Monday the 18th of September 2008 has been described as the historic day in the political circles since the inception of the opposition Movement for Democratic Change in 1999. This is the day when the two major political players in the country (Zanu PF) and both factions of the Movement for Democratic Change (MDC)) came together and signed a power-sharing deal to end the crisis that has rocked the country for almost a decade. There has been a marked increase in state sponsored violence since the first round of the harmonized elections in March 2008, coming after almost a decade marked by violence, intimidation and impunity for which the state has been primarily responsible. One of the principal issues for any future political transition will be whether – and how– to formally and publicly deal with past systematic and widespread human rights abuses. This is moreover a core political issue now, not simply a collateral legal or moral one to be left until later.
Part of the challenge is to map a way between sheer moral and legal principle and mere political pragmatism. One transitional justice option is to now flag, and then later establish, a truth and reconciliation commission which might give incentives to people at various levels to denounce violence and cooperate in peace building, but which need not rule out criminal prosecutions where appropriate. Against the backdrop of an international legal and normative framework which may shape justice options, the first question to be addressed is ‘why a truth commission?’ I suggest that Zimbabwe’s particular experiences necessitate a national truth commission as a viable or necessary option in providing sure conditions and foundations for a peaceable and stable future.
Engagement on this topic raises a litany of difficult questions: in any interim phase, how will negotiations on ‘transitional justice’ persuade the powerful and prosecutable that it is safe to cooperate? Does a ‘restorative justice’ approach have stronger credentials than the moral claims for criminal accountability and punishment? If there is ‘no peace without justice’, who gets to decide what constitutes justice? How far back does ‘the past’ really go: should any commission deal with abuse allegations arising from the 1980s violence in Matabeleland or restrict itself to the period after 2000? What is the legal and political status of various presidential pardons and amnesties? What is the relevance, utility or propriety of calls for international prosecutions? What is the best role for local civil society? Does the international community have a role to play in transitional justice, or should this be wholly ‘locally owned’? How would such a process deal – if at all – with any process on land claims or property disputes: can many of the acts of violence be separated from an enquiry into such questions? With an economy in freefall, what priority of resources and national attention should a backward-looking process have? Overall, in going forward (if and when they can), to what extent should Zimbabweans be concerned with looking back?
The International Crisis Group’s view in their most recent report is that while ‘Zimbabwe will need a transitional justice mechanism at some stage,’ the practical necessities of the immediate crisis (and indeed longer term reconciliation) require that ‘guarantees’ be given to political leaders and the security forces (‘modalities for ensuring military loyalty’ and promises of non-retribution) (ICG May 2008:2). However, it is clear that these issues will be directly shaping political negotiations now in the interim period –questions about what kind of justice strategy can secure the conditions for a transition to take place at all, and then to take place peacefully. The ICG report seems to suggest that justice issues are not of immediate significance. But it is difficult to see how ‘justice’ issues can be separated from ‘political’ issues during this stalemate, since fear of prosecution partly explains hardliners’ resistance. In this light, my intention is to stimulate more explicit discussion on transitional justice issues and options for Zimbabweans in the quest to establish peace and stability.
The context: violence and impunity in Zimbabwe
The suggestion that a truth commission may be one valuable ingredient in facilitating a sustainable national peace for Zimbabweans proceeds from two related premises:
a). That human rights abuses in Zimbabwe’s modern history have been serious, widespread, persistent, deliberate, systemic, and conducted largely with impunity
b). That it is both right in principle and prudent for peace building prospects that these issues and events be formally and publicly acknowledged and addressed in a way that arrests the pattern of impunity, enables a measure of justice and affords victims due redress, but that does not threaten the possibility that a legitimate transition may occur without serious resistance and conflict now or at a later date (see Prime Minister Designate, Morgan Tsvangirai’s speech during the signing of the power-sharing deal)
On the first premise, human rights abuses perpetrated, encouraged or tolerated primarily by the state and its agents since at least February 2000, and which continue to this day, have constituted criminal and civil wrongs and have in any event led to loss, pain, grief, distrust, uncertainty, suspicion, grievance, anger and dislocation. The abuse of human rights and the culture of impunity in Zimbabwe have been fairly well chronicled (see www.hrforumzim.com. Of course, one point about a truth commission is that there is much that is unknown or misunderstood: the state has been hostile to scrutiny for many years.
While formal denials, secrecy and the difficulty of cataloguing cases prevent a full assessment, there is little doubt that the ZANU-PF government has been directly or indirectly responsible for murder, kidnap and disappearances, rape, torture, beatings and other humiliating inhuman or degrading treatment, arbitrary detention, denial of due process rights, group punishment including use of food as a political weapon and selective non-distribution of famine relief, mass displacement and forced removal, and other human rights abuses in violation of Zimbabwean law and falling within well recognised ‘categories’ in international law. One fundamental issue for any transitional justice strategy confronting human rights abuse is to define what relevantly constitutes ‘the past’:
-There is almost a decade of political violence, intimidation, displacement and destruction beginning roughly with the February 2000 constitutional referendum, rising with the elections of June 2000, and which has continued since, being most marked around elections including the recent March 2008 election and its aftermath. Beginning in October 2000, legal impunity for violators has purportedly been assured through a number of clemencies, amnesty and indemnity orders.
- There are the acts of violence, displacement and property loss associated with spontaneous as well as state-sponsored invasions of mainly white-owned commercial farms that began in 2000.
-There are the many human rights abuses associated with Operation Murambatsvina (Clean-Up) in 2005 which led to the forcible displacement of about 700 000 people (UN 2005).
- These three ‘categories’ roughly describe the immediate past in relation to which a truth, justice and reconciliation commission might be constituted.
Of course, state human rights abuses have occurred in earlier periods of Zimbabwe’s history. However, for reasons given below, any future strategy might not attempt to substantially or initially address Rhodesian (pre-1980) or colonial era (pre-1965) abuses. More difficult is the question of whether any formal strategy or mechanism ought to attempt to deal with allegations of grave crimes and massive human rights abuses arising from political violence throughout the 1980s in particular the Zimbabwean army’s gukurahundi campaign in the Matabeleland and Midlands provinces in 1983-4. As discussed below, this period in Zimbabwe’s past is arguably unresolved and ‘unprocessed’ – neither truth nor justice, reconciliation nor redress has been attempted or obtained – and represents a possible future source of demands and disunity. However, including this period within the initial mandate of a new commission carries the risk, in a still fragile setting, of reopening this ethnic fault-line.
The situation is acutely balanced at present in terms of attempting to ensure justice for past wrongs without imperiling the possibility of a relatively peaceful transition. Members of the security apparatus and militias lack confidence about the consequences of any change in regime, including exposure to prosecutions and retribution. In addition, state institutions for protecting or remedying abuses are weak or directly implicated in past and ongoing violence. Various elements of society may be marginalised, indifferent, unaware, insecure, afraid of discovery, suffering directly, desiring answers, accountability, or simply practical relief. There may also be high levels of denial or inability to know the truth, and especially if there is a change, there may be a desire for self-help retribution and settling of scores, where the truth of the violence is well known, its doers identifiable. The possibility also exists that the legacy of decades past unresolved violence might rise and manifest. What is to be done?
