THE recent electoral turmoil in Zimbabwe, characterised by results rejected by the main opposition party and political tension, have cast a shadow over the nation’s democratic processes.
In this context, the Southern African Development Community (Sadc) has a vital role to play in bringing about a peaceful and just resolution to the election dispute between the ruling Zanu PF party and the opposition Citizens Coalition for Change (CCC).
The principles enshrined in Article 52 of the African Union (AU) Charter on Democracy, Elections and Governance serve as a guiding light for regional organisations like Sadc, offering a comprehensive framework for election resolution.
Understanding the legal framework
I start with the AU level, which allows for deference in resolving election problems to sub-regions like Sadc. Article 52 of the AU Charter emphasises the commitment to peacefully resolving election disputes and ensuring that elections are conducted fairly, freely and transparently.
The charter aligns the national, regional, and continental perspectives on democratic governance, creating a nexus that is crucial in facilitating election resolution.
Article 52 of the AU Charter serves as a cornerstone in the continent's commitment to democratic governance and election dispute resolution.
This article emphasises the unwavering dedication to peacefully resolving election-related conflicts and, crucially, ensuring that elections are conducted fairly, freely, and transparently.
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These principles, enshrined in the charter, hold profound implications not only at the continental level, but also within regional organisations like the Sadc.
Three-pronged arising issues
First is the Hard Law Foundation of the AU Charter. Article 52 of the AU Charter is an embodiment of hard law. It is a binding commitment that member states make to each other.
This means that African nations, including Zimbabwe, have pledged to adhere to these principles, making them legally obligatory. This hard law aspect is fundamental because it creates a framework of accountability where nations are bound by a legal duty to uphold democratic norms in the context of elections.
Second is the importance of the stance of deference to regional organisations in resolving regional impasses. The strength of the AU Charter is not solely reliant on its hard law nature. It also underscores the principle of deference to regional organisations, recognising their unique roles in promoting and upholding democratic norms and governance. This principle acknowledges that regional organisations, like Sadc, are often better positioned to address regional challenges and disputes comprehensively.
Third is the alignment of perspectives between AU, sub-regions, and national laws. The nexus created by Article 52 between national, regional, and continental perspectives is of utmost importance. In principle, at the national level, Zimbabwe, as an AU and Sadc member state, is legally bound by the AU Charter’s principles.
The government is obligated to conduct elections fairly, freely, and transparently, and to resolve election disputes peacefully. Sub-regionally, Sadc, as a regional organisation, is expected to align its policies and actions with the AU Charter, as per the principle of deference.
This means that Sadc should uphold the same principles and encourage their application in its member states, including Zimbabwe. This, with respect, Sadc has been doing as contemplated by the Sadc Treaty and AU Charter on Democracy.
At the continental perspective, the AU, in turn, monitors and holds its member states accountable for their compliance with the Charter. When election disputes, like the one in Zimbabwe, arise, the AU can refer to Article 52 to stress the importance of peaceful resolution, fairness, freedom and transparency in elections.
The alignment above ensures that there is coherence and consistency between national, regional, and continental laws and principles regarding election dispute resolution.
In the Zimbabwean context, this means that both the government (Zanu PF) and CCC should operate within this legal framework, and Sadc, as a regional mediator, should uphold and emphasise these principles when facilitating dialogue on holding fresh election or appointing a facilitated government to oversee such process.
Sadc’s role in election resolution
Sadc, as a regional organisation, can play a pivotal role in upholding these democratic norms. While respecting national sovereignty, Sadc can employ a combination of insider mediation and shuttle diplomacy to encourage the political parties, Zanu PF and CCC, to reach a consensus on the way forward.
Insider mediation involves the appointment of an envoy or mediator, who possesses the credibility and trust of both parties within Zimbabwe and within the Sadc region. In this context, Sadc can appoint a neutral envoy with a deep understanding of Zimbabwe’s political landscape and a track record of successful mediation.
This envoy can engage in confidential negotiations with both Zanu PF and CCC to find common ground. Shuttle diplomacy, a key component of this process, involves the envoy shuttling between the parties, relaying proposals, and counterproposals, and building bridges of understanding.
