financing and relies heavily on external funding, the danger of third party influencing its decision making processes was a reality.

The SADC Tribunal has been recently adjudicating over land disputes in Zimbabwe after receiving it initial case in 2007 from disgruntled former commercial land owners. For the purposes of this paper I propose to look at the Campbell case and its subsequent repercussions and how it was the precursor for the member states to reassess the role of the SADC Tribunal in regional integration.

Campbell VS The Republic of Zimbabwe

In October 2007 Mike Campbell (PVT) Limited, a company duly incorporated in Zimbabwe in terms of the companies act brought a case before the SADC Tribunal challenging the acquisition of agricultural land in Zimbabwe by the government of Zimbabwe. It is instructive to also point out that this case was also pending in the domestic courts of Zimbabwe, namely in the Supreme Court.

The matter was brought before the Tribunal in terms of article 28 of the SADC Protocol for an interim measure to interdict the government of Zimbabwe from acquiring the said piece of land pending the finalisation of the matter.
Article 28 provides that
The Tribunal or the President may, on good cause, order the suspension of an act challenged before the Tribunal and may take other interim measures as necessary.

Campbell argued that the process of land acquisition in Zimbabwe was racist and illegal by virtue of Article 6 of the SADC Treaty and that of the African union Charter. These provisions basically outlaw any racially motivated action by public institutions. Article 4 stipulates that SADC and its member states shall act in accordance with the principles of human rights, democracy and the rule of law as well as equity, balance and mutual benefit; and the peaceful settlement of disputes, inter alia. According to Article 6 (2) of the SADC Treaty, ‘SADC and member states shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture or disability’.

It was argued that amendment no 17 (section 16B) 2005 that outlawed any challenges to land acquisitions under national law were contrary to SADC Statutes and that the Supreme Court of Zimbabwe had either failed or neglected to rule on an application made by Campbell and 74 other Zimbabwean Commercial farmers .

In turn the Zimbabwe government argued that the land acquisition was a process of natural justice based on the restorative justice principle whereby the black indigenous people of Zimbabwe must be given back their land taken away from them through the illegal processes of colonialism. Furthermore Campbell and others had failed or neglected to exhaust all remedies provided for under domestic law.

The central problem of this case seemed to be the relationship between the legal regime of SADC on the one side and Zimbabwe’s national law on the other. The Constitution of Zimbabwe in its Section 23 states: ‘No law shall make any provision that is discriminatory either of itself or in its effect; and no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority’.

The Constitutional Amendment Act No. 17 of 2005 allows the government of Zimbabwe to seize or expropriate farmland without compensation and bars courts from adjudicating over legal challenges filed by dispossessed and aggrieved white farmers. Section 2(2) of the above amendment provides that ‘all agricultural land – (follows the description of such agricultural land identified by the Government)…is acquired by and vested in the State with full title therein…; and…no compensation shall be payable for land
referred to in Paragraph (a) except for any improvements effected on such land
before it was acquired’.

The practical implications of the Constitutional Amendment Act No. 17 resulted in
farm seizures, where the majority of the approximately 5000 white farmers were
forcibly ejected from their properties with no compensation being paid for the land,
since, according to the Zimbabwe Government, it was stolen in the first place.

The government has compensated some farmers only for developments on the land such as dams, farm buildings and other improvements. On 13 December 2007 the SADC Tribunal ruled that Campbell should remain on his acquired farm until the dispute in the main case had been resolved by the Tribunal.

“The Tribunal grants the application pending the determination of the main
case and orders that the Republic of Zimbabwe shall take no steps, or
permit no steps to be taken, directly or indirectly, whether by its agents or
by its orders, to evict from or interfere with the peaceful residence on and
beneficial use of the farm known as Mount Campbell in the Chegutu
District in Zimbabwe, by Mike Campbell Ltd and William M Campbell, their
employees and the families of such employees and of William Michael
Campbell”

The above interim relief was also applied for by and granted to other
applicants/interveners on 28 March 2008.On 22 January 2008, the Zimbabwean Supreme Court (sitting as a Constitutional Court) dismissed the application by the white commercial farmers challenging the forcible seizure and acquisition of their lands without compensation. The Court ruled that ‘by a fundamental law, the legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded’.

On 23 January 2008 the Zimbabwean government announced that it would seize the farm. Land Reform Minister Daytimes Mutasa said the farm would be handed over to a black owner as part of state land reforms and following the ruling by the Zimbabwean Supreme Court. The main hearing before the SADC Tribunal was scheduled for 28 May 2008, but postponed until 16 July 2008. On 18 July 2008, applicants and other interveners in the Campbell case made an urgent application to the Tribunal seeking a declaration to the effect that the Zimbabwe Government was in breach and contempt of the Tribunal’s orders.

After hearing the urgent application, the Tribunal found that the respondent state was indeed in contempt of the Tribunal’s orders. Consequently, and in terms of Article 32(5) of the Protocol, the Tribunal decided to report the matter to the Summit for the latter to take appropriate action.

Meanwhile, a significant number of recently resettled indigenous farmers filed an
application seeking an order to allow them to intervene in the main case. The application was, however, dismissed with costs. In the Tribunal’s view, the
applicants/interveners could not be allowed to intervene in the main case for the following reasons:

· The present application to intervene was filed out of time and no good reason was advanced to justify the inordinate delays; the alleged dispute in the present application is between present applicants and applicants in the main case (Campbell case) and not between persons (either natural or juristic) and a state; and
· the applicants in the present application have failed to demonstrate any legal right or interests which are likely to be prejudiced or affected by the Tribunal’s decision in the Campbell case. The hearing of the Campbell case was finalised on 28 November 2008.

The SADC Tribunal in its final decision ruled in favour of the applicants Mike and William Campbell and 77 other white commercial farmers. In conclusion, the Tribunal held that the Republic of Zimbabwe is in breach of its obligations under Articles 4(c) and 6(2) of the SADC Treaty and that :

the Applicants have been denied access to the courts in Zimbabwe;
the Applicants have been discriminated against on the ground of race,
fair compensation is payable to the Applicants for their lands compulsorily
acquired by the Republic of Zimbabwe.

The Tribunal furthermore directed the Republic of Zimbabwe to take all necessary
measures to protect the possession, occupation and ownership of the lands of the
applicants who had not yet been evicted from their lands, and to pay fair
compensation to those three applicants who had already been evicted from their
farms.

The SADC Tribunal and the withdrawal of Zimbabwe’s membership

The SADC Tribunal is primarily a product of a pan africanist political process set up to protect the rights and interests of SADC members states and their citizens and most importantly to develop the community’s jurisprudence vis a vis the applicable treaties, general principles and the rules under international law. Subject to the exhaustion of remedies available under national law the Tribunal has the jurisdiction to adjudicate disputes between states, natural and legal persons of the community. (protocol Art 15(2).

Having realised that the SADC Tribunal had now become a wayward animal heads of State and Government requested the member states ministers of justice move quickly to rectify the anomaly.
In 2008 President (Jakaya) Kikwete (of Tanzania) said ‘we have created a monster that will devour us all. Can our Justice Ministers make sure that this monster is destroyed before it devours us all’?
The Zimbabwe government in consultation with other member governments announced on the 2nd of September 2009 the pull out of Zimbabwe from the membership of the SADC Tribunal. The pull out by Zimbabwe automatically rendered any decisions or judgements by the SADC Tribunal against the government of Zimbabwe ineffective and unenforceable. Upon careful and studious inspection by government Lawyers of the SADC Tribunal Protocol it was found that it was not validly constituted and hence it could not validly exercise jurisdiction over Zimbabwe or any other SADC State.
Hence the fact that only five of the fourteen member’s countries have so far ratified the Tribunal Protocol meant that the purported application of the provisions of the protocol on Zimbabwe was a serious violation of international law.
The Zimbabwe government cited Article 35 and 38 of the Tribunal Protocol which reads under Article 35
This Protocol shall be ratified by Signatory States in accordance with their constitutional procedures.’
And under article 38 The Tribunal Protocol reads
This Protocol shall enter into force thirty (30) days after deposit, in terms of Article 43 of the Treaty, of instruments of ratification by two-thirds of the States.’
Critics to this argument coming mainly from organizations that are largely funded by the United States and Europe argued that in 2001, the SADC Treaty was amended so as to make the SADC Tribunal an integral part of both the Treaty and the Institution of SADC. And that the said amendment to the SADC Treaty specifically established the SADC Tribunal and incorporated it into SADC as an integral part of the institution. The amendment went on to refer to the Tribunal Protocol and categorically excluded it from the usual requirement for ratification by two-thirds before it could come into force and effect.
The relevant section of the Amendment to the SADC Treaty referred under article 16 reads as follows:
1. The Tribunal shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.2. The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol, which shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty. Members of the Tribunal shall be appointed for a specified period.4. The Tribunal shall give advisory opinions on such matters as the Summit or the Council may refer to it.5. The decisions of the Tribunal shall be final and binding.’
Article 22 referred to in Article 16 above provides as follows:
1. Member States shall conclude such Protocols as may be necessary in each area of co-operation, which shall spell out the objectives and scope of, and institutional mechanisms for, co-operation and integration.2. Each Protocol shall be approved by the Summit on the recommendation of the Council.3. Each Protocol shall be open to signature and ratification.4. Each Protocol shall enter into force thirty (30) days after the deposit of the instruments of ratification by two thirds of the Member States. [Own emphasis added.]5. Once a Protocol has entered into force, a Member State may only become a party thereto by accession.6. Each Protocol shall remain open for accession by any State subject to Article 8 of this Treaty.7. The original texts of each Protocol and all instruments of ratification and accession shall be deposited with the Executive Secretary who shall transmit certified copies thereof to all Member States.8. The Executive Secretary shall register each Protocol with the Secretariat of the United Nations Organization and the Commission of the African Union.9. Each Protocol shall be binding only on the Member States that are party to the Protocol in question.10. Decisions concerning any Protocol that has entered into force shall be taken by the parties to the protocol in question.11. No reservation shall be made to any Protocol.’
As a result of this amendment to the SADC Treaty, Articles 35 and 38 of the Tribunal Protocol, which had required the two-thirds ratification, were repealed and the requirement therefore fell away. The agreement amending the protocol is argued to provide for this and hence
Article 35 of the Protocol is repealed.’
Article 38 of the Protocol is repealed.’
Therefore it is argued by these critics that the Tribunal is a creation of the Declaration and Treaty of SADC, and does not owe its existence to the ratification of the Tribunal Protocol by member states.
However, the argument above is contradicted by the Constitution of Zimbabwe and the decision to withdraw from the SADC Tribunal by Zimbabwe has been vindicated by a constitutional provision that few seem to have taken notice of.

The current position at law is that under the Constitution of Zimbabwe the repealing of Article 35 and 38 of the SADC Tribunal does not affect the decision by the Zimbabwe Government to withdraw from the Tribunal. Section 111B of the Zimbabwe Constitution mandates all international treaties entered into by the government of Zimbabwe to be approved by parliament. Section 111B was introduced into the Zimbabwe Constitution in 1987 by Constitutional amendment (No 7) Act of 1987. Section 111B was later amended in 1993 as Constitutional amendment (no 12) act of 1993. Section 111B as introduced into the Zimbabwe Constitution in 1987 restricted to parliament the ratification of any international treaty or agreement entered to by the head of state which imposed a fiscal obligation on the republic of Zimbabwe. SADC requires its member states to pay annual subscriptions. It is then for this reason that the SADC Treaty had to be ratified by the Zimbabwean parliament in 1992 in compliance with section 111B of the Zimbabwe Constitution. Therefore for all intents and purposes Zimbabwe has never been a bona fide member of the SADC Tribunal from its inception.

From a socio-legal perspective it has not helped matters that the applicants that have complained to the SADC Tribunal are all whites and hence arguments for African intervention have been ignored as the wounds created by the colonial system are still fresh. The Zimbabwe land legacy was created through a process which was illegal, cruel and largely unjust. With most Zimbabwean black farmers irking out a living in semi-arid small communal plots and the neighbouring South Africa mooting a land expropriation bill, it seems sentiment for the white commercial farm does not look at all positive. It remains that title for land in Zimbabwe must be premised on a negotiated settlement between the former coloniser, Britain and the Zimbabwe government. Britain must now stop playing politics with the Zimbabwe land issue and accept the responsibilities it took upon itself to fund the land reform exercise at Lancaster. The SADC Tribunal needs to be reformed in order for it to be in sync with the reality on the African continent, especially when it comes to the emotive issue of land.

Writing the land question into the new Constitution of Zimbabwe

2009-10-03T16:19:00.000-07:00

Zimbabweans are on the verge of writing a new Constitution for Zimbabwe. The last substantive Constitution of Zimbabwe was the Lancaster House Constitution. It was foisted on the country through a rigorous process of negotiations and compromises between our former colonisers and our then new crop of leaders that led the war of liberation for Zimbabwe. The residual document, the Lancaster house Constitution, has been our supreme law for the last thirty years with nineteen amendments to date. Zimbabweans are in agreement that this document has outlived its usefulness. Zimbabweans are currently consulting on the possible contents of a new constitution. What is significant with this new constitutional consultative processes currently taking place in Zimbabwe and indeed abroad is that Zimbabweans have this tremendous opportunity to craft their own supreme law taking into consideration our tumultuous history over the last thirty years. No peoples in Africa have thus far had the opportunity to redress post-colonial land imbalance by way of a constitution, which is the unique situation Zimbabweans find themselves in.

Our history as Africans and indeed the history of Zimbabwe is rich with lessons of which this new constitutional consultative process must take cognisance of. The protracted war of liberation in Zimbabwe was a war brought about by the uneven distribution of land and other resources amongst the indigenous citizenry. Most of the injustices we are currently wrestling with emanate from this legacy. In fact following the colonisation of Zimbabwe, the indigenous citizenry were removed from the most arable land in Zimbabwe and subjected/relegated to the so-called Tribal Trust Lands. These were sandy small plots of land that were not suitable for any form of commercial farming. This scenario of colonial subjugation became the epicentre of the fight for land and for Zimbabwe’s resources in general.

The Constitutional consultative processes currently taking place must prioritise and clarify the legal position regarding the ownership of land in Zimbabwe. There are many reasons why I think this is the most important issue our constitution consultative processes needs to consider. In the first instance, by taking into account that the identity of any country is grounded on its land, it naturally follows that the identity of Zimbabwe, and indeed that of other African countries, cannot be divorced from its land. The war of liberation in Zimbabwe was itself premised on the imbalance in the ownership of land. Post-independence where it was clear that the economy of Zimbabwe was largely agricultural based, 70% of all the arable land continued to be owned and controlled by a mere five thousand white commercial farmers. Now the prevailing situation of a legal tug of war between Zimbabwe’s former white farmers and the Zimbabwe government, Vis-a Vis the SADC Tribunal, is a result of this ongoing conflict over the land issue.

It is in this respect, I respectfully submit that the methodology used to determine ownership of land in Zimbabwe needs to be inputted into our supreme law- The Constitution of Zimbabwe. The challenge and question that comes to mind is how we will write this into the constitution equitably without further alienating other citizens who are “citizens by colonisation”. In all fairness the indigenous black Zimbabwean population represents at least eighty percent of the population of Zimbabwe. In this regard a Constitutional provision on land ownership reflecting this demographic reality needs to be arrived at. And has to ensure that land is continually and fairly accessible to all indigenous Zimbabweans and held in trust for future generations.

What are the advantages of having such a provision in the Constitution?

We have a generation insisting on completing the liberation struggle by seeing through land redistribution, but it is unfortunately slowly reaching its natural life cycle and a new generation that wants to embrace globalisation and is unwilling to endure the discomfort such a position inflicts on the country by way of the sad reality that as the land changes hands pre-existing partnerships with international players also dissolve. This has been obvious with retreat of international investors from the country, trumped up bad publicity in defence of the status quo, an unwillingness to help the nation find its way through this necessary and new situation. Hence this generation seems unwilling to protect this legacy. In the long term will it pay off?

The land re-distribution exercise embarked upon by the Zimbabwe government post 2000 has had its takers and also at the same time there are those hell-bent on reversing it to the detriment of the indigenous populace. Some of those bent on reversing the gains of land reform are unfortunately sons and daughters of the soil. The current land ownership is currently held in place by sheer political will and this will in the long run prove not to be sustainable. The land reform act, in particular under 16B of the Constitution of Zimbabwe (Amendment No 17, 2005) has been the subject of legal challenges at international institutions like the SADC Tribunal. Of late the same institutions have pronounced decisions that are not tallying with the majority of the national psyche. This is potentially fresh ground for future conflict amongst Zimbabweans themselves. In this instance between Zimbabweans who stake their claim on the land by virtue of being indigenous to the land and those that have acquired their citizenship through “colonisation”.

It is therefore important that the Constitutional consultative processes currently underway factor in this reality. It represents a clear and future danger if it is not adequately clarified in the new Constitution. My proposal would be to have a provision in the Constitution that limits ownership of land percentage wise between indigenous Zimbabweans and those who came to be Zimbabweans by other means. For example land ownership in Zimbabwe for non- indigenous Zimbabweans should be limited to plus or minus twenty percent. This inputted into the Zimbabwe Constitution will go a long way in making sure that we have put paid to this emotive issue. After all no minority any were in the world has ever owned 70 percent of the arable land.

Secondly, the new Constitution needs to clarify the position of land ownership under national law, the Constitution of Zimbabwe Vis a Vis international law. The Zimbabwe Constitution (current amended version) lives a lot to be desired as it does not clarify Zimbabwe’s obligations under international law. This has provided numerous loopholes in land litigation cases.

For example the United Kingdom became a member of the European Union in 1973. This did not mean that European law was to automatically take precedence over British national law. The British parliament needs to sit and come up with an enabling legislation allowing what ever provision signed for to take effect. What this means is that the British parliament is superior to Brussels. Zimbabwe needs to adopt its own ways to which our Constitution, national law relate to international law Vis a Vis our treaty obligations.

Lastly, the new Constitution of Zimbabwe needs to make more use of entrenchment clauses to guard against arbitrary amendments. This is particularly important when it comes to the provision on land ownership in the new constitution. An entrenchment clause will make it difficult or next to impossible to make certain amendments on the constitution once it has been written. The entrenchment clause may be made to require consent from various parties that may include a two thirds majority in both houses (Senate and Legislature) and the consent of the people of Zimbabwe by way of a referendum. For example if as Zimbabweans we are in agreement that non –indigenous Zimbabweans ownership of land be limited to twenty percent, then an entrenchment clause should be used to protect this Constitutional reality.

Any attempt to amend the constitution that goes against the spirit of a valid entrenchment clause would render it unconstitutional. Given the history of Zimbabwe and the general resistance by minority Zimbabweans against the land reform exercise, it is justified to protect the rights of the majority of Zimbabweans, especially when it comes to land ownership by way of a constitutional provision entrenched in the new Constitution of Zimbabwe.

Zimbabwe as a failed State, the issues, the Facts

2009-07-24T12:06:00.000-07:00

There is an old saying that says that "There are three kinds of lies: lies, damned lies, and statistics." The statement refers to the persuasive power of numbers, the use of statistics to bolster weak arguments, and the tendency of people to disparage statistics that do not support their positions.
I make this statement with reference to the recent report published by a United States based think-tank. This ‘independent’ research organisation tagged the Fund for Peace, released the 2009 Failed State Index report based on a total of 177 countries that were surveyed.
According to the report Somalia ranks first out of the 15 most failed African countries surveyed. Zimbabwe was classified as coming in a close second.
The index ranking was premised on 12 indicators which are meant to quantify a states vulnerability to collapse or conflict. The failed African states so named and their ranks were Somalia (1st), Zimbabwe (2nd), Sudan (3rd), Chad (4th), Democratic Republic of Congo (5th), Central African Republic (8th), Guinea (9th), Ivory Coast (11th), Kenya (14th) and Nigeria (15th).
The organizers of the survey define that a state is said to have failed when it can no longer perform its basic security and developmental functions which include loss of physical control of its territory or the erosion of a legitimate authority to make collective decisions and the inability of that state to interact fully with other states as a full member of international institutions.
The organisers also allude that common characteristics of a failed state also include widespread corruption and criminality, refugees and the involuntary movements of populations and sharp economic decline generally.
In this treatise I will largely confine most of this discussion to Zimbabwe with ad hoc references to Africa in general.
What is interesting to note that organisation like the one above are based in America. America has over the years asserted its might to intervene militarily in the so called ‘failed states’ with devastating consequences. Iraq and Afghanistan being recent examples in our history. However critics like Noam Chomsky have turned the tables on institutions like Fund and Peace and redefined the term ‘failed state.
Chomsky defines failed states as those "that do not protect their citizens from violence and perhaps even destruction, that regard themselves as beyond the reach of domestic or international law, and that suffer from a 'democratic deficit,' having democratic forms but with limited substance."
A cursory analysis of Britain and America’s recent foreign and domestic policies, Chomsky assesses Washington's escalation of nuclear risks; the dangerous consequences of the occupation of Iraq; and Britain and America's self-exemption from international law.
America and Britain have what they call democratic institutions that are meant to protect the generality of its citizens. For example the army and the police. The question that arises is to what extent these institutions do the job they are designed to do. If we are to assess the so called characteristics espoused by the Fund for Peace as signalling a failed state, then it would naturally follow that the most powerful economies America and Britain are indeed failed states and should be accorded that title. For example widespread criminality and corruption are touted as one of the most damaging contributory factors that push a state to the periphery of it being a failed state.
Recently in Britain members of parliament were forced to resign in large numbers as a result of widespread corruption following the widely publicised expenses debacle. If that is not enough, despite having one of the best police forces in the world Britain is regarded as one of the most violent destinations in the world with gun and knife crime a now a common everyday occurrence in the streets of London. Can we then say because of this Britain is a failed state? It is obvious that the state has completely lost physical control. Control is a fundamental security principle mentioned as a factor by the Fund for peace think tank in determining whether a country is a failed state or not.