‘Transitional justice’: some preliminary considerations
In reaching or embedding a new political dispensation, there exists a range of ‘transitional justice options’: ways to deliberatively and formally deal with any systematic and large scale past human rights abuse. Most modern responses to large-scale violations tend – mainly for reasons of internal political expediency, with occasional international pressure – to adopt a position somewhere between the two extremes of comprehensive criminal prosecutions on the one hand, and blanket amnesty or collective amnesia on the other. Strategies include selective criminal trials, truth-for amnesty commissions, and a hybrid of these.
A central factor in the transitional justice debate is the importance of balancing the need for ‘restorative justice’ with solemn principles pointing to criminal trials and ‘retributive justice’. In the former, the focus is beyond simply ensuring formal accountability for wrongs; the focus is on the vindication of the victim, not the punishment of perpetrators. Restorative justice approaches also emphasise a need to focus on ‘bottom-up’ processes founded in ordinary people’s experiences and concerned with taking steps that they feel would set things right. This is to be contrasted with processes involving only some elites – whether peacemakers, truth commissioners, prosecutors, or indicted persons.
A restorative justice approach does not, however, discount the value and effectiveness of criminal punishment, including as a means of affirming the dignity of victims and preventing vengeance. Trials in criminal courts in transitional settings cannot easily be dismissed as merely backward-looking: they may be essential to ensuring a sense of ‘justice’, avoiding self-help measures, and to deterring future abuses.
In considering general matters of approach, there are certainly real-world tensions between pursuing both ‘peace’ and ‘justice’. In some cases the price of peace is accepting that justice might need to be stayed against important stakeholders, although some aggrieved parties will simply not be able to contemplate peace without justice being seen to be done. However, it is necessary to move beyond polarised debates presenting these two ideals as incompatible objectives: this obscures efforts to consider the potential for approaching these issues in a more integrated mutually reinforcing way (Simpson 2008), and can be an abdication of the duty to seek imaginative, tailored solutions. To simply place prosecutorial justice and the attainment of peace ‘into opposed, abstract categories’ comes at the expense of ‘informed analyses of where tensions do, and do not, exist on the ground’.
Before considering truth commissions as a possible vehicle for transitional justice in Zimbabwe, it is necessary to bear in mind that what is possible by way of institutionalised response – how robust and intrusive and prosecutorial it might be, for example – is heavily dependent on the balance of political power at the time of the transitional agreement (ICG May 2008). The background of a truth commission ‘is invariably [a result of] stalemate in a political power play’. Criminal prosecutions might be too provocative given the residual power in elements of the previous incumbent regime (who may be part of a transitional government).
Strategies of reconciliation are affected by political constraints since imposing justice can have a disruptive potential so that it may be crucial ‘not to provoke still-powerful elements in the armed forces that retain political veto power during a fragile democratic transition...the parameters of publicly acknowledged truth can be deepened as the peace increasingly proves its resilience’. For example, in South Africa’s transition, the white minority controlled the police and military and so wielded serious negotiating power; in Chile and Argentina the enduring influence of the military leadership meant that it was unthinkable to commence criminal actions against the main culprits. In Solomon Islands, by contrast, the preference was to strengthen courts and pursue prosecutions, leaving reconciliation mechanisms to informal, church-based and community processes. Talk of a formal truth commission and amnesties was thought to send mixed messages about future responsibility for ethnic violence. But this choice of strategy was possible because of the high degree of political control and a regional military stabilisation force.
Discussions on the specifics of any comprehensive formal truth and justice response in Zimbabwe probably need to wait until some form of legitimate transition is underway and sufficiently consolidated. However, the broad shape of any future justice mechanisms and process is something that will determine – and be determined by – present political machinations.
A Zimbabwean truth commission: Why?
The term ‘truth commission’ encompasses a broad range of possible features and purposes. Such institutions are normally ad hoc, official (state authorised or sponsored), temporary non-judicial fact finding bodies with a limited mandate. They are victim focussed and investigate or receive information on a pattern of human rights abuses over a certain or determinate period of time. They normally produce a report with recommendations for reparation and redress and for prevention of future abuses. Since 1974 numerous truth commissions have been established by states – with or without the assistance, encouragement or say-so of international actors – either to support ongoing peace processes or promote democratic progress in post-conflict societies (see the experiences of South Africa, Chile, Argentina, Guatemala and Timor-Leste). There is no unique formula or prescription for implementing effective transitional justice: a truth commission is only one option and ought not to be resorted to automatically as part of a conflict resolution ‘first aid kit’ Before addressing what features a future truth, justice and reconciliation commission (TRC) might adopt, it is worth debating the considerations for and against such a mechanism for Zimbabwe.
The case against a TRC: moving on, leaving the past alone.
Suggestions for a formalised TRC process assume that it is not sufficient to simply leave the past unresolved. However, a deliberate decision not to pursue any formalised process is also one possible option for Zimbabwe. Some have argued that one ought to generally ‘curb the enthusiasm’ about truth commissions. For one thing, it is necessary to attempt to ‘centre peacebuilding efforts in the will of the people’: it is quite possible that the overwhelming view in society might be that the past ought simply to be left alone. Some societies such as Spain after General Franco simply drew a ‘thick line’ between past and present and moved on, apparently successfully, without any particular structural mechanisms for reconciling with the past. Shaw R. (Rethinking Truth & Reconciliation Commissions: Lessons from Sierra Leone: Special Report 135. Washington DC: United States Institute for Peace) challenges the purportedly universal benefits of verbally remembering violence, arguing that ‘social forgetting’ may be an equally valid strategy. Shaw’s research in Sierra Leone revealed that despite pressure from NGOs and human rights activists for a truth commission, most ordinary people – who were tired, afraid and too well acquainted with ‘the truth’ of the violence – appeared to prefer a ‘forgive and forget’ approach.
There are other problems too. A TRC could squander precious time, money and (if handled poorly) perhaps a once-only opportunity. Depending on its timing and tone and the prevailing political balance, a truth commission (and the process of designing it) could actually create a new venue of dispute and itself become a source or focus of renewed conflict, fragmentation and disintegration in the way that a constitution-making process in transitional societies can sometimes do (see Murphy W. in Constitutions, Constitutionalism & Democracy: Transitions in a Contemporary World. Oxford University Press, 1993). A TRC could be used as a political tool to disproportionately allocate blame to one side; it could threaten or antagonise powerful influential persons upon whose cooperation a fragile national unity depends. It could partly redeem and legitimise the previous regime by enabling its representational portrayal in an ordered institutional process.
Some see the notion of reconciliation as already compromised in Zimbabwe. Archbishop Pius Ncube has said that cycles of abuse and impunity in Zimbabwe are ‘cancerous’ so that there is a need to avoid amnesties and simply prosecute persons in future, including to educate future generations. Just two years ago the Zimbabwe Human Rights NGO Forum’s report expressed an opinion that Zimbabweans are ‘cynical’ about reconciliation or that the concept has been ‘widely devalued, perhaps irrevocably’ and ‘remains polluted as a result of its expedient political manipulation and its failure to deliver meaningful results’ (Zimbabwe Human Rights NGO Forum 2006:7,21; Zimbabwe IDEA 2003:34).
