#CSW58-MDG 5: Promoting Maternal Health


By Rumbidzai Dube

When I reflect on the risk and sacrifices that women make in this world, it makes me wonder when, why and how it came to be that in many parts of the world, they are regarded as second class citizens. What am I saying?

According to the Zimbabwe Demographic Health Survey (ZDHS) of 2011, at least 10 women die every day due to pregnancy-related complications. Did you hear that, 10 women die every day while giving birth to children, some of them sons, who will then turn on their mothers, sisters, aunts, nieces and cousins and treat them as second class citizens. Isn’t that ironic?

Millennium Development Goal 5 is definitely one of the goals that Zimbabwe will not be able to meet. With maternal deaths estimated to be above 960 deaths for every 100 000 live births, the target of reducing maternal deaths by three quarters can remain an aspiration for now. Given that the 960 deaths are official statistics, which God knows how accurate they are, with the way our government is out of touch with the issues on the ground on so many levels, the rate is possibly even higher.

Let us assume for a minute that these statistics in fact are right, I am still perplexed by the worrying trend that factors such as education, class, location and age are no longer critical in determining who is affected. Uneducated and educated, poor and rich, rural and urban, and older and younger women are all dying in child birth. Clearly there are nuances to the problem and successfully dealing with maternal health needs exploring these. For instance, cases of celebrities who passed on in child birth, grabbed the headlines, raising the need for a more concerted effort into addressing the issue of maternal mortality.

What are some of these nuances?

  • We simply do not have enough trained health professionals to deal with the delivery of our babies. Our nurses left and we are not doing much to motivate those who remained behind to remain in our service and to be motivated at work.
  • The private health-care system has not been effectively regulated. Just in the past year I have had 2 friends and a relative who have had nasty encounters with private health practitioners. The first friend went to a reputable women’s health centre where she was told she had a growth in her uterus and needed to have her uterus cleaned. Fortunately for her, she chose not to do that and sought a second opinion. Guess what-the supposed ‘growth’ in her uterus was a baby. And to think these people have advanced machines for scans and all that other fancy stuff!!

Another friend elected to deliver her baby through a Caesarean and informed her gynaecologist of her choice. However, he kept pushing the dates for the performance of the Caesarean forward, in what she feared was an attempt to create complications in her delivery, leading to her increased stay in hospital and increased bill=more money for the doctor.

My other relative had had two babies, delivered through normal births without any complications. However for her third baby, the doctor dramatically chose to ‘induce’ her labour prematurely. She could not understand why he did so when her labour was not delayed and her pregnancy was advancing normally. Eventually she found out why when the bill came with a breakdown of:

  1. Costs for inducing labour
  2. Costs for delivering the baby
  3. Costs for doing the ‘stitches’ on the mother
  4. Costs of medication to clean the wounds

She also complained that the same doctor had developed a reputation of forcing women whose babies he delivered to have more ‘stitches’  or proclaim non-existent complications requiring caesarean delivery because doing so meant he would charge more for sewing them back together and performing the surgery. It seems the love for money far exceeds the observance of medical ethics these days.

What have we done well?

  • Our implementation of the Prevention of Mother to Child Transmission programme (PMTCT) has significantly reduced cases of HIV/AIDS infections in children at birth. HIV testing has improved and the responsibility lies with the mothers to choose life for their children.
  • The adoption of the National Campaign to Accelerate the Reduction of Maternal Mortality (NCARMM) directly corresponding with the African Union (AU) Campaign on the Accelerated Reduction of Maternal Mortality in Africa in itself is an important development as it affirms government’s recognition that maternal mortality is a serious problem that needs addressing.

What have we not done well?

Government admits that most maternal deaths are a result of time taken to seek healthcare because of ignorance or lack of funds to pay for hospital care; time needed to reach a healthcare because hospitals are too far and there is no easily accessible transport to and from the health facility or the cost to do so is high and unaffordable and time taken to access care at the health facility-where there is generally an air of neglect of women in health-care facilities by highly unmotivated nurses.

Generally health services are inaccessible particularly in rural areas where hospitals and clinics are not within easy reach and the transport networks to the major clinics and hospitals are not easily accessible. Increasingly, the service in hospitals, particularly public/government hospitals, has deteriorated and has become poor. Pregnant women suffer neglect in hospitals resulting in some avoidable losses and deaths. Socio-economic challenges, related with the current economic environment significantly impact women’s access to medical services as they cannot afford to pay the user fees. There has been reduced uptake of contraception for inexplicable reasons.

What more can we do?

  • We need to adequately fund all our health institutions. Although a government policy stating that women should not pay user fees exists, it is impractical. If clinics do not make women pay, then they will not have the gloves, medication and swabs to attend to the women at child birth. Until and unless government adequately funds these facilities then the assertions that user fees have been scrapped will remain what they are; mere rhetoric!!
  • We must address religious and traditional practices that deny women access to medical facilities or that delay until patients are in critical condition. Zvitsidzo (Apostolic sects’ version of maternal wards), located in bushes in the middle of nowhere, secretive and denying access to the public, are an example of how maternal care is being compromised. Because of the veil of secrecy that these sects throw over these spaces, it is not clear how many women actually die and whether there are any complications that women have to live with for the rest of their lives for failing to give birth in certified maternal health care facilities.
  • We must maintain our reliable supply of contraception BUT we must find out, through comprehensive research, why there is reduced uptake of contraceptives.
  • We must take measures to motivate our nurses to do their jobs effectively. Without the necessary incentives, women will continue to lose their lives in avoidable circumstances.

