The AU has the rules and the precedent. Will it act, asks Faten Aggad* As African heads of state and government prepare to meet next Monday for the 11th African Union (AU) Summit in Sharm El-Sheikh, the situation in Zimbabwe continues to spiral downwards. The chairman of the AU Commission, Jean Ping, said, "this development and the increasing acts of violence in the run-up to the second round of the presidential election are a matter of grave concern to the AU Commission." He also indicated that the AU Commission has entered into consultations with the current chairman of the union, Tanzanian President Jakaya Kikwete, and leaders of South African Development Community (SADC) countries in order to find a solution to the Zimbabwean crisis. The question is, what can the AU really do? The two legal opinions that were commissioned by the Southern African Litigation Centre provide a rationale for a possible AU intervention in Zimbabwe under the 2000 Declaration on the Framework for an AU Response to Unconstitutional Changes of Government. Based on an analysis of the Zimbabwean constitution and the Electoral Act of 2004, the legal opinions conclude that Tsvangirai should legally be recognised as the head of state of Zimbabwe. The first legal opinion, which analysed the legality of the postponement of the run-off election, concluded that "the power of the Zimbabwean Electoral Commission to amend or ignore the constitutionally required 21 days period of the electoral law by abrogating or amending the provisions regarding the run-off period is constitutionally objectionable." In other words, there was a breach of Section 110 of the Second Schedule of the Electoral Act of the Republic of Zimbabwe, which stipulates that run-off elections should be held within a 21-day period. The second legal opinion highlights the course to be taken, according to the Electoral Act, in the event of the failure to hold elections within the prescribed 21 days. The opinion notes that, "where no second election is held and there were two or more candidates for president, and no candidate received a majority of the total number of valid votes cast, item 3.1.b provides that the candidate with the greatest number of votes [in the first round of elections], and not the majority of the total number of votes, shall be duly elected president." The results of the first round of elections, held on 29 March 2008, put Morgan Tsvangirai at the head of the race with 47.9 per cent of votes against 43.2 per cent for . On the basis of the legal opinion, and in compliance with the Zimbabwean Electoral Act, the head of the MDC should have been instated as president. With reference to the two legal opinions, and given the fact that the results of the first round of elections were accepted by African institutions, a case can be made for an AU intervention within the context of the above- mentioned Framework for an AU Response to Unconstitutional Changes of Government -- which Zimbabwe endorsed. The declaration defines unconstitutional changes, inter alia, as "the refusal by an incumbent government to relinquish power to the winning party after free, fair and regular elections." In other words, there is room for an AU intervention in Zimbabwe, as Mugabe does not want to relinquish power despite existing national laws. The course of action to be taken by the AU in the event of unconstitutional changes is clearly described in the declaration. As per the AU action against Togo in 2005, and in compliance with the declaration, the following actions can be considered: The chairman of the AU, Tanzanian President Kikwete, should openly condemn the unconstitutional change and clearly indicate to the perpetrator that the AU will not tolerate the takeover. At the request of the chairman, the secretary-general or any member state, the Central Organ of the Mechanism for Conflict Prevention, Management and Resolution should convene an emergency meeting to discuss the situation and issue a statement. Following the initial condemnation by the Central Organ, a period of six months is given to the perpetrator of unconstitutional change to withdraw and hold new elections, although, given national electoral laws, it can be argued that, in the case of Zimbabwe, the winner of the first round should be declared president. During this period, the government concerned is suspended from participating in the policy organs of the AU, including the Council of Ministers and the meeting of heads of state and government. In the event of failure to comply within the six-month period, "a range of limited and targeted sanctions against the regime" will be imposed. These may include travel bans and trade restrictions. Such action proved effective in forcing Togo's Gnassingbe and the army to retreat from their initial actions in May 2005. The precedent in Togo has shown that the AU is able to react, provided there is political will. In this respect, the role of SADC leaders is paramount in supporting an AU intervention. The AU action in Togo could not have been possible without the support of Economic Community of West African States (ECOWAS) leaders. African instruments do exist. Now is the time to use them in Zimbabwe. But will our leaders, who are meeting in Sharm El-Sheikh, have enough political will to act? * The writer is a governance researcher at the South African Institute of International Affairs.
