Mugabe's triumph - and Zimbabwe's despair

Will adopting the new protocol be no more than a ritual sacrifice of the SADC Tribunal for the pleasure of the person who instigated its demise?

The Southern African Development Community (SADC) summit starting on Sunday at Victoria Falls will be a triumph for Zimbabwean President Robert Mugabe. And yet, another bitter pill for most of his long-suffering people to swallow.

After being in SADC’s high-care ward for so long, Mugabe will return, with an official clean bill of health from the organisation, and no doubt huge presidential acclaim, to host his peers and to take its chair for the year to come.

Meanwhile, Zimbabwe’s economy continues the plunge that really accelerated after Mugabe and his Zanu-PF party took back full control of the country, and ended the coalition government with the two Movement for Democratic Change formations in the elections of July 2013.

The coalition government in place since 2009 had restored some investor confidence in the country, but most of that has now dissipated. It is likely that Mugabe will enjoy the extra pleasure at this summit of having the SADC Tribunal delivered to him, like John the Baptist’s head, on a silver platter. What more could the nonagenarian possibly want?

It was the SADC Tribunal which, starting in 2007, delivered several judgments which ruled that Mugabe’s government could not evict Mike Campbell and other white farmers from their land, as the evictions amounted to discrimination against whites under Zimbabwe’s constitution.

Zimbabwe simply ignored the rulings and pulled out of the Tribunal in protest

Zimbabwe, of course, simply ignored the rulings and pulled out of the Tribunal in protest, challenging its legitimacy. In one of its most egregious contradictions of its own principles, the 2010 SADC summit ordered a review of the functions and terms of reference of the Tribunal, effectively suspending its operations.

In 2012, the SADC summit resolved to limit the jurisdiction of the Tribunal to disputes between member states, barring individuals and companies from bringing disputes against their national governments to it. This decision in effect neutered the Tribunal as an upholder of individual legal rights, and also made it almost superfluous since no member states had brought cases before it.

However, the summit also instructed ministers of justice and attorneys-general of the member states to negotiate a new protocol for the Tribunal. It is this draft protocol that will be presented to the heads of state and government of SADC at the summit next week, for them to adopt or otherwise.

Though rule-of-law activists have failed to get their hands on the protocol, they believe it will merely formalise the demise of the Tribunal, stripping it of its real powers to hear individual complaints against national governments, and leaving it with the power to hear disputes between member states and between the SADC Secretariat and its employees.

In other words, it will become in effect an internal disciplinary committee, since member states seem to have no use for it to adjudicate their disputes – such as the serious one between Malawi and Tanzania over where to draw their national boundary in Lake Malawi.

This decision in effect neutered the Tribunal as an upholder of individual legal rights

And so the adoption of the protocol at the Victoria Falls summit seems likely to be no more than a sort of ritual sacrifice of the Tribunal for the pleasure of the person who instigated its demise. And SADC will then move onto other issues. Or not, as the case may be.

One may be certain that, with Mugabe at the helm, it will not address the growing crisis of governance in Swaziland, as Mugabe and King Mswati are birds of an autocratic feather.

His undemocratic governance is also costing his country economically. In June, Swaziland lost its valuable duty-free access to the lucrative United States (US) market through the African Growth and Opportunity Act (AGOA), because of its abuse of workers and general political rights. That was a possibly fatal blow to its textile industry.

Yet the response of Mswati’s government has been to step up the persecution of internal critics, which led to its expulsion from AGOA in the first place. Last week Prime Minister Barnabas Dlamini instructed members of parliament and chiefs to ‘throttle’ Vincent Ncongwane, Secretary-General of the Trade Union Congress of Swaziland (TUCOSWA) and Sipho Gumedze, a member of Lawyers for Human Rights, because they had embarrassed Mswati by demonstrating in Washington for freedom of expression while he was there attending President Barack Obama’s US-Africa Leaders’ Summit.

Ncongwane and Gumedze were protesting the harsh two-year prison sentences (without the option of fines) handed down to Bheki Makhubu, editor of The Nation, and Thulani Maseko, a human rights lawyer, for criticising the shocking misconduct of the Chief Justice.

At a seminar organised by the African Centre for Justice Innovation and Freedom House in Johannesburg this week to discuss the threats against Ncongwane and Gumedze, Bongani Masuku, International Relations Secretary of the Congress of South African Trade Unions (COSATU) advised Swazi activists to take up their case with SADC when Lesotho takes the chair after Zimbabwe. He said Lesotho – a constitutional monarchy – might be more sympathetic to their grievances against the absolutist Mswati than Zimbabwe would be.

SADC officials point out, though, that Lesotho is not in fact due to take the overall SADC chair after Zimbabwe, though it is supposed to take the chair of SADC’s Organ for Politics, Defence and Security from Namibia at this weekend’s summit. But that succession is now doubtful, because Lesotho itself is likely to be formally placed on the agenda of the Organ. This would create a possible conflict of interest if it were to take the chair.

Prime Minister Tom Thabane’s ruling three-party coalition is falling apart and the resulting political turbulence has also infected the security agencies, pitting the army against the police, with potentially serious implications for stability. Namibian President Hifikepunye Pohamba – as chair of the SADC Organ – has already dipped his toe into the waters. South African officials are suggesting, though, that he is playing Pontius Pilate by insisting that the Basotho should sort out their own problems.

That seems to have been what prompted Lesotho’s King Letsie to buttonhole President Jacob Zuma at the last African Union summit to ask for his intervention. Zuma visited Maseru last month to talk to all the relevant leaders and reported that in fact they needed – and wanted – an outside facilitator to resolve their dispute.

That facilitator – probably a sitting president – could be appointed at the Victoria Falls summit. Whether Zuma will want to stay on the case after his bruising experience as SADC’s Zimbabwe facilitator, remains to be seen.

In any case, the SADC peace-making caravan will move on to a fresh dispute, leaving the crumbling economy of Zimbabwe in its wake.

Peter Fabricius, Foreign Editor, Independent Newspapers, South Africa

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