As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Zimbabwe is a mess. It is also a police state pretending to plan to have free and fair elections. Our wise leader continues to pretend this is going to be possible. I can therefore only concur with the following statement of the Centre for Human Rights at the University of Pretoria.
The Centre for Human Rights, at the Faculty of Law, University of Pretoria, calls on President Mwanawasa, in his capacity as Chairperson of SADC, and on President Mbeki, in his capacity as SADC mediator on Zimbabwe, to take all possible measures to ensure the immediate and extensive deployment of SADC observers in Zimbabwe.
It is encouraging that President Mbeki has already voiced his support for the deployment of SADC observers, and that he reminded member states to make the necessary resources available for this purpose. However, these observers should not focus primarily on monitoring the polls on voting day, but should be put in place as soon as possible to cover the period leading up to the elections and a reasonable period thereafter. These observers should also be representative of SADC as a whole.
An election is a process, consisting of three main phases: (1) the pre-election period; (2) the voting day itself; and (3) the period between voting and the release of results. If election observers focus on what happens on voting day only, the important determinants of a free and fair election prior to and after voting day would not be taken into account.
At the moment, there are clear indications that the pre-election conditions are not only making a free and fair election impossible, but are skewed in favour of the candidacy of President Mugabe. Even if people are allowed to go to the polls on voting day, free and fair elections are impossible due to the harassment, arrest, detention and even disappearance of activists and leaders; restrictions on the media; and fear and intimidation of the population and non-governmental organisations.
According to SADC’s own ‘Principles and Guidelines Governing Democratic Elections’, the SADC election observation mission should be deployed ‘at least two weeks before the voting day’ (para 4.1.10). Under the specific circumstances prevailing in Zimbabwe, the ‘normal’ period of two weeks should be increased as much as possible. It is imperative that all efforts should be made to get as many observers into place, covering as extensive an area as possible, as soon as possible. The elections, scheduled to take place on 27 June, is just 16 days away. Observers should be on the ground now, and should stay at least until election results are announced.
Observers should insist on the full compliance with the SADC Principles and Guidelines, which includes the following:
The government must safeguard the human rights and adequate security of all stakeholders and parties (para 7.4; 7.5).
The observers must have unimpeded and unrestricted access to all polling stations and counting centres (para 7.19).
Once deployed, SADC observers must submit regular reports, so that matters requiring urgent attention may be dealt with by the appropriate SADC organ.
To ensure a credible election, as many observers as possible should be allowed into the country. Presidents Mwanawasa and Mbeki should insist that Zimbabwe allows other observers, in line with the African Commission on Human and Peoples Rights’ ‘Resolution on the Forthcoming Run-off Election in Zimbabwe’, adopted in May at its 43rd ordinary session. In this resolution, the African Commission requests that the Zimbabwean government allows ‘both national and international election observers to observe the entire electoral process, so as to enhance the credibility of the electoral process, and acceptance of the results of the elections by all contesting parties’.
The Centre for Human Rights further urges Presidents Mwanawasa and Mbeki to exert all possible pressure on President Mugabe to halt violence, intimidation, and selective use of to law stifle opposition, and to abide by the SADC Principles and Guidelines Governing Democratic Elections and the Zimbabwean Constitution and Electoral Act.
The statement makes clear that the Mugabe regime is not adhering to principles adopted by African bodies and African states and that SADC principles adopted by all SADC countries are being flouted. Yet nothing is being done or said publicly – either by Mbeki or by other SADC leaders – to address this serious breach.
This has nothing to do with imperialism or attacks by Western countries on the Mugabe regime. Our own African bodies, using principles adopted by African states are not being adhered to. It makes a mockery of the African institutions that are supposed to help us shepherding in an African Renaissance.BACK TO TOP