Last updated: 07/21/2004 17:21:51 Last updated: 07/21/2004 09:35:58
A 'MAJOR diplomatic defeat' for President Robert Mugabe's government or a positive sign for the African Commission for Human and People's Rights (ACHPR) - or perhaps both? The fracas which ensued around the report on Zimbabwe by the ACHPR can be viewed in both ways.

The report, which criticises abuses of human rights and rule of law in Zimbabwe during the period leading up to and just after the presidential elections in 2002, was adopted by the African Union (AU) Council of Ministers on 3 July, ahead of the start of the third ordinary session of the AU in Addis Ababa on 6 July.

It led to an allegedly very vocal protest by Zimbabwe's Foreign Affairs Minister, Stan Mudenge, who, according to one newspaper article 'went ballistic'. Mudenge claimed that his Government had not yet seen the two-year-old report and that it could therefore not be tabled at the AU summit.

His statement was later disproved, when it emerged that the Zimbabwean government had, in fact, received the report by latest February this year. Mudenge later claimed that the report had not been properly presented to the government. Zimbabwe has said it will review the report and respond within a week. At the time of going to press, no response had yet been published.

The fact that AU Ministers gave in to Mudenge's protest and that the report was therefore not ratified by the entire body of the AU at the summit, was interpreted in some quarters as a sign of an inherent weakness in the AU and a clear reluctance to tackle the thorny Zimbabwe issue. Many critics of the AU regard Zimbabwe as a test case for the pan-African body. A perceived unwillingness to bring the human rights abuses and the deteriorating economic and social issues to the table would condemn the AU to the same fate at its predecessor, the Organisation for African Unity. For some, the events in Addis Ababa are already a signal that the AU is following in the faltering footsteps of the OAU.

This would be a premature judgement of the AU. This view fails to acknowledge that the issuing of a critical report on Zimbabwe by an autonomous body of African Union is, in fact, a very positive sign, even if the adoption of the report has thus far been slow. It nevertheless signals the first time that a pan-African organisation has openly and unequivocally criticised Mugabe's government.

"The issuing of a critical report on Zimbabwe by an autonomous body of African Union is, in fact, a very positive sign"

INT BAR ASSOCIATION

The report, based on a fact-finding mission to Zimbabwe by members of the ACHPR in June 2002, found there was 'enough evidence (...) to suggest that, at the very least during the period under review, human rights violations occurred in Zimbabwe'. It argues that the land question is not 'the cause of division' in Zimbabwe. Rather, the divisions are caused by a society in the process of change but divided over 'how best to achieve change after two decades of dominance by a political party that carried the hopes and aspiration of the people of Zimbabwe through the liberation struggle into independence'.

The members of the mission were presented with testimonies of victims of political violence and victims of torture while in police custody. 'There were allegations that the human rights violations that occurred were in many instances at the hands of Zanu-PF party activists,' the report states.

However, the mission also found that there was insufficient evidence to suggest an orchestrated policy of abuse by the Government. According to the report, 'there were enough assurances from the head of state, cabinet ministers and the leadership of the ruling party that there has never been any plan or policy of violence, disruption or any form of human rights violations orchestrated by the state. There was also acknowledgement that excesses did occur.'

Despite this, the report found that the Zimbabwean Government bore at least some responsibility for the flouting of the rule of law and the human rights abuses. 'Government did not act soon enough and firmly enough against those guilty of gross criminal acts. By its statements and political rhetoric and by its failure at critical moments to uphold the rule of law, the Government failed to chart a path that signalled commitment to the rule of law,' the report states.

It is this clear and unambiguous criticism which is cause for hope that the African Union and the ACHPR can be an effective instrument for good governance and the upholding of human rights values on the continent. A signal is being sent by tackling the situation in Zimbabwe.

The Movement for Democratic Change's (MDC) Paul Themba Nyathi issued a statement on behalf of the MDC condemning what it regards as a sweeping under the carpet of the report by the AU, arguing that it is contradictory to the AU's stated aims and its willingness to act on the crisis in Darfur, Sudan. 'By continuing to find spurious reasons to push the Zimbabwe crisis under the carpet the AU is inadvertently providing succour and protection to the disastrous political agenda pursued by Robert Mugabe and Zanu PF; an agenda that is driving the crisis in Zimbabwe,' Nyathi wrote. 'The decision to postpone the discussion of the report by the Commission on Human and People's Rights will simply serve to increase and prolong the suffering of the people of Zimbabwe.'

In an article written for the Institute for Justice and Reconciliation in South Africa, the University of Zimbabwe's Brian Raftopoulos argues that the ACHPR's critical report adds to the 'plethora of reports by other national and international organisations' and challenges Zanu-PF's efforts 'in presenting a reformed image to the world' and taking steps towards 'the beginnings of international re-engagement'. 'Despite its many assertions and protestations to the contrary, one of the goals eluding the Mugabe regime is international legitimacy,' Raftopoulos says.

The significance of a pan-African body publicly criticising the human rights abuses and violations of the rule of law cannot be underestimated, particularly after the ovation Mugabe received from Africans at the recent inauguration of South Africa's re-elected President Mbeki. The public support Mugabe has received from African leaders polarised the Zimbabwe crisis into an 'Africa vs the West' issue. The ACHPR report now sends the signal that the heart of the matter is about human rights and good governance, no matter what the race or skin colour of the victims and perpetrators.

As far as Zimbabwe is concerned, Raftopoulos believes that the ACHPR report 'comes at a critical time, opening up diplomatic space for African engagement with Zimbabwe'. In particular, the report gives Mbeki, who has acknowledged the failure of his strategy of 'quiet diplomacy' to deal with Zimbabwe, the opportunity to 'nurture alternative voices on the continent able to confront inequities of the past and repressive authoritarianism in the present'.
This column is provided by the International Bar Association - an organisation that represents the Law Societies and Bar Associations around the world, and works to uphold the rule of law. For further information, visit the website www.ibanet.org