#CSW58- MDG 2: Achieving Universal Primary Education


Of all the millennium development goals (MDGs), achieving universal primary education is something that Zimbabwe has recorded tremendous progress in.  We boast of the highest literacy rate in Africa, recording an impressive 90.7%; the only country on the African continent with a literacy rate above 90%. I, as some Zimbabweans do too, consider these statistics with a pinch of salt, given that in my context-it is not how the world views us but how we view ourselves that matters the most. Even though we may be considered highly educated, I am disgruntled with the quality of education that our children are receiving. The education system is fraught with challenges, among these;

  • the inability of parents to pay fees because of the harsh economic climate resulting in school drop-outs and frequent absenteeism;
  • the inability of government to protect children who cannot pay fees from getting expelled from school. Even though policy says children should not be expelled, its implementation is weak;
  • the brain drain which has seen  many qualified teachers migrating to so called “greener pastures” because they can’t stand a life of grooming other people’s children to become significant members of society while their own become paupers given their meagre salaries;
  • the lack of motivation amongst our teachers because of their poor working conditions characterised by low salaries and no incentives, which causes them not to teach our children in normal time and forces parents to pay for “extra-lessons;” and
  • the challenges that the examination body; the Zimbabwe Schools Examinations Council (ZIMSEC) faces in creating examination scripts, disseminating examination material, marking examinations and distributing results of examinations on time.

It is consoling however to hear that enrolment into primary school is still high despite the fact that primary education is not free anymore as it was soon after independence. Rural areas record higher rates of enrolment (84.1%) than the urban areas (73.4%). This could partly be explained by the fact that the majority of Zimbabwe’s population resides in the rural areas. The number of girls in primary school also remains high, although dropouts begin to increase from secondary level going upwards.

Picture Credit: Eileen Burke-Save the Children

Picture Credit: Eileen Burke-Save the Children

What have we done well?

  • The Basic Education Assistance Module (BEAM) has been instrumental in enhancing girls’ and boys’ access to education, especially orphans and other vulnerable children. This programme has paid school fees and other levies for the under privileged members of society. However it is worrying that this programme is undergoing financial challenges, meaning that many of its beneficiaries have been left stranded and are likely to fail to continue going to school.

What have we not done?

  • Our budgetary allocation to education remains low. The United Nations Educational, Scientific and Cultural Organisation (UNESCO), recommend that an education budget should be at a minimum 6% of the Gross National Product. Although we have done this to the book, our economy’s performance means that this amount is so little that it only pays for teachers’ measly salaries.
  • We have not been compiling statistics on the completion rate of primary level education by girls, to understand in particular why girls drop out of school. This would help us to understand the prevalence of some of the factors that cause girls to leave school such as child marriage,early marriage, sexual violence against girls, teenage pregnancy, domestic servitude and inability to pay fees and how much girls suffer because of it. It would also help us to know where we should focus our interventions.

What more can we do?

  • We used to have free primary education soon after independence, what happened to that? Now parents have to bear the costs of sending their children in a challenging economic environment. Let us bring it back if we want to ensure that we have an educated nation. Primary education is the most basic form of education and if we can’t give that to our citizens then what kind of population are we growing?
  • It is clear that some traditional and religious practices are preventing children from going to school or continuing with their education kunyanya mapostori. Mere policy encouraging them to send their children to school remains inadequate. We need stronger penal provisions to force such religious sects and traditionalists to conform and allow their children to have the most basic need in their lives; an education. If politicians are going to mix and mingle with mapostori when they campaign during elections, but fail beyond the campaigns to have meaningful dialogue with them about treating their women and children better,  then the politicians have failed us all and these children.
  • We allowed our schools, especially primary schools to be used as political bases where rallies and political meetings were held. In the 2008 election period, such activities were marked with devastating levels of violence which children either experienced or witnessed resulting in some dropouts. Teachers were also targeted, some beaten, others abducted and causing many teachers to desert their posts and migrate. Most of these were replaced by unqualified temporary teachers. Cumulatively, this has also affected the quality of our education and we need to address this and ensure the highest quality of education.

We love bragging, and we have reason to brag because we are better educated than all the other African countries but can our government fix all these problems already so we brag some more!

#CSW58: 1. Reflecting on Zimbabwe’s fulfilment of the MDG’s and mapping the post 2015 Agenda


By Rumbidzai Dube

 

Today, the 10th of March 2014, I find myself here in New York, where one of the biggest events on women’s rights; the 58th session of the Commission on the Status of Women (CSW58) is kicking off. The history of CSW dates back to 21 June 1946, when the United Nations Economic and Social Council (ECOSOC) set up the Commission, whose core function is to promote the rights of women in political, economic, civil, social and educational fields. So every year, representatives of states which are members of the United Nations as well as women’s rights activists gather at the UN Headquarters in New York to assess if any progress has been made in achieving gender equality, to see what challenges remain, to set global standards and be innovative at devising means to formulate promote gender equality and women’s empowerment worldwide.

This year’s CSW comes amid the growing discourse of an Africa that is “rising.” Indeed the dictates of mainstream economics suggest that this is the case. Africa’s economy is said to be growing faster than any other continent’s economy. 33 % of African countries are said to be recording annual gross domestic products (GDP’s) of 6%.  Many predictions have been made by forecasters:

  • By 2015, mobile penetration in Africa would have reached 84%;
  • By 2020, 50 % of African households will be so economically sound that they will have discretionary spending power;
  • By 2030, 50 % of Africa’s populations will be living in urban areas;
  • By 2035, Africa’s workforce will be bigger than China; and
  • By 2050, Africans will make up 25% of the world’s workers.

Analysts are justifying why Africa’s time is now with one Jonathan Berman giving his 7 reasons why Africa’s time is now. I have dared to explain Berman’s idea as I have understood it namely that:

1. Africa has a huge market opportunity.

[Africans love consuming and the fact that our own industry is underdeveloped means we rely heavily on imports hence providing a market for other continents’ goods.]

2. Africa is increasingly stable.

[Though ridden by conflicts as compared to other continents, the trends of conflict in Africa have seen a decrease rather than an increase. Governance patterns are also changing, with the biggest challenge being stolen elections rather than military coups. Previously coups were the norm, with Africa recording an unprecedented 85 violent coups and rebellions from the time of the Egyptian revolution in 1952 until 1998, 78 of these between 1961 and 1997, but more recently coups are uncommon and considered pretty uncool.

