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Legal opinion re Zimbabwe and the jurisdiction of the SADC Tribunal



The Minister of Justice of the Government of Zimbabwe, Mr P Chinamasa M.P., has asserted that:

any decision that the (SADC) Tribunal may have or may make in future against the Republic of Zimbabwe is null and void”.


Below is legal opinion on the validity of this statement.


Attached, for convenience, are:


1.  The SADC Tribunal judgement of 28 November 2008 on the Zimbabwean farm case (complete document)

2.  The SADC Tribunal judgement of 28 November 2008 on the Zimbabwean farm case (final page)

3.  The SADC Tribunal ruling of 5 June 2009:  Chief Justice Pillay stressed that Zimbabwe had not only breached the November order, but was in contempt. 










J.J. GAUNTLETT SC (former Chairman of the General Council of the Bar, South Africa)

Prof J.L. JOWELL QC (member of Blackstone Chambers and former law dean, University College London and Vice-Provost)




Cape Town and London 


3 September 2009


A.            INTRODUCTION


  1. Our Consultant is the Commercial Farmers Union.


  1. Over the past two years we have been engaged in litigation in the South African Development Community (SADC) Tribunal to obtain orders declaring the purported land seizure programme in Zimbabwe in breach of the country’s international law obligations under the SADC Treaty. In November 2008 the Tribunal granted such an order, on three separate grounds. These were that the land seizure programme constituted racial discrimination, an infringement of the right of access to courts, and an arbitrary taking without adequate compensation, each in breach of Zimbabwe’s Treaty obligations.


  1. We have been informed of the public statement now by the Minister of Justice of the Government of Zimbabwe, Mr P Chinamasa M.P., asserting that “any decision that the Tribunal may have or may make in future against the Republic of Zimbabwe is null and void” and purporting to withdraw from the jurisdiction of the SADC tribunal.  We have been asked to advise urgently as to the legal validity of this statement.


  1. In our view, the assertion lacks any legal foundation.  We note that it is made some ten months after the main ruling by the SADC Tribunal in favour of the applicant Zimbabwe farmers, their workers and families, and some three months after the finding by the Tribunal that the Government of Zimbabwe is acting in defiance of the main ruling, and awarding costs against the Government of Zimbabwe. It also follows on a Tribunal ruling in favour of a Black Zimbabwe farmer whose land had also been seized under Land Bank legislation, also with a costs order against the Government of Zimbabwe. The statement significantly is made just days in advance of the SADC Summit’s meeting, which has been asked by the Tribunal in terms of the latter order to consider enforcement steps against Zimbabwe as a SADC Member.


  1. The grounds for our views are, in summary, fourfold:

(a)   Zimbabwe is a signatory to the SADC Treaty;

(b)  Zimbabwe is bound to the Protocol despite not ratifying it;

(c)  Zimbabwe has conceded the SADC Tribunal’s jurisdiction; and

(d)  The SADC Tribunal has held that Zimbabwe is subject to its jurisdiction.




  1. We deal with each of these grounds individually.


(a)            Zimbabwe is a signatory to the SADC Treaty


  1. Firstly, the SADC Treaty was entered into on behalf of Zimbabwe by its President at Windhoek, Namibia, on 17 August 1992.  The Treaty was duly ratified thereafter by the Zimbabwean legislature on 17 November 1992.  Subsequently, on 30 September 1993, the Treaty entered into force. The Government of Zimbabwe has, of course, at no time challenged the legality of its membership of SADC.


  1. Accordingly, by virtue of the international law rule expressed by the adage pacta servanda sunt,[1] the Treaty binds the Government of Zimbabwe.  This legal conclusion is inescapable, as was accepted under oath on 27 January 2009 by the Attorney-General of Zimbabwe, Mr Johannes Tomana M.P (who, in terms of section 76(1) of the Constitution of the Republic of Zimbabwe, is the principal legal adviser to the Zimbabwean Government).  Also the Deputy Attorney-General, Mr Prince Machaya, has accepted the Tribunal’s competence and the Government’s legal duty to abide the Tribunal rulings in a letter dated 8 May 2009, recording that “[i]t is of considerable importance to Government that it is not seen to have a propensity for disregarding orders of the Tribunal”.  In his letter the Deputy Attorney-General admitted that on two separate occasions the Government of Zimbabwe disregarded the orders of the Tribunal and clearly recognised this to be in breach of Zimbabwe’s international law obligations.


(b)            Zimbabwe is bound to the Protocol despite not ratifying it


  1. Secondly, the Protocol to the SADC Tribunal is, in terms of article 16(2) of the Treaty, binding on all SADC Members.  That article provides that the Protocol constitutes an integral part of the Treaty, rendering ratification thereof unnecessary. The suggestion now by the Minister that separate ratification of the Protocol is required, is directly contradicted by article 16(2) of the Treaty.


  1. Accordingly, Zimbabwe is bound by the Protocol, like any other SADC Member, despite not having ratified it.  Also this inescapable conclusion has been accepted under oath by the Attorney-General of Zimbabwe.  Moreover, the Republic has illustrated its acceptance of the Protocol’s provisions by seconding a Supreme Court judge, Gowora JA, to the Tribunal.


(c)            Zimbabwe has conceded the SADC Tribunal’s jurisdiction


  1. Thirdly, and unsurprisingly in the light of the above, the Government of Zimbabwe has during numerous stages in different proceedings before the Tribunal, formally conceded the Tribunal’s jurisdiction over it.


  1. Already during the first hearing of the Campbell proceedings before the Tribunal, the government of Zimbabwe formally conceded the Tribunal’s jurisdiction.  The concession was made through Zimbabwe’s Deputy Attorney-General, who represented it in the proceedings, in answer to a question by Justice Tshosa, a member of the Tribunal.  The concession was repeated in an affidavit filed in that matter on behalf of the Department of Lands, and affirmed in the government’s continued appearances and submission of argument.  Furthermore, in that matter, the High Commissioner for Zimbabwe herself attended the proceedings, and was furnished by the government as the service address and designated agent under the Protocol, a designation repeated in unrelated subsequent proceedings against the Government of Zimbabwe.


  1. The established legal position is that even had there been no other basis for the Tribunal to assume jurisdiction (which is clearly not the case here) the Government’s submission to the Tribunal’s jurisdiction itself established the Tribunal’s jurisdiction.[2]  Accordingly, Zimbabwe is bound to the rulings by the Tribunal, and cannot “withdraw” from its jurisdiction at this stage.


