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Zimbabwe teachers' strike called off

September 19 2009 , 1:05:00

John Nyashanu, Harare

Teachers in Zimbabwe have called off their strike action, ending a two
week impasse with authorities over poor salaries. Their representative say
they have decided to return to work after taking into consideration numerous
developments which include alleged involvement of politicians and the plight
of innocent people.

Meanwhile Zimbabwean Central Bank governor Gideon Gono says he'll
consider stepping down if sanctions are removed. President Robert Mugabe
unilaterally re-appointed Gono last December in spite of a track record
questioned by the opposition and economists alike. His position is at the
centre of a seven month tug-of-war between the president and Prime Minister
Morgan Tsvangirai. Gono says he won't step down now, unless the president
fires him.

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Ministry threatens to fire ZBC managers

by Patricia Mpofu Saturday 19 September 2009

HARARE - Zimbabwe's Information Ministry has threatened to fire senior
managers at the country's sole broadcaster - Zimbabwe Broadcasting
Corporation (ZBC) - after they failed to screen the official opening of a
mining investment conference by President Robert Mugabe during the main news
bulletin on Wednesday.

Sources at the ZBC's Pockets Hill studios told ZimOnline on Friday
that Information Minister Webster Shamu, and his permanent secretary George
Charamba on Thursday stormed the studios and read the riot act to about 10
managers charged with delivering the 8pm news after they allegedly botched
the bulletin on Wednesday night.

The state-owned ZBC - also known as Zimbabwe Broadcasting Holdings
(ZBH) - which runs Zimbabwe's only television and radio stations failed to
screen Mugabe's keynote address due to technical hitches blamed on faulty

The footage, which later appeared well after 9pm, had no sound.

"There was drama on Thursday when Shamu and Charamba stormed into
Pockets Hill and summoned managers after the Wednesday debacle," said one of
the managers who attended the meeting.

Insiders said some of the managers taken to task by Shamu and Charamba
included chief executive officer Happison Muchechetere, Tarzzen Mandizvidza,
Freedom Moyo (bulletin manager), Jacob Phiri, Brian Rwafa (responsible for
reporters) and five other senior managers responsible for editing.

"The problem is not with us but the equipment. Judith Makwanya brought
the tape with the presidential story around 7pm but we could not slot it in
immediately due to problems with the editing equipment. When we finally
slotted it in after 9pm, there was no sound," said another ZBC source.

"We were told that Mugabe is the President of this country and should
be the top story whether we liked it or not. Charamba went on to say those
who did not like were free to leave ZBC," the manager added

Shamu, in a brief conversation yesterday, confirmed that he went to
the ZBC with Charamba "but it was a routine visit as we are familiarising
ourselves with the surroundings".

Charamba was not immediately available for comment.

The meeting at ZBC coincided with a statement by Prime Minister Morgan
Tsvangirai's MDC party on Thursday criticising the state media for bias in
favour of Mugabe and his ZANU PF party and against other parties in the
unity government.

In the statement, the MDC said it was worried by the manner in which
the Information Ministry had abdicated its national responsibility to the
taxpayer in pursuit of parochial interests of protecting one exclusive
political party in the inclusive government.

It said the public media has been abused to become the arena of
maligning and vilifying the MDC, its leadership and members at the expense
of covering pertinent issues affecting the ordinary man and woman.

"The Ministry of Media, Information and Publicity is the
spokes-ministry of the inclusive government in its entirety. The public
media, under the express orders of ministry officials, have become willing
vehicles of spreading hate speech, divisions and tension in the inclusive
government through overt bias and positive coverage of ministers and
officials from one political party," it said.

The MDC condemned the partisan use of public institutions such as the
public media to the detriment of national and public interest.

The ZBC was initially conceived as a public broadcaster but has been
tightly controlled by Mugabe's ZANU PF administration, which has the final
say on senior editorial and managerial appointments.

In addition to controlling the airwaves, Mugabe's also runs the
country's largest newspaper empire after closing down four independent
papers including the Daily News that was Zimbabwe's largest circulating
paper when it was shut down in 2003. - ZimOnline

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Power-Sharing Partners Set Changes in Zimbabwe Constitutional Rewrite Process

By Blessing Zulu
18 September 2009

The three principals in Zimbabwe's troubled unity government have overhauled
management of the country's ongoing constitutional revision process in
response to civic activists who have challenged Parliament's leading role in
the exercise, sources said Friday.

Sources in President Robert Mugabe's ZANU-PF and Prime Minister Morgan
Tsvangirai's wing of the Movement for Democratic Change said those two
leaders and Deputy Prime Minister Arthur Mutambara, head of a rival MDC
formation, met Thursday and agreed to set up an independent secretariat to
oversee the redrafting of Zimbabwe's basic document.

Since earlier this year that task had been in the hands of the Select
Parliamentary Committee for Constitutional Reform. However, the three
co-chairman of that committee, representing the three parties sharing power
in the unity government, will sit on the new panel.

The new secretariat will also include the three negotiators of the Global
Political Agreement underpinning the unity government, Constitutional
Affairs Minister Eric Matinenga, and two civil society representatives:
Phineas Makhurane, ex-chancellor of the National University of Science and
Technology, and Hope Sadza, founder of the Women's University in Africa.

Though the principals were able to reach agreement on creating the
secretariat, sources said they remain far apart on the question of the
so-called Kariba constitutional draft written and approved by all three
parties in 2007 in the Zambezi River resort town. ZANU-PF wants it to be the
basis for the new constitution; the MDC and civic activists want a clean

Tsvangirai MDC sources present at the meeting of the principals said the
draft will be a point of reference in drafting the new constitution. But
ZANU-PF and Mutambara MDC sources say the Kariba draft will be the basis for
the new constitution. Semantics aside, the Kariba draft significantly
reinforces presidential powers without strongly buttressing civil liberties.

Mr. Tsvangirai met Friday with civil society representatives in his capacity
as head of the main MDC formation to inform them of the change, MDC and
civic sources said.

Representatives of the Media Institute of Southern Africa, the Zimbabwe
Human Rights Association or ZimRights, the Crisis In Zimbabwe Coalition and
other groups attended. But the meeting was boycotted by the National
Constitutional Assembly, the Zimbabwe Congress of Trade Unions and a
splinter faction of the Zimbabwe National Students Union.