3. Africa is recording increased intra-Africa trade although it still is in its infancy.

[Trade within Africa has increased particularly along the lines of the regional blocs which promote regional economic integration. The most successful being the East African Community (Uganda, Tanzania, Rwanda, Burundi and Kenya) and the Economic Community of West African States (Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo) where regional integration is being fostered through, among other thing, the removal of trade barriers such as the requirement of travel documents and other limitations to freedom of movement of people and goods , the creation of a common market, and standardisation of customs tariffs .

4. Africa will soon have the world’s largest workforce.

[Africa’s population is rising so much that in projections to 2030, the African population is expected to peak at 1.6 billion from 1.0 billion in 2010, which would represent 19% of the world’s population. The demographic boom on the continent is expected to be an asset in the form of a workforce, which will drive Africa’s economy forward.

5. 20% of African governments’ budgets are going to education.

[Increasingly, governments are allocating a significant amount of money to education budget lines. This commitment towards the education of African populations will eventually yield results as Africa increases its local technical competence.]

6. Africa’s mobile networking and connectivity is exploding.

[Africa’s mobile network coverage is increasing and more so, spreading to traditionally marginalised communities in the rural areas. This is directly translating into easier and quicker access to information and at the same time the transfer of money more efficiently through mobile banking and cash transfer services such as Ecocash and Telecash in Zimbabwe. Consequently, doing business in a time of mobile phones is much easier and much more efficient as it reduces costs, saves time and increases efficiency].

7. Africa contains most of the world’s uncultivated land.

[ Africa holds almost 50% of the world’s uncultivated land. This is about 450 million hectares of land that is not forested, protected or densely populated. According to the World Bank, if this land is fully utilised by 2030, it could have created a trillion-dollar food market for Africa.]

It is well and good that these positive trends are taking place on the continent, however one question remains largely unanswered; which Africa and who in Africa is rising? Are the women of Africa part of the rising? If so, how many of them are part of it and how many are being left behind? Who is prospering and are the majority of citizens benefitting from the rising?

15 years ago, in 2000, 189 nations made a promise to free people from extreme poverty and many other deprivations culminating in the development of a strategy to eradicate these deprivations. This strategy, to try and address the unequal rising of citizens in different economies, was centralised in the framework of the Millennium Development Goals, (MDGs) a set of goals serving as milestones for all the countries of the world to achieve development in their countries.

MDG 1: This goal focused on eradicating extreme poverty and hunger. Notably, the goal did not seek to achieve the eradication of poverty but extreme poverty.

MDG 2: This goal focused on achieving universal primary education. Notably, the goal is not to ensure universal education at levels relevant to increasing citizens’ critical competence and competitiveness in the global sphere, such as tertiary and technical education.

MDG 3: Focused on promoting gender equality and empowering women.

MDG 4:  Focused on reducing child mortality.

MDG 5: Focused on improving maternal health.

MDG 6: Focused on combating HIV/AIDS, Malaria and other diseases.

MDG 7: Focused on ensuring environmental stability.

MDG 8: Focused on developing Global Partnerships for Development.

The 8 Millenium Development Goals

The 8 Millennium Development Goals

2014 marks the last year for the observance of the Millennium Development Goals.  As the women of the world are converging in New York to state their position on what they consider to be the priorities in mapping the post-2015/post-MDG agenda, at #CSW58, I shall be exploring the progress and challenges that Zimbabwe has faced in achieving the 8 Millennium Development Goals (MDGs). I shall also be reflecting on the main outcomes from the discussions at #CSW58.

Key Statistics from the June 2013 Voters’ Roll


Today the Research and Advocacy Unit [RAU] launches a preliminary report on an audit conducted on the June 2013 Voters’ Roll. The audit was done initially at the request of MDC-T, but RAU has done the audit on the understanding that its analysis would be wholly professional and independent of any political party affiliation or consideration. RAU carried out a previous audit of the 2008 Voters’ Roll in 2009 – 2013 Vision – Seeing Double and the Dead. A preliminary Audit of Zimbabwe’s Voters’ Roll.

Embargoed copies of this preliminary report have been given to the Zimbabwe Electoral Commission (ZEC), with a request that the Commission makes this report available to all registered political parties contesting the forthcoming elections. This was done in an effort to assist the Commission, and all interested parties, in establishing the conditions for an election that conforms to the SADC Principles and Guidelines for the Holding of Democratic Elections, one of the conditions suggested by the SADC Facilitator as necessary for Zimbabwe to fully comply with the Global Political Agreement that SADC agreed to guarantee.

This preliminary report, however, raises very serious matters to be considered ahead of the elections, now to be held on 31st July, and, in short, suggests that there are serious shortcomings with the current Voters’ Roll. RAU will, in due course, issue a second, more comprehensive report on the June 2013 Voters’ Roll, and will hope to undertake a further analysis of the final version of the Voters’ Roll to be used in the forthcoming elections.

In brief, today’s report indicates the following:

·         Comparing the June 2013 Voters’ Roll with the 2012 Census, there are 63 Constituencies where there are more registered voters than inhabitants;

·         There are currently nearly 1 million potential voters aged under 30 years who are unregistered, but this may change in the aftermath of the intensive voter registration exercise;

·         There are well over 1 million people on the roll who are either deceased or departed;

·         That 40 Constituencies deviate from the average number of voters per constituency by more than the permitted 20%.

Copies of the full report can be obtained from the RAU website [www.researchandadvocacyunit.org].

The harassment of justice: A tale of a tale


A couple of months ago, I published “The Story of Beatrice Mtetwa-A Red Herring’ in which I posed a number of theories pertaining to Beatrice’s arrest. One of them was that Beatrice’s arrest was an intimidation tactic by state agents of all citizens who would wish to take the same stand as Beatrice; i.e. the stand to fight against any injustice visited upon individuals who are fighting for human rights and fundamental freedoms of citizens. I emphasised that Beatrice’s persecution and vilification was meant as an example calculated to ensure that sufficient fear was planted in all of us so that whoever doesn’t toe the correct political line, will face the full wrath of those in power, under the guise of the law.

