14 April, 2008

TECHNICALLY, MUGABE CONCEDES DEFEAT

In the absence of figures on the presidential results from the Zimbabwe Electoral Commission (ZEC), Robert Mugabe has technically conceded defeat to Morgan Tsvangirai. By calling for a re-run of the presidential vote, Robert Mugabe is actually telling Zimbabweans that he lost the March 29 plebiscite. Logic dictates that if Mugabe had lost to Tsvangirai by a small margin, he would have not resisted the publication of the results as proof that there was a need for a run-off. His attitude and vehement blocking of the release of the presidential vote is further proof Mugabe lost by a RESOUNDING margin.

In the absence of figures on the presidential results from the Zimbabwe Electoral Commission (ZEC), Robert Mugabe has technically conceded defeat to Morgan Tsvangirai. By calling for a re-run of the presidential vote, Robert Mugabe is actually telling Zimbabweans that he lost the March 29 plebiscite. Logic dictates that if Mugabe had lost to Tsvangirai by a small margin, he would have not resisted the publication of the results as proof that there was a need for a run-off. His attitude and vehement blocking of the release of the presidential vote is further proof Mugabe lost by a RESOUNDING margin.

Calling for a re-run as opposed to a run-off shows how Mugabe is aware of the imminent drabbing he would get one-to-one against Morgan Tsvangirai. In a re-run, Mugabe hopes that the participation of his former Finance Minister, Simba Makoni, would dilute the MDC vote. Robert Mugabe and his cronies can see the writing on the wall in a run-off.

It should be understood that Mugabe simply cannot win any election; not even one which is neither free nor fair in his favour. Mugabe's days of electoral victories are irretrievably gone. In the most unlikely event that Mugabe were to win a run-off or re-run by hook or by crook and thus remain in office, the economy would reject him with devastating consequences for the livelihood of ordinary Zimbabweans who cannot afford the bare minimum to sustain themselves. For example, even the Z$50 million higher value bearer cheque introduced recently is just enough to buy two loaves of bread.

Had Mugabe won the election, even with less than the absolute majority required under the Electoral Act, ZEC would have announced the result a long time ago and Zimbabweans would have been spared the constitutional uncertainty and political tension that have put the southern African nation on the brink of chaos and mayhem.

The registered voters who voted in the elections have a legitimate expectation to know the result of their vote. By withholding the results, without any reasonable explanation, the ZEC's conduct is inconsistent with the doctrine of legitimate expectations which applies to all public authorities. The doctrine of legitimate expectations expands the boundaries of the concept of fairness and in coming to a decision to or not to announce the results, ZEC owes a duty to act fairly to all parties and individuals that participated in the elections.

The defeat of ZANU (PF) in the parliamentary elections, underscores the people of Zimbabwe's rejection of the failed policies and the widespread suffering caused by Robert Mugabe's repressive and corrupt rule. The elections were truly historic in that despite the glaring rigging apparatus put in place, the opposition parties snatched victory from under the ruling party's nose. By refusing to release the presidential results, ZANU (PF) displays a lack of respect for the will of the people. It is distressing that the calls for action have been dampened by African leaders who say the situation is still "manageable".

It can be recalled that it was Robert Mugabe himself who unilaterally called for elections for 29 March against wise counsel from President Mbeki of South Africa and protestations from both factions of the Movement for Democratic Change. Mugabe had calculated that he would catch the opposition flat footed. That strategy dismally backfired. Mugabe is on record on Election Day as saying, "The moment the people stop supporting you, then that's the moment you should quit politics." He dismissed allegations about rigging the elections saying his conscience would not allow him to accept a situation where he knew his party was cheating. "We have support out there", he declared. It was jarring to hear someone who has ordered the battering, killing and abduction of opponents talking about having a conscience.

Why is he unable to do the honourable thing and leave the people of Zimbabwe to start the odious reconstruction of the socio-economic structure he has put into ruins over the past 28 years? The reality is Mugabe must be feeling embarrassed after being defeated by a man he has repeatedly said would "never" rule this country.

