Constitutional Hill

Zimbabwe

Zimbabwe: Why Mbeki is all carrot and no stick

A reader ask quite correctly what else President Thabo Mbeki could have done to make a difference to the Zimbabwean crisis. Supporters of the President (Khosi, you there?) and even staff I have spoken to who work in the President’s office have argued quite forcefully that it would not have helped for President Mbeki to criticise President Mugabe because that would merely have alienated him and would have diminished South Africa’s influence over the tyrant.

They also argue that the only way to get rid of Mugabe would be through a negotiated settlement because as we have seen he will not allow the MDC to govern Zimbabwe on its own and will most probably allow a coup rather than allow people he see as stooges of Britain to govern the country.

Of course we have to remember that the two previous elections were declared credible and mostly free by South African observers (following the Mbeki line), despite the fact that these were conducted in an atmosphere of fear and violence and according to electoral rules that clearly allowed for the massaging of the results in favour of Mugabe. This suggests that the Mbeki ANC would have done and said almost anything to ensure that Mugabe was not humiliated or criticised in any way.

Supporters of Mbeki would say that this strategy – while appearing to be callous and unprincipled – had actually finally paid off in 2008 because the mediation process led by our President has resulted in a more accommodating process and led to Mugabe making several concession which made the election less unfair. While not free and fair, the most recent elections therefore gave an opening to the opposition which allowed it to win the election.

There are at least two problems with these arguments.

First, South Africa is supposed to be a constitutional state based on the Rule of Law and a respect for human rights and the government police is supposedly to promote respect for human rights across Africa and to foster good governance in Africa through Nepad and the African Peer Review mechanism.

The failure of the government to forcefully criticise even the most flagrant human rights abuses and the stealing of two previous elections by Mugabe, suggests that South Africa is a silent or not so silent supporter of a tyrant and thus makes a mockery of the supposed leadership of our President and our country on human rights issues. This undermines our standing in the world and among right thinking people all across Africa. It is a matter of credibility: if one mollycoddles a tyrant it is hard to be taken seriously when making lofty statements about good governance and respect for human rights in other parts of Africa or the rest of the world (like in the USA or Iraq).

Our President has lost all credibility by holding hands with a person who has lost an election and now refuses to accept this reality and is using his military to terrorise the population who had the audacity to vote for the opposition.

Second, (and much worse) the South African governments’ silence (sold as quiet diplomacy) has actually helped to prop up Mugabe and thus helps him to stay in power. The apartheid government was an evil one – much like Mugabe – but gave up power after sustained attack by the international community and after being isolated by even its closest friends like the USA and the UK. South Africa could place serious diplomatic and economic pressure on Mugabe to change but has failed to do so. This makes our government complicit in the murder and torture of thousands of Zimbawean citizens and the ruining of the economy in that country.

Thus South Africa’s actions have helped to support a tyrant in power and have made it potentially more (not less) difficult to get rid of him. As long as President Mugabe thinks that South Africa is on his side and will silently go along with any action he might think necessary to stay in power, there will be no incentive to adhere to African Union principles.

If South Africa had spoke out and had actually threatened Mugabe with economic sanctions and (for him probably more important) with ostracisation in SADEC, South Africa might have been able to achieve more. Tyrants only act in their own self-interest and South Africa’s tacit support for Mugabe (because that is what quiet diplomacy really is) have sent a signal to Mugabe that it is not in his interest to go quietly.

What was and is needed is a carrot and stick method. Unfortunately, President Mbeki is all carrot and no stick. This make him (and by implication all who voted for him) complicit in the gross human rights abuses perpetrated by the Mugabe regime. I really do not know how hsleeps at night with this on his conscience. But then again, that assumes that he has a conscience.

Arms to Zimbabwe?: UPDATE

It turns out the Lawyers in Durban who are in the process of launching an urgent application in the Durban High Court to stop the trans-shipment of six containers of arms from the Durban Harbour to Zimbabwe might very well have a strong case.

It turns out the South African parliament passed the National Conventional Arms Control Act 41 of 2002, a wonderful piece of legislation aimed at controlling the manufacture, marketing, exportation and conveyance of conventional arms in South Africa.

According to section 13 of the Act any person who wants to manufacture, market, import or convey conventional arms in South Africa needs a permit that must be issued by the National Conventional Arms Control Committee (NCACC). Those arms in the Durban harbour could therefore only be transported to Zimbabwe if the conveyancing permit was validly issued by the NCACC.

