National Healing and Reconciliation in Zimbabwe: Challenges and Opportunities.

The Institute for Justice and Reconciliation in South Africa has published a monograph by a Zimbabwean, Mrs Pamela Machakanja of the Institute of Peace, Leadership and Governance at Africa University titled,"National Healing and Reconciliation in Zimbabwe: Challenges and Opportunities". The paper highlights the importance of instituting transitional justice mechanisms including truth seeking and truth telling if Zimbabwe is to close a sad chapter in its history and open a new chapter that instills durable and sustainable peace for all Zimbabweans. Indeed there cannot be durable peace in Zimbabwe unless the historical prejudices and imbalances are remedied as the victims will always seek revenge at personal level thus making it difficult to have a stable and peaceful nation. The paper is worth reading for those in the field of peace, justice and human rights and can be accessed here .

High Court Judge Hungwe's Life in Danger

Honourable Justice Charles Hungwe is now living in fear for his dear life after an attempt on his life last Saturday, 31 October 2009. Available information points out that his vehicle was crushed into by unknown persons who were driving an Isuzu Double cab without number plates as his car was just coming out of his residential house. Fourtunately or unfortunately the car was being driven by his son and the judge was not in the car when the incident occured. It is reported that the assailants sped off soon after the incident raising the suspicion that this could be a plot to eliminate Judge Hungwe who has in the past been perceived a staunch apologist and sympathiser of the Movement for Democratic Change. It is interesting to note that Judge Hungwe is one of the few Judges who have exuded the charismatic qualities and interpretive role of the proper fucntion of the judiciary in a democracy. He is one of the few judges in Zimbabwe who have rendered progressive judgements upholding the rule of law and human rights respect in many instances and cases involving accused MDC officials and supporters. Judge Hungwe recently granted bail to the MDC T Deputy Minister of Agriculture, Roy Bennet accused of bantitry and plotting an insurgency in the country. He further barred the State to appeal against his decision. Observers point out that this may be one of the instances as to why there is an attempt on his life considering the high political interests surrounding the case as shown by the fact that the Attorney General himself and the senior staff in his office personally went to Mutare Provincial Court to oppose the bail appplication on the ground that this was a high profile case which required the AG himself to be present so as to bring finality to the case. Why such an interest, one can wonder? It is unfortunate that one of the few progressive and independent judges is being targeted and this is very inimical to the guarantees of the independence of judges in the country and also to the proper administration of justice as judges will be forced to be compliant with the dictates of the most powerful figures in society.

DEMOCRATISATION AND CONSTITUTIONALISM THROUGH CONSTITUTION-MAKING PROCESS IN ZIMBABWE

The cries and aspirations of Zimbabweans at this juncture is to see the country becoming more and more democratic, that is, one in which the sovereign power resides in and exercised by the whole body of free citizens directly or indirectly through a system of representation. In order to achieve this, there has to be a conducive legal and institutional framework, that allows, ensures and guarantees that there is true representation, regular free and fair elections, freedom of expression both before and after, freedom of the people to participate in the governing process, rule of law, respect for human security and human rights, transparency of government, accountability, separation of powers and political tolerance. These essential elements have to be provided for and the Constitution is the rightful place to have these properly entrenched. Therefore, a democratic Constitution is the one that truly enshrines these principles and the extent and content of that particular Constitution should emanate from the people themselves.

We leave in an era of Constitution-making. It must be underscored that writing a Constitution is part of the many peace processes as history from other jurisdictions at varying historical episodes clearly demonstrates. New nations and radically new regimes that seek democratic credentials make writing a Constitution a priority. It is, therefore, generally agreed nowadays that the process of making a Constitution is as important as the final document itself. Put differently, it can be said that any Constitution is as good or as bad as the process through which it is made. The Zimbabwean High Court Judge, Ben Hlatswayo succinctly summarized the point thus, “modern ideas on Constitution making place emphasis on popular participation and widespread consultation in order to produce a Constitution that will endure and which the people feel is truly their own” The idea of political leaders bringing a Constitution to the people has been thrown into the dustbin of history. Thus the days of leaders evoking the image of the biblical Moses coming down from the mountain with the Ten Commandments carved in the stone for the benefit of the children of Israel is long gone! Today, people do not want Constitutions privately negotiated by “people’s leaders” and imposed on the rest of society. People want to participate actively in the making of their own supreme law. As part of entrenching peace democracy and human security the Zimbabwean government, therefore, needs to take this issue seriously as the Constitution making process is a basis for a consensus in nation building.

It must be noted that genuine public participation requires social inclusion, personal security and freedom of speech and assembly. A strong civil society, civic education and good channels of communication between all levels of society facilitate this process. Only considerable commitment of time and resources will make genuine public participation possible. The Constitution of new constitutionalism is a conversation conducted by all concerned, open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable. Indeed, it is in such an environment of conversational constitutionalism that the issue of a right to participate in making a Constitution arose.

