GNU II?


The preamble to the resolutions which emerged from the recently concluded ZANU PF 13th National People’s Conference noted “that the GPA and the Inclusive Government, legally and constitutionally, ought to have come to their end after the expiry of the two years reckoned from the inception of the Inclusive Government”. This observation by the Conference is simply wrong. In fact, the GPA
provides a start date only – the date of the signing of the agreement (15.09.08) – and no end date. The existence of the GNU is specifically stated, in Schedule 8 to the Constitution, to be contingent upon the existence of the GPA. Since the GNU lasts for so long as the GPA is in
existence, and that agreement is open ended, then so too is the life of the GNU.
The misconception that the GPA provided a two year life-span for the GNU arose from Article 6 of the GPA. Article 6 set out a specific 18 month timetable to be followed for the making of a new constitution for Zimbabwe. The process was to commence within two months of the
inception of the GNU and thus should have been concluded about two years after the signing of the GPA. However, the GPA does not state that a general election must be held after a referendum on the new constitution. The GPA does not in fact mention the timing of the next
general election at all. It is thus not a constitutional requirement that a referendum on a new constitution must take place before general elections can be held.
So when does the GPA (and thus GNU) end and when must elections be held?
The GNU will end if any party resiles from the GPA, which may be done at any time. With the termination of the GPA for whatever reason, Schedule 8 to the Constitution, and thus the GNU, fall away.
The obvious intention of the current Constitution is that presidential elections and parliamentary elections be held simultaneously. It is also clear that the life span of Parliament is generally five years commencing on the day the President entered office following elections (29.06.08) and that elections must be held within four months of the dissolution of Parliament. Furthermore, section 23A of the Constitution provides that, every Zimbabwean has the right to free, fair and regular elections. A failure to hold elections after the dissolution of Parliament would contravene this provision. Schedule 8 to the Constitution on the other hand, provides that the Office of
President “shall continue to be occupied by President Robert Gabriel Mugabe.” There is obviously no point in holding a presidential election if Mugabe is to continue in office notwithstanding any contrary result of that election. It must thus be assumed, even though the
badly drafted GPA does not state as much, that the GPA and GNU will not continue after any election. But the precise date of termination is not known. Should it end when Parliament is dissolved or should it end once the results of the next election are announced?
At the latest however, the GNU must, by implication, come to an end, with elections. The next question, then, is when must such elections take place, as a matter of law? We have seen that elections must take place within four months of the dissolution of Parliament. This may be the automatic dissolution after five years, or an earlier dissolution by the President, which must be with the consent of the Prime Minister, if the GPA is still in place.

However, the mandatory dissolution of Parliament in June 2013 can be constitutionally delayed. If the President makes a Declaration of War, the life of Parliament may be extended, yearly, for up to five years. Similarly, it may be extended when the President has made a Declaration that a state of emergency exists or that a situation exists which may lead to a state of public emergency. If this Emergency Declaration remains in place, the life of Parliament may be extended for up to one year. No criteria are set for the circumstances in which such a Declaration may be made and the President has an absolute discretion in this regard, subject only to the need for ratification within 14 days of the announcement by the House of Assembly.

