Deputy Minister on Zimbabwe Constitutional Referendum, Human Rights Situation in Western Sahara

Meeting report

Chairpersons’ opening remarks
The Chairperson said the Zimbabwe referendum signified the culmination of the work which was put in by all parties involved including the South African Development Community (SADC). He conveyed gratitude to the facilitation team. The referendum was considered to be a huge victory when looking at from where the country of Zimbabwe had come.

Deputy Minister briefing on the Zimbabwe Constitutional Referendum
Mr Ebrahim Ebrahim, Deputy Minister of International Relations and Cooperation stated that Zimbabwe had recently come out of a very successful referendum which was in line with Article 6 of the Global Political Agreement (GPA) and Article 3 and 4 of the Referendum Act and Electoral Act. The referendum was held on 16 March 2013. The holding of the Constitutional Referendum was one of the three milestones in the implementation of the GPA, namely formation of the Inclusive Government, the Constitutional Referendum and harmonised elections. The holding of the referendum paved the way for the holding of harmonised elections which were set to take place between July and October 2013. The actual date depended on funding. One of the challenges facing Zimbabwe was that of a lack of finance to conduct successful elections; however it was hoped that funding would be available in due course.

South Africa was part of the SADC Election Observer Mission (SEOM) which was deployed by the Department of International Relations and Cooperation (DIRCO) to Zimbabwe. The SADC Mission deployed 78 observers who covered all nine provinces. According to SADC, polling was conducted procedurally and procedures for secure votes were adhered to. Both observers from the African Union (AU) and SADC reported that the elections were free and fair. In terms of the regulations, the results of the referendum were announced on the 19 March 2013, and over 90% of the voters voted ‘yes’ in the referendum. All three parties had urged their members to support the referendum. Also there were other small non-governmental organisations that had campaigned for people to support the referendum and vote ‘yes’. The next step was that the referendum result would go to parliament and the draft constitution would be introduced as the Constitution Bill. After the Bill was endorsed by Parliament, it would be sent to the President for his assent were it would become law and be solidified during the final elections. The people of Zimbabwe as well as the Zimbabwe Electoral Commission need to be congratulated for conducting a peaceful and credible Referendum in a very short period of time. It was hoped that the Referendum would lead to a more peaceful election. In keeping with the SADC mandate, the Facilitator, President Jacob Zuma and his facilitation team will continue to assist the people of Zimbabwe in preparing for the holding of credible, peaceful and harmonised elections. SADC was congratulated for keeping the issue of Zimbabwe and its Referendum within the African region, as it required a lot of work and dealing with international pressure.

The South African facilitation team assisted heavily in keeping the matter within the region. However there were some challenges which emanated from the history of Zimbabwe such as some violence and intimidation. One instance of intimidation was the police invasion in the Movement for Democratic Change (MDC) offices where a woman was arrested. DIRCO had suggested that three months before the upcoming national elections in Zimbabwe, observers be deployed into the region in an attempt to reduce the temptation of violence and intimidation. SADC was expected to send about 500 observers to Zimbabwe and South Africa was expected to send about 80. The AU would then be asked to send observers into the region well in advance. The facilitation team under President Zuma should have a semi-presence in the region from now until the elections, so that they interact with all the relevant stakeholders. However the European Union (EU) sanctions in Zimbabwe had proved to be problematic with regard to the region progressing successfully. With the GPA in place, the sanctions should have been lifted. ZANU PF was using the issue of sanctions as an advantage over the other political parties who did not have enough information on what the progress was on the matter. The implementation of a proper registration roll of voters and voter education also needed to be attended to.

Discussion
Mr I Davidson (DA) asked about the percentage of the poll seeing that there was a worry about voter apathy. He agreed with Mr Ebrahim that since the Referendum was supported by all political parties, violence and intimidation were therefore expected to be at a minimum. The deployment of observers three months before the upcoming elections was supported as a good initiative, however he asked about the mechanisms used by observers to deal with instances of violence and intimidation. He questioned the effectiveness of the deployments in curbing violence and intimidation. To what extent did the facilitation team look at the bias of the media in giving the opposition preference in airing its views?

Mr B Skhosana (IFP) asked what was meant by ‘harmonised elections’ and whether it gave a glimpse into aspects of the constitution, keeping in mind the harmonic constitution. A question was asked about the ‘home grown situation in Zimbabwe’ were the African continent prevented international interference in the country. He wondered what part sanctions had played in the approval of the draft constitution in the Referendum.

