In terms of criminal trials, any new political dispensation is likely to face a combination of contradictory pressures; on the one hand, addressing the desires and expectations of those who have suffered unspeakable acts of torture and abuse and who have had their lives torn apart by a repressive and unaccountable government, is a crucial element of democratisation and rebuilding the social contract between State and citizen. “What better way can there exist of demonstrating that radically different legal and political norms are in effect by showing that the (leadership) of the old world are no longer immune to prosecution for their offences, and that they will be held accountable to the same standards of behaviour as any other citizens.”19 On the other hand, retributive justice options are faced with a number of practical and political obstacles. Legal standards must be resuscitated and maintained, and this may not be possible if the courts are not equipped to handle such matters. In Zimbabwe, the independence of the police and courts has also been seriously brought into question.20 Although elements of integrity remain within the criminal justice system, political manipulation and systemic malpractice has eroded any hopes of their providing a countervailing influence to the ongoing subversion of the legal system and policing agencies. Most importantly, in their current condition, the criminal justice system lacks fundamental credibility. It is important for those advocating criminal trials for perpetrators of human rights violations to keep in mind that conducting trials will require using the existing legal infrastructure which has been increasingly compromised in recent years. It is therefore essential that a comprehensive evaluation of the criminal justice system and key actors is conducted, to determine if and where existing capacities can be utilised, and where lustration processes might or should be employed. Much will also depend on the extent to which the new political authorities have consolidated their control of governance mechanisms, in particular the forces of law and order. If attempts are made to secure some measure of accountability for past crimes, it is likely that the security forces and policing agencies will face major scrutiny. Most transitions have not been accompanied by wholesale transformation in these agencies, and many members of the ancien régime are often incorporated into the new structures. Security force members who should be under investigation often remain in a position to influence whether this is actually done or not. Consequently, the position of the security forces in terms of supporting or opposing criminal trials of security force personnel in relation to legal violations must be ascertained. Any moves to pursue a retributive justice agenda will require a constitutional commitment that many security force chiefs would be unwilling to make. It is therefore necessary to assess their ability and predilection to undermine and disrupt such processes. International legal action Several ‘universal jurisdiction’ initiatives have been initiated to seek legal relief using courts outside the country. In late 2001, a New York court ordered ZANU(PF) to pay US$100 million compensation to victims of the violence that engulfed Zimbabwe’s 2000 parliamentary elections.21 Although it is unlikely that the money will be paid, lawyers for the victims have initiated efforts to begin freezing and appropriating ZANU(PF) assets in Zimbabwe and world-wide. The court’s judgment also provides additional symbolic value to allegations of human rights violations in the country. 19 Transitional Justice and the Rule of Law in New Democracies, edited by A. James McAdams, University of Notre Dame, Indiana, 2001, p. x. 20 See Attacks on Justice 2002 & 2003: A Global Report on the Independence of Judges and Lawyers, by the Centre for the Independence of Judges and Lawyers of the International Commission of Jurists. See also report by the Inter-Parliamentary Union’s Committee on the Human Rights of Parliamentarians, Report of its Mission to Zimbabwe, 28 March – 2 April 2004, October 2004. 21 ‘New York court tells Mugabe to pay up’, Legalbrief Today, 2 Nov. 2001. 12