I assume the court challenge in Durban will centre around the validity of the decision by this Committee to issue such a permit and will ask the court to review and set aside the decision of the Committee to issue the permit. They will probably argue that the Committee failed to adhere to the provisions of the Act when it issued the permit and therefore acted ultra vires.

Section 15 of the Act states that when it issues such a permit the Committee must, amongst other things:

  • avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms;

  • avoid transfers of conventional arms that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region or otherwise contribute to regional instability;

  • avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms;

  • avoid the export of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.

The Committee will have great difficulty showing that the Zimbawean government does not systematically violate or suppress human rights and that the arms would not be used for the internal oppression of those who oppose the Zanu-PF regime. Any person who watches television from time to time (but probably not the President of South Africa) will be able to tell you that Mr Mugabe’s regime is an oppressive one and that arms destined for the Zimbabwean Defence Force are more likely than not to be used to assist in the internal oppression of the people of Zimbawe.

There is therefore a strong possibility that a court could find that the Committee who issued the permit did so in contravention of its obligations as set out in the legislation. One might well wonder why this Committee, chaired by Defence Secretary, January Masilele, was so eager to issue the conveyancing permit. That is, until one studies the Act and notices that this Committee is appointed by President Thabo (“there is no crisis in Zimbabwe”) Mbeki and is made up of Ministers, Deputy Ministers and other persons appointed by the President.

People even less cynical than me would begin to wonder whether such a Committee would Act in such a sensitive matter without at least informally sounding out the President. But maybe it is time for the two centers of power to do some good and for the ANC to send out a strong signal that the shipment of arms to Robert Mugabe’s government is untenable. Who knows, the Committee might suddenly have a re-think after careful consideration of their political futures.

A statement from the ANC would also give a judge some political cover to make a ruling against the government on such a politically sensitive issue. Now, if those people in Luthuli House could just stop obsessing about the Scorpions for a day or two, they might do us all some good in this matter.

Can a court stop the arms shipment to Zimbabwe?

The Witness newspaper is reporting that Lawyers in Durban were last night preparing to launch an urgent application in the Durban High Court to stop the trans-shipment of six containers of arms from the Durban Harbour to Zimbabwe. The newspaper says the application will be brought in terms of South Africa’s Constitution and international law.

The controversial cargo packed into 3 080 cases reportedly includes three million rounds of 7,62mm bullets (used with the AK-47 assault rifle) and 69 rocket-propelled grenades, as well as mortar bombs and tubes. The cargo is, according to the documentation, valued at R9,88-million.

The shipment of such arms to an illegitimate police state like Zimbabwe is of course morally reprehensible but I am wondering on what legal basis will such an application rely and whether it would have any chance of success.

Defence Secretary, January Masilele who heads the national conventional arms-control committee of South Africa, apparently approved the deal. Asked about the controversy surrounding the shipment, Masilela said: “This is a normal transaction between two sovereign states. We are doing our legal part and we don’t have to interfere.”

Unfortunately, on legal grounds, he may have a point. The UN has not (yet) imposed an arms boycott against Zimbabwe and the conflict in Zimbabwe is not an armed conflict between internal groups as defined by International Law treaties, so I am not sure how one could stop this.

The South African Constitution places a duty on the state to safeguard the security of the person for everyone within South African borders, but I do not think it places a duty on the state to act in such a way that it would protect the people who live in a neighboring country.

Perhaps the applicants will rely on South Africa’s International Law obligations in terms of various human rights treaties signed and ratified by South Africa, but I have not made a study of all these treaties and cannot recall on the top of my head which treaty might be implicated in this case. Maybe clever readers of this Blog may have an answer.

But even if this application is dead on arrival, this affair does suggest just how insensitive the South African government is regarding the situation in Zimbabwe. It may be true that we cannot and should not intervene in the domestic affairs of Zimbabwe and that we must respect that country’s sovereignty, but we clearly have a right to refuse to have the arms shipped via our ports. This would not in any way interfere with the sovereignty of Zimbabwe.

But the South African government will not take such a step because they are too scared of Mugabe. This makes them at least morally complicit in the human rights abuses in that country. As Hillary Clinton would have said: Shame on us.