(d)       The SADC Tribunal has held that Zimbabwe is subject to its jurisdiction



  1. Finally, the designated SADC organ conferred by the SADC Treaty with the authority to interpret the provisions of the Treaty – hence to decide upon whether a State is bound by the Treaty and the Protocol and subject to the jurisdiction of the Tribunal – is the SADC Tribunal.  The Tribunal has repeatedly held, after careful consideration of its own jurisdiction, that it did have the competency to adjudicate cases against the Government of Zimbabwe.  Its ruling in this regard is conclusive.


  1. Accordingly, also on the basis that the designated adjudicator has held Zimbabwe to be under its jurisdiction, the Government of Zimbabwe cannot responsibly contend that it is not bound by the Tribunal’s rulings.


C.            CONCLUSION


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



We advise accordingly.





(former Chairman of the General

Council of the Bar, South Africa)




(member of Blackstone Chambers and former law dean, University College London and Vice-Provost)








Cape Town and London

3 September 2009


[1]               This principle forms part of customary international law, and is reaffirmed and codified in article 26 of the Vienna Convention on the Law of Treaties of 1969, which provides that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.

[2]               Thermo Radiant Oven Sales Ltd v Nelspruit Bakeries 1969 (2) SA 295 (A); H Clerk (Doncaster) Ltd v Wilkinson 1965 All ER 934 (CA); Standard Bank of SA v Minister of Bantu Education 1966 (4) SA 229 (N) at 242H; De Wet v Western Bank Ltd 1977 (4) SA 770 (T) at 779C-G; Joubert et al (eds) Law of South Africa (1st reissue 1999) vol 14 para 289 (text at notes 8-9).

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Upcoming SADC Summit Strains Zimbabwe Inclusive Government


      By Peta Thornycroft
      03 September 2009

Political temperatures are rising in Zimbabwe before a crucial summit of the
Southern African Development Community to be held next week in Kinshasa. The
group guaranteed the political agreement signed a year ago by President
Robert Mugabe and MDC leader and now Prime Minister Morgan Tsvangirai.

In the run-up to the SADC summit, Zimbabwe's Justice Minister Patrick
Chinamasa ordered the release of about 1,500 jailed women and juvenile
prisoners, 10 percent of the prison population held in appalling conditions,
according to local and international human rights organizations. Also
released were those who are terminally ill.

Those convicted of violent crimes were not released.

Chinamasa has blamed U.S. and EU travel and financial sanctions against
Zanu-PF and a few companies that are close to the party for prison

Zanu-PF has criticized Prime Minister Morgan Tsvangirai for failing to get
the restrictions lifted against the inclusive government.

Chinamasa also told the public media Tuesday that Zimbabwe does not
recognize SADC's Tribunal, a court of last resort for the region's citizens.
Chinamasa said that two thirds of member states should ratify the tribunal
for it to have jurisdiction in Zimbabwe.

In June,  Zimbabwe was found guilty of contempt of the Tribunal's ruling
last year that more than 70 white farmers should be left in peace on their
land. The Tribunal's contempt finding was referred to the Kinshasa summit.

South African advocate Jeremy Gauntlett, who represented the farmers at the
tribunal, said Zimbabwe's deputy attorney general twice confirmed to the
tribunal that he accepted its jurisdiction, and did so a third time in

The Africa Director of the International Commission of Jurists, Arnold
Tsunga, said Zimbabwe would have to withdraw from the SADC community of
states if it does not recognize the validity of its organ, the Tribunal.

The first farmer to receive protection from the tribunal, Mike Campbell, had
his farm house burned down Sunday according to local reports.  Three days
earlier, his son-in-law had his house burned down on the same farm in
central Zimbabwe.

Monday, Mr. Tsvangirai issued a strong critique of the political agreement.
He said state media continued what he said was a "vicious" campaign
promoting "hatred and acrimony" to bolster the Zanu-PF.

He said there is a "selective" application of the rule of law, including the
persecution and prosecution of MDC Parliament members, which inflames
political tensions.

Mr. Tsvangirai said while outstanding issues from the political agreement
remain unresolved, the international community would not invest in Zimbabwe.

He called for the Southern African Development Community to decide at the
summit when it would begin the six-month review it had pledged when the
inclusive government was sworn into power.

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ANC speaks on Zimbabwean GNU

September 3, 2009

By Ntando Ncube

JOHANNESBURG - South Africa's ruling African National Congress (ANC) said
Thursday that South Africa was looking to Zimbabwe's unity government to
bring about speedy political, economic and social recovery in the country.

Party deputy secretary-general, Thandi Modise said more than three million
Zimbabweans who had crossed the border were placing a huge strain on South
Africa's health care, education and housing resources.

And her country wanted to see a recovery in Zimbabwe that would allow the
exiles to return home.

"It is important to South Africa and to the ANC in particular to begin to
see a situation in Zimbabwe which will enable Zimbabweans in South Africa
and elsewhere in the world to come back to Zimbabwe to rebuild their
country," Modise said

"I think there are more than three million Zimbabweans in South Africa. We
would want to see a situation back in Zimbabwe which will enable these
people to go back home."

Zimbabwean President Robert Mugabe and Prime Minister Morgan Tsvangirai of
the Movement for Democratic Change (MDC) formed a unity government in
February, but are still squabbling over a power-sharing agreement that could
have paved the way for progressive reforms.

Modise said South Africa and southern Africa as a whole wanted to see a
Zimbabwe that is beginning to work and to put its citizens first and her
country wanted negotiations between Mugabe and the MDC to pick up pace.

"That is why we are encouraging the talks between President Mugabe and the
MDC to be more positive, to be faster, because all of us need to see our
countries working as well as they can do," she said.

Years of economic crisis, characterised by record rates of hyperinflation,
forced millions of Zimbabweans to seek work in South Africa, where there
were bloody clashes last year between economic exiles and South Africans
worried about their jobs.

South African President Jacob Zuma visited Zimbabwe last week to press
Mugabe and Tsvangirai to resolve their differences so that foreign economic
aid can begin to flow in.

Talking about repatriating Zimbabweans in South Africa Modise said: "You
cannot turn your back on your neighbours when they are in need.