A further problem is that there is a tendency to concentrate on internal political factors shaping any peace institution, reflecting assumptions that truth commissions result from and reflect local demands. However, this overlooks the significance of external political concerns, demands or expectations, which may be crucial in shaping the choice or form of institution. There is a need to be careful that ‘transitional justice options’ and institutional models (such as a TRC) are not selected for reasons that have more to do with appeasing international expectations or following rule of law ‘prescriptions’ than what is really needed – and wanted – on the ground. Truth commissions are not an end in themselves, to be pursued formulaically and regardless of the circumstances. Some argue that it ought to be established whether such an exercise has popular support among ordinary persons (not just local or international NGOs or other elites) ( see Shaw above).
South Africa’s experience has been hugely influential and generated an enormous amount of literature. But foreign experts or donors in particular may not see that South Africa’s experience is not necessarily apposite to Zimbabwe’s very different history. Certainly, no model of TRC can be simply transposed directly from one situation to another. ‘Reconciliation’ in particular is something that needs to be defined within a specific historical and cultural context.
There is the risk that such institutions are foreign models ‘lost in translation’ or are cosmetic only, giving a false sense of resolution: while a great deal of any TRC process is understood as symbolism and ritual, to fulfill their function new institutions dealing with common experiences need to reach and be reached by the grassroots level. World Bank studies on institutional designs in 2002 note unsurprisingly that ‘supplying’ institutions is not enough: people must want to use them. These experiences suggest that a TRC would be meaningless without a concerted (and expensive) public engagement and education programme, which with other priorities, may not be viable in the near future.
Thus where there is a relatively high level of awareness about the state’s responsibility for abuses (accompanied by power balancing issues, the need to avoid creating new sites of friction, general fatigue, fairly widespread communal implication in violence, legal complications from past pardons and amnesties, and resource shortages), it is at least arguable that Zimbabweans may legitimately indulge in deliberate ‘social forgetting.’ Victor de Waal’s (The Politics of Reconciliation: Zimbabwe’s First Decade. Cape Town, 1990) characterisation of Zimbabwe’s first decade after 1980 is that the society as a whole decided to simply move on, at least in relation to the Rhodesian era, leaving the past behind.
Most experience in other societies, however, points the other way, especially where there are concerns about who gets to decide what is ‘forgotten.’ In any event, this passive form of response to Rhodesian-era abuses left many legacies still affecting Zimbabwe today, including a prevailing culture of impunity. Even if it could be proven empirically that most Zimbabweans were ‘cynical’ about reconciliation, this does not preclude a TRC. Instead, it depends on the actual form and practice of any such institution, the possible positive community response to any visible international sponsorship of a process (rather than more ‘government business’), and the prevailing political situation at the time.
The case for a TRC: addressing the past for the future’s sake
A number of general factors commend the establishment of a truth, justice and reconciliation commission as an element of a comprehensive approach to transitional justice. While there is probably no ‘right to truth’ in international law, one principled issue suggesting some formal justice mechanism is the well established international legal duty on the Zimbabwean state (whichever regime is then its custodian) to not only refrain from violations but more positively to afford remedy and reparation to victims of human rights abuse, including through at least attempting investigations (see Art 2 of the ICCPR and also the UN Basic Principles & Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law [UN Commission on Human Rights. E/CN. 4/Sub.2/ 1993/8). The ordinary criminal courts in any country that has experienced oppressive rule are likely to be severely weakened if not entirely compromised. There may be such a degree of complicity by members of society generally that it is impossible to conceive of attempting to prosecute all possible offenders. In any event, mere prosecutions, even if politically possible, do not necessarily achieve reconciliation or reduce tension. By their nature, trials moreover paint an incomplete picture of the past or even distort history. The most obvious objective of a TRC is that through an official truth body, an accurate record of the country’s past will be established, uncertain events will be clarified, victims will be assured of recognition, and the silence and denial regarding human rights violations will be dealt with. Such processes can achieve a measure of symbolic closure through memory enabling a corrected history more on one’s own terms, and an institutionalisation of the memories of the abusive time (for therapeutic as well as principled reasons) (Catholic Commission, 1997. Breaking the Silence: Building True Peace). Part of the point of the process is to reach an institutionalised common memory or national consensus on how the past is to be remembered and represented. This is in contrast to denial and deliberate or non-deliberate forgetting.
The 2008 MDC policy on justice is that ‘the right to know’ extends from victims to the rest of society ‘to become a collective right. This is meant to ensure that violations are recorded in history so as to prevent their recurrence’ (MDC 2008:1,36-37). For many victims no new ‘truth’ will emerge, but formal acknowledgment of their truth can be vital in individual and group healing, forestalling division, and enabling peace building. However, knowing the truth of what took place is a necessary condition for forgiveness, but not a sufficient condition of reconciliation and peace.
In addition to its truth-seeking function, such a commission can be a platform for a range of processes, aimed at both addressing matters of principle and ensuring grievances do not undermine the prospects for sustainable peace. Such commissions can become the focal point for efforts going beyond the establishment of truth – efforts at reparation – by which is meant not merely financial or other economic or in-kind compensation, but broader notions of restitution, rehabilitation, satisfactions and guarantees of no repetition.
Victims’ needs are individual and communal, structural and psychological Truth commissions allow a forum for forgiveness to be given, and for formal recognition of victims, so helping them reclaim their dignity. Perpetrators are afforded a formal mechanism to renounce their violent deeds and to rejoin society in some fashion. ‘Reconciliation’ may mean many things – but is essentially about the (re)-building of civic trust and shared commitment to certain normative values, including by putting some past differences aside. There is already arguably this consensus on fundamental moral norms in Zimbabwe, even if they have been breached for some time. A TRC can set the parameters of possible political action during the transition and serve to civilise and channel the energies and tensions in a way that can reduce the potential for violence. It can describe institutional responsibility for human rights abuses and propose specific reforms. The work of institutions such as truth commissions can thus be cathartic and promote reconciliation, lifting the lid on human rights abuses, ending denial that might persist in certain sectors of the community, creating visible distance from the abusive era and enabling forward movement. It can also help to focus on the wider patterns and move away from attempting individual guilt where this is paralysing peace.
There are also some more specific factors particularly commending a TRC for Zimbabwe (and which suggest that these issues need to be at the forefront of negotiation now, even if a TRC is only established later). In my view the following factors in particular suggest a possible need for a formal mechanism such as a truth commission in Zimbabwe:
• the consistency and level of state intimidation and brutality
• the use of legislative instruments to sanction state violence
• the politicisation of the judiciary and the prosecution service
• the partly covert nature of both direct state abuses and indirect state-instigated action
• the large number of low level perpetrators especially among the youth militias
• Secrecy and denial on the part of the regime
• a culture of impunity reinforced by pardons and general amnesties over many years
• the lack of remedial and redress options
Moves toward a TRC and current MDC justice policy
In this context, there have been a number of calls for any transition in Zimbabwe to be marked by a TRC process as one component of a comprehensive approach. The Zimbabwe Human Rights NGO Forum’s 2006 study of transitional justice options appears to lean in favour of a trials strategy, opining that ‘there is considerable support in many quarters for perpetrators of gross human rights violations to be brought to trial’
(Zimbabwe Human Rights NGO Forum 2006:11). Nevertheless, and while discussions about a transitional justice mechanism including a TRC have been largely confined to a small group of local NGOs and lawyers, the idea of a TRC has featured consistently in debate in Zimbabwe since at least August 2003, when over 70 civil society organisations met in Johannesburg. That symposium expressed preference for a ‘Truth, Justice and Reconciliation Com-mission’ as the main mechanism for redress, while not discounting the possibility of prosecutions.
