analysisBy Timothy Scarnecchia
This past weekend's referendum in Zimbabwe marks an important transition away from the 2009 Government of National Unity (GNU) government formed in the aftermath of the violent 2008 elections.
The low-key referendum, where nearly 3 million people voted "Yes" for the new constitution (and nearly 180,000 voted "No"), was not as widely reported in the international press as the police actions on Sunday morning, when the Zimbabwean police raided the home and offices of Movement for Democratic Change (MDC) officials in Harare.
When Zimbabwe's veteran human rights lawyer, Beatrice Mtetwa, arrived on the scene and demanded to see a warrant and inventory of materials removed from her client's home, she was told that there was no need for a warrant and that she had to turnover her cellphone, as she allegedly was recording the conversation. After a scuffle with the police, they confiscated her bag and phone and she was brought to the police office and charged with interfering with police business.
The Zimbabwe Lawyers for Human Rights (ZLHR) immediately made a request to Zimbabwe's High Court for an injunction calling for the release of Mtetwa. The High Court issued the proper papers for her release but the police refused to honor the order. Now, four days later, Beatrice Mtetwa and the MDC officials remain in jail, having been denied bail.
The high profile arrest of Mtetwa, and the slow movement of the police to release her, is reminiscent of the pre-GNU (Government of National Unity) ZANU-PF state in which there were no restraints on persecution of opposition figures. It is telling that the police no longer feel the pressure to "play fair" only one day after the referendum voted in favor of the new Constitution that is a requirement for new national elections planned for some time in June or July 2013. It is also telling that the arrest of the MDC officials seem to have been a "pre-emptive" strike to allegedly stop these officials from leaking government information about the ongoing anti-corruption investigation that has become part of a larger struggle within ZANU-PF. The anti-corruption investigation appears to have come to an abrupt end after failed attempts to search the offices of the most powerful parastatals and ministries connected to mining and indigenization.
During the past four years of the GNU, ZANU-PF and the two MDCs have held together a 'unity' government that was always more about ZANU-PF giving the MDCs "a share" of government than actually the sharing in government. ZANU-PF has managed, most importantly, to keep exclusive control of the military, the police, and the mining sector, as well as the Ministry of Youth Development, Indigenisation, and Empowerment. The MDC was given the Ministry of Finance, where the MDC's Tendai Biti has many times reported that the state treasury is empty. And yet, the Ministry of Mines is awash in cash from diamond trade. The refusal to turn the substantial diamond trading profits over to the state treasury has allowed ZANU-PF to run a form of government of its own within the GNU, and now that the GNU seems to be over, the Ministry of Mines is not about to cooperate with the "other" government's anti-corruption investigation. Last week those involved with the National Indigenisation and Economic Empowerment Board (NIEEB) managed to obtain a High Court order stopping the anti-corruption commission from searching their offices for evidence connected to an alleged corruption scandal involving the NIEEB. This "Nieebgate" scandal appears to be the main purpose of the raid on the MDC offices the Sunday morning after the referendum as well as court orders to stop the official investigation. The Zimbabwe-based Centre for Natural Resource Governance put it this way in a press release on March 20th:
"It is also reported that since the attempts to investigate corruption at the said Parastatals and government ministries, the ZACC General Manager, Sukai Tongogara, daughter of the late ZANLA Commander General, has gone into hiding after she was tipped that state security agents wanted to arrest her for abuse of office. The persecution of the anti-graft commission is a serious setback in the fight against corruption."[i]
It is not as if these ZANU-PF controlled parastatals and ministries that withhold profits from the state treasury for personal and political reasons are not already well known, but these recent very public moves to silence critical debate indicate a return to intimidation and arrests at a level reminiscent of the run-up to elections ever since the 1990s. It appears that the high level conflict in ZANU-PF over the control of the party and corruption charges waged against some of the really big players, has now caught MDC officials investigating the case as part of the backlash. That Mtetwa, the MDC official's lawyer, has also been arrested was unlikely part of the original plan of those who sent the police to the home of Thabani Mpofu, the MDC's chief legal advisor, to confiscate materials related to the corruption case.
Mtetwa's arrest fits more with the continued harassment of human rights lawyers and activists throughout the GNU period, a trend that has picked up steam with the arrests of Okay Machisa, Director of ZimRights in January this year, and more recently the arrest of Jestina Mukoko, director of the Zimbabwe Peace Project Trust earlier this month. Last year, Frances Lovemore's Counseling Services Unit was also targeted among other groups.
As Agnus Shaw reports, the four MDC officials, "... are charged with impersonating police officers because they were gathering information on the state's failure to prosecute cases of high level corruption." Shaw goes on to say that the police claim the four officials had papers that looked like official police 'dockets', and therefore they were allegedly impersonating police officers.
