Zimbabwe's Lancaster House Accord needs amendment

I am writing this article in part to try and offer a viable solution for Zimbabwean democracy, and in part for regional peace in Southern Africa.  The agreement which ushered in a democratic Zimbabwe should be examined for possible solutions in the current crisis in Zimbabwe. To say, Mugabe is the root and cause of all of Zimbabwe's problems is to be one sided in analysis.

Zimbabwe needs an Amendment to the Lancaster House Accord (LHA) signed in 1979 with the United Kingdom to address what I term as core problems with democracy in Zimbabwe - the land redistribution. The issue was land tenure in 1979, now it has shifted to land compensation.

Such an Amendment to LHA will allow for heavily monitored elections and allow for lines of credit to be opened up for the well being of Zimbabweans. If present Zimbabwean government can agree with opposition to revisit the constitutional framework that birthed Zimbabwe, perhaps that country might address some overhanging issues and promises can be made for the 2018 election. These are not empty promises but must be cemented in fundamental international law obligation.

Constitutions and Treaties are amended all the time, and Zimbabwe should be given the same opportunity. The issue that remains is final payment of the dispossessed white farmers, the current UK government cannot refuse to dishonor its 1979 agreement on the basis of a change in internal party politics of the UK. A government treaty with another nation is operative outside of the sitting parliament, otherwise the whole integrity and contractual nature - as good as my word - basis of the system will collapse.

The Treaties between Native Americans and the US government are an exception and not a norm because they occur between a Nation (tribe), and a country, a defeated Nation for that matter! In this case, Zimbabwe and the United Kingdom are two countries who agreed on certain bilateral obligations.

Perhaps, the United Kingdom could pass its obligations to pay farmers in Zimbabwe under the Lancaster House Accord to the late Cecil John Rhodes' Estate, who had a hefty hand in Rhodesia. The very symbol of Zimbabwe's Romanesque political heritage - the stone Chapungu, or eagle was stolen and kept in Rhodes' house, Groote Schuur, in Cape Town, until the fall of Apartheid in 1994. Under Rhodes, Rhodesia was conceived and became a settler colony - there is a history of crimes against humanity in Rhode's settler colony, and war crimes by Mr. Rhodes himself, that do not need to be documented here in the interest of civil standards of taste and civility. Mr. Mugabe's crimes pale in the face of Rhodes' documented modus operandi.

Zimbabweans should not pick up the bill for Rhodesia. Land is still largely a Rhodesian created problem and not solely a Zimbabwean solution; there is a basis to address this within the LHA which transferred power to Zimbabwe. And Rhodesia was an extension of the United Kingdom, as history tells us. It was the then British Monarch represented by Prince Charles that handed power to Mugabe and not the Rhodesian government; a rare feat for an African country, to achieve such  independence from both the settler and the settler's Crown by guerrilla warfare. Ian Smith called it - The Great Betrayal.

This principle of justice against the Rhodes Estate is known as disgorgement of unjust enrichment, and results in a constructive Trust for any third party - here, the white farmers. It is the Rhodes Esate which has the money to pay white farmers, not the new Zimbabwean government post-Mugabe. A properly drafted amendment to the '79 Lancaster House Accord should solemnize this in writing! Zimbabwe's opposition should be strategic enough, not to inherit a debit ridden and litigious Zimbabwe, they should insist that Mugabe make promises in writing as an amendment in the Lancaster House Accord; and also agree on election reform for 2018 monitored by non-regional groups - The Carter Foundation, United Nations, The Elders etc.

Interesting enough, Jimmy Carter as the then US President had broken the grid lock between Zimbabwean guerrillas on one side, and the Rhodesian government on one side, at the Lancaster House talks in London, on the issue of land compensation by suggesting an international fund. Perhaps, Mr. Carter can play a similar role, 37 years later, as a mediator between Zimbabwe and the United Kingdom, a a prelude to elections?

This is the only avenue given that the Constitution of Zimbabwe is a Zanu PF instrument of power, the opposition should rely on international treaties to leverage their campaign for a free and fair election in 2018. An election in which a new government will be forced to pay white farmers is victory for Zanu PF. To inherit a bill from Zanu PF would be a worthless victory at the ballot box for any Zimbabwean political party, it could lead to a nostalgic return of Zanu PF styled politics  in the follow up election; subsequently this back and forth, between die-hards and progressives will ruin Zimbabwe in the long run.

In the alternative, Zimbabwe should file litigation against the United Kingdom in the International Court of Justice (ICJ) in the Hague for breach of the Lancaster Accord which will be explored in the next article ( Zimbabwe v. United Kingdom, a Civil lawsuit). I will examine this alternative in my next article..

There is a desire to write about Zimbabwe in an isolated era approach, the Mugabe rule syndrome. Before there was Mugabe, - Zimbabwe was Rhodesia, and Rhodesia's history is equally important in understanding what's going on there presently.

Several things are clear about present day Zimbabwe and these are:

1. Regional countries will not intervene because to them Mugabe is a hero.

2. The opposition shutting down Zimbabwe is not generating any international sympathy, unlike the fight to end Apartheid, int only ruins Zimbabwe piecemeal. The victims are Africans after all is the unspoken discourse.

3. Look what happened in Rwanda, the international community never intervened until 800,000 Tutsi were killed. The same in 90s Somaila, only when 2 million Somalis were starving did the committee pay attention.

Zimbabwe's situation is not helped by the fact that, like Pontius Pilate, South Africa has washed its hands clean of Zimbabwe!