The symposium declaration condemn-ed the pattern of amnesties and culture of impunity and expressed the view that gross violations should never be the subject of an amnesty; it noted that victims of all past human rights abuses have a right to redress and to be consulted about the nature of mechanisms what will be established to address their needs. The declaration also called on civil society and churches to have a role in the formation of such mechanisms. The symposium drew on an earlier event, and has been followed by a number of initiatives and networks attending to the needs of victims including torture victims, recording reports and allegations, instituting civil actions against the state, and considering future justice options (see also the Amani Trust ‘Truth and Justice Conference held in 2001’).
The 2001-2 draft alternative Zimbabwean constitution of the unofficial National Constitutional Assembly had provided in its Chapter 9 for a ‘Truth, Justice, Reconciliation and Conflict Prevention Commission.’ The proposed institution would sit for five years (renewable). It would be responsible for investigations of past violations, provision of remedies, the promotion of reconciliation, and conflict prevention. Further details were left to a future non-constitutional instrument.
On the government’s part, there have obviously been no official signposts about future transitional justice. In March 2006, Cabinet approved plans for a ‘Human Rights Commission’ to ‘counter the large scale orchestration of alleged violations’ and the ‘falsification, exaggeration, orchestration, and stage-managing of human rights violations by detractors.’ The announcement was widely treated with derision. The opposition Movement for Democratic Change (MDC) has in the past received generic advice on transitional justice options (for example, general advice received from International Centre for Transitional Justice in 2001-2002) The MDC has consistently followed a fairly conciliatory (but often ambiguous) line on future justice issues. Since at least its 2003 Congress the MDC has mentioned the intention to establish a truth commission. At that time, the position adopted was that ‘general provisions of amnesty for prisoners will continue’ although the party would nevertheless ‘ensure that due legal process is applied to all human rights abuses’ (MDC 2003). In its latest (2008) policy statement the MDC says it will ‘make a clean break with that past and establish a strong human rights culture’ but that it ‘will be necessary to deal with all past abuses.’ It proposes a ‘Truth and Justice Commission’ to hear, in public formal recorded sessions, ‘the stories of the victims and to identify those responsible for human rights abuses and any associated criminal acts’, as well as mechanisms to prevent future abuses and ‘re-orientation programmes for all those affected’ (MDC 2008: 36-7).
The MDC’s formal justice approach is said to be based on four principles: the communal right to know, the right to justice and a remedy, the right to reparations, and the ‘right’ to non-recurrence. It purports to deal with all episodes of political violence in Zimbabwe since 1980. It states that the MDC is committed to ‘dealing with the needs of the victims’ of all post-1980 abuses ‘in a holistic and comprehensive way’ by giving ‘those affected by the abuse of their rights the satisfaction of knowing that the truth about what happened has been revealed and that the culprits have been brought to justice in some way.’ If anything, it is suggestive of a preference for criminal trials: ‘all victims will have an opportunity to assert their rights and receive fair and effective remedy, ensuring that the perpetrators stand trial and that the victims obtain reparations ... [this reflects] an obligation on the State to investigate, prosecute and punish the guilty’ (MDC 2008:1,36-7).
The proposed mandate of the commission includes ‘to determine who was responsible for the incidents being considered, and to decide whether or not to recommend further investigations by an appropriate authority and possible prosecution.’ The current policy does not set out a policy on past (existing) amnesties given by the Mugabe regime, and mentions the possibility of future amnesties only in the negative and obliquely, offering little firm assurance to perpetrators: ‘in the event that those identified as being responsible...do not themselves, on a voluntary basis, offer to come before the Commission to tell their side of the story, the Commission may, at its discretion, [direct the matter for investigation for possible prosecution]’ (MDC 2008:37). The MDC policy appears to attempt – perhaps wisely – to structurally distance justice measures from the vexed issue of property losses, land seizures and land reform. The policy does not, however, mention a role for the international community in any justice process.
Part of the challenge is to map a way between sheer moral and legal principle and mere political pragmatism. One transitional justice option is to now flag, and then later establish, a truth and reconciliation commission which might give incentives to people at various levels to denounce violence and cooperate in peace building, but which need not rule out criminal prosecutions where appropriate. Against the backdrop of an international legal and normative framework which may shape justice options, the first question to be addressed is ‘why a truth commission?’ I suggest that Zimbabwe’s particular experiences necessitate a national truth commission as a viable or necessary option in providing sure conditions and foundations for a peaceable and stable future.
Engagement on this topic raises a litany of difficult questions: in any interim phase, how will negotiations on ‘transitional justice’ persuade the powerful and prosecutable that it is safe to cooperate? Does a ‘restorative justice’ approach have stronger credentials than the moral claims for criminal accountability and punishment? If there is ‘no peace without justice’, who gets to decide what constitutes justice? How far back does ‘the past’ really go: should any commission deal with abuse allegations arising from the 1980s violence in Matabeleland or restrict itself to the period after 2000? What is the legal and political status of various presidential pardons and amnesties? What is the relevance, utility or propriety of calls for international prosecutions? What is the best role for local civil society? Does the international community have a role to play in transitional justice, or should this be wholly ‘locally owned’? How would such a process deal – if at all – with any process on land claims or property disputes: can many of the acts of violence be separated from an enquiry into such questions? With an economy in freefall, what priority of resources and national attention should a backward-looking process have? Overall, in going forward (if and when they can), to what extent should Zimbabweans be concerned with looking back?
The International Crisis Group’s view in their most recent report is that while ‘Zimbabwe will need a transitional justice mechanism at some stage,’ the practical necessities of the immediate crisis (and indeed longer term reconciliation) require that ‘guarantees’ be given to political leaders and the security forces (‘modalities for ensuring military loyalty’ and promises of non-retribution) (ICG May 2008:2). However, it is clear that these issues will be directly shaping political negotiations now in the interim period –questions about what kind of justice strategy can secure the conditions for a transition to take place at all, and then to take place peacefully. The ICG report seems to suggest that justice issues are not of immediate significance. But it is difficult to see how ‘justice’ issues can be separated from ‘political’ issues during this stalemate, since fear of prosecution partly explains hardliners’ resistance. In this light, my intention is to stimulate more explicit discussion on transitional justice issues and options for Zimbabweans in the quest to establish peace and stability.
The context: violence and impunity in Zimbabwe
The suggestion that a truth commission may be one valuable ingredient in facilitating a sustainable national peace for Zimbabweans proceeds from two related premises:
a). That human rights abuses in Zimbabwe’s modern history have been serious, widespread, persistent, deliberate, systemic, and conducted largely with impunity
b). That it is both right in principle and prudent for peace building prospects that these issues and events be formally and publicly acknowledged and addressed in a way that arrests the pattern of impunity, enables a measure of justice and affords victims due redress, but that does not threaten the possibility that a legitimate transition may occur without serious resistance and conflict now or at a later date (see Prime Minister Designate, Morgan Tsvangirai’s speech during the signing of the power-sharing deal)
On the first premise, human rights abuses perpetrated, encouraged or tolerated primarily by the state and its agents since at least February 2000, and which continue to this day, have constituted criminal and civil wrongs and have in any event led to loss, pain, grief, distrust, uncertainty, suspicion, grievance, anger and dislocation. The abuse of human rights and the culture of impunity in Zimbabwe have been fairly well chronicled (see www.hrforumzim.com. Of course, one point about a truth commission is that there is much that is unknown or misunderstood: the state has been hostile to scrutiny for many years.