Besides, the simple truth which ZEC has found hard to stomach and which Mugabe and his shocked cronies have found hard to swallow is that Morgan Tsvangirai won the presidential election even if with less than the required absolute majority. In other words, Tsvangirai got more votes than Mugabe and thus defeated him.

There are reports of a leaked copy of a military plan to deploy 200 senior officers of the armed forces to coordinate a campaign of intimidation against MDC supporters. Already there are widespread incidents of post-election violence, especially in former ZANU (PF) strongholds where the party lost to the MDC in the parliamentary election. This suggests the existence of coordinated retribution against known and suspected opposition supporters. Accounts from individuals seemed to corroborate a pattern of harassment and intimidation, a tactic used by the government in past campaigns to suppress the opposition and scare voters.

In Zimbabwe, there is a de facto military regime in charge of the country, masquerading as a de jure constitutional government. In fact, during this impasse, constitutional power is vested solely in the President, but plainly, those in charge are the security establishment - the Joint Operations Command. Chaired by the army commander-in-chief, General Constantine Chiwenga, the JOC was put together by Mugabe to make crucial decisions during this political crisis. It is comprised of military, police, intelligence and prison chiefs, and they are believed to be even more powerful than the cabinet.

Without the security structure, ZANU (PF) would sink. For President Mbeki and his SADC colleagues, it is high time they pierce the veil of democracy and see the regime in charge of Zimbabwe for what it really is.

It is obvious that the sovereign power of the people of Zimbabwe to change their government democratically and peacefully does not work in Mugabe's Zimbabwe. Contrary to the principles consecrated in the New African Partnership for Development (NEPAD) and the AU Constitutive Act, observers are stunned by the deafening silence on the part of SADC and AU mechanisms in the face of impunity by Robert Mugabe.

NEPAD, the African Marshall Plan, was crafted on underlying principles of a commitment to good governance, democracy, human rights and conflict resolution; and the recognition that maintenance of these standards is fundamental to the creation of an environment conducive to investment and long-term economic growth.

The preamble of the AU Constitutive Act clearly states, inter a'lia, that Heads of State and Government of the Member States are:

CONSCIOUS of the fact that the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent and of the need to promote peace, security and stability as a prerequisite for the implementation of our development and integration agenda;

DETERMINED to promote and protect human and peoples' rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law; etcetera.

In view of this ambitious programme for Africa's economic development and these noble declarations, African leaders should take a more robust stance against flawed electoral processes, politically motivated violence and torture in Zimbabwe. The policy of "quiet diplomacy" as espoused by the South African President, Thabo Mbeki, has so far not yielded positive results.

There is further evidence that Robert Mugabe wants to impose himself on the people of Zimbabwe as "life president". Former Justice, Legal and Parliamentary Affairs Minister, Patrick Chinamasa who was defeated in the parliamentary election, confirmed on April 9 that Mugabe had reappointed his Cabinet.

"It is constitutional that the incumbent President and his Cabinet remains in place until a new President of the Republic of Zimbabwe is sworn in," Patrick Chinamasa said.

The MDC Secretary-General, Tendai Biti, said: "With Constitutional amendment number 18, which synchronized the presidential term with the life of the last Parliament, it means he is only a caretaker President right now, with no mandate to make substantive decisions..." Biti argued that cabinet ministers had been members of the previous Parliament, which expired on March 28. "At law, only Members of Parliament can serve in Cabinet," Tendai Biti pointed out.

Therefore, the current charade of a dissolved Cabinet whose defeated ministers are now seeking to unconstitutionally smuggle themselves back into office under spurious but self-serving interpretations of Section 31E of the Constitution is treacherous. It is common cause that Mugabe dissolved not just the Parliament but also the Cabinet and this fact was widely reported in the media.

What must be understood is that in terms of Section 31E (1) (a) of the Constitution of Zimbabwe, the significance of the dissolution of the Cabinet by the President is that it is constitutionally the same as the removal from office of vice-presidents, ministers and deputy ministers. When the President dissolves the Cabinet, it means that vice-presidents, ministers and deputy ministers have all been dismissed and removed from their offices in one fell swoop.