In America gun crime and drug-lords run amok in the streets of New York, can we then say because of this scourge America is a failed state? African-Americans makeup roughly about 12 percent of the American population. What is interesting to note is that 40 percent of this class of people are in prison. There are more African-Americans in prison than they are in Universities. How does this static rate on the failed state indices when it comes to America. It is obvious that America as a state has failed this class of people and therefore should be regarded as a failed state.
Zimbabwe as a country is coming out of challenges that are a result of decisions that the government took collectively in an attempt to empower its people. These decisions were taken by a legitimate government, duly elected by the people in a plebiscite regarded by international organisations as free and fair.
What has since happened in Zimbabwe follows decision made by a government that was seeking to stay afloat following international isolation a result of the land redistribution exercise designed to empower the general populace.
Zimbabwe has been labelled a failed state because of its disregard or defiance of some of the unfair international decisions designed to overthrow its institutions of government. Defiance of international norms is another indices the Fund for Peace use as a means to measure whether a country is a failed state or not. If we were to define a failed state by its defiance of international law, then the United States has long been a rogue and failed state. It has ignored the Geneva Conventions left right and centre by its treatment of prisoners at Guantanamo and Iraqi civilians in Fallujah, flouted the United Nations charter, which allows the use of force only when the ‘necessity of self defence arises by unilaterally going to war without the United Nations security council permission.
Another indices the Fund for peace alludes to in their survey is the issue of refugee and the involuntary movement of populations as a sign that a country has failed to look after its citizenry. The movement of populations from their country of origin can be attributed to a number of many reasons and hence it rather short sighted to attribute large movement of populations to the failure by that state to adequately protect its people. Zimbabwe has largely lost large numbers of its citizens due to a number of reasons. Amongst the most important is the shrinking economy that resulted from the economic sanctions and the recession in general, hence its inability to absorb its upward of 80 percent educated Zimbabweans.
Following the recession across the world there has been large movement of Europeans to Britain, largely for economic reasons. Can we then say that European countries where these people are coming from are failed states? Norway was voted as the best and most sustainable state in the survey produced by the Peace for Fund survey. Britain receives large numbers of Norwegians seeking jobs every day. Can we then say Norway is the most stable of all the states?
It is sometimes important for us Africans to look at why it is always organisations based in Britain and America who define who we should be. Is it not time for Africa to come up with parallel structures that also carry out similar surveys? Africa and indeed Zimbabwe needs parallel organisations that carry out these kind of surveys in order to counter these kind of challenges. Parallel organisations would look at other controversial areas like human rights, governance etc of which Africa is constantly being accused of lagging behind. Our own surveys will factor in cultural and other African factors that will ultimately affect any survey made. Our failure to come up with parallel organisations like the Fund for Peace and others will mean Zimbabwe and Africa in general will constantly remain a victim of “lies, damned lies” through such flawed statistics.

Have Zimbabweans in the Diaspora abdicated their birth right?- Lloyd Msipa

2009-06-27T11:52:00.000-07:00

The recent debate instigated by the Prime minister of Zimbabwe, Mr Morgan Tsvangirai on whether Zimbabweans in the Diaspora should go back home to assist in the reconstruction of Zimbabwe at this moment in time following the formation of the inclusive government brought to the fore a lot more questions than answers, with regard to us Zimbabweans as a people and the degree of commitment we have to our beloved country.

In fact when it comes to our country, We Zimbabweans as a people have mastered the art of coming up with excuses in order to extend our stay in the comforts of foreign lands. This reminds me of any old adage that pretty much sums the attitude of my fellow citizens with regard to Zimbabwe. There was any important job to be done and everybody was sure that somebody would do it. Anybody could have done it, but nobody did it and somebody got angry about that because it was everybody’s job. Everybody thought that anybody could do it, but nobody realised that everybody wouldn’t do it. It ended up that everybody blamed somebody when nobody did what anybody could have done.
Zimbabwe as a country is haemorrhaging and urgently needs its sons and daughters back in the fold in order to make it out of its current quagmire. Arguments have been advanced as to the timing of the Prime minister’s call for Zimbabweans to seriously consider coming back home. If we are to be honest with ourselves we all knew this day was coming, but instead we decided to bury our heads in the sand and pretend that Zimbabwe will sort itself out and we will be invited at the end of it all to take up high flying positions without as so much as lifting a finger to fix anything. Yes we have been remitting our hard earned income to our families in Zimbabwe, but this has been largely subsistence money in its attributes. None of that money could be regarded as enough to get the industries going again.
The second argument advanced in dismissing the prime minister call relates to the perceived human rights situation in Zimbabwe. Despite the Prime minister insisting that Zimbabwe had no political prisoners in its correctional institutions, most Zimbabweans decided to disregard this and instead relied on a report authored by a visiting human rights Official from Amnesty International. Logic will, correctly perceived, should guide us accordingly. The Prime minister lives in Zimbabwe and the Amnesty International official was merely visiting, surely on a balance of probabilities whom amongst the two, the Prime minister and the Amnesty International official should be believed when it came to what is going on in Zimbabwe.
In Britain sacrifices were made through the industrial revolution by its citizens to bring this island to its current status as the desired destination of every national in the world.
The Industrial revolution was a period in the history of Britain when the British people decided to take charge of their economic destiny following years of poverty and political instability. They as citizens came up with innovative ways of producing goods, manufacturing services and created new methods of transportation based on their geo-political reality. They designed machinery based on the reality of their terrain. This not only revolutionised the way their market system operated, but also changed the way they themselves perceived their status in the wider world. In other words they redefined their psyche bringing it in harmony with their national agenda.
They defined what they required as basic necessities for their growth. Sacrifices were made and society in general paid a heavy price for the emergence of the society that we now seek to become a part of . The welfare system in place did not come over night. Their revolution was total. Hence the subsequent benefits.
Prior to the industrial revolution they pretty much survived the way we are surviving in Zimbabwe, through a culture of subsistence existence whereby a few local consumers operated a simple “putting out” system. The average producer at the time was able to produce a product in the same area that he or she lived on and the demand for that product was usually set by a few local consumers.
The advent of the industrial revolution saw the citizens of Britain bringing about a disciplined and determined work ethic. We are all familiar with payment systems based on work put in.The Industrial Revolution presented mankind with a miracle that changed the fabric of human behaviour and social interaction. Eventually, it even influenced political ideologies and spread across the four corners of the Earth.
Zimbabwe needs man and woman who will pioneer this kind of economic revolution in Zimbabwe. Amongst our kith and kin are some brilliant minds that can turn water into wine. Zimbabwe is endowed with a wealth of natural resources which if exploited can bring about a new economic reality in our country. It is a given that the politics of a country influence its economics hence the sad reality of where we are economically. However it is also equally true that dynamic economic agendas can also bring about a new political dispensation in Zimbabwe. The argument of Zimbabweans being sent to school at this eleventh hour, at the dawn of a new Zimbabwe is not only selfish, but myopic. Zimbabwe needs its citizens now.
The other argument being advanced relates to the availability of jobs in Zimbabwe and the paltry one hundred dollars salary being paid. Whilst I understand the problems associated with the major adjustment required psychologically, it is however beyond comprehension as to why would a Zimbabwean exposed to the west for the better part of the last 9-10 years be doing looking for a job in Zimbabwe. I for one and I am sure society at large in Zimbabwe would be expecting this class of people to come home and be the job creators. They must employ the unemployed people in Zimbabwe as soon as they put their projects in place.
The last census in 1992 reported a population of 10.4 m; the estimated population in 2001 was 12.8m. It is estimated that at least 4 million Zimbabweans are outside the country. That leaves a total of at least 8 million Zimbabweans at home, theoretically speaking. However if we factor in the realities of the high mortality rate post 2000, Zimbabwe has at most 6 million citizens within its borders. The demographic shape of this population shows a high number of elderly people and children.
The required demographic numbers to jump start an economy does not exist in Zimbabwe. Numbers are needed for government and state to get Zimbabwe working again. The Government of Zimbabwe pretty much educated its own long back when the Zimbabwe budget was biased towards higher education. Hence to ask Zimbabweans to begin the audacious task of going back to school whilst Zimbabwe burns is expecting a bit too much.
It is a truism that people get the government they deserve. Zimbabwe is in its current state mainly due to the attitude of its citizens. The same citizens, who vote government into power, empower the politicians beyond measure and then cry foul when those same politicians turn around and exercise the powers bestowed on them. Exiled Zimbabweans are theoretically victims of state power being used against them, correctly or otherwise. This power may have been exercised through political or economic institutions; it does however not make any difference. The issue is that we are responsible at the end of the day for the government we choose whether it treats us right or not. The fact that we failed to stand our ground means that we are not as a people not prepared to face the “monster” we assumedly created, hence we cut and run to safe countries.
Ladies and gentlemen in shona parlance we say “kudzokera kumusha hakuridzirwi bera, kana nguva yakwana yakwana”(No bell is going to sound , signalling us to go back to Zimbabwe). The same way we came must also be the same way we must return, one by one, but return we must, Zimbabwe needs its citizens. Let’s put all the excuses aside and be realistic with ourselves. I, myself will be making my own individual plans to go home and play my role in bringing Zimbabwe up on its feet.

ZANU PF needs to start grooming its next generation of leaders – Lloyd Msipa

2009-05-07T17:44:00.000-07:00

It was Johann von Goethe who said “We must always change, renew, rejuvenate ourselves; otherwise we harden. This could not be further from the truth when it comes to the oldest party on the political scene in Zimbabwe, The Zimbabwe African National Union Patriotic front (ZANUPF).

Renewal is central to every organism in order to maintain its perpetuation. Failure to renew will ultimately lead to that organism become extinct.Zanu PF has ruled Zimbabwe since its independence in 1980. At no point in time has its ruler ship of Zimbabwe ever been more threatened by opposition political parties than in the last plebiscite.

The breakaway of Dr Simba Makoni and Professor Jonathan Moyo and the subsequent failure by ZANU PF to garner the majority vote in the harmonised March 2008 election was a signal that ZANU PF needs to remove the bottle neck that has characterised its existence for a long time. The political party has failed dismally to renew itself, let alone attract young leaders to understudy the current crop of leaders and subsequently takeover.

The advent of the all inclusive government in February 2009 between ZANU PF and the two MDC’s has introduced a new dimension to Zimbabwean politics to the possible detriment of ZANU PF. ZANU PF is almost unwittingly grooming the young Turks from the two MDC’s by working with them in government.

Their inclusion in the all inclusive government gives them the opportunity to learn from the veterans in ZANU PF the skills of running government and country.

ZANU PF on its part has proceeded to recycle the old guard from yester year at the expense of the many young leaders respectfully hanging around in the periphery waiting for an opportunity to serve the party.

The all inclusive government has presented a platform in government for the two MDC’’s two slowly eat away at ZANU PF from the platform created by the all inclusive government by first targeting the small number of young Turks that have managed to find their way into the middle hierarchy of the political party.

The likes of the Attorney General fit into this category. The call by the MDC for the Attorney General to step down is a double edged sword. His removal will leave the Judiciary vulnerable to possible manipulation by the opposition. This will definitely become ZANU PF’s Achilles heel. It is not an accident that the Judge president Makarau has recently rebutted the allegations that the judiciary is not independent when a Harare magistrate revoked the bail of MDC activists charged with treason. They are under attack.

ZANU PF needs to match the young MDC Turks in the all inclusive government man for man or woman for woman by young ZANU PF man and woman. The reasons for this are threefold.
Firstly, in the event that the all inclusive government arrangement goes south, elections will almost be inevitable. It will definitely go against the spirit of ZANU PF perpetuation if the old guard are to be fielded in that particular election.

Secondly, if the all inclusive government is allowed to run the course of its natural life, which is according to the global political agreement, the next 18 months or so, the Global Political Agreement under Article 6 provides for Zimbabwe to write a new Constitution.

This Constitution will almost definitely present Zimbabwe’s elections with a new set of rules. A new set of rules requires a new set of players. Any attempt to field the old ZANU PF guard will be self defeating.
The third and the most important reason relates to who lays claim to the recovery of the country at the end of the life of the inclusive government. The sudden availability of basic commodities on the supermarket shelves in Zimbabwe has been attributed by many to the MDC joining the all inclusive government. The role of the policies arrived at by both parties are largely overlooked.

The idea of provisionally dropping the Zimbabwe dollar and adopting foreign money and manufacturers who were exporting all their products and are now selling them locally in hard currency explains the sudden availability of basic commodities. This reasoning will not be bought by the general populace. The question that ZANU PF needs to ask itself is whether the people of Zimbabwe will except this explanation come election time.

Especially if that explanation is coming from the old guard who presided during the days of shortages.
The infusion of new blood in ZANU PF will immediately transform the political party to one that is geared to take on the challenges of a new Zimbabwe. The attendant ideological shift will be felt almost immediately across the country taking Zimbabwe forward and at the same time defending the legacies of the founding fathers of ZANU PF and country.
The recent electoral success of the African National Congress (ANC) in South Africa under the leadership of Jacob Zuma is enough testimony to what renewal to a van guard political party can be central to its perpetuation.

The writer Lloyd Msipa writes from the United Kingdom. He can be contacted at lmsipalaw@googlemail.coml

The Role of the Diaspora in Zimbabwe’s reconstruction revisited

2009-04-05T13:32:00.000-07:00

There is a general is misconception by some Zimbabweans at home that all Zimbabweans living abroad are a class of people who are either struggling in foreign countries and living destitute lives despite their professional credentials acquired either in Zimbabwe or in the country they have moved to. Some have even gone to the extent of dismissing the potential input by this class of people into the GNU government by way of policy recommendations and the reconstruction of Zimbabwe in general.
Another leading blogger with a myopic perception of Zimbabweans in the Diaspora has gone on further to say that the role of the Diaspora community is now irrelevant as Zimbabwe was now slowly returning back to normalcy. Their role according to him was limited to providing sustenance funds which was largely used for consumptive purposes. Hence beyond the need for groceries and fuel largely financed in foreign currency for the better part of the last eight years by the Diaspora community, Zimbabwe has no need for them. They do not possess sufficient capital to make any meaningful contribution to get industry and the economy running, their role therefore is either limited or no longer needed.
This view of Zimbabweans in the Diaspora is very ill informed and let alone potentially selfish. Talk about biting the hand that feeds thee. It is a truism that Zimbabweans in the Diaspora single handedly managed to sustain Zimbabwe during one of the most difficult times in its history through remittances. The impact of remittances was so significant to a point that even the Reserve Bank Governor Gideon Gono travelled to a number of western countries were Zimbabweans are domiciled to solicit for their money to be transmitted to Zimbabwe via the Home link programme. The recent dollarization of the Zimbabwean economy following the formation of the all inclusive government has made it more difficult for the average Zimbabwean abroad to send large amounts of money as the exchange rate advantage provided for by the Zimbabwe dollar is now a thing of the past. The global recession affecting most first world countries has not helped matters either.
Whilst it is a fact that Zimbabweans abroad do not necessarily have the required capital to input into the economy to get industry working again, it is also equally true that Zimbabweans at home do not have the money either. It is therefore a futile exercise for Zimbabweans at home to expect more from Zimbabweans in the Diaspora and less from themselves.

The mass exodus of Zimbabweans post 2000 from their country of origin was unprecedented in the history of Zimbabwe. It took away a class of people who relied on salaries and credit for their day to day subsistence. The last time Zimbabweans left their country in significantly large numbers was before independence. Even then, most came back soon after 1980 and a large number of them are today in positions of influence both in politics and commerce. Emigration whether temporarily or permanently is not unique to Zimbabwe. When the living standards of a country plummet, it is usually the middle class that is impacted first. This is the class of people that held all the professional jobs that are currently vacant or short staffed and incidentally this is the class of people that drive any economy worldwide.
Zimbabwe is not unique in this sense. Before the formation of the all inclusive government, Zimbabwe had no economy to talk about. Zimbabwe had no formal sector to talk about. Zimbabweans literally survived neku khiya khiya (sic)(wayward means of acquiring something) to borrow the terminology used to describe the process by which Tendai Biti, the finance minister used to find the salaries of civil servants last month.
Zimbabwe has over the last eight years or so seen the proliferation of wily dealers, ordinarily referred to as the informal sector. There is no way this class of people will be able to alone transform the informal sector back to the formal sector were by the government can start to benefit by way of taxes and other ways of revenue. This class of Zimbabweans have not paid a dime in taxes for the last eight years or so. The finance minister, Tendai Biti confirmed this when he said there was a need to get the tax system working again at the launch of STERP (Short Term Economic Turn Round Programme)

The all inclusive government will need to look into the Diaspora in order to head hunt the requisite skills and expertise required in order to get Zimbabwe working again. Zimbabwe is endowed with professionals many who hold qualifications and experiences required to input into the policy formulations processes of government.
What the all inclusive government should be considering now is how to best attract Zimbabweans back into the country. What packages can the government put in place to get Zimbabwean professionals back into the country to lend support to the reconstruction of our beloved country?
The Diaspora is endowed with Teachers, Nurses, Lawyers, Engineers, Doctors, Journalists, Social workers and other experts the new inclusive government can take advantage of. Zimbabwean professionals are littered all over the world from South Africa, The United Kingdom, Australia, Canada and the United States of America and as far afield as China. It is by no means an accident that the South African government has decided to regularise the stay of thousands of Zimbabweans in South Africa at this eleventh hour.

They plan to continue to tap into the expertise that Zimbabwean professionals provide long after Zimbabwe has normalised. The role of the Diaspora cannot and must not be limited to providing sustenance funds as the critic of the role Zimbabweans in the Diaspora insinuated. Zimbabweans in the Diaspora will be instrumental in diluting the culture of ku khiya khiya that has permeated the fabric of Zimbabwean society in the last eight years or so by re introducing professionalism in the conduct of our day to day lives. We must remember that the Zimbabweans in the Diaspora have been living in stable democracies for the better part of 10 years and hence gained a lot of Knowledge and cultures that will be useful in a new Zimbabwe.

What is a people driven Constitution

2009-03-29T11:32:00.000-07:00

“People must write their own constitution directly, not through politicians, parliamentarians or government. The surest way to make sure that a constitution is respected is if it is written by the people themselves and carries their word,” Madhuku is quoted to have said after the signing of the Global Political Agreement. (Hereafter GPA)

Zimbabwe is on the verge of rewriting a new constitution in line with a provision included in the GPA agreement. The current constitution is a product of the Lancaster house talks in the United Kingdom in 1979. The current constitution of Zimbabwe has been amended a total of 19 times. This is clear evidence that it has outlived its usefulness and it now ceases to be relevant in its constitution as the supreme law of Zimbabwe.
Article six (6) of the GPA provides for the rewriting of the constitution by the people of Zimbabwe. To be precise it says:
Acknowledging that it is the fundamental right and duty of the Zimbabwean people to make a constitution by
themselves and for themselves; Aware that the process of making this constitution must be owned and driven by
the people and must be inclusive and democratic; Recognising that the current Constitution of Zimbabwe made
at the Lancaster House Conference, London (1979) was primarily to transfer power from the colonial authority
to the people of Zimbabwe; Acknowledging the draft Constitution that the Parties signed and agreed to in
Kariba on the 30th of September 2007.

In the spirit of the above, parliament is due to appoint a select committee composed of members of all the governing parties in Zimbabwe to draft a new constitution based on the Kariba draft. In fact Article 6, subsection 1 of the GPA States that the:

The Parties hereby agree :( a) that they shall set up a Select Committee of Parliament composed of representatives of the Parties whose terms of reference shall be as follows:
(I) to set up such subcommittees chaired by a member of Parliament and composed of
members of Parliament and representatives of Civil Society as may be necessary to assist the
Select Committee in performing its mandate herein;
(ii) to hold such public hearings and such consultations as it may deem necessary in the
process of public consultation over the making of a new constitution for Zimbabwe;
(iii) to convene an All Stakeholders Conference to consult stakeholders on their representation
in the sub-committees referred to above and such related matters as may assist the committee
in its work;

The above provisions to my understanding where made in the context of the principle of representative democracy. The principle of representative democracy provides that elected individuals through elections or some other democratic process are elected to stand in a particular office on behalf of the people who have elected them. What this means is that, whatever those officials do, is now being done on behalf of the people.