Ms C September (ANC) gave a vote of appreciation for the path that South Africa had taken in dealing with Zimbabwe. South Africa had been under enormous pressure from the international community to take a more hard-line approach in dealing with Zimbabwe. A lot of investment went into organisations such as the AU and SADC and in many cases people had little faith in them before the Referendum in Zimbabwe. The will and the tenacity of the people of Zimbabwe needed to be commended. Zimbabwean people had tremendous faith and hope in the people of South Africa, and that should not be taken for granted. However she identified the challenges with the current situation on the death penalty and same-sex marriage which were not dealt with. Also more work needed to be done with regard to voter education; there was a need to educate people about their constitution. Most Zimbabwean voters did not know about the actual content of the constitution. The bias of the police force was noted as weighing down the democratic progress of Zimbabwe, the economic situation in the country also needed to be attended to.

Mr E Sulliman (ANC) asked to be provided with a copy of the Constitution, and whether Zimbabwean nationals in South Africa had participated in the Referendum and whether they would be allowed to participate in the upcoming national elections.

Mr S Ngonyama (COPE) stated that the work of stakeholders and the participation of people in the Joint Committee of Stakeholders were highly commendable. Another issue which had to be taken into consideration in order for the country to move towards harmonised elections was the seriousness of politicians talking about peace in Zimbabwe. The issue of security forces such as the police was very important. The police needed to be 100% impartial, especially in a volatile situation such as that in Zimbabwe. He agreed with Mr Ebrahim that enough time needed to be given to the situation in Zimbabwe; people in the country were totally committed to seeing change in their country. Zimbabweans therefore needed to be educated about the upcoming elections and the constitution. Sanctions needed to be dealt with as a matter of urgency. The sanctions were a catalyst which fuelled economic desperation which lead to anger and unnecessary violence during elections.

Ms C Dudley (ACDP) asked whether there would be financial implications for South Africa for the funding shortages for the upcoming elections in Zimbabwe.

Mr Ebrahim responded that Zimbabwe had not yet made any request for funding from South Africa, however DIRCO would be more than willing to assist the people of Zimbabwe should the need arise. As for sanctions, the EU had decided to lift some sanctions. This therefore levelled the playing field seeing that some parties used the sanctions to their advantage. He acknowledged that there were still some concerns with the constitution; however it was important to note that it was a Zimbabwean constitution. One matter which needed to be dealt with in the constitution was the unlimited term of the President. Stakeholders had raised the availability of resources to the electoral commission and the matter of a polarised media. The observer mission had dealt with some of these issues.

Mr Xolisa Makaya, Chief Director, Southern Africa at DIRCO, responded that according to the results of the Referendum the percentage for the polls was that over 90% of people voted ‘yes’; 3 079 699 to be exact and about 179 489 people voted ‘no’ and about 56 000 votes were spoiled. There were about 5.5million registered Zimbabwean voters. Apathy had been raised and there had been a risk that people would not feel the need to cast their votes; however this was not the case.

Mr Makaya responded about the phrase ‘harmonised elections’ and stated that it was a technical phrase which basically meant that there would be three elections; 1 for the President, 1 for the legislature and 1 for local governance. This meant that all the elections would be held on one day, and this was something which had not been practised in the country before. The facilitation team had a road map in facilitating harmony in Zimbabwe and in implementing the GPA. One matter under discussion was that of the police. Copies of the Zimbabwe constitution were available for Members who requested them. On whether Zimbabwean nationals who resided outside the country would be able to participate in the elections, the constitution of Zimbabwe did not allow this. People who wanted to participate in the elections had to go back to the country. On sanctions, he reiterated that DIRCO had met with the EU and the EU agreed that certain sanctions would be reviewed and lifted. However, some members on the list, such as President Mugabe, would not be removed from the list. With regard to the effectiveness of deployed observers, he argued that the presence of observers served as a deterrent to mischief and misbehaviour.

Mr Ebrahim added that DIRCO was looking forward to a successful election and that SADC had a responsibility to ensure that elections were fair. This would therefore reflect the will of the Zimbabwean people in moving towards democracy.

The Chairperson stated that the Zimbabwean Electoral Commission needed to be congratulated for running a successful election. The role played by South African government in its collaboration with SADC was commendable. However the isolated incidences of violence and intimidation were still a concern, even though they had no direct impact on the outcomes of the Referendum. Sanctions were highlighted to be a hindrance to the implementation of the GPA as they struck on the core of Zimbabwean leadership.