While the Emergency Declaration remains extant, the State may hold persons in “preventative detention” and no action taken to deal with the state of emergency or possible emergency may be deemed to be in contravention of constitutional rights pertaining to the right to liberty, freedom from arbitrary search, and freedoms of association, expression, freedom of movement and freedom from unfair discrimination. The ability to make an Emergency Declaration could be manipulated for political purposes through collusion between the President and the House of Assembly. Thus the possibility exists for the main political parties to agree that, for example, that the failure to conclude the constitution making process has led to a situation which, if allowed to continue, may lead to a state of public emergency. The life of Parliament could then be extended for up to one year. However the implications for basic civil liberties, if this course of action is followed, are profound.
The life of Parliament, the President’s term of office and thus the GNU could also be extended by a constitutional amendment to this end. The amendment might, however, be subject to challenge on the basis that elections are a fundamental feature of Zimbabwe’s constitutional
democracy and cannot be suspended by agreement between political parties. The extension of the life of Parliament in this way would clearly appear motivated by political self interest and expediency and undemocratic.
However, the current constitution making process suggests another means of continuing a unity government which avoids the disadvantages of those outlined above. The parties involved in negotiating the provisions of the new constitution may announce a deadlock and that they are unable to agree a final constitution for the country. Instead of a final constitution, the negotiating
parties could then indicate that the solution is to agree an interim constitution. This interim constitution would contain the provisions for a GNU II and contain clauses which create the conditions for free and fair elections within a stipulated time frame. For instance, the interim
constitution could include new provisions for the appointment of the heads of the security sector and the opening of the electronic media. The interim constitution could also provide for the sharing of executive power and that all sitting legislators retain their seats until the elections. If the interim constitution were successfully put to a referendum the arrangement could be held to have democratic legitimacy.
Defeat in the next elections could signal the demise of the losing political party. With both ZANU PF and MDC-T sensing the possibility of defeat, it is not entirely improbable that ZANU PF and the MDCs may seek to use a transitional constitutional mechanism to enter into
a GNU II. The problem for Zimbabwe is, however, that given the MDCs lack of negotiating acumen (manifested when the GPA deal was struck) it is likely that the MDC-T will make immediate concessions against the promise of future undertakings which will never be
implemented. This will lead Zimbabwe to two more years of stasis while the MDC-T continues its strategy of hoping for change in the office of the Presidency via Mother Nature rather than politics.

Can we afford to move the Capital City to Zvimba?


According to News Day, dated 13 November 2012, the capital city of Zimbabwe is moving to Zvimba in Mashonaland West. Zvimba is President Mugabe’s rural home, 40 km from the current capital Harare. The plans which are reported to be underway will include moving the headquarters of Parliament, government buildings including State House, the Reserve Bank and the Supreme and High Courts.  It is reported that an affluent residential area, shopping centres and hotels will also be established in the new complex.

If there is any truth in this front page article then we have a lot to worry about as it seems to be a move by a desperate man wanting to consolidate power, not cede it. Why would the capital city move to Zvimba except to cater to the whims of an aging man? This is what old men do in Zimbabwe, they retire to their rural homes. However in this case it will not only be an old man moving to his rural home but our President moving to his rural home and taking the capital city with him.

If it is true, where is the money for this coming from? Is it part of the US$2 billion reportedly made from diamonds that is not going to the Treasury?  There are more pressing issues to pump all that money into. For example;

  • Zimbabwe is suffering from crippling water shortages; there are some residential areas that have not had water for 5 years, there are burst pipes everywhere, and water borne diseases that are preventable are the order of the day.
  • Industry has dwindled to the extent that new graduates have little hope of finding jobs; unemployment is over 60%.
  • There is a critical housing shortage; many Zimbabweans will never own their own home.
  • Civil servants are paid on average US$250/month while the ZBC reports that an average Zimbabwean is earning about US$8.50 daily but spending around US$12.25 daily.  The everyday demands include transport fares, airtime, 2 loaves of bread, 1kg of meat and fresh milk. This is not including rent, clothes and school fees.
  • The roads are in a deplorable state now that the rainy season has begun; the pot holes are getting deeper and wider.

This is not an exhaustive list as there are many more areas where money could be utilised to the benefit of all Zimbabweans not just the selected few. This is yet another example of a country that does not have its citizens at heart? Are we as Hararians going to sit back and watch as our status is taken away from us, let us for once say no!

Everyone can win and all have prizes?


Yet another phase in the constitutional reform process is over, and, like all the phases before it, progress is very hard to discern. As with the GPA itself, which stays stuck on exactly the same issues that were a problem from the outset, the constitutional process remains stuck in the same way: presidential powers, security sector oversight, devolution, and the like were always going to be points of contention, and so they are still. If we wonder about all of this, then pay attention to the recent comments by Patrick Chinamasa and Rugare Gumbo.