"So President Zuma will do what he can to mediate to ensure that things are
working in Zimbabwe."

Tsvangirai said on Tuesday he wanted next week's summit of regional leaders
to push Mugabe to fulfill the power-sharing agreement and to speed up

Tsvangirai said the Southern African Development Community, meeting in the
Democratic Republic of Congo on September 7 should remove obstacles to the
unity pact.

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EU says Zimbabwe ties mending, no funding yet

Thu Sep 3, 2009 4:59pm GMT

By Nelson Banya

HARARE (Reuters) - Zimbabwe's relations with the European Union are
improving, but there will be no direct funding for the Harare government
until political talks with the bloc are concluded, an EU official said on

The EU, one of President Robert Mugabe's staunchest critics, imposed
sanctions on the veteran ruler and his inner circle and suspended direct aid
in 2002 over charges of rights abuses and electoral fraud.

Mugabe accuses the EU of punishing him for seizing white-owned farms to
resettle landless blacks.

Mugabe, and long-time foe, Prime Minister Morgan Tsvangirai, formed a
power-sharing government in February in a bid to end a political crisis that
followed last year's disputed elections.

The new government is working to re-engage the EU and the United States.

Western donors have demanded broad political and economic reforms before
giving direct aid to the government. The donors currently provide only
humanitarian assistance.

Dominique Davoux, the EU's head of economic co-operation and food security
in Zimbabwe, told a business conference in Harare that efforts to restore
ties were being made.

"Zimbabwe's international relations are on the mend, with bilateral and
multilateral re-engagement efforts taking centre stage, starting with the
Prime Minister's visit to Brussels in June," Davoux said.

"It's moving very slowly and we want it speeded up to deal with areas of
concern on both sides."

The talks between Harare and the EU are meant to resolve the dispute over
Zimbabwe's human rights record, political reforms and sanctions slapped on
Mugabe's previous ZANU-PF government, as well as the resumption of aid.

Davoux said any possible financial assistance to the new unity government -- 
which says it requires about $10 billion to rebuild the economy -- depended
on successful negotiations.

"Opportunities for Zimbabwe within the EU-ACP (African, Caribbean and
Pacific) partnership framework are premised on normal relations," Davoux

"However, until the political dialogue concludes favourably on areas of
concern to the EU, our current co-operation is limited to direct support to
the beneficiary population."

Tsvangirai's Movement for Democratic Change (MDC) accuses Mugabe's ZANU-PF
of stalling key reforms demanded by the West but ZANU-PF in turn says the
MDC is not doing enough to convince its Western allies to remove sanctions.

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Teachers association accused of 'deliberate' disruption of education

By Alex Bell
03 September 2009

The country's largest teachers' union has this week been accused of
deliberately disrupting the start of the new school term, with observers
commenting that the union has highly politicised motives.

Thousands of members of the Zimbabwe Teachers' Association (ZIMTA) on
Wednesday embarked on a nationwide strike to coincide with the start of the
new term. The teachers' association said the strike only started picking up
momentum on Thursday, with an official saying up to 95% of its members have
downed tools. Other reports suggest the strike has been less dramatic, with
education officials saying the 'strike' more closely resembles a 'go-slow'.

Education Minister David Coltart explained on Thursday that the majority of
teachers have reported to work, despite the nationwide strike called by
ZIMTA last week. The association had called for the industrial action over
unresolved salary grievances, arguing the government has not been sincere in
guaranteeing better wages and working conditions for the country's
educators. The Education and Finance Ministries have previously called for
patience from disgruntled civil servants, explaining the government does not
have the financial resources to improve salaries yet.

An attempt to avert the strike on Monday failed when a meeting between the
Union and government officials did not materialise. However, Education
Minister Coltart, as well as Finance Minister Tendai Biti, met with the
leaders of the country's two other, smaller teachers' unions on Tuesday, to
encourage a productive start to the school term. Officials from the
Progressive Teachers Union of Zimbabwe (PTUZ) and the Teachers Union of
Zimbabwe told the Ministers that their members were being encouraged to
return to their posts at the start of the term on Wednesday, saying a strike
was futile and a threat to the country's reputation.

Minister Coltart told SW Radio Africa on Thursday that ZIMTA teachers only
left their posts after union officials circulated a letter, telling their
members to do so. Coltart explained that mass confusion is now the order of
the day, with many teachers embarking on a 'go-slow' rather than a full on
strike, but he added that some teaching is underway. The Minister said that
the timing of the ZIMTA strike is suspicious, accusing the union of
deliberately disrupting the start of a very important school term.

"This is a cynical action by ZIMTA that has been deliberately planned to
have the greatest possible impact," Coltart said. "It shows callous
disregard for the welfare of the students."

The strike has revealed deep divisions between the members of the different
unions, with critics arguing the move by ZIMTA is highly politicised. ZIMTA
has always been a ZANU PF aligned union and has never before called for
strike action. On the other hand, the usually more militant PTUZ is said to
be supportive of the MDC, and has exercised more patience with the fledgling
unity government. Observers have said the ZIMTA strike is a deliberate
attempt to discredit the MDC, which now has the troubled Finance and
Education Ministries to turn around, after they completely collapsed while
in the hands of ZANU PF.

ZIMTA's Acting Chief Executive, Sifiso Ndlovu, on Thursday said such
accusations are 'neither here nor there', arguing their sole motive is to
urge the government to meet the salary demands of teachers. Ndlovu argued,
"It is unfortunate that students will suffer and that education will be
compromised," but he said he hoped the strike would be concluded well before
students write exams.

"ZIMTA is a-political, has always been a-political and will remain
a-political," Ndlovu said. "We will continue to engage with the government
and represent teachers for their needs."

Meanwhile, there has been an angry outcry over Minister Biti's attempts to
persuade striking teachers to rescind their decision, after he said that
Robert Mugabe is taking home a monthly salary of US$300.

"Unless there is a dramatic improvement in the economy and revenue
improves by 300 per cent, we have no fiscal space for a salary increment at
the moment. Even the President is currently earning US$300 and we can't draw
water from stones. The economy is not performing," Biti told teachers.

However the statement will likely cause anger among civil servants who do
not have the financial resources to support their families, never mind take
medical breaks in Dubai or pay foreign university tutelage for their
children. It is widely acknowledged that Mugabe is the wealthiest man in
Zimbabwe as a result of years of dictatorial rule and corruption.