While formal denials, secrecy and the difficulty of cataloguing cases prevent a full assessment, there is little doubt that the ZANU-PF government has been directly or indirectly responsible for murder, kidnap and disappearances, rape, torture, beatings and other humiliating inhuman or degrading treatment, arbitrary detention, denial of due process rights, group punishment including use of food as a political weapon and selective non-distribution of famine relief, mass displacement and forced removal, and other human rights abuses in violation of Zimbabwean law and falling within well recognised ‘categories’ in international law. One fundamental issue for any transitional justice strategy confronting human rights abuse is to define what relevantly constitutes ‘the past’:
-There is almost a decade of political violence, intimidation, displacement and destruction beginning roughly with the February 2000 constitutional referendum, rising with the elections of June 2000, and which has continued since, being most marked around elections including the recent March 2008 election and its aftermath. Beginning in October 2000, legal impunity for violators has purportedly been assured through a number of clemencies, amnesty and indemnity orders.
- There are the acts of violence, displacement and property loss associated with spontaneous as well as state-sponsored invasions of mainly white-owned commercial farms that began in 2000.
-There are the many human rights abuses associated with Operation Murambatsvina (Clean-Up) in 2005 which led to the forcible displacement of about 700 000 people (UN 2005).
- These three ‘categories’ roughly describe the immediate past in relation to which a truth, justice and reconciliation commission might be constituted.
Of course, state human rights abuses have occurred in earlier periods of Zimbabwe’s history. However, for reasons given below, any future strategy might not attempt to substantially or initially address Rhodesian (pre-1980) or colonial era (pre-1965) abuses. More difficult is the question of whether any formal strategy or mechanism ought to attempt to deal with allegations of grave crimes and massive human rights abuses arising from political violence throughout the 1980s in particular the Zimbabwean army’s gukurahundi campaign in the Matabeleland and Midlands provinces in 1983-4. As discussed below, this period in Zimbabwe’s past is arguably unresolved and ‘unprocessed’ – neither truth nor justice, reconciliation nor redress has been attempted or obtained – and represents a possible future source of demands and disunity. However, including this period within the initial mandate of a new commission carries the risk, in a still fragile setting, of reopening this ethnic fault-line.
The situation is acutely balanced at present in terms of attempting to ensure justice for past wrongs without imperiling the possibility of a relatively peaceful transition. Members of the security apparatus and militias lack confidence about the consequences of any change in regime, including exposure to prosecutions and retribution. In addition, state institutions for protecting or remedying abuses are weak or directly implicated in past and ongoing violence. Various elements of society may be marginalised, indifferent, unaware, insecure, afraid of discovery, suffering directly, desiring answers, accountability, or simply practical relief. There may also be high levels of denial or inability to know the truth, and especially if there is a change, there may be a desire for self-help retribution and settling of scores, where the truth of the violence is well known, its doers identifiable. The possibility also exists that the legacy of decades past unresolved violence might rise and manifest. What is to be done?
‘Transitional justice’: some preliminary considerations
In reaching or embedding a new political dispensation, there exists a range of ‘transitional justice options’: ways to deliberatively and formally deal with any systematic and large scale past human rights abuse. Most modern responses to large-scale violations tend – mainly for reasons of internal political expediency, with occasional international pressure – to adopt a position somewhere between the two extremes of comprehensive criminal prosecutions on the one hand, and blanket amnesty or collective amnesia on the other. Strategies include selective criminal trials, truth-for amnesty commissions, and a hybrid of these.
A central factor in the transitional justice debate is the importance of balancing the need for ‘restorative justice’ with solemn principles pointing to criminal trials and ‘retributive justice’. In the former, the focus is beyond simply ensuring formal accountability for wrongs; the focus is on the vindication of the victim, not the punishment of perpetrators. Restorative justice approaches also emphasise a need to focus on ‘bottom-up’ processes founded in ordinary people’s experiences and concerned with taking steps that they feel would set things right. This is to be contrasted with processes involving only some elites – whether peacemakers, truth commissioners, prosecutors, or indicted persons.
A restorative justice approach does not, however, discount the value and effectiveness of criminal punishment, including as a means of affirming the dignity of victims and preventing vengeance. Trials in criminal courts in transitional settings cannot easily be dismissed as merely backward-looking: they may be essential to ensuring a sense of ‘justice’, avoiding self-help measures, and to deterring future abuses.
In considering general matters of approach, there are certainly real-world tensions between pursuing both ‘peace’ and ‘justice’. In some cases the price of peace is accepting that justice might need to be stayed against important stakeholders, although some aggrieved parties will simply not be able to contemplate peace without justice being seen to be done. However, it is necessary to move beyond polarised debates presenting these two ideals as incompatible objectives: this obscures efforts to consider the potential for approaching these issues in a more integrated mutually reinforcing way (Simpson 2008), and can be an abdication of the duty to seek imaginative, tailored solutions. To simply place prosecutorial justice and the attainment of peace ‘into opposed, abstract categories’ comes at the expense of ‘informed analyses of where tensions do, and do not, exist on the ground’.
Before considering truth commissions as a possible vehicle for transitional justice in Zimbabwe, it is necessary to bear in mind that what is possible by way of institutionalised response – how robust and intrusive and prosecutorial it might be, for example – is heavily dependent on the balance of political power at the time of the transitional agreement (ICG May 2008). The background of a truth commission ‘is invariably [a result of] stalemate in a political power play’. Criminal prosecutions might be too provocative given the residual power in elements of the previous incumbent regime (who may be part of a transitional government).
Strategies of reconciliation are affected by political constraints since imposing justice can have a disruptive potential so that it may be crucial ‘not to provoke still-powerful elements in the armed forces that retain political veto power during a fragile democratic transition...the parameters of publicly acknowledged truth can be deepened as the peace increasingly proves its resilience’. For example, in South Africa’s transition, the white minority controlled the police and military and so wielded serious negotiating power; in Chile and Argentina the enduring influence of the military leadership meant that it was unthinkable to commence criminal actions against the main culprits. In Solomon Islands, by contrast, the preference was to strengthen courts and pursue prosecutions, leaving reconciliation mechanisms to informal, church-based and community processes. Talk of a formal truth commission and amnesties was thought to send mixed messages about future responsibility for ethnic violence. But this choice of strategy was possible because of the high degree of political control and a regional military stabilisation force.
Discussions on the specifics of any comprehensive formal truth and justice response in Zimbabwe probably need to wait until some form of legitimate transition is underway and sufficiently consolidated. However, the broad shape of any future justice mechanisms and process is something that will determine – and be determined by – present political machinations.
A Zimbabwean truth commission: Why?
