ZIMBABWE’S military chiefs are reported to fear prosecution under the power-sharing agreement. These fears are said to have prompted Mugabe’s announcement that Zanu PF would assume control of all key ministries in the new government, in turn prompting Morgan Tsvangirai’s announcement that the Movement for Democratic Change (MDC) will play no part in such an arrangement.It seems Mugabe is inclined to placate his chiefs and lose the deal. But he and the generals have got it wrong. Noncompliance with the agreement through the continued retention of power, entailing continued illegitimacy in the eyes of the world, is no way to rule out prosecutions. By retaining power in the same old way, military chiefs may avoid prosecution at home but the threat only becomes that much more magnified outside Zimbabwe.A refusal to relinquish power and honour the agreement will foreclose on the stabilisation that power-sharing can bring, sending the economy into further free-fall and making travel an even greater necessity —— to obtain basic commodities and healthcare, among other things. And like Gen Augusto Pinochet, the former Chilean dictator, arrested in a London hospital by British police for crimes committed in Chile, Gen Constantine Chiwenga, the head of Zimbabwe’s defence force, may find that a routine scan at a Johannesburg clinic leads to a more extended and unpleasant stay than he could ever have imagined. Under universal jurisdiction, those responsible for the most egregious crimes —— such as crimes against humanity —— can be prosecuted and punished wherever they are found, even if those crimes happened far outside the arresting state’s territory.Although universal jurisdiction is still treated with some circumspection in a number of countries, that caution is likely to be put aside when the international community is forced to witness the defeat of the power-sharing agreement by the very actors who are most responsible for the atrocities in Zimbabwe. Nor can prosecutions before the International Criminal Court (ICC) be discounted. Although Zimbabwe is not party to the ICC, and Zimbabwe’s generals face no immediate indictment, the ICC may yet have a role to play —— as recent developments in Sudan make clear. Like Zimbabwe, Sudan is not party to the ICC, but ICC prosecutor Luis Moreno-Ocampo now seeks an arrest warrant for Sudanese President Omar al-Bashir. He can do this because the United Nations (UN) Security Council, through a resolution, referred the situation in Darfur to the ICC.Recently, a security council resolution sought to have Zimbabwe declared a “threat to international peace”. Although it did not seek to refer the situation in Zimbabwe to the ICC, had the resolution passed, it would have meant the first step in that direction. But the resolution was ultimately defeated, primarily because negotiations for a power-sharing agreement in Zimbabwe were continuing.A clear indication that those negotiations have failed, such as the negation of the agreement, as signalled by Zanu PF’s unilateral actions, can only prompt renewed efforts at having the security council take up this matter. The irony in the military chiefs’ concern that the power-sharing agreement exposes them to prosecution is that the agreement may be their very best guarantee against exactly that fate.Tsvangirai has time and again emphasised that Zanu PF officials need not be fearful of prosecutions under a new government. For making these statements, Tsvangirai has incurred much opposition, and is likely to incur more. Human rights advocates will argue that international law demands prosecutions for crimes such as those committed in Zimbabwe —— crimes against humanity.Far more distressing will be the arguments of those victims who insist they’re entitled to see justice done. And a new Zimbabwean government would be well advised to ensure that some form of justice is offered —— at the very least in the form of acknowledgement of the crimes committed and compensation for those who were victimised. But if Tsvangirai, MDC office bearers and organisers —— many of whom have been among those most brutally targeted —— can collectively agree that prosecutions are to be passed up to secure a power-sharing arrangement, it is difficult to imagine that the rest of the world would not pay heed and defer. And if they won’t defer… the power-sharing agreement still represents the best hope of an improved economy, which will mean the military chiefs probably won’t need to travel.– Business Day.lFritz is a visiting associate professor at Fordham Law School’s Leitner Centre.