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Zimbabwe uncertainty hurts electricity drive: experts

Thu Sep 3, 2009 4:21pm GMT

By Nelson Banya

HARARE (Reuters) - Zimbabwe's political uncertainty and the government's
hold over electricity policies will discourage private investment in the
sector, experts said on Thursday, dimming prospects of economic recovery.

The southern African country suffers chronic electricity shortages, which
have hurt industry and households, and state-owned power utility Zesa says
it requires up to $5 billion to expand generation and rehabilitate ageing

Zimbabwe generates about half of its electricity and also buys a third of
its needs mostly from Democratic Republic of Congo and Mozambique, but has
struggled to pay for imports.

Zimbabwe may find it difficult to attract private investment in the power
sector due to negative sentiment about the country after years of economic
decline, analysts say.

Miners and manufacturers at an industrial conference said frequent power
cuts were stalling economic recovery and tensions in the new administration
could undermine policy-making.

"There is need for policy consistency, because the energy projects are
long-term. It's actually a surprise that we have never initiated any power
project since independence in 1980," independent energy consultant
Simbarashe Mangwengwende, a former Zesa chief executive officer, told the

"It is very important, if you are to come up with bankable power projects,
to have positive investor perception. This is a factor of the political


Rivals President Robert Mugabe and Prime Minister Morgan Tsvangirai set up a
fragile unity government in February in a bid to end a protracted economic
crisis, but disputes have stalled economic reforms.

Zimbabwe has potential to generate an additional 7,500 MW from the current
1,000 MW through expanding output at its Hwange thermal plant and Kariba
hydropower station and by construction of a 1,600 MW hydropower station
jointly with Zambia, a 1,400 MW thermal power plant and another 300 MW plant
from gas.

World Bank country economist Rogers Dhliwayo told the conference that
Zimbabwe needs to guarantee a return on independent power producers'

"It is imperative that power is properly priced to ensure sustainable
private sector participation, and a situation where politicians intervene in
revenue collection is not conducive," said Dhliwayo.

A government official told an energy forum on Wednesday that the government
had completed a draft policy giving guidelines on investment in the sector.

But Mangwengwende said government's dominance of Zimbabwe's energy sector
also hindered investment.

"A situation where government is the policy-maker, regulator and energy
deliverer is clearly untenable. Government should realise that their role is
policy setting and regulatory oversight," he said.

While Zimbabwe had set up a regulatory authority, it needed to be
independent from state control, especially in determining tariffs,
Mangwengwende said.

Zesa, which currently owes its external power suppliers at least $57 million
but is itself owed $200 million through unpaid domestic bills, could raise
revenues by increasing billing and revenue collection, said Mangwengwende.

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'Sanctions to blame for crises'

2009-09-03 21:04

Harare - Zimbabwean President Robert Mugabe will tell regional leaders at a
summit in the Democratic Republic of Congo (DRC) next week that Western
sanctions are to blame for his country's failure to quickly emerge from an
economic crisis, his spokesperson said Thursday.

George Charamba, Mugabe's chief spokesperson, was quoted by state-controlled
media on Thursday as saying that Mugabe would tell the 15- nation Southern
African Development Community (SADC) that targeted Western sanctions were
the "the single largest threat to the fulfilment of the ... agreement".

Charamba was referring to the six-month-old power-sharing agreement between
Mugabe's Zanu-PF and the former opposition Movement for Democratic Change
(MDC) of Morgan Tsvangirai.

Although the coalition government has managed to reign in hyperinflation and
get public service workers back on the job, its progress towards an economic
turnaround has been blocked by quarrels between the parties.

The MDC accuses Mugabe of failing to break with his past government's
repressive policies and blocking the implementation of democratic reforms,
as called for in the power-sharing accord.

'He cannot budge'

Among the sticking points are Mugabe's refusal to rescind his unilateral
appointments of his cronies to the posts of central bank and
attorney-general and the ongoing harassment of opposition activists and
white farmers, among others.

For Mugabe to back down on these issues was "inconceivable", according to
Charamba, who said of the 85-year-old leader of 29 years: he "cannot budge".

The MDC has referred the issues to SADC, which brokered the Zimbabwe
agreement. The party and its supporters are hoping that Zimbabwe's
neighbours will end their long-standing support for Mugabe at the Kinshasa

Charamba said Mugabe would tell SADC that Western travel bans and asset
freezes on Mugabe, Zanu-PF top brass and allied companies "had a devastating
impact ... on the generality of the people and economic turnaround efforts".

South African President Jacob Zuma, during a visit to Zimbabwe last week,
however blamed the slow progress on Mugabe's failure to meet "certain
benchmarks" set by Western donors.

The power-sharing government was established to try to end Zimbabwe's twin
political and economic crises. An estimated 100 MDC supporters were murdered
in disputed presidential elections last year, while the economy hit rock
bottom and inflation hit 500 billion per cent.

The cash-strapped government has so far obtained only a fraction of the
$10bn in aid it said it needed to rebuild the economy.


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Prisoners pardoned - is it a trick?

3 September 2009

By correspondent

Harare - Robert Mugabe (Pictured) has "pardoned" more than 1500 prisoners
because his government is so broke, it can't feed them. Significantly, the
ministry of justice announced that the pardon will not be extended to people
accused of "plotting against the government.
Murderers as well are in for it, as are rapists, who also do not qualify.
Those to be released are the terminally ill, juveniles and women. The
Ministry of Justice announcement comes after that infamous documentary,
"Hell Hole", shown by South African television and shot secretly in
Zimbabwe's jails.

A couple of prison officers lost their jobs as a result, accused of having
helped the filmmakers. I was warned this evening, however, that this move is
a prelude to darker
times. A source from within Mugabe's party claims that his party and his
president have now decided that sooner rather than later, the MDC is going
to walk.

If this source is correct, you will, in the very near future, hear of a
surge in violence across the country. It will be put down to "hardcore"
criminals who were pardoned because the government had no money to feed
them. Later, of course, it will emerge that the violence is actually
politically motivated. Preparations for by-elections would have begun.

Whether he walks or stays on his "irreversible train", Morgan Tsvangirai
will find the corridors of power very cold indeed. He has, in the eyes of
his "principal", Robert "The Solution"Mugabe, proved to be of no use. He
can't bring in the dollars. And without that, there is no need to tolerate
his presence at Munhumutapa any longer, unless he capitulates and does so
utterly, as happened with Joshua Nkomo.