In the context of the Zimbabwean situation, the members of parliament currently in place are a product of the last plebiscite and hence represent the people of Zimbabwe. Many representative democracies chose their representatives in elections, Zimbabwe included. Also representatives may sometimes hold the power to select other representatives for example presidents or other officers of government. In Zimbabwe the president and prime minister they themselves elected representatives hold the power to appoint other public officials on behalf of the people who elected them. The appointment of Senate members in the reserved category, permanent secretaries and the appointment of members of the judiciary is an example of the use of these powers coming from the people.

The concept of a people driven constitution must be taken in the context of elected representatives doing what they were elected to do. That is rewriting a new constitution as they were directed by the people of Zimbabwe.
The people are taken to have passed this instruction at the point of contact with their representative. This normally occurs during election campaigns and when the elected representatives go back to their constituencies.

The words “a people driven constitution” are merely high sounding words that do not have a bearing on the reality on the ground. There is no such thing as a people writing their own constitution. It is merely not practical, let alone feasible. These words are meant to make the person who says them sound good at the expense of a gullible electorate.

The fact that the electorate have mandated their chosen representatives to rewrite the constitution of Zimbabwe does not mean that they will use their new found powers to foist their own ideals, principles on the people of Zimbabwe. That is where the referendum principle will come in.

A referendum is a democratic process which seeks to take on board the views and sentiments of the electorate regarding an issue(s) of national importance. If for any reason the select committee mandated to rewrite our constitution deviates and fails to deliver “a people driven constitution” then the people of Zimbabwe will reject that document as what happened in February 2000.February 2000 saw the defeat of a proposed new Constitution of Zimbabwe which had been drafted by a constitutional convention in 1999.

In the light of the above I struggle to understand what the good doctor meant when he said the people should write their constitution directly. Not through Politicians or Parliamentarians. What I think should be uppermost in the minds of our people is how we can add value to the Kariba constitutional draft.

We are after all as citizens, stakeholders in the rewriting of the new Zimbabwe constitution through our elected representatives. We need to now begin to lobby the same representatives to include our various views in our supreme law. After all we are the citizens that will be governed by that law at the end of the day.

The writer Lloyd Msipa writes from the United Kingdom. He can be contacted at lmsipalaw@googlemail.com. Read more from Lloyd Msipa at http://www.lmsipa.com

The Short Term Emergency Response Programme (STERP), the pros and cons

2009-03-22T12:18:00.000-07:00

The Short Term Emergency Response Programme (STERP) launched by President Robert Mugabe and the finance Minster Tendai Biti in the last few days is a welcome effort in an attempt to get Zimbabwe as a country working again. Its reference to fundamentals that include Political and Governance issues, social protection, democracy, respect for property rights, rule of law, the redistribution of power among the genders among other principles it seeks to espouse makes it useful as a working document.
The document also makes reference to stabilisation of the economy by targeting inflation, by way of increasing agriculture and industrial output.
The document also seeks to deal with the issues of national healing and nation building. The document also recognises that apart from the travel bans placed on some of the leaders in government, sanctions are in place that prohibit international financial institutions from making any dealings with Zimbabwe, let alone extending any credit facilities that would have allowed the country to borrow in order to finance none humanitarian projects that will in turn impact positively on the economy, hence growth.

The document sets out the position of the government with regard to the sanctions in place. In this light representations are being made to the Americans with regards to the Zimbabwe Democracy and Economic and Recovery Act (ZIDERA), to International Financial Institutions like the IMF, World Bank, AFDB, and the European Union and also to our former coloniser the United Kingdom.
The document further outlines its policy considerations, as it seeks to get Zimbabwe working again. It extensively looks at areas such as health, social issues among many others. The bill for funding this programme between now and December will be US 5billion dollars. Acknowledgement is made of the recession and its impact on liquidity and borrowing and its attendant impact on remittances from Zimbabweans in the Diaspora, who have also found the going tougher due to the recession.

However, what the document does not address is what will happen in the event of the various institutions being approached refuse to play ball. What is our plan B in the event that America, Europe and the various lending institutions refuse to extend to Zimbabwe any form of credit as is the case now.
Within 24 hours of the announcement of the STERP programme by both the finance Minister and president of Zimbabwe, the Americans where the first to respond negatively and stating in no uncertain terms that they were not ready to engage Zimbabwe despite the inclusive government in place, lift the sanctions currently in place on Zimbabwe, let alone extend any form of assistance to the country that is not humanitarian.
The European Union also parroted the Americans and refused to recognise the authenticity of our inclusive government and hence will not be extending any form of assistance that goes directly to our national coffers . The IMF team that was in Zimbabwe in the last few weeks also placed conditions that include the payment of arrears before any form of assistance can be extended to Zimbabwe among other conditions.
Considering the foregoing, were does this leave us. Where does this leave STERP. Maybe we need to be more inclusive in our approach to fixing Zimbabwe. STERP seems overly reliant on Zimbabwe getting money from our traditional lenders. Is it not possible that our traditional lenders are currently grand standing? They are giving us the traditional run around by repeatedly pointing to our ‘flawed’ inclusive government as the main reason they will not fund us. Is it not possible that America and Britain do not genuinely have the money to fund us and will not say so?
America recently unveiled an inward looking stimulus package that seeks to jump start the American economy by creating jobs in America at the expense of the rest of the global village. American companies that had relocated to third world countries where labour is cheaper are currently being encouraged to relocate back to America as a way of job creation. The United Kingdom is also seeking to address the economic crisis which has seen 2 million people lose their jobs over the last few months by redrafting the immigration laws hence discouraging any new entrants in to the British job market.

The approach of the economic giants in the west is all inclusive. They seek to first look after their own before they consider anyone else.

It is in the back drop of these developments in the global village that I find it very myopic for us in Zimbabwe to seek to address our economic woes by relying on economies that are themselves in serious trouble.
It is not being pessimistic to state that we are virtually on our own. No amount of pleading, it seems will take us out of our troubles. If we were asking for US 5 Billion a few years back, then the outcome would have been different. The most we should expect by way of assistance is the humanitarian aid which I understand has increased since the formation of the inclusive government. A few dollars may trickle in from our Nordic friends, SADC and the AU and then that will be about it.
Realistically speaking the STERP programme is an excellent programme if funding was forth coming from our traditional lenders. The reality on the ground seems to suggest otherwise. We need to adapt an all inclusive economic recovery programme that seeks to address our problems using the naturally resources we have in Zimbabwe as the only or primary resource base. We need to aggressively resuscitate the agricultural industry without being overly reliant on external funding. We need to get our mines to produce to sell to countries that will do business with us. We need to get the diamond, gold, asbestos, coal and other mines to produce to levels that will sustain our requirements.
Despite the recession in the global world, I will also propose that the inclusive government leverages the Zimbabweans in the Diaspora as a primary resource for recapitalizing our coffers. Countries like Nepal rely almost 100% on Nepalese migrant workers to keep their economy going. Considering that Zimbabwe has started a new chapter through the formation of the inclusive government, Zimbabweans in the Diaspora must now be geared at nation building as opposed to the traditional bickering we had grown accustomed to.
The ideas expressed in this article are not exclusive and should not be regarded as a policy proposal or a critique of the efforts of the Finance Minister. They should be simply be a guide that I hope will instigate debate amongst us Zimbabweans to start to critically look at ourselves, our situation, our country with a view to nation building against the background of a global recession. It is only us who can make a difference to our country by coming forward with ideas that will be provide the inclusive government with a wealth of ideas to draw from. We need to come up with any economic programme that takes into consideration the prevailing economic challenges both at home and abroad.

The writer Lloyd Msipa, writes from the United Kingdom and can be contacted at lmsipalaw@googlemail.com

Zimbabwe Unity Government needs to set up a Truth and Reconciliation Commission

2009-03-14T19:42:00.000-07:00

The Zimbabwe coalition government is now a month old and it continues to grow stronger each day despite the attacks it receives from those who had vowed this day will never come. Justina Mukoko and the other political activists are now out of prison leaving those who were using their continued detention to vilify the unity government clutching on straws. To cap it all the agricultural Deputy Minister designate Roy Bennett was released on bail a few days ago.

Upon his release Roy Bennett is quoted as having said, “I bear no malice. In my heart, all I can do is move forward to build the country. If we don’t forgive and there isn’t a spirit of forgiveness, we are going nowhere. There are people who don’t want right to prevail and want to keep believing they have the power to do anything. But they are few and their time is near the end.”
These words are instructive. It is time that Zimbabweans took back their pride and stop the wanton destruction of the country at home and abroad and begin the audacious task of rebuilding Zimbabwe, both black and white. The Prime Minster of Zimbabwe, Morgan Tsvangirai in his parliamentary inaugural speech also called for Zimbabweans to move away from the politics of hate and violence and begin to rebuild. He said the days of police violently breaking up demonstrations and needlessly arresting people had to come to an end.

The President of Zimbabwe, Robert Mugabe , at the funeral of the late retired Army General Vitalis Zvinavashe also called for the end of violence between the main political party supporters in the various provinces. "We were fighting among ourselves, brother versus brother ... but we've realised our folly. Let us walk the same road. We formed this inclusive government to bring stability, peace and harmony."Violence must stop," Mugabe said. "We have heard reports of renewed violence, that must stop. Yes, we belong to different parties, but let's not fight. Those who persist with acts of violence are the enemies of Zimbabwe," President Mugabe said

Whilst the call for the end of violence is commendable, the time it seems has come for us to ask ourselves some hard questions and of course we need to deal with attendant hard answers. Following years of violence between the main contending parties, the cause which is attributable to both parties seeking advantage over the other on the political popularity continuum. We now need to address the causes and effects of these on our citizens before it is too late. Zimbabwe needs a Truth and Reconciliation commission, perhaps modelled on the South African one.

The success and failure of our unity government may just come back to haunt us if we do not as a nation face the hard questions that are starring us in the face by way of a Truth Commission. The sporadic incidents of violence that are taking place in various parts of our country are symptomatic of a much bigger problem. There is an urgent need to establish a Truth Commission to look into the atrocities that have taken place in the last ten years or so.

“Truth Commissions” refers to appointed officials mandated to look into past atrocities or historical injustices. It is a generic name to public inquiries. Truth Commissions are often established after a democratic government has succeeded a repressive one or as in our case when a long running dispute between the various political players has resulted in the death and injury of the country’s citizens and then the parties finally put aside their differences in favour of nation building.
The citizens of Zimbabwe are happy that Zimbabwe has an inclusive government in place. But at the same time they are angry that the long road that brought us to where we are today is littered with broken dreams, separated families dead and maimed bodies.
A Truth Commission will play a critical role in our country as we struggle to come to terms with the past, mired with massive human rights violations. Criminal sanctions for past human rights atrocities will not necessarily resolve the issues of past human rights abuses as I have alluded to in previous postings.
The Truth commission we should set up must have an implicit mandate or a term of reference that is designed at rebuilding the country and strengthening the all inclusive government currently in place. In other words the mandate for the Truth Commission needs to be all inclusive. It must concern itself with all citizens including those that are in positions of authority.
For example it is common knowledge that the Zimbabwe security apparatus has adapted a look warm attitude towards the all inclusive government formed between ZANU PF and the two MDC’s. There is a probable valid reason for this. Zimbabwe is a country coming out of internal conflict and strife. The enemies of the people of Zimbabwe have been hard at work to a point that we turned against each other. One simply needs to look at previous engagements between the MDC and ZANU PF in the last elections to realise this. In the Diaspora Zimbabwe news websites and internet chat rooms were places of war between those purporting to be supporting their various causes. Incidentally some to date have not evolved in the spirit of inclusiveness. In South Africa our brothers and sisters are not entirely convinced as to how genuine our inclusive government is. What it stands for and were it is going.
It has taken the intervention of SADC and the then President of South Africa, President Thabo Mbeki to make us realise that we are our own liberators and it is only us who can begin the process of rebuilding our country. The security apparatus is the last line of defence and hence there is a need for them to stand aloof and watch until Zimbabwe convinces them that it is time to make that symbolic salute.
It is therefore imperative for the Truth Commission to be established to look all the reasons the security apparatus is holding out and address these issues. In other words our Truth Commission must mirror our needs as a people and the needs of government. The Truth Commission must have a goal of national reconciliation attached to it, but must not compromise on the issues of disappearances, atrocities committed by all the political players in Zimbabwe. Our target must be national reconciliation.
Another overriding reason we need to set up this Truth Commission is simply to correctly codify the history of our country taking into consideration the various political realities that exist on the ground. Our failure to do this will result in our history been written by the enemies of Zimbabwe which in turn will translate into more hate for generations to come as our children continue to be foisted with half truths and untruths.
The issue of amnesty must also be built into the goals of this Truth Commission for those that come forward with harrowing testimonies. The South African Truth Commission was one of the few hybrid truth commission that offered amnesty in exchange for full and public testimonies of the atrocities that took place.
Our Truth Commission must modelled on it and be given sufficient powers to refer cases that are excessively bad to a committee set or compromising of members from both the two MDC’s and ZANU PF. These committees must be a product of an act of parliament and should have the power to refer cases to our domestic courts for possible prosecution. Our Truth Commission must be “victim centred” this way it is my humble submission, the only way we can make a clean break with the past and start again. An attempt to ignore or suppress the current pockets of sporadic violence occurring around the country may have disastrous consequences for future generations. The establishment of Truth Commission would be the beginning of true national healing and a prosperous future for Zimbabwe.
The writer Lloyd Msipa writes from the United Kingdom. He can be contacted at lloyd@lmsipa.com. Read more from him at http://www.lmsipa.com.

Demystifying the Zimbabwe SADC Tribunal Ruling-Lloyd Msipa

2009-03-06T18:01:00.000-08:00

High Court Judge Anne-Mary Gowora on Wednesday the 6th of March 2009 ruled that the Southern African Development Community Tribunal (hereafter the SADC Tribunal) is not superior to the courts of the individual SADC member countries. This decision nullified a SADC Tribunal ruling made in favour of Richard Etheredge and others. Etheredge a former white Zimbabwean farmer had his farm acquired by the government of Zimbabwe under The Land Reform act. In particular under section 16B of the Constitution of Zimbabwe (Amendment No 17, 2005) hereafter referred to as amendment no 17.

The case brought to the High Court by Richard Etheredge had become a source of controversy both home and abroad. The applicants among other things were seeking an enforcement order of the SADC Tribunal Order that ruled that the Zimbabwean Government had violated its Treaty obligations under SADC by enacting a law (Amendment no 17) that ousted any challenge in the national courts by its citizens or other legal persons after their land had been acquired under amendment no 17.
The Tribunal also ruled that all the land belonging to Richard Etheredge and others who were party to this application had been unlawfully acquired by the Government of Zimbabwe since the Minister who carried out the compulsory acquisition had failed to establish objective criteria in order to satisfy himself that the land to be acquired was necessary for resettlement purposes in conformity with the land reform programme.
Richard Etheredge and others also claimed they had been denied access to the national courts to challenge the legality of the compulsory acquisitions and that they suffered racial discrimination since they were the only ones who had their land acquired under the land acquisition act and that they had been refused compensation for the land taken from them.
The applicants were therefore seeking an order that declared that the Government of Zimbabwe was in breach of its Treaty obligations under the SADC Treaty by implementing Amendment 17 and hence the acquisition of their land was illegal.
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The Government of Zimbabwe respondent by arguing that the SADC Tribunal had no jurisdiction to entertain the application brought by Richard Etheredge and others as the premises of the land reform was on a willing seller and willing buyer basis and that the land was to be purchased from the white farmers who by virtue of colonial history were in possession of most of the arable land in Zimbabwe.
The government of Zimbabwe further argued that land acquisition was an ongoing exercise and that it continues to acquire large tracts of land from white farmers who because of circumstances brought about by the country’s colonial history so happens to be possession of most of the land. The government argued that this policy cannot surely be misconstrued as racism.
The government of Zimbabwe went on further to state that some black farmers have also had their land acquired under the land reform exercise and that the white farmers would receive compensation under the land reform act as provided for in the law.

Further to this, the land reform exercise was directed at rectifying a colonial imbalance that has existed for centuries and it so happened that the applicant’s farms were suitable for the envisaged resettlement exercise. The argument that the white farmers were not getting access to local courts was unfounded. If at all they had issues with the courts it was up to the applicants to apply for judicial review the government added.

After consideration of the above arguments the SADC Tribunal had to decide on a number of issues. Firstly whether the Tribunal had jurisdiction to entertain the application brought by Richard Etheridge and others. Whether they had indeed been denied access to the national courts in Zimbabwe and therefore denied a local remedy. Also at issue were whether or not the issue of racism had indeed been a factor in the acquisition of their farms and whether or not the compensation was forth coming.

With regards to the issue of jurisdiction the SADC Tribunal cited Article 9 as the enabling provision in the SADC Treaty that created the Tribunal as an international organisation with its functions clearly outlined under Article 16.They are to ensure adherence to the Treaty provisions when it came to dispute among member states. The bases of jurisdiction among others are all disputes and applications referred to the Tribunal in accordance with the Treaty and the Protocol which relate to the interpretation and application of the Treaty.

The scope of the jurisdiction is stated in Article 15 sub-section 1. That is to adjudicate upon “disputes between states and natural and legal persons and states” In terms of Article 15, sub section 2, “no person may bring an action before the SADC Tribunal without first exhausting all available remedies or unless is unable to proceed under the jurisdiction of such a state.

Richard Etheredge and others commenced their proceedings initially in the Zimbabwe Supreme Court. The highest court in the land challenging the acquisition of their farms. Their claim among others was that Amendment 17 obliterated their right to equal treatment before the law, to a fair hearing before an independent and impartial court and their right not to be discriminated on the bas

On October 11, 2007, before the Supreme Court had issued its judgement, some of the applicants applied to the SADC Tribunal for interim relief. The Government of Zimbabwe raised this matter with SADC Tribunal as to whether the applicants had followed procedure and exhausted all the legal remedies provided for in domestic courts.

The concept of exhaustion is not unique to the SADC Tribunal as it is standard in other regional and international conventions. In the European Convention on Human rights Article 26 provides “The Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally excepted rules on International law” Similarly the African charter on Human and Peoples rights provides in Article 50 “The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving the remedies would have been unduly prolonged”. The Tribunal accepted the requirement of exhausting the local remedies in national courts as paramount before approaching the SADC Tribunal. The rationale used was to allow domestic courts to first deal with what is regarded as a local matter before escalating it to the SADC Tribunal.

In deciding on this matter the SADC Tribunal concluded that amendment 17 as a law in Zimbabwe ousted the provision of using local remedies when it came to the issue of land acquisitions and therefore the applicants who applied directly to the SADC Tribunal for relief argued they were not able to institute proceedings before Zimbabwe’s national courts. This position was subsequently confirmed by the decision of The Supreme Court given on February 22, 2008 in Mike Campbell (Pty)Ltd v Minister of National Security Responsible for Land, Land Reform and Resettlement (SC 49/07).

The Tribunal also referred to Article 14 (a) of the Protocol, and observed That Amendment 17 had indeed ousted the jurisdiction of the courts of law in Zimbabwe. The next issue to be decided was whether or not the Applicants have been Denied access to the courts and whether they had been deprived of a fair hearing by Amendment 17.It is settled law that the concept of the rule of law embraces at least two fundamental rights, namely, the right of access to the courts and the right to fair hearing before an individual is deprived of a right, interest or Legitimate expectation. As indicated already, Article 4 (c) of the Treaty Obliges Member States of SADC to respect principles of “human rights, Democracy and the rule of law” and to undertake under Article 6 (1) of the Treaty “to refrain from taking any measure likely to jeopardize theSustenance of its principles, the achievement of its objectives and the
Implementation of the provisions of the Treaty”. Consequently, Member States of SADC, including the Government of Zimbabwe, are under a legal obligation to respect, protect and promote those twin fundamental rights.

The right to a fair hearing before an individual is deprived of a right, interest or legitimate expectation is another principle well recognized and entrenched in law.
Any existing ouster clause in terms such as “the decision of the Minister shall not be subject to appeal or review in any court” prohibits the court from re-examining the decision of the Minister if the decision reached by him was one which he had jurisdiction to make. Any decision affecting the legal rights of individuals arrived at by a procedure which offended against natural justice was outside the jurisdiction of the decision-making authority so that, if the Minister did not comply with the rules of natural justice, his decision was ultra vires or without jurisdiction and the ouster clause did not prevent the Court from enquiring whether his decision was valid or not

The Tribunal found in favour for the applicants in that they had been expressly denied the opportunity of going to court and seeking redress for the deprivation of their property, giving their version of events and making representations.
“We are, therefore, satisfied that the Applicants have established that they have been deprived of their agricultural lands without having had the right of access to the courts and the right to a fair hearing, which are essential elements of the rule of law, and we consequently hold that the Respondent (The Government) has acted in breach of Article 4 (c) of the Treaty.

The issue of racial discrimination was dismissed by the SADC Tribunal. It was found that amendment no 17 was not discriminatory in its approach because it so happened that white Zimbabwe farmers where in the unique place of being targets of acquisition as a result of a historical imbalance. “The Respondent has, therefore, not discriminated against white
Zimbabwean farmers and has not acted in breach of Article 6 (2) of the Treaty.

The applicant also raised the issue of compensation. The Zimbabwe Government argued that Britain the former colonial power was responsible for compensating the land. It argued that the independence agreement reached in 1978 in London provided that payment of compensation for acquired land for resettlement purposes would be paid by the former colonial power.