When these senior politicians state baldly that the military will not accept any government than a ZANU PF one, this is merely another way of stating that ZANU PF itself will not cede political power, and this has been the fundamental problem since March 2008. As Brian Raftopoulos recently pointed out, Zimbabwe is now in stalemate, but in reality did it ever get out of stalemate from the beginning in 2008? Raftopoulos makes plain what few seem willing to grasp: the ZANU PF strategy “has been to manipulate and stall the reform provisions in the GPA, and to regroup and reconfigure its political resources after plunging to the nadir of its legitimacy in the 2008 electoral defeat”.[1]

This is not a trivial point, and, despite all external bodies’ claims that there is progress under the GPA and the Inclusive Government, this is all in spite of, and not because of, a genuine transitional arrangement: this was a peace treaty, not a move towards transition. This is not to deny progress towards stability in many areas, but, without the major political issue being addressed, it is doubtful that this progress can be sustained. And it is the basis for a genuine election process and a meaningful transition to democracy (however defined) that is the major problem.

As the guarantors of the GPA, SADC has insisted on a “road map” for genuine elections, which included both constitutional reform and the reform of institutions. The former is now stuck in competing demands, and there has been absolutely no attempt at the latter. Furthermore, without the restoration of national institutions, even a constitution that was agreeable to both of the major political parties could not guarantee a genuine election in the absence of real civilian oversight of the military, the insistence on non-partisan policing, the removal of the ZANU PF monopoly over the state media, the impartiality of the Office of the Attorney-General, and the removal of political control over local government and traditional leadership.

Time is now running out. The constitutional requirement for elections in 2013 marks a line in the sand, whether this takes place in March, called early by President Mugabe, or after June when the life of the present Parliament is over. So what can be done?

The response of the international community will be crucial to future development, and the unlocking of the stalemate. Brian Raftopoulos, amongst others, points out the vital necessity for all the internationals to be of one mind here. It will be critical that the AU, the EU, the US, and BRICS back fully whatever position is adopted by SADC. Any division will be extremely unhelpful, and, as has been so forcefully demonstrated during the life of this GPA, will allow ZANU PF to manoeuvre using the marginal claims of “sovereignty”.

However, what can actually be done depends very much on what happens in the next eight months, and there seem to be only three possible scenarios. We can ignore the effects of a new constitution or not: it is improbable in the extreme that any new constitution will take effect before a new election, and hence problems evident in previous elections will still apply. There is no wholly independent electoral machinery, all state institutions still owe fealty to ZANU PF, and the media remain in thrall of ZANU PF. This restricts the range of possible outcomes.

The first possible scenario is that elections are called early, in March 2013. This will require the President dissolving Parliament, and an election taking place within 90 days. In effect, this will mean that Mugabe is also ending the GPA pact, but he will be legally entitled to do so, no matter the previous protestations of the two MDC’s or the demands by SADC. There may be several possible consequences here. Should SADC be insistent, and consonant with their previous demands, that an election without reforms is unacceptable, SADC may refuse to accept this election ab initio, which would create an opportunity for the MDC’s to boycott. This could create a major regional crisis, force new negotiations about a transitional arrangement, and negotiations in which ZANU PF’s hand will be severely weakened. This is possible if SADC remains strongly and consensually committed to the demands made at previous summits and Troika meetings, but, as the International Crisis Group pointed out recently, SADC is not historically known for adopting strong positions with defaulting or deviant members[2].

Of course, should the MDC’s decide to participate, or SADC continue its generally weak response to regional crises, then an election takes place, and we will have to see the quality of this election and its acceptability. History suggests that the MDC’s participate, SADC does not pre-empt the process, and, following a flawed election, all parties are back to the negotiating table. 2008 all over again!

The second scenario suggests that no reforms happen, and June 2013, with the constitutional necessity for elections, arrives. All political parties will have to participate, SADC’s objections are vitiated by the potential constitutional crisis, and yet another flawed election takes place. This option avoids all (or any) political parties having to withdraw from the GPA, and forces SADC (and everyone else) to concede to the sovereign status of the Zimbabwe constitution. Crucially there have been no reforms as suggested in the GPA, and demanded by SADC. But there will be an election held under a legitimate constitution, but with legal institutions and under valid Zimbabwean law, but the only position that the externals can adopt will be to decide whether it meets the standards of a legitimate election. Most probably this election will not meet the test of acceptability, and hence back to the negotiating table.