Those groups oppose the parliamentary led constitutional revision process
and have said they will advocate a "No" vote in the case of an eventual
national referendum.

NCA National Director Earnest Mudzengi, present at Friday's NGO meeting as
an observer, told Blessing Zulu of VOA's Studio 7 for Zimbabwe that Mr.
Tsvangirai acknowledged the new management panel represents an effort to
respond to civil society criticisms.

Political analyst John Makumbe of the University of Zimbabwe applauded the
changes saying they will decentralize power in a process that has been
dominated by Parliament.

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Zim's state broadcaster CEO denied US visa

Eyewitness News | 5 Hours Ago

Zimbabwe's state broadcaster is up in arms after the United States denied
its chief executive officer a travel visa.

Happison Muchechetere had been hoping to travel to the United Nations
General Assembly in New York.

Usually Zanu-PF officials are able to circumvent travel bans when they
travel to the UN.

This time though the US has decided to get tough.

Acting Consul Amy Diaz has told the head of ZBC that he's banned from New

She says Muchechetere is on a list of Zimbabweans considered to be blocking
the transition to multi-party democracy in the country.

Media watchdogs say there has been an upsurge of hate speech in state media
in recent weeks.

Most of it is directed against Morgan Tsvangirai and his Movement for
Democratic Change party.

The prime minister says President Robert Mugabe's spokesman George Charamba
is controlling the public media and he has to go.

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MDC dismisses parallel government reports

September 19, 2009

FULL text of a statement issued by the Movement for democratic Change on
Friday, September 18, 2007:

The MDC dismisses mischievous press reports alleging that the Prime
Ministers office has set up a parallel government with its staff earning
salaries of at least $7 000 per month while the rest of the civil service is
earning salaries of $140.

For the record, Hon Tsvangirai is the Head of Government and there is no way
he can form a government which is parallel to the one he heads. It is
inconceivable that the Prime Minister can create another government apart
from the one he is in charge of. It is inconceivable that the Prime Minister's
staff complement of 11 people out of an estimated 350 000 civil servants can
be said to constitute not just a "government", but a parallel government for
that matter.

Out of the 11 employees, only three have had their contracts formalised by
the Public Service Commission.

The real scandal is not the speculation and lies that the Prime Minister's
staff is being paid salaries from the World Bank. The real scandal is the
attempt by the Public Service Commission to undermine the Prime Minister's
Office by failing to formalize the appointment of staff in the office of the
Head of Government.

This scandal is an attempt by Zanu-PF, through its sidekicks, to undermine
and soil the image of the Prime Minister's office through falsehoods and

The only shadow government is being run by a known civil servant in the
Ministry of Media, Information and Publicity who continues to peddle hate
speech in the public media and to sow divisions by maligning ministers and
officials of the inclusive government.

Instead of shadow hunting, we urge certain quarters of the government to
start using important space in state media to provide answers to issues of
the abuse of rule of law in an attempt to deliver real change to

The MDC is a party of excellence. We are concerned with improving the lives
of the people of Zimbabwe who have invested their hope in this inclusive
government. We want to restore the people's dignity, security, democracy and
freedom, prosperity and hope.

Together to the end, marching to a new Zimbabwe.

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A reply to the Chinamasa response, from the CFU's lawyers


























Cape Town



18 September 2009




1.            Our Consultant is the Commercial Farmers Union.


2.            We have been asked to consider the response by the Minister of Justice and Legal Affairs of Zimbabwe to three separate legal opinions.  The opinions were prepared by the Zimbabwe Human Rights NGO Forum, Zimbabwe Lawyers for Human Rights and us.  In those opinions statements made by the Minister were evaluated and the conclusions, reached independently, were unanimously that the Minister’s statements were wholly unmeritorious.  His statements were to the effect that the South African Development Community (SADC) Tribunal did not have jurisdiction over the Government of Zimbabwe, because Zimbabwe did not ratify the Protocol on the Tribunal.


3.            In his response the Minister now purports to invoke what he considers to be the dormancy of a 2001 amendment to the SADC Treaty.  However, for reasons discussed below, his assumption is neither correct nor does it provide support for his contention.


4.            Accordingly we consider also the Minister’s most recent construct misconceived, and note that numerous imminent and disinterested professional bodies have concluded likewise.[1] It is to be trusted that they are not to be the subjects of the (notably defensive) personal remarks the Minister found appropriate to direct at us.




5.            As mentioned in our previous opinion, over the past two years we have been engaged in litigation in the SADC Tribunal on behalf of members of our Consultant.  During the same period we have also appeared in other matters against the Government of Zimbabwe before the Tribunal.  One of these concerned twelve Zimbabwean torture victims who were members of the official opposition political party.  Another matter concerned the extra-judicial execution against the farmland of one of the first indigenous commercial farmers in Zimbabwe.  All of these matters required extensive litigation before the Tribunal, because the Government of Zimbabwe invoked numerous procedural objections under the Protocol.


6.            It was in the light of our engagement in litigation before the Tribunal against the Government of Zimbabwe that we considered the legal validity of the Minister’s statements.  For our conclusion that the Minister’s statements lacked any validity, we provided four independent reasons, which we briefly repeat.  We do so in view of the striking inability of the Minister to offer any considered answer to them.


7.            Firstly, we pointed out that Zimbabwe was, and still is, a signatory to the SADC Treaty and therefore has submitted to the Tribunal’s jurisdiction as State Member.  It is a trite principle both in international law and all domestic legal systems with which we are familiar – including that of Zimbabwe – that once jurisdiction is established in a matter, it cannot be lost – least of all on a belated, unilateral disavowal, as is here the case.  It is clear that article 16 the Treaty, also before the 2001 amendment,[2] constitutes the source of the Tribunal’s jurisdiction.  Accordingly this basis of jurisdiction is not challenged by the Minister, but indeed confirmed, as we shall show below.


8.            Secondly, we noted that Zimbabwe was, and still is, bound to the Protocol despite not ratifying it.  This conclusion was based not only on article 16(2) of the Treaty subsequent to its amendment,[3] but also affirmed by Zimbabwe’s acceptance of the Protocol.  It accepted the protocol by signing it, proceeding under it, actively invoking it and by seconding a judge to the Tribunal under it.