A democratic Constitution is no longer simply one that establishes democratic governance! It is also a Constitution that is made in a democratic process. There is thus a moral claim to participation according to the norms of democracy. A claim of necessity for participation is based on the belief that without the general sense of “ownership” that comes from sharing authorship, today’s public will not understand, respect, support and live within the constraints of constitutional government. In other words, participatory Constitution making has become a criterion of a legitimate process and therefore the norms of democratic procedure, transparency and accountability that are applied to daily political decision making are now also demanded for constitutional deliberation.

A right to public participation in Constitution making creates a stronger ground on which to stand. Major international human rights instruments and national Constitutions do grant a general right to democratic participation, although one that is lacking legal teeth and effective enforcement. The right to participate in Constitution making might logically be derived from the general meaning of “democratic participation” in the UN Declaration on Human Rights of 1948 in Article 21 and especially Article 25 of the International Covenant on Civil and Political Rights. Article 25 establishes a right to participate in public affairs, to vote and to have access to public service. Regional and transnational declarations such as the African Charter on Human and Peoples Rights (1981, Article 13.1), the Asian Charter (1998, Article 5.2) and the Inter-American Democratic Charter (2001) all declare a general right to political participation. This therefore underscores the point that it is now universally accepted that a democratic Constitution-making process is critical to the strength, acceptability and legitimacy of the final product.

As Zimbabwe has just embarked on journey of negotiating and promulgating the supreme law of the land it is imperative that the inclusive government take cognizant of the right of the people to decide what they really want. The SADC Guidelines on Constitutionalism and Constitution Making of 2005 encapsulates the point that the process must be people driven. It is the duty of the incumbent government to facilitate the process without seeking to control and dominate the exercise. The composition and functioning of the Constitution making bodies should aim at maximum inclusivity and the broadest informed participation.

Public participation in the whole exercise must be facilitated by concerted efforts at raising public awareness (just as what obtains in pre-election times), encouraging and assisting the public to have its views registered and fully engaging the public in an open and free atmosphere and also taking into account the needs of other special interests groups like children and those with disabilities. Experts can assist by ensuring that the views of the public are faithfully reflected during the whole process while jealously guarding against real temptation of imposing their own views under the guise of “technical input”.

It must not be underplayed that the task of writing a Constitution is a mammoth, arduous and complex task. But it is a necessary and important process in achieving the dreams of Uhuru. This is a golden and classic opportunity for the Zimbabwean society, both local and Diaspora, to assert their democratic right as part of peace building and democratization. Any attempts by the politicians of the day to hijack the process must be jealously guarded against.

Innocent Mawire is a Human Rights Lawyer and writes for Peace and Justice Support Forum. He also co-authors International Law Observer (www.internationallawobserver.eu). He can be contacted at i_mawire@yahoo.com

Building True, Durable and Sustainable Peace in Zimbabwe.

The challenge confronting Zimbabwe today since the signing of the Global Political Agreement that gave birth to the inclusive government and the political transitional discourse obtaining in the country today is how to extricate the nation from a past that continues to weigh down and haunt the entire population. Many organisations and individuals in this country have made a call that to leave the past alone is the best possible panacea and the only way to avoid a delicate process of transition or to avoid a reversion to the horrendous past that was characterised by extensive repression and gross violations of human rights and humanitarian law.

As the political transition is unfolding in the country after a decade period of violence, our society is now confronted with a moribund legacy of abuse, which requires concerted efforts of all the stakeholders to map the best way to democratise the country and build sustainable peace. Questions are being raised with regards how best our nation can be healed. It is our view that society has to come together and deliberate on these issues. In order to promote justice, peace and reconciliation, government officials and non-governmental advocates alike should consider both judicial and non-judicial responses to violations of international human rights law and international humanitarian law that occurred during the preceding years. Such responses, inter alia, include prosecuting individual perpetrators, offering reparations to victims of state sponsored violence, establishing truth seeking initiatives about past abuses, reforming institutions like the police and the courts and also lustration, that is, removing perpetrators from positions of power.

It cannot be assailed that transitional justice is an essential ingredient for any society emerging from an abusive and repressive past tainted with a horrific and brutal human rights record to a democratic country imbued with principles that guarantee human rights respect. Surely victims and survivors need to know the truth as a means of bringing closure to their suffering.

The Oxford-based historian, Timothy Garton Ash, once reminded us that while victims are cursed by a good memory, perpetrators are blessed by an ability to forget. Thus the failure by the government to acknowledge the horrendous human rights violations it visited upon the Ndebele ethnic group in the early 1980s has to date increased the tensions and rift in our society. To date, many people in Matebeleland and Midlands provinces still lament that the then ZANU PF government has never done justice to them. Justice demands that perpetrators be brought to account for their heinous misdeeds in order to bring a measure of closure on the past and to be a kind deterrent that is needed to avoid the repeat of such sad chapters in the history of our country. Prosecution of those who violate people’s rights with impunity is a minimum ingredient for the rule of law and an essential requirement for the protection of human rights.

