Building vibrant and tolerant democracies
(Read the full comment here or download it below) - By Marie-Pierre Olivier, Senior Programme Lawyer at the International Bar Association Human Rights Initiative - As Zimbabwe gears up for its next elections, still unscheduled at the time of writing, the need for security sector reform regularly surfaces in discussions on how to prevent a repetition of the violence that marred the 2008 elections. The Global Political Agreement (GPA), the outcome of the negotiations that followed those contested elections, provided for the creation of an Inclusive Government (IG), with Robert Mugabe remaining President and Morgan Tsvangirai occupying the newly created position of Prime Minister, and ministers drawn from all parties. The GPA also outlined the steps to be taken in preparation for the next elections, but without addressing security sector reform.
No current plans for security sector reform
Security sector reform is a complex issue and there is no universally agreed definition of the concept. It is generally understood to encompass reform of the police and the military, but can also include judicial reform. Non-statutory security forces, such as, in the case of Zimbabwe, youth militias, should also be taken into consideration. The Organisation for Economic Cooperation and Development (OECD) describes the objectives of security sector reform as the: (i) establishment of effective governance, oversight and accountability in the security system; (ii) improved delivery of security and justice needs; (iii) development of local leadership and ownership of reform processes; and, (iv) sustainability of justice and security service delivery.
Civil society organisations and most Zimbabweans have been calling for security sector reform for some time, even before the 2008 elections. It is now seen as an essential measure to ensure free and fair elections in Zimbabwe. Calls for security sector reform usually arise in post-conflict situations but in the case of Zimbabwe, they are linked to the high level of politicisation of the security institutions. The military and the police top brass support President Mugabe’s ZANU-PF and even after the creation of the IG, control of these key institutions remains firmly in the hands of ZANU-PF ministers. Numerous acts of violence and torture committed by members of the security forces have been reported by civil society organisations, peaking at the time of the 2008 elections. As summarised by one commentator, “Much of the population thus believes that the security sector is a destroyer, not a provider, of security."
ZANU-PF refuses to even consider the possibility of security sector reform and made its position clear at the recent Universal Periodic Review of Zimbabwe before the UN Human Rights Council. Zimbabwe systematically rejected all recommendations related to security sector reform and the investigation of human rights violations committed at the time of the 2008 elections. Justice Minister Patrick Chinamasa, who is a member of ZANU-PF and led the Zimbabwean delegation in Geneva, made a forceful declaration against security sector reform at the conclusion of the UPR: “[O]n security sector reform, Zimbabwe will not even entertain the recommendation. Reform for who? For what? How dare they recommend that those who fought against colonialism and all its ugliness, i.e. racism, injustices, discrimination, oppression, torture, exploitation and total dehumanization, should go?”
Accountability as an element of security sector reform
Transitional justice is not automatically understood as part of security sector reform, but in order to ensure sustainability, accountability mechanisms should be an integral part of reform efforts, in what has been described as a ‘justice-sensitive approach to security sector reform’. Holding perpetrators of human rights violations accountable is essential to the restoration of the integrity of these institutions.
However, there appears to be little political will in Zimbabwe to put in place any accountability mechanism, and the GPA is quite vague on the issue, only stating in article 7(1)(c) that the parties “shall give consideration to the setting up of a mechanism to properly advise on what measures might be necessary and practicable to achieve national healing, cohesion and unity in respect of victims of pre and post-independence political conflicts.” In his meeting with a delegation of the International Bar Association’s Human Rights Institute (IBAHRI), Prime Minister Tsvangirai, leader of the larger of the two formations of the Movement for Democratic Change (MDC), mentioned that one of the biggest weaknesses of the GPA was its failure to provide guidance on security sector reform. When questioned by the IBAHRI delegation on accountability for human rights violations committed by members of the security forces, particularly around the time of the elections, MDC ministers adopted a pragmatic point of view, but without endorsing a blanket amnesty. Prime Minister Tsvangirai and the MDC ministers explained that efforts are currently focused on making the IG work, and that prosecutions of officials from the security forces would not be possible – or advisable – in the current context. And judging from Minister Chinamasa’s declaration at the UPR, it is highly unlikely that such action would receive any support at all from ZANU-PF.