The SADC Tribunal disagreed and held that The Payment of compensation was an international law obligation and therefore it refuted the position of the Zimbabwe government of relying on amendment no 17 which provides for compensation on improvements on the land only.

The SADC Tribunal final decision concluded for the reasons given above that the Zimbabwe Government had been in breach of its SADC Treaty obligations and that the Zimbabwe Government should take all necessary steps to correct these breaches and that amendment number 17 was in breach of the SADC Treaty

It is this decision that came before the High Court brought by Former White farmer Richard Etheredge who was seeking to enforce the SADC ruling to evict the land reform beneficiary, President of the Senate Edna Madzongwe. The judge reasoned that although Zimbabwe signed the SADC Treaty that established the court, the treaty does not expressly state that the tribunal is to be considered the superior court for all member states.

The decision by the High Court Judge Anne-Mary Gowora is instructive. It brings a new dimension to the SADC Tribunal ruling. It suggests that Zimbabwe was not bound by the decision of the SADC Tribunal for the reasons she outlined and a whole lot more. It is this decision I propose to interrogate briefly and in the process add my own reasons why I think her decision is instructive.

Whenever a country signs up to a Treaty, the potential always exists in national law that the incoming Treaty laws might contradict or be in conflict with a national law. This was the case in the above matter. There is no provision in the Constitution of Zimbabwe giving supremacy to any foreign law. In fact in the case of Zimbabwe the Constitution is the supreme law.

.Any law that is not consistent with the Constitution is void at law. The SADC Tribunal held that amendment no 17 to the Constitution of Zimbabwe violated Zimbabwe’s Treaty obligations. Zimbabwe signed the SADC Treaty. By enacting amendment no 17, Zimbabwe demonstrated its parliamentary sovereignty. It demonstrated that SADC law has no direct effect on Zimbabwean law.
To this end SADC member states upon signing up to the SADC Treaty, they were supposed to cede part of their sovereignty to SADC. Make provision for SADC laws to have a direct effect on member states in the process empower the SADC institutions to adopt laws. These laws (regulations, directives and decisions) would take precedence over national law and are binding on national authorities in member states.

To demonstrate this concept, the European Union model is the most ideal example. By signing to the European communities act of 1973, it did not immediately mean that the United Kingdom would obey all laws coming from Brussels. The United Kingdom had to pass an enabling legislation hence incorporating European law into United Kingdom domestic law; Zimbabwe has not passed any enabling legislation ceding parliamentary or constitutional sovereignty to SADC.

In 1972, the UK a signed the Treaty of Rome in Brussels. European law was incorporated into UK law by the European Communities Act 1972. Perhaps the most important provisions are set out in sections 2 and 3.
Section 2(1) of the European Communities Act 1972 states that:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies.
Section 2(2) provides a general power for further implementation of Community obligations by means of secondary legislation.
Section 2(4) of the European Communities Act 1972 states that:
The provision that may be made under subsection (2) above includes, subject to schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section.
Section 3(1) of the European Communities Act 1972 states that:
For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto).
The effect of section 2 is that European law must be considered to be a valid and binding source of UK law. Where European law exists on a particular subject (at least if set out in the Treaties or in Regulations), it can override any inconsistent UK law - including Acts of Parliament. In this way the doctrine of parliamentary sovereignty is compromised.
SADC member states have not ceded any power over its national institutions to SADC. It then begs the question whether a treaty signature amounts to a SADC law that will have a direct effect on SADC member states without any enabling legislation in the relevant member state?
Because of the different legal traditions followed in SADC member states it would seem logical to have an enabling legislative provision over and above signing and ratifying the SADC Treaty. The decision in the High Court of Zimbabwe seems to suggest that any enabling legislation is required for the SADC Tribunal to demonstrate the kind of authority it showed when it ruled against a member state. There is a requirement for the Zimbabwean government to consent by way of legislating in parliament ceding the requisite authority to SADC to make laws that have a direct effect on national institutions in Zimbabwe. As the laws stand today in Zimbabwe or any other SADC member state, the SADC Tribunal is a white elephant capable only of giving advisory opinions which are not binding to member states as demonstrated by Zimbabwe.

Lloyd Msipa writes from the United Kingdom. He can be contacted at lloyd@lmsipa.com. His website is http://www.lmsipa.com/

Prime Minister Morgan Tsvangirai and the separation of powers

2009-02-24T18:39:00.000-08:00

The Roy Bennett bail hearing came before Judge Tedious Karwi on Tuesday the 24th of February at the High Court in Zimbabwe, following his arrest on the 13th of February at an airport outside Harare. He is facing charges of possessing weapons for the purposes of insurgency in an alleged plot dating back to 2006. He was also charged with violating immigration laws. This particular charge has been dropped. He denies any wrong doing. Judge Tedius Karwi granted Roy Bennett bail. The state immediately invoked section 121 of the criminal procedure and evidence act. This provision allows the state seven working days to lodge their challenge to Judge Karwi’s ruling freeing Roy Bennett on bail.
Bail applications are made every day in Zimbabwean Courts. This particular bail application was unique in the sense that the Prime Minister Morgan Tsvangirai offered himself as a guarantor of Roy Bennett’s freedom bid. This was unprecedented as the judge rightfully pointed out. The attempt by the Prime Minister to interfere in this way with the judiciary attracted the wrath of Judge Tediuos Karwi who did not mince his words. In his judgement he aptly criticised the MDC leader and Prime Minister Morgan Tsvangirai for backing the bail application and promising Mr Bennett would not leave the country.The move was "unprecedented", he said. "We don't want politicians to interfere with the work of the judiciary. I hope that they will take heed of that, because we don't want a clash of the executive and the judiciary."
Rightly so too. In any other democracy what the Prime Minister Morgan Tsvangirai did would amount to a serious Constitutional crisis and heads would roll. There is no justification for the executive to interfere with the judicial processes at all. This behaviour by the prime minister is a clear breach of the principle of the separation of powers. Not so many days ago the president Robert Mugabe himself was confronted by reporters over the Roy Bennett matter, but was quick distance himself as he is the persona of the executive, whether in his personal capacity or other “The Roy Bennett is a matter for the courts” he said.
French philosopher Charles Secondat, Baron de Montesquieu when drafting the Constitution, most notably in connection with the separation of powers emphasised the placing of powers into different hands of government. Constitutions across the globe are one way or another modelled on this principle of the separation of powers.
The separation of the executive, the judiciary and the legislature is the best way to secure liberty and prevent a government from becoming corrupted. The principle of putting different powers of government among different actors serves as a check and balance mechanism which would ultimately check one another. For example, Montesquieu warned that “Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.”
The founding fathers of the republic of Zimbabwe, Edison Zvobvo and others responsible for the drafting of the constitution of Zimbabwe in 1979-1980 took heed of Montesqueu’s warning by establishing an independent executive which after amendment no 19 consists of the president, two vice presidents. The prime minister and two deputy prime ministers, the legislature (parliament) and the judiciary. This system coupled with checks and balances protects the separation of powers and the freedoms of the people of the republic of Zimbabwe.
The move to guarantor Roy Bennett’s bail application by the prime minister speaks volumes. Others have been quick to dismiss this behaviour as something done by somebody still wet behind the ears when it comes to issues of governance. It seems, however he is prepared to breach the very same rules that he seeks to protect in other platforms, that of the rule of law.’ The distinctly kind of arbitrary, tyrannical rule against which the governed have to be protected. If we seek to build a new Zimbabwean legal system that we can all have confidence in what better time to start than now.
There are those who will seek political expediency over the Roy Bennett matter. Some hold the failure or success of the all inclusive government on the basis of whether Roy Bennett comes out of jail or not. In my opinion, if the GNU fails to survive the Roy Bennett saga, it then follows that it is not worth the paper it is written on. Zimbabwe and indeed its citizen’s future are much bigger than Roy Bennett. Roy Bennett is only but one person in the matrix, of rebuilding Zimbabwe, to borrow the new finance Minister’s favourite wording. Roy Bennett has been duly charged for crimes against the republic and hence we should let the operation of the law take its course. It seems, however that the Roy Bennett issue has over shadowed whatever principles that we would naturally respect in a republic. On the internet forums this matter has brought back race relations in Zimbabwe on centre stage.
Beatrice Mtetwa, the Lawyer representing Roy Bennett tried her utmost best to justify the use of the Prime Minister Morgan Tsvangirai’s name as guarantor. “The bail act provides for anybody who is a private citizen to stand as surety in a bail application”. This could not be far from the truth. But, Prime Minister Morgan Tsvangirai is no longer a private citizen. His very name personifies his public office. It is no way by any stretch of imagination possible to consider Prime Minister Morgan Tsvangirai a private citizen. He is the prime minister of the republic of Zimbabwe.
After all why Bennett. Why Roy Bennett? What puts Roy Bennett in a special category over and above all the other activists who have been making freedom bids since the prime minster was inaugurated. Jestina Mukoko and the other activists have had their bail bids come before the courts numerous times over the last few weeks. We did not here the prime minister offering to be guarantors in their release. Beatrice did not flag the prime minister’s name in their cases. Failure to keep the checks and balances provided for in the constitution of Zimbabwe will lead to anarchy as Zimbabwe comes full circle and realises they are those who are more equal than others before the law. If we allow that clear line of distinction and responsibility to be blurred between the three arms of government, then the freedoms and the people's interest will be in jeopardy.

The writer Lloyd Msipa writes from London, UK. He can be contacted at lmsipalaw@googlemail.com

Legal Brief on Zimbabwe's swearin in

2009-02-15T20:05:00.000-08:00

The Prime Minister, Morgan Tsvangirai, and the two Deputy Prime Ministers, Thokozani Khupe and Arthur Mutambara, were sworn in at State House on 11th February, meeting the deadline set by the SADC Summit of 26th-27th January. [Communiqué - para 7(ii) the Prime Minister and the Deputy Prime Ministers shall be sworn in by 11th February 2009]

Swearing-in of new Ministers

Ministers were sworn in on the 13th of February, the date the SADC Summit set for the finalisation of setting up an inclusive government by the swearing-in of Ministers and Deputy Ministers. [Communiqué - para 7(iii) the Ministers and Deputy Ministers shall be sworn in on 13th February 2009, which will conclude the process of the formation of the inclusive Government] Note the SADC Summit deadline for the swearing-in of the Deputy Ministers has not been met

Agreed Number of Ministers under Inter Party Agreement - 31

Under the Interparty Political Agreement [IPA] signed September 15 by the political parties and by the President of South Africa and Chair of SADC, the number of Ministries allocated to each party was specified: ZANU-PF 15; MDC-T 13; and MDC-M 3 - Total 31. [The principle underlying this was supposed to be that the number of Ministers each party gets was in proportion to votes won in the Parliamentary elections last March.] Ten extra Ministers listed to be sworn in

The day before the swearing in, the Chief Secretary to the President and Cabinet said the full list of ministerial appointees had been announced by President Mugabe. He said 39 people would be appointed Ministers, but gave no information about which portfolios they would be given. There were 21 names announced for ZANU-PF [6 more than their IPA quota], 14 for MDC-T [1 more than their IPA quota] and 4 for MDC-M [1 more than their IPA quota]. The next day 2 more names were added to the ZANU-PF list - Muchena and Kasukuwere - making a total of 23 for ZANU-PF [8 more that their IPA quota]. This brought the number of Ministers expecting to be sworn in up from 31 to 41.

The extra numbers listed were explained as follows:

· the parties had agreed that both MDC-T and ZANU-PF would have a Minister of Home Affairs, so 1 was added to ZANU-PF's allocation · ZANU-PF claimed 7 extra as Ministers of State [Note: Ministers of State are full Ministers and in previous governments have sat in Cabinet]· Both MDC-T and MDC-M were each allocated 1 extra Minister [to be a Minister of State]

MDC-T raised objections to the number of extra Ministers ZANU-PF were claiming. There was a delay of over five hours while parties disagreed about the extra ministries with President Motlanthe called in to mediate. [Comment: as the negotiations for the inclusive government have been going on for almost 7 months, it was disappointing that there are still disagreements over such a bedrock of the IPA as the numbers of Ministers for each party.]

Compromise for the Day - 36 Ministers

35 Ministers were sworn in. Giles Mutsekwa, on the MDC list was out of the country and it was reported that he would be sworn in at a later date. This makes a total of 36 Ministers.ZANU-PF kept 1 for its co-Minister for Home Affairs and got 2 Ministers of State in the President's Office [an extra 3 over the IPA allocation]. 5 on the list - all senior ministers in the last government - who had arrived with their guests expecting to be sworn in, were not sworn in [John Nkomo, David Parirenyatwa, Flora Buka, Paul Mangwana and Sylvester Nguni].MDC-T got one Minister of State in the Prime Ministers Office [an extra 1 over their IPA allocation]. Mr Gibson Sibanda on the MDC-M list was not sworn in.

SADC Statement to Press Incorrect

SADC Secretary General Salomao was reported as explaining that the problems were "technical problems". He went on to say that "according to the agreement the Cabinet should have two Ministers of State in the President's office and one for the Prime Minister's Office". Comment: there is absolutely no provision for Ministers of State or any other additional Minister(s) in the IPA.

The compromise violates the Constitution of Zimbabwe

The number of Ministers laid down in the Constitution of Zimbabwe since Constitution Amendment 19 is 31. The slipping in of extra Ministries is a breach of our Constitution. [Comment: This is not sending out the right signals that the inclusive government intends to respect the principles of constitutionalism and the rule of law.]

A Continuing Saga

Welshman Ncube, Secretary General of MDC-M and their chief negotiator, was quoted after the swearing in ceremony as saying "the matter had not been conclusively resolved but had merely been set aside for this weekend." This ties in with a report that Motlanthe suggested Mugabe and Tsvangirai hold talks this weekend to decide whether they could both increase the number of their ministers to accommodate the extra five Zanu (PF) aspirant Ministers .This would result in a almost 50 Ministers. [Comment: If this is a correct report, President Motlanthe is not taking into account the constitutional issues or the extra burden this would place on the fiscus. It would also be perceived as bowing to last minute manipulation of the agreement by ZANU-PF.]

The ceremony was not only marred by disagreements, but also by the news of the arrest of the MDC-T Treasurer-General and Deputy Minister designate, Roy Bennett and by the continuing refusal to release other political detainees - one of the MDC-T conditions for embarking on an inclusive government. It is to be hoped that these issues will also be dealt with at the same time as continuing discussions about the ministerial posts.

Allocation of Ministerial Portfolios

This is the position Saturday morning but may of course be altered if the numbers of Ministries are cut down to meet constitutional requirements

ZANU-PF Ministry 1. Kembo Mohadi [MP Mat South] Home Affairs Minister in last government] 2. Emmerson Mnangagwa [MP Midlands] Defence Minister in last government 3. Patrick Chinamasa [Appointed Senator] Justice and Legal Affairs Minister in last government4. Herbert Murerwa [Elected Senator Mash East] Lands and Rural Resettlement Minister in a previous government5. Simbarashe Mumbengegwi [Elected Senator Midlands] Foreign Affairs Minister in last government 6. Nicholas Goche [MP Mash Central] Transport and Infrastructural Development Minister in last government 7. Ignatius Chombo [MP Mash Central] Local Government, Urban and Rural Development Minister in last government 8. Obert Mpofu [MP Mat North] Mines and Mining Development Minister in last government 9. Joseph Made [Appointed Senator] Agriculture, Mechanisation and Irrigation Development Minister in last government10. Francis Nhema [MP Midlands] Environment and Natural Resources Management Minister in last government 11. Stan Mudenge [MP Masvingo] Higher and Tertiary Education Minister in last government 12. Sithembiso Nyoni [F] [MP Mat North] Small and Medium Enterprises and Co-operative Development Minister in last government 13. Webster Shamu [MP Mash West] Media, Information and Publicity Minister of State in Presidents Office 14. Olivia Muchena [MP Mash East] Women's Affairs, Gender and Community Development Minister in last government15. Saviour Kasukuwere [Mash Central] Youth Development, Indigenisation and Empowerment Deputy Minister in last government 16. Walter Mzembi [MP Masvingo prov] Tourism and Hospitality Industry Deputy Minister in last governmentMinisters of State in the President's Office17. Didymus Mutasa [MP Manicaland] Minister of State for Presidential Affairs Minister in last government18. Sydney Sekeramayi [Elected Senator Mash East] Minister of State for National Security in the President's Office Minister in last government
Listed for swearing in as Ministers, but not sworn inJohn Nkomo [Appointed Senator] and Former Speaker and Minister in a previous governmentDavid Parirenyatwa [MP Mash East] and Minister in last governmentFlora Buka [F] [MP Midlands] and Minister of State in Presidents Office Paul Mangwana [MP Midlands] and Minister in last governmentSylvester Nguni [MP Mash West] and Minister in last government

MDC-T Ministry MPs in previous Parliaments1. Giles Mutsekwa [MP Manicaland] Home Affairs2. Tendai Biti[MP Harare] Finance3. Paurina Gwanyanya [MP Harare] Labour4. Nelson Chamisa [MP Harare] Information Communication Technology5. Fidelis Mhashu [MP Harare] Housing and Social Amenities6. Joel Gabuza Gabbuza [MP Mat North] State Enterprises and ParastatalsFirst time MP's7. Elton Mangoma [MP Manicaland] Economic Planning and Investment Promotion8. Elias Mudzuri [MP Masvingo Prov] Energy and Power Development9. Eric Matinenga [MP Manicaland] Constitutional and Parliamentary Affairs10. Eliphas Mukonoweshuro [MP Masvingo Prov] Public Service11. Henry Madzorera [MP Harare] Health and Child Welfare12. Theresa Makone [MP Harare] Public Works 13. Heneri Dzinotyiwei [MP Harare] Science and Technology14. Samuel Sipepa Nkomo [MP Bulawayo] Water Resources and DevelopmentMinister of State in the Prime Ministers Office15. Gordon Moyo [no parliamentary seat]Gordon Moyo would have to get one of the 4 appointed Senate seats MDC-T has been allocated

MDC-MMPs in previous Parliaments1. Welshman Ncube [no parliamentary seat] Industry and Commerce2. Priscilla Misihairabwi-Mushonga [no parliamentary seat]Regional Integration and International Co-operation3. David Coltart [Elected Senator Bulawayo] Education, Sport, Art and CultureSenator Coltart is the only nominee with a seat in Parliament,

Tthe other two have to get one of the 2 appointed Senate seats MDC-M has been allocatedListed for swearing in as Ministers, but not sworn inGibson Sibanda [no parliamentary seat]

Constitutional Obstacle to Fast Tracking The National Security Council Bill -Lloyd Msipa

2009-02-10T02:09:00.000-08:00

The National Security Council Bill was gazetted this afternoon in a Government Gazette ExtraordinaryConstitutional Obstacle to Fast Tracking this BillAlthough there seems to be a general expectation that this Bill will be fast tracked through Parliament tomorrow, there is in fact a constitutional obstacle to this. According to our Constitution, all Bills [except Constitutional Bills] have to be referred to the Parliamentary Legal Committee for examination for consistency with the Constitution. This has to be done immediately after the first reading of the Bill and the Bill cannot proceed until the Legal Committee gives the go-ahead. But as yet there is no Parliamentary Legal Committee. The Legal Committee is appointed by the Parliamentary Committee on Standing Rules and Orders – and this has not yet been set up. Some members of this Standing Rules and Orders Committee have to be voted for by each House. But some of the members are ex officio – and these include the Prime Minister and several Ministers – and these have not yet been appointed. Content of the BillThe gazetted Bill differs considerably from the draft Bill which the MDC-T put forward [which Veritas made available 31 January]. Substantive changes have been made. Clause 1 TitleClause 2 DefinitionsClause 3 Composition of the CouncilMDC draft – the President, the Prime Minister, the two Vice-Presidents, the two Deputy Prime Ministers, the chairperson of the Public Service Commission, the Ministers of Defence and Home Affairs, and three other Ministers nominated by the parties to the Inter-party Agreement. The Bill – the President as chairperson, the two Vice-Presidents, the Prime Minister, the two Deputy Prime Ministers, the Ministers responsible for Finance, the Defence Forces and the Police Force, one Minister nominated by each of the three political parties participating in the Interparty Political Agreement. [These are all members of Cabinet]. In addition to these Cabinet members, the Council includes the Minister of State in the Presidents’ Office responsible for National Security, the Chief Secretary to the President and Cabinet, the Chief Secretary to the Prime Minister [an appointment made by the President], the Commander of the Defence Forces, the Commanders of the Army and Air Force, the Commissioner-General of Police, the Commissioner of Prison and the Director General of the Department of State for National Security. Comment: this is a much larger Council than MDC envisaged and instead of being fairly evenly balanced according to known party affiliation, it is heavily weighted in favour of declared ZANU-PF supporters.Clause 4 Functions of the CouncilMDC draft – it will be responsible for overseeing the security services and directing their operations.The Bill – it will be responsible for reviewing national policies on defence, law and order, and recommending or directing appropriate action.Clause 5 Frequency and Procedures of MeetingsMDC draft – The President or, in his or her absence, the Prime Minister calls the meeting and chairs the meetings. Council shall meet at least once every two weeks. Decisions of the Council shall be made with the concurrence of at least five of its members, including the President and the Prime Minister: Disagreements can be referred to the Cabinet. The Bill – The President calls the meeting and chairs the meetings [in his absence it would be a Vice President as acting President] – at least once a month. Decisions by consensus.Clause 6 MDC Draft – The commanders of the security services shall, notwithstanding any other law —(a) report to the Council at such intervals and on such matters as the Council may direct; and(b) promptly carry out every lawful order or direction the Council may give them; and(c) fully comply with every lawful decision of the Council that is applicable to their services.The Bill – omits this clause entirelyClause 6 in the Bill [Clause 7 in MDC draft] Council’s decisions still valid if there are vacancies on the Council.Clause 7 in the Bill [Not in MDC draft] The Act will prevail when there are inconsistencies with other Acts.Clause 8 in the Bill [and MDC Draft] The Act expires on the date the IPA terminates.Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