Human Rights situation in Western Sahara
Mr Ebrahim gave a brief background on the history of Western Sahara. Western Sahara was occupied by the Kingdom of Morocco in 1976. However, neither the United Nations nor the African Union recognises Morocco’s claims of sovereignty over the Western Sahara. The Moroccan claim, that the Western Sahara (in the pre-colonial period) was part of the historic Moroccan Kingdom was rejected by the International Court of Justice (ICJ) in its Advisory Opinion of 16 October 1975. The legal status of Western Sahara in the 4^th Committee of United Nations General Assembly (UNGA) was clear: it was a non-self-governing territory awaiting decolonisation through a referendum on self-determination.

The situation in the Western Sahara occupied territory continued to deteriorate due to the delay in resolving the dispute. The human rights violations were characterised by the disappearance of Saharawi human rights activists for example. The violation of the rights to freedom of expression, freedom of assembly and freedom of association of Saharawis continued to be suppressed in the Western Sahara occupied territory. Also the media blackout imposed by Morocco was a huge concern. The absence of a human rights component in the mandate of the United Nations Mission for the Referendum in Western Sahara (MINURSO) had exacerbated the dire human rights situation in the occupied territory. The Robert F. Kennedy Centre had visited the occupied territory and the Saharawi refugee camps in Tindouf, Algeria in 2012. Their findings were:
▪ In the Western Sahara occupied territories the delegation experienced firsthand the brutalities committed by Moroccan security forces against the Saharawi people;
▪ The delegation was subjected to intimidation and harassment by the Moroccan security forces which obstructed their ability to work;
▪ There was a pattern of violence against the Saharawi people who openly advocated the independence of Western Sahara; and
▪ The Saharawi human rights defenders were prohibited from registering as civil society organizations.

Mr Ebrahim continued that UN Secretary General Mr Ban Ki-Moon presented the Annual Report on the situation in Western Sahara to the Security Council in April 2012 and argued that there were serious concerns about the human rights violations in the Western Sahara by Moroccan authorities. One of these was that many Saharawi people were facing trial before the Permanent Military Tribunal of the Royal Armed Forces in Rabat. The use of military or special courts to try civilians raised serious problems as far as the equitable, impartial and independent administration of justice was concerned. According to international law, a Moroccan military court did not have the jurisdiction to prosecute acts and events taking place in Western Sahara. Several international bodies had since issued statements condemning the sentencing, among them, Amnesty International and the African Commission on Human and People’s Rights (ACHPR).

The right to self-determination was the basis upon which democratic South Africa was founded. Therefore South Africa’s foreign policy in the region was based on the principles of multilateralism and international legality in seeking a just, lasting and mutually acceptable political solution, which would provide for the self-determination of the people of Western Sahara. However, South Africa respected international human rights law in the occupied territory, notably, the right to freedom of association, assembly, movement and expression. Therefore South Africa’s representative at the UN had continued to reiterate the need for UN resolutions to be implemented and the right to self-determination in Western Sahara to be respected.

The agreed-upon way forward was a referendum, however one of the issues was who were the people who would vote seeing that many of the people who lived in Morocco were forcefully removed from the region a while back. South Africa only began to recognise the region of the Saharawi people in 2004. Morocco reacted and withdrew its ambassador from Pretoria. Currently South Africa does not have an ambassador in the Saharawi region. Demands were that the media blackout be removed and there be humanitarian assistance to the region.

Mr Ngonyama asked whether the negotiations with the Polisario Front (to end Moroccan control) were still underway and what was currently being pursued in these negotiations.

Mr Davids asked about the position of the nomadic tribes and whether or not they could vote.

Mr Ashraf Sulliman, DIRCO Ambassador: North Africa, responded that negotiations were still underway; however there had been a change in thinking in the regions of Europe which had since moved to the exposure of the human rights plight in the region. Pressure still needed to be put on the international community to firmly establish the United Nations Mission for the Referendum in Western Sahara (MINURSO). However not much had been done with regard to the negotiations. On the issue of the nomadic tribes, a large number of Saharawi people were kicked out of the region and Moroccans had moved in.

Mr Ebrahim added that the problem of refugees was a concern as there was a lot of potential for extremist elements to arise. Morocco pulled out from AU because it recognised Western Sahara as an independent country. The ceasefire was holding and the Polisario Front was still relatively calm.

The Chairperson stated that the forced removals of ordinary Saharawi people who were deported and forcibly removed from their land and the importation of large numbers of Moroccans into the region was a huge concern. Saharawi people were desperate for international human rights intervention in their region. He argued that since there have been a number of briefings on the issue, Parliament needed to take action. It was suggested that Members discuss the matter in the following meeting, and in the meantime, Members needed to consider concrete suggestions on how Parliament could engage on the matter.