This theory seems the most relevant given the continued onslaught that the state has launched against Beatrice. This blog however seeks not to over-analyse the reasons behind the onslaught but rather to give an update of how this case has proceeded.

  •  17 March: Beatrice Mtetwa was arrested in Avondale. On arrest she was charged with obstructing or defeating the course of justice in contravention of Section 184 (1) (g) of the Criminal Law (Codification and Reform) Act.
  • 18 March: at exactly 0151 a.m.  High Court Judge Charles Hungwe, from his home, ordered Beatrice’s immediate release. He argued that there was no basis for her continued detention since the allegations laid against Beatrice did not reveal a criminal offence.
  • 18 March: around 0230 a.m. Beatrice’s lawyers served Justice Hungwe’s order on officers at Rhodesville police station. The police officers refused to release Beatrice.
  • 18 March: Beatrice’s lawyers lodged an application in the High Court stating that the refusal by the police to enforce Justice Hungwe’s order was in contempt of court.
  • 18 March: Beatrice was told that she would appear in court on 19 March and based on this information her lawyers withdrew their application.
  • 18 March: Justice Hlatshwayo dealt with the withdrawn application and dismissed it with no reasons given.
  • 19 March: Beatrice appeared before Magistrate, Marehwanazvo Gofa, at Rotten Row Magistrates Court represented by Advocate Thabani Mpofu to determine her remand conditions. Advocate Mpofu argued that this hearing should not have been done in the Magistrates Court since an order of the High Court a more superior court had already granted Beatrice’s release.
  • 19 March: Advocate Mpofu argued that Beatrice had not been treated well in police custody because in the dead of the night, on 18 March two male police officers entered Beatrice’s detention cell at Rhodesville Police Station and attempted to uncover her from her blankets. Beatrice feared that she might be raped.  Further, she had not been allowed to bath since her arrest.
  • 19 March: the Magistrate ruled that the case was rightly before the Magistrates Court because the issue of her placement on remand was separate from the issue of her detention in police custody.
  • 19 March: Beatrice’s lawyers proceeded to request that she be remanded out of custody and gave reasons why she should be granted bail including that she is a highly reputable and established lawyer, with no criminal record.
  • 19 March: the Prosecution requested an adjournment to respond to Beatrice’s lawyers’ argument and the Magistrate adjourned the case to 20 March 2013.
  • 20 March: the State argued that Beatrice should not be granted bail because the charges she was facing were very serious, that she would likely abscond because she had a foreign passport, or that she would interfere with investigations if released and that her release would set a dangerous precedent. “Anarchy would prevail”, they argued.
  • 20 March: Magistrate Gofa bought into the prosecutor’s argument and dismissed Beatrice’s bail application and remanded her in custody to 3 April.
  • 21 March: Beatrice’s lawyers appealed this decision in High Court.
  • 22 March: Justice Joseph Musakwa heard the appeal.
  • 22 March: State requested adjournment of the appeal to ‘allow time to submit their response.’ Justice Musakwa agreed to the adjournment and set down the appeal hearing for 25 March.
  • 25 March: Justice Musakwa granted Beatrice $500 bail setting aside the Magistrate’s on the basis that Beatrice’s reputation was too great to be ignored and that the police had not shown how much of the investigation was left to be “interfered with.”
  • 3 April: Beatrice appeared before Donald Ndirowei for a routine remand hearing. Magistrate Ndirowei postponed the matter to 8 April to allow the State to determine a trial date and her lawyers to challenge her being remanded.
  • 5 April: the prosecution served Beatrice with papers setting out their case against her.  The prosecutors added fresh allegations against Beatrice.  The fresh allegations stated that on top of saying “Stop whatever you are doing, it’s unconstitutional, illegal and undemocratic,” as was the case in the initial charge, Beatrice had also said “You confused cockroaches”  “Murimbwa dzaMugabe” i.e. “You are Mugabe’s dogs” and that she had conducted herself in an ‘indecent’ manner when she threatened to relieve herself in a public place.The case named nine witnesses set to testify. These were:
  • Chief Superintendent-Luckson Mukazhi
  • Detective Assistant Inspector-Wilfred Chibage
  • Detective Constable-Ngatirwe Mamizi
  • Detective Sergeant-Taizivei Tembo
  • Assistant Inspector-Thabani Nkomo
  • Chido Chawanikwa-a police officer
  • Stembiwe Vera-a caretaker at Prime Minister Morgan Tsvangirai’s research and development office
  • Brian Mutusva-a computer technician in the Prime Minister’s Office and
  • Zororai Mudariki-a driver.
  • 8 April: Beatrice appeared in the magistrates’ court. The state’s case was led by Tawanda Zvekare, Acting Director of Public Prosecutions in the Attorney General’s Office, assisted by Michael Mugabe, a chief law officer.
  • 8 April: Beatrice was remanded on bail and the case was adjourned to 27 May when the trial was expected to begin.
  • 27 May: Beatrice’s case was set to start at Rotten Row Magistrates Court presided over by Magistrate Tendai Mahwe. The trial failed to start on time because Tawanda Zvekare, the Acting Director of Public Prosecutions in the Attorney General’s Office and Michael Mugabe, the chief law officer who were leading the prosecution did not arrive at the court on time. The trial was also delayed because the designated courtroom did not have the necessary equipment to record the proceedings. Then when eventually a courtroom with equipment was found, power went off.
  • 27 May: Magistrate Tendai Mahwe postponed Beatrice’ trial to 8 June 2013.
  • 8 June: Magistrate Tendai Mahwe recused himself from presiding over Beatrice’s trial after she had filed an application for such recusal stating that Magistrate Mahwe had already heard the testimony that her witness would give in another case.
  • 10 June: Beatrice’s trial kicked off at Rotten Row Magistrates Court presided over by Magistrate Rumbidzai Mugwagwa. She was represented by her lawyer, Harrison Nkomo. Beatrice pleaded not guilty to charges of defeating or obstructing the course of justice.
  • 10 June: Magistrate Rumbidzai Mugwagwa postponed Beatrice’s trial to Saturday 15 June 2013 to allow her lawyer to attend to some other matters in the High Court.
  • Meanwhile the trial continues with hearings held each Saturday and we wait to hear what the final verdict will be.