The requirement to go back to the negotiating table will only produce a useful result if, as Raftopoulos suggests, all the internationals are ad idem about the way forward. Long term observers of Rhodesia and Zimbabwe will scarcely hope that this is possible.

The third scenario is even less palatable: an internal settlement between ZANU PF and MDC-T. The two parties agree on a continuance of the GPA for a specific time period, amend the constitution (again) to give effect to this legally, and avoid any need for an election in 2013. It is not the same as the Smith/Musorewa/Sithole pact of the 1970s since all parties are in agreement: unlike the 1970s, the major political players are not outside the deal. The minority parties may dislike this, but, since between them ZANU PF and MDC-T can easily raise the two-thirds majority needed for a constitutional amendment, their minority voice will be irrelevant. SADC, the AU, and the international community as a whole may also dislike it, but will hardly be in a position to politically react when it has such strong internal political support.

Against the first two scenarios, the third has something to commend it, but only if certain conditions are met. It may avoid the trauma that inevitably follows elections, and especially elections that involve a contest for the Presidency, which in contemporary Zimbabwe are always a contest for the real political power in government. However, the concern must be for what will be the basis that underlies the continued inclusive government. If it is merely a continuation of the existing GPA, this will be a disaster, and merely perpetuate the stalemate identified by Brian Raftopoulos. If it involves a thorough revision of the current GPA, removal of all the sources of ambiguity and contest, puts in place a genuine transitional arrangement (such as that put in place in South Africa in the 90s), has a specified time limit, and is wholly oriented towards creating the conditions for internationally accepted elections, then this may a very suitable political development.

Short of these changes, it will be a disastrous development. Under the existing GPA, ZANU PF has learned that, as long as they have the Presidency, they can govern quite happily with a minority in the House of Assembly. The weakening of the MDC-T will continue apace until they have gone the way of PF ZAPU under the Unity Accord, and the dreaded succession problem can be put aside for a while. In the Wonderland of Zimbabwean politics it may look like all will have prizes, but the reality is that there will be only one winner, and the losers will continue to be the Zimbabwean citizenry.


[1] Raftopoulos, B. (2012) ‘SPT-Zimbabwe Update No.5. October 2012: Towards another stalemate in Zimbabwe?’, 22 October, Solidarity Peace Trust: [http://www.solidaritypeacetrust.org]

 

[2] See ICG (2012), IMPLEMENTING PEACE AND SECURITY ARCHITECTURE (II): SOUTHERN AFRICA. Africa Report N°191 – 15 October 2012

Founding Principles in the COPAC Draft Constitution – Part 1


Did you know that the current Lancaster House Constitution does not explain what founding principles it is based on? That’s not a big deal-right? Wrong. It is important to define these principles.

Why are the founding principles important?

The founding principles of a constitution are important for the following reasons:

  • They are the core values on which a nation is founded
  • They guide the interpretation of the constitution itself
  • They inform the content of every law so that it is in line with the constitution
  • They reflect the aspirations of the nation and its hopes for the future

What are the founding principles in the COPAC Draft Constitution?

 1.       The supremacy of the Constitution

This means that the Constitution is the most important law in Zimbabwe. Any other law which contradicts or opposes the Constitution will be invalid and parliament can be advised to revise it or completely throw it away. So, for instance, if the Constitution provides for freedom of movement yet laws on loitering prevent women from being able to move around by themselves and regulations on acquiring passports are so difficult that many people are restricted from travelling outside the country, these laws and regulations could be challenged in a court of law for contradicting the Constitution and for taking away the rights provided for in the Constitution.

