Faten Aggad
26 June 2008
guest column
The African Union has the legal power to condemn the conduct of Zimbabwe's elections, to suspend the country from membership and to require new elections, writes AllAfrica guest columnist Faten Aggad. The question is whether the continent's leaders have the political will to do so.
As African heads of state and government prepare to meet for the 11th African Union (AU) Summit in Sharm el-Sheikh in Egypt, Zimbabwe continues to spiral downwards.
The Chairman of the AU Commission, Jean Ping, has now spoken out on the country's political crisis, making clear that the AU is gravely concerned at what he called "increasing acts of violence." He also indicated that the commission has entered consultations with the current AU chairman, Tanzanian President Jakaya Kikwete, and leaders of countries in the Southern African Development Community (SADC) in order to find a solution.
The question is what can the AU really do?
Two legal opinions commissioned by the Southern African Litigation Centre, based in Johannesburg, provide a legal foundation for AU intervention in Zimbabwe.
Based on an analysis of Zimbabwe's Constitution and its Electoral Act of 2004, the two opinions conclude that Morgan Tsvangirai, the front runner in the first round of presidential voting on March 29, should be recognised legally as the head of state of Zimbabwe.
UN
President Mugabe Speaks in front of the UN.
The first opinion analysed the legality of the postponement of the presidential run-off vote until tomorrow – when nearly two months will have elapsed since the first round of voting. It found there was a breach of Section 110 of the Second Schedule of the Electoral Act, which stipulates that run-off elections should be held within 21 days of the first round.
The authors of the opinion held that the power, asserted by the Zimbabwean Electoral Commission, "to amend or ignore the constitutionally-required period... by abrogating or amending the provisions regarding the run-off period, is constitutionally objectionable."
The second legal opinion dealt with what the Electoral Act required in the event of a failure to hold elections within the prescribed 21 days. The opinion noted: "Where no second election is held and there were two or more candidates for President, and no candidate received a majority of the total number of valid votes cast, item (3) (1) (b) [of the schedule to the Electoral Act] provides that the candidate with the greatest number of votes [in the first round of elections], and not the majority of the total number of votes, shall be duly elected President."
In the first round of voting, Morgan Tsvangirai won 47.9 percent of votes, against 43.2 percent for President Robert Mugabe. On the basis of the law and the vote count, Tsvangirai should have been installed as President.
Given the two legal opinions, and that the results of the first round of elections were accepted by African institutions, a case can be made for an AU intervention under the "Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government," signed in Lomé, Togo in 2000 and endorsed by the Zimbabwe Government.
The declaration defines unconstitutional changes, inter alia, as "the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections."
Since Robert Mugabe does not want to relinquish power, the declaration allows action to be taken similar to that taken against Togo in 2005, when the military in that country installed Faure Gnassingbé as president upon the death of his father.
The Lomé declaration clearly describes the steps that can be taken:
· The Chairman of the AU, currently President Kikwete, should openly condemn the unconstitutional change and clearly indicate to the perpetrator that the AU will not tolerate the takeover.
· At the request of the Chairman, the Secretary-General of the AU, or any member state, the "Central Organ" of the AU's "Mechanism for Conflict Prevention, Management and Resolution" meets as a matter of urgency to discuss the situation and issue a statement.
· Following an initial condemnation by the Central Organ, a period of six months is given to the perpetrator of unconstitutional change to withdraw and hold new elections (although, given Zimbabwe's electoral law, it can be argued that the winner of the first round should be declared president). During this period, the government concerned is suspended from participating in the policy organs of the AU, including the Council of Ministers and the meeting of heads of state and government.
· In the event of failure to comply within the six-month period, "a range of limited and targeted sanctions against the regime" will be imposed. These may include travel bans and trade restrictions.
Such action proved effective in forcing Togo's Gnassingbé and the army to back down and allow elections in 2005. That precedent has shown that the AU is able to react, provided there is political will.
But the AU could not have acted without the support of the regional leaders of ECOWAS, the Economic Community of West African States. Similarly, in the case of Zimbabwe, the role of SADC leaders will be paramount in supporting an AU intervention.
Clearly, African instruments for dealing with the current crisis do exist. Now is the time to use them in Zimbabwe. Will our leaders, meeting in Sharm el-Sheikh, have enough political will to act?
Faten Aggad is a researcher on the Governance and African Peer Review Mechanism Programme at the South African Institute of International Affairs, in Johannesburg.
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Let us hope that the AU leaders attending the summit at Sharm-el-Sheikh will have the cojones to do the right thing. If Thabo "Inert" Mbeki doesn't want to play along, marginalise him because his relationship with Mugabe is as insidious as the one that the House of Bush has with the House of Saud.
