Takawira Musavengana, Senior Researcher, Security Sector Governance, ISS Pretoria Office

On Monday 28 September 2009, the announcement came that the Supreme Court of Zimbabwe had upheld human rights activist Jestina Mukoko’s application for a permanent stay of prosecution on terrorism charges following her abduction, illegal detention and harrowing experience at the hands of faceless state agents. Also detained around the same time as Mukoko were more than a dozen individuals including Movement for Democratic Change (MDC) officials Chris Dhlamini and Ghandi Mudzingwa, and journalist Andrison Manyere. They faced charges ranging from recruiting people for training in banditry, insurgency, sabotage to terrorism, the penalties of which range from very long prison sentences to death.

Mukoko’s final walk to liberty and the Attorney-General’s concomitant walk of shame, came on the back of a rare interview between Cable News Network and President Robert Mugabe in which the latter declared, ‘You couldn’t let people who have committed such crimes get away with it merely because there is a global agreement’. At least the Supreme Court didn’t think so or was compelled by overwhelming evidence not to think so. Chief Justice Chidyausiku ruled: ‘the state, through its agents, violated the applicant’s constitutional rights to the extent of … entitling the applicant a permanent stay of criminal prosecution’. As Jestina celebrated her long walk to freedom and human rights defenders heaved a collective sigh of relief at the triumph of reason and justice over lawlessness, many wondered if this episode heralded a new era of equality before the law, the rule of law and respect for inalienable human rights. Not so, prophesied one of Mukoko’s attorneys, Harrison Nkomo who averred: ‘this was a one-shot, a rare judgment … don’t read anything else into it’.

Those who have followed the contradictory story of the ‘inclusive’ government and citizens’ access to justice in Zimbabwe cautiously welcomed the outcome of Mukoko’s case as a temporary triumph over lawlessness and unaccountable security services, but warned that in so far as citizens’ personal security, equality before the law and accountability of security services were concerned, it was still a long road to Uhuru. After all, one swallow does not make a summer. 

Fast-forward to October 14, 2009 – the MDC’s deputy agriculture minister-designate Roy Bennett is committed to prison while awaiting trial in the High Court. Like Mukoko et al, he faces charges of insurgency, terrorism, sabotage and banditry. On Friday 16 October 2009, MDC leader and Zimbabwe’s Prime Minister Morgan Tsvangirai announces his party’s disengagement from the government. Tsvangirai declares, ‘Whilst being in government, we shall forthwith disengage from Zanu PF in particular from cabinet and council of ministers until … full resolution of all outstanding issues and the substantial implementation of the Global Political Agreement’. What an ambivalently worded statement! What does that mean really? Can you remain in an inclusive government and not ‘engage’ your partners? Could this be the beginning of the end of a loveless marriage between two-and-a-half unwilling partners?

This writer doesn’t think so. If anything, this will be one of many estrangements that will come to pass as the MDC continues to gauge its bargaining power and its constituency’s appetite for a divorce, while ZANU PF continues to flex its muscles and remind the MDC where real power lies. In the meantime, constitutional, political and economic reforms will take a back seat.

In the run-up to and immediately after the Kinshasa SADC Summit, the impression was created that SADC would be seized with the state of the Global Political Agreement (GPA). That the SADC Summit cleverly sidestepped the issue is reflective of the majority view in SADC that, thanks to the GPA, Zimbabwe has turned the corner and is on her own. For this reason, any disputes between the newly weds – unless they escalate into another Sharpeville Massacre – remain a private matter. By continuously threatening to pull out of the unhappy marriage – yet not in fact carrying out the threat - the MDC insulates its sympathizers and well-wishers (including within SADC) from the urgency with which the outstanding issues should be resolved.

Even as it finds itself between a rock and hard place, the MDC needs to appreciate that by jumping into bed with ZANU PF, it crossed the Rubicon and cannot continue to cry wolf and take every opportunity to threaten divorce. They know they don’t mean it and Mugabe knows it too. Tsvagirai’s reference to ‘disengagement from dealing with Zanu PF’, ‘whilst being in government’ as opposed to withdrawing outright attests to this reality. If there are people in ZANU PF who wish to see Tsvangirai et al out of the government, (and they are many), such people do not include Mugabe himself. By accepting each other’s hand in marriage, Tsvangirai and Mugabe - never mind Mutambara - accepted that they both did not have what Roger Fisher and William Ury (1981) refer to as a Better Alternative to a Negotiated Agreement (BATNA). The BATNA principle holds that one’s motivation to negotiate is underpinned by the desire to achieve that which one is unable to achieve without negotiating. In this case, whereas Tsvangirai and his party won the March 2008 elections, they were not allowed access to the State. Mugabe on the other hand, knew that although he remained in control of the State, without Tsvangirai behind or beside him, he could not govern. The GPA was therefore useful in providing Mugabe the political oxygen and ‘legitimacy’ that he so desperately needed, while affording Tsvangirai qualified access to the sections of the State. 