Now, with the arrest and detention without bail of Beatrice Mtetwa, it would appear that the Zimbabwe Police and ZANU-PF are once again sending a message to the human rights groups of the country: do not interfere by attempting to represent the victims of human rights abuses during the election season. This is an ominous message but one, unfortunately, that Zimbabweans are accustomed to, as many of these brave advocates have been arrested and tortured in the past by the Zimbabwean police and the CIO. However, given that Beatrice Mtetwa was arrested as part of this specific action to stop the potential leaking of evidence in the corruption case, her case seems to be in a different category, something now beyond the ongoing harassment of human rights groups and NGOs before the elections. Mtetwa and the four officials were denied bail on Wednesday, and are scheduled to appear next in court on April 3rd.
Why a post-GNU Zimbabwe is not likely to have 'free and fair' elections
What, then, if anything, did four years of the GNU achieve if ZANU-PF remains in a position to control the police, gain court orders to stop anti-corruption investigations, and to arrest the opposition on charges of "allegedly receiving or communicating state secrets"? [ii] It would seem, as many people predicted at the time, that at the most the GNU presented Robert Mugabe and his ZANU-PF comrades the necessary breathing space to recover from an electoral loss in 2008 which they managed to turn into a run off 'victory' for at least the presidential vote after the deaths of over 300 people and the injury and torture of many more.
Nic Cheeseman and Blessing-Miles Tendi co-authored in 2010 a very important comparative analysis of the GNUs in Zimbabwe and Kenya. They argue that the GNU in Kenya was the product of a "politics of collusion", while Zimbabwe's GNU represented the "politics of continuity." Their analysis seems to hold for the recent Kenyan elections and the constitutional process that preceded it. There all of the elite parties in the GNU had an interest in protecting themselves from prosecution for crimes after the 2007 post-election violence. The main stakeholders, whether Raila Odinga, William Ruoto, Mwai Kibaki, or now president-elect Uhuru Kenyatta, all had a common goal. They colluded with each other in order to re-write the constitution and to avoid taking seriously any sort of "truth and justice" clauses that they had agreed upon when entering the GNU in 2008. The Zimbabwean GNU is seen as fundamentally different by Tendi and Cheeseman because in Zimbabwe it was ZANU-PF that needed protection from future prosecution for political violence, much more than the two MDC parties. Given that in this unequal situation those with "veto power" in Zimbabwe were the military and ZANU-PF, the other parties to the GNU were not able to effectively challenge the status quo, thus the idea of a "politics of continuity."
It is therefore depressing but not surprising that leaders of both factions of the main MDCs, Morgan Tsvangirai and Welshman Ncube, agreed that conditions are in order for a 'free and fair' election this year. They are not really in a position to state otherwise, even as their own followers and candidates are again on the receiving end of harassments and violence. Both leaders appear confident that the Southern African Development Community (SADC) will assure fair elections this time around. The fact that ZANU-PF continues to protest against outside election observers other than SADC and AU observers, and that the new head of the Zimbabwean Electoral Commission, Judge Rita Makarau, was previously appointed to the Supreme Court by President Mugabe, would seem to counter the rosy picture both Tsvangirai and Ncube have thus far presented.
This past Sunday's pre-emptive strike of the police against the MDC officials is itself further proof that the GNU was never about substantial power sharing. The timing of the raids, a day after the referendum, may show that some respect was given to the MDC's role in securing a "Yes" vote. But immediately after, the MDC is once again the target of police raids. This is illustrated, ironically, by the fact that those MDC members of government who were making a case against alleged corruption are now themselves charged with "breaching the official secrets code, impersonating police and illegal possession of documents for criminal use." The absurd case against them is that "they were preparing criminal and corruption cases against Zimbabwe's police chief, the attorney general and other senior government officials, including the very prosecutors handling their case." All this seems to show that ZANU-PF is back in pre-GNU form, and that the two main MDCs are once again seen as "enemies of the state" by ZANU-PF. This, of course, was the portrayal of the MDC since it came to prominence with the defeat of ZANU-PF's attempted constitutional reform referendum in 2000.
That Beatrice Mtetwa, the internationally respected and honored human rights lawyer, has been treated this way by the police and the courts - with a recurring refusal of bail - further demonstrates the lack of concern within ZANU-PF and the police for the rule of law and for international opinion particularly when election time nears. Although it is still not yet clear who was behind the order to search the MDC legal counsel's home and offices, it may, as suggested above, have been one faction in ZANU-PF that orchestrated the police raid in hopes of defending their own reputations, as they have done through the intimidation of the Zimbabwe Anti Corruption Commission ZACC in the past weeks. If so, there may be another faction within ZANU-PF willing to work behind the scenes to help release those recently arrested in order to push further the anti-corruption investigation as part of their battle within ZANU-PF.