The envoy’s role is not to impose a solution but to guide the parties towards a resolution that aligns with Article 52 of the AU Charter and the Principles of Democratic Governance.
Sadc is uniquely positioned to play a pivotal role in upholding democratic norms, particularly within the context of election dispute resolution, while respecting the principle of national sovereignty.
This role is guided by the principles outlined in Article 52 of the AU Charter on Democracy, Elections and Governance.
Article 52 and Sadc’s mandate
Article 52 of the AU Charter emphasises the commitment to peaceful resolution of election disputes and the conduct of fair, free, and transparent elections.
Sadc, as a regional organisation, is bound to adhere to these principles as part of its commitment to democratic governance and as a signatory to the AU Charter.
Article 32 of the AU Charter complements Article 52 by stressing the importance of democratic governance and the peaceful transfer of power. This article emphasises the principle of upholding the sovereign equality of member states and respecting their right to self-determination.
Similarly, Article 6 of the Sadc Treaty outlines the objectives of the organisation, highlighting the promotion of regional peace and security, socio-economic development, and the realisation of democracy and human rights.
The treaty explicitly calls for the development of democratic institutions and principles within member states. Article 32 of the Sadc Treaty further amplifies the legal commitment to democracy and the peaceful resolution of disputes.
It establishes mechanisms to ensure adherence to democratic governance and provides for the possibility of taking measures in response to a member state's failure to adhere to these principles, in line with the principles of Article 52 of the AU Charter.
These articles, working in harmony, create a legal framework that obliges Sadc to uphold the democratic norms outlined in Article 52 of the AU Charter.
Therefore, in the context of election dispute resolution in Zimbabwe, Sadc is not only guided by its regional commitments but also by the broader continental framework that calls for the peaceful resolution of disputes and the conduct of transparent elections.
This interconnected legal structure reinforces the region's dedication to democratic governance and the peaceful resolution of election-related conflicts, providing a comprehensive and legally binding foundation for Sadc’s involvement in election dispute resolution processes.
Role of Sadc Troika and council
Sadc’s decision-making structure involves a Troika system and the Sadc council. The Troika is composed of the current chair of Sadc, the incoming chair, and the outgoing chair, and it plays a significant role in crisis resolution and decision-making.
In the context of the adopted decision, the Troika can serve as a vital mechanism for endorsing and implementing the resolution reached through insider mediation and shuttle diplomacy.
The Troika can provide the necessary political backing and authority for the agreed-upon solution, ensuring that all member states are aligned with the decision.
Subsequently, the Sadc Council, composed of foreign ministers or relevant officials from member states, can formalise and institutionalise the decision, transforming it into a binding commitment for Sadc member states. This process ensures that the decision is not merely an informal agreement but a legally recognised commitment.
Election resolution options
The goal of the envoy’s efforts should be to present two primary options to the parties: A fresh election or the formation of a facilitated government. The envoy can emphasise the importance of abiding by the principles of fair, free, and transparent elections as outlined in the AU Charter, while also considering the need for stability and inclusivity in Zimbabwe’s political landscape.
Coherence between AU, national laws
The success of such a mediation process relies on the coherence and alignment of AU, national, and regional laws. Article 33 of the Sadc Treaty provides a clear mechanism for imposing actions, such as sanctions or membership withdrawal if the parties fail to cooperate and resolve the election dispute.
This underscores the regional bloc’s commitment to democratic governance and its role in ensuring adherence to democratic norms as stated in Article 52 of the AU Charter.
As Zimbabwe grapples with a complex election dispute, the role of Sadc in promoting a peaceful resolution cannot be overstated. By appointing a neutral envoy and engaging in shuttle diplomacy, Sadc can facilitate dialogue between Zanu PF and CCC, guided by the principles of Article 52 of the AU Charter.
This process must harmonise regional, national, and continental laws to ensure a fair and transparent election resolution that respects Zimbabwe’s sovereignty while upholding democratic norms.
Ultimately, the aim is to chart a path toward stability and inclusivity for the nation.
- Hofisi is a lawyer, conversationalist and transdisciplinary researcher. He has interests in governance and international law. — [email protected].