Analysis

ZIDERA Act and the Byrd Amendment 1971: Kindred Spirits

By Thabani Vusa Mpofu

In September 2021 Australia, the United Kingdom (UK) and the United States (US) announced the signing of a security pact (known as AUKUS) which, though the participants did not mention it, is directed at China.

There followed widespread opprobrium not just from China and Russia but from France and the European Union. This follows hard on the heels of another decision taken by the Biden Administration to withdraw its troops in haste from Afghanistan, a decision NATO allies have characterised as unilateral and ill-thought out.

The unilateralism that the US exhibited in the stampeded withdrawal of the US troops from Afghanistan and the decision by the US to lend support to a country with Anglo-Saxon roots in the AUKUS deal are not random decisions that represent a departure from US foreign policy as is touted in the Western press. Rather, these decisions constitute a constant feature in the US foreign policy, and they have precedence. In the current instance the United States has come to the assistance of an Anglo-Saxon ally, Australia, by providing it with nuclear powered submarines.

In 1971 it was Rhodesia governed by an Anglo-Saxon minority that was the recipient of ebullient United States benevolence.
In response to the Unilateral Declaration of Independence in 1965 by the Rhodesia Government, the United Nations Security Council imposed comprehensive mandatory sanctions against the rogue state. There is abundant literature in the public domain about rogue sanctions busters who worked to evade United Nations sanctions against Rhodesia and South Africa from the 1960s right up to the 1980s. While these were mostly non-state actors whose actions were driven by profit motives and their own brand of misplaced patriotism or racial solidarity, very little, if anything, is ever mentioned about the biggest
sanctions buster of the Rhodesia sanctions, the government of the United States of America.

Notwithstanding the dire state of the Rhodesian Government’s human rights record characterised by lengthy detention periods without trial of black nationalists amongst other human rights transgressions, in 1971 the US Congress passed the Byrd Amendment whose effect was to circumvent UN sanctions against the minority government of Rhodesia.
The Byrd Amendment:

In November 1965, the Rhodesian minority government unilaterally and illegally declared independence from Great Britain. This attracted a flurry of international activity on the political front which culminated in the UN being approached to impose comprehensive measures on Rhodesia aimed at dismantling the illegitimate minority government. Resolution 232 of the Security Council passed in 1966 enjoined member states to impose comprehensive and mandatory sanctions against Rhodesia. The Rhodesian Government was however not unresponsive to the UN measures.

The minority government unleashed a barrage of lobbyists on the US legislature with a view to shift US Government policy on Rhodesia. American support for Rhodesia emanated from the full spectrum of United States society, from pro-Rhodesian lobbyists in the South, to legislators from both Houses and industrial businesses with interests in Rhodesian mineral commodities.
Senator Harry F. Byrd Jnr of Virginia turned out to be a seminal and potent ally to the cause of the Rhodesian Government. Byrd Jr belonged to the Byrd Organisation, an outfit formed by his father Harry F. Byrd Snr, whose views on race relations were in alignment with those held by the Rhodesian government. In one of its most prominent projects, the Byrd organisation led an intensive campaign against the US Supreme Court decision in Brown v Board of Education whose effect was to desegregate schools in the US. The Byrd organisation formed a movement called, “Massive Resistance” whose main objective was to thwart the policy of desegregation of schools.

The Resistance campaign culminated in the state of Virginia enacting a raft of legislation called the “Stanley Plan” which amongst other racists decisions, required desegregated schools to be closed. Senator Harry F Byrd Jr was an integral and enthusiastic participant in the organised Resistance campaign against desegregation of schools, lending unwavering support to the Stanley Plan. Ultimately the Stanley Plan was overturned by US Supreme Court but there is no evidence that Senator Harry. F Jr and his colleagues in the Byrd Organisation abandoned their racist outlook to life. The Byrd organisation found the desegregation of schools to be unpalatable and unpardonable.

It was to Senator Harry F Byrd Jr that the Rhodesian Government and its lobbyists in the US turned for assistance in the quest to upstage and sabotage the United Nations Security Council sanctions against Rhodesia. The principle of segregated educational facilities that Senator Byrd Jr and his colleagues fought against in the US was established policy in Rhodesia where there were separate schools for whites and the indigenous people of Zimbabwe.