It is an unfortunate mistake to assume that by burning Zimbabwe, the international community will intervene.  The international community only intervenes when there are invited, there is a humanitarian problem and for peacekeeping. They do not function as an elaborate fire brigade.  In addition, the truth is that if, God forbid, Zimbabwe burns the nay sayers will escalate their racist voices, I can hear them pipping through even as I write this - "they had a good country and the native ruined it." This is all Zimbabwe will get, no intervention, just a slanderous ridicule of black rule. Mugabe is an example to racists of what happens under black rule, as if white rule is inherently benevolent. When Ian Smith made the Time Magazine cover of November 5, 1965 is was not because life for black people was the best for Africans in Africa - it was because of the shocking racist mentality that the magazine was titled - "Rhodesia's Ian Smith." Ian Smith's full blown racist war against majority rule created a more astute and determined Mugabe.

I do not support the idea that Mugabe is a representative of every African, as much as white people have argued that racists do not reflect tall of them, thus democracy in Zimbabwe should not be done in such a way as to feed the racists with much fodder for their theories on blackness, by ruining Zimbabwe the whole theory of black government destruction is played up.

Given this backdrop the only solution for Zimbabwe is election politics, with the demand of a non-regional monitoring force.  Protest after protest will only lead to escalated tensions and bitterness, and ultimately the use of the army.

That said, in the interest of peace in Zimbabwe and the region:

I would like to see Zimbabwe grow from this process, and not for Mugabe to become a scapegoat for all its problems. Lets encourage democracy in Zimbabwe in an open and constitutional manner, not an anti-Mugabe manner. If the man won the 2013 election, then the protests should be channeled towards democratic election education of the Zimbabwean populace and a culture of election politics ( debates, cucauses etc); not protests, strikes and subversion to shut down Zimbabwe.

Why is it that when a Western country is in trouble the international community does not encourage protests, social anxiety and civil unrest?

I would like to see the former colonizer United Kingdom play a much more robust and intelligent role in Zimbabwe. For one, they should offer viable solutions to their former colony outside of Mugabe this, Mugabe that, and no better place is this than in an amendment to the Lancaster Accord of 1979.

If Mugabe can make a promise that 2018 will be a free and fair election, Zimbabwe should be given some credit lines and Humanitarian Aid for the survival of Zimbabweans. The promises of the United Kingdom to fund the land redistribution in 1979 should be guaranteed for a new Zimbabwean government post-Mugabe, based on the guidelines of the first Lancaster Accord. The New Zimbabwean government after Mugabe should insist on a second Lancaster Accord that is based on the promises of 1979 not merely election reform. The discussion that Mugabe is not good, is no longer a relevant one - what is relevant are concrete constitutional safeguards for a new Zimbabwe by all stakeholders.

It is my humble opinion that democracy in Zimbabwe needs external assistance outside of the regime change persuasion. On this point Mugabe is right. If the United States during the revolutionary war was assisted by France, in particular General Lafayette, why in this day and age can't other countries assist Zimbabwe achieve for itself a maturity in its democratic project without a regime change protest?

It is cheap politics that shows a lack of empathy for someone eating three meals a day in the United Kingdom, to say sanctions should continue in Zimbabwe for the sole political purpose of dislodging Mugabe, and for the revenge of losing a farm. Beat Mugabe fair and square at the ballot, the same way that Mugabe beat Ian Smith fair and square at the ballot in 1980. It was King Solomon who said the true mother does not split the child in half. A true citizen cannot continue in a manner proven to destroy their own country. Those who want and aspire for political power in Zimbabwe, this includes Pastor Mawarire, should be honest enough to campaign as political parties in an honest and open Zimbabwe. To humiliate Mugabe at the UN is to humiliate Zimbabweans-at-large, since Mugabe is the known international embodiment, one of the founding fathers, of that State conception- Zimbabwe.

I won't support an African nation denigrating one of the most potent symbols of Africa's independence movements at the United Nations, - because that country's democratic project is yet to mature. But I will support, legal ways , including a peacekeeping force to help Zimbabweans and encourage a fair playing field in 2018. It is now completely necessary for a peace keeping force to be witness to the elections of 2018 in pursuit of  any LHA amendments and political election arrangements based on agreed reform.

The participation of white Zimbabweans in Zimbabwean politics is also another issue on its own. Most of them discovered their countrymen after losing their farms, how is that National Interest? Zimbabwean whites should understand the basic tenets of the liberation war that occurred from 1964-1979, the Rhodesian Bush war; Ian Smith's racism and the state of black people in Zimbabwe in general, to understand that if it was not Mugabe, any black Zimbabwean would have done the same thing, including Tsvangirai. This is the history of Zimbabwe's land question under Rhodesia.

In hindsight, Mr. Mugabe won his right to govern by the ballot. Thus, the bullet should not determine his exit nor should he be protested out of office. If he stole an election in 2013, then Thabo Mbeki, the then South African president must be shown the new evidence and asked whether he stands by his decision of 2013 that elections were "not free and fair, but credible." If Mbeki still stands by his words, then as I said earlier, the only logical and peaceful solution is the election of 2018.

It is a beautiful thing to see a country change government by the ballot and Zimbabwe should not be deprived of such a gift. If South Africa did it, so can Zimbabwe. I am not of the persuasion of encouraging a culture of protest politics and rebels in Africa. We have heard a lot about "The Rule of Law," the Lancaster House Accord is also part of the rule of law and should be amended to reflect the behavior of the United Kingdom.

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Ken Sibanda is an International Jurist and, American Constitutional attorney born in Qunu, South Africa. Known affectionately as "Tecumseh," he was written extensively for numerous world publications on democracy and the rule of law.  He is the author of "International Constitutional Law: Peace Accords."