9.            Thirdly, we referred to yet another independent basis of jurisdiction.  Quite apart from jurisdiction conferred by either the Treaty or the Protocol, Zimbabwe has itself conferred competency upon the Tribunal by submitting to its jurisdiction at numerous instances during separate proceedings.  We noted that it was well established that such submission irretrievably conferred jurisdiction on the Tribunal even if none existed otherwise.


10.        Finally, we added that the SADC Tribunal was, and still is, the designated body to decide whether it had jurisdiction over the government of Zimbabwe.  That body had meticulously considered the very question and answered it in the affirmative.  The Tribunal’s determination of the issue is conclusive,[4] and its finding has long since been accepted, under oath, as correct by the country’s two most senior lawyers, the Attorney-General and Deputy Attorney-General.


11.        We stand by all of the above reasons, and note that independent and reputable lawyers’ associations throughout the continent have based their deprecation of Mr Chinamasa’s comments on similar reasons.  Nevertheless, we proceed to engage with the Minister’s criticism.




12.        The Minister attacks our opinion on all four of the above bases.  Before dealing with each in turn, the Minister’s contention that “the Tribunal exercised jurisdiction over Zimbabwe on the basis of the principles enunciated in the Treaty when in fact these principles do not create legally enforceable obligations” requires comment.


(a)      Whether the Treaty creates legally enforceable obligations


13.        The question whether the SADC Treaty establishes justiciable and enforceable legal obligations has been determined conclusively by the Tribunal in the Campbell matter.  The Tribunal forcefully rejected this contention, holding that in terms of both article 4(c) of the Treaty and article 21(b) of the Protocol the Tribunal is competent to adjudicate and enforce human rights, and authorised to draw on applicable treaties, general legal principles and rules of international law.[5]


14.        Further, article 4 of the Treaty, which tables its governing principles, emphatically imposes a duty on member States to adhere to inter alia human rights and the rule of law.  It peremptorily states that “SADC and its Member States shall act in accordance with” [emphasis added] the stated principles.  This too establishes that human rights are justiciable and enforceable under the Treaty.  Also article 6 of the Treaty clearly provides that the objectives of SADC, contained in article 5 of the Treaty, constitute enforceable legal obligations.


15.        Therefore there undeniably are legally enforceable obligations under the SADC Treaty on Member States.  Those obligations include the duty to refrain from implementing racially discriminatory policies, expropriating land arbitrarily and without compensation, and ousting courts’ jurisdiction to adjudicate on human rights infringements;[6] to refrain from adopting and maintaining measures to facilitate the extra-judicial execution upon fixed property;[7] and to refrain from torturing political dissidents, and subsequently to disregard contemptuously court orders to pay compensation to the victims.[8]  It is atrocities like these that the Minister contends Zimbabwe is at large to perpetrate because the Treaty does not censor it.  The contention is as devoid of legal substance as it is of moral principle.


16.        Indeed, so baseless this contention is that at the hearing of the Tembani matter counsel for the Government of Zimbabwe disavowed any reliance thereon, despite the fact that its procedural objection in terms of the Protocol was premised on it.  Accordingly, contrary to the Minister’s contention, under the SADC Treaty there can be no impunity for infringing human rights on this basis.  And, for reasons we now turn to, these atrocities cannot be palliated by invoking any of the other bases on which the Minister seeks to rely.


(b)      Whether the Minister’s criticism is meritorious


17.        In our view an individual inquiry into each of the Minister’s “responses” indicates that his criticism lacks merit.


(i)       First response: Status of Treaty


18.        The Minister’s first critique is that the Tribunal does not have any jurisdiction because the Protocol “has not yet entered into force” and because Zimbabwe has not yet ratified the Protocol.  This contention is wholly unsupportable, for it is the Treaty (and not the Protocol) that constitutes the primary source of jurisdiction of the Tribunal.  This is confirmed by article 16 of the Treaty and the Tribunal’s judgment in the Campbell matter.


19.        Under this ground of critique the Minister accepted, as he had to, the Treaty’s validity and that Zimbabwe is bound by it.  Accordingly he must acknowledge that there can be no supportable basis for challenging either the Tribunal’s jurisdiction or the binding effect of its judgments as provided for by the Treaty.  On this basis alone the Minister’s repudiation of the Government’s duty to comply with the Tribunal’s orders is unsustainable.


20.        Accordingly, even if the Minister’s contentions regarding the Protocol’s operation were supportable, they do not detract from the Tribunal’s jurisdiction.  But those contentions fall to be rejected too, as demonstrated next.


(ii)      Second response: Status of Protocol


21.        In furtherance of his contention with regard to the status of the Treaty, the Minister goes on to contend that the 2001 amendment to the Treaty does not bind Zimbabwe.  This is allegedly because Zimbabwe did not ratify the 2001 amendment.


22.        In order to evaluate the merits of this contention it is necessary to provide a brief background to the amendment.  The amendment inserted that part of the text into article 16(2) of the Treaty which renders the Protocol “an integral part of th[e] Treaty” “notwithstanding the provisions of Article 22” thereof.[9]  Article 22, in turn, provides for the conclusion of protocols, as necessary, “in each area of co-operation”.  Sub-article (3) renders such protocols open to signature and ratification, and sub-article (4) regulates protocols’ entering into force.  The latter occurs thirty days after the deposit of the instruments of ratification by two-thirds of Member States.  It is against this background that the Minister’s criticism is to be viewed.  He alleges that because it was ratified by neither a two-thirds majority nor by Zimbabwe, and because ratification of the Protocol was required (which contention he bases on the allegation that the 2001 never entered into force), the Protocol does not bind the Government of Zimbabwe.


23.        This contention is not only convoluted. It is also utterly unsupportable.  So much so that the Government’s legal representatives have not once attempted to invoke it in any of the many proceedings before the Tribunal.  This in itself, it may be noted, provides sufficient reason to reject the contention without more, because it is for the Tribunal to determine any disputes regarding the status, validity, interpretation and provisions of the Treaty and its protocols.[10]  For an unsuccessful State litigant subsequently to dispute the Tribunal’s jurisdiction on a ground not advanced before it is a severe affront to the rule of law, as pointed out in the Arusha Communique.[11]  But the contention is not only bad for the rule of law, it is also bad in law.  This the following reasons show.