This means there is no government. As such, there is now a constitutional vacuum which is made worse by the fact that the country is also going through an unprecedented economic meltdown, with year-on-year inflation at 165,000%, whose resolution requires an elected government with a requisite economic recovery plan. The only exception, which is not much of a consolation, is that the dissolution of the Cabinet in March did not affect the embattled Mugabe who appointed it and who, even if defeated on March 29, is nevertheless empowered by Section 29 of the Constitution to unhappily continue in office until the person elected as President on March 29 takes over the reins of governance.

ZEC's delinquent failure to announce the result of the presidential election has in turn prevented the democratic and constitutional processes from yielding a new President to enable the country to move forward in a stable and cohesive manner cemented by national unity and the law. In the circumstances, ZEC's delay in announcing the result has become inherently destabilising to the detriment of both the national interest and national security.

Furthermore, in an effort to deny the opposition of its outright victory, ZANU (PF) has paralysed ZEC, and led a propaganda war designed to justify the deployment of security agents and war veterans to close off resettled areas and villages from the opposition, pending a declaration of a re-run of the presidential election. The strategy involves disrupting the work of ZEC, demanding recounts, and heightening temperatures in the rural areas, while setting up special task forces to lead campaigning in a new round of elections.

What should be remembered is that Mugabe no longer has any electoral option involving him as a candidate outside a negotiated settlement for a gracious exit. He is certain to be humiliated in untold ways if he should be unwise enough to participate in a run-off or re-run as no rational voter can see him turning around the economy or just running this country for the next five years.

The overall scenario brought about by the bickering is that the country's national security is unnecessarily threatened by exposure to hostile external interference. This is because the international community, especially Zimbabwe's neighbours in SADC, cannot be expected to stand idly by while Mugabe digs in and embarks on a scorched earth policy against his own people and country for the sole purpose of reversing an unannounced election result won by MDC's Morgan Tsvangirai. Zimbabwe's detractors won't miss such an unfortunate opportunity created by what can only be Mugabe's contempt for the electorate with the assistance of ZEC.

At the core of the withholding of results is the ZANU (PF) interference with ZEC operations which is supposed to be impartial, transparent and objective in discharging its role. This is evidenced by how state operatives shut down the ZEC National Command Centre at the Rainbow Towers Hotel which was supposed to announce the presidential outcome. Equipment was dismantled and the police denied journalists access to the centre. Election agents of political parties and ZEC staff were asked to leave the command centre. Political parties have now been barred from the facility.

It was reported that the Central Intelligence Organisation (CIO) forced the Zimbabwe Broadcasting Cooperation (ZBC) from the command centre on April 6, 2008, giving ample evidence that the state operatives have taken over the activities of ZEC.

In a twist of irony, the Mugabe regime is now accusing its own ZEC of manipulating the elections in favour of the MDC. As the MDC President called it, "It's like the pot calling the kettle black." In what appears to be a carefully crafted plot to discredit last month's general elections, that the government lost, eight Zimbabwe Electoral Commission officers have been dragged to court under ZANU (PF) orders, facing charges of ‘electoral fraud'. The ruling party was in charge of the whole election machinery. The opposition participated in the election under protest - under duress, one may venture to say.

It is surprising that the ruling aristocracy claims the results being ‘wrong' when, on one hand, the results are not made public and, on the other, the whole process of counting and verification was done in the presence of both ZANU (PF) and MDC polling agents who signed confirmation of what they witnessed to everyone's satisfaction. There was also agreement among the contesting parties to display the results outside polling stations, putting them in the full glare of the public eye.

The refusal to allow the Zimbabwe Electoral Commission to release results of the presidential election points to the travesty of the concept of democracy. It latently points to the fact that the ruling party was thumped in the unfolding democratic process despite the massive pre-voting rigging of the electoral process. In previous elections where ZANU (PF) won the elections, it did not take two weeks to announce its victory. That ZANU (PF) lost the presidential election is no longer a matter of contest but a given reality.

Furthermore, in past elections, the dispute has been over the substance of the result, not over its release. And most unusually, the ruling party, the organisation that for so long has been in control of the electoral process, is behaving in a manner generally associated with the opposition. Except that because it is the ruling party, it has been able to abuse its authority over the arms of the state by withholding the result.

