The Herald (Harare)

23 July 2008

Zimbabwe: MoU Infuses Country With Fresh Hope

opinion

Harare — MONDAY'S signing of a memorandum of understanding between President Mugabe and the two opposition leaders Morgan Tsvangirai and Arthur Mutambara has infused the nation with fresh hope that the impasse that has characterised Zimbabwe's political landscape for close to a decade will soon be consigned to the history books.

At the same time, there obviously is the odd mixture of sceptics and cynics who either do not believe that anything will come out of the dialogue or who are downright opposed to the three parties talking because they stand to benefit from a continued stand-off.

Despite these differences of opinion, Zimbabweans from all walks of life are trying to grasp what exactly this MoU means and what it hopes to achieve politically, economically and socially.

An MoU can generally be described as a document outlining bilateral or multilateral agreement (such as in the present case where Zanu-PF, MDC and MDC-T are involved) expressing a convergence of will and intent through a consensual course of action.

It is usually employed in instances where all the parties involved do not necessarily want a legally binding agreement whose essential objective can be challenged in a court of law should something not quite go according to plan.

An MoU is also used where a legally binding position is not possible for any number of reasons such as domestic constitutional implications, such as in the present case where Parliament is yet to sit and a new Government is yet to be formed following the March 29 harmonised polls and the June 27 presidential run-off election.

Though not always legally binding, an MoU is a formal alternative to a gentlemen's agreement that can ultimately have varied interpretations and be a cause for confusion for the parties involved and any other people who might later want to mediate in the dispute.

However, in some cases an MoU can be legally binding depending on the wishes of the contracting parties, and wording to that effect is inserted in the document to make this clear.

What this means is that whether or not a document constitutes a binding contract depends solely on the presence or absence of well-defined legal elements in the text of the MoU.

The MoU signed by President Mugabe, Tsvangirai and Mutambara is not legally binding though the outcome of the dialogue that it has led to can have effect at law.

On the issue of its legal effect, an MoU does not necessarily carry legal weight in international law.

The document that the three principals put their signatures to on Monday carries international weight, though, on two bases.

Firstly, it is a direct result of a process initiated by Sadc Heads of State when they met in Tanzania last year and appointed South Africa's President Thabo Mbeki to mediate between Zanu-PF and the two MDC formations.

This mediation effort has subsequently been endorsed directly by the African Union following the Egypt Summit earlier this month, and, by proxy, by the United Nations Security Council that subsequently kicked out a United States-led sanctions push and gave a thumbs-up to President Mbeki's mediation.

Secondly, the matter has raised international interest and has indeed divided the world with the West generally opposed to the process and the rest of the world making it clear that dialogue - as facilitated by President Mbeki - would be the best way forward.

Hence, the MoU carries international weight but this does not mean that it has anything to do with international law.

For Zimbabweans, perhaps the greatest speculation surrounds the implications of the step taken by the parties on Monday.

Strictly speaking, the MoU that was signed makes no promises except that when the three principals appended their signatures to it, Zanu-PF, MDC-T and MDC must unequivocally speak out against and do what they can to end political violence and talk to set out priorities for Government.

There have been misinterpretations that the signing of the MoU nullifies the June 27 presidential run-off election that fresh elections will be held afterwards.

That is a fallacy that has obviously been generated by individuals, organisations and countries that cannot believe that all of Zimbabwe has embraced dialogue and detractors no longer have the leverage they had to influence this nation's political direction.

The law is unambiguous on the status of the elections. It was a process that was not concluded on March 29 and the Constitution recognises June 27 as the conclusion of that process.

What it does imply is that President Mugabe and the two opposition leaders have committed themselves to sitting down in an effort to iron out their differences and build a firm foundation for the establishment of lasting political tolerance.

The text of the MoU is clear that the three parties will discuss the priorities that the new Government should pursue as a matter of urgency.

Again this needs to be clarified. When the MoU talks of a new Government, people should not rush to any conclusions and ensure that the outcome of the dialogue process leads to what the document calls "inclusive Government".

A new Government is yet to be formed following the recent elections and it is up to the parties in their discussions to wholly agree what form the new Government will take.

There are no promises in the MoU as to what kind of Government the parties should agree to; that is something that will come out of the talks themselves.

And with the three signatories agreeing that no party, whether directly or indirectly, shall communicate or negotiate through the media, this means Zimbabweans, and indeed the wider international community that we are a part of, will have to be patient and allow the process to follow its course.

A new constitution will be the subject of discussions and observers generally believe that this issue is more or less a done deal since all the parties more or less agreed to a draft supreme national law during their talks last year.

Free political activity, the promotion of national unity, external interference in Zimbabwe's affairs, the rule of law and other related matters are also on the agenda.

The parties have also agreed to discuss the issue of external radio stations beaming into the country as - again - most other issues related to the media were agreed upon last year and are catered for in Constitution of Zimbabwe (Amendment) Act Number 18.

On the economic front, there is a perception that the MoU is supposed to ease the economic under-performance.

In truth, such an occurrence will be a "natural" reaction to the positive turn of events though, to put it bluntly, the MoU offers no magic solution to inflation and other economic ills.

That is not to say it is unconcerned with the economy because the economic situation is one of the key factors that have indeed necessitated dialogue.

Most people are reasonably betting that financial markets are bound to respond positively to Monday's signing and the ongoing talks and it is generally hoped that in time this will reflect on the rest of the economy.

In their negotiations, the parties will discuss ways of addressing "restoration of economic stability and growth", while sanctions and the land question, which both impact on the economy, are part of the talks agenda.

In many ways, the MoU is a reaffirmation of commitment to the process that gave birth to Constitution of Zimbabwe (Amendment) Act Number 18 of last year that led to the harmonised polls and the subsequent run-off.

It is with this in mind that many people hope that if the parties could agree last year, then there is no reason why they should fail to agree this time around.

Whichever way things turn out following the MoU and the talks, Zimbabweans have been infused with a sense of belief in themselves and what they can achieve when they hold hands and work together.

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