(aa)      Article 22 never applied to article 16


24.        It is apparent from the Treaty’s text as it stood before amendment that article 22 of the Treaty did not apply to it.  Article 22 only applied, as it still does, to protocols adopted to facilitate co-operation in specified areas.  This is borne out by the text of and context to article 22; the nature of the Protocol; and subsequent conduct of its signatories.


25.         Firstly, article 22(1), which is unaffected by the 2001 amendment, provides:


“Member States shall conclude such Protocols as may be necessary in each area of co-operation, which shall spell out the objectives and scope of, and institutional mechanisms for, co-operation and integration” [emphasis added].


26.        Its text and context show that article 22 does not apply to article 16.  Article 22 forms part of Chapter Seven of the Treaty, which comprises articles 21-23, and applies to protocols governing co-operation between State Members.  Article 21 provides for eight distinct areas of co-operation, none of which involves dispute resolution.  Article 16, however, forms part of a distinct chapter dealing with SADC institutions.  It is thus schematically divorced from, and semantically absolved from, the provisions governing the entry into force of protocols adopted in furtherance of co-operation in the designated areas as envisaged in Chapter Seven.


27.        This is, secondly, confirmed by the nature of the Protocol on the Tribunal.  The Protocol does not impose additional substantive duties not already conferred by the Treaty on State Members.  It substantially provides for the conduct of proceedings before the Tribunal.  For this reason it was the intention of Treaty signatories that the Protocol should enter into force upon assent by the Heads of State.[12]  To clarify this, it was specifically amended in 2002.  The position is similar under national law, where rules of court and procedures governing litigation are not the stuff of parliamentary enactment.


28.        Thirdly, the subsequent conduct by State signatories confirms that the Protocol is indeed already legally operative.  For example, State Members have implemented the Protocol on the Tribunal by appointing judges to staff it, and a comprehensive infrastructure was established pursuant to the Protocol.  Further, on 3 October 2002 State Members amended the Protocol on the Tribunal, recording emphatically that the Protocol entered into force on 14 August 2001.  Zimbabwe signed this unanimous recognition and, on the most basic of legal principles, is bound to it even if only by so signing.


29.        In addition, the Government of Zimbabwe’s own extensive reliance on the Protocol in all Tribunal proceedings involving it makes short shrift of the Minster’s contention that the Protocol never entered into force.  We note, however, that the relevance of Zimbabwe’s reliance on the Protocol goes beyond merely exposing the Minister’s contention as both humbug and a contrivance.  Invoking the Protocol before the Tribunal constitutes an additional independent legal basis on which Zimbabwe is bound to the Protocol.


(bb)      Provisions governing amendments to the Treaty


30.        The above analysis already demonstrates that the Minister’s criticism is incorrect.  However, on the assumption that article 16(2) did require amendment to render the Protocol operative (as the Minister would have it), we consider his subsequent contention.  It is based on article 32 of the Agreement Amending the Treaty.


31.        Article 32 provides that the Agreement shall enter into force “on the date of its adoption by three-quarters of all Members of the Summit” [emphasis added].  It follows the wording of article 36 of the Treaty, which deals with amendments to the Treaty.  The wording is significant.


32.        The designation “Members of the Summit” refers to Heads of State, not to governments of Member States.  Accordingly the Agreement provides for its adoption by a special majority of the Heads of State only, upon which it enters into force.  Moreover the Heads of State unanimously adopted the Agreement by expressly agreeing thereto and signing it.[13]


33.        If this is not enough, also subsequent events provide evidence that Members of the Summit indeed intended the Agreement’s operation prior to ratification.  The events show that Summit Members, and their governments, have implemented the Agreement in various ways.  So has Zimbabwe.  For example, Zimbabwe was invited to and attended the meeting of the SADC Ministerial Troika of the Organ on Politics, Defence and Security Cooperation in Dar-es-Salaam.[14]  Both this organ and the innovation of Troikas to head certain SADC institutions were introduced by the Agreement.[15]  This clearly demonstrates that, like all other State Members, Zimbabwe intended the Agreement to operate prior to ratification and have bound itself to that Agreement.


34.        Accordingly the amended article 16(2) did enter into force without the need for ratification.  State parties are, of course, perfectly competent to agree to amendment treaties without the need for ratification.[16]  They are accordingly bound by amendments so effected.  Accordingly the Minister’s erroneous contention that “[b]efore the 2001 Agreement can enter into force, it must be ratified by two-thirds of the Member States” [emphasis added] is a gross misrepresentation of the legal position.  It unravels the flimsy fabric of the Minister’s fallacy.


      (cc)      Contention in any event untenable


35.        But the Minister’s contentions are not only self-destructive on the bases on which he seeks to rely.  It is also untenable for other reasons.


36.        Even had the Protocol required ratification for its entry into force or for Zimbabwe to be bound by the Tribunal’s orders, Zimbabwe’s failure to ratify it cannot be invoked by it.  For, firstly, non-ratification of a Protocol – if the Protocol has been consented to by the Head of State, as has been done by Mr Mugabe, and if the Protocol requires ratification, as is not the case – constitutes a breach of article 5 of the Treaty.  A Member State cannot invoke its own breach to sever it from liability under the Treaty. 


37.        Secondly, it is a general principle of international law that a State may not act contrary to a treaty it has consented to but has not formally ratified.[17]  So doing is also contrary to the fundamental principle in treaty law that treaties are binding on State parties and must be performed in good faith.[18]


38.        Thirdly, to now repudiate the Protocol also constitutes a violation of national law.  By signing the Treaty, its amendment and the Protocol and its amendment the Government of Zimbabwe created an enforceable legitimate expectation that it would give effect to those instruments and thus adhere to orders against it by the Tribunal.[19]  The Minister’s attempt to escape the operation of SADC Tribunal orders in Zimbabwe by belatedly challenging the Tribunal’s jurisdiction is inept as well as without principle: his Government’s actions have already made the orders enforceable as a matter of domestic law.