The new strategy has taken shape in the following form: Mugabe has been
advised that his election as president and his swearing-in were fait
accomppli that the African Union and SADC accepted.. Mugabe had just been
hurriedly sworn-in when he left the country to attend the African Union
Summit in Egypt. It was there that the African Union received him as head of
state, and then resolved to hand the matter of Zimbabwe negotiations to
SADC, which threw the hot potato back into Thabo Mbeki's lap.

Tsvangirai, SADC and Mbeki dealt with Mugabe as a Head of State, with
Patrick Chinamasa spitting out the words: "The president's position is
non-negotiable!" to journalists. Therefore, the fall of this Inclusive
Government will result only in the country going back for parliamentary
elections, organised and presided over by Mugabe.

The hope is to claw back the majority in parliament that way. And set up a
government "with a clean conscience", as ZANU PF puts it, telling the world
that they had tried to reconcile with their internal and western enemies,
but these had proved that they did not want such reconciliation.

Campaigning, Tsvangirai will no longer be able to say that he "holds the
key" to aid from outside Zimbabwe, as he has done before. Mugabe would
simply retort that the keys had failed to work last time Tsvangirai took
them to Europe and America and they would never work until land was restored
back to white farmers (that is, after all the anchor upon which he has
campaigned in every single election since 1999. The pardon, then, is a
sideshow. The Main Attraction is yet to come.

You can already see that, increasingly impatient, Mugabe has thrown his toys
out of the cot, refused to play with Tsvangirai any more and is sulking in a
corner waiting for the SADC meeting in the DRC next week. He will quite
simply not do anything more to appease the MDC. Already, it is clear to
close observers that the dictator has made up his mind that Tsvangirai and
the MDC have failed to live up to the job he had in mind for
them: turning around the economy and getting money in from the outside world
for reconstruction.

He sees no benefit accruing to him and his party from any more concessions
he gives the MDC. Which effectively means that, for Mugabe, the Inclusive
Government is dead.
It is Tsvangirai now who is clinging to hope, quite aware, as he said at his
press conference yesterday, that "there is not other option" for him.
Mugabe, after all, can not be defeated, Tsvangirai has said before.

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ZAPU's 'illegal' t-shirts seized at Beitbridge

By Violet Gonda
3 September 2009

The Zimbabwe African People's Union (ZAPU) and the Matabeleland Freedom
Party (MFP) have accused the police and customs officials at Beitbridge
border post of political harassment and seizing their campaign material.

Thulani Dhlamini from ZAPU told SW Radio Africa on Thursday that the ZAPU
executive in South Africa had sourced funding for the printing of t-shirts
for a rally in Plumtree.

But he said the materials were confiscated last week by police, state agents
and custom officials at the border with South Africa, who said the t-shirts
were illegal.  Dhlamini said even the single t-shirts they had as
individuals were confiscated.  The ZAPU official claims they were told by
the authorities that 'only ZANU and MDC T-shirts were allowed to be worn in
Zim,' and that they were undermining the unity government.

They were allegedly held in custody for 18 hours at the Beitbridge police
station where they were subjected to interrogation about the names of party
officials and their positions. Dhlamini said they were only released after
being forced to apologise verbally to the Member in Charge for bringing the
t-shirts into Zimbabwe.  However, the pamphlets and t-shirts were not
returned to them.
Meanwhile, the Matabeleland Freedom Party has also accused Zimbabwean border
authorities of political harassment. MFP member David Magagula told us that
officials at the border either confiscate opposition party regalia or charge
exorbitant fees to make it impossible for the parties to ship their goods
into Zimbabwe. Magagula claims he was recently charged R3 000 for about 150
t-shirts. He said: "This was exorbitant and far more than we had printed the
t-shirts for. So we told them we were going back to South Africa with our
t-shirts but we made as if we were returning and then we hid the t-shirts
and passed."
He accused the authorities of only 'recognising ZANU PF and MDC', and
refusing to acknowledge that there are other parties in the country.  He
said: "Many people voted for MDC but it did not mean they liked the MDC or
they liked Morgan Tsvangirai. It is only because they had no alternatives.
It was a vote of protest because people don't want Robert Mugabe."

He claimed some border officials said Zimbabwe is now a two party state and
called them 'dissidents'. "That shows we are not wanted, why do we force
ourselves to be Zimbabwean, when Zimbabweans do not want us."

Controversially, the MFP does not want to be ruled by a person who is not
from the Matabeleland region. Magagula said: "The party was formed so that
we liberate Matabeleland from Mashonaland, along borders that were there
before colonialism."
Observers say ZANU PF continues leading the country down this trap of not
recognising other political parties, creating intolerance and disharmony.
Additionally the Gukurahundi massacres have still not been dealt with, and
this will forever remain a painful issue in Matabeleland while the
government continues to ignore it.

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Press Release- U.S. Congregational Delegation visit to Zimbabwe

Public Affairs Section
U.S. Embassy, Harare

Press Release: U.S. Congressional Delegation visit to Zimbabwe

Harare: September 3, 2009- A delegation of U.S. Congressmen concluded two days of meetings with senior Zimbabwean government officials in Harare during which it discussed a range of issues including the performance of the inclusive government, unresolved issues of the Global Political Agreement signed last September 15, and the role of the United States in supporting the government and the Zimbabwean people.

The five-member delegation was the largest group of American policymakers Zimbabwe has hosted in more than a decade and was led by Representative Gregory Meeks (D-New York) and included Representatives  Jack Kingston (R-Georgia), Sheila Jackson-Lee  (D-Texas), Melvin Watt (D- North Carolina) and Marcia Fudge (D-Ohio).

The delegation met separately with President Robert Mugabe, Prime Minister Morgan Tsvangirai, and Speaker of the House of Assembly Lovemore Moyo and the tri-partite chairs of the Parliamentary Select Committee on the Constitution.

Following their meeting with the Prime Minister, Representative Meeks, speaking on behalf of the delegation, explained, “This delegation and my government are supportive of the inclusive political arrangement established between the three primary political parties in Zimbabwe. We recognize that it is not intended as a permanent arrangement and as such is bound to experience some growing pains. However, to have a reasonable prospect of delivering benefits to the Zimbabwean people it is paramount that the signatories work in good faith with each other. We are concerned that multiple issues remain unresolved with respect to the Global Political Agreement.”