Senator Byrd Jr and his pro-Rhodesia allies in the Senate chose an amendment to the “Strategic and Critical Materials Stock Piling Act” as an avenue to create legislative support for the violation of UN sanctions against Rhodesia by the US Government. The Strategic and Critical Materials Stock Piling Act prohibited the US Government from banning the importation of strategic materials from a non- communist country as long as the importation of the same materials from communist countries was not prohibited.

Senator Harry F Jr pushed through the Senate an amendment to the Strategic and Critical Materials Stockpiling Act with the ultimate result being the signing into law of the Byrd Amendment by President Richard Nixon on 17 November 1971, permitting the importation of Rhodesian chrome into the United States in breach of a UN resolution that the US was party to.

As evidence of the fact that the Byrd Amendment was not a rare departure from policy, not only did the Nixon Administration ignore protestations from the international community about its blatant violation of a UN treaty, the US Government fought litigation in its courts aimed at compelling the US government to repeal the Byrd Amendment and to act in accordance with international law. The case of Diggs vs Shultz finally put to rest the issue of whether the US Government would undo the Byrd Amendment. In dismissing an appeal that sought to invalidate the Byrd Amendment brought before his court, McGowan, a circuit judge, contended that the gravity and effect of the Byrd Amendment was to “detach this country from the UN boycott of Southern Rhodesia in blatant disregard of our treaty undertakings.”

He further argued that there was no doubt in the minds of members of Congress about what the Byrd Amendment involved; “a measure which would make – and was intended to make – the United States a certain treaty violator.” Having acknowledged the ramifications of the Amendment, the judge argued that under “our constitutional scheme, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it. We consider that this is precisely what Congress has done in this case…..” The Byrd Amendment thus remained intact and in force.

The obstacles placed on the Rhodesia-US trade relations imposed by resolution 232 of the UN Security Council having been dispensed with by the Byrd Amendment, trade between the two countries resumed in full force. The trade between the two was not restricted to chrome but included other commodities such as nickel and asbestos. Records indicate that in 1972 a year after the enactment of the Byrd Amendment the United States imported chrome, nickel and asbestos worth over $12 million United States dollars.

It is estimated that at the peak of US-Rhodesia trade, Rhodesian chrome exports amounted to 17 percent of United States chrome imports. The unbridled trade involving these commodities which was carried out in flagrant violation of international law occurred during the time when the Rhodesian Government was enforcing oppressive and racist laws which amongst other social iniquities denied the black majority the right to participate in national elections.

During this period a bitter guerrilla war was waged by the black nationalists in a bid to unseat the oppressive system of the Rhodesia Government. The overt human rights violations unashamedly carried out by the Rhodesia Government did not deter the US Government from embracing Rhodesia as a trading partner. Yet the United States would have the international community believe that the current sanctions which it has imposed on Zimbabwe are in response to human rights violations.

The current sanctions against Zimbabwe are cynically called Zimbabwe Democracy and Economic Recovery Act (ZIDERA). Though the title of ZIDERA purports to advocate for the economic recovery of Zimbabwe, its provisions actually seek to achieve the exact opposite which is to destabilise the economy of Zimbabwe as a method of achieving the political objectives of the USA. Section 5 of the ZIDERA Amendment Act of 2018 is entitled “Withholding of funding from the African Development Fund”. The real objective of ZIDERA in as far as it seeks to stunt economic recovery in Zimbabwe is spelt out in unambiguous terms in section 5.2 which reads, “the US Government shall withhold funding for the African Development Fund equivalent to any funding provided to Zimbabwe Pillar II for arrears clearance”.

The African Development Fund is a project of the African Development bank group which provides funding to African countries for poverty reduction amongst other objectives. The provisions of ZIDERA thus present the African Development Bank with a choice between prejudicing the whole of Africa by providing funding to Zimbabwe on one hand, and withholding funds from Zimbabwe totally in compliance with US wishes on another. The choice of the African Development bank is obvious.

In addition to the duplicitous title of the sanctions, the US has put into action a comprehensive propaganda campaign whose aim is to mislead the world into believing that sanctions on Zimbabwe are not targeted on the nation but on individuals. This tactic of hiding the real intentions of the US Government behind a veneer of benevolence and necessity is not unprecedented. The Byrd amendment though designed to assist the Rhodesian government made no mention of Rhodesia whatsoever in its entire text. Judge McGowan in the Diggs vs Shultz case was not fooled by this deceptive omission and he thus stated in his ruling:
“We think that there can be no blinking the purpose and effect of the Byrd Amendment, it was to detach this country from the UN boycott of Southern Rhodesia in blatant disregard of our treaty undertakings.”