(iii)       Third response: No Protocol, no power


39.        Next Mr Chinamasa contends that if there is no Protocol, the Tribunal is shorn of all power.  He bases this contention on his first two grounds of criticism.  Accordingly, this contention stands or falls by the correctness of the first two.  Since the reasoning above shows that both bases for the Minister’s premise are misconceived, the third ground of criticism is equally unmeritorious.  In short, the Tribunal derives its jurisdiction from the Treaty and the Protocol binds Zimbabwe without ratification.  Accordingly the Tribunal has jurisdiction and wields the panoply of powers provided for in the Protocol.


40.        Before proceeding to the final point, an observation must be recorded.  The Minister’s response to our advice on the third issue is an exercise in cynicism.  He insinuates that our opinion inaccurately represents the correct legal position.  He does so by omitting in his quotation of the relevant paragraph of our opinion the case-law cited as authority for the established legal rule there referred to.  This provides the impression to a lay audience that the rule referred to is a mere figment of our imagination.  The impression is intentionally created, and sought to be affirmed by labelling our articulation of the legal position “wishful thinking”.  Such tactics are not merely disreputable, but also adversely impact on the rule of law.  Where a Minister of Justice distorts a legal opinion that exposes his abuse of the law, the rule of law itself is compromised.


(iv)       Fourth response: Zimbabwe a law unto itself


41.        Finally the Minister positively repudiates the rule of law by insisting that Zimbabwe is at large to decide whether it is bound by the Tribunal’s rulings or not.  He avers that a State may invoke its own constitutional provisions to renounce an international legal obligation.


42.        This is yet another example of the Minister misstating a clear and fundamental principle of international law.  The correct legal position is the opposite: a State may not invoke its internal law, including its constitution, as excuse to dishonour a treaty obligation.[20]  Were this not so, a State could shelter behind its own legislation permitting any infringement of human rights, even genocide.  That is the terminus of the Minister’s reasoning.


43.        As to the Minister’s contention that the Tribunal has not yet considered his Government’s newly-contrived stance on jurisdiction, the following.  The discussion on the second ground of attack shows that the point now taken is utterly unsupportable.  Presumably it is for this reason that not even Zimbabwe’s own lawyers would present it to the Tribunal.  Had the Tribunal have had occasion to consider this contention, it would no doubt have rejected it categorically and rebuked Zimbabwe with another punitive costs order for invoking such frivolous and vexatious constructs.




44.        For these reasons then it remains our view that there is still no bona fide basis for the contention that rulings by the Tribunal do not bind the Government of Zimbabwe.



We advise accordingly.















Cape Town

18 September 2009

[1] These bodies include (1) the East Africa Law Society, the Southern Africa Development Community Lawyers Association; (2) the West African Bar Association; (3) the Pan-African Lawyers’ Union; (4) the Coalition for an Effective African Court on Human and Peoples’ Rights; (5) the African Regional Forum of the International Bar Association; and (6) the International Commission of Jurists.  See African Bar Associations and Rule of Law Institutions Arusha Communique (16 September 2009) at para 2 available at (accessed on 17 September 2009).

[2] The original text of article 16 provided:

“1.     The Tribunal shall be constituted to ensure adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it.

  2.      The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol adopted by the Summit.

  3.          Members of the Tribunal shall be appointed for a specified period.

  4.      The Tribunal shall give advisory opinions on such matters as the Summit or the Council may refer to it.

  5.          The decisions of the Tribunal shall be final and binding.”

[3] A clarification was added by amending subsection (2), giving effect to State parties’ intention to be bound to the Protocol upon their heads of government adopting it.  We note that being bound before an act of ratification is unremarkable – in national law, mere regulatory rules of court (as the Protocol effectively is) are routinely adopted without the input of a democratic process before a legislature.  Following this rationale, the emphasised words were added to clarify that the Protocol entered into effect upon adoption:

          “The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol, which shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty, adopted by the Summit.”

[4] Article 16(5) of the Treaty.

[8] This was the cause of action in Zimbabwe Human Rights NGO Forum v Government of Zimbabwe SADC (T) Case No 5/2008.

[9] For the full text of the relevant subsection before and after the 2001 amendment, see nn 2 and 3 above.

[10] Article 16(1) of the Treaty.

[11] African Bar Associations and Rule of Law Institutions Arusha Communique (16 September 2009) para 1bis available at (accessed on 17 September 2009).

[12] The repeal of article 38 of the Protocol by the Agreement Amending the Protocol on Tribunal (signed on 3 October 2002 by all State Member, including Zimbabwe) supports this conclusion.

[13] As article 9(1) of the Vienna Convention on the Law of Treaties (1969) provides, adoption takes place by consenting to a treaty’s text, as the Member States unanimously did.

[14] See “SADC Ministerial Troika of the Organ on Politics, Defence and Security Cooperation meets in Dar-es-Salaam” (28 May 2007) at para 2 (accessed on 17 September 2009).

[15] Article 10 and 12 of the Agreement inserted respectively articles 9A and 10A into the Treaty.

[16] Article 11 of the Vienna Convention on the Law of Treaties (1969); Shaw International Law 4th ed (Cambridge, University of Cambridge Press 1997) at 639.

[17] This principle is affirmed by article 18 of the Vienna Convention on the Law of Treaties (1969).

[18] Shaw International Law 4th ed (Cambridge, University of Cambridge Press 1997) at 633 and authorities collected in n 7.

[19] Professor Nyong’O v Attorney-General of Kenya East African Court of Justice Reference No 1 of 2006 (30 March 2007) at 41.

[20]  Article 27 of the Vienna Convention on the Law of Treaties (1969); article 13 of the Draft Declaration of Rights and Duties of States (1949).

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Deputy PM shares her frustrations and hopes
Friday, 18 September 2009

The Deputy Prime Minister of Zimbabwe,Thokozani Khupe, was in Gaborone for three days to attend the just ended International Parliamentary Union Conference.

In her address to the conference on Tuesday, Khupe said the fashionable system of inclusive governments or government of national unity such as adopted in Kenya and Zimbabwe are wrong in that they keep incumbents in power even after elections have determined otherwise.

