WHY COLLABORATORS WITH THE MUGABE REGIME NEED TO BE WORRIED.
While collaborators with the Mugabe regime continue to make vast sums of money in conivance with the Governor of the Reserve Bank of Zimbabwe, and drawing on his vast powers to print money and control vital foreign exchange reserves, there are indications that those involved in this corruption and economic crimes will soon be brought to justice.
1. The Rome Statute only became effective from July, 2002. As a relatively recent International Treaty, many people are unaware of its general provisions other than the establishment of a permanent International Criminal Court (ICC) at the Hague. The media has highlighted the prosecution of various high-profile defendents, such as Charles Taylor, at the Hague Tribunal, but these sensational stories have eclipsed some of the more important provisions of the Rome Statute which are relevant in the Zimbabwean context. Since 2000, Zimbabwean NGO's have compiled detailed dossiers relating to human rights abuses and political violence within Zimbabwe. There is cogent evidence that this violence is not sporadic and ad hoc, but "wide-spread and systematic" and perpetrated by the State or state agents with the assistance and material support of collaborators, or to use the more legally correct term, criminal accomplices. As such this violence falls within the definition of "crimes against humanity" under the Rome Statute.
Perpetrators of crimes against humanity and their accomplices in Zimbabwe may believe that it is far fetched that they will feel the effects of the Rome Statute, and are under the impression that the treaty only applies to "big fish" such as former state premiers or generals and has little to do with them. In this they would be wrong on two counts. Firstly, the ICC has in fact prosecuted several "small fish" - these prosecutions have simply not received as much publicity. But secondly, and more importantly, the Rome Statute established what are known as the principles of "complementarity" and "universal jurisdiction". What these under-publicised principles mean together is that a State which is a party to the treaty not only may, but is legally obliged, to prosecute any person involved in crimes against humanity who is present in the signatory country, regardless of where the crime was committed. A surprising number of countries have already agreed to implement the Rome Statute. Even more surprisingly, of these 106 countries, many are African states, and several are neighbours of Zimbabwe.
The African list is:
Botswana, Burkina Faso, Burundi, Central African Republic, Chad, Congo, Democratic Republic of Congo, Comoros, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius, Namibia, Niger, Nigeria, Senegal, Benin, South Africa, Tanzania, Uganda, Zambia.
There are thus few places left for those involved in crimes against humanity to hide. While those implicated in crimes against humanity in Zimbabwe may have had a small worry about the Hague Tribunal, their real concern should be that while on a routine shopping trip, collecting children from school or medical check up in a neighbouring state such as Botswana, Zambia or South Africa they may, without warning, suddenly find themselves arrested by the police of one of those countries, and prosecuted, not in the Hague by the ICC but by the courts of Botswana, Zambia or South Africa. And if the country in which they are present refuses to do so, they will find plenty of NGO's willing to take the State to court to compel it to do as the Rome Statute requires. It has not received much publicity in Zimbabwe, but the South African National Prosecuting Authority has already been supplied with information and requested by the Southern African Litigation Centre to open dockets against some 13 perpetrators of crimes against humanity in Zimbabwe.
Cases of this nature are likely to multiply in the future making any person who has perpetrated or lent assistance to perpetrators of crimes against humanity nervous when he or she visits South Africa, Botswana, Zambia or any of the 106 implementing states. It is also worth noting that the obligation of signatory States to prosecute remains unaffected by any amnesty which Zimbabwean politicians may agree amongst themselves. Accordingly, any amnesty for prosecutions which the MDC might think it politic to grant in the interest of a settlement, would have no effect outside Zimbabwe.