While addressing Americas relationship with Zimbabwe and what additional support the U.S. government might provide, Meeks commented, “Our support for the Zimbabwean people cannot be questioned. U.S. direct assistance to the Zimbabwean people exceeded $310 million, primarily food aid, non-food emergency assistance, health assistance, and democracy building support this year. We have always stood ready to help the Zimbabwean people.”

“During Prime Minister Tsvangirais visit to Washington in June, President Obama promised additional support in the areas of agriculture and education. Beyond this, increased U.S. engagement and assistance will depend on further political and economic reform; and compliance with the Global Political Agreement,” said Meeks.

# # #

Issued by the U.S. Embassy in Harare. Contact: Tim Gerhardson, Public Affairs Officer, Tel. +263 4 75800-1, Fax: +263 4 758802 Website:

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CFU Annual Congress - Speech by Ambassador Xavier Marchal

CFU  Annual Congress,  04.08.2009

Comments from Ambassador Xavier Marchal

 Head of Delegation of the European Commission to Zimbabwe.



I feel privileged to be invited again to address your annual Congress.


It is taking place in the context of a new political Dispensation, the main objective of which is to pull Zimbabwe out of a profound crisis, while paving the way for a better democratic environment.


One would expect that as a result of the Global Political Agreement, appeasement would now prevail over the land issue. This is unfortunately not the case, making the final resolution of this key issue much more difficult.


I will try however to make suggestions aimed at helping Zimbabweans to bring the land issue to a proper conclusion.


Speaking with authority


But can I claim that I can speak with sufficient authority? Consider these: 1) this is the fourth time I am addressing the CFU annual Congress; 2) I am an agricultural engineer by academic background; 3) I am the son of a farmer from the Congo; 4) I am also a diplomat.


I have been in Zimbabwe for four years now, significantly and positively involved in agriculture, food security, and the land issue. The European Commission has tabled important proposals regarding agriculture and the land issue, as has been the case notably concerning the coffee industry, which has virtually disappeared from Zimbabwe. Perhaps I have gained credit points to comment and advice.


Thanks to my academic background, I understand better some of the key realities related to agriculture in Zimbabwe: 1) Before 2000 Commercial agriculture was her largest employer; 2) without it becoming again a key driver of the economy, Zimbabwe will not redress; 3) it cannot exist in absence of dynamic and self sufficient small scale communal farming, and I repeat here what I have said last year, so important I feel it is: small scale farmer need commercial farmers for technical and economic reasons; commercial farmers need small scale farmers for social and political reasons; 4) of course, commercial agriculture needs an environment in which property rights are respected, the rule of law prevails, investment is encouraged and possible, farmers are not brutalized, farms are not grabbed for the wrong reasons.


As regards my past, my family left Eastern Democratic Republic of the Congo in 1967, narrowly escaping death and leaving their farms assets behind. In May of this year, forty years after, I had a chance to return to what is left of my homestead. I understand very well the ordeal of commercial farmers, evicted as a result of a land reform that has derailed from its core and laudable objectives.


But as a diplomat, I am neutral, even if proactive, and I look at the land issue in a wider context of a country in search of its destiny. And my assessment here is that this is the time to finally bring it to a conclusion. And for that to be possible, all stakeholders have to compromise, and accept that they all have to give something for the sake of their country.


The GPA, the basis for solving the land issue


Let us now look at what the GPA and the 100 day economic plan have to say about the land issue.


The GPA recognizes “the centrality of issues relating to the rule of law, respect of human rights, democracy and governance”. The GPA foresees a comprehensive, transparent and non-partisan land audit being conducted “for the purpose of establishing accountability and eliminating multiple farm ownerships”. It also foresees that citizens would be considered for land irrespective of race, gender, religion, ethnicity or political affiliation. It states that security of tenure to all land holders would be assured. It finally commits to mobilize compensation for the former land owners.


The 100 day plan commits the Government to “reducing conflicts and disputes on the land and ensure security of persons and assets”. It also commits the Government to undertake “an audit of the BIPPAs that have been violated and the costs of such violations”, as well as to “regularize BIPPAs farms that were resettled”.


Can we say that the GPA provides a basis for addressing the land issue in a positive and comprehensive manner? I think yes.


Translating the commitments of the GPA and of the 100 day plan in concrete deliverables should now become priority.


Zimbabwe could implement an immediate moratorium on land occupations, recognizing that violent action to force farmers out is a violation of the rule of law. Zimbabwe could recognize the political, moral and judicial force of the SADC Tribunal and respects its judgment. Zimbabwe should adhere to BIPPAs. The land audit should be undertaken without anymore delay, on the basis of clear terms of reference, respecting the spirit of the GPA. Substance should be given to the commitment to security of tenure to all land holders. A credible and coherent strategy to address the issue of compensation should be developed.


Is this possible to achieve? I think that the new Dispensation offers an opportunity to do just this, in addition to having the obligation to do so.


Possible role for EC and EU


Can the European Commission, on behalf of the European Union, play a role to that respect? The answer is also yes.


The European Union is conducting formal political dialogue with Zimbabwe, with the aim of normalizing a relationship seriously strained since 2002. The end game is full EU-Zimbabwe normalization. The process is a two way roadmap: the Zimbabwean track of implementing the GPA, and a resulting EU track of progressive reengagement. An achievable process indeed, in which the land issue is part.


When the Prime Minister visited Brussels on 18 June last, leading an important multi-party Governmental delegation, he asked for EC support to implement the land audit provided for in the GPA. We responded positively. We need now to move into action.


The Prime Minister also asked for support to improve food security in his country. We also responded positively. In addition to having significantly supported food aid/food security in the last years ( hundreds of million euros committed since 2002), the EC has dispatched a full fledged technical mission to Zimbabwe, currently still in country, to prepare a Short term Strategy to support the new Dispensation, which we committed to implement when the Prime Minister was in Brussels. Food security is one of its pillars, and so are a number of actions in support of the implementation of the GPA, including supporting the land audit.


But in the end, the key element remains a positive outcome of the EU-Zimbabwe political dialogue and its resulting full normalization of EU relationship with this country. Then the EU can unleash massive assistance, EC and EU Member States combined. The EC will then implement a very significant package to support agriculture, rural development, land, and environment.