The timing of the MDC’s ‘disengagement’ - whatever that means - seems to have been prompted not by the half-baked state of the GPA but rather by the indictment and detention of Bennett. Whereas Tsvangirai emphasized that the ‘decision has not been made because of Bennett’ the uncanny coincidence and knee-jerk reaction has not been lost. There are certainly many more, much bigger and more compelling infractions to the GPA that the MDC should be seen to be advancing. Picking Bennett’s incarceration and making it the Sarajevo (assassination) that ignited the divorce was highly disingenuous and not well thought through. Predictably, one of Tsvangirai’s most acerbic critics Jonathan Moyo did not miss the opportunity. He argued: ‘There are up to 10 black MDC MPs who have been in and out of court, but we haven’t heard threats of pulling out of the government. So why should a whole country be held at ransom by one white man?’

Just how the MDC could not see the bait that ZANU PF was dangling defies logic. Surely, the MDC should have learnt useful lessons from its ten years of trials and tribulations to select moments of critical decision making prudently. It will be recalled that prior to joining the inclusive government, Tsvangirai had demanded the release of many MDC activists from police custody as one of the preconditions for joining the ‘inclusive’ government. But he later joined even without their release.

Faced with a fractious and divided ZANU PF, and an undeclared military government, the MDC cannot afford to be ambivalent. The MDC must maintain a principled stand on the overall state of the GPA, and be guided by the wishes of its constituency to shore up a combination of support and diplomatic pressure from the international community in general and SADC in particular. SADC, the AU, other nations, as well as people of goodwill and influence should be consistently reminded that the absence of open conflict and war in Zimbabwe does not equal ‘peace’.

Max du Plessis,Senior Research Associate, International Crime in Africa Programme, ISS Pretoria and Associate Professor, University of KwaZulu-Natal, Durban

The prospect of prosecutions for grave international crimes is an important weapon in the arsenal of human rights protections. The past two decades have seen important developments in this regard. Today the actions of states and their military forces are regulated by international criminal law, and although not widely recognised, several South Africans have played an instrumental role in developing these criminal justice responses.

It is through the lens of international criminal law that one might view the Gaza conflict and the violations committed by Israel and Hamas during Operation Cast Lead in December 2008 and January 2009. In the name of human rights, and on behalf of victims on both sides, there is a need for an objective account of these violations. There has sadly been too little attention by South African media on the work done by South Africans in response to Operation Cast Lead. Three individuals stand out: Navi Pillay, John Dugard and Richard Goldstone. 

Judge Navi Pillay was the South African Judge on the International Criminal Court and is currently United Nations High Commissioner for Human Rights. She was one of the first leading figures to speak out about the violations during the Gaza conflict. At a special session of the UN Human Rights Council held on the crisis, she publically demanded an independent investigation into whether war crimes have been committed, and called for accountability for any violations of international law. 

Her call was not ignored. In February 2009 the Arab League of States established the Independent Fact Finding Committee on Gaza. The Committee was tasked with investigating and reporting on rights violations during Operation Cast Lead and collecting information on the responsibility for the commission of international crimes. Professor John Dugard – one of South Africa’s leading international lawyers – was the chairperson of the Committee which met with a wide range of persons and visited the sites of much of the destruction. In its detailed report, the Committee found that the Israeli Defence Force (IDF) was inter alia responsible for the war crime of indiscriminate and disproportionate attacks on civilians. It also found that Israel had committed crimes against humanity and that the IDF was responsible for killing, exterminating and causing serious bodily harm to Palestinians in Gaza.

Most recently Judge Richard Goldstone – previously a judge of the Constitutional Court in this country and for a number of years the Chief UN Prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda – was appointed Head of a United Nations Human Rights Council fact-finding mission to probe rights violations during the recent Gaza conflict. Like the Arab League’s Committee, Goldstone insisted that his Committee would investigate all violations that might have been committed at any time and by any side.

The Goldstone team’s report released on 15 September concludes that both Israel and Palestine appear to have committed war crimes that may amount to crimes against humanity during Operation Cast Lead. The Report also found that Israel failed to look into alleged misconduct by its soldiers and used white phosphorous in violation of international law.

