The power-sharing agreement which sets up a coalition government for Zimbabwe offers little scope for dealing with past human rights abuses, denigrating the role of civil society and making only tentative mention of a mechanism to achieve national healing, write Comfort Ero and Howard Varney of the International Center for Transitional Justice.
Zimbabwe's power-sharing deal raises hopes that years of political turbulence, violence and harsh economic decline can now be addressed in a comprehensive manner. The immediate priority is to hold the government together, but durable peace will also require justice for victims of political violence and accountability for perpetrators—both of which get short shrift in the agreement.
For the long-suffering people of Zimbabwe – many of whom have been dispossessed, imprisoned or injured for exercising their right to vote – the political balance of power is inextricably linked to the process of addressing their years of grievance and pain. For them, President Robert Mugabe and his security chiefs appear to have gotten away with serious crimes, at least for now.
The agreement gives the impression that the door is being left open for justice. The preamble accepts of the values of justice and fairness and the need to respect human rights, as well as committing the parties in principle to the rule of law.
In reality, the agreement offers little scope for dealing with the past and mentions no formal transitional justice mechanisms such as a truth commission or a reparations plan. An unspoken de facto amnesty for human rights violations seems to have been allowed, particularly for senior perpetrators. Acknowledgement and accountability are not high on the agenda.
Article 7 of the agreement is the closest it comes to addressing the rights of victims. It says that "consideration" should be given to the "setting up of a mechanism to properly advise on what measures might be necessary and practicable to achieve national healing, cohesion and unity in respect of victims of pre and post independence political conflicts."
This is extremely tentative; even the creation of an advisory mechanism is optional. Here and throughout the agreement, the role of civil society is entirely denigrated. Considering how crucial it has been in holding the political parties to their noble but unsubstantiated commitments, this is a critical flaw.
While the agreement recognizes rights and freedoms, it is thin on enforcement. Article 6 recognises the right of free political activity, yet there is no provision for independent monitoring to ensure it is enforced.
Article 12 mentions freedom of assembly, but does not direct the government to permit and promote this right; it only mandates training programmes for law enforcement agencies so that their members can understand security legislation. Neither does the article require a review of security legislation that inhibits the right to free assembly.
Article 13 on state organs and institutions also stipulates that members of the security services receive human rights training, and requires strict adherence to laws and regulations. There is, however, no requirement for the overhauling of laws and regulations that currently serve to deny human rights, nor any requirement for the reform of the security services themselves.
Security sector reform appears to be left in the hands of the particular department's political masters, with no reference to the critical need for civilian oversight and monitoring—or the necessity of barring those responsible for serious human rights violations from public office.
Article 15 calls for national youth training programmes but does not require the disbanding of youth militias and war veteran paramilitary groups and their reintegration into society.
There are encouraging provisions in Article 18 on security and prevention of violence. Article 18.5 (c) states: "The government must apply the law impartially in bringing all perpetrators of politically motivated violence to book."
But these notional commitments will be worth very little if they apply only to junior offenders on the ground and not to senior perpetrators who orchestrated the violence from behind the scenes. Indeed, in Article 20.1.3, the agreement specifically highlights the president's power to grant pardons, which he may use to neutralize prosecutions. All perpetrators should be held to account: senior offenders should not be allowed to hide behind the political deal.
Article 20 discloses other opportunities for abuse of power by the president. He can proclaim martial law and public emergencies without having to consult with the prime minister. This would allow Mugabe to act alone in suspending key rights including the right to personal liberty and freedoms of expression, assembly and movement. The constitution prevents the courts from overturning the president's decisions to declare public emergencies.
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It is Mugabe, not Prime Minister-designate Morgan Tsvangirai, who is authorised to "make key appointments" under the constitution. Mugabe also retains the power to dissolve parliament. These powers have to be exercised "in consultation" with Tsvangirai, yet it is curious that the agreement does not specify what "in consultation" means. It ought to have read "in concurrence with" or "with the consent of."
While the day-to-day survival of millions of Zimbabweans must be the immediate priority of the coalition government, in the longer term Zimbabwe needs to hold to account those who perpetrated serious crimes, and to deliver equitable land reform and comprehensive reparations to victims.
Morgan Tsvangirai said at the signing ceremony for the agreement that "only through a public acknowledgement of past wrongs can we begin the process of national healing." Civil society should hold him to his word.
Comfort Ero is director of the International Center for Transitional Justice's South Africa office and deputy director of ICTJ's Africa program. Howard Varney is an advocate at the Johannesburg Bar and director of ICTJ's truth-seeking program.
