On Monday 28 September 2009, the announcement came that the Supreme Court of Zimbabwe had upheld human rights activist Jestina Mukoko's application for a permanent stay of prosecution on terrorism charges following her abduction, illegal detention and harrowing experience at the hands of faceless state agents. Also detained around the same time as Mukoko were more than a dozen individuals including Movement for Democratic Change (MDC) officials Chris Dhlamini and Ghandi Mudzingwa, and journalist Andrison Manyere. They faced charges ranging from recruiting people for training in banditry, insurgency, sabotage to terrorism, the penalties of which range from very long prison sentences to death.
Mukoko's final walk to liberty and the Attorney-General's concomitant walk of shame, came on the back of a rare interview between Cable News Network and President Robert Mugabe in which the latter declared, ‘You couldn't let people who have committed such crimes get away with it merely because there is a global agreement'. At least the Supreme Court didn't think so or was compelled by overwhelming evidence not to think so. Chief Justice Chidyausiku ruled: ‘the state, through its agents, violated the applicant's constitutional rights to the extent of ... entitling the applicant a permanent stay of criminal prosecution'. As Jestina celebrated her long walk to freedom and human rights defenders heaved a collective sigh of relief at the triumph of reason and justice over lawlessness, many wondered if this episode heralded a new era of equality before the law, the rule of law and respect for inalienable human rights. Not so, prophesied one of Mukoko's attorneys, Harrison Nkomo who averred: ‘this was a one-shot, a rare judgment ... don't read anything else into it'.
Those who have followed the contradictory story of the ‘inclusive' government and citizens' access to justice in Zimbabwe cautiously welcomed the outcome of Mukoko's case as a temporary triumph over lawlessness and unaccountable security services, but warned that in so far as citizens' personal security, equality before the law and accountability of security services were concerned, it was still a long road to Uhuru. After all, one swallow does not make a summer.
Fast-forward to October 14, 2009 - the MDC's deputy agriculture minister-designate Roy Bennett is committed to prison while awaiting trial in the High Court. Like Mukoko et al, he faces charges of insurgency, terrorism, sabotage and banditry. On Friday 16 October 2009, MDC leader and Zimbabwe's Prime Minister Morgan Tsvangirai announces his party's disengagement from the government. Tsvangirai declares, ‘Whilst being in government, we shall forthwith disengage from Zanu PF in particular from cabinet and council of ministers until ... full resolution of all outstanding issues and the substantial implementation of the Global Political Agreement'. What an ambivalently worded statement! What does that mean really? Can you remain in an inclusive government and not ‘engage' your partners? Could this be the beginning of the end of a loveless marriage between two-and-a-half unwilling partners?
This writer doesn't think so. If anything, this will be one of many estrangements that will come to pass as the MDC continues to gauge its bargaining power and its constituency's appetite for a divorce, while ZANU PF continues to flex its muscles and remind the MDC where real power lies. In the meantime, constitutional, political and economic reforms will take a back seat.
In the run-up to and immediately after the Kinshasa SADC Summit, the impression was created that SADC would be seized with the state of the Global Political Agreement (GPA). That the SADC Summit cleverly sidestepped the issue is reflective of the majority view in SADC that, thanks to the GPA, Zimbabwe has turned the corner and is on her own. For this reason, any disputes between the newly weds - unless they escalate into another Sharpeville Massacre - remain a private matter. By continuously threatening to pull out of the unhappy marriage - yet not in fact carrying out the threat - the MDC insulates its sympathizers and well-wishers (including within SADC) from the urgency with which the outstanding issues should be resolved.
Even as it finds itself between a rock and hard place, the MDC needs to appreciate that by jumping into bed with ZANU PF, it crossed the Rubicon and cannot continue to cry wolf and take every opportunity to threaten divorce. They know they don't mean it and Mugabe knows it too. Tsvagirai's reference to ‘disengagement from dealing with Zanu PF', ‘whilst being in government' as opposed to withdrawing outright attests to this reality. If there are people in ZANU PF who wish to see Tsvangirai et al out of the government, (and they are many), such people do not include Mugabe himself. By accepting each other's hand in marriage, Tsvangirai and Mugabe - never mind Mutambara - accepted that they both did not have what Roger Fisher and William Ury (1981) refer to as a Better Alternative to a Negotiated Agreement (BATNA). The BATNA principle holds that one's motivation to negotiate is underpinned by the desire to achieve that which one is unable to achieve without negotiating. In this case, whereas Tsvangirai and his party won the March 2008 elections, they were not allowed access to the State. Mugabe on the other hand, knew that although he remained in control of the State, without Tsvangirai behind or beside him, he could not govern. The GPA was therefore useful in providing Mugabe the political oxygen and ‘legitimacy' that he so desperately needed, while affording Tsvangirai qualified access to the sections of the State.
The timing of the MDC's ‘disengagement' - whatever that means - seems to have been prompted not by the half-baked state of the GPA but rather by the indictment and detention of Bennett. Whereas Tsvangirai emphasized that the ‘decision has not been made because of Bennett' the uncanny coincidence and knee-jerk reaction has not been lost. There are certainly many more, much bigger and more compelling infractions to the GPA that the MDC should be seen to be advancing. Picking Bennett's incarceration and making it the Sarajevo (assassination) that ignited the divorce was highly disingenuous and not well thought through. Predictably, one of Tsvangirai's most acerbic critics Jonathan Moyo did not miss the opportunity. He argued: ‘There are up to 10 black MDC MPs who have been in and out of court, but we haven't heard threats of pulling out of the government. So why should a whole country be held at ransom by one white man?'
Just how the MDC could not see the bait that ZANU PF was dangling defies logic. Surely, the MDC should have learnt useful lessons from its ten years of trials and tribulations to select moments of critical decision making prudently. It will be recalled that prior to joining the inclusive government, Tsvangirai had demanded the release of many MDC activists from police custody as one of the preconditions for joining the ‘inclusive' government. But he later joined even without their release.
Faced with a fractious and divided ZANU PF, and an undeclared military government, the MDC cannot afford to be ambivalent. The MDC must maintain a principled stand on the overall state of the GPA, and be guided by the wishes of its constituency to shore up a combination of support and diplomatic pressure from the international community in general and SADC in particular. SADC, the AU, other nations, as well as people of goodwill and influence should be consistently reminded that the absence of open conflict and war in Zimbabwe does not equal ‘peace'.
Written by: Takawira Musavengana, Senior Researcher, Security Sector Governance, ISS Pretoria Office