Obstacles to Mugabe’s prosecution under International law-Lloyd Msipa

2009-02-02T17:49:00.000-08:00

Obstacles to Mugabe’s prosecution under International law-Lloyd Msipa
Tuesday, 27 January 2009
A lot has been written in the media concerning the possible indictment of President Robert Mugabe to the International
Criminal Court (ICC) relating to crimes against humanity or other. Whilst condemnation of the humanitarian situation
obtaining in Zimbabwe today is called for, one wonders what will be the efficacy of these prosecutions. The most
fundamental question that confronts Zimbabwe is whether to undertake prosecutions of the leaders of the former or
ousted regime together with its officials for the violations inflicted on the nations during their rule or to pardon them.
Political concerns are important. Making them accountable for their crimes on the nation might actually upset the oftenfragile
transitional peace settlement that would have been reached in most instances at great cost in terms of loss of life.
In most cases the outgoing regime would have made their departure conditional that they will be no prosecutions after
their departure. There are those that are arguing that trials and punishment of the Mugabe regime are an essential
element to a nation undergoing transition and therefore essential to achieve some degree of justice and confidence in the
new government. Prosecutions it is argued are necessary in order to draw a line between the old and the new regime
The more sober will argue that trials are unbefitting of a democracy and that they manifest a victors’ justice. They
further argue that to use criminal sanctions against those that lead the old regime may actually not have the desired
effect and may in fact run directly counter to the development of a democratic nation. They further argue that a program
of forgiveness is the best way forward in order to reconcile and rebuild a nation by leaving the past behind by means of
an amnesty. Whatever decision Zimbabwe takes, it will have long-term implications on its stability, economic and political
development. In an ideal world a balance is often required between justice and peace. Any attempt to hold those
accountable without risking instability or the country reverting back into anarchy is often a major consideration. Whilst
those who are guilty of committing crimes of impunity against the people should be held to account, the idea of
accountability is often fraught with contradictions in that trade offs and compromises are often the norm. The reality of
these negotiations and decisions often involve various actors that may include international organisations attempting to
get the most on the accountability continuum without risking the stability of the new regime. The old adage “no
one size fits all” probably sums the inherent dilemma faced by Zimbabweans in reckoning with how to deal with
past atrocities committed by previous regimes. Competing interests often derail agreements often contemplated by the
various parties to the decision making process. The solution so often arrived at in most transitional governments usually
take into consideration the various historical, cultural, and political realities of the country in question. Zimbabwe despite
having ratified other treaties under international law, the Rome statute is not one of them. 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 was 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
Democratic Republic of Congo has ratified the Statute of the International Criminal Court. The recent arrest of General
Nkunda by the Rwandese authorities has brought this topic back into the limelight. It excites many. The Congolese
government issued an international arrest warrant against him for alleged war crimes in 2005.It says it wants Gen
Nkunda to be sent back home to face trial. The International Criminal Court has been conspicuously quiet over whether
to bring him to the ICC. The old adage kicks in again “no one size fits all” probably sums the inherent
dilemma faced by the International Criminal Court. This is because General Laurent Nkunda has long sought to portray
himself as the only man who can protect his Tutsi community in eastern Democratic Republic of Congo from Hutu forces.
This led to accusations that he was a stooge of the Tutsi-led Rwandan government. In other words in some African
circles he is regarded as the friend of the people. He is considered by some countries in the region a necessary evil for
the balance of power in the region. Power politics I might add. Remember the Rwandan genocide. In Zimbabwe, despite
the continued call for President Mugabe to be indicted for crimes against humanity or other no statement has been forth
coming from the ICC or the UN Security Council for that matter. It is usually the competing interests of the parties, the
trade offs and the compromises considered that largely determine what decision a government or institution takes. It is
the magnitude and the quality of physical repression, the extent and degree of the impunity by way of atrociousness that
will often determine the approach taken by governments attempting to strike a balance between peace and justice. The
more brutal the crimes against its people, the more the number of perpetrators taking part, or the existence of large
numbers of collaborators, supporters, the more transparency that is required in dealing with it. It is argued that if
institutions of the state, the army and the police were used in the repression and brutality, this will contribute significantly
to the approach used. A standard so often used to determine this is to what extent those outgoing regimes had
militarised the state institutions. It is generally argued that the more a regime relied on the military for its day-to-day
governance issues; it would normally follows that there would be a direct correlation or an ambiguous link between the
armed forces and the commission of atrocities. Zimbabweans can readily point to two major events in their history that
possibly fit this criteria, 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. The second event raising
the possibility of Mugabe being brought before the ICC is 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. The Security Council route whereby a unanimous vote by all the permanent
members to prosecute President Mugabe is also fraught with its own problems. China and Russia are long time friends of
Mugabe dating back to the war of liberation. Any hope of a Security Council mandate to arrest Mugabe is wishful thinking. Anyway, however one conceives these issues, complex ethical, legal and practical concerns always accompany
decisions in transitional democracies. The way forward on the road to democracy and economic prosperity for Zimbabwe
is going to be a difficult exercise. The concept of justice, the legacy of the past political repression can be both an
emotional and practical burden affecting the stability of Zimbabwe as it tries to deal with past atrocities. Questions will
arise on how to peacefully integrate former officials associated with past repressions with its victims. How does a new
Zimbabwe respond to the demands of a new democracy, address the needs of the people without creating new injustices
for others? It remains to be said that even after his ouster from power, President Mugabe will still have his defenders,
who will either deny that the atrocities ever took place or will claim they were committed by somebody else or worse still
argue that at the time these atrocities were committed they were legal under the country’s laws and therefore
justified. Lloyd Msipa is a Lawyer writing form the United Kingdom. He can be contacted at lmsipalaw@googlemail.com

Let’s look beyond MDC, Zanu PF

2009-02-02T16:46:00.000-08:00

Let’s look beyond MDC, Zanu PFLloyd Msipa, New ZimbabweMay 16, 2007

THE SADC extra-ordinary summit held in Dar es Salaam, Tanzania, has come and gone and Zimbabweans are not any better off than before. All the expectations of possible censure of Harare have disappeared.
What we have is a promise by the South African President Thabo Mbeki to mediate between the feuding parties in Zimbabwe.
There seems to be a lot of faith from both MDC formations in this process of mediation judging by the media reports. Both camps seem to genuinely believe that since President Mbeki has been given this task by the SADC heads, he is likely to carry it through.
The naivety of both MDC camps was aptly put into context by the NCA Chairman Dr Lovemore Madhuku, who seems to be the only person whose head is screwed on right.
Madhuku has clearly said in his view, Thabo Mbeki's negotiation initiative is not in good faith.
Folly is sometimes defined as doing the same thing over and over again and expecting a different result. Mbeki's initiatives on Zimbabwe have been relied on in the past, and the outcome has been the same -- nothing. How soon we forget!
The MDC is now eight years old and it seems as the years go by, its prospects of becoming the governing party are slowly drifting away. The MDC, it seems, has failed to transform from its civic movement status that saw it draw membership from academics, trade unionists, students, professionals and others into a properly constituted political party.
With both the MDC and Mbeki's latest initiative looking very much doomed, what then is the way forward? Fellow Zimbabweans it seems we have put all our eggs in one basket.
We are ten months away from the next decisive election in Zimbabwe and under the current political scenario, what are the prospects of an MDC victory? I put them at zero. I think it is time we came up with a more viable political option that will meet Zanu PF at next year's polls and win.
Both MDC factions as currently divided are over reliant on the goodwill of President Mbeki and the international community. We currently have the Secretary Generals of both parties shuttling back and forth to South Africa all in the name of negotiations. What they do not seem to realise is that no prospects of any Constitutional reform exist in Zimbabwe without the masses.
Both MDCs have failed to launch a people's revolution within Zimbabwe itself. That is the source of constitutional reform, not South Africa, Britain, Australia or the United States. Power comes from the people, not the international community. Prime Minister Tony Blair has come and gone, and of course, he did not assist the MDC in its ambition to replace Zanu PF.
President Mbeki, it appears, is playing for time and before the MDCs know it, the elections will be a few weeks away. It is not difficult to see that the two MDCs have run out of options. Why would they be bickering over a name, for instance, if they were serious political players? Besides, the speeches they give now are largely rehearsed and repetitive. The factions have become elitist with both leaders spending their time abroad instead of being in Zaka, Gwanda, Murobedzi canvassing. It is common knowledge that 70 percent of Zimbabweans live there.
A new political party, which is not Zanu PF or MDC, but possibly with elements of the two and other progressive minds, at this juncture of Zimbabwean politics has the potential of causing an upset. This new political party should be prepared to take advantage of progressive former Zanu PF parliamentarians who are already knowledgeable about the machinations of the governing party. After all, who among us can claim they were never affiliated to Zanu or Zapu at some point in their lives?
They will use this information, plan within this new political party the downfall of Zanu PF in the March 2008 poll. The MDC has failed to take advantage of this resource covertly or otherwise. We have currently a situation where civic groups agitating for a New Zimbabwe have no other political party to work with except the two factions of the MDC. What is required is a wider choice of political organisations to jerk the MDC and Zanu PF off their comfort zones. Surely there are more potential players out there.

Are Zanu PF and MDC compatible marriage partners?

2009-02-02T16:44:00.000-08:00

Lloyd Msipa - Opinion
Thu, 09 Oct 2008 09:21:00 +0000

SINCE the official signing of the historic power sharing agreement between Zanu PF and the two formations of the opposition Movement for Democratic Change (MDC) on September 15, expectations have been high with regards to the ending of the political and economic challenges faced by Zimbabweans in general. It was expected that the signatures appended by the principals would usher Zimbabwe into a new era of economic and political recovery. Despite all the main parties bending over backwards to accommodate one another, it seems the differences between the two main political animals are irreconcilable. To understand the differences, it is important to compare Zanu PF and MDC as political parties. Zanu PF is a party that has its roots in the ethos of liberation war politics and therefore its value systems clash with the values that obtain within the MDC. Zanu was formed in 1961 and has been in existence for over forty six years. The party fought in the liberation war of the sixties and seventies, morphed itself in 1980 after independence and took over a government that was largely a racist institution courtesy of the late former Rhodesian Prime Minister Ian Douglas Smith. It undertook the audacious task of overhauling those systems of government that had been entrenched over the time. The resultant government was a government that went a long way into acknowledging the values of the indigenous black Zimbabweans and got involved in the redistribution of the country’s white-owned resources. In 1987 a Unity Accord was signed between Zanu PF and a liberation war ally, PF Zapu, led by the late Vice President Dr. Joshua Nkomo. Both parties merged to form the new Zanu PF party – the party that is currently in government.A close look at the 1986-87 unity talks between Zanu PF and PF Zapu will show that the talks were not as laborious as the current power-sharing talks between Zanu PF and the MDC led by Morgan Tsvangirai. The Zanu PF/PF Zapu unity talks did not require external intervention and neither were they influenced, to a great extent, by external forces. Current talks, however, have required the facilitation of the regional Southern African Development Community (Sadc) and the African Union, and at one time the opposition has flirted with the idea of including external players like Kofi Annan, the former Secretary General of the United Nations and the European Union in the matrix.Justice Minister Patrick Chinamasa once said that Zanu PF and the MDC are diametrically opposed – simply not compatible. Indeed, they are diametrically opposed and make strange bedfellows. The MDC has its roots in trade union politics and external factors still play a big role in the make up and ideology of the party. Its formation is often viewed as reactionary and not deep-rooted in the struggles of the Zimbabwean people. It initially drew its membership, as a movement, from the shrapnel of student leaders, professionals, trade unionists and most recently, others who saw an opportunity to enter into politics. Many of the members of the MDC did not have liberation war credentials and had very little appreciation of the country’s liberation history, despite saying the contrary The differences in the origins of these two political parties would inevitably make them very unlikely bedfellows. The deep-rooted mistrust between these two organisations emanates from their very different origins. These differences (and hence mistrust) did not exist between Zanu PF and PF Zapu who had the same origins and went through the same struggles to achieve independence in 1980.This mistrust deals a heavy blow to current negotiations and especially when it comes to the distribution of Cabinet positions. Can Zanu PF trust the MDC to defend the legacy of the liberation war? Can the MDC use the power entrusted upon it by way of powerful cabinet positions responsibly? These are the questions that will linger in the minds of many of the Zanu PF leaders.The current power play with regards to who controls what ministry is ample evidence of the mistrust that exists between the two parties. The mistrust is exacerbated by the marriage between the MDC and the West – whom Zanu PF blames for the current crisis. What are the implications of a game of golf between the MDC-T leader and the U.S. Ambassador to Zimbabwe, James McGee, who has almost become a spokesman for the MDC party? McGee’s statements oftentimes have echoed the statements coming from the MDC and are issued at exact times as the MDC statements?The US track record in the world is not a rosy one. It has destabilised many countries and Zanu PF has every reason to mistrust their alliance with the MDC (who are supposed to be Zimbabwean brothers and sisters). The US has left an indelible mark in countries like Afghanistan, Pakistan, Iran, Iraq, etc. The list is endless and the evidence is not worth repeating here. Will the power sharing agreement stand the test of time considering the level of outside interference, the difference in origins and the mistrust? The MDC has used the sanctions as an invisible hand in the current negotiations and has not openly denounced them although all other organisations including Sadc have done so. How come we have not had an official request from the MDC for the lifting of sanctions? The failure to agree on power distribution means that the actual governing could also prove elusive. Zanu PF has often charged that they are not negotiating with MDC alone. There are other players on this ‘chess board’. All Zimbabweans have to realise that any agreement reached, with the pawns on this chess board not being controlled by us Zimbabweans, will result in a still birth. Without good faith and goodwill, this agreement which already has so much stalked against it, is not likely to pull Zimbabwe out of the challenges it currently faces. [Lloyd Msipa writes from London, United Kingdom and can be contacted at lmsipalaw@googlemail.com]

Thanks for liberating us, now let's move on

2009-02-02T16:41:00.000-08:00

By Lloyd Msipa

Last updated: 12/01/2008 21:41:07

THE fall of apartheid South Africa signalled the last of African countries freed from colonial bondage.
Kwame Nkurumah, inspired by the works of Marcus Garvey, declared and inspired the freedom train that fifty years later saw the last of Africa’s colonies being free. The irony of this journey to freedom is that Kwame Nkurumah himself did not achieve this single handed.
He relied heavily on the workers union, in as much as the ANC of South Africa and the Zanu and Zapu in Zimbabwe relied heavily on the trade unions to achieve independence.
It is when Nkurumah was in place as the leader of Ghana (Gold Coast) that he turned around and redefined the role of the same trade unions. When he was challenged he proceeded to use the very same tactics that Robert Mugabe is using today. When the railway workers went on strike in 1961, Nkrumah ordered strike leaders and opposition politicians arrested under the Trade Union Act of 1958.
Although Nkrumah himself had organised strikes a few years before, there was no longer any place for them in his plan under his leadership. To remain relevant in Ghanaian politics, Nkrumah introduced legislation to deal with those that challenged him, namely, the Preventive Detention Act.
This legislation, like AIPPA and POSA in Zimbabwe, led to widespread dissatisfaction with Nkrumah’s rule leading to various attempts on his life to a point where he did not trust anybody. The police came to resent their role in society. Meanwhile, a quite justifiable fear of assassination meant Nkrumah became less accessible.
Today Nkrumah is regarded as one of Africa’s illustrious sons because he single handedly started the process leading to Africa’s emancipation. However, the respect extended to his leadership in Ghana is lukewarm as a result of this tendency by African leaders to overstay their welcome. Whilst the greatest respect should be extended to those that sacrificed their livelihood to free African countries from the bondage of colonialism, it is not right for the same liberation heroes to hold on to this glory indefinitely.
This self glorification of African leaders, if over-extended, manifests itself to what we have in Zimbabwe today. I’m sure no one doubts Mugabe’s role in leading Zimbabwe to Independence in 1980. This has given him a place in history, as one of the illustrious sons of Africa.
However, like Nkrumah, Mugabe has proceeded to overstep his mark and overstayed his welcome. Robert Mugabe belongs to the Nelson Mandela School and hence he should have passed the baton stick ages ago. Zimbabwe’s challenge now centers on good governance. Good governance demands ethical considerations that do not border on the use of force.
I accept that the decolonisation process was made possible through the use of force. But there was no alternative to this. Zimbabwe and indeed Africa’ next challenge is good governance. Good governance requires leaders who were not involved in the use of force, hence the need for the leadership to pass on.
In February 1966, while Nkrumah was away on a state visit to China, his government was overthrown in a military coup. Today, Mugabe one of the most respected leaders of his time risks pushing those who elected him into office too far.
Like Nkrumah, Mugabe is obsessed that Western countries are after his head. He will not let a week go by without uttering the names of Tony Blair or George Bush. We today see the purging of opposition leaders. This in itself signals the growing use of tactics that were used to bring down the Smith regime. The only difference is that Mugabe is doing it to his own people.
Hushe madzoro, so the shona saying goes, or ubukhosi ngamazolo in Ndebele. We need to come to a place were we credit those that liberated the country and move forward. Those that liberated the country must accept our gratitude for their role and move on. We need to come to a place were good governance becomes second nature to us.

Zimbabwe: The Rebirth of a 'New Zanu PF

2009-02-01T20:09:00.000-08:00

opinion
THE shenanigans of the last few weeks by the MDC-T faction as they criss-crossed the globe in an attempt to unseat the Zanu PF government through a combination of media blitz, claims of having won the presidential elections and downright wayward diplomatic efforts left most of us sitting on the edges of our seats as we marvelled at this animal which, a few weeks before, had claimed not to be participating in the elections.
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The release of the Presidential results final deflated this over-inflated animal to the chagrin of many who where supporting its cause. This includes the United States diplomat Jendayi Frazer who is now calling for a government of national unity (GNU) to salvage any dignity that remains from her previous stance when she declared Morgan Tsvangirai the winner of the presidential election.
The election outcome in the presidential race must be a lesson to Zanu PF.
In the history of opposition politics in Zimbabwe, dating as far back as Sithole's Zanu Ndonga, Tekere's ZUM and Dumbutshena's Forum party, none have caused as much despondency in Zanu PF as has the current MDC-T.
Of course there are many reasons that explain the partial successes in the elections by MDC-T, but of major concern is the fact that Zanu PF, as a party, was almost caught sleeping on the job. This last election was a close shave for Zanu PF and the events leading or manifesting themselves in this scenario should never be allowed to happen if Zanu PF is to remain strong.
It is in this light that Zanu PF as a political animal needs to re-invent itself in response to the changing global political challenges in order to survive.
The current politics of Zanu PF are deeply embedded in the principles espoused during Chimurenga One and Chimurenga Two. Chimurenga One was led by the spirit Mediums, Mbuya Nehanda and Sekuru Kaguvi. They where both instrumental in organising the nationwide resistance to colonial rule during the period 1896-1897.Their contribution to Chimurenga One was even recognised as afar a field by Lobengula, making them the pioneers of this legacy we seek to defend today--the land.
Like the Zanu PF party in 1980 through the reconciliation extended to our former colonisers, Mbuya Nehanda initially welcomed the occupation pioneers and counselled her followers to welcome them. "Do not be afraid of them," she said "as they are only traders. Take a black cow to them and say this is the meat with which we greet you."
As colonialism began to take its toll on Zimbabweans the collective effort to rid Zimbabwe of these unwelcome visitors between 1896-7 came to be called the first Chimurenga. The rebellion was initiated in Matabeleland by Mukwati and Sekuru Kaguvi and Mbuya Nehanda leading the Mashonaland Chapter of the Revolution. The hand of friendship extended by Mbuya Nehanda came to haunt them later as they were executed by the same people they attempted to befriend.
The complacence exhibited by Zanu PF leaders in the last election could have cost Zimbabweans the legacy which our ancestors fought so hard for.
A revolution spurning 140 years could have disappeared at the stroke of a pen. It is in this light I revisit my initial proposition that Zanu PF urgently needs to reinvent itself in order to remain relevant. The bottleneck currently existing in Zanu PF is largely responsible for the shortcomings the party is currently experiencing.
There is need for movement to take place at the top, hence allowing the bottom to move to the upper echelons--allowing fresh bodies and minds to flow in. The large numbers of university graduates have found it almost impossible to play a pivotal role in Zanu PF as a result of this bottleneck.
The frustrations of the bottleneck in the Zanu PF party have manifested themselves in the likes of the Tsholotsho debacle and more recently the Makoni breakaway.
All these events do not help the party at all. In fact the mediocre showing by Zanu PF in the March 29th election is largely a result of this--more than it is the popularity of the MDC.