Even the view that Mugabe and ZANU (PF) have concerns about the ZEC's counting process does not stand scrutiny. Zimbabweans know that the MDC had similar concerns about the electoral process in previous elections, particularly in the 2000 parliamentary and 2002 presidential elections. But that did not stop the electoral body from announcing the results and declaring Mugabe and ZANU (PF) as the winners. Mugabe insisted that any negotiations with or challenges by Morgan Tsvangirai and the MDC could only be conducted if they recognised his presidency.

What then has changed on this occasion, so that the ZEC should withhold results simply because ZANU (PF) has objections? Surely, if the results favoured Mugabe and ZANU (PF), ZEC would have announced the results and the MDC would have been directed through the constitutional route, as has happened before, to make their challenges. Why can't ZANU (PF) make its objections using the legal channels to which they have so often directed the opposition in the past?

Commending on ZANU (PF) demands for a re-run, MDC President, Morgan Tsvangirai, told reporters on April 5 that he was reluctant to enter into a second round with Mugabe, saying doing so would be to "accept a subversion of the people's victory". He said ZANU (PF) was keen on a re-run so it could wage "a war on the people, such as we saw in 2000 and 2002".

One thing stands clear in this whole election saga, namely the undemocratic nature of the Zimbabwe electoral process. Ironically, crucial to the success of Mugabe's demand for a re-run is the discrediting of his own crafted electoral process. If ever there was evidence that the electoral process in Zimbabwe is no more than a part of an elaborate charade of democracy, this is it. The opposition and civic organisations have now been exonerated from ZANU (PF)'s claim that they are a front to foreign agents when they demand that a democratic constitution be in place in order to facilitate free and fair elections.

Meanwhile, the MDC has turned to the High Court in attempts to compel ZEC to release the results of the presidential race. It is reported that ZEC lawyer, George Chikumbirike, stated before Justice Tendai Uchena that, "It would be dangerous in my view to give an order (for ZEC to release results) because it might not be complied with ... because of outside exigencies which the party (ZEC) will be unable to control."

Chikumbirike did not specify the nature of the "outside exigencies" beyond the ZEC's control, leaving the matter to speculation. But, surely, the ZEC is a constitutional body that is supposed to be independent of external control, however large and overbearing. That it concedes before the High Court that it is unable to execute its mandate because of some unnamed forces is testimony to its lack of independence, a circumstance that takes away any of its significantly diminished credibility.

Addressing journalists at a media briefing in Harare on April 9, the MDC Secretary-General, Tendai Biti, said, "We have won this election and we will not participate in a run-off.

"It is quite clear that ZANU (PF) is desperate to reverse the people's victory, to reverse the people's expression on the 29th of March 2008..... How do you talk of a run-off when you don't know the result?"

As envisaged in the 2005 World Summit Outcome Document of the United Nations, Heads of State and Government gathered at United Nations Headquarters in New York from 14 to 16 September 2005, stated, among other things that, "We acknowledge that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and wellbeing. We recognize that development, peace and security and human rights are interlinked and mutually reinforcing. (Paragraph 9)

"We acknowledge that good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger." (Paragraph 11)

In other words, the international community has the prime responsibility to protect populations from imminent and massive human rights abuses and other humanitarian crises, such as genocide, war crimes, ethnic cleansing and crimes against humanity. This is a new international doctrine obliging the international community to intervene in order to prevent gross human rights abuses once a State fails in its duty to protect and shield its own population from grave breaches of constitutional rights and international law.

The well-documented Gukurahundi atrocities of the 1980s where nearly 20,000 innocent civilians were massacred by the North Korean-trained Fifth Brigade in Matebeleland and parts of the Midlands were followed by Operation Murambatsvina (Drive Out Filth) in 2005.

The ZANU (PF) government embarked on a path of attrition and extermination of innocent civilians and a programme of mass forced evictions and demolition of homes and informal livelihoods. Operation Murambatsvina, which was carried out in winter and against a backdrop of severe food shortages, targeted urban areas countrywide. The evictions and demolitions were carried out without due process, and during the operation police used excessive force: property was destroyed and people were beaten. Up to 700,000 of Zimbabwe's citizens were rendered homeless and a further 2.4 million were affected in one way or another.