These individuals – Pillay, Dugard and Goldstone – each in their own separate ways have or are drawing attention to unlawful actions of Israel and those of Hamas. They are doing so in a manner that is both brave and critically important. Brave because it is difficult to speak truth to power in relation to Israel. With the vicious rhetoric that has been directed at Goldstone following his report, he finds himself in good company: Archbishop Desmond Tutu, a moral leader of world repute, has been accused of “anti-Jewish and anti-Israel slurs” by the Zionist Organization of America and the Anti-Defamation League referred to him as an “Israel basher.” Similar vitriol has been directed Dugard’s way.

Because of their stature in the international fraternity, it is important that Dugard, Pillay, Goldstone and others speak these truths because the victims of the crimes deserve their support. It also reminds Africans that international criminal law is not some collection of rules used only by the West against Africans – a complaint currently floated by the African Union in response to the ICC’s arrest warrant for President Omar al-Bashir of Sudan – but is a set of norms which apply universally and which may be called into service wherever atrocities occur.

All these efforts share one overarching aim: to hold responsible those who violate the laws of war. They are built on the premise that abusive fighters and their commanders can face justice, even if their government or ruling authority is not willing to take that step.

Both Dugard and Goldstone have also suggested that states exercise universal jurisdiction over those responsible for war crimes to bring alleged war criminals before their domestic courts. South Africa’s domestic ICC Act provides our courts with jurisdiction over our nationals, and effective universal jurisdiction over any person who commits a war crime – or crime against humanity or genocide – even if that person is a non-national and the crime is committed abroad. The only condition is that the person makes himself present in our territory after committing the crime. Prosecutors in South Africa have been forced to consider two real examples of this application of universal jurisdiction in the past 12 months: the first dealt with alleged international crimes committed in Zimbabwe; the second with South Africans allegedly implicated in war crimes and crimes against humanity during Operation Cast Lead.

The work done by Pillay, Dugard and Goldstone is courageous. Moral courage demands that people of principle and conviction must do what they believe is right. They have done so notwithstanding the predictable backlash, and the politics of deflection and denial that are by now symbolic of the Israel/Palestinian conflict. Their protection, as Judge Johann Kriegler has recently put it, is to wrap themselves in the blanket of duty. It is a blanket that has served them well in the ongoing struggle for international human rights.

Open video-sharing on the world wide web potentially provides a breeding ground for havoc, where nefarious do-it-yourself websites are concerned, says Andrews Atta-Asamoah

The internet is one of the important landmarks of globalisation. The far-reaching and enduring impact of the internet stems from the extent to which it has succeeded in breaking down centuriesold boundaries established by time and space. The removal of the boundaries has subsequently enhanced quality information sharing among people and across different sectors, thus pushing the world into what has become known as the global village. In this village, anybody (with access to the internet) can be anywhere (where the internet is) with little or no restriction. In recent times, one popular internetbased phenomenon, which is greatly impacting on communication, is usergenerated video-sharing. Since the launch of YouTube in 2005, the phenomenon has become the craze of the cyber world. In any given day, more video materials ranging from music, movie, comedy and TV clips, to homemade do-it-yourself videos, are uploaded to video-hosting websites than are aired on all major networks combined.

The ease with which users are able to watch, upload, or download videos hosted by the numerous video-hosting websites has enhanced the popularity and use of the technology among internet users to the extent that video-sharing is now not just a technology, but a phenomenon.

Within the few years of its existence, this phenomenon is rapidly tearing down boundaries, re-ordering social spaces and infl uencing identities, knowledge, attitudes and beliefs in unprecedented ways. Most importantly, video-sharing has become a way of communication, a phenomenon which can otherwise be referred to as ‘YouTubism’.

Within this phenomenon, there is a proliferation of do-it-yourself videos that is greatly impacting on the already existing global do-it-yourself culture, in which people seek to learn how to do things by themselves from online materials. According to a survey by the Pew Research Centre, a US-based research organisation, for example, about 55% of adult internet users in the US had by 2005 ever looked for online do-it-yourself information. By this pattern, the chasm between knowledge and ignorance, in recent times, is simply reduced to the human will as knowledge acquisition is now an issue of one’s readiness to know. Such an environment provides a platform for rapid development for emerging societies, since development is a product of know-how. However, human vulnerability becomes eminent since the phenomenon is an open tool for all, including entities such as the group behind the Dirty Kuffar, a controversial 2004 Jihad-style Islamist extremist rap video posted on the internet and intended for radicalisation.

Already the existence of nefarious do-it-yourself videos that border on bomb-making, gun-assembling, suicide, crime and religious extremism, and the ease with which they can be accessed and shared via the internet, calls for urgent attention for two major reasons. Firstly, the effectiveness with which religious extremists can exploit videosharing platforms to convey messages aimed at radicalising, recruiting, training and transferring technology for terrorist activities. Secondly, if do-it-yourself seekers with criminal intentions are allowed to feed on nefarious videos that border on security, the result can be devastating, since they could acquire simple technologies capable of mass destruction.

