At SADC Summits held in Luanda (August 2011), Livingstone (March 2011) and Sandton (June 2011), attempts were made by SADC States to find a way out of the current deadlock, but the Summits resulted in similar conclusions about SADC being “fatigued by the Zimbabwean issue”3. It was established in particular by SADC States that three basic categories of obstacles were hindering the full implementation of the GPA4: a) the outstanding issues upon which there had been an agreement and a signature by the mediators; b) the more difficult outstanding issues, upon which an agreement may be possible with political will such as the appointment of provincial governors with the involvement of the Prime Minister and; c) the “outstanding thorny and toxic issues” on which any agreement appears impossible before new elections are held such as the security sector reform, the removal of military personal from running elections in Zimbabwe, repeal of repressive legislation such as the Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA). Even for issues falling in the first category, and notwithstanding the signed agreements, their implementation was at best largely insufficient. Initial but limited progress had often been reported to the SADC Heads of State and during Government Summits. However, the parties subsequently took backwards steps. This lack of progress can be explained by the fact that under the current government leadership mode, no room is left for reforms such as security sector reform and repeal of repressive laws like POSA that may alter the political playground before new elections are held. Given the role of facilitator devoted to the SADC in the reform agenda, it is clear that the following pre-conditions provided for in the GPA must be fulfilled before an election can be organised: – a referendum on a new constitution must have been conducted; – a new constitution must be adopted and implemented; – the election must be endorsed by SADC, as the guarantor of the GPA; – an independent and impartial body responsible for the running of elections must also be in place. The fulfilment of such pre-conditions depends largely on SADC’s leverage on the party of President Mugabe, as ZANU-PF is for the time being unlikely to accept that security agents be prevented from running and conducting the elections, as was the case during the June 2008 elections. Another key institution that must be set up is the Human Rights Commission so as to create a structure and framework that deals with serious violations of human rights as often happens during elections. After a long political stand-off, on October 12, the government finally gazetted the enabling legislation - the Zimbabwe Human Rights Commission Act (Chapter 10:30). Most of the above-mentioned issues have not yet been resolved. The Prime Minister, a key figure in the political equation in Zimbabwe, has never fully and openly supported the call for elections since the pre-requisites including those mentioned above, have not yet been met. The mediators for the main political parties (ZANU-PF, MDC-T and MDC-M) – i.e. people representing their party in the mediation process - have therefore reached a point where they cannot not take the mediation process on outstanding issues any further. 3. Such elements were reported to the mission delegates by an Ambassador to Zimbabwe from a SADC member State. 4. Interview with Ambassador Mavimbela of South Africa to Zimbabwe, December 2011. 8 The Observatory ZIMBABWE: Ongoing risks for human rights defenders in the context of political deadlock and pre-electoral period Any movement on outstanding issues will now only be possible with the active involvement of the political party principals represented in the GNU, i.e. President Mugabe, Prime Minister Tsvangirai, Deputy Prime Minister Mutambara and professor Welshman Ncube, the leader of the smaller MDC formation. However, these figures will not move on these issues unless there is pressure from the SADC facilitator, South African President Jacob Zuma. Delays by SADC facilitator to intervene in order to resolve the outstanding issues are therefore prejudicial to any meaningful reform agenda. This might have already undermined the possibility for Zimbabwe to go through a peaceful, credible, free and fair election. This situation may in turn create a real danger that another GNU may emerge from the next elections and that the environment in which human rights defenders operate is unlikely to improve in the near future. Some of the parties to the GPA are aware that negotiations and compromises are necessary to establish a peaceful atmosphere, as well as legal and political institutions and framework. However other parties in the GPA are convinced that they could do without the laborious and taxing exercise of negotiation and compromise and rather call for the elections. Some of the interlocutors felt that the reforms that have taken place are merely cosmetic and fail to address the key issues. In the words of one civil society organisation, the changes are merely “lipstick” reforms, devoid of any real and meaningful change in the poisoned political climate in the country. They are unable to ensure full, free and fair participation by all Zimbabweans in the governance of their country. During the interviews, a number of interlocutors expressed their fears that although the MDC factions were the main victims of the violence and intimidation by ZANU-PF, war veterans and the youth militia, and that, in many cases, the opposition did not react, a time may come when they would either begin to take act or take preventive steps. This would raise violence to unparalleled levels and should therefore be avoided. The only area to witness some progress seemed to be the drafting of the new Constitution. However, ZANU-PF publicly voiced its disapproval. The mission delegates closely considered the draft Constitution. They concluded that the section on the bill of rights included interesting language as it was comprehensive and covered social, cultural and economic rights as well as civil and political rights. Moreover, its section on procedural rights was excellent and comprehensive. However, the right to be examined by a physician and a lawyer, which is a crucial guarantee for the prevention of torture, is limited as individuals can only request it “at their own expense”. This practically could result in excluding the poor from the right to enjoy such protection. Regarding the protection of human rights defenders the mission concluded that the draft constitution could be strengthened, notably by: defining the principles of peaceful co-existence, non-violence and tolerance as national values; banning torture and making it a criminal offence; banning enforced disappearances and making it a criminal offence; considering the offences set forth in in the Rome Statute establishing the International Criminal Court (ICC) as criminal offences, in order to contribute to the fight against impunity; and providing for the right to a fair trial and the independence of the judiciary. 3. Reactions of fear to recent calls for elections, and illustrations of past election-related violence The discussions with the interlocutors clearly revealed two diverging views regarding ZANUPF’s unilateral call for elections. On the one hand, according to newspaper articles, those loyal to the ZANU-PF show support for the call. On the other hand, for the majority of members from different organisations met during the mission, including Church and religious leaders, CSOs and other organisations and individuals active in the protection and promotion of human rights, the call has generated a lot of anxiety and uncertainty. The Observatory ZIMBABWE: Ongoing risks for human rights defenders in the context of political deadlock and pre-electoral period 9