MDC leader Morgan Tsvangirai's announcement that he will not contest Zimbabwe's presidential election this week has been greeted in some quarters by renewed calls for talks towards a negotiated settlement and a possible Government of National Unity as an interim measure until proper elections can take place.
The MDC has stated that it will make known its own proposed way forward for the country on Wednesday, after further consultations with the Zimbabwean people.
The likely scenario from here is one that sees the international community – and SADC in particular – stepping in to push for talks and a negotiated settlement. Given that Robert Mugabe now sees himself as the uncontested President elect, he will most likely make any negotiated solution more difficult, and only substantial pressure from African leaders will make a resolution possible.
Moments of negotiation are crucial junctures for a country, laying as they do the blueprint not just for institutional recovery and reconstruction but also for issues of accountability for past crimes. The very real danger that now faces Zimbabwe is the threat of an entrenched impunity – that Zanu-PF will use the opportunity – and the strengthened hand gained by the terror and violence they have unleashed – to ensure that there are no accountability mechanisms for the widespread crimes that have occurred with increasing brutality and frequency not just over the past eight years, but going back to the Matabeleland massacres of the 1980s.
There have been strengthened calls from Western nations this week that Mugabe be indicted on charges of crimes against humanity, and transferred to the International Criminal Court in The Hague. There is certainly no lack of documentation to support such charges. Local civil society has against all odds continued to document the incidents of torture, forced disappearance, illegal detention, arson, forced displacement, sexual violence and more. Additionally a new IDASA report notes that the growing levels of violence since 2000 are clearly state sponsored and meet the criteria of crimes against humanity.
While Mugabe must surely face charges for the atrocities that have been perpetrated – and these crimes would include forced displacement and the range of socio-economic atrocities that have been perpetrated – such calls at this point in time are likely to only push Mugabe to entrench his position further in an effort to retain power and stave off possible prosecution. Threats of prosecution by the ICC are also likely to play into Mugabe's construction of himself as the true African leader being persecuted by the West who wishes to reestablish colonial control. More importantly, the focus we have seen to date only on Mugabe obscures issues of wider accountability and the related challenges Zimbabwe will face during its eventual transition and reconstruction.
Since 2000 the role of the state and its institutions – particularly the police and military – has been directly and indirectly implicated in state terror. In recent months, their involvement has grown, and while some argue that the youth militias perpetrating the worst of the violence are now beyond even the control of Zanu-PF, their actions are undoubtedly encouraged by the ongoing incitement to violence by government leaders as well as the promise of impunity.
The police and the army in Zimbabwe have joined the ranks of those participating in the violence with the acquiescence of the judiciary. Due process and the rule of law have been subverted, and the courts are no longer used for those in need of justice, but rather to serve the interests of an illegitimate regime. Reports of police arresting torture victims, and of judges hauling them up for prosecution, demonstrates the extent to which the apparatuses of state have been captured not to serve but rather to oppress the people.
Not only have state organs allowed violations to occur, the heads of Zimbabwe's defence, intelligence, police and prisons establishments have openly stated that they will not serve anyone but Mugabe and Zanu-PF.
As a result of these factors, the Zimbabwean problem lies squarely in the politicization of its institutions of justice, a complete absence of accountability or rule of law and a political culture of intolerance and impunity. Reconstruction will not only need to focus on righting the economy, addressing rampant and uncontrolled inflation, and reversing the severe brain drain. Reconstruction will also need to address every aspect of governance. Most urgent will be the need for institutional transformation of the security sector and judiciary.
Confidence in the courts and the police has been eroded. Rebuilding the country will require restoring trust amongst citizens in their state and its institutions. If trust isn't rebuilt then democracy will not take root. As has been shown by so many countries transitioning out of conflict and violence, a lack of trust in judicial and policing institutions during this period manifests itself in increasing levels of crime and violence as a security vacuum occurs, undermining any efforts at stabilization and development.
The challenge will be to reform these institutions and reestablish trust and respect for the rule of law without wiping out an already depleted skills base. Any negotiations that now take place must put the people's interests first – and whatever the outcome, they must not subvert the possibility for justice in the future. Whilst there may be a need to think through the realistic timing of accountability measures and a definition of accountability that moves beyond mere criminal justice, no legitimate solution to Zimbabwe can ignore redress and justice for victims of these violent crimes, nor fail to put on the table a road map for the reform and restructuring of the near collapsed institutions of justice and governance.
Without a focus on these issues, whatever solution the coming weeks bring, Zimbabwe may well continue on its path to a failed state.
Glen Mpani is Regional Coordinator and Nahla Valji is a Senior Project Manager in the Transitional Justice Programme at the Centre for the Study of Violence and Reconciliation.
Originally published in the Zimbabwe Times.