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The Weekender
By Nicole Fritz

Zimbabwe’s peace is being held to ransom, raising the question of whether peace is possible without justice, writes NICOLE FRITZ

THE hot topic for discussion in Zimbabwe’s new government of national unity isn’t stemming the spread of cholera or reversing the economy’s decline but negotiating an amnesty deal.

Zanu (PF) Justice Minister Patrick Chinamasa approached the Movement for Democratic Change (MDC) with an offer to release all political detainees, including recently arrested MDC treasurer-general and deputy agriculture minister-designate Roy Bennett, in exchange for blanket amnesty for the Joint Operations Command — a structure consisting of the heads of the security forces and the Central Intelligence Organisation.

If Zanu (PF)’s ploy seems crude — using Bennett and other detainees as bargaining chips — it is also strategic: suggesting parity in wrongdoing; that the MDC has as much to gain as Zanu (PF) in opting to forgo prosecutions.

But there is no equivalence. Jestina Mukoko, for instance, has been languishing in detention for more than two months, after she was forcefully abducted from her home in early December by security agents.

Attired only in her nightdress, she was moved from one undisclosed location to another, tortured and faced in interrogation with the ludicrous charge that she — director of one of Zimbabwe’s pre-eminent human rights organisations — had been covertly planning military training in Botswana for people who would stage armed insurrection against Mugabe.

The crimes of the Joint Operations Command are, by contrast, meticulously documented. The killings, disappearances, sexual assaults and dispossessions authorised and/or endorsed by it over several years constitute systematic crimes against humanity.

It is hardly surprising, then, that the issue of amnesty has long worried the generals. President Robert Mugabe was ready to concede defeat soon after the March 2008 elections, and was offered an internationally brokered and guaranteed amnesty deal, but the generals intervened and made it clear that there was no way he was departing without them also being guaranteed similar immunity.

They must look north to the situation in Sudan, and the arrest warrant sought by International Criminal Court prosecutor, Luis Moreno Ocampo, for President Omar al-Bashir, and shudder. In his bold move, Ocampo has signalled not only that sitting heads of state aren’t immune from prosecutions for genocide, crimes against humanity and war crimes, but lower-level public officials certainly can’t expect such immunity.

Zimbabwe, like Sudan, is not a voluntary party to the treaty that established the International Criminal Court and so the court has no automatic reach over crimes committed there.

However, the United Nations (UN) Security Council can refer situations in non party states to the International Criminal Court for investigation and prosecution. It did this for Darfur and it could do so for Zimbabwe.

Reports issued by Human Rights Watch and Amnesty International on crimes committed in Zimbabwe indicate that referral is appropriate. The recent report by Physicians for Human Rights, documenting the Zimbabwean state’s culpability for the cholera epidemic and endorsed by Richard Goldstone, former prosecutor for the criminal tribunals for the former Yugoslavia and Rwanda, asks: “What happens when a government presides over the dramatic reversal of its population’s access to food, clean water, basic sanitation, and healthcare?

“When government policies lead directly to the shuttering of hospitals and clinics, the closing of its medical school, and the beatings of health workers, are we to consider the attendant deaths and injuries as any different from those resulting from a massacre of similar proportions?”

It concludes by calling on the UN Security Council to refer the crisis in Zimbabwe to the International Criminal Court.

The generals may hope that an amnesty agreement by the political parties in Zimbabwe will pre-empt International Criminal Court involvement. But they should know amnesty for crimes of the magnitude of genocide and crimes against humanity is increasingly suspect under international law, and blanket amnesties — the type awarded Latin America’s military regimes in the 1980s — are universally condemned. Ocampo might yet see them in the Hague.

The full extent of the threat wielded by the Zanu (PF) generals is not that, but for amnesty, select innocents like Mukoko will be subject to unjustified and intolerable detentions. Rather it is that, absent amnesty, the whole country will be held in the grip of their military power. The rumours that Mugabe is not in control of Zanu’s machinery, but beholden to the generals, work to their benefit.

The specifics may be different, but Zimbabwe now confronts the questions critical to any transitional government emerging from a past of mass atrocity, with those responsible still in positions to hold the peace to ransom.

In these conditions must justice assume second place to peace? Can a durable, meaningful peace be achieved without doing justice? How does a transitional government signal a new start — a break from a lawless past — if it doesn’t apply the law and secure justice?

SA became the poster-child of transitional justice because amnesty was not handed out collectively, as seems to be the demand from Zanu (PF). Those eligible for amnesty were required to make full disclosure of their crimes to the Truth and Reconciliation Commission, and it was this individualised process that made the South African proceedings far more palatable in the eyes of the world than amnesties that had been offered before.

But the acclaim heaped on the South African process has tended to obscure its deficiencies: the opposition it engendered from victims required to watch their tormentors lead unblighted lives; the fact that prosecutions for those who did not receive or did not apply for amnesty — the threat by which participation of perpetrators was induced — have largely been unforthcoming.

And then there are the existential issues that remain with us South Africans: it is a speculative proposition, but not improbable, that the decision to leave unpunished decades of systematic criminality and inhumanity has helped breed an environment today in which the most frightening levels of violent crimes attain a degree of normality.

That decision may also have conditioned a fairly malleable understanding of the necessity for the rule of law. If the rule of law can be suspended so that authors of mass atrocity go free, we can hardly be surprised that, a decade later, it is seriously suggested that the prosecution of a man who would be president be suspended in the interests of the country.

SA was not then, nor now, a wholly salutary lesson for Zimbabwe on the concessions justice might pay to peace. Still, it is unrealistic to think some concessions will not be made.

Arguably, even the statute of the International Criminal Court reflects appreciation of the peace versus justice dilemma, providing that investigations and prosecutions may be suspended if these do not serve the “interests of justice”. That ambiguous phrase has been read to suggest that deference may be extended in certain transitional justice processes.

It is in line with a growing international awareness, as expressed by Aryeh Neier, that those coping with different political realities “should be able to exercise their best judgment about how to do justice and when to do justice”. But if Zimbabwe’s new government hopes to command such deference and insist on legitimacy for its transitional arrangements both from the International Criminal Court and from the courts of other countries to which its officials may travel, it will have to do much more than extend the blanket amnesty that Zanu (PF) demands. A back-room deal, characterised by blackmail and ransom is not “best judgment”. It is extortion.

Fritz is the director of the Southern Africa Litigation Centre and writes in her personal capacity.


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