“Noted” or “Endorsed”? – Spinning the Unspinnable* on the SADC Summit

OPINION – An issue currently occupying minds in and around Zimbabwe is the implication and effect of the SADC Summit held in Sandton, South Africa last weekend. In particular, the language of the SADC Communique appears to have received divergent interpretations regarding the fate of the decisions made by the SADC Troika in March at the Summit in Livingstone, Zambia.

Cautionary Note: I have just been advised by a colleague that apparently, there is a different version of the SADC Communique, which omits Clause 22. What is odd, however, is that in his statements to the media, Foreign Affairs Minister Mr Mumbengegwi makes reference to the substance of this clause – he says, quoted in The Herald: ‘‘The Summit went on very well, very, very well. Summit only noted the outcome of Livingstone, they did not endorse, Summit noted. And as you know in diplomatic parlance, you know what ‘noting’ means? It was noted, it was not endor-sed,” .  This note is based on the communique that is currently in circulation and over which debate over ‘endorsement’ has arisen.

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On the one hand, the MDCs and civil society organisations argue that the Summit effectively recognised the decisions of the Livingstone Summit whereas ZANU PF counter-argues that the Summit simply noted but did not endorse the decisions. But does it really matter? What really does the SADC Communique say and what are the implications? In all this one must take cognisance of the bigger picture and ultimate objective, which is the SADC-mandated process to resolve the political problem in Zimbabwe.

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The SADC Communique contains various other clauses, including some on the matter of sanctions but this note focuses strictly on the fate of the Livingstone Troika decisions – as this appears to be the issue that has been most contentious.

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Clauses 21 to 31 are the provisions of the SADC Communique that are pertinent to Zimbabwe. The critical clauses in respect of the Livingstone Summit are clauses 22, 23 and 24 – although there are other relevant provisions.

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For purposes of this note, the critical provision is clause 22 which states, “Summit noted the decisions of the SADC Troika Summit held in Livingstone, Zambia in March 2011” The question that arises therefore is what this clause means, the key word here being “noted”. Does it make any difference to the outcome, in effect?

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Ordinarily, when something is “noted” it means that there is an acceptance that it has value and is worthy of attention. By noting the decisions of the SADC Livingstone Troika Summit the SADC Summit is recognising that they have value and are legitimate. It means the Summit has given recognition to the Troika decisions. This is important when considered against the background that one party to the GPA (ZANU PF) had taken umbrage against the SADC Livingstone Troika decisions on grounds of procedural irregularity.

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Therefore, for anyone holding the view that the SADC Livingstone Troika decisions were illegitimate and that they should not be upheld, the recognition of the decisions by the Summit must be a disappointing outcome.

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Also important to consider is that the interpretation of that word, “noted” in Article 21 cannot be done in isolation. In interpreting words of any document context matters a great deal. The word ‘noted’ is used in various provisions of the SADC Communique – see Article 9, 12, 21 and 30 for example – and in each case the notion communicated by noting is official recognition by the Summit of whatever was brought before it.

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It is a statement of the Summit accepting its value. In fact, Clause 30 of the SADC Communique also states that the Summit ‘noted’ the recommendations of the sanctions mission mandated by SADC in August 2010. It does not say it ‘endorsed’ the recommendations but that does not mean SADC takes the issue less seriously. No-one seems to be downgrading the idea of ‘noting’ sanctions recommendations but instead it is getting publicity as SADC’s recognition of the sanctions problem in Zimbabwe.

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In any event, if the SADC Summit had rejected the SADC Livingstone Troika decisions as some would have the world believe, it would have stated as much in unequivocal and no uncertain terms.  Instead, not only did the SADC Summit recognise those decisions, it went further in Clause 24 to “urge the SADC Troika to appoint their representatives as soon as possible to participate in the Joint Monitoring and Implementation Committee (JOMIC)”. The JOMIC is a body mandated to monitor the implementation of the Global Political Agreement (GPA) that forms the foundation of the present Inclusive Government.

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The appointment of a team by the SADC Troika to work with the JOMIC was one of the key decisions of the SADC Livingstone Troika Summit. It was also heavily opposed on grounds that it represents interference with Zimbabwe’s sovereignty. That the SADC Summit has reiterated in its Communique what the SADC Livingstone Troika resolved in March gives further weight to the view that in effect it has recognised and upheld the decisions of the Livingstone Troika.

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It must be pointed out, albeit as an aside, that the view propagated in some quarters that the team to be appointed by the SADC Troika represents interference in Zimbabwe’s sovereignty is rather disingenuous in light of SADC’s role regarding the GPA. SADC is a guarantor of the GPA. It has a responsibility to ensure the full implementation of the GPA.

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In fact, one could argue that SADC has generally failed to live up to its obligation to fulfil this role given that almost three years since the signing of the GPA a number of provisions are yet to be satisfied. By accepting SADC’s role in the resolution of the conflict and its place as guarantor of the GPA, Zimbabwe’s main political actors (ZANU PF, MDC-T and MDC-N) effectively conceded ground which SADC can and must utilise to produce a meaningful result in resolving the problem.

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Indeed, one could go so far as saying that making the GPA part of the constitutional order and given SADC’s role as guarantor, the political players effectively compromised the country’s sovereignty and diluted their own authority. To argue therefore, that SADC cannot appoint a team to monitor the full implementation of the GPA as interference in the country’s sovereignty flies against the foundation of that agreement.

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It is the guarantor and as long as its conduct is within reason it can take necessary measures to ensure it performs its role efficiently. No one can seriously argue that the full implementation of the GPA is beyond the bounds of reason.

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In the overall analysis, the net effect of the SADC Communique is that the SADC Summit gave due recognition to the SADC Livingstone Troika decisions contrary to what may have been argued by those opposed to them. The opposite would have been to sideline/ignore or totally reject the Livingstone Troika decisions without equivocation. The Summit did not do that. In fact it went on to reiterate the need to appoint a team to monitor the full implementation of the GPA, a key resolution and outcome of the Livingstone Troika Summit.

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The substance of the outcome is clear for any reasonable mind to see. But what we see instead is an exercise in spinning the unspinnable. It is the political equivalent of the football manager who, upon his team losing a match, tells the media that his team did not lose but rather that it simply conceded more goals than it scored. It doesn’t change the outcome. It is called a loss in any language.

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wamagaisa

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wamagaisa@yahoo.co.uk

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* If the word does not exist, well, it’s just been created.

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Alex Magaisa is a senior lecturer at the Kent Law School. Prior to joining KLS, he worked for the Jersey Financial Services Commission, the financial services regulator in Jersey. His research interests lie mainly in financial services regulation, law of corporate groups and the effects of IP Laws on developing countries.