Zimbabwe's Challenge and Southern Africa's Future

The South African Development Community is an important mechanism in holding states accountable to the people they govern.

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Zimbabwean President elect, Robert Mugabe is seen at the country's commemoration of Heroes day, in Harare, Monday, Aug. 12, 2013. Zimbabwe's longtime President Robert Mugabe says his party will not yield its victory in elections that although disputed were endorsed by African observers and conducted without the violence that marred previous polls.

JOHANNESBURG – As chaos swirls in Cairo, another political drama is playing out in southern Africa over the disputed July 31 Zimbabwean presidential elections, which extended Robert Mugabe's 33-year rule by another five years. After a slew of regional leaders were quick to certify the elections as legitimate – South African President Jacob Zuma, for instance, extended his "profound congratulations" in a matter of days on a "successful vote" and urged "all political parties in Zimbabwe to accept the outcome of the elections as election observers reported it to be an expression of the will of the people" – Botswana boldly broke regional ranks and called on the Southern African Development Community to open an independent investigation into allegations of widespread voting irregularities.

According to a statement issued by Botswana's 80-member team that was dispatched to monitor the election, "[e]vidence of possible shortfalls include ... questions about the inclusion and exclusion of people on the rolls, questions over the forms of identification required to vote ... as well as credible allegations of people otherwise being denied the right to vote."

An editorial in a leading South African newspaper declared, "Justice and democracy in the whole region are at stake." Maybe so. At the very least, Development Community's institutional legitimacy is on the chopping block.

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It was constituted under a treaty signed in Windhoek, Namibia in August 1992 by a number of southern African states, including Zimbabwe and Botswana, and commits its 15 members to act, broadly, in accordance with the principle of "human rights, democracy and the rule of law." To this end, the treaty provides a binding framework to adjudicate disputes amongst member states, which could, theoretically, be deployed to ferret out, remedy and, in the future, prevent instances of election fraud. (The heads of the Southern African Development Community governments had previously relied on this provision to suspend Madagascar following a coup in 2009).

Key word: theoretically. Most observers agree that the regional arrangement has teeth but lacks the political will to bite.

The Community's lukewarm preliminary electoral observation assessment characterized the elections as "free and peaceful" but stopped short of calling them legitimate. "We did not say it was fair. The question of fairness is broad and you cannot answer it in one day," said the head of its election observer mission, Bernarnd Membe of Tanzania. The final report is due out later this month.

The group's tepid response is regrettable but unsurprising. For starters, when pushed, leaders prize stability over democratic initiatives. The recent rebel fighting in the Central African Republic (which South Africa sent troops to quell) coupled with the renewed civil strife in Mozambique (where Zimbabwe was embroiled in the '80s and, as recently as last year, deployed troops to stabilize the border) presumably warrants a strong Mugabe and a stable Zimbabwe.

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Further, last time the Development Community forded too far into Zimbabwe's internal policies – ruling in favor of white Zimbabwean farmers whose land had been expropriated without compensation by the government of Zimbabwe pursuant to its land-reform policy – it's tribunal was provisionally suspended and eventually stripped of its jurisdiction to hear individual human rights claims.

At the end of the day, the majority of the group's member states may not have the stomach to wade into their "comrade's" backyard controversy that was, by most accounts, "peaceful." "We wish to offer you continued support as a member of the family," said Malawian President Joyce Banda, the Southern African Development Community's chairperson, at its 33rd summit, held in Malawi over the weekend. In the midst of the current fracas, it is easy to forget that the most serious allegations of abuse in Zimbabwe's July 31 elections (namely voter fraud) pale in comparison to the violent, "war zone" 2008 presidential elections where Human Rights Watch reported that "Zanu-PF [Mugabe's party] members [were] setting up torture camps to systematically target, beat, and torture people suspected of having voted for the" opposition party.

Still, the group's queasy position smacks of self-preservation at the risk of imperiling one of the very reasons it was established in the first instance – to uphold the rule of law. The regional organization stands today at the shores of the Rubicon. While Botswana's inquisitional stance is welcomed, unless other regional leaders move aside and allow the group to operate pursuant to its founding mandate, the region stands to lose an important mechanism to hold states accountable to the people they govern.

Drew F. Cohen is a law clerk to the chief justice of the Constitutional Court of South Africa. Follow him on Twitter at @DF_Cohen or email him at dfcohen@law.gwu.edu.

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