Emerging Voices: Teeth but No Bite–Can SADC Curb Election Fraud in Zimbabwe?

[Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa.  He is also a contributing columnist for US News and World Report where he writes about comparative constitutional law, international human rights and global legal affairs.]

Recently, Botswana called on the South African Development Community (SADC) to open an investigation into voting irregularities in the recent Presidential election in Zimbabwe where the incumbent Robert Mugabe won with 61-percent of the total votes amid voluminous allegations of ballot fraud.  Two members of the Zimbabwe Electoral Commission, concerned with voting irregularities, have already resigned.  And Zimbabwe’s Movement for Democratic Change (MDC), the major opposition party, is currently gearing up to legally challenge the election results.

Botswana’s request for SADC to intervene is an intriguing one.  One the one hand, Botswana stressed that any initial inquiry should be limited to fact-finding (i.e. an independent audit) out of fear that launching a more invasive investigation into the alleged voting irregularities would hamper relations between the two countries.  On the other hand, SADC has been gaining traction in the region as an sharp, effective check against state-sanctioned human rights abuses as well as a mechanism to uphold the rule of law.

A bit of background about the SADC Treaty – which provides a binding framework to adjudicate disputes amongst Member States – is useful to understand how the organization could be deployed to ferret out, remedy and, in the future, prevent instances of election fraud.

SADC was constituted under a Treaty signed in Windhoek in August 1992 by a number of Southern African states, including Zimbabwe and Botswana.  The treaty was ratified by the signatory states and came into force in 1993.  The Preamble of the Treaty states that its Members are committed, inter alia, to ensuring “through common action, the progress and well-being of the people of Southern Africa.”  Article 4 of the Treaty, in turn, requires SADC and its Members to act, broadly, in accordance with the principle of “human rights, democracy and the rule of law”.  To give effect to that principle, SADC can create “appropriate institutions and mechanisms,” pursuant to Article 5(2)(c).  This provision, in conjunction with Article 4 of the Treaty, would presumably provide the legal basis for Botswana’s proposed commission to investigate Zimbabwe’s presidential election results.

Article 15(1) grants the Tribunal jurisdiction over disputes between Member States and natural or legal persons.  (At the moment, however, as of August 2012 the Tribunal’s jurisdiction has been “confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.”  Negotiations are ongoing to reinstate the Tribunal’s full jurisdictional capacity to again include natural and legal persons.  A fuller discussion of this polemical issue is perhaps best left to a future post).

Finally, Article 32(2) requires Member States to take all measures necessary to ensure execution of the decisions of the Tribunal.

The full potential of these provisions was on display earlier this year, when the Constitutional Court of South Africa developed its common law to empower South African domestic courts to register, recognize and enforce decisions of the SADC tribunal – thereby giving Article 32(2) some bite. The matter concerned the expropriation of farmers’ land by the government of Zimbabwe pursuant to its land-reform policy.  The policy, which came into force in 2005 through a constitutional amendment (section 16B), provided for compulsory acquisition of identified agricultural land without compensation, save for improvements done on the land as well as ousted the jurisdiction of Zimbabwean courts to challenge any such confiscations.  The farmers approached the Southern African Development Community Tribunal for relief, which decided in their favor.  When Zimbabwe failed to comply with the Tribunal’s decision, the farmers approached a trial court in South Africa for relief.

But mobilizing enough regional support – outside Botswana – for a commission of inquiry into Mugabe’s election, let alone a hearing before the Tribunal (assuming it is up and running at full force again), is shaping up to be a Sisyphean feat.  Many of the region’s leaders have already issued statements declaring the election free and fair.  Other SADC Members are hesitant to push the regime too far. Still, Botswana’s bold move is a harbinger of the more central role SADC may play in this, and future, regional disputes.