The Zimbabwe General elections were held on August 23, 2023, and the incumbent President and ZANU-PF the ruling party, claimed victory in what many viewed as a deeply flawed election. The SADC Election Observer Mission concluded that “aspects of the harmonized elections fell short of the requirements of the constitution of Zimbabwe, the Electoral Act, and the SADC Principles and Guidelines Governing Democratic Elections (2021)”.
The European Union Mission, the African Union, and the Carter Center equally condemned the elections while the Commonwealth Observer Mission mildly did the same. ZANU-PF reacted to the SADC report by condemning Dr. Nevers Mumba, Chair of the SADC Observer, suggesting that the report was tainted by his views. They went further and stated that those condemning the elections were puppets of the West bent on getting rid of “revolutionary” parties that are in power in Southern Africa. This strategy by ZANU-PF to attack the messenger is not new. It is taken directly from the 2008 playbook where in 2008 the SADC Tribunal ruled against Zimbabwe in a number of cases involving the seizure of land without compensation from white farmers. At that time, ZANU-PF vehemently attacked the judges on the Tribunal and called for the abolition of the Tribunal. Sadly, because of the weakness of countries like South Africa they achieved their purpose and the tribunal was abolished, even if the Tribunal is established directly by the SADC founding treaty, amongst the institutions of SADC in Article 9.
In the election saga, the attacks on Dr. Nevers Mumba extended to the appointing authority, the President of Zambia, Hakainde Hichilema (Chair of the SADC Organ on Politics, Defense and Security) and perhaps not astonishingly ZANU-PF attacks were championed by some of the opposition parties in Zambia. The opposition parties in Zambia were the only ones in the region, and indeed in Africa, to claim that the Zimbabwean elections were free and fair. The opposition leaders in Zambia crowned their campaign against Dr. Mumba by recording a vitriolic video in which, without an iota of evidence, claimed that the Zambian President and Dr. Mumba were agents of western powers and had connived to produce the SADC Elections report. This is evidence of the low bar of current African politics can reach where fact and fiction are interchangeable. Thos Zambia opposition parties are clearly ignorant of the processes of how international organizations like SADC operate and the practice and objectives of observer mission in elections.
According to the SADC Principles and Guidelines Governing Democratic Elections (2021)”, “Free (elections)” means ‘Fundamental human rights and freedoms are adhered to during electoral processes, including freedom of speech and expression of the electoral stakeholders; and freedom of assembly and association; and that freedom of access to information and right to transmit and receive political messages by citizens is upheld; that the principles of equal and universal adult suffrage are observed, in addition to the voter’s right to exercise their franchise in secret and register their complaints without undue restrictions or repercussions.’
“Fair (elections)” means ‘electoral processes that are conducted in conformity with established rules and regulations, managed by an impartial, non-partisan professional and competent Electoral Management Body (EMB); in an atmosphere characterised by respect for the rule of law; guaranteed rights of protection for citizens through the electoral law and the constitution and reasonable opportunities for voters to transmit and receive voter information; defined by equitable access to financial and material resources for all political parties and independent candidates in accordance with the national laws; and where there is no violence, intimidation or discrimination based on race, gender, ethnicity, religious or other considerations specified in these SADC Principles and Guidelines Governing Democratic Elections.
These Guidelines were adopted under the auspices of the SADC Organ on Politics, Defence and Security Cooperation (OPDSC) which is currently chaired by Zambia. They are based on the provisions of the SADC Treaty which establishes obligations regulating the democratic conduct of its Member States. Article 4 of the Treaty provides that “human rights, democracy and the rule of law” are principles guiding the acts of its members. Article 5 obliges the Member States to “promote common political values, systems and other shared values which are transmitted through institutions, which are democratic, legitimate and effective”.
Elections are a defining characteristic of democracy, and thus form an integral part of the democratization process. They are a contest for power, and are therefore inherently contentious, unless conducted fairly, they can (and often do) lead to violence. It is fundamental that the electoral process be governed by clear and fair rules so that those that lose the election can trust that the rules have been applied fairly and justly; otherwise, the losers are more likely to continue the contest by other (violent) means.