The UN report released on July 22, 2005, underlined that the government had indiscriminately violated the rights of its people. The United Nations envoy, Anna Tibaijuka, confirmed that Zimbabwe had disregarded several provisions of national and international legal frameworks and that it had done so in an unplanned and overzealous manner. The police repeatedly failed to act within the law and ignored court orders.

There is mounting evidence that Operation Murambatsvina was a major cause of urban poverty in the country which has reached alarming rates with an estimated two million urban dwellers requiring food aid this year. People are hungry. Operation Murambatsvina and years of mismanagement and plunder by ZANU (PF) has made them homeless and disillusioned. About four million Zimbabweans have fled into the Diaspora for both political and economic reasons. Those that have remained have had to bear with critical shortages of electricity, fuel, water, foreign currency and basic commodities and the collapsed sewage, health and education systems.

The main reason the MDC won the popular vote is the economic crisis coupled by a crisis of governance prevailing in Zimbabwe. Zimbabweans believe that a change of government would improve their chances of an economic restructuring that will bring much needed foreign investments to create jobs. Unemployment is running at 85%.

The state has over the past decade adopted a laager mentality in which it has tried to close off potential channels of dissent. The psyche of the ZANU (PF) government has been tuned to achieve conformity and deal ruthlessly with balking sections of society, hence the enactment of draconian laws like POSA and AIPPA. The leadership of the MDC, Zimbabwe Congress of Trade Unions, members of the National Constitutional Assembly, human-rights lawyers and Women of Zimbabwe Arise (Woza) are routinely rounded up, beaten and detained at police stations for demanding a home-grown constitution and demonstrating against poor service delivery by the city municipalities.

Since the emergence of the Movement for Democratic Change in September 1999, it has increasingly become clear that Robert Mugabe's regime has become a danger to human security in all material aspects and respects.

The broader human rights violations in Zimbabwe have been well documented, including by the African Commission on Human and Peoples' Rights' report of its 2002 fact-finding mission to Zimbabwe. Key recommendations contained in the African Commission's report have not been addressed by Zimbabwe. One of the Commission's key recommendations was the amendment or repeal of repressive laws, such as the Public Order and Security Act and the Private Voluntary Organisations Act. However, the Government of Zimbabwe has failed to implement these recommendations, continues to use and defend repressive legislation and has proceeded to propose and enact new legislation which violate internationally recognised human rights.

Both internal and international observers believe that the Southern African Development Community (SADC) has a crucial role to play to address the prolonged human rights crisis in Zimbabwe. In view of the government of Zimbabwe's failure to address the recommendations contained in the report of the African Commission's 2002 fact-finding visit as well as the recommendations contained in the report of the UN Special Envoy, Anna Tibaijuka, it is expedient to adopt a resolution condemning the human rights violations in Zimbabwe and the regime's clear failure to adhere to the SADC Guidelines and Principles Governing Democratic Elections adopted at Grand Baie, Mauritius in August 2004.

The SADC has been accused by critics of pandering to Mugabe with disregard for its own guidelines to promote democracy.

If the failure by the international community to prevent the 1994 Rwandan genocide, despite clear indications of discriminate slaughter of an estimated 800,000 Tutsi minority by the Hutu-led Interhamwe militia, was not a good enough reason to trigger the international community into action, then no clearer indications of imminent violence in Zimbabwe would.

The people of Zimbabwe have voted for change; they want democracy, they want freedom of expression and assembly. They want a democratic government to put in place mechanisms for poverty alleviation and to tackle the causes of the economic meltdown they are living through.

The process of going through an election in any democracy is founded on the basic fundamentals that an election acts as a democratic barometer which gauges the views of dissenting voices and how the people's choices on who gets into public office. Failure to listen to such voices is a recipe for creating a totalitarian establishment.

The lack of accountability is noted by how the losing government extended the term of the Cabinet and that of the President through the use of the nefarious Presidential Powers (Temporary Measures) Act to feel in the vacuum left by the failure of the very same regime to announce the results of the country's presidential post.