Mr Ebrahim suggested that Members should consider visiting the refugee camps in the region, to interact with Saharawi people directly.

The Chairperson acknowledged the suggestion.

Consideration of Committee Minutes
The Committee Minutes for 20 February were adopted.

Draft Report on the oversight visit to DIRCO
The Chairperson stated that the Draft Report would be dealt with at a later stage as a discussion needed to take place about the recommendations of the report.

The meeting was adjourned.

Appendix
UN Secretary General's annual report on Western Sahara submitted to the General Assembly

Sixty-seventh session 2012
Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples
Question of Western Sahara
Report of the Secretary-General

Summary;
The present report, submitted pursuant to General Assembly resolution 66/86, summarizes the report submitted by the Secretary-General to the Security Council on the situation concerning Western Sahara in the period from 1 July 2011 to 30 June 2012.

1. The present report, covering the period from 1 July 2011 to 30 June 2012, is submitted in accordance with paragraph 7 of General Assembly resolution 66/86 on the question of Western Sahara.

2. Pursuant to Security Council resolution 1979 (2011) of 27 April 2011, I submitted a report dated 5 April 2012 to the Security Council on the situation concerning Western Sahara (S/2012/197). In that report I informed the Council of the activities of my Personal Envoy to promote negotiations on Western Sahara and of the existing challenges to the operations of the United Nations Mission for the Referendum in Western Sahara (MINURSO).

3. The period from 1 July 2011 to 30 June 2012 witnessed developments in the region related to the emergence of the Arab Spring. Triggered by unrest linked to unemployment, poverty and corruption, the movement expanded into wider claims for respect for human rights and the rule of law. Within this context, the parties to the Western Saharan conflict, as well as the neighbouring States, experienced important political developments of their own, with potential but uncertain effects on the negotiating process.

4. By the end of the two rounds of informal talks and bilateral consultations held with the parties during the period under review, they had agreed to deepen the discussion on the core issue of the future status of the territory, as well as to continue to explore discrete subjects of mutual interest, such as demining and natural resources, and had also reaffirmed, and in some cases agreed to, steps to implement prior agreements on confidence-building measures and explore new ones. However, on the core issues of the future status of Western Sahara and the means by which the self-determination of the people of Western Sahara was to occur, no progress was registered. The parties continued to adhere to what my Personal Envoy had previously characterized as “unyielding adherence to mutually exclusive positions”. In short, they continued to demonstrate the political will to meet at regular intervals, but had yet to demonstrate the political will to break the stalemate.

5. The parties held the eighth round of informal talks from 19 to 21 July 2011, at the Greentree Estate on Long Island, to re-examine their two proposals and to discuss one or both of the innovative approaches or discrete subjects previously agreed upon, namely natural resources and demining. There was no breakthrough in substance, since the parties maintained their respective positions. However, agreement was reached on holding an expert-level meeting in Geneva on natural resources and to begin building a common database of existing natural resources and how they are being exploited.

6. During the eighth informal meeting, Morocco indicated that, because of its upcoming elections and the resulting formation of a new government, it would not be able to attend another round of talks or receive my Personal Envoy until January 2012. Frente Polisario indicated its readiness to meet later in 2011 but was unavailable in either December 2011 or most of January 2012 because of its periodic Congress and internal elections. My Personal Envoy therefore proposed that a new round of talks be held from 11 to 13 February 2012. However, competing demands on the heads of the delegations of both parties and the neighbouring States required a further postponement. After consultations with all concerned, a new round of informal talks was scheduled to be held from 11 to 13 March 2012 at the Greentree Estate.

7. During the hiatus between the informal meetings, my Personal Envoy visited the capitals of the member States of the Group of Friends of Western Sahara and held several bilateral meetings with the parties and the neighbouring States. From

3 to 8 November 2011, he visited Madrid, Paris and Moscow, having earlier consulted with senior officials in Washington, D.C., on 14 October 2011. He visited London on 15 December 2011 to complete the visits to the capitals. The meetings were useful, reflecting strong support of the efforts of the United Nations, continued commitment to the framework of direct negotiations set forth by the Security Council in successive resolutions and a fresh interest in moving beyond the status quo in order to find a solution.