Why on earth didn't they do this for Kenya because Kibaki DID NOT win the presidential election if his party only managed to win less than 1 in 5 of the parliamentary seats? The so called government of "national unity" in Kenya is anything but otherwise there would not be FORTY TWO ministries for a population of less than 40 million while Nigeria, Africa's most populous African country, with 150 million people has TWENTY ministries.
African leaders will do nothing meaningful. When have they ever. They are a bunch of cowards!
AU and SADC should sympathise with Tsvangirai. Here is a man who has tried his best to persue a peaceful and democratic path to assume leadership of a country (Zimbabwe) but is being denied this opportunity through unconstitutional methods such as use of violence against his supporters, disenfranchisement of his potential supporters, use of intimidation and threats against MDC sympathisers etc. Mugabe and ZANU (PF) will not relent until they have achieved their goal of denying Tsvangirai this golden opportunity. The AU and SADC leaders may be aware that even the 43.2% Mugabe got in the first round did not come via fair means but can partly be attributed to subtle forms of violence and intimidation and this foul vote was enhanced through inducements such as distribution of agricultural machinery to rural voters and housing stands to urban voters. Any honest Zimbabwean will tell you that Mugabe is now beyond the capability to assume power by fair means. What is keeping him in power are the service chiefs responsible for state security organisations such ZNA,Air Force, ZRP, CIO and ZPS. The service chiefs have made it clear to anyone who cares to listen that Tsvangirai and MDC will never be allowed to preside over affairs of Zimbabwe. In my opinion what is left for AU and SADC to do is to:
1) recognise Tsvangirai as President based on results of the first election on 29 March 200. This election was deemed to be free and fair by SADC and AU observers. 2) encourage or influence Mugabe to retire from politics and to guarantee his immunity from future prosecution by Zimbabwean and international courts 3) influence Tsvangirai to form an all inclusive government. One of the current service chiefs or former service chiefs can be appointed minister of defence. In addition a position of Prime Minister can be created for an individual recognised by ZANU (PF) as Mugabe's successor. Mugabe himself should retire from active politics. Mugabe has been in power for a good twenty eight years, he is no longer as popular as he used to be in the 1980s and 1990s and at 84, he is now too old to continue to influence the country's future moreso considering that because of old age he may not be there for Zimbabweans in the future.
I pray God that SADC make a settlement in line with what I have written above or else they would have done great injustice to Tsvangirai. With they way ZANU (PF) is trying to take captives out of Zimbabweans, it appears that Zimbabwe will not be able carry out a free and fair election in the foreseeable future. Tsvangirai's chance for presidency appears to be now or never. The accusations from Mugabe that Tsvangirai represents Western and white interests is absurd and should not sway SADC and AU to side with Mugabe and ZANU (PF). Mugabe is simply powerhungry and will not allow any one even from his beloved ZANU (PF) party to assume power in Zimbabwe while he is still alife.
The Zimababwean people don't need sympathy they need action. Symapathy is in abundance, action is not. Where is the SADC or AU peacekeeping force.
The Constitutive Act (of the African Union)(excerpts)
Article 4
Principles
The Union shall function in accordance with the following principles:
(m) respect for democratic principles, human rights, the rule of law and good governance; (o) respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities; (p) condemnation and rejection of unconstitutional changes of governments.
Article 23
Imposition of Sanctions
2. Furthermore, any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other Member States, and other measures of a political and economic nature to be determined by the Assembly.
Article 30
Suspension
Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union.
Unfortunately it is a similar situation to that of a rape trial - the rapist is given more legal respect than the victim. Here we have Tsvangirai following the peaceful route to election whilst mugabe goes from one evil to the next. After many years of terrorising his own people the African governments still mildly refer to "concern over increasing violence". In March the electorate FINALLY get the courage to vote in line with their true convictions, believing that their vote is truely secret.... Huh!! Now the world sits back and leaves them to mugabe: Too much handwringing guys! If you get rid of mugabe that may be a bad move... but if you don't get rid of mugabe then that will be a BAAADDD move.
It would be interesting to see how they ignored Mugabe killing 20 000 people and today they act against him for killing less than 100.Are there people who are more beings than others, where was world in the 80s when all these people were killed by the same henchmen
See all comments (43).
Based on the Chairman of the AU Commission, Jean Ping, statement that the AU is gravely concerned at what he called “increasing acts of violence,” and what the AU can really do about Zimbabwe?
The position of the chairmanship of the AU Commission is crucial for Afraka. Anyone occupying this role must be competent and unimmotional to see beyond just the surface of things. If my memory serves me right I think that this position was created for a Pan Afrakan platform and not a colonial ideology. Mr. Jean Ping may need some tutorial about the only solution to this Afrakan problem, ie. Pan Afrakanism!
Afraka must find the right people to lead her peoples for the good of all of us instead of filling the various portfolios based on rotation of the fifty something Colonial States!!!!!!!!!!