A close scrutiny of US decisions in the Byrd Amendment and the ZIDERA reveals an embarrassing similarity. The Byrd Amendment was designed to assist a section of Rhodesian society who, despite being a minority, were in power and presiding over a black majority under conditions of duress. The Byrd Amendment condoned the racist policy of the Rhodesian Government, and its effect was to entrench and perpetuate the economic advantage the white minority had over the black majority.

ZIDERA was imposed soon after the government of Zimbabwe embarked on a policy to acquire land from the minority and redistribute it amongst the black majority. It would be stretching naivety to its furthest limits to suggest that the timing of ZIDERA in 2001 soon after land reform is coincidental. The irresistible and incontrovertible conclusion to arrive at given the circumstances involved is that, just as the US Government in 1971 rescued Rhodesia from UN sanctions through the Byrd Amendment, the US sought to avenge the loss of land by the white farmers which was brought about by the land reform program by enacting ZIDERA.

The objective of ZIDERA is not to enhance democracy because there are no US sanctions against some nations in the world who do not even hold elections to elect their leaders. The precedence set by the Byrd Amendment of 1971 suggests that the real purpose of ZIDERA was to protect the same minority that the Byrd Amendment of 1971 was designed to protect.

Any notion that the conclusion reached is inaccurate is effectively discredited by the emotional and threatening language that the former US president, Donald Trump in response to a Fox News story that there was large scale seizure and killing of white farmers in South Africa in August 2018. President Trump had asked his Secretary of State, Mike Pompeo to study the farm seizures closely. The message was very clear “hands off white owned farms or else…………”
In the absence of compelling evidence to rebut the conclusion that arises from the comparison between the Byrd Amendment and ZIDERA it is safe to conclude that the “human rights” that are referred to in ZIDERA are in actual fact the property rights of white farmers who farmed on land which had been forcibly alienated from Africans through a protracted process of colonial and racial dispossession. As recently as 1969, the Land Tenure Act had allocated more than half the country’s land to whites (Europeans), overwhelmingly the best land while restricting Africans to semi-arid “Tribal Trust Lands”.

Just as the Byrd Amendment did not mention the true intention and target of the Amendment, the violation of UN sanctions in Rhodesia’s favour, ZIDERA seeks to hide its true intention by listing disingenuous grievances against the Zimbabwe Government as justification for its illegal sanctions. Disingenuous because the US turns a blind eye elsewhere in other countries to the same policies that it accuses the Zimbabwean government of practicing.

The true intentions of ZIDERA are hidden in section 10 of its provisions which is entitled Sense of Congress on SADC Tribunal Rulings. These provisions state that Zimbabwe and SADC must enforce the SADC tribunal rulings involving cases of “dispossessed Zimbabwean commercial farmers and agricultural companies”. This quite clearly is in reference to white commercial farmers affected by the land reform programme.

There may be some amongst the readers who may be inclined to conclude that the remarks made against the US in this article are unfounded. Consider this. Beginning in the mid-60s up the 1990s, America wielded the veto in the UN Security Council on 19 occasions in relation to Southern Africa to protect the racist minority governments of Rhodesia in the 1970s and South Africa.

In the 1980s the Reagan Administration coined a policy it termed Constructive Engagement, that was vehemently opposed to UN sanctions on apartheid South Africa. This policy proposed incentives to South Africa as a way of nudging the apartheid South African Government towards political reform. The US Government did not call for punitive measures against the South African
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apartheid government unlike in the current situation where the same US Government insists on meeting out punishment on the Zimbabwe economy for alleged human rights violations.

The true victims of the unilateral US decision to violate UN resolutions via the Byrd Amendment were the black majority of Zimbabwe, (then known as Rhodesia) who bore the effects of an economically empowered Rhodesian minority courtesy to the US-Rhodesia trade. The political support that the US Government provided the Rhodesian Government would not have failed to encourage the latter to maintain a policy of intransigence against any suggestions of political reform.

The very same black majority is once again suffering as a result of another unilateral decision by the United States to impose sanctions on Zimbabwe. There is no disputing the fact that the Byrd Amendment was an amoral piece of legislation which violated international law. In the same vein its reincarnation as ZIDERA is equally amoral and justice can only be served by its repeal, a fate which its cousin the Byrd Amendment eventually suffered.

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