In any case, it would seem that two of the commonly-held predictions made at the beginning of the GNU are likely be confirmed now: 1) that the GNU would allow ZANU-PF to regroup and extend its control, and 2) that factionalism within ZANU-PF over Mugabe's succession may lead to its own downfall. Interestingly, as ZANU-PF factions jockey for positions leading up to the next elections, the corruption charges are generating accusations and the use of the police in ways that reveal the fundamental failure of ZANU-PF to govern and manage the economy. This does not mean, however, that ZANU-PF has lost its ability to win elections and to use violence to achieve this end. The MDC parties, with such limited room to maneuver, are left hoping that ZANU-PF will implode and lose at the polls. Hence Tsvangirai's formulaic response to the arrests of the four MDC officials and Mtetwa as reported in the Mail & Guardian: "Reacting to the arrest of his aides and their lawyer, Tsvangirai told journalists that 'this is the natural reaction of people who feel trapped, who feel they have lost power. These are acts of desperation .'" It is doubtful, however, that ZANU-PF would agree with such a claim. In December 2012, Robert Mugabe encouraged his supporters to "fight like a wounded beast" in the upcoming elections. Mugabe knows from experience that his party has proven its resiliency many times over, mostly through electoral violence.
Having had the chance to hear Beatrice Mtetwa speak when she received the Inamori Ethics Award in 2011 at Case Western University in Cleveland, Ohio, I remember being energized by her bravery as well as her calmness in the way she has handled so many tough cases in Zimbabwe. She has managed, along with hundreds of other brave lawyers in Zimbabwe, to force the courts to do their job properly. Despite the efforts by politicians and the attorney general's office to politicize the courts, Mtetwa and others have in fact had many successes. Those of us outside of Zimbabwe need to be attentive and active this year. This includes letting our support for Beatrice Mtetwa and others caught up in this crackdown be known to our own governments and to the Zimbabwean officials--and certainly SADC officials--and doing our best to assist what is now a long struggle for justice and respect for the rule of law in Zimbabwe.
Nicole Fritz, director of the Southern Africa Litigation Centre, summed up the situation well in the Mail & Guardian, especially noting the need to fight the "enervating fatalism" most observers of the Zimbabwean situation tend to convey:
"With Mtetwa in police detention, her court ordered release flagrantly ignored, it is hard to imagine that anyone can credibly contend that, as matters stand, there exist realistic prospects for free and fair elections later this year. But if concerned observers outside Zimbabwe can afford such enervating fatalism, it is not an option available to those inside Zimbabwe.
As Precious Chakasikwa of Zimbabwe Lawyers for Human Rights remarked: "For every Beatrice Mtetwa that these state agents and institutions put behind bars and attempt to embarrass, humiliate and punish without lawful cause, there are 10 other human rights lawyers waiting to take up the mantle." As they must, if there is ever to be a different outcome."
[i] The CNRG press release (March 20, 2013) goes on to make the following recommendations.
CNRG calls on government to do the following things:
That the Anti Corruption Commission is given political, judicial and financial support to enable it to carry out its mandate effectively
That the Anti Corruption Commission Act of 2004 is amended so that the Commission seeks clearance to investigate from Parliament rather than from the Zimbabwe Republic Police
That the Anti Corruption Commission is independent and is granted immunity to investigate any office without interference
That the Ant Corruption Commission is given power to recommend punishment to the judiciary on those found to have committed white collar crime and that their recommendations are taken seriously
That there be no selective application of the law in the fight against corruption
That the Anti Corruption Commission is protected from threats and intimidation
That the law deals effectively with public officials who refuse to cooperate with the Commission
[ii] The Zimbabwe Lawyers for Human Rights reports the following charges were brought against the four officials: "The Magistrate also dismissed the bail application filed by four officials working in Prime Minister Morgan Tsvangirai's Office among them Thabani Mpofu, Felix Matsinde, Councillor Warship Dumba and Mehluli Tshuma, who were charged with contravening Section 4 of Official Secrets Act for allegedly receiving or communicating secret information, Section 179 (1) of the Criminal Law (Codification and Reform) for alleged impersonation and Section 40 (1) of the Criminal Law (Codification and Reform) Act for possession of articles for criminal use. The four aides were remanded to 3 April 2013."
Timothy Scarnecchia is an Associate Professor of African History at Kent State University, Kent, Ohio, USA.