In conclusion


I flew a number of times in a small plane over Zimbabwe. I was always struck by the extent in which the land lays idle and uncultivated, be it commercial or communal. But I have also always been very impressed by how extensively communal land has been improved so as to practice anti erosion agriculture; this is unique in all Africa. There is clearly a huge potential there. Transferring land in an arbitrary manner, or for patronage reasons, is not the answer to the land issue in Zimbabwe. Proper and realistic policies, an environment conducive to investments, full recognition that there is indeed a need to properly close the effects of past history but within the rule of law and with proper compensations, constitute instead combined elements of answer to the Zimbabwean land issue.


Land has always been at the core of the tensions that have prevented this country from gaining full benefit from its potentialities. But as I explained there is a way forward, and the new Dispensation has the historical responsibility to deliver.  


In the end, Zimbabwe is a sovereign country. But like any other nation in the world, Zimbabwe needs international engagement and investment. For this to be there, confidence is needed, building upon clear rules and rights that are fully respected.


The EC, on behalf of the EU, can significantly contribute to these goals.


Thank you

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Is Mugabe losing control of Zimbabwe?

Court documents show two ministers are defying President Robert Mugabe in a
power struggle over control of a mining company.
By a correspondent
from the September 3, 2009 edition

Johannesburg, South Africa - As leader of Zimbabwe since liberation in 1980,
President Robert Mugabe has ruled with an iron fist, using a North-Korean
trained brigade to put down a rebellion; eliminating rivals through show
trials or allegedly via mysterious car crashes; and, during elections,
intimidating opposition supporters, journalists, and human rights advocates
with state-sponsored violence.

But is Mr. Mugabe actually still in charge?

A civil court case, launched by a Zimbabwean businessman to get back assets
that were nationalized under Mugabe's government, raises serious questions
about who really controls the levers of power in Zimbabwe today and whether
any promises made by Mugabe would be honored by the ministers and generals
in his own government.

Documents - including private cellphone text messages from senior Mugabe
ministers - obtained by the Monitor from public court records in the case
brought by businessman Mutumwa Mawere in the Zimbabwe Supreme Court in
Harare, indicate that the authority of the 85-year-old Mugabe is being
directly undermined by two of his closest confidants, Justice Minister
Patrick Chinamasa and Defense Minister Emmerson Mnangagwa.

Mr. Chinamasa is the chief respondent in the Mawere case, which opens Friday
Sept. 4, and Mr. Mnangagwa ­- a former intelligence chief - is a
front-runner in the bid to replace Mugabe.

"The question is, 'who is really in charge of the ZANU-PF [Mugabe's party]?'
" says Takawira Musavengana, a senior researcher at the Institute for
Security Studies in Tshwane (Pretoria) and knowledgeable about the Mawere
case. "When we focus on Mugabe, we're missing the ball. Who are the people
behind Mugabe? What do they want? What interests do they have to protect?
These power brokers will stop at nothing to make sure that Mugabe or someone
who sings from the same hymn sheet is in charge."

The Mugabe succession battle

Like Kremlinologists watching senior communists at a Red Square parade,
Zimbabwe watchers have been following rumors of the Mugabe succession battle
for nearly a decade, but rarely have the private exchanges between
Zimbabwe's sparring ministers come out into the public. The implications of
this succession battle could come to a climax in December, when ZANU-PF
holds a congress to elect its party leaders. Depending on which faction
wins, the choice of Mugabe's successor could have wide-reaching effects,
potentially undermining the current fragile coalition government with
ZANU-PF's chief opposition party, the Movement for Democratic Change, and
threaten a return of intimidation and violence by security agencies aiming
to retain control.

The only thing that is certain, for now, is that ZANU-PF's key players are
not playing nicely, among themselves or with others.

A tycoon spurned

Mr. Mawere, a multimillionaire businessman who once had close ties with the
ZANU-PF government, and particularly with members of his own Karanga tribal
group, owns a massive business empire with interests across Southern Africa.
But Mawere was accused of "externalizing" - taking out of the country - some
$80 million in assets from his Zimbabwe-based asbestos mine, Shabanie
Mashaba Mine Holdings (SMMH), and the Zimbabwean government moved to
nationalize his company in 2004.

While Mawere has fallen out with some key ZANU-PF leaders - including former
business partner Mnangagwa, the defense minister - he has tried to open
negotiations directly with Mugabe. On May 9, and again the following day, he
met personally with Mugabe in Tshwane during the inauguration proceedings
for newly elected South African President Jacob Zuma. In June, he began to
have almost daily text-message conversations with Mugabe's Reserve Bank
governor, Gideon Gono.

Although close to Mugabe, Dr. Gono is now battling to retain his job, since
it was Gono who printed so much Zimbabwe currency that the country suffered
an inflation rate of 231 million percent.

Text-message evidence

In a June 6 text message, written in typical shorthand on his BlackBerry,
Gono wrote to Mawere that there was strong opposition within Mugabe's inner
circle to resolving the Mawere case. Justice Minister Chinamasa warned Gono
against involving himself in the matter on Mugabe's behalf.

"Chinam group insisting tht me and vakuru [the old man, i.e. Mugabe] shudnt
interfere with the cot processes - as it wil set bad precedents'!" Gono
wrote in his clipped text-messages.

"If w do tht it makes it dificult 2 argue tht we cant do the same with [Roy
Bennet MDC Treasurer who is in court facing treason charges], Jestina Mukoko
[tortured human rights activist accused of plotting to kill Mugabe] and
others. U c the strait jacket vakuru is being given 2 wear."

In their Harare offices, members of ZANU-PF's higher echelon fretted that
Mugabe and his lieutenant Gono were about to return Mawere's mining company,
and they mobilized to stop them from doing so.

In a May 19 letter, A.M. Gwaradzimba, the government's administrator of
Mawere's former company SMM wrote to Chinamasa, the justice minister,
instructing him to resist any efforts to "give back" Mawere's company.

According to the letter, a Gono deputy told Mr. Gwaradzimba that "this was a
directive from the highest office in the land, coming through the office of
the Governor of the [Reserve Bank of Zimbabwe]. According to him, a deal
might have been struck between the President and MDM (Mawere), whereby the
Government of Zimbabwe would give back the control and ownership of SMM to
MDM. I however advised [the deputy] to go back and advise why it was
ill-advised to temper with the reconstruction process [of the company] at
this point in time."