Election monitoring (including through providing international monitors and training local ones) is an important way for the international community to ensure and support free and fair elections. A distinct concern relating to international involvement is to avoid legitimizing a flawed election. This concern underscores the importance of effective monitoring throughout the entire electoral process. Monitoring activity should cover, geographically and chronologically, the entire electoral process, from the initial stages of registration through the elections themselves. Each of the election stages (i.e. voter registration, campaigning, printing of election materials, storage and transportation of election materials, casting and counting ballots) should be certified as compliant with the principles of a free and fair election. If these stages are not examined international electoral observation will be superficial and its conclusions untenable.
International observation thus requires the oversight of the actions of the Electoral Commission and its organs at all stages of the electoral process to verify compatibility under the governing legislation, the extent of freedom of assembly, expression and organization, voter education efforts, access to media by all political parties, registration of voters(to ensure for example, that qualified voters are not denied identification documents that would allow them to exercise their right to vote), proper security measures of transport and custody of ballots, and timely announcement of election results.
Zambia opposition parties in question would like the world to believe that SADC report was written by Dr. Mumba himself. “On what meat do they feed “ for these lies? In any Election Observer Mission, there are dozens of members, and they are supported by a team from the organizations secretariat and electoral experts who demand that good electoral practice be followed and that electoral laws be obeyed. This is reflected in the SADC Obesrver Mission Guidelines by which the SADC Secretariat shall endeavour to select Observers with a diverse professional backgrounds and experience, with the requisite skills to assess the relevant aspects of the electoral cycle. SADC Member States submit to the SADC Secretariat Observer shortlists that the SADC Secretariat uses to select the number of Observers required to be deployed to each Member State holding elections, taking into account, the political context, geographical size and financial capacity.
An Election Observer Mission is preceded by the deployment of a technical Pre-election Assessment Mission that advises the Mission on the pertinent election issues identified prior to the election. The full Mission is then deployed and for each event observed, they complete a checklist, and submit the checklist and their reports to a central secretariat, which analyses the information. The analysis of the observers serves as the basis of the final evaluation of the election. There has been no instance during my participation in numerous observer missions, where the head of a Mission authors a report by himself or herself. This is simply not the and it is not done this way. To suggest otherwise is to expose ignorance of the process of how reports are developed and written. The Reports issued by the Election Observer Missions after elections are preliminary reports; final reports will be issued in due course which will show the complete picture of the state of the recent Zimbabwean elections.
As I pointed out in my opening paragraph, the tactic of Zimbabwe in attacking an organization that is critical of some of its practices is not new. It has become an established practice in their playbook and is being applied now in this election saga and will, no doubt, be used in the future. It brings to mind the fate of the SADC Tribunal after it ruled against Zimbabwe in cases brought by white Zimbabweans whose land had been seized by the government. The SADC Tribunal operated based on the SADC Protocol establishing the Tribunal, it granted individuals the right to lodge complaints with the Tribunal.
In 2008 the Tribunal heard a case filed against Zimbabwe during the presidency of Robert Mugabe. (Campbell and Others v. The Republic of Zimbabwe) After the case was filed with the Tribunal, several Zimbabwe farmers made application to join the case, and the Tribunal allowed them to do so. The Tribunal held that the acquisition of the farms without compensation was contrary to international law and the SADC treaty. Zimbabwe refused to implement and execute the judgment of the Tribunal as required by the Protocol of the Tribunal. Much like in the Mumba Electoral Protocol Observer Mission, The Zimbabwe Government launched a campaign within SADC to dismantle the Tribunal. Robert Mugabe called the Tribunal a “monster.” “Fools rush in where angels fear to tread,” and ultimately, the SADC summit took the decision to suspend the Tribunal and repeal the Protocol on the Tribunal adopted in 2000.