The term ‘truth commission’ encompasses a broad range of possible features and purposes. Such institutions are normally ad hoc, official (state authorised or sponsored), temporary non-judicial fact finding bodies with a limited mandate. They are victim focussed and investigate or receive information on a pattern of human rights abuses over a certain or determinate period of time. They normally produce a report with recommendations for reparation and redress and for prevention of future abuses. Since 1974 numerous truth commissions have been established by states – with or without the assistance, encouragement or say-so of international actors – either to support ongoing peace processes or promote democratic progress in post-conflict societies (see the experiences of South Africa, Chile, Argentina, Guatemala and Timor-Leste). There is no unique formula or prescription for implementing effective transitional justice: a truth commission is only one option and ought not to be resorted to automatically as part of a conflict resolution ‘first aid kit’ Before addressing what features a future truth, justice and reconciliation commission (TRC) might adopt, it is worth debating the considerations for and against such a mechanism for Zimbabwe.
The case against a TRC: moving on, leaving the past alone.
Suggestions for a formalised TRC process assume that it is not sufficient to simply leave the past unresolved. However, a deliberate decision not to pursue any formalised process is also one possible option for Zimbabwe. Some have argued that one ought to generally ‘curb the enthusiasm’ about truth commissions. For one thing, it is necessary to attempt to ‘centre peacebuilding efforts in the will of the people’: it is quite possible that the overwhelming view in society might be that the past ought simply to be left alone. Some societies such as Spain after General Franco simply drew a ‘thick line’ between past and present and moved on, apparently successfully, without any particular structural mechanisms for reconciling with the past. Shaw R. (Rethinking Truth & Reconciliation Commissions: Lessons from Sierra Leone: Special Report 135. Washington DC: United States Institute for Peace) challenges the purportedly universal benefits of verbally remembering violence, arguing that ‘social forgetting’ may be an equally valid strategy. Shaw’s research in Sierra Leone revealed that despite pressure from NGOs and human rights activists for a truth commission, most ordinary people – who were tired, afraid and too well acquainted with ‘the truth’ of the violence – appeared to prefer a ‘forgive and forget’ approach.
There are other problems too. A TRC could squander precious time, money and (if handled poorly) perhaps a once-only opportunity. Depending on its timing and tone and the prevailing political balance, a truth commission (and the process of designing it) could actually create a new venue of dispute and itself become a source or focus of renewed conflict, fragmentation and disintegration in the way that a constitution-making process in transitional societies can sometimes do (see Murphy W. in Constitutions, Constitutionalism & Democracy: Transitions in a Contemporary World. Oxford University Press, 1993). A TRC could be used as a political tool to disproportionately allocate blame to one side; it could threaten or antagonise powerful influential persons upon whose cooperation a fragile national unity depends. It could partly redeem and legitimise the previous regime by enabling its representational portrayal in an ordered institutional process.
Some see the notion of reconciliation as already compromised in Zimbabwe. Archbishop Pius Ncube has said that cycles of abuse and impunity in Zimbabwe are ‘cancerous’ so that there is a need to avoid amnesties and simply prosecute persons in future, including to educate future generations. Just two years ago the Zimbabwe Human Rights NGO Forum’s report expressed an opinion that Zimbabweans are ‘cynical’ about reconciliation or that the concept has been ‘widely devalued, perhaps irrevocably’ and ‘remains polluted as a result of its expedient political manipulation and its failure to deliver meaningful results’ (Zimbabwe Human Rights NGO Forum 2006:7,21; Zimbabwe IDEA 2003:34).
A further problem is that there is a tendency to concentrate on internal political factors shaping any peace institution, reflecting assumptions that truth commissions result from and reflect local demands. However, this overlooks the significance of external political concerns, demands or expectations, which may be crucial in shaping the choice or form of institution. There is a need to be careful that ‘transitional justice options’ and institutional models (such as a TRC) are not selected for reasons that have more to do with appeasing international expectations or following rule of law ‘prescriptions’ than what is really needed – and wanted – on the ground. Truth commissions are not an end in themselves, to be pursued formulaically and regardless of the circumstances. Some argue that it ought to be established whether such an exercise has popular support among ordinary persons (not just local or international NGOs or other elites) ( see Shaw above).
South Africa’s experience has been hugely influential and generated an enormous amount of literature. But foreign experts or donors in particular may not see that South Africa’s experience is not necessarily apposite to Zimbabwe’s very different history. Certainly, no model of TRC can be simply transposed directly from one situation to another. ‘Reconciliation’ in particular is something that needs to be defined within a specific historical and cultural context.
There is the risk that such institutions are foreign models ‘lost in translation’ or are cosmetic only, giving a false sense of resolution: while a great deal of any TRC process is understood as symbolism and ritual, to fulfill their function new institutions dealing with common experiences need to reach and be reached by the grassroots level. World Bank studies on institutional designs in 2002 note unsurprisingly that ‘supplying’ institutions is not enough: people must want to use them. These experiences suggest that a TRC would be meaningless without a concerted (and expensive) public engagement and education programme, which with other priorities, may not be viable in the near future.
Thus where there is a relatively high level of awareness about the state’s responsibility for abuses (accompanied by power balancing issues, the need to avoid creating new sites of friction, general fatigue, fairly widespread communal implication in violence, legal complications from past pardons and amnesties, and resource shortages), it is at least arguable that Zimbabweans may legitimately indulge in deliberate ‘social forgetting.’ Victor de Waal’s (The Politics of Reconciliation: Zimbabwe’s First Decade. Cape Town, 1990) characterisation of Zimbabwe’s first decade after 1980 is that the society as a whole decided to simply move on, at least in relation to the Rhodesian era, leaving the past behind.
Most experience in other societies, however, points the other way, especially where there are concerns about who gets to decide what is ‘forgotten.’ In any event, this passive form of response to Rhodesian-era abuses left many legacies still affecting Zimbabwe today, including a prevailing culture of impunity. Even if it could be proven empirically that most Zimbabweans were ‘cynical’ about reconciliation, this does not preclude a TRC. Instead, it depends on the actual form and practice of any such institution, the possible positive community response to any visible international sponsorship of a process (rather than more ‘government business’), and the prevailing political situation at the time.
The case for a TRC: addressing the past for the future’s sake
A number of general factors commend the establishment of a truth, justice and reconciliation commission as an element of a comprehensive approach to transitional justice. While there is probably no ‘right to truth’ in international law, one principled issue suggesting some formal justice mechanism is the well established international legal duty on the Zimbabwean state (whichever regime is then its custodian) to not only refrain from violations but more positively to afford remedy and reparation to victims of human rights abuse, including through at least attempting investigations (see Art 2 of the ICCPR and also the UN Basic Principles & Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law [UN Commission on Human Rights. E/CN. 4/Sub.2/ 1993/8). The ordinary criminal courts in any country that has experienced oppressive rule are likely to be severely weakened if not entirely compromised. There may be such a degree of complicity by members of society generally that it is impossible to conceive of attempting to prosecute all possible offenders. In any event, mere prosecutions, even if politically possible, do not necessarily achieve reconciliation or reduce tension. By their nature, trials moreover paint an incomplete picture of the past or even distort history. The most obvious objective of a TRC is that through an official truth body, an accurate record of the country’s past will be established, uncertain events will be clarified, victims will be assured of recognition, and the silence and denial regarding human rights violations will be dealt with. Such processes can achieve a measure of symbolic closure through memory enabling a corrected history more on one’s own terms, and an institutionalisation of the memories of the abusive time (for therapeutic as well as principled reasons) (Catholic Commission, 1997. Breaking the Silence: Building True Peace). Part of the point of the process is to reach an institutionalised common memory or national consensus on how the past is to be remembered and represented. This is in contrast to denial and deliberate or non-deliberate forgetting.