It is important that our country has, at this juncture, been given the opportunity to lay a firm and durable foundation for building sustainable peace and a culture of human rights respect. The transitional period has paved the way for the Constitution-making process- the much-venerated issue anticipated by the wide section of the society since independence from the colonial yoke. It must be underlined that the Constitution to be born out of this process must provide a historic bridge between the past of a deeply divided society, characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all Zimbabweans regardless of political affiliation. South Africa is a classic example of a country that used a similar golden opportunity to instigate a smooth transition from the apartheid regime to a constitutional democracy that is obtaining today in that country. As a logical corollary, the lessons learnt from South Africa must also guide and inform us in our Constitution-making process but also taking into account our own national values and ethos.

The pursuit of national unity, the well being of all Zimbabweans and durable peace requires reconciliation amongst the people and reconstruction of society, which hitherto, has been damaged by the repressive and oppressive environment in the preceding years. Bust such reconciliation can only be attained, not by sweeping the past atrocious history under the carpet as mere aberration but by pursuing various profound processes of transitional justice mechanisms.

Undeniably, the adoption of a people driven constitution (the content of which must be agreed upon by all citizens) lays the secure foundation for all the people of Zimbabwe to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles and a legacy of hatred, fear, guilt and revenge. These challenges should now be addressed on the basis that there is need for understanding but not for vengeance, a need for reparation and not for retaliation, a need for ubuntu and not for tyrannical victimisation.

This invariably is a delicate process which essentially means that the Constitution as a supreme national document founded on the will and aspirations of Zimbabweans seeking to close a sad chapter and opening a new chapter in the history of our nation, must be imbued with the values, principles and aspirations that identify with Zimbabweans in accordance with international human rights norms. It is against this background then that Zimbabweans can enjoy durable peace established by the rule of law and supported by strong accountability systems.

Each and every one of us, individually and institutionally, has a responsibility therefore to establish processes for consensus building of our nation and to facilitate transitional justice and reconciliation in our nation that has been (and still is) extremely polarised and antagonised on political and ethnic lines to the detriment of international human rights norms and standards. In these we firmly believe that a prosperous and democratic Zimbabwe, where all people across the political divide and from different ethnic backgrounds can live peacefully and in harmony with each other, can be realised if the current transitional process is handled competently.

Innocent Mawire is the founding Director for the Peace and Justice Support Forum (Zimbabwe)

Court Orders The Rearrest of Zimbabwe Peace Project Director

The political seduction of state institutions in Zimbabwe has yet again manifested itself today when the Zimbabwean High Court has ordered the rearrest of Jestina Mukoko, a human rights defender and peace activist, and the other MDC activists who have recently been granted bail for the alleged crime of planning acts of terrorism against the Mugabe administration. The Zimbabwe Peace Project Director, who was released on medical conditions had come for routine remand only to be remanded in custody without reasons being proferred by the judge. Civil Society organisation in Zimbabwe will meet later today to discuss the way forward with regards the contemptous disregard and flagrant violation of human rights against the spirit and tenor of the Global Political Agreement signed by Tsvangirai, Mugabe and Mutambara late last year.

This is a clear indication of the fact that the ZANU PF administration is not interested and has never been interested in the inclusive government which, if it is abided by, will result in them losing all the levers of the political power they were enjoying before the inclusive government regime. This is an attempt to frustrate the opposition MDC-T for them to withdraw from the fragile and loose power-sharing arrangement brokered by the then South African President, Thabo Mbeki.

The arrest of human rights defenders is a common phenomenon in the country used by the Mugabe regime to silence its critics. It is unfortunate that the judiciary, which traditionally has to dispense and be an arbiter of justice has been politicised and become synonymous with the tyrrant and ruthless regime which has done much to pauperise its own citizens under the guise of guarding against neo-colonialism but at the same time arrogating to itself all the wealth and national resources at the expense of "we the people!" The world needs to act now!!!

Mugabe At It Again!

Mugabe's flagrant disregard and violation of the Global Political Agreement continues unstopped which goes to indicate that the GPA was just a marriage of convenience which the old man wanted to use to galvanise his legitimacy which was in doubt without necessarily recognising the role of the MDC as a partner in government administration. First it started with the appointment of Permanent Secretaries and the MDC raised its concerns which were shortlived but nothing changed.

Now the available evidence is that the old man is ready to appoint four judges, two Deputy Attorney Generals and four Senior Presidents of the Labour Court and Administrative Court. It is interesting to note these appointments are without consultation with the office of the Prime Minister yet they are key appointments. It is an unfortunate aberration representing the seemingly MDC's mollification in the face of Zanu PF's unpreparedness to be confined within the provision of the GPA. It remains to be seen whether this cosmetic facade of a unity goverment will stand these trying times. But as the Head of Government it just naturally follows as a logical corollary that Tsvangirai must have a say in the appointment of judges, governors and other key government officers. Only then should we expect to see real change in government administration.

Zimbabwe: Engaging the Inclusive Government

This is the title of the report from the International Crisis Group detailing the positive signs emerging in the socio-economic and political set up in Zimbabwe since the signing of the Global Political Agreement. It is really encouraging to note that the international organisation has a positive attitude and hope for the new administration. The detailed report can be read here. Indeed what is now needed is for the international community to rally behind Zimbabwe and support it in all possible ways.