2. The United States Aliens Tort Act should also be a cause for alarm for those supporting the Mugabe regime. Recently, some 50 companies have been sued in the United States under this law on the basis of providing support to a State (South Africa) at a time that that State then, like the Zimbabwean State now, violated international law. In the case of South Africa the crime was apartheid and even if these cases are not ultimately successful a glare of publicity exposing these companies collaboration with a distasteful regime has caused them no little embarrassment. The Aliens Tort Act has already been used successfully in delictual claims against Mugabe for his actions in Zimbabwe and could well be used to sue companies and their directors who have collaborated with the Zimbabwe regime.
3. Prosectution in Zimbabwe also remains a real possibility under any transitional justice programme implemented in Zimbabwe or in terms of a new constitution. Of interest is that the September 15th, 2008 "power sharing" deal agreed between ZANU PF and the MDC formations makes no mention of amnesties for perpetrators of crimes against humanity. Human Rights NGOs have been consistent in their stance that no such blanket amnesties should be allowed. At a plenary Symposium of such NGO's in Johannesburg in 2003, NGO's resolved that a new government should establish a Truth, Justice and Reconcilation Commission, similar to South Africa's Truth and Reconcilation Commission (TRC). But also, and importantly for those who have benefitted financially by supporting the Mugabe government, it resolved that a Commission be established to investigate economic crimes. The mandate of this Commission is to include:
o referral of cases to the Attorney General for possible prosecution;
o in conjunction with other appropriate state agencies, taking of vigorous steps to recover misappropriated state assets;
o imposition of financial penalties upon those who were financial beneficiaries of human rights abuses.
o To ensure that a substantial portion of the assets recovered by this process should be devoted to compensating individuals and communities harmed by past human rights abuses.
The resolutions made at this 2003 symposium were recently supported and re-iterated at a conference on transitional justice held in Harare by Human Rights NGOs in September, 2008.
4. Name and shame initiatives are also under way and being co-ordinated by Zimbabwean NGO's. Data on corrupt ecomonic activities of those supporting the Mugabe regime has been assiduously collected in conjuction with other international NGOs with considerable expertise in this area. This data will not only be available for prosecutions under any transitional arrangement in Zimbabwe but can be used in the interim to name and shame those involved. Given the antipathy by a large section of Zimbabwean society and the international community to collaborators with the Zimbabwean regime, those currently benefiting economically at the cost of the extreme impoverishment of most Zimbabweans, may face deserved ostracism in addition to the humiliation and penalties which will result from criminal trials or investigations by a TRC.
Conclusion
The involuntary dollarisation of the Zimbabwean ecomony is indicative of the fact that the Reserve Bank and Zimbabwean government is no longer able to control the basics of Zimbabwe's economy. But it also has knock on effects which is likely to severely effect the government. Not only has the tax base been severely eroded as trade takes place clandestinely, but a large source of the Reserve Bank's income has been depleted. The Reserve Bank may sooner no longer be able send its illegal traders onto the street with large quantities of usually scarce and freshly printed Zimbabwe dollars, to obtain United States dollars at a rate discounted by the Reserve Bank's artificially created shortage of local currency notes. Dollarisation means that no one has any use for local currency. The huge differential between black market transactions for foreign currency where a bank transfer will net several billions in local currency but a cash transaction only several tens of thousands, has allowed the Governor of the Reserve Bank to pacify the increadsingly restless constituencies in the Defence Forces and the Police. By not applying the current $50 000 restriction on cash withdrawals to these Forces, a police officer can multiply a megre salary by withdrawing a large sum of cash, changing it to United States dollars at the favourable cash rate, changing the United States Dollars to Zimbabwe dollars at the greatly inflated transfer or cheque rate and then proceeding to withdraw the Zimbabwe dollars once more. The profit is limited only by the number of times this can be done in any one month. With complete dollarisation, this mechanism of inflating the value of the salaries of the Forces will no longer be available. The Mugabe regime may be forced into a political compromise which heralds a genuine transitional goverment. And the mechanisms outlined above to bring perpetrators of crimes against humanity and economic crimes and their criminal accessories to book, and for which so much ground work has already been done, will swing into action.
Collaborators have reason to be extremely worried