The 2008 MDC policy on justice is that ‘the right to know’ extends from victims to the rest of society ‘to become a collective right. This is meant to ensure that violations are recorded in history so as to prevent their recurrence’ (MDC 2008:1,36-37). For many victims no new ‘truth’ will emerge, but formal acknowledgment of their truth can be vital in individual and group healing, forestalling division, and enabling peace building. However, knowing the truth of what took place is a necessary condition for forgiveness, but not a sufficient condition of reconciliation and peace.
In addition to its truth-seeking function, such a commission can be a platform for a range of processes, aimed at both addressing matters of principle and ensuring grievances do not undermine the prospects for sustainable peace. Such commissions can become the focal point for efforts going beyond the establishment of truth – efforts at reparation – by which is meant not merely financial or other economic or in-kind compensation, but broader notions of restitution, rehabilitation, satisfactions and guarantees of no repetition.
Victims’ needs are individual and communal, structural and psychological Truth commissions allow a forum for forgiveness to be given, and for formal recognition of victims, so helping them reclaim their dignity. Perpetrators are afforded a formal mechanism to renounce their violent deeds and to rejoin society in some fashion. ‘Reconciliation’ may mean many things – but is essentially about the (re)-building of civic trust and shared commitment to certain normative values, including by putting some past differences aside. There is already arguably this consensus on fundamental moral norms in Zimbabwe, even if they have been breached for some time. A TRC can set the parameters of possible political action during the transition and serve to civilise and channel the energies and tensions in a way that can reduce the potential for violence. It can describe institutional responsibility for human rights abuses and propose specific reforms. The work of institutions such as truth commissions can thus be cathartic and promote reconciliation, lifting the lid on human rights abuses, ending denial that might persist in certain sectors of the community, creating visible distance from the abusive era and enabling forward movement. It can also help to focus on the wider patterns and move away from attempting individual guilt where this is paralysing peace.
There are also some more specific factors particularly commending a TRC for Zimbabwe (and which suggest that these issues need to be at the forefront of negotiation now, even if a TRC is only established later). In my view the following factors in particular suggest a possible need for a formal mechanism such as a truth commission in Zimbabwe:
• the consistency and level of state intimidation and brutality
• the use of legislative instruments to sanction state violence
• the politicisation of the judiciary and the prosecution service
• the partly covert nature of both direct state abuses and indirect state-instigated action
• the large number of low level perpetrators especially among the youth militias
• Secrecy and denial on the part of the regime
• a culture of impunity reinforced by pardons and general amnesties over many years
• the lack of remedial and redress options
Moves toward a TRC and current MDC justice policy
In this context, there have been a number of calls for any transition in Zimbabwe to be marked by a TRC process as one component of a comprehensive approach. The Zimbabwe Human Rights NGO Forum’s 2006 study of transitional justice options appears to lean in favour of a trials strategy, opining that ‘there is considerable support in many quarters for perpetrators of gross human rights violations to be brought to trial’
(Zimbabwe Human Rights NGO Forum 2006:11). Nevertheless, and while discussions about a transitional justice mechanism including a TRC have been largely confined to a small group of local NGOs and lawyers, the idea of a TRC has featured consistently in debate in Zimbabwe since at least August 2003, when over 70 civil society organisations met in Johannesburg. That symposium expressed preference for a ‘Truth, Justice and Reconciliation Com-mission’ as the main mechanism for redress, while not discounting the possibility of prosecutions.
The symposium declaration condemn-ed the pattern of amnesties and culture of impunity and expressed the view that gross violations should never be the subject of an amnesty; it noted that victims of all past human rights abuses have a right to redress and to be consulted about the nature of mechanisms what will be established to address their needs. The declaration also called on civil society and churches to have a role in the formation of such mechanisms. The symposium drew on an earlier event, and has been followed by a number of initiatives and networks attending to the needs of victims including torture victims, recording reports and allegations, instituting civil actions against the state, and considering future justice options (see also the Amani Trust ‘Truth and Justice Conference held in 2001’).
The 2001-2 draft alternative Zimbabwean constitution of the unofficial National Constitutional Assembly had provided in its Chapter 9 for a ‘Truth, Justice, Reconciliation and Conflict Prevention Commission.’ The proposed institution would sit for five years (renewable). It would be responsible for investigations of past violations, provision of remedies, the promotion of reconciliation, and conflict prevention. Further details were left to a future non-constitutional instrument.
On the government’s part, there have obviously been no official signposts about future transitional justice. In March 2006, Cabinet approved plans for a ‘Human Rights Commission’ to ‘counter the large scale orchestration of alleged violations’ and the ‘falsification, exaggeration, orchestration, and stage-managing of human rights violations by detractors.’ The announcement was widely treated with derision. The opposition Movement for Democratic Change (MDC) has in the past received generic advice on transitional justice options (for example, general advice received from International Centre for Transitional Justice in 2001-2002) The MDC has consistently followed a fairly conciliatory (but often ambiguous) line on future justice issues. Since at least its 2003 Congress the MDC has mentioned the intention to establish a truth commission. At that time, the position adopted was that ‘general provisions of amnesty for prisoners will continue’ although the party would nevertheless ‘ensure that due legal process is applied to all human rights abuses’ (MDC 2003). In its latest (2008) policy statement the MDC says it will ‘make a clean break with that past and establish a strong human rights culture’ but that it ‘will be necessary to deal with all past abuses.’ It proposes a ‘Truth and Justice Commission’ to hear, in public formal recorded sessions, ‘the stories of the victims and to identify those responsible for human rights abuses and any associated criminal acts’, as well as mechanisms to prevent future abuses and ‘re-orientation programmes for all those affected’ (MDC 2008: 36-7).
The MDC’s formal justice approach is said to be based on four principles: the communal right to know, the right to justice and a remedy, the right to reparations, and the ‘right’ to non-recurrence. It purports to deal with all episodes of political violence in Zimbabwe since 1980. It states that the MDC is committed to ‘dealing with the needs of the victims’ of all post-1980 abuses ‘in a holistic and comprehensive way’ by giving ‘those affected by the abuse of their rights the satisfaction of knowing that the truth about what happened has been revealed and that the culprits have been brought to justice in some way.’ If anything, it is suggestive of a preference for criminal trials: ‘all victims will have an opportunity to assert their rights and receive fair and effective remedy, ensuring that the perpetrators stand trial and that the victims obtain reparations ... [this reflects] an obligation on the State to investigate, prosecute and punish the guilty’ (MDC 2008:1,36-7).
The proposed mandate of the commission includes ‘to determine who was responsible for the incidents being considered, and to decide whether or not to recommend further investigations by an appropriate authority and possible prosecution.’ The current policy does not set out a policy on past (existing) amnesties given by the Mugabe regime, and mentions the possibility of future amnesties only in the negative and obliquely, offering little firm assurance to perpetrators: ‘in the event that those identified as being responsible...do not themselves, on a voluntary basis, offer to come before the Commission to tell their side of the story, the Commission may, at its discretion, [direct the matter for investigation for possible prosecution]’ (MDC 2008:37). The MDC policy appears to attempt – perhaps wisely – to structurally distance justice measures from the vexed issue of property losses, land seizures and land reform. The policy does not, however, mention a role for the international community in any justice process.