Failure to address these anomalies in Zanu PF may result in the party self-destructing or becoming vulnerable as evidenced by UNIP in Zambia as an example of the former and the infiltration of the ANC by COSATU as an example of the latter.
Zanu PF needs to come out of its slumber as the world of today demands it and indeed the demands of Chimurenga Three require younger global thinkers who are able to take on the worlds institutions at a diplomatic level and hence beat them at their own game.

Zimbabwe: when politicians employ judges

2009-02-01T05:18:00.000-08:00

By Lloyd Msipa
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Last updated: 12/01/2008 21:41:05 THE hype in Zimbabwe today is that a high profile so and so has been arrested for corruption, a high profile so and so has been bailed to appear on such and such a day.
After that and a few court appearances down the road we hear the matter has been withdrawn before plea and the state will proceed by way of summons should new evidence come to light.
However, when a nobody is arrested within a short space of time we are told he has been convicted and he is ready to do time, that is, if he does not take off before he is sent of to the gallows.
This is the symptom in our nation today. Power politics is at play in all facets of our lives including the judiciary. Politicians have destroyed the dichotomy between law and politics. Judges, Magistrates and Prosecutors are reminded constantly to tread carefully as the law, as they know it, manifesting itself in statutes or statutory instruments, is a product of a political process called legislation.
In other words, they are reminded that it is the politicians that actually engage in the law making process to which they have the privilege of adjudicating over. The decisions they arrive at in the legal process of litigation takes place in the courts staffed by Magistrates, Judges who are ultimately appointed by politicians. Their removal from office is decided by the same politicians. The judges are reminded of this in a virtually uncomplicated process, never mind the security of tenure rules. The whole process is entirely executive driven. This is what happens when the judiciary becomes politicised. Never mind the principle of separation of powers.
Recent events in the judicial system in Zimbabwe have made a complete mockery of our legal system. These events have shown that that Prosecutors and Magistrates do not act in a political or social vacuum. The more prominent and powerful the figures being investigated the stronger the constraints. Prosecutors and Magistrates dealing with high profile cases have had to be prepared to undergo sometimes very intense institutional psychological pressures.
The fundamental principle of equality before the law is of no use in helping the Magistrates, Prosecutors and the Police when the suspects are wealthy businessmen or prominent politicians. The conviction rate against high profile government politicians and corporate executives has been very low in our courts. This is the case despite the excellent anti-corruption legislation in place. In addition, when investigating high profile cases, the police often have had to contend with interference from other government departments and high-powered individuals, not to mention their superiors whom they are obliged to obey as they are close to the political power structures and therefore influence the outcome of any prosecution.
We need to instil confidence in our legal system in order to attain a higher level of success in the prosecution of high profile corrupt officials and individuals in position of authority. Barring convicted corrupt officials from entering political positions may be a start. The system in place today whereby a politician has to wait a few months or years and then re-enter politics makes a complete mockery of our legal system. There are numerous examples in this category. The independence of the law enforcement agencies may also be an important premise to start.
Another possibility is to focus on the financial angles in corruption cases, especially being able to confiscate ill-gotten money, property and other assets. The fact that a corrupt official is more afraid of losing his ill-gotten wealth than go to prison can be used to the advantage of the prosecution.
It is also vital to introduce legislation along the lines of the aborted leadership code, only stricter. Legislation that will allow authorities to legally seize ill-gotten assets without being obliged to prove if these where gained through crime, if the defendant is unable to explain the origin of the assets.
To win this battle it is imperative for Prosecutors and Magistrates to work in teams and share vital information that is not widely known. This is vital in light of the personal risk they face in high profile cases. Judges, Magistrates and Prosecutors must be exemplary in their professional conduct. Things like asking for favours and committing minor legal infringements cause public exposure. The lack of success in prosecuting and securing convictions in high profile cases is to a large extent due to the influence on these individuals and the institutions they represent by politicians in what has come to be known as the politicisation of the judiciary.
Lloyd Msipa is a Lawyer and writes from London in the United Kingdom. He can be contacted at lmsipalaw@googlemail.com

Nkala cannot tell story from grave

2009-02-01T05:10:00.000-08:00

By Lloyd Msipa
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Last updated: 12/01/2008 21:41:05 IT WAS with great interest that I read an article by Gibbs Dube in The Standard, titled Nkala to name Tongo, Chitepo murderers.
The story says former defence minister Enos Nkala intends to write or is writing a book naming those that where either responsible or implicated in the death of Zimbabwe’s nationalists before and after independence, namely Josiah Tongogara, Jason Ziyapapa Moyo, Herbert Chitepo and others.
He also proposes, according to the article, to finger those that ordered the massacres in the Midlands and Matabeleland.
What I found rather disheartening and would be unfortunate is that the former minister says he will wait until his death before the book could be published.
Any attempt to tell a story from the grave will be met with vicious denials and any attempt by those living to legitimise the story will meet the same fate. In short, one cannot defend their story from the grave. The former Minister will do Zimbabweans a great injustice if he where to tell his story from the grave. I would urge him to reconsider.From 1975, Zimbabwe’s history is dotted with many dark periods and inconsistencies. The fact that so many nationalists lost their lives at the dawn of our independence has been a difficult fact to comprehend, rendering any meaningful attempt to teach our children the true history of Zimbabwe impossible. Our children have for the better part of the Zimsec curricular been fed the historical untruths that have manifested and reproduced themselves in the form of the dreaded Border Gezi youths. A cursory analysis of the pre and post independence relations between the nationalists on both sides of the political divide suggests something sinister did happen.
It is therefore imperative that a post-Robert Mugabe regime establishes a commission with a mandate wide enough to look into all aspects of our history. Our history books need to be rewritten to accommodate the truth. We cannot have our history books teaching our children that one of the greatest nationalists ran away to Botswana in a dress at the height of the findings of the arms cache. This is where the former defence minister Enos Nkala’s story will come into use. It will provide an invaluable premise for an appointed commission to do its work. The importance of his story now emanates from the fact that Zimbabweans will need to cross-examine him on the facts after reading it, so he can clarify any grey areas. This cannot be done from the grave.
It is important that this process takes place in order for us Zimbabweans to restore our dignity and prevent future atrocities and historical untruths. It is important to understand what occurred before and after independence and why. Who did what and when? The Gukurahundi massacres represent one of the darkest periods in our history. It is important to uncover the precise details of the questions that remain unanswered. What happened to husbands, sons and wives in the hands of the 5th brigade?
I for one can unequivocally say I have a Sekuru (Ukhulu) who at one time, as a teacher, had a beautiful modern home, a large herd of cattle and a car in the Lower Gweru rural area. Today he is a broken man, a mere shadow of himself. This man had his property burnt down, children killed, beasts slaughtered by the 5th brigade. Today he tells his story to anyone who cares to listen. The question is how many others are still alive out there. That is why it is imperative for the former minister to quickly write his book as I think he owes it to all right thinking Zimbabweans to tell his story.
The fact that the contents of the Inquiry ordered by the President on the Gukurahundi massacres was never made public gives more gravity to the urgency of the former minister’s side of the story. It is not enough for us to be content with the response “it was a moment of madness”. History shows and tells us that for nations to make any meaningful progress forward, we need to deal with the mistakes of the past. It is up to the victims to forgive and request we move forward. The perpetrators cannot do it on their behalf.
Lloyd Msipa is a Lawyer and writes from Barking, East London. He can be contacted at lmsipalaw@googlemail.com

Obstacles to Mugabe’s prosecution under International law-Lloyd Msipa

2009-01-25T00:05:00.000-08:00

A lot has been written in the media concerning the possible indictment of President Robert Mugabe to the International Criminal Court (ICC) relating to crimes against humanity or other. Whilst condemnation of the humanitarian situation obtaining in Zimbabwe today is called for, one wonders what will be the efficacy of these prosecutions. The most fundamental question that confronts Zimbabwe is whether to undertake prosecutions of the leaders of the former or ousted regime together with its officials for the violations inflicted on the nations during their rule or to pardon them.
Political concerns are important. Making them accountable for their crimes on the nation might actually upset the often-fragile transitional peace settlement that would have been reached in most instances at great cost in terms of loss of life. In most cases the outgoing regime would have made their departure conditional that they will be no prosecutions after their departure.
There are those that are arguing that trials and punishment of the Mugabe regime are an essential element to a nation undergoing transition and therefore essential to achieve some degree of justice and confidence in the new government. Prosecutions it is argued are necessary in order to draw a line between the old and the new regime
The more sober will argue that trials are unbefitting of a democracy and that they manifest a victors’ justice. They further argue that to use criminal sanctions against those that lead the old regime may actually not have the desired effect and may in fact run directly counter to the development of a democratic nation. They further argue that a program of forgiveness is the best way forward in order to reconcile and rebuild a nation by leaving the past behind by means of an amnesty.
Whatever decision Zimbabwe takes, it will have long-term implications on its stability, economic and political development. In an ideal world a balance is often required between justice and peace.
Any attempt to hold those accountable without risking instability or the country reverting back into anarchy is often a major consideration. Whilst those who are guilty of committing crimes of impunity against the people should be held to account, the idea of accountability is often fraught with contradictions in that trade offs and compromises are often the norm. The reality of these negotiations and decisions often involve various actors that may include international organisations attempting to get the most on the accountability continuum without risking the stability of the new regime.
The old adage “no one size fits all” probably sums the inherent dilemma faced by Zimbabweans in reckoning with how to deal with past atrocities committed by previous regimes. Competing interests often derail agreements often contemplated by the various parties to the decision making process.
The solution so often arrived at in most transitional governments usually take into consideration the various historical, cultural, and political realities of the country in question. Zimbabwe despite having ratified other treaties under international law, the Rome statute is not one of them. 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 was 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 Democratic Republic of Congo has ratified the Statute of the International Criminal Court.
The recent arrest of General Nkunda by the Rwandese authorities has brought this topic back into the limelight. It excites many. The Congolese government issued an international arrest warrant against him for alleged war crimes in 2005.It says it wants Gen Nkunda to be sent back home to face trial.
The International Criminal Court has been conspicuously quiet over whether to bring him to the ICC. The old adage kicks in again “no one size fits all” probably sums the inherent dilemma faced by the International Criminal Court.
This is because General Laurent Nkunda has long sought to portray himself as the only man who can protect his Tutsi community in eastern Democratic Republic of Congo from Hutu forces.
This led to accusations that he was a stooge of the Tutsi-led Rwandan government. In other words in some African circles he is regarded as the friend of the people. He is considered by some countries in the region a necessary evil for the balance of power in the region. Power politics I might add. Remember the Rwandan genocide.
In Zimbabwe, despite the continued call for President Mugabe to be indicted for crimes against humanity or other no statement has been forth coming from the ICC or the UN Security Council for that matter. It is usually the competing interests of the parties, the trade offs and the compromises considered that largely determine what decision a government or institution takes.
It is the magnitude and the quality of physical repression, the extent and degree of the impunity by way of atrociousness that will often determine the approach taken by governments attempting to strike a balance between peace and justice. The more brutal the crimes against its people, the more the number of perpetrators taking part, or the existence of large numbers of collaborators, supporters, the more transparency that is required in dealing with it. It is argued that if institutions of the state, the army and the police were used in the repression and brutality, this will contribute significantly to the approach used. A standard so often used to determine this is to what extent those outgoing regimes had militarised the state institutions.
It is generally argued that the more a regime relied on the military for its day-to-day governance issues; it would normally follows that there would be a direct correlation or an ambiguous link between the armed forces and the commission of atrocities.
Zimbabweans can readily point to two major events in their history that possibly fit this criteria, 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.
The second event raising the possibility of Mugabe being brought before the ICC is 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.
The Security Council route whereby a unanimous vote by all the permanent members to prosecute President Mugabe is also fraught with its own problems. China and Russia are long time friends of Mugabe dating back to the war of liberation. Any hope of a Security Council mandate to arrest Mugabe is wishful thinking.
Anyway, however one conceives these issues, complex ethical, legal and practical concerns always accompany decisions in transitional democracies. The way forward on the road to democracy and economic prosperity for Zimbabwe is going to be a difficult exercise. The concept of justice, the legacy of the past political repression can be both an emotional and practical burden affecting the stability of Zimbabwe as it tries to deal with past atrocities. Questions will arise on how to peacefully integrate former officials associated with past repressions with its victims. How does a new Zimbabwe respond to the demands of a new democracy, address the needs of the people without creating new injustices for others? It remains to be said that even after his ouster from power, President Mugabe will still have his defenders, who will either deny that the atrocities ever took place or will claim they were committed by somebody else or worse still argue that at the time these atrocities were committed they were legal under the country’s laws and therefore justified.
Lloyd Msipa is a Lawyer writing form the United Kingdom. He can be contacted at lmsipalaw@googlemail.com

Update on Inclusive Government :Dead or Deadlocked? -Lloyd Msipa

2009-01-16T20:51:00.000-08:00

Update on Inclusive Government :Dead or Deadlocked? -Lloyd Msipa
BILL WATCH 1/2009 [10th January 2009] House of Assembly adjourned until 20 January and Senate until 27 January. It is exactly four months since the Inter-party Political Agreement [IPA] to set up an Inclusive Government was signed. The Agreement was hailed by the SADC summit a few days later, but most analysts agreed that it lacked a time-frame and was riddled with contradictory statements. There were far too many issues left undecided, and a whole series of subsequent negotiations have still not settled them. Constitution Amendment No. 19, the key legal instrument which would underpin the structures of a power sharing government, is still not tabled in Parliament. It can be tabled when Parliament reconvenes later in the month, but the MDC-T have threatened to block it unless other key issues are also settled, namely, the continuing violence, the fair allocation of ministries, key government appointments and the functions and composition of the National Security Council.
MORE LEGAL UPDATES
Timeline of Events Relating to Located Abductees (As at 09:00 Hrs on 6 January 2009)- ZLHR
Govt to establish Citizenship and Immigration Board
15th Sept Agreement between MDC and ZANU PF
The prospects for an inclusive government being set up look less and less promising after Mr Mugabe's rhetoric at the end of last year, Mr Tsvangirai's holding out for a genuine share of authority, and the recent evidence of the torture of MDC cadres and civil society activists accused of supporting the MDC.Mr Mugabe at the ZANU-PF Conference told thousands of his party delegates that he would never surrender power. "I will never, never, never, never surrender. Zimbabwe is mine,"."At conscience, at heart, I will never, never sell my country. I will never, never surrender." Referring to his rival Mr Tsvangirai, Mr Mugabe called him "a political monster that will oppose allthat we fought for." [Note: the state controlled media also continue todenigrate the MDC-T and its leader Mr Tsvangirai.] Mr Tsvangirai leader of the MDC-T on 19 December said that "the MDC can only enter into an agreement that enables us to participate as an equal partner in order that we can contribute to solving the Zimbabwe crisis. Zanu-PF is insisting on keeping the lion's share of power, including control of the army and shared control of the police that has been used to terrorize MDC members for years. Therefore, this negotiation process must now be confined to a specific timeframe in which all the outstanding issues are addressed, including, the appointment of provincial governors, the composition and constitution of the National Security Council, and equity in the allocation of key ministries. If this cannot be achieved then an internationally supervised presidential election must be conducted in an environment that is conducive to a free and fair poll." His spokesman put it more graphically "the MDC cannot accept responsibility for the mess without the necessary authority".Allegations of Military Training and State Mistreatment of Abductees Lead to Hardening Stances It is unclear whether ZANU-PF allegations that MDC is training militia in Botswana are the death knell for the IPA. The MDC ultimatum to release or produce the abductees in court by 1st January has only been partially met [so far 17 out of the 40 plus who Mr Tsvangirai mentioned as abducted have been produced in court]. It is likely that MDC will hold out for all to be accounted for, which will cause further delays. Even if the talks then continue, the revelations about the torture of abductees while in unlawful State custody and the part played by police, CIO and army agents in the whole exercise, have led to the MDC-T demanding, not only the Ministry of Home Affairs, but that the police, army and CIO be placed under the effective control of all parties to the inclusive government agreement.In his letter to President Motlanthe of December 29 Mr Tsvangirai wrote:"Given the fact that our national institutions (police, CIO, army) have been selectively used to target MDC and other activists it is only imperative that these security apparatus be placed under the effective control of parties to the agreement. In effect, the CIO as well as elements of the army such as military intelligence have become actively involved in undermining this agreement [the IPA]." Mr Tsvangirai also stipulated that legislation regarding the operations, control and funding of the security services by the National Security Council must be enacted before the formation of the inclusive government.Despite the international outrage over the abductions the ZANU-PF stance is unrepentant - their Chief Parliamentary Whip Joram Gumbo accused the MDC of failing to respect the intent of the power-sharing agreement, and of seeking to bypass the judicial process in demanding the release of MDC activists jailed on charges of plotting a coup. Minister of State Security Didymus Mutasa submitted an affidavit to the High Court that the "clandestine"detention of the abductees was part of a legitimate State Security investigation and that the identities of the State Security agents involved, and the details of the "facilities" used by them, should not be disclosed.Mr Tsvangirai rejects Invitation to be Appointed Prime Minister MDC president Mr Tsvangirai was designated Prime Minister in the 11 September IPA. A letter from Mr Mugabe inviting him to take up the post was delivered to him on Christmas Day [together with his Passport]. He formally declined the invitation and a party spokesman said "it is not for Mr. Mugabe to invite the MDC formation to join a government as that government is to be jointly constituted under the pact."In his reply to Mr Mugabe, Mr Tsvangirai firmly stated the MDC-T position that an Inclusive Government could not be formed until Constitution Amendment No. 19 had been passed into law and that the outstanding issues consistently listed by MDC-T had to be settled first.Mr Mutambara has not accepted invitation to be Deputy Prime Minister Mr Mutambara received a written invitation to take up his Deputy Prime Minister post. He responded by suggesting a meeting of all the principals.He and Mr Mugabe [but not Mr Tsvangirai] did meet for discussions, but Mr Mutambara has since reiterated his position that he will not be part of a government that does not include Mr Tsvangirai.MDC leadership meetingsThe leadership of the MDC, including its transition team and party strategists, has been meeting in South Africa this week for consultations on whether to continue or pull out of the talks to join the InclusiveGovernment. The final decision will be made at an MDC-T National ExecutiveCouncil meeting to be held on 18 January.Changes in de facto "Interim" Government Nine Ministers have had their appointments terminated by Mr Mugabe. They are - Samuel Mumbengegwi (Finance), Sikhanyiso Ndlovu (Information and Publicity), Oppah Muchinguri (Gender, Women's Affairs and Community Development), Munacho Mutezo (Water Resources and Development), Michael Nyambuya (Energy and Power Development), Amos Midzi (Mines and Mining Development), Chen Chimutengwende (Public and Interactive Affairs), Sithembiso Nyoni (Small and Medium Enterprises Development) and Rugare Gumbo (Agriculture).Three Deputy Ministers have also lost their posts: Kenneth Mutiwekuziva (Small and Medium Enterprises Development), David Chapfika (Agriculture) and Edwin Muguti (Health and Child Welfare).None of those dismissed had seats in Parliament. The individuals concerned have actually been ineligible to hold their posts since Parliament met on 26th August [Constitution, Section 31E(2)], so the dismissals are long overdue.It is reported that Mr Chigwedere (Education) and Mr Mushowe (Transport andCommunications) were spared the axe, because, as provincial governors, they hold seats in the Senate and are therefore considered eligible to continue as Ministers. [Note: this is faulty reasoning. They should in fact have vacated office when appointed as governors, because Ministers are prohibited from holding any other "public office" [Constitution, section 31D(4)] and a provincial governor holds public office [Constitution, section 111A].Filling the Ministerial vacancies: Mr Mugabe has assigned Ministers from the remaining pool of Ministers to act in six of the vacant Ministerial posts on a temporary basis in addition to their other duties [under the Constitution only an existing Minister can be appointed to another Ministry in an acting capacity]. The acting appointments are: Patrick Chinamasa (Finance), Paul Mangwana (Information and Publicity), Sydney Sekeramayi (Mines and Mining Development), Sylvester Nguni (Agriculture), Sithembiso Nyoni (Women's Affairs, Gender and Community Development), Joseph Made (Water Resources and Infrastructural Development).Is the Door Still Open for an Inclusive Government Despite the posturing and rhetoric there does still seem some hope that Mr Mugabe has not closed the door to an inclusive government. It is significant that he made no new substantive Ministerial appointments to replace the dismissed Ministers. Also, according to his spokesman George Charamba, although Mr Mugabe is on his traditional one month's annual leave, he has not gone abroad as usual, but has remained in Zimbabwe, "in retreat"but "working on structures of an inclusive government". If the door is still open, however, it does not look as if it will happen very soon. The state press has referred to a inclusive government being formed at the end of February.Statutory InstrumentsSI 186/2008 - extends the current price control regime until the end of June [gazetted 19th December].SI 187/2008 - increases the weekly cash withdrawal limit for individuals from $500 million to $5 billion [gazetted 31st December]. This refers only to withdrawals made without proof of lawful source - the larger amounts withdrawable with proof of lawful source are not changed.SI 1/2009 - more new banknotes - $20 billion and $50 billion [gazetted 9th January].Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