"This unfortunate development in our continent should be frowned upon," she said. "It should be given no room to flourish. It is no solution to political exclusion nor is it a solution to political intolerance. I am not against political accommodation, I am not against coalitions, I am not against governments of national unity and not against a positive sum approach; but I am opposed to the subversion of the will of the people. I am opposed to the violation of national constitutions in order to maintain power by all means necessary."

Khupe said credible leaders must respect the constitution and the outcome of elections because inclusive governments bring with them challenges of power struggles between the two political parties involved. Nevertheless, she believes Zimbabwe will meet the October 2010 deadline for the completion of constitutional amendments leading to elections.

BAME PIET spoke with her on the sidelines of the conference at Boipuso Hall.

Mmegi: Can you tell us about the safety and security of MDC ministers and MPs and say whether you feel safe in your houses and on the streets?

Khupe: Certainly our MPs are not safe. Some of you would know that our MPs have been persecuted and arrested in majority of cases on trumped up charges. If you look deeper into the cases, you find that they are charged for no apparent reason. But I have always said that God is the only one who takes care of all of us. The truth of the matter is that security is not guaranteed 100 percent. Government provides security, but the issue of persecution of our MPs and staff is not proper. We have government security and our own.

Mmegi: In your view, has President Jacob Zuma done enough when he was SADC Chairman to help Zimbabwe out of the problems you are in? And do you think the coming in of DRC President Joseph Kabila as SADC Chairman is going to improve the situation in Zimbabwe?

Khupe:  As you know, the Zimbabwean issue has been on the agenda for quite a long time within SADC and within the African Union. For us the position is that we are going to continue knocking at the door of SADC regardless of how they handle the issue; we are going to continue knocking at their door because they are the guarantors of this agreement. I think President Zuma has done very well because I'm told he highlighted the issue at the plenary session and that President Kabila is also willing to take up the issue.

I'm pretty confident that he will assist in finding a solution to our problems.

Infact, there was no need for us to be going to SADC. I think it was important for us as the people of Zimbabwe, as a country, to try and resolve those issues internally because they are not difficult. We had agreed on a formula on how to appoint our governors. We know that MDC was supposed to get five, ZANU PF four, the other MDC one. What is left is for those issues to is be implemented because right now the hurdle is implementing what we agreed on. I'm saying it is important for us as a country to try and resolve our own issues without going to SADC or the AU because they have already done their bit and now the challenge is with us Zimbabweans.

Mmegi: How has been the response of the European Union and the United States  for calls to have the sanctions against Robert Mugabe and his close allies lifted?

Khupe: The first question you must ask yourself is why those sanctions? Why were they imposed? Sanctions were imposed because of a special reason - human rights abuses, the absence of the rule of law and all the evil things against civilians. Let us do those things that will make the sanctions automatically go away. If you say Tsvangirai must tell those people to lift the sanctions, is he the one who said they must impose them? Even if Tsvangirai was to stand on the top of the highest mountain and shout at the top of his voice, that would not remove the sanctions. As long as we Zimbabweans are not doing those things that will end the sanctions, they will stay. Those people are saying this is what is happening on the ground. What is wrong with us? Why can't we do the right things? Once we do the right things, nobody will have any excuse to impose sanctions on us.

Mmegi: There are reports that there is a rift between Prime Minister Morgan Tsvangirai and Tendai Biti. How true is that?

Khupe: There is no rift at all between the Secretary General and my President. Not at all.I am the Vice President of our party and I know that we have a very good working relationship. We are doing fantastically well. We had our 10th anniversary right in Bulawayo on the 13th of this month and the turnout was enormous. We have never had such a turnout since the formation of our party. And this is a clear indication that our party is working as a united party. We have gone through trials and tribulations, but we are still moving on.

Mmegi: Do you think it is possible for Zimbabwe to hold free and fair elections while Mugabe is still around?

Khupe: Elections can only be free and fair when the environment allows people to go and vote. That's not the case. But at the moment in Zimbabwe, we are engaged in a constitutional amendment programme. That amendment, we demand, must guarantee free and fair elections. At the same time, we are engaged in legislation reforms. We want to make sure we reform POSA (the Public Order and Security Act), we reform our AIPA (Access to Information and Privacy Protection Act), and all the laws that don't allow people to exercise their democratic rights.

We are also opening up the media because the media plays an important role. We want every media which wants to come and report in Zimbabwe to be free to report on anything because the more they come and the more they report about Zimbabwe, they will start telling the truth. But if you don't allow them in, they will report about the things they hear from outside our borders. What is it that we want to hide about Zimbabwe?

We want to democratise our institutions and when complete (that), people can vote in a free and fair election. But you know that even if people vote, the problem is the incumbent government not wanting to hand over power to those whom the people have voted for. African leaders must accept defeat. If you have lost, you have lost; you must congratulate your counterpart. But  in Africa  people want to die in power. People must learn to leave and let others take over and give advice where necessary. Leave with dignity, and you will be respected forever!

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Football Fails to Feed Families

By Ignatius Banda

BULAWAYO, Sep 18 (IPS) - Football was never a ticket to fabulous wealth in
Zimbabwe, at least not for players who stayed in the country. But the
economic situation has made it ever harder to play simply for the pride and
pleasure of pulling on local team colours.

Before the economic downturn in the late 1990s, the simple pride of
appearing for the local team inspired many young Zimbabwean footballers, who
were not necessarily choosing soccer as a career to earn a living.

Players past and present agree it was rather a love for the sport, the
chance to exhibit one's skills on the dusty football pitch to the envy of
the community that drove players.

There was a time when in addition to their wages, Zimbabwean footballers
would receive stipends from wealthy fans. But supporting a team by attending
football matches is a luxury not many can afford. Clubs' finances have
suffered along with the rest of the economy.

"We (players) just do not get enough as our teams depend on gate takings. If
supporters do not come to our matches, it means we do not get paid," says
Gilbert Banda, a celebrated defender who has made two appearances for the
national team.

Zimbabwe's Premier Soccer League has imposed a salary cap on players'
salaries, setting wages at between 100 and 150 U.S. dollars a month, with
another $30 in match bonuses. But the Zimbabwe Congress of Trade Unions
insists that players - like anyone else - must get a living wage, which the
country's Central Statistical Office estimate should be at least $400. The
ZCTU concedes some workers take home as little as $20 a month - teachers are
earning around $150.