Anomalies with this case

  • Arrest of a legal practitioner while conducting her duties;
  • Contempt of court by police officers ignoring a High Court order;
  • Retrial by the Magistrates Court of an issue that had already been decided by a higher court;
  • Harassment of a High Court Judge for ordering the release of an upright human rights defender;
  • Display of political intolerance and disregard for constitutional and legal guarantees of freedom and rights of citizens.

**** If convicted, Beatrice stands to serve a maximum penalty of either a fine of $400 or 2 years’ imprisonment, or both fine and imprisonment. ****

 Acknowledgement goes to Zimbabwe Lawyers for Human Rights, Sokwanele, Veritas, Kubatana and a few other independent sources of information for the information resources used to compile this update.

ZIMBABWE’S DUAL LEGAL SYSTEM


Zimbabwe is often stated to have a “dual legal” system, whereby traditional customary laws run parallel to the formal and statutory laws of the State. However, it now seems increasingly possible to say that another duality is emerging, the law as it is and the law as interpreted by ZANU PF, its sycophants, acolytes and supporters, overt or covert. Curiously enough Dr. Madhuku has recently made several odd pronouncements on the law which are closer to the latter than the former and seem more in keeping with his announced intention to venture into politics, than as a legal expert.

His latest such pronouncement, if the Herald of Monday 17th June 2013 is to be believed, is that Mugabe is unable to approach the Constitutional Court, as requested by SADC, to extend the 31st July election date deadline, as was ordered in the Mawarire case on the 31st May, 2013. The apparent basis for this contention is that the Concourt is unable to alter an order which has already been implemented.

This contention is bizarre. Subsection 38(4) of the Electoral Act specifically allows the dates given in an electoral proclamation to be changed by the President. According to Dr. Madhuku’s argument, since the Constitutional Court order has already been implemented, the President would be free to use subsection 38(4) to move the election date beyond the 31st July, without being in contempt of court, as he had already implemented the order as required. This is manifestly not so. The clear import of the Concourt order is that whatever election date is proclaimed, either as originally set or as altered, it must be one which ensures that the election takes place before 31st July. (And here we are supposed to ignore the argument advanced by Dr Madhuku and the Minister of Justice in 2008 around the date for the Presidential run-off election, that “the election” does not mean the date of voting but the entire electoral process ending only upon the announcement of the result – an argument which now seems forgotten in applying the Concourt order).

It seems necessary to state the obvious. The logic of the Concourt judgment, and the order issued, is that the election date the President must set, must be one that ensures that the election is held before the 31st July. If he wishes to use section 38(4) to change this date, to avoid being in contempt of court, he must approach the court to indicate why he is unable to apply the order – as he did so many times before in the case of the court orders issued around the by-elections.

There is a difficulty here, however. The basis upon which the extension could have been requested has changed. Initially it seemed that the President could not comply with both the Concourt order and the Constitution and electoral legislation. The Constitution requires a 30 day intensive registration process which the parties agreed in Cabinet had commenced on the 9th June (though which the Minister of Justice has since claimed was somehow self- implementing the moment the new constitution was passed). The Electoral Act provided/provides that voter registration must end the day before the nomination court sits. Thus the nomination court could not sit before the 9th July, and, as the Constitution provides that elections can be held no sooner than 30 days after this, bringing elections to the 9th August, there could be no simultaneous compliance with the Concourt order. Furthermore, the new constitution also provided that the Electoral Act could not be changed once the election dates had been announced. As the constitutionally mandated amendments were unlikely to come before parliament before the 17th June, and the new constitution requires a minimum 44 day period between the proclamation of the election date and the election itself (now interpreted to mean election day), once again it seemed that the need to amend the Electoral Act meant that the Concourt order could not be complied with without breaching the Constitution.

The President attempted to deal with both these problems by use of the Presidential Powers (Temporary) Measures Act (PPTMA). He thus issued Regulations, purportedly under that Act, not only incorporating the amendments to the Electoral Act relating to proportional representation etc, but also, reportedly, to change the Electoral Act so that voter registration may continue after nomination day.

This then supposedly resolved the problem of the constitutional requirement of the 30 day intensive registration period and the difficulty of amending the Electoral Act before proclaiming the election dates. The extension of 31st July deadline on the ground of unconstitutionality was thus seemingly extinguished.

However, the Regulations issued under the PPTMA are themselves unconstitutional. This is not on the basis of section 134 of the new Constitution, which precludes Parliament from delegating its law making authority, as the Prime Minister’s office has suggested, since is not yet in effect. It is because both the old and new constitution specifically require that electoral law is made only “by an Act of Parliament” and emphasises this is so particularly in relation to voter registration, a provision, as noted above, that the President has purported to alter by Presidential Regulation and not an Act of Parliament.

In considering the extension of the July, 31st the Concourt may be asked to rule that using the Presidential Powers (Temporary Measures) Act, as the President has done, to alter the Electoral Act is illegal, and that the problems relating to the amendment to the Electoral Act and the 30 day registration period remain, rendering the 31st July date constitutionally impossible.

However, the same judges who will adjudicate this matter have been reluctant to interpret the PPTMA as being restricted in this way by the Constitution. In 2002 in the matter of Tsvangirai v Registrar General, when precisely this issue was raised, only Sandura JA dealt with the point, holding that the PPTMA could not be used to amend electoral legislation. The remainder of the judges sidestepped the issue, and (astoundingly) held that Tsvangirai did not have the right to approach the court (locus standi) on the matter. Furthermore, if the President or the Minister of Justice makes the application for the extension, neither of the two could be expected to suggest to the court that the use of the PPTMA to amend electoral legislation, was illegal, now the sole basis for the extension.