Is international criminal action the solution?
In the absence of national prosecutions, should there be a call for stronger international intervention with regard to the prosecution of perpetrators of acts of violence during the 2008 elections? Would this speed up or hinder any efforts to reform the police and the military in Zimbabwe?
The prospect of international prosecutions of Zimbabwean security officials remains remote. As Zimbabwe is not a party to the Rome Statute of the International Criminal Court (ICC), the only possible avenue for the ICC’s jurisdiction to be triggered in Zimbabwe is through a resolution of the UN Security Council, referring the situation to the Court. So far, the Security Council has adopted such resolutions in the cases of Sudan (Darfur) and more recently, Libya. The Security Council would need to conclude that the human rights violations taking place in Zimbabwe pose a threat to ‘peace and security’ according to Chapter VII of the UN Charter. Should the next elections see an upsurge in violence – similar to what happened in 2008 – it is not impossible that the Security Council could ask the ICC to intervene.
It is difficult to measure whether international criminal action actually has an effect on security sector reform inside a state. Most situations before the ICC at the moment involve post-conflict states, such as the Democratic Republic of Congo (DRC) or the Central African Republic. Zimbabwe presents a different case, where prosecutions would target individuals still holding positions of power, in a situation similar to the one that unfolded in Kenya.
In Kenya, the violence around the disputed elections of 2007 led to a power-sharing agreement and also to the opening of an investigation by the ICC, based on the Prosecutor’s proprio motu power. Six summonses to appear have been issued against Kenyan officials, including the Head of the Public Service and Secretary to the Cabinet, and the Deputy Prime Minister and Minister for Finance. The confirmation of charges hearing took place in September 2011, with a decision expected in December 2011. Commentators have argued that the ICC’s investigation has had an unexpected effect on judicial reform in Kenya. As defendants challenged the admissibility of the case and tried to convince the UN Security Council to use its power under Article 16 of the Rome Statute to defer the investigation, political leaders advocated for judicial reform in an effort to demonstrate that prosecutions could take place in Kenya. Judicial reform has, in fact, shown some progress and a new chief justice has been appointed. However, the same commentator notes that the controversy around the ICC intervention has “obscured dialogue on reforms that would prevent future violence”, including security sector reform.
An intervention from the ICC would be likely to cause controversy in Zimbabwe, since international action is often viewed with suspicion and labelled as Western interference in the country’s affairs. In addition, according to the comments heard by the IBAHRI delegation, international prosecutions could increase resistance to security sector reform in Zimbabwe, as veterans would only agree to step down if their liberty and pensions were guaranteed. The IBAHRI mission gathered the impression that reconciliation is seen in Zimbabwe as the best route to ensure effective reform of the security forces.
Even without ICC intervention and should Zimbabwe rule out prosecution of security forces officials involved in human rights violations at the time of the 2008 elections, this does not eliminate the possibility of prosecutions under the principle of universal jurisdiction. Under this principle, crimes, such as torture, that have been recognised as part of customary international law, can be prosecuted in any state, no matter where they were actually committed. States could therefore decide to prosecute Zimbabwean authors of torture, who are on their territories. Some countries have also specifically adopted legislation giving them jurisdiction over international crimes, such as crimes against humanity and war crimes. South Africa’s Implementation of the Rome Statute of the International Court Act allows for prosecution in South Africa of suspects of international crimes, even though the crimes may have taken place in another state.
Accountability should not be ruled out
It remains for Zimbabweans to determine what mechanism will be put in place to deal with security sector reform, but it is hoped that these efforts will not completely exclude accountability measures. International prosecutions should also take place, wherever possible, as they send a clear message that impunity will not be tolerated under international law. To restore the integrity of security forces and rebuild the population’s confidence in security institutions, a credible accountability mechanism needs to put an end to the impression that security officials can, literally, get away with murder.