The SADC summit created a new Tribunal with a mandate limited strictly to adjudication of interstate disputes arising from the SADC treaty and its protocols, rather than human rights norms. As Lungu and Granziano noted (2018) “the tragedy of the SADC Tribunal is that the motivation of the SADC Summit to dismantle the Tribunal occurred exactly because the Tribunal was doing its job. And holding a member state accountable for violating human rights.” South Africa was criticized then as it is now for lack of leadership when the Tribunal was suspended and the revised protocol on the Tribunal adopted during the Presidency of Jacob Zuma. As Nathan (2010) observed “South Africa has a history of elevating norms of solidarity and regime protection above democratic and legal principles espoused in the SADC treaty.”
The irony of the Zimbabwe tactic is that in the case of the land seizures Zimbabwe has found itself in trouble with the international tribunals. With the dismantling of the SADC original tribunal, farmers sought justice elsewhere and the international tribunals have decided to enforce the same judgments Zimbabwe fought hard to resist and used to destroy the SADC Tribunal. Zimbabwe has lost a series of cases at the International Center for the Settlement of Investment Disputes (ICSID). In Bernhard von Pezold & Others v. Zimbabwe (ICSD case number ARB /10/15), the International Center of the Settlement of Investment Disputes in the judgement delivered on July 28, 2015, ordered Zimbabwe to returned farms the country seized without compensation. The tribunal found that this seizure along with the government clandestine encouragement of illegal settlements of the same estates constituted a breach of the expropriation fair and equitable treatment, norms, and several other provisions in the Zimbabwe bilateral investment treaties with Switzerland and Germany. The tribunal ordered Zimbabwe to pay $65 million in compensation. Several other claimants have succeeded in suits against Zimbabwe e.g. Border Timbers Ltd., Timber Products Intl., (private) and Hangani Development Company (private) Ltd. vs Zimbabwe (ICSID case number ARB/10/25), each one of them being awarded millions of dollars in damages.
Zimbabwe’s efforts to avoid enforcement of the judgements have been dismissed by US courts. In Von Pezold and Others vs. Zimbabwe (case number 21-cv-2004) and Border Timbers Ltd. vs Zimbabwe (Case number 21-cv-2428 (ABM), the US District Court of Columbia in a judgement delivered on 28 August 2023 recognized the ICSID judgements. The District Court stated that “ a federal court is “not permitted to examine an ICSID award’s merit, its compliance with international law, or the ICSID tribunal jurisdiction to render an award.” Instead, the court (may do no more than examine the authenticity of the judgment and enforce the obligation imposed by the award).
In addition to the ICSID judgements , on 29 July, 2020, Zimbabwe agreed to pay $3.5 billion in compensation to white farmers whose land was seized by the Government. The agreement was signed by President Mnagwagwa who claimed “this momentous occasion is historic in many respects, bringing both closure and a new beginning the history of the land discourse in our country. ” The deal was signed with Andrew Pascoe, the president of the Commercial Farmers Union of Zimbabwe. I would offer that Zimbabwe should have taken heed to Shakespeare’s advice “Wisely and slow. They stumble that run fast.”
Economists agree that the Zimbabwean Government, cash strapped, cannot afford to pay the compensation. The Zimbabwe Ministry of Finance said that they will be issuing long term bonds and that the parties will approach international donors to try and raise the funds. In the end, Zimbabwe ends up with $3.5 billion dollars in debt when it would have gotten a lesser amount from the SADC Tribunal. Instead, they cut off their nose to spite their face. Add to this, several cases decided against Zimbabwe in the ICSID tribunal that probably will add another $1 billion. Given the astronomical amount of money Zimbabwe now must pay, the singular question that ZANU PF politicians and some Zambia politicians should ask themselves is, was this worth it? SADC states should also ask themselves for how long are they going to tolerate the ZANUNIZATION (a word I coined) of SADC and to what end?
(Muna Ndulo is a William Nelson Cromwell Professor of International and Comparative Law Cornell Law School, USA)