An alteration of the 31st July deadline will also be a tacit admission by the Court that its order in the Mawarire case was legal nonsense. It will thus be a matter of no little interest as to how these judges will approach the Application to change the date, which has now been filed by the President.

Derek Matyszak

19.06.13.

Reforms and elections: The need for a Transitional Executive Council


When South Africa was faced with the problems of negotiating its transition by an election in 1994, it produced an extremely important mechanism to ensure that the election would be free and fair, and that the overwhelming power of the South African state (dominated by the National Party) could not be used to the advantage of the government in power. It did this by creating a Transitional Executive Council, a body that would exercise some of the delegated powers of the government and Parliament. This was a highly successful innovation that, in fact, was crucial to South Africa holding a wholly valid election, and moving safely to a change of regime. The TEC idea has considerable merit for Zimbabwe presently.

Consider the objects of the TEC:

(a) creating and promoting a climate for free political participation by endeavouring to:

(i) eliminate any impediments to legitimate political activities;

(ii) eliminate any form of intimidation which has a bearing on the said transition;

(iii) ensure that all political parties are free to canvass support from voters, to organize and hold meetings and to have access to all voters for the purposes thereof;

(iv) ensure the full participation of women in the transitional and electoral structures and processes; and

(v) ensure that no Government or administration exercises any of its powers in such a way as to advantage or prejudice any political party;

(b) creating and promoting conditions conducive to the holding of free and fair elections;

 

Now the whole object of passing the Transitional Executive Council Act in 1993 was specifically to overcome similar problems to those currently faced by Zimbabwe. This highly innovative and courageous solution to the polarization in South Africa needs investigation by Zimbabweans[1].

Zimbabwe currently has a security sector blatantly (and illegally) expressing affiliation to apolitical party; the whole administrative apparatus (civil servants, local government officials, traditional leaders, etc.) of the state also affiliated to one political party; and finally the (mostly) discredited electoral machinery under the control of one political party. These are hardly the conditions under which a genuine, democratic election can take place, and this is the litany continuously and loudly proclaimed by political parties and civil society.

But how to then change this situation in the rapidly closing space ahead of the elections? Certainly there is insufficient time for legislative reform: there was barely enough time to pass the amendments to the Electoral Act, although this now seems remedied by Presidential decree. And it is certainly the case that both political parties and civil society generally has paid far too much time to the constitutional process and too little time to the process of reform. There have been many opportunities for the two MDCs to engage the crucial matters around reform, but this is not the place to recollect the missed opportunities. There has been a great opportunity under the GPA for civil society to re-position itself again as the watchdogs over the Inclusive Government, but this too has been largely lost.

This may all be water under the bridge with elections now slated for 31st July, but what was needed is for the political parties to agree that, taking a leaf out of the South African book, there is need to create the appropriate oversight bodies to ensure that the elections conform to the SADC Principles and Guidelines for the Holding of Democratic Elections. As was the case in South Africa, the government needed to create a Transitional Executive Council, and the requisite number of sub-Councils) to oversee the process.

This, of course, requires the political will to delegate much of the powers of the Government and the Presidency to a new body, but this is what was done for the South African elections in 1994, and the world acclaimed both the process and the wisdom of the political leaders: Nelson Mandela and F W de Klerk were awarded the Nobel Peace Prize.

How would this work in practice?

By Act of Parliament, an overall body would have been established to run the country up until the results were announced. This body would have been composed of representatives of all political parties, and it, in turn, would have established the sub-bodies to provide oversight of the electoral process. This needed not to be as comprehensive as was the case in South Africa where a large number of sub-councils were established: law and order, stability and security, defence, intelligence, foreign affairs, status of women, finance, and regional and local government and traditional authorities.

For Zimbabwe, only four key sub-councils would have been necessary: security sector (police, army and intelligence), media, local government, and traditional leaders. These would have been sufficient to ensure that the partisanship seen in all these areas was at least minimized. All Zimbabweans know that these are the critical institutions that allow or disallow free democratic activity, and, if constrained from being partisan, they could create the conditions for the kinds of poll that all Zimbabweans dream of. That Zimbabweans dream of freely and fairly voting is so evident from the recent referendum: that one million more voters turned out than in the previous elections in 2008 not only points out how many are currently disenfranchised, but also shows how keen Zimbabwean citizens are to participate in the political life of the country.

Could Zimbabweans ask for any less than this in our extremely vexed and polarized position? Could SADC ask for less in the light of their continual demand for reform? Will the President take this final opportunity to leave the legacy of an election that all can be proud of? Perhaps then we can have an election where, whichever party wins, the citizens can move into to the future knowing that they have freely elected the government of their choice?

However, another opportunity has been lost, and once again democracy is likely to be the loser in Zimbabwe.


[1] For a copy of the Transitional Executive Council Act,  see the Southern African Legal Information Institute. ]http://www.saflii.org/za/legis/num_act/teca1993336/]

THE ELECTION DATE CIRCUS, ACT II?


In several articles recently posted by RAU, it was noted that the President cannot comply with both the Electoral Law as it currently stands, and with the Constitutional Court ruling that elections be held by 31st July, 2013. Today’s (10.06.13) Herald has Professor Madhuku stating in effect “No problem. Mugabe can just use the Presidential Powers (Temporary Measures) Act to alter all the necessary provisions of the Electoral Act to enable him to meet the deadline”.

This suggestion gives rise to several deep ironies. It was Madhuku himself who is supposed to have hailed the Concourt ruling on the ground it would be undemocratic for the President to “rule by decree” (i.e. use the Presidential Powers (Temporary Measures) Act) without Parliament to operate as a check on his power. So now, in order to meet the Concourt deadline, it is suggested that the President unilaterally, without the consent of the other major parties, and without the oversight of Parliament alter the law governing an election in which he is a candidate. The law is thus to be changed to cater for an ah hoc court order issued due to a breach of the Constitution by the President. Any problems with the democratic nature of that, Professor Madhuku?