8. In the course of his meetings, my Personal Envoy sought the support of the Group of Friends of Western Sahara for two ideas on which he had briefed the Council on 26 October 2011: consultations with and dialogue among a cross-section of Western Saharans; and consultations with a group of respected Maghreb personalities on Western Sahara. He explained that the purpose in both cases was not to replace the negotiators but to encourage discussion, new ideas and even proposals that could be put to the negotiators for their consideration. It was a way of broadening thinking on the future status of Western Sahara and of generating new ideas that might help the parties to overcome their inability to move beyond their mutually exclusive positions. The members of the Group of Friends expressed broad support for the two initiatives. Discussions with both parties on those initiatives are ongoing.

9. In the capital of each member State of the Group of Friends, my Personal Envoy also underlined that it was vital for the United Nations and the international community as a whole to have access to reliable, independent information on developments in both Western Sahara and the refugee camps in order to consider how best to promote a settlement. This could be achieved through expanded reporting by MINURSO and more frequent visits to both Western Sahara and the refugee camps by diplomats, journalists and others. There was broad agreement that more and better data was needed and that MINURSO personnel should enjoy full freedom of movement and outreach in Western Sahara and the camps and have the ability to provide independent information on significant developments, as exists in other peacekeeping operations around the world.

10. From 8 to 11 November 2011, my Personal Envoy visited Geneva to meet with United Nations agencies and to co-chair an expert-level meeting of the parties on natural resources in Western Sahara, as agreed during the eighth round of informal talks. He made it clear throughout the meeting that the discussion was merely technical and that the issue of the final status of Western Sahara should be put aside. However, the parties engaged in heated discussions and mutual accusations of a political nature, with the result that exchanges on the technical issues were limited. That said, the Moroccan experts gave detailed presentations on the status of selected resources such as fisheries, water and minerals, as well as on environmental topics such as climate change and pollution, while the Frente Polisario expert described contracts, awarded to a variety of international companies for exploration of oil and mineral resources, that were contingent upon a settlement of the Western Saharan conflict that would lead to independence.

11. The Moroccan delegation stated that Western Sahara had limited natural resources and required heavy infrastructure investments financed by the Moroccan State to ensure its viability, particularly with regard to water services. It also affirmed that the income obtained from such exploitation benefited the local population and was sustainable. Frente Polisario strongly disagreed with both statements and posited the illegality of unsustainable exploitation of the resources of a non-self-governing territory. It also called for United Nations verification missions to ensure the sustainable exploitation of Western Sahara’s natural resources. While it was clear that the parties disagreed on the current state of the natural resources and the environment in the Territory, they discussed possible next steps that could be taken on the topic during the next informal meeting, in order to attempt to build a commonly agreed database as a basis for further discussion.

12. From 11 to 13 March 2012, a new round of informal talks was held at the Greentree Estate. The parties discussed and disagreed sharply on the purpose of the negotiating process. Morocco argued that the process was meant to negotiate the details of its autonomy proposal in preparation for a referendum of confirmation. Frente Polisario countered that it was meant to open the door to all possibilities in preparation for a referendum with multiple options. Each side continued to reject the other’s proposal as the basis for negotiation.

13. Two previously agreed specific subjects were discussed: on demining, the parties named focal points for further coordination and cooperation with the United Nations Mine Action Service; and on natural resources and the environment they confirmed their intention to provide the United Nations not only with focal points but also with all available information on natural resources and the state of the environment. This will permit experts from the United Nations Environment Programme (UNEP) to begin building a database as a foundation for future discussions on the state of the environment and natural resources, including possible examination of the legal aspects of current exploitation.

14. With regard to confidence-building measures, following a meeting with the Office of the United Nations High Commissioner for Refugees (UNHCR) for review of the confidence-building measures action plan held on 24 and 25 January 2012, the parties and neighbouring States welcomed UNHCR plans to lease a larger aircraft for family visits, thus greatly increasing the number of beneficiaries, and its intention to explore the possibility of arranging access to Internet cafés for separated families. They also agreed to work with UNHCR to hold two inter-Sahrawi cultural seminars, in July and October 2012, focusing, respectively, on the role of women and the significance of the tent (al-khaima) in Hassaniyya culture.

15. On 24 April 2012, the Security Council, of which Morocco has been a non-permanent member since 1 January 2012, unanimously adopted resolution 2044 (2012) affirming its strong support for United Nations efforts to promote a settlement of the Western Saharan conflict and extending the mandate of MINURSO until 30 April 2013. On 10 May 2012, Morocco informed me that it had a number of reservations regarding the current negotiating process. As of 30 June 2012, progress towards a settlement awaited further discussions on the way forward. As provided for in resolution 2044 (2012), my Personal Envoy will brief the Security Council in the coming months.