This calls for strategic monitoring and censoring beyond the usual ‘terms of use’ spelt out by such websites and the dependence of such websites on other users’ reports about some video postings. This is because if the sharing of nefarious do-it-yourself videos is permitted to thrive and begins to feed evil minds, the human will to cause or not to cause havoc will become the only line separating security and insecurity of the masses. On the global stage, dangerous entities might then not only be those possessing weapons of mass destruction, but also those with the ability to convince the masses to carry out an act of insecurity, or entities possessing and willing to share a technology capable of mass destruction across the world by means of an internet video. The occurrence of such a situation could then simply perpetuate and accentuate, on the world stage, the ongoing battle for hearts and minds in some parts of the world. It will also propel the human will to cause or not to cause insecurity at the centre-stage of global security contention.

Open video-sharing on the world wide web potentially provides a breeding ground for havoc, where nefarious do-it-yourself websites are concerned, says Andrews Atta-Asamoah

The internet is one of the important landmarks of globalisation. The far-reaching and enduring impact of the internet stems from the extent to which it has succeeded in breaking down centuriesold boundaries established by time and space. The removal of the boundaries has subsequently enhanced quality information sharing among people and across different sectors, thus pushing the world into what has become known as the global village. In this village, anybody (with access to the internet) can be anywhere (where the internet is) with little or no restriction. In recent times, one popular internetbased phenomenon, which is greatly impacting on communication, is usergenerated video-sharing. Since the launch of YouTube in 2005, the phenomenon has become the craze of the cyber world. In any given day, more video materials ranging from music, movie, comedy and TV clips, to homemade do-it-yourself videos, are uploaded to video-hosting websites than are aired on all major networks combined.

The ease with which users are able to watch, upload, or download videos hosted by the numerous video-hosting websites has enhanced the popularity and use of the technology among internet users to the extent that video-sharing is now not just a technology, but a phenomenon.

Within the few years of its existence, this phenomenon is rapidly tearing down boundaries, re-ordering social spaces and infl uencing identities, knowledge, attitudes and beliefs in unprecedented ways. Most importantly, video-sharing has become a way of communication, a phenomenon which can otherwise be referred to as ‘YouTubism’.

Within this phenomenon, there is a proliferation of do-it-yourself videos that is greatly impacting on the already existing global do-it-yourself culture, in which people seek to learn how to do things by themselves from online materials. According to a survey by the Pew Research Centre, a US-based research organisation, for example, about 55% of adult internet users in the US had by 2005 ever looked for online do-it-yourself information. By this pattern, the chasm between knowledge and ignorance, in recent times, is simply reduced to the human will as knowledge acquisition is now an issue of one’s readiness to know. Such an environment provides a platform for rapid development for emerging societies, since development is a product of know-how. However, human vulnerability becomes eminent since the phenomenon is an open tool for all, including entities such as the group behind the Dirty Kuffar, a controversial 2004 Jihad-style Islamist extremist rap video posted on the internet and intended for radicalisation.

Already the existence of nefarious do-it-yourself videos that border on bomb-making, gun-assembling, suicide, crime and religious extremism, and the ease with which they can be accessed and shared via the internet, calls for urgent attention for two major reasons. Firstly, the effectiveness with which religious extremists can exploit videosharing platforms to convey messages aimed at radicalising, recruiting, training and transferring technology for terrorist activities. Secondly, if do-it-yourself seekers with criminal intentions are allowed to feed on nefarious videos that border on security, the result can be devastating, since they could acquire simple technologies capable of mass destruction.

This calls for strategic monitoring and censoring beyond the usual ‘terms of use’ spelt out by such websites and the dependence of such websites on other users’ reports about some video postings. This is because if the sharing of nefarious do-it-yourself videos is permitted to thrive and begins to feed evil minds, the human will to cause or not to cause havoc will become the only line separating security and insecurity of the masses. On the global stage, dangerous entities might then not only be those possessing weapons of mass destruction, but also those with the ability to convince the masses to carry out an act of insecurity, or entities possessing and willing to share a technology capable of mass destruction across the world by means of an internet video. The occurrence of such a situation could then simply perpetuate and accentuate, on the world stage, the ongoing battle for hearts and minds in some parts of the world. It will also propel the human will to cause or not to cause insecurity at the centre-stage of global security contention.

Editor, Liesl Louw-Vaudran asks whether powersharing deals and collusion amongst political elites have left many Africans feel let down by their leaders.

Editor, Liesl Louw-Vaudran asks whether powersharing deals and collusion amongst political elites have left many Africans feel let down by their leaders.