In any event, this policy is of course subject to whatever political realities exist after June 2008. Whatever their policy, the MDC is faced with a hostile and nervous (albeit susceptible to multi-level fracturing) security apparatus, and has already made overtures to reassure in particular the security leadership and to guarantee their ‘security’ (ICG May 2008:4). It is not clear whether this pledge consists of an undertaking to engineer a formal amnesty from any prosecution, or something more political by way of a guarantee not to pursue legal actions. As a result of the 2008 election stalemate and violence, the leader of the main MDC faction, Morgan Tsvangirai, told the BBC that while he had long espoused the notion that Mugabe himself ought to be allowed to retire with dignity rather than face prosecution, that issue might need to be revisited given the events following the elections in March 2008.
The relevance and role of international justice and the ICC
It is relevant to briefly address whether international or foreign criminal tribunals might in any way overlap with any Zimbabwean commission’s mandate or amnesties it might offer (that is if one is established). Since at least 2003, a number of actors including the International Bar Association have called for the ICC to examine the Zimbabwe situation. The August 2003 Zimbabwe civil society symposium’s Declaration appeared to support the use of ICC mechanisms by any new government. In their most recent report, the ICG suggests that if the current regime (with or without Robert Mugabe) retains power by illegitimate means, a Security Council commission of inquiry ought to be established to investigate reports of torture and human rights violations and ‘to recommend appropriate accountability mechanisms, perhaps including referral to international legal authorities [the ICC]’ (ICG May 2008:2).
The ICC has limited jurisdiction, however. It can investigate and hear only the most serious crimes of concern to the international community, committed after July 2002. Zimbabwe is not presently a party to the ICC Statute. It is not open to another State Party to refer abuses by Zimbabwean nationals of other Zimbabweans inside that country to the Court. The Prosecutor moreover has no power on his own accord to initiate an investigation. Even if Zimbabwe was in the near future to accept the Court’s jurisdiction over specific crimes for the period that it was not a party to the Statute, the ICC would only have limited (2002 onwards) jurisdiction. A final possible source of ICC
jurisdiction is the UN Security Council’s power to refer country situations to the Court. Political consensus would be required, and care taken over precedent setting: unless the situation in Zimbabwe were to deteriorate significantly, it is somewhat unlikely that the ICC will receive a Security Council referral on this matter.
Technical issues aside, there are other concerns about the appropriateness of an international prosecution strategy here. ICC action might represent ‘select trials of demonised individuals that exonerate the collective’: selective prosecution can send the signal that whoever is not charged is innocent (Braithwaite J.2002: page 204, Restorative Justice and Responsive Regulation. New York: Oxford University Press). An ICC investigation might undermine local peace efforts (see also the Sudan debacle after the ICC prosecutor’s unvailing of a warrant of arrest against the Sudanese President), while also purporting to be the single comprehensive treatment of the problem, leaving many matters unresolved: stories untold, hurts unhealed, deeds unaccounted for. The ICC scheme is simply one element in a continuum of possible options. Certainly at this present stage, the prospect of an ICC dimension ought to be flagged to senior elements – but so as to induce cooperation now, not in such manner as to frighten these still powerful actors into bunkering down. If no legitimate transition arrangement is reached, whether ‘escalating’ the matter then by Security Council referral to the ICC will actually help with engagement is still highly debatable.
Perhaps more likely than ICC involvement in transitional justice in Zimbabwe is the prospect of prosecutions, before foreign national courts applying international law, of Zimbabwean offenders for crimes in Zimbabwe, where these persons come within the territorial jurisdiction of such foreign courts. Nothing would require a foreign court to recognise any amnesty granted by any Zimbabwean institution (Dugard J 2002:page 699, Possible Conflict of Jurisdiction with Truth Commissions: The Rome Statute of the International Criminal Court- A Commentary Vol. 1 Oxford University Press). For example, in May 2008 the names of 18 Zimbabwean officials accused of authorising or committing torture were forwarded to South African prosecutors, who could proceed under South African law should the accused be found in South Africa. The possibility of national level prosecution (and certainly any ongoing or completed prosecutions at the time) ought to be factored into considerations of ‘transitional justice’ options and might impact on a future commission’s work (action filed by the South African Litigation Centre: LegalBrief Africa, Issue 279, 5 May 2008, pursuant to the Implementation of the Rome Statute of the ICC Act (Act 27 of 2002).
Provided we do not see mere deals between elites – or even perhaps if we do – the international community might need to drop calls for high profile prosecutions and learn to live with any local political compromise that works for all Zimbabweans themselves. As Chesterman (2004: 156 You, The People: The UN Transitional Administration and State Building) has said, ‘[a] central problem is that commentators with an international perspective often view such internal transitions through the lens of international criminal law: either the wrongdoers are held accountable, or they enjoy impunity’. It is however possible to have a more nuanced, practicable – and just – approach.
Conclusion
Where will Zimbabweans place themselves in relation to the politics and principle of justice issues in the current interim phase – and who gets to decide for Zimbabweans on these issues? Once some legitimate transition is in place, what is the correct balance between forward momentum and adequate pause on past injustices? If a legitimate transition is accomplished in Zimbabwe, the ‘singularity’ of truth commissions– one-off, limited purpose and lifespan institutions carrying a ‘never again’ message – commends them as a highly visible and powerful mechanism to break with past troubles. The past is comprehensively and publicly examined not so much for its own sake, as for the sake of the future society. South Africans understand that deep wounds sometimes need to be cleaned and aired, not simply bound up and forgotten: out of sight is not out of collective mind (Dugard, above) One must bury the hatchet, not the past. At the same time, the focus ought not to be blindly on ‘a truth commission’ or its forms, but on what process and strategy best secures justice, reconciliation and repair in society. Moreover, formal processes such as truth commissions can catalyse but are only one part of wider social processes: these channels need to be further encouraged and enabled.
The prospect of a truth commission is not something to be postponed while ‘politics’ runs its course: what it offers by way of compromise can assist; now, in ensuring a legitimate transition is possible. Of course, any choices about the features of a Zimbabwean commission will necessarily reflect the political compromises and stresses that accompany a transition from autocracy to democracy. There needs to be a more public participatory dimension to the justice debate now, to the extent that this is possible: one risk is that political actors might by consensus opportunistically ‘drop’ the issue of transitional justice as too hard. On the other hand, it is naive to deny that formal justice mechanisms require some stability: there still may need to be some privileging of ‘peace’ over ‘justice’ in the way those involved in negotiations choose to deal with past abuses. In appropriate circumstances this ‘compromise on justice’ should be understood as itself being a morally valid and defensible choice, not simply a pragmatic (unprincipled) one.
The abduction, torture and murder in May this year of people like Gibson Nyandoro and Tonderai Ndima (to name just two opposition supporters) – the effect on families, the mystery surrounding the perpetrators or their superiors – properly situates policy debate about transitional justice options in Zimbabwe.
Discussions of such transitions are often attended by a high degree of optimism and idealism about the possibility of clearing a place in society where truth, justice, mercy and peace [can] meet. This can obscure how very difficult it is in practice to reconcile various considerations (political influences, community expectations, resources, time, security, etc). However, it is possible to translate such ideals into particular institutional and procedural manifestations in order to address identified problems that left unresolved can engulf a new society – or prevent its emergence at all.