The second irony is that the new Constitution specifically includes a provision that once election dates are announced the electoral laws cannot be changed. This provision was undoubtedly inserted to prevent that which had happened before, when the President took advantage of the fact that Parliament was dissolved to issue a decree reinserting a provision into the Electoral Act which Parliament had but a few months before removed – one which allowed police officers into polling stations.

The Presidential Powers (Temporary Measures) Act provides that any laws made by the President in term of this Act must be laid before Parliament within eight days, whereupon Parliament may repeal or amend the law, or leave it as is.

However, the question will arise then as to whether this provision will apply if the election dates have been announced. Our Concourt may well hold that the provision in the Constitution that the electoral law cannot be changed overrides this provision of the Presidential Powers (Temporary Measures) Act. The irony then is that a provision designed to prevent the President from altering electoral law, has in fact strengthened his power to do so, as once the President has unilaterally made the law and announced the dates, it cannot be changed by Parliament. Furthermore, while the whole reasoning behind the Concourt deadline is that rule by the President without Parliament is undesirable, the effect is, according to Madhuku, to compel him to do precisely that.

However, it may be that on a correct interpretation of the Presidential Powers (Temporary Measures) Act and the new Constitution this situation will not arise.

To comply with the Concourt ruling the President will have to alter provisions of the Electoral Act specifically agreed between the main political parties and which formed part of the 2007 amendments to the Act – that is, that voter registration must end 24 hours before the nomination court sits. It is this provision which prevents the President from complying with the 30 day registration period in the Constitution and the Concourt order.

However, The Act does not allow the President tomake a law “providing for any … matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act”. Voter registration is provided for by the new Constitution and section 157(1)(b) is to this effect:

157(1)  An Act of Parliament must provide for the conduct of elections and referendums to which this Constitution applies, and in particular for the following matters…

The “matters” then listed include proportional representation, the election of persons with disabilities, the election of provincial and metropolitan councils and the registration of voters.

So it is an Act of Parliament that must provide for this, and not a Presidential decree.

If there is to be compliance with the law, it seems that the President will have to ask the Concourt for a postponement, which he proved very good at during the by-election saga. The problem for the President is that if he is able to ask for a postponement to another date, this will then make it clear that the 31st July, 2013 is not carved in stone by the law, as ZANU PF would like the populace to believe.

New Bottles: Old Wine-An analysis of the Constitutional Court Judgement on Election Dates


On Friday 31st May, 2013 the newly established Constitutional Court issued its first judgment, that is the case of Jealousy Mbizvo Mawarire  v Robert Gabriel Mugabe N.O. and Ors CCZ1/13. The judgment concerned an urgent application by Mr. Mawarire, brought on the basis of a claim that the President was constitutionally obliged to set the dates for Zimbabwe’s next general election no later than the day after the 29th June, 2013 when Parliament reaches the end of its constitutionally prescribed five year term. The failure to do so, Mr. Mawarire maintained, was a breach of his constitutional rights and would have the unconstitutional effect of the country being governed without a Parliament.

The case had various bizarre and curious facets even before the judgment was delivered. President Mugabe had repeatedly stated his desire to hold elections as soon as possible after the passage of the new constitution into law on the 22nd May, 2013 and well before October 29th, 2013, the date the MDC formations had contended was the latest possible constitutional date for the poll.

Thus the immediate question which arose was, if this was the President’s desire, why did he not exercise his presidential prerogative to dissolve Parliament and announce the earlier election date? It is clear that Parliament was required to bring the new constitution into being, and hence Parliament could not have been dissolved before the Constitutional Bill became law. However, did this in any way mean that the President could not have proclaimed the dissolution of Parliament at a future date that allowed ample time for Constitutional Bill to be passed?

There were also several other complications related to the proclamation of elections:

  1. The MDC formations and SADC all insisted that various reforms had to take place before elections
  2. Prior to the adoption of the new constitution, it was a constitutional requirement that the MDC-T Prime Minister, Morgan Tsvangirai, had to be consulted on the date of the dissolution of Parliament, if it were to be dissolved by proclamation rather than by automatic dissolution through the passing of time

It would not have been politically expedient for the President to have brought the application before the Constitutional Court himself. However, a, Mr. Mawarire stepped up to the plate and brought the application “against” the President.  Unsurprisingly, the President’s “opposing” paper, rather than disputing the Applicant’s case, as is usual, wholeheartedly agreed with his argument, though did not it seems, having agreed with the Applicant’s interpretation of the law, offer any reasons why he had then failed to comply with it

The issue before the nine member bench of the Supreme Court, sitting as the Constitutional Court, was to determine the chronological parameters mandated by the constitution for the holding of a general election following the dissolution of Parliament. The dissolution of parliament can take place in one of two ways;

  1. Either following a proclamation by the President, or
  2. Through the effluxion of time when the five year term of Parliament ends.

The determination of the issue revolved around the interpretation of subsection 58(1) of the old constitution, as read with subsections 63(4) and 63(7), which are still to apply until the new constitution becomes fully operational.

Section 58(1) provides as follows:

A general election and elections for members of the governing bodies of local authorities shall be held on such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.

The judges of the new Constitutional Court seized with the matter were not fresh judicial appointees.. Chief Justice Chidyausiku wrote the judgment for the majority.. In the judgment  he construed section 58(1) so that its meaning became ambiguous. This was done by violating some very basic rules of grammar in the following way.

He inserted colons into the section (where none existed in the original) ostensibly to highlight what he claimed was the ambiguous nature of the provision, but in factto creating an ambiguity that did not exist before.

The insertion of punctuation can dramatically change the meaning of a sentence, for example:

‘While the mother was cooking the baby her brother and the dog were sleeping.’

When punctuated, the sentence is easier to read.

‘While the mother was cooking, the baby, her brother and the dog were sleeping.’

But leave out a comma and the text becomes more sinister

‘While the mother was cooking the baby, her brother and the dog were sleeping.’