"There is no money here," another player told IPS, speaking on condition his
real name not be used for fear of punishment by his club for speaking to the
press about poor salaries.   "I used to play for one of the country's top
clubs in the capital city (Harare)," the player said, "but that was the
worst time of my life as I was forced to live in a shack, because I had no
accommodation of my own."

Banda agrees. "People see us on the pitch and they think we are living the
life. But we cannot eat celebrity," he said. "We have families, but how can
we feed them if our clubs are not giving us what we need? Football is our
only source of income."   Player revolts have become common as players press
for better remuneration. Several months ago players at Monomotapa Football
Club threatened to boycott matches after a pay dispute with club officials.
Another club is being threatened with relegation because players are
refusing to turn up for matches, citing non-payment of salaries.

In their efforts to be heard, players in the top division, the Premier
Soccer League (PSL), petitioned the Zimbabwe Congress of Trade Unions to
lobby for better remuneration, after revelations players were being paid as
little as 70 U.S. dollars a month.

Players who spoke to IPS say there remains no clear union for them to
present their grievances to either the PSL or the ZCTU, so their plight is
set to continue, despite the ZCTU's insistence that the players' labour
rights are being violated.

"Soccer players are also workers who have families to fend for, and are
therefore also entitled to earn a living wage," said Wellington Chibebhe,
ZCTU secretary-general. But players bemoan the fact that they are not
formally represented by any organised union, making collective bargaining
with team officials impossible.

But club officials insist they cannot meet player demands. Kennedy Ndebele,
secretary general of the PSL, told IPS he could not comment on player
grievances, despite the fact that player boycotts over pay could lead to the
suspension of the league as clubs are unable to field full teams.

"It has been terrible for these local footballers," said Engelbert Phiri, a
Zimbabwean soccer analyst now based South Africa. "Some who moved to the
South African premier league are getting what their counterparts in Zimbabwe
can only dream of."

The comparisons are painful - and an illustration of the enormous
differences in football's fortunes in different parts of Africa. Just across
the border in South Africa, corporate sponsorship and money from television
broadcast rights means the average wage for players in that country's top
division is around $1,600 a month. Top players at clubs like Kaizer Chiefs
and Mamelodi Sundowns are earning more than $20,000 a month.

And like many others, Zimbabwean footballers are desperate to move to
greener fields. "I remember a player from the (Zimbabwe) premier league
selling soccer boots to raise money to illegally cross the border to South
Africa. He had already talked to some guys who were supposed to smuggle him
through the border," Phiri said.

Crossing the border is only the first difficult step on the road to
footballing riches. For every Zimbabwean to strike it rich overseas -
players like Chiefs' Onismor Bhasera or Benjani Mwaruwari, who is believed
to be earning nearly $100,000 a week at English club Manchester City, many
other possibly equally talented players fail to make it.

As South Africa prepares for the 2010 World Cup, the sport's most
extravagant and costly stage, one wonders how much will filter back beyond
its frontiers - borders that may not matter much to the pint-sized dreamers
in Bulawayo, Bukavu or Bamenda, chasing plastic balls between stone
goalposts in the dusty streets.

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A hidden agenda?

Dear Family and Friends,

A barking dog, a bang at the gate and all sanity and equilibrium is
gone as a young man hands over a piece of paper saying he's come to
disconnect the electricity. The printing on the disconnection notice
is so faint it is almost illegible. Even with glasses it cannot be
read and it takes a magnifying glass to expose the absurdity.

The notice was issued on the 11th of September but is only being
delivered five days later on the 16th of the month.

"Where have you been for five days?" I ask.

He shrugs and says nothing. The date is not the only thing wrong with
the notice from ZESA, the electricity company. Something called an
'extra deposit' has been crossed out by hand. The re-connection fee
has been changed, by hand and the total amount owing has been crossed
out and re-written, by hand.

I hand over my last statement from ZESA to the youngster at the gate
and politely tell him there must be a mistake.

"Look, Zesa issued me with a credit balance last month, there's no
way I owe them 757 US dollars (473 British pounds) for one month's
residential consumption."

The youngster who is not in uniform or marked clothing and has no
identification of employment, shrugs his shoulders boredly and tells
me to go and see the accounts office in town.

The nightmare begins.

In an hour I see 5 different ZESA employees in their offices and not
a single one even has manners enough to say good morning. This simple
absence is shocking in a country where courtesy and greetings are

everything. It is disgraceful in a public company and at a time when
the country is trying to attract investors and restore confidence
after a decade of collapse.

My requests for explanation as to how a credit balance on my account
one month could lead to such a huge debit on the next, were met with
hostility and aggression. I am passed from one rude and bored
employee to another until finally a man who does not greet me or look
at me, takes my account and taps numbers incessantly into a computer.
After some time I ask him what it is that he is doing and he says he
is spreading the debt out over the last six months and working out a
payment plan.

"What debt?" I ask. "Where has this huge debt come from?"

By now I am not the only angry customer in the office, there are half
a dozen other desperate people also trying to get explanations for
massive electricity bills. Voices are raised.

ZESA have been under-charging since February, we are told. The rates
have gone up and been backdated 7 months. When we ask for proof, Zesa
tell us the new rates have been approved by the Minister of Energy, Mr
Mudzuri. When we ask for written notice of the new rates and for the
Ministers approval of the back-dating, we are told to come back
another day. For now the growing crowd of angry customers all have to
pay 10 US dollars to be reconnected and have to agree to a debt
re-payment plan. Its a ridiculous plan because the monthly repayment
is already more than most people's entire monthly income.

As hard as we fight our way out of the deep hole the previous
government pushed us into, so the parastals and utilities suppliers
fight just as hard to destroy us again. Many people are saying
there's a hidden agenda here, perhaps there is ? Until next week,
thanks for reading, love cathy.Copyright cathy buckle 19th September

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Does Mugabe really want a solution in Zimbabwe?  Botswana

by Tanonoka Joseph Whande
19.09.2009 1:39:52 P

The past four weeks saw a lot of activity as the international community
tried to push Zimbabwe's lethargic and cantankerous government of national
unity to move forward and implement the full Global Political Agreement
signed a year ago.