What the whole situation boils down to is that the current electoral stalemate created by ZEC on Mugabe's behalf cannot be resolved through a re-run or run-off. It would be foolhardy to use an election to resolve an election impasse. What is needed is a negotiated settlement for a transitional process that recognises the will of the people as expressed on March 29 while also appreciating Mugabe's institutional sensitivities and personal anxieties along with those of his close associates in key organs of the state.

Looking at TV footages of Robert Mugabe, one is justified to think that he is in a dangerous state of mental warping capable only of producing a self-serving individual without a tinge of selflessness. This is a child like state of mind. In such a state, the nation and the people are positioned last. Under his rule, Zimbabwe is now typified by a drastic decline into a state of anarchy where the once prosperous country can no longer feed itself. Zimbabweans have asked many questions about what makes the Zimbabwean leader so grossly selfish and callous.

Frustrated Zimbabweans are asking what makes the man who has caused them so much misery so comfortable with blaming others and offering seemingly plausible rationalizations for his brutal inhumanity and ruthlessness. In offices, on buses and street corners, people are asking what they have done to deserve an 84-year old leader who behaves like a child who will not accept the inevitable.

President Levy Mwanawasa of Zambia, the current chairman of SADC and host of the extraordinary summit on Zimbabwe, delivered a pointed snub to Robert Mugabe by inviting his key opponent, Morgan Tsvangirai, to attend. No opposition leader has been invited to a SADC summit before. All eyes are on Lusaka to produce another "Lusaka Declaration" that lead to the 1979 Lancaster House Conference that settled Zimbabwe's liberation struggle against the Smith regime.

After 13 hours of deliberations which ended at 05:00 hours on April 13, "The summit urged the electoral authorities in Zimbabwe that verification and release of results are expeditiously done in accordance with the due process of law."

This tame and watered-down statement in tacit support for a dictator is not only an embarrassment for Africa, but causes millions of inhabitants of Southern Africa and the international community to lose faith in the continent's ability to establish sustainable democratic processes. After a meeting with Mugabe, Mbeki told journalists that Zimbabwe's election deadlock was not a "crisis". Reports suggest it was Mbeki who was instrumental in blocking SADC from taking a tougher stance against Mugabe's government for failure to ensure poll results are released.

Therefore, most observers feel disappointed that the regional leaders called on the South African president to continue his mission as chief mediator between Zimbabwe's ruling party and the opposition. A statement issued at the conclusion of the 14-nation SADC summit said, "Summit requested president Mbeki to continue in his role as facilitator on Zimbabwe on the outstanding issue."

The SADC leaders needed to peer through and even lift the veil of democracy and legitimacy that the ruling ZANU (PF) party has for so long used to cover its acts and omissions. Thabo Mbeki has failed to do this because of his personal relations with Robert Mugabe. For as long as the SADC leaders deal with Zimbabwe on the basis that it operates on the same platform, using similar democratic institutions, they will continue to dilly-dally and perpetuate what is in fact a military-style regime.

It is sad that African leaders deal with Zimbabwe as if it were a normal democracy. What greater evidence should there be before they acknowledge that Zimbabwe is effectively operating as a military state, where the will of the people is slowly but surely being subverted or at the very least postponed unnecessarily?

ZANU (PF) must be reminded that the reason they participated in this election was to get the people's mandate. ZEC displayed results outside every polling station throughout the country. These were interpolated by the MDC, SADC election observers and other independent groups like the Zimbabwe Election Support Network (ZESN) (whose mandate is to promote free and fair elections) showing that, the ruling party lost. It must respect the wishes and aspirations of the people of Zimbabwe who expressed their disapproval of the lack of transparency, corruption and the breakdown of the rule of law which is a hallmark of Robert Mugabe's 28-year rule.

It is ironic that the ZANU (PF) administration went to such lengths to exclude foreign journalists in order to minimise negative publicity only to create a bigger story by withholding the election results. Now the whole world is focused on Zimbabwe's delinquent behaviour. Voters have been denied their right to know the outcome of an election for the highest office in the land.