Rule of law or tribal rifts?

While Zimbabwe makes a show of maintaining a rule of law ­- even jailed
journalists accused of treason can have their day in court - true power and
political alliances still revolve around tribal and family relations. The
main division within the ZANU-PF, for instance, runs along tribal lines with
the friends and relatives belonging to the Karanga tribe of Defense Minister
Emmerson Mnangagwa on one side, and the friends and relatives of Vice
President Joyce Mujuru's (and President Mugabe's) Zezuru tribe on the other.

Anything that disturbs that tribal balance, including the recent death of
Mugabe's second vice president, Joseph Msika ­- a Zezuru -has the potential
for setting off violent sparring among ambitious contenders within ZANU-PF.

Ironically, it is ZANU-PF's persistent use of force against any opposition
that many analysts interpret as a sign of weakness.

Its "land invasions," in which Mugabe supporters were encouraged to force
white farmers off their lands, came just after a stinging referendum in
which Zimbabweans voted en masse in 2000 against Mugabe and in favour of a
new constitution that would weaken Mugabe's power.

The use of security forces and private militias to intimidate, detain,
torture and kill opposition supporters during the lead-up to the March 2008
elections is also viewed by many observers as a ZANU-PF response to seeing
its grip on Zimbabwean voters slipping. Nearly 500 opposition supporters
were killed during those elections, and thousands more were displaced. The
ZANU-PF denied that it had any role in the detention, torture, or death of
opposition supporters.

Resistance to Mugabe-Mawere resolution

But despite this hardened attitude on the political field, Mugabe's
willingness to meet with Mawere, the businessman, in South Africa this past
May, sent shivers through much of the ZANU-PF establishment.

Senior ZANU-PF officials, including Chinamasa, publicly denied that Mugabe
had met Mawere in May. But a member of Zimbabwe's Central Intelligence
Office (CIO), confirms that the meeting took place, and that it was cordial.

"The president wanted Mawere to furnish him with details and circumstance
that led to the reconstruction of SMMH and some of his companies, which is
currently taking place and what led to his specification," says the CIO
officer, speaking on condition of anonymity. "At the second meeting, the
businessman brought all the important papers about SMMH and the president
promised that he would help him."

It is this promise that caused the strongest reactions among senior ZANU-PF
members in Mugabe's Cabinet. Arguing first that the president had no cause
to interrupt the process of nationalizing Mawere's companies, and later
arguing that intervening in a court case now would set a precedent for other
court cases, Mugabe's presumed underlings repeatedly stalled the process,
countermanding Mugabe's orders.

In a June 7, 2009, text message to Mawere, Reserve Bank governor Gono writes
that he is facing stiff resistance from Chinamasa and Mnangagwa, who are
trying to stop the president's efforts through legal and illegal means.

"We want to move swiftly so that matter is not intercepted," Gono writes. "I
hear guys were lining up to snap your cos [companies] after legal or illegal
process in cot this or next week. They wil b surprised."

In a separate message on that day, Gono adds, "Pse accept an apology frm 4
any distress I may have bn said I caused tho my prez and me are now clear
wht we seem 2 hav bn up gainst! Misrepresentations and malice behind our
baks! Gud day."

Court case goes ahead

At present Mawere, who confirms the details of this story and the veracity
of the documents obtained by the Monitor, says he does not know how long the
court case will take, nor what the outcome will be. Civil cases in Zimbabwe
can take years to complete, or they can be thrown out in a day or two.

But in Mawere's court statements, the implications of this case show a
government in disarray, with individual ministers following their own
directions and disregarding those of Mugabe.

"To date, His Excellencey [Mugabe] has not officially informed me of the
outcome of his intervention," Mawere writes in an Aug. 2009 court affidavit.
"All I have been able to establish is that the negotiations were interrupted
by the Respondent [Chinamasa] with the support of the Minister of Defence,
Hon. E. Mnangagwa, whose interest and involvement in the matter remains

"One can hardly say that the decision to stop negotiations was made by the
government as alleged by the Respondent," Mawere continues. "There is no
basis for the Applicant [Chinamasa] to withdraw this appeal because the
decision to postpone the litigation was at the instance of Dr. Gono under
the instruction of His Excellency, The President of Zimbabwe. However, this
case appears to have its own peculiar features that go beyond national

* A Zimbabwean journalist, whose name could not be given for security
reasons, wrote this story from Johannesburg.

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Zimbabwe's Home Truths

By ALEX PERRY Monday, Sep. 14, 2009

Having produced extraordinary works by the likes of Peter Godwin (Mukiwa),
Alexandra Fuller (Scribbling the Cat) and Nobel laureate Doris Lessing,
Zimbabwe's troubles seem to prove that you need to suffer for your art. But
those authors are white, and Zimbabwe is a country of millions of blacks,
whose troubles have undoubtedly been worse. So do we really need another
memoir by a white Zimbabwean?

The surprising answer is yes, if it's as good as Douglas Rogers' The Last
Resort. Like Godwin and Fuller, Rogers is a Zimbabwean journalist who moved
to the U.S. only to discover that he'd left his biggest story at home. His
tale recounts how, as Robert Mugabe's Zimbabwe collapses around them, the
author's parents turn their backpackers' lodge first into a bordello, then a
diamond smugglers' dive, then a refuge for opposition activists - as all the
while they farm marijuana. (See pictures of Robert Mugabe.)

A ripping yarn, for sure. But it is in the nuance Rogers brings to Zimbabwe
that he truly excels. His characters, and his country, are full of
contradictions. His parents' defiance of Mugabe's regime is partly based on
ignorance. Their enemies can be cruel, greedy and bloodthirsty, but also
kind and righteous. As the country implodes, Rogers' tough, cynical mother
breaks down in the middle of a bungled backstreet deal for a fake passport.
Her idea of Zimbabwe, she realizes, is a long way from the daily reality
faced by millions of her countrymen, or even, now, herself. "She no longer
understood her town ..." writes Rogers, "the town where she had been born 66
years before."

It's scenes like these that move The Last Resort beyond memoir to become a
chronicle of a nation. There is black and white, yes, but much more in the
shades and tones of their mix - and it is in exploring them that Rogers,
too, finds his art.

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