As usual, SADC was a big disappointment as it failed to stamp its authority
on matters that it creates for itself.
It has always been difficult for other nations to go over SADC and adopt
policies or offer assistance without SADC. Many times SADC's silence or
pronouncements on Zimbabwe stopped nations outside Africa from doing
something about the situation in Zimbabwe.

South Africa, during the days of disgraced former president Thabo Mbeki,
also acted as a buffer for Robert Mugabe by blocking any attempts to table
and discuss the problems in Zimbabwe.

Although Mugabe's excesses and human rights violations were there for
everyone to see, South Africa's behavior at the United Nations succeeded in
giving the impression that Zimbabwe was a victim of both former colonial
power Britain and the United States.

African nations continue to behave as if they do not know what the real
problem in Zimbabwe is.

I have therefore come to the conclusion that the world wishes us well but
not SADC, especially South Africa, because these two continue to shield the
man who is at the center of all that is wrong in Zimbabwe today.

In November last year, seventy-nine white commercial farmers rightfully took
their case to the SADC Tribunal and won an order barring the government from
compulsorily acquiring their land without paying compensation.

The court further ordered government to compensate those who had lost their
land under Zimbabwe's violent land reform programme since 2000.

But Mugabe steadfastly refused to abide by the court's rulings, which he
says are in conflict with the country's land acquisition laws.

Early this month, Zimbabwe formally withdrew from the jurisdiction of the
SADC Tribunal. This was obviously a move to blunt and avoid being held
accountable for the two judgments passed against him by the Windhoek-based

One would have hoped that problems of law and order, human rights, and
instability in a member state such as Zimbabwe is going through, would be of
primary importance when SADC Summits are called but in their last summit a
few weeks ago, SADC did not even mention the issue of a member state
refusing to adhere to agreed protocols. In fact, they spent time trying to
avoid discussing the Zimbabwean issue all together.

But Mugabe has done it before.
Several years ago, he refused to implement the SADC Principles and
Guidelines Governing Democratic Elections, something he continues to do to
this day.

And in 2002, Zimbabwe was suspended by the Commonwealth and the following
year, Mugabe, to avoid humiliation, decided to withdraw Zimbabwe from the

Because of human rights abuses, violence, corruption, economic plunder and
other transgressions, the international community, minus Africa, of course,
imposed travel bans on Mugabe and his close aides.

This was an effort to force them to stop the abuse of people and to stick to
law and order.

During the recent SADC Summit in the DRC, African leaders had the audacity
to ask European and western governments to lift those sanctions against
Mugabe and his cronies as if things were back to normal. They did not say
anything about how Mugabe was violating SADC protocols.

"Significant progress has been made under the auspices of the inclusive
government," South African President Jacob Zuma told fellow leaders. "We are
all encouraged by how the three parties put their differences aside."

He added: "These achievements signaled to the people of Zimbabwe, the region
and the world, that the Zimbabwean political leadership was ready to
collectively tackle the political and the socio-economic challenges facing
that country," added Zuma.

But Prime Minister Morgan Tsvangirai had a mouthful to say and complain
about, only to be shut out.

As Zuma was saying this, farms were being set on fire in a bid to force the
owners off the land and three MDC activists were murdered in a spate of a
month leading up to and during the SADC meeting.

On the day the SADC Summit opened, Tsvangirai's MDC reported that yet
another of its activists had been murdered in an incident linked to renewed
political violence.

It identified the deceased as Godknows Mtshakazi (33), who was reportedly
beaten to death by four soldiers at a township in Shurugwi, Midlands
His crime: playing a popular MDC song in a bar.

Edwin Chingami (32), who had fled Zimbabwe, ironically to South Africa for
protection, during last June's violence, was murdered by ZANU-PF supporters
upon his return home.

Reports say that another MDC activist, Joseph Munyuki, died recently at
Masvingo Hospital where he had been receiving treatment for injuries
sustained from a brutal attack by a known ZANU-PF supporter.

As this mayhem was going on, there was also a marked, simultaneous increase
in farm invasions.

Mugabe's inflammatory speech to the ZANU-PF Youth League conference does not
help matters.

Murray Pott, a white farmer from Mugabe's home province of Mashonaland West,
is recovering from serious injuries after a brutal beating by invaders on
Tuesday. He was attacked on his farm by ZANU-PF youths who were trying to
take over the farm.

"Once people have offer letters (to take over a farm) and they are valid,
that's it. The farm is not yours anymore," said Mugabe to the youth
congress. "Please don't resist. If we hear about any resistance, we will
stop pleading. I will just send the police to drive them away. If they
thought they would be saved by the inclusive Government, that is a lie."

On Wednesday, less than a week after making this statement, Mugabe is
reported to have told businessmen at a mining investment forum that
potential investments would be safe in the country. He claimed this was
because his government respected "the sanctity of property rights and the
rule of law in all its dimensions".

"Meanwhile 115 kilometers from where Mugabe was delivering his speech, South
African farmer, Louis Fick, was watching his 4 000 pigs, 14 000 crocodiles
and several hundreds of beef cattle starve to death in Chinhoyi, as he tries
to fight off a deputy Reserve Bank governor who is trying to grab the farm
and whose hired thugs are preventing workers from feeding the animals," said
a newspaper report.

The very next day, Prime Minister Morgan Tsvangirai spoke at the same mining
investment conference Mugabe had addressed the previous day.

He reportedly told the investors that the coalition government would
implement rational mining royalties and taxes and deregulate mineral
marketing, to attract as much as US$16 billion in investment by 2018.

But six days before his speech government had used an extra-ordinary gazette
to seize the assets of the Meikles Group that owns the world famous Meikles
Hotel among several other big companies.

Just how does anyone help Zimbabwe, except by dislodging Mugabe? He seems to
be fighting for the failure of a government he is heading.

The world appears to be at a loss as to what to do. Mugabe is
single-handedly blackmailing the world using innocent citizens as bait.

Does he really want a solution in Zimbabwe?

How long will the world, especially Africa itself, stand by and watch as
gruesome happenings imbue the continent?
There has to come a time when our conscience takes over and Africans,
especially Zimbabweans, must get up and fight for their emancipation.

In Zimbabwe, we long proved that colonial oppressors were much better than a
black government and all African leaders must be ashamed of such a

Relying on foreigners won't do anymore.

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