No Election Without Diaspora Vote

2009-01-16T20:21:00.000-08:00

Commentary

It is common knowledge that in the last few parliamentary and presidential elections, Zimbabweans outside the country have been denied the opportunity to vote in the country’s elections. The excuse advanced by the authorities was mostly the issue of cost and the fact that the smart sanctions targeted at Harare made it impossible for the ruling party to send their own officials to oversee the postal voting process. In March 2008, not all citizens will be able to vote since the Electoral Act stipulates that only people resident in a constituency in Zimbabwe are able to vote. Postal votes are only allowed for State employees, to the exclusion of citizens in the Diaspora.
The March 2008 elections present the authorities with an opportunity to address this anomaly. The fact that the SADC initiative is aimed at making sure Zimbabwe has a free and fair election, it is imperative that one of the conditions of the negotiation process is to allow the one third or so of the Zimbabwean population outside the country to exercise their Constitutional right to vote. Suffrage is an entitlement every citizen of Zimbabwe should be able to exercise weather they are in the country or not.
Schedule 3, under the supplementary provisions of the Constitution of Zimbabwe currently provides for the requirements voters have to meet in order to be eligible to vote in the country’s elections. Schedule 3, subsection I stipulates the following:

Subject to the provisions of this paragraph and to such residence qualifications as may be prescribed in the Electoral Law for inclusion on the electoral roll of a particular constituency, any person who has attained the age of eighteen years and who is a citizen of Zimbabwe; or (b) ... [Subparagraph (b) repealed by s. 20 of Act 5 of 2005 with effect from the 14th September, 2005.] shall be qualified for registration as a voter on the common roll.
This provisions is further qualified in the Electoral laws of the country. The Supreme law in Zimbabwe is the Constitution. All laws are drawn from its provisions, hence the need to start with amendment of the above provision.
This constitutional provision unless amended before the March 2008 election gives the current incumbents the opportunity to once again disenfranchise more voters this time round than the last time. The residence qualification, which I take it to mean one’s residence in their constituency at the time of registration or voting, will mean that those that where displaced by Operation Murambatswina will find it very difficult to be included in the new voters role - and that is about a million people. Most would find it very difficult to fulfill the residence requirement, as most have either left the country or have moved to their rural homes.
It seems highly improbable for Zimbabwe to have a new Constitution in place before the March 2008 elections. I would advance the time factor as sufficient a reason. However, the much talked about amendment number 18 should be negotiated and be used as a vehicle to include the amendment of the provision outlined above by including the following:

The residence requirement should be repealed and a provision empowering the supreme law to give regard to the fact that we now live in a globalized world, hence the likelihood of all nationals to be in Zimbabwe and in their respective constituencies at the time of elections is highly improbable.
A Constitution should reflect the historical reality of its citizens. It is imperative that all the country’s citizens, no matter were they are in the world be given an opportunity to participate in the political process of their country. Zimbabwe should not be allowed to be an exception. The one reality that will always be with us is the fact that Zimbabweans are now scattered all over the world. This is the legacy that the current leaders will live behind. It is my humble submission then that our suffrage entitlement should reflect this truth.
The current Constitutional provision curtails voting by those that are no longer resident in their constituencies and Zimbabwe in general, hence the unlikelihood of free and fair elections in March 2008 despite the negotiation efforts currently underway.
The writer Lloyd Msipa is a Lawyer and writes from London

Judiciary Needs Adequate Funding

2009-01-16T20:17:00.000-08:00

The statement this week by the Judge President Makarau comes as no major surprise considering the Zimbabwean Judiciary as an institution has been on a downward spiral for a relatively long time.
It suffices to say that sufficient funding is a cornerstone of the independence of the judiciary, as set out in the UN Basic Principles adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
It then follows that the administration of justice should be inspired by these fundamental principles concerning the exercise of judicial office aimed at enabling judges to act in accordance with those principles.
Judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens. Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial judiciary, the lack of adequate funding of the judiciary has compromised the all these norms of law in Zimbabwe.
To me it is not so much what the Judge President said, but more what she did not say. The lack of funding in the Zimbabwean Judicial system is a symptom of a far bigger problem than we care to explore. It does not take a rocket scientist to deduce why there was an exodus of the Judges that once graced our benches into neighbouring countries, notably Namibia and Botswana.
We need to revisit the ideals that we inherited at independence no matter how skewed they were. It is the ideals that we seek not the personalities that graced it. Political interference in the institution of the Judiciary has manifested itself in all kinds of problems, ranging from accused persons been kept in remand prisons for far longer than is the norm, retrospective legislation in the land hearings etc.
The institution of the Judiciary in Zimbabwe for all intents and purposes has been rendered subservient to the exceedingly powerful executive. The principle of the separation of powers has been reduced to a mere concept.
Do we need to remind ourselves that the Law society of Zimbabwe has been screaming blue murder for a relatively long time over these issues? One wonders what happens to all the funds that are generated by the same judicial system by way of fines, bail posted by those that have absconded etc.
The legal fraternity is now the playground of powerful politicians, who impose their wayward ways without challenge. The outburst by the Judge President has presented us with an opportunity to re-look at the way the Judiciary is run. We need to instil confidence in our legal system in order to attain a higher level of transparency.
Lloyd Msipa is a Lawyer and writes from London in the United Kingdom

Fine Balance To Determine AA Case

2009-01-16T20:15:00.000-08:00

Analysis Lloyd Msipa
The AA case came before the full bench of the Court of Appeal on the 6th of March 2007 following a protracted legal battle between the two parties. In short, the issue under contention is, if the Home Secretary was to resume involuntary returns of failed Asylum seekers to Zimbabwe in the light of the ill-treatment of returnees at the Harare Airport, will this be contrary to the obligations of the United Kingdom under Article 3 of the European Convention on Human Rights.
The Home Secretary’s argument is premised on the grounds that involuntary removals to Zimbabwe from the United Kingdom of failed asylum seekers does not by that alone make them face a ‘real risk’ of torture or inhuman or degrading treatment.
On the 12th of April 2006, the court allowed the Home Secretary to appeal against a previous decision of October 15th 2005 that had placed a moratorium on all removals of failed asylum seekers to Harare. The decision of July 31st 2006 dismissed AA’s appeal on the basis that it failed to meet the requirements of the 1951 Refugee Convention and European Convention on Human Rights. It is the appeal by AA on this decision that the full bench of the Court of Appeal sat to deliver judgment following a reserved judgment a few weeks ago.
Put simply the legal team representing AA put forward four grounds of which they contended that the previous decision was flawed. They argued :
That the Tribunal failed to put sufficient weight on the oral evidence coming from witness 5 and 6, former Central Intelligence Operatives (CIO). These two former CIO operatives already granted refugee status in the United Kingdom worked at the Airport in Harare and they were largely involved in the handling of deported failed asylum seekers. They narrated the way they ill-treated failed asylum seekers when they arrived from the United Kingdom.
The second ground put forward by the AA legal team flowed from the first one. They argued that if the tribunal did at all consider the oral evidence of witness 5 and 6, then the standard they used was so high such that it exceeded the civil standard of proof, that of their evidence being more probably true than not. In simpler terms the evidence by the CIO operatives only required to be probable only to be believable. They argued that the tribunal raised this bar so high such that it amounted to the criminal standard of proof, that of beyond reasonable doubt.
The third ground argued that the tribunal had misdirected itself in law by requesting that AA show any evidence of any ill-treatment of previous returned failed asylum seekers. They argued that the tribunal departed from the real test required in such instances of ‘real risk’ in light of the evidence in place.
The forth ground followed from the third in that the tribunal drew an adverse inference in the absence by AA’s failure to provide evidence of ill-treatment of any failed asylum seekers.
Put simply, it is on the basis of the above that AA was decided on the 6th of March 2007. Basically the Court of Appeal saw no basis at law to consider the third and forth grounds of this appeal. They argued that they did not see any evidence of the alleged negative inferences by the tribunal; hence the Justices spent the better part of morning deliberating on ground number one.
After due consideration the Court of Appeal decided that it would not be possible to achieve finality in this matter. The issue of the oral evidence provided by the two former CIO operatives took centre stage. In particular the oral testimony by witness 5 to the effect that he still had contacts at Harare Airport who continually kept him up to date as the procedure used to deal with failed asylum returnees.
Witness 6’s evidence to the effect that the CIO as an organization had lost all professionalism due to corruption hence the danger to returnees required further consideration. It is for these reasons that the Court of Appeal decided to have this case returned to the same Tribunal that initial decided it for them to exhaust the oral evidence given by the two CIO Operatives. The Justices did not see it necessary to deal with ground number two.
What would be of interest to most Zimbabweans out there is the fact that the Justices raised the question that would be probable be answered by the reconsideration of the oral testimonies of the CIO operatives. Will a failed Asylum seeker forcibly returned to Zimbabwe face any ill-treatment at Harare Airport simply on the grounds that they claimed and failed to get political asylum? The Justices seem to doubt this. In fact they proceeded to allege that in the absence of any adverse political profile, military or criminal attributes a failed asylum seeker forcibly returned to Harare is unlikely to face ill-treatment. It is this fine balance that they hope the reconsideration of the oral evidence supplied by witness 5 and 6 will tip the balance to the latter.
Lloyd Msipa is a Lawyer and writes from London in the United Kingdom. He can be contacted at lmsipalaw@gmail.com.

A Third Force Now Necessary

2009-01-16T20:10:00.000-08:00

Opinion - Lloyd Msipa
Both factions of the MDC have run out of steam and a third political party is needed to envigorate the political process in Zimbabwe in the run up to the make-or-break 2008 Presidential and Parliamentary election.
The SADC extra ordinary summit in Dar salaam, Tanzania has come and gone and Zimbabweans are not any better off than before. All the expectations of possible censure of Harare have disappeared into oblivion. What we have is a promise of an undertaking by the South African President to mediate between the feuding parties in Zimbabwe.
There seems to be a lot of faith from both MDCs in this process of mediation judging by the media reports. Both camps seem to genuinely believe since President Mbeki has been given this task by the SADC heads, he is likely to carry it through.
The naivety of both MDC camps was aptly put into context by the NCA Chairman Dr Lovemore Madhuku who seems to be the only person who’s head seems to be screwed on right, when he stated in no uncertain terms that 'Thabo Mbeki’s negotiation initiative is not in good faith'.
Folly is sometimes defined as doing the same thing over and over again and expecting a different result. The Thabo Mbeki initiative or initiatives has been relied on in the past and, it seems, how soon we forget. The MDC initiative is now eight years old and it seems as the years go by its prospects of becoming the governing party are slowly drifting away.
The MDC, it seems, has failed to transform from its civic movement status that saw it draw its membership from academics, trade unionists, students, professionals and others into a properly constituted political party. What then is the way forward? Fellow Zimbabweans it seems we have put all our eggs in one basket.
We are ten months away from the next decisive election in Zimbabwe and under the current political scenario what are the prospects of an MDC victory? I put them at zero. I think it is time we came up with a more viable, militant political party that will meet Zanu(PF) at next year's polls and win.
Both MDCs are over reliant on the goodwill of President Thabo Mbeki and the International community. We currently have the Secretary Generals of both parties shuttling back and forth from South Africa all in the name of progress and negotiation.
What they do not seem to realise is that no prospects of any Constitutional reform exist in Zimbabwe without the masses. Both MDCs have failed to launch a people’s revolution within Zimbabwe its self. That is the source of Constitutional reform, not South Africa. Power comes from the people, not the International community. Prime Minister Tony Blair has come and gone, and of course he did not assist the MDCs in its ambition to replace Zanu (PF).
President Thabo Mbeki it appears is playing for time and before the MDCs know it the elections will be a few weeks away. It is not difficult to see that the two MDCs have run out of options. Why would they be bickering over a name for instance if they where serious political players, besides the speeches they give now are largely rehearsed and repetitive.
The factions have become elitist with both leaders spending their time abroad instead of being in Zaka, Gwanda, Murobedzi and other rural locations. It is common knowledge that 70 percent of Zimbabweans live there. We should read between the lines.
A new political party properly constituted at this juncture of Zimbabwean politics has the potential of causing an upset. This new political party should be prepared to take advantage of progressive former Zanu PF parliamentarians who are already knowledgeable about the machinations of the governing part(After all who among us can claim they were never affiliated to Zanu or Zapu at some point in their lives)
They will use this information, plan within this new political party the downfall of Zanu (PF) in the March 2008 poll. The MDC has failed to take advantage of this resource covertly or otherwise. We have currently a situation where civic groups agitating for a new Zimbabwe have no other political party to work with except the two factions of the MDC.
What is required is a wider choice of political organisations to jerk the MDC and Zanu PF off their comfort zones. Surely there are more potential players out there.
Lloyd Msipa is a Lawyer resident in the United Kingdom and can be contacted at lmsipalaw@googlemail.com.

Makoni: Zimbabwe's glass is now half full

2009-01-16T20:06:00.000-08:00

By Lloyd Msipa
THERE is an old Chinese proverb that says ‘May you live in interesting times’. That is true for Zimbabwe today.
The decision by the former finance minister Dr Simba Makoni to take the bull by the horns and run for presidency in Zimbabwe has introduced a new and exciting dimension to the Zimbabwean body politic.
It is not so much Makoni’s decision to stand up and be counted, but more the symbolism of his decision to challenge President Robert Mugabe.
Makoni is coming from the Zanu PF supreme decision-making body, the politburo. This should tell all and sundry that Mugabe is human after all and can be challenged. Before Makoni’s symbolic and brave decision, grown men in Zanu PF would literally quake in their boots at the very prospect of taking on Mugabe.
It is, therefore, exciting to know that Zimbabwe still has men who are not Mugabe’s wives - to quote the former MP for Sunningdale, Margaret Dongo.
Before Makoni’s announcement to run for President, most Zimbabweans were in a state of disillusionment following the collapse of the reunification talks of the two MDC factions -- one led by Morgan Tsvangirai and the other by Professor Arthur Mutambara.
It is a known fact that Zimbabweans are suffering. Zimbabwe has become a terrible place to live both for the rich and the poor. Those with money and those without face the same fate in that their money is either inaccessible in the banks or they do not have it. One’s ability to purchase basic commodities is curtailed either way.
The government line touted in every radio and television station in Zimbabwe placing the blame for Zimbabwe’s economic woes on the door of either Tony Blair (now Gordon Brown) or George Bush (Barak Obama or Hillary Clinton next year if the status quo is allowed to continue), is now wearing rather thin.
Zimbabwe has been on a downward spiral for several years, unabated. Zimbabweans, both at home and abroad, are sick and tired of being sick and tired. Attempts by countries like Libya to help have come to naught as our situation requires more that a symptom-solution. We need to overhaul the way we do politics.
Makoni’s press statement pretty much hit the nail on the head and summarised the real cause of the Zimbabwe crisis.
Zimbabwe’s problems go deeper than just ‘targeted sanctions’ touted by every government official who wants to remain on Mugabe’s good side. Zimbabwe has deep-rooted political problems emanating from political illegitimacy of Mugabe’s regime, and its delinquent economic policies.
No amount of ‘Sunrise’ projects by the Reserve Bank Governor, Gideon Gono, can solve the Zimbabwean problem. Mugabe has been the leader of Zimbabwe for 28 years and Zimbabwe is no closer to becoming a normal country than it was five years ago. Zimbabwe is now a nation of queues and shortages. Those born after 1980 and possibly now married and with children, only know a life of queues and shortages of basic commodities and probably believe it is normal to queue-up.
Zimbabwe did not get to where it is today through the efforts of Mugabe alone. We need to realise that government ministers have been complicit in the downfall of Zimbabwe. Complicit how, one might ask? By constantly failing to challenge the leadership in Zanu PF, they have led Mugabe to project himself as superhuman. This, by the way, is also beginning to manifest itself in the MDC, hence their unsuitability to govern as an entity.
The prospect of challenging Mugabe after serving in Zanu PF was unheard of before Makoni decided to step up to the plate. To most people in Zanu PF, Mugabe ishumba inotyisa and the very thought of telling him to step down and give other youthful leaders a chance to rule was something unheard of.
Whilst I have the greatest respect for Mugabe, his leadership has passed its “sell by date”. He is 83-years-old and will be turning 84 later this month.
It is in this light that Makoni’s decision to challenge the status quo is historic. Those that have been muttering their disapproval of Mugabe’s leadership in the comfort of their living rooms have now been presented with an opportunity to come out of hiding and back this initiative if Zimbabwe is to be salvaged.
It is quite obvious that both MDCs have run out of steam and neither seems to have a clue as to whether they are coming or going. The Makoni initiative has presented Zimbabweans with a Third Option of salvaging any residual dignity that remains of our nation.
The Makoni initiative will not, and should not, operate to exclude anybody whose mind and intentions are progressive. There are those that have been quick to dismiss the Makoni initiative as ill-timed. Some have even gone to the extent of questioning his “electability”.
I only have one question for them all. What is the alternative? Morgan Tsvangirai or President Mugabe? Hell no! Zimbabwe cannot afford another year of economic and political chaos. Right now, Makoni has presented a Third Option as the only solution to Zimbabwe’s lock jam. A personal sacrifice most will not have the guts to make.
Zimbabwe needs a creditable change. Time has shown and will continue to show that the solution to Zimbabwe’s problem will not come from Zanu PF alone or the MDC alone but from its sons and daughters coming from both the ruling party and the opposition. A Third Way one might say.
As some have rightfully pointed out: “One day in politics is a long time.” Therefore, a lot can happen and will happen between now and 29th of March 2008. Apathy is no longer an option for Zimbabweans. Vanhu vave kufa nenzara. Zimbabweans have been reduced to beggars and paupers in their own country and abroad.
In the Makoni initiative, our glass is now half full and not half empty, which is the difference between optimism and pessimism. Zimbabweans have been presented with an opportunity to change the political direction of the country and bring it back to the community of nations.
Do we fill the glass up or empty it? The choice is ours.

Diaspora community losing identity

2009-01-16T20:04:00.000-08:00

Diaspora community losing identityBy Lloyd MsipaThursday 20 December 2007

THE EU-Africa summit in Lisbon, Portugal has come and gone and it seems that the agenda set to discuss international trade, the impact of migration from third world countries and human rights, was largely sidelined and the highlight of the meeting became the presence of President Robert Mugabe and the conspicuous absence of Prime Minister Gordon Brown. Apart from the charade created by all this activity the issue that I found rather strange was that as Zimbabweans we have indeed or are in the process of shedding our identities in exchange for foreign ones. The irony is that the foreigners we emulate will do everything in their power to deport us from their countries while making sympathetic noises and acting as though ignoring Mugabe will restore order to Zimbabwe. Our actions and the way we behave are a far cry from those of the nationalists that brought independence to Zimbabwe. There are brothers and sisters among us who are behaving as if they will never set foot in Zimbabwe again. We have become agents of doom in as far as our country is concerned. It is one thing to campaign for a certain political dispensation and another to burn the entire house down. In fact, our actions have given foreign nationals the license to say whatever they want about our country. An example of this was Archbishop John Sentamu’s theatrics on BBC television. I was taken aback by the Archbishop of York’s behavior when he cut his collar in protest to what he called “the theft of the identities of Zimbabweans by the Zimbabwean president” amongst other allegations. Coming from a Ugandan who has given up his Ugandan citizenship for British citizenship I found this quite ironic. The Archbishop does not have the locus standi to make such remarks on behalf of Zimbabweans.

It is one thing to encourage Zimbabweans to take the path to self-determination and another to do it on their behalf.The problem we have regarding Zimbabwe is that, as a people in the Diaspora, we seem to have mortgaged the solutions to our problems to foreign nationals. We are prepared to listen to everybody else except ourselves. In fact I would go as far as to say that we have given some kind of de facto permission to foreign nationals to throw potshots at Zimbabwe without us considering their impact. At the rate we are going we stand to lose our identities faster than we think, with no hope of salvaging them in the end. What strikes me as even more ironic is the fact that it is the white farmers who despite being at the epicenter of the land revolution have largely refused to leave Zimbabwe. They insist on being recognized as Zimbabweans. They still believe the situation can be resolved for the betterment of all Zimbabweans. President Robert Mugabe is only one man and a mortal, at that, who will step down sooner or later. However the legacy that he has created will remain forever whether we like it or not. It is a legacy that is now part of our history. A history that tells us that whenever a revolution takes place it is bound to upset the status quo and Zimbabwe has not been an exception.

What is important now is for Zimbabwe to arouse its sons and daughters to take up the responsibility of reconstructing the country. We are the sons and daughters of Zimbabwe and the task of reconstruction of our country must start with us, not with foreigners. What we say about our country and our leaders in front of other nationals significantly damages our international standing such that as a people we have largely become unwelcome whether we are visitors or refugees wherever we travel abroad. I was re-watching the video of an interview with the late vice president Joshua Nkomo when he was in temporary exile in the UK and I was amazed at his refusal to paint events in Zimbabwe with a black brush and his insistence that he was only taking a break, but would be returning home to Zimbabwe shortly. I was amazed at how he put the country’s interests before his own and his refusal to become embittered. By contrast, we have given permission to foreign nationals to attack us and steal our identities over time.

