Speech Made by Mr Sternford Moyo on the Occasion of the Launch of Defying the Winds of Change

It gives me great pleasure to be here and my wife Sara and I feel greatly honoured to have been invited to participate in today’s celebrations. I am, furthermore, greatly honoured by the invitation to make a few remarks on this important occasion when we are launching a detailed, educative and professional study by a number of our prominent academics on the conduct of the 2008 elections.

In return for protection, good order and prosperity, people submit themselves to restrictions inherent in having an organized state. They delegate their sovereignty to the state and elect delegates or leaders to manage the affairs of the state. The delegation is not an abrogation. The people remain responsible and accountable to posterity for the due management of the affairs and resources of the state during their time. Needless to say, they retain the power and authority to terminate the mandate or alter the delegates or alter the nature of the mandate or the manner in which it may be discharged. We all remain and continue to be accountable to our children and grandchildren for the failures or successes of our nation. Our children and grandchildren will either be proud or ashamed on us depending on their understanding of our conduct during the time we are responsible for the affairs of our nation.

One of the major questions likely to be asked by posterity in respect of Zimbabwe is likely to relate to what they will perceive as our failure to control our mandate in the face of what they may see as disastrous or poorly executed policies and destruction of the state’s ability to deliver on some of its primary responsibilities. Many are likely to see evidence of a failed state, a colossal wastage of the nation’s resources, violation of elementary rules of governance, violation of human rights and a failure to observe and adhere to the rule of law and democratic values. Defying the Winds of Change will chronicle and explain our circumstances. It will, therefore, make a significant contribution to the maintenance of accurate and trustworthy historical records.

As I read the book, I started reflecting on the deficiencies of modern jurisprudence. For example, subverting the will of the people by subverting a duly elected government is, in most countries, one of the most serious criminal allegations that can be made against any accused person. In most countries, it is treason punishable by capital punishment or life imprisonment or lengthy periods of imprisonment. However, subverting the will of the people by frustrating their efforts to freely and fairly elect a government of their choice does not appear to be treated with equal seriousness. Whilst a number of statutory offences such as electoral fraud, assaults, intimidation, corruption and others are normally provided for in electoral legislation, there can be no doubt that they are not in the same league as the offence of treason despite the fact that both these offences and treason are aimed at punishing subversion of the will of the people.

Reading Defying the Winds of Change left me wondering whether there is a remedy. A domestic remedy is manifestly impractical and difficult to enforce especially in situations where some of the persons accused of conduct such as the conduct described in this collection of essays may be in power.

As one considers the question of remedies, international criminal justice is one of the areas worthy of consideration. Clearly, where domestic remedies are impractical and there is lack of willingness or ability to pursue them, it makes sense to look to international mechanisms. Problems associated with pursuing international criminal justice include:

  • The fact that international criminal justice has been subjected to untruthful and unjustifiable negative propaganda suggesting that it is an imposition from the West. I say this attack is unjustifiable because:
    • America, which is generally considered to be the leader of the West unsigned the Rome Treaty
    • Of the first four situations before the international criminal court, only Sudan came as an imposition from the Security Council. Situations such as Uganda and DRC were referred to the International Criminal Court by the Governments of those States
    • International Criminal Justice becomes relevant only where the State concerned is unwilling or unable to prosecute in the domestic courts
    • The fact that large numbers of African States ratified the Rome treaty must point to acceptance by Africa of International Criminal Justice.
    • Jurisdiction of International Criminal Court is limited to war crimes, genocide and crimes against humanity. The gravity threshold is often difficult to achieve.
    • Except in situations involving establishment of a special tribunal or in situations where the country concerned will have lodged a special declaration, the jurisdiction of the court is tied to ratification by the state concerned, of the Rome Treaty. Furthermore, the court has jurisdiction only in respect of crimes committed after June 2002. The special declaration is impractical where there has not been a change in Government.

What about responsibility to protect?

In simple terms, the concept of responsibility to protect is that, although it is a principle of international law that States should not interfere in the internal affairs of other States, there are circumstances when the prevention or stoppage of gross violations of human rights which shock the conscience of humanity as a whole call for intervention by other states. The principle was associated with the invasion of Iraq and it carries all criticisms associated with that invasion. There can, however, be no doubt that it is an emerging and important principle of international law. Canada set up a commission to investigate the principle in detail. The UN Secretary General appointed a special rapporteur on responsibility to protect, Mr Edward Luck. Former Secretary General Koffi Annan argued eloquently that if responsibility to protect is to be condemned as an interference in the international affairs of other States, how is the world to respond to gross violation of human rights as witnessed in Rwanda and the former Yugoslavia. If he had read Defying the Winds of Change, he probably would have included Zimbabwe in his list of difficult situations. Furthermore, the entering into various human rights conventions and establishments of international mechanisms for the promotion and protection of human rights within States is a clear sign of a drift from the concept of non-interference to the new norm of responsibility to protect. In any event, the whole concept of human rights law represents a shift from international law that focuses on relationships between States to including individuals as subjects of international law. Defying the Winds of Change strengthens my commitment to the concept of responsibility to protect.

What about transitional justice?

Regrettably, it is not altogether certain as to whether Zimbabwe is already experiencing a transition to democracy. The inclusive government was welcomed by most right-thinking Zimbabweans. Substantial progress has been made in the direction of economic stabilization. However, save for reform that will be contained in the new constitution, work on institutional reform has not yet begun. A formal programme of restoration of the rule of law, respect for human rights and democratic values is still to be embarked upon. Transitional justice against a background of juxtaposition of the new and the old has inherent difficulties.

Defying the Winds of Change is an important work that is an explanation to ourselves and to posterity regarding what transpired in the 2008 elections. It is a contribution to maintenance of accurate and trustworthy historical records. It will provoke an examination of limitations of both domestic and international jurisprudence.

I commend it to our readers and hereby declare it duly launched.

 

Mr Sternford Moyo giving the keynote speech at the Launch of Defying the Winds of Change Left: Mr Sternford Moyo giving the keynote speech at the Launch of Defying the Winds of Change
Zimbabwe German Society, Harare
29th October 2009