By inserting a colon after “on” in section 58(1), Chief Justice Chidyausiku altered the meaning of the provision to read:

          58(1) A general election and elections for members of the governing bodies of local authorities shall be held on:

i)                    such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or,

ii)                  as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.

 By the insertion of the colons, Justice Chiyausiku creates a new meaning for section 58(1), which gives the Applicant the desired result. That meaning is that the President must have set the election date within a period of four months before the dissolution of Parliament and that an election should be held upon the dissolution of Parliament.

This is not what the law (without the colons) says. The law says an election shall be held within a period of four months AFTER the President issues the proclamation Parliament dissolving parliament or within a period of four months AFTER Parliament dissolves automatically at the end of its five year term. That five year term  ends on 29 June and the law allows the President to continue in office, in this event, after Parliament has been dissolved, but with the requirement that he to set an election date within four months from the time of such dissolution..

Further, the Chief Justice in coming to his conclusion made the assertion that reading the ‘after’ to mean precisely that i.e. ‘after’ would create a ‘mind boggling’ situation in which the country existed without Parliament. This is not a sound argument. The Chief Justice knows very well that:

 

  1. In the past the date for an election has always been announced AFTER, and not BEFORE, dissolution of Parliament which has meant that the President previously has continued to be in office without a ParliamentThe Constitution, in fact, specifically allows for Parliament to be ‘prorogued’  (delayed) for periods of as much as 180 days,[1] and the power to prorogue Parliament for such an extended period  lies with the President under the current constitution.
  2. The executive continued to function without legislative oversight for five months between the dissolution of Parliament for the March 2008 election and the start of the seventh Parliament in 2008 without anyone’s mind being boggled or any ruling of absurdity being made.

Even if this judgment is correct, the Chief Justice did not avert to some very important facts that may make it impossible for the President to comply with the 31 July deadline:

  1. Provisions of the new constitution, which are effective from the date of publication, stipulate that there must be at least 44 days between the proclamation of the election dates and the Election Day itself.
  2. The new constitution also provides that the Electoral Act cannot be changed once the election dates have been announced.
  3. The Electoral Act must be amended to bring it into line with the new constitution, especially in regard to the introduction of a system of proportional representation.
  4. The President cannot proclaim the election dates until the amendments to the Electoral Act have been finalised.
  5. There is no guarantee that the amendments to the Electoral Act will be agreed upon  and finalised at least 44 days before the 31st July, 2013. This means that the President may then either have to violate the constitutional requirement that 44 days elapse between the electoral proclamation and the election itself, or fail to meet the 31st July, 2013 deadline.

 


[1] Section 62(2) of the Constitution.

This article was adopted from an opinion piece written by Derek Matyszak. To read more please folow this link on the RAU Website

Prioritising education on the political agenda


The  “shocking pass rates” or should we say failure rates in the 2012 Ordinary level results are just a symptom of deep-rooted problems that have been developing in Zimbabwe’s education sector over the years. Reforming the education sector should be a top priority for any government or party that seriously wants to take charge of the echelons of power. This can be done by placing education at the core of their campaign strategy. The RAU reports (“Every School has a Story to Tell: A Study into Teachers’ Experiences with Elections in Zimbabwe” and “Political violence and intimidation against Teachers in Zimbabwe” available on the RAU website documented the crisis from the perspective of politically motivated attacks on teachers and the impact this violence has had on not only the teachers, but also on the economy, especially the increase in unemployment amongst the youths. RAU also looked at the impact of exposure to violence on school children when teachers were attacked in front of pupils.

In its recommendations RAU spear-headed a campaign to have schools declared as zones of peace z and for all political activities taking place at schools to be banned. The rationale behind this is that in times of major political events in Zimbabwe such as elections, considerable amount of learning time is lost as politicians seize schools and school facilities to coordinate their campaign meetings. At the height of violence in 2008, 94% of all schools in rural areas were shut down as teachers fled violence and therefore there was no point in parents sending their children to school. In most cases, teachers and pupils were forced to attend rallies and these were done during school hours. To demonstrate that these assertions are not just historical reporting, it is alleged that as we speak some schools in Manicaland and Mashonaland East have been forced to give offices to militias or ‘war veterans so that they can coordinate their activities ahead of elections. This alone constitutes an attack on education and only a political directive can rectify that. The rationale of peace zones is derived from war situations where there is an agreement not to physically attack institutions of learning as well as medical facilities. Zimbabwe is not in a war situation, but the political situation during elections has in the past resembled ‘war’, where violence has been used as a political tool. By declaring schools as zones of peace, this allows children to continue attending school without hindrance; and protects teachers from attacks from political elements. Anything that has a negative bearing on education such as attacks on teachers is considered an attack on education. Any acts that affect the smooth running of schools/education should become punishable offences. In that light, the adoption of the new Constitution which explicitly guarantees education as a right compels government to legislate supporting laws that enable the right to be enjoyed by every child in Zimbabwe.

It is important for the Ministry of Education to carry out empirical studies on the impact of conflict on the education sector and measures to address these. Special attention should be given to solving the problems created for children due to the conflict, like mental stress, exposure to violence and displacement, by incorporating different programs of reconciliation, mutual goodwill and peace in education programs.  The link between education, peace and development is evident from the period when Zimbabwe emerged from colonial government to majority rule. At that time, education played a pivotal role in building a human capital base that is still revered throughout the world. The same period was also marked by peace and development.

While there are many factors that have contributed to the crisis in education including the decrease in donor support for education, violence is a single factor that does not require funding to change the overall outlook. It requires political will, a community shared vision that education is at the centre of communities moving from abject poverty to emancipation and that every child must be protected and supported through provision of safe schools that allow the mind to positively grow.

By declaring schools as zones of peace, the state will be taking bold steps towards redressing issues to do with community security and violence in the communities, especially violence targeting women and young girls. The campaign will ensure that the future of Zimbabwe; the youths, are not engaged in violence largely caused by idle minds as a result of a failing education system.