In the United Kingdom we have our Zimbabwean brothers and sisters masquerading as South African nationals or Malawians. The truth is that we have thrown away our Zimbabwean identity. The fact that the summit in Lisbon failed to conjure up or renew previous agreements between Africa and Europe is ample evidence that Africa has come very far as a continent from a mere supplier of primary products or raw materials to the west and now has a desire to export to Europe finished secondary products. That is Africa today. It seems to me as Zimbabweans in the Diaspora we need do to realize this and think of how we can take our own place in that new situation.The fact that Africa has come out in support of Zimbabwe in these trying times should say something to us Africans living in western countries. Is it possible that we have lived for far too long away from home to a point that we have lost our sense of being Zimbabweans? Maybe it’s time for us to reconsider whether the so-called target sanctions are benefiting ordinary Zimbabweans in the country or whether there is need for new thinking on the issue. I think Zimbabweans in the Diaspora could play a pivotal role in this. From a different perspective, it is my belief that the United Kingdom, without going into detail is also equally to blame for the challenges Zimbabwe faces today. We need to acknowledge that the Zimbabwe/Britain stand off will not be resolved without Mugabe and the British sitting down to thrash out their differences.

The land legacy will remain with us long after Mugabe has gone. That legacy is ours and how we manage it will fundamentally affect what becomes of us as a nation in a post Mugabe era. My worry is that Zimbabweans in the Diaspora maybe in danger of working against the grain. We seem to be caught up in the politics of doom. As I said before, it is one thing to campaign for a particular political dispensation and another to burn the house down.(Lloyd Msipa is a lawyer resident in the United Kingdom. He can be contacted at lmsipalaw@googlemail.com)

Zimbabwe: The Rebirth of a 'New Zanu PF

2009-01-16T20:01:00.000-08:00

Zimbabwe: Zanu PF Presented With Many Possibilities

2009-01-16T19:53:00.000-08:00

Lloyd Msipa
28 April 2008

Opinion

WATCHING the excitement of the MDC-T and their claims of having 'won' the March 29th election go into overdrive, I could not resist the temptation to correct my erstwhile colleagues as they 'mouth' (sic) themselves towards their waterloo.
The Parliamentary results have all been confirmed and contrary to the hullabaloo the March 29th outcome has remained the same, save for a few minor adjustments of the figures for both parties up or down.

The allegations that Zanu PF was recounting the votes for the simple reason of 'stealing the election' have come to nought.
Where does this leave those who made these allegations?
In the March 29th elections Zanu PF had several opponents, including western capital, MDC-T and the Zambian government, the current chair of Sadc.
I will explain why.
Zanu PF, as the party in government, is traditionally known for looking after the livelihoods of its people. As the governing party it had, and still has, a duty towards the citizens of Zimbabwe.
Following the excess rains during the last season the crop harvest is known to have failed as it did in previous years due to drought. Citizens, especially those in the rural provinces, looked up to government -- as they have done over the years -- for assistance.
Government failed to secure enough maize from its traditional supplier and hence decided to buy from the Zambians.
It is common knowledge that orders where placed and paid to the Zambian government months before the elections were held and hence delivery was expected well before the elections.
It is not a secret that Zambian authorities deliberately held on to the maize deliveries and played politics with it. This politicking starved the Zimbabwean rural electorate to a point where they voted with empty stomachs. Coupled with the much publicised sanctions regime and economic strangulation tactics by the west, this situation got worse.
Voting patterns were skewed unfavourably against Zanu PF as many people felt the pain inflicted through economic strangulation tactics. Remember Tsvangirai's election motto, "Are you hungry and angry? Vote MDC."
It is important to point the fact that MDC-T did not get a landslide victory in Parliament despite these underhand dirty tactics by our erstwhile neighbour Zambia in collusion with the MDC-T.
Before the recount, Zanu PF won 97 seats under these circumstances, MDC-T won 99 seats, 10 of the seats where won by MDC-Mutambara faction with one going to Professor Jonathan Moyo -- an independent candidate.
Various possibilities
We await the outcome of the Presidential election results and it is unlikely that MDC-T's candidate Morgan Tsvangirai will win outright as claimed by the party's Secretary General, Tendai Biti -- that is 50 plus one percent.
All indicators point at two possible scenarios.
The first, either we get an outright win by the candidate of Zanu PF, President Robert Mugabe, (i.e. fifty plus one percent or more) as figures put together by looking at the Parliamentary election suggest that he secured the crucial popular vote.
The second scenario, which I may add, is a worst case scenario, both candidates will fail to garner more than fifty plus one percent, however with President Mugabe leading all the same.
This will set the scene for the much talked about 'run off' within twenty-one days as provided for by the Electoral Act.
Either way, there are so many possibilities for the way forward. In the likelihood of an outright victory for Zanu PF in the Presidential election, President Mugabe retains the reins of power and the country can move forward as he is able to appoint his government and Cabinet.
Many have suggested that the loss of control of Parliament by Zanu PF will render President Mugabe a 'lame duck' President, as he will not be able to pass legislation, without a majority in Parliament.
It is important to also remember that MDC-T does not command a majority in Parliament either. It is a 'hung parliament'.
Most counts by the media have tended to include as given that MDC-Mutambara and Professor Jonathan Moyo who together hold a total of eleven seats as part of the MDC-T faction or indeed will vote automatically with Tsvangirai in parliament.
This is a fallacy. Never mind the media hype. The politics of MDC- Mutambara and MDC-T are as different as is day is from night.
One has to simply look at their failure to unite in the first place, despite numerous attempts before the elections.
Professor Arthur Mutambara, according to my knowledge, espouses the politics of the liberation struggle and has been quoted in various fora stating categorically that he "stands on the shoulders of Nikita Mangena, Josiah Tongogara, Herbert Chitepo and other heroes of Zimbabwe."
It therefore makes MDC-Mutambara's party less likely to see eye to eye MDC-T even in parliament.
All indications from the MDC-Mutambara are that they are a sober alternative that will negotiate for the good of the country. In comparison Tendai Biti, the Secretary General of the MDC-T faction has 'rubbished' (SW Radio, Hot seat 26th April 2008) the role played by liberation war heroes, including President Mugabe.
With the ten seats held by MDC-Mutambara there are so many possibilities.
The Senate
Zanu PF holds the majority in the Senate chamber even before the Presidential appointees. Zanu PF has 30 seats, MDC-T has 24 seats and MDC-Mutambara holds the other 6.
The Senate chamber, courtesy of Amendment No 18, has a total of 93 seats, 60 elected from the country's ten provinces. They are joined by 10 governors appointed directly by the President and 16 service chiefs and five senators also appointed by the President.
There are many possibilities.
Professor Arthur Mutambara and Professor Welshman Ncube lost in their constituencies in the parliamentary elections. In MDC-Mutambara, we have a party that has its leadership sitting outside parliament. They have ten Members of Parliament they can potentially use to horse trade their way into public office, the Senate perhaps.
In politics there are no permanent friends, simply permanent interests.
A Presidential run off
Chances of the MDC-T winning a run off are slim. They have proved to be power hungry and have made many tactical errors in the handling of results, and have made some questionable alliances in the region and on the continent.
Many people now doubt their altruism and their concern for Zimbabwean people. They have also proved not to be a violence-free bunch.
Government of National Unity
Riding on international sympathy the leader of MDC-T, Morgan Tsvangirai is on record as refusing a government of 'national unity' preferring to form what he calls 'an all inclusive' government, which excludes President Mugabe.
According to Tendai Biti, "The old man must go kwaZvimba and retire honourably."
Retire he will, but not before he has assured Zimbabweans of continuity by way of leadership renewal in Zanu PF and Chimurenga III.
Any attempts to stampede President Mugabe from power will have devastating implications for the country, especially in light of the over zealousness exhibited by our colleagues in the MDC-T faction and the potential threat posed by Right Wing elements currently based in South Africa.

Zimbabwean people voted on the 29th of March 2008 and President Mugabe has, by and large, respected the people's will by accepting the election results in the Parliamentary election and, I believe, he will accept the outcome of the Presidential election too.
It is therefore incumbent upon MDC-T faction to accept the outcome of the Presidential election whatever it may be. In the likely event of victory by President Mugabe in this election, the people of Zimbabwe will themselves have formed a government of national unity without the consent of the MDC-Tsvangirai party.
Lloyd Msipa Lawyer based in London, England.

President Barak Obama has moral high ground to fix Africa - Lloyd Msipa

2009-01-16T19:47:00.000-08:00

OPINION - The historic ascendency of the first African-American to the Presidency of the most powerful country in the world is not only commendable but presents a new era in the relations between Africa and the west. It is a truism that America leads all western countries when it comes to having a position in terms of their ideology to the politics of any African country, Zimbabwe included despite the widely held believe that Britain holds sway.
The current impasse between the two major political parties, Zanu PF and the MDC in the country has resulted in immense suffering for the people of Zimbabwe.
As I write talks are currently taking place with a view of arriving at some sought of power sharing arrangement.
The fact that the Americans can go to the polls and have the results begin to trickle in a few hours after the closure of the polls is to be admired. At no time did we hear of violence between the Democrats and the Republicans. The loosing candidate, in this instance Senator John McCain and his team were quick to honourable concede defeat after failing to clinch the state of Ohio and the subsequent realisation of what it meant to loose. We as Zimbabweans could draw a few lessons from this. Our elections despite being marred in violence, bodies where littered everywhere such that up to this day decomposing bodies are still turning up. What does the Obama victory lesson hold for us? Firstly it made me take a good look at myself, look at the leaders of my country and the way they have been conducting themselves at the expense of the people. Essentially, leaders should be servants of the people and should refuse any attempt to be idolised by their people. But because the leaders in Zimbabwe accept this, they in turn galvanise the temporary powers bestowed on them into a permanent state of affairs, hence the dictatorship. Any attempt to hold credible elections is self defeating in such an environment. Any Zimbabwean worth their salt should be able to look inwardly, galvanise enough strength to be self critical. In this respect we should be bold enough to point out whatever is wrong with the establishment. The outcome of the American elections has brought about a new era of thinking. Barak Obama the son of Kenyan immigrant “had the audacity to hope” and in that hope he has became the President of the most powerful nation on earth. This brings our own Zimbabwean situation into perspective. Fellow Zimbabweans, our beloved President Robert Mugabe has seen off five American Presidents, Presidents Jimmy Carter, Ronald Reagan, George W Bush (Senior), Bill Clinton and now President George W Bush.(Junior)
Closer home our President Robert Mugabe has seen off Presidents Pieter W Botha, Frederick W De Clerk, Nelson Mandela and more recently President Thabo Mbeki, he himself the architecture of the current talks of power sharing. I will not mention leadership changes in Namibia and Mozambique and other African countries. This pattern of overstaying in office is widespread in Africa and requires fixing. It is my humble contention that Africa, (like the middle- east with regard to previous American Presidents) will be the Obama playground.
At home, it is time as Zimbabweans we claimed and occupied the moral high ground and be more critical of ourselves. If we do not sought out our own issues somebody else will on their own terms. We need change in Zimbabwe. Do not get me wrong I am not advocating for regime change here, nor am I saying Tsvangirayi should take over. What I am saying is that we need to get to a point where leadership renewal becomes part of our culture. We need to get to a place where we are comfortable talking about limiting the terms of our leaders. Complacency is a characteristic that is human and therefore even the President of Zimbabwe can and will become complacent with the people’s project over time. The recent Barak Obama victory in America is testimony of the complacency in the Bush administration.
The African argument of neo colonialism and imperialistic agendas have now run their course and hence the need to fix the African agenda. The election of Senator Barak Obama as President of America gives those who in our continent wish to hold on to power without the people’s mandate something to worry about. In the past, any attempt by America or indeed the British to interfere in the domestic affairs of Africans was met with arguments of neo-colonialism and imperialistic agendas. Now that we a ‘son of the soil’ leading the incoming administration in America it is my belief he has the ‘locus standi’ to take on any wayward African leader(s) and countries without worrying about the ‘imperialism’ agenda argument and so on. He can comfortable take the moral high ground and claim his actions are based on him being the ‘son of the soil’. The President Obama wars may just as well be in Africa as he endeavours to fix Africa. Lloyd Msipa writes from London, England. He can be contacted at lmsipalaw@googlemail.com

Negativity grips Zimbabweans in the diaspora

2009-01-16T19:42:00.000-08:00

IN ONE of the many famous sayings by Robert Green Ingersoll, the American statesman and orator said, “Tolerance is giving to every other human being every right that you claim for yourself.”

Since the advent of the modest success in the Parliamentary elections by the MDC-T, we have witnessed a change in how Zimbabweans supporting the Tsvangirai grouping behave towards their fellow Zimbabweans that hold a different opinion when it comes to the politics of Zimbabwe.

There has been a sudden surge of personal attacks of those that have supported and still support Zanu PF especially amongst, but not limited to Zimbabweans in the Diaspora.

Immediately after the announcement of the Parliamentary results in Zimbabwe, we saw the gruesome and embarrassing invasion of the Zimbabwean Embassy in London by MDC-T hooligans who proceeded to shout profanities to embassy staff, whilst destroying property at the same time. I remember I walked into the embassy and the President’s portrait had been vandalised by those that where claiming their party (MDC-T) had won and therefore the staff at the embassy “were now fired.”

Surely, if this the kind of behaviour we should expect in the event of any MDC-T government, it seems Zimbabweans holding alternative political views may just as well stay away from Zimbabwe.

We have so much negative energy circulating amongst Zimbabweans in the Diaspora such that we are in danger of missing the bigger picture.

Zimbabweans in the Diaspora have resorted to using the internet to slander fellow Zimbabweans who hold alternative political views to the detriment of any meaningful progress we should be making in seeking solutions to the economic problems caused by western interference back home.

Tolerance is non-existent amongst Zimbabweans that support MDC-T to a point that they are seen heaping abuse on those that have taken a decision to express different opinions with regard to politics in Zimbabwe. It is now a crime of sorts to support or voice one’s consensus with the current government policies and the future of Zimbabwe.

The bulk of Zimbabwean news websites have taken it upon themselves to campaign for the MDC-T party without understanding the policies they stand for, if any at all.

We have ‘news websites,’ or campaign organisations masquerading as such, that have taken it upon themselves to personally attack those that have dared to be different, let alone express a different political point of view with regard to Zimbabwean politics.

One shudders to think what will happen should by some miracle Morgan Tsvangirai happens to form the next government. There is zero tolerance for divergent political views on the world wide world in as far as Zimbabwe is concerned.

The web is meant to be a platform for Zimbabweans now scattered all over the globe to meet and debate issues affecting our country without stooping so low as to personally attack one another in our personal capacity.

Let the web be a platform for debate of ideas and not a place to off load ones personal frustrations to other fellow Zimbabweans.

Of late the editor of the Zimbabwe Guardian was paraded on another Zimbabwean ‘news website’ and slandered in his personal capacity for simple running a news website that looks at Zimbabwean news as objectively as possible without following the usual run in the mill views.

This behaviour exhibits the low tolerance and negative energy that our generation has for one another and this seed, if not checked, will grow and eventually manifest itself in national politics in the future.

I believe this generation will play a role in leading Zimbabwe tomorrow.

Zimbabwe as a nation is a product of divergent political views hence the proliferation of different political parties since the sixties ranging from the ANC, UANC, Zanu (Ndonga), PF Zapu, UANC, Zanu PF and others. These organisations where run by people who obviously had different political outlooks, but guess what they respected their differences of opinion. This respect exhibited then has made it possible for them to work together today. If they had any issues amongst themselves, and I am sure they had, they must have thrashed out their differences like man and woman of stature.

In our current generation of Zimbabweans we have ‘cowards’ that are not man or women enough to state who they are, but instead hide in internet chatrooms and fire cheap shots at those that dare make their positions clear when it comes to national politics.

This is tyranny at its worst.

It is time we grew up as a people and learn to co-exist with our differences. Using false names to attack others is not only cheap politicking but highly immature and cowardly. Let’s learn to be progressive as a people.

Lloyd Msipa
lmsipalaw@googlemail.com

Makoni and Mutambara represent the way forward in Zimbabwe politics

2009-01-16T19:39:00.000-08:00

Following what might seem to be a failure by those seeking to form the next government to maturely iron out their differences, it seems Zimbabweans are left with very little choice but to seek a third way. This third way must avoid the pitfalls of those that made up the first and second ways. To carry out the mission of the third way we need a third force.
The force must be an amalgamation of new political thinking composed of progressive Zimbabweans in the Diaspora, forward looking pressure groups, civil society and reformed politicians from across the political divide, hence the relevance of the Makoni and Mutambara initiative.
This third way must reject the personalization of political parties and must demand that all politics be premised on national interest, rather than the politics of plunder and domination. The third way must seek the institutionalization of political parties in the true sense of the word. This way, political parties may compete on the political field, hence allowing the party with the best developmental policies to prevail.
The third way must stand for zero tolerance on matters of corruption, no matter who the perpetrator is. There should be no sacred cows and all judicial processes should be premised on true justice, fairness and equity.
In the words of Mahatma Ghandi, “the roots of violence and underdevelopment are a result of wealth without work, pleasure without conscience, Knowledge without character, commerce without morality, science without humanity, worship without sacrifice and politics without principles”
For us to speak of a third way there must have been a first and second way. In order to succeed in the third way we must seek to understand the shortcomings of the first and second ways.
In order to understand these shortcomings we must look at them in the context of Mahatma Ghandi’s principles.
First Way actorsThe first way in our history is represented by the Vanguard parties. The first way elite are largely a product of the elite colonial education. Education that was largely designed to create servants that would carry out the will of the colonisers. Many believe in the superiority of the colonisers and will generally demonstrate a clear dislike against even their best brains.
However, this group is synonymous with their love for anything European. Many in this class are indeed white man in a black man’s skin. For most of these first way politicians, politics is about power and the fact that they hold it. Power allows them to maintain an intricate client-patron system composed of similar interests across the whole country.
They publicly declare their right to rule arbitrarily as a god given right having brought independence to Zimbabwe. The public wealth of the country eventually ends up in private hands. The first way is an incestuous class of economic and political interests whose priority is their well being and not nation-building.
The first way in Zimbabwe does things with impunity. It perpetuates corruption and when others question them, it circles to protect their own. The first way is selfish elite whose intent is to stay in power for the gains that power brings. Aggrandizement, economic and political domination of others seems to be the norm.
The first way talk is of the glorious years of yester year and how things would have been different if they had not made the sacrifices made. Some talk of their detention by the colonial regimes. We need to respect and acknowledge their contributions, but not worship them. The first way elite cannot understand the agitation for change, many think all is well as long as they are in power. The first way resists change for fear of loss of power, hence the refusal of a new constitution and other forms of relief.
Second Way actorsThose of the second way, the current MDC opposition are themselves envious of why they themselves are not in power. They fight for change. In Shona- "Chinja Maitiro, Maitiro Chinja". In Ndebele - "Guqula Izenzo, Izenzo Guqula". They believe they fight to bring fundamental change, but all they want is a different set of actors-themselves.
They refuse work with other progressives in bringing about a new dispensation. Simply put, second way elites are opposed to those in power because they are out of power. We have witnessed this too often that second way elites condemn corruption and aver to fight to the death. Their rhetoric appeal to the people is witnessed by the large numbers at their rallies. Once in power, second way elites always evolve into first way elites. The MMD next door in Zambia came to power by a landslide majority following the promises made by the Chiluba movement. Today Zambia is prosecuting the same leaders for corruption.
The politics we play should address issues of education, security, health, prosperity, jobs, and national well being etc… for our people and must be based on ideas for taking Zimbabwe forward. Politicians should be elected based on solutions they present to deal with issues that affect the people. Zimbabweans should reject individuals bent on acquiring power to serve their self-interest; such individuals talk languages with words like: “The Makoni initiative is new wine in old bottles’. This should get our warning bells going coming from a presidential aspirant.
Third Way politics and the third forceThe third way must be based on reason and not passion, a structured approach to national challenges. Third way advocates should reject power for power’s sake. Instead politicians and political parties should be asked to demonstrate what they will do once in government. The third way should ask politicians to back their promises with evidence that whatever they are proposing they will deliver. Promises that “we will lead from the front” where broken. It does not take a much to figure out what the trend will be should the second way elite make it to government.
The third way celebrates diversity and rejects tribalism, nepotism and cronyism. It is based on exploiting the strength that comes with the diversity of our people and natural resources for the benefit of all Zimbabweans.
The task ahead is onerous but not insurmountable, we can do it. It is simple, the Makoni and Mutambara initiative represents a third force which if guided by a third way of thinking and focuses on making Zimbabwe a strong country, a key player on the international stage, a country of justice over passion we will prevail.
Third way advocates are called upon to fan out in all directions, register for elections and check the electoral role, participate in the political process from grassroots to national level. Our objective must be to elect as many third way players as possible come 29th March 2008.
*Lloyd Msipa is a lawyer resident in the United Kingdom. He can be contacted at lmsipalaw@googlemail.com

Obstacles to Mugabe's prosecution

2009-01-16T18:51:00.000-08:00

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.