2.      The creation of obligations that bind natural and juristic persons

Natural persons are human beings. Juristic persons are entities or bodies that are created by law; these include companies, corporations, universities and such other institutions. What this principle means is that people and all other institutions have legal obligations within Zimbabwean law. They can be held accountable in courts of law. So if an industry dumps toxic waste into a river where people fetch their water or into a river that feeds into a source of water, the people can go to court and sue the company because the company is recognised as having an obligation not to infringe the rights of other persons.

3.      The recognition of the inherent dignity of each human being

What makes us, as human beings different from all other animals is the humanity (ubuntu), (hunhu) within us. That humanity is reinforced by our dignity. Hence if someone is humiliated or treated like an animal through torture or some other ill-treatment, then their dignity is stripped away. The COPAC Draft Constitution is protecting this dignity and defining it as one of the core values that make us Zimbabwean.

4.      Equality of all human beings

All men are born equal. That is why at birth we are all naked, tiny and vulnerable whether our parents are rich or poor; black, white or coloured; short or tall; fat or thin. This is how we were made. Inequalities begin when we treat each other unequally ,for instance when some people are given better protection by the law than others or when certain sectors of society receive land while others are denied the same right or when some people are targeted by the police, harassed and arrested for the same conduct that others are not. The Draft Constitution emphasises that all these inequalities should not exist and should not be allowed by law.

Part 2 to follow tomorrow.

Elections and By-elections – How does Justice Chiweshe’s decision measure against the Law?


Sometimes politics and law are in direct conflict, and this seems the case with the decision by Justice Chiweshe on the application by the President for further time over the (now) 27 byelections.
How does this decision now square with the so-called road map for elections wanted by SADC, and how does it exemplify the rule of law?
The election road map demanded repeatedly by SADC, and apparently agreed to by all political parties, includes a new constitution, electoral reforms, media reforms and realignment of the security sector.
The second stakeholders’ conference on the constitution is now set for the end of October. Following this conference, the final draft must then be presented to Parliament within a month. There is thus only political manoeuvering to prevent the draft from being presented to Parliament in late October. Parliament must conclude its debate on the draft within one month. The draft constitution is
then to be gazetted and a referendum held within three months. President Mugabe sets the actual date for the referendum within this period. If the draft is approved in the referendum, it must again be gazetted within one month and introduced into parliament for passage into law no earlier than 30 days after gazetting. There is no time limit set for the passage of the Constitutional Bill into law by Parliament, but, if approved by a two-thirds majority in parliament, the President must sign the act into law within 21 days.
So, if the one step follows the other immediately, and without delay, it is legally possible to have a new constitution in place before the end of March, as the only mandatory maximum (rather than minimum time frame) is the 30 day period which must be allowed between the gazetting of the Constitutional Bill and the passage of the Bill through Parliament. However, if the maximum periods provided for in the GPA are applied, the constitution cannot be in place before the end of March. And, as has been seen, the maximum periods provided by the GPA have been ignored and exceeded in every step of the process so far, and there is no reason to think that this pattern
will not continue.
The presidential proclamation for elections must set a date for the sitting of the nomination courts no earlier than 14 and no later than 21 days after the proclamation, and an election date no less than 28 days, and no more than 50 days, after the sitting of the nomination courts. Thus the earliest date for an election after the gazetting of the presidential proclamation is 42 days thereafter and the latest 71 days. For an election to be set for the end of March, the proclamation therefore would have to be in mid-February, 2013, or earlier. Presumably the new constitution would need to be in place before the proclamation if Zimbabwe is to adhere to the road map.
However, having said this, is there a serious intention of the part of ZANU PF to call for elections in March, or has this simply been a strategy to avoid the complications which will arise if the President is seen to be in contempt of court for not setting the dates for by-elections none of the main political parties want?
In any event, the grant of the extension to this date for the three by-elections is a violation of the principle of the separation of powers established by our constitution. The President is already in breach of the law in having failed to call these by-elections and the 24 other that are due. The excuse that this could not be done due to financial constraints has rightly been rejected by the Supreme Court, and was simply a delaying tactic and abuse of the court’s process – as was the first application for an extension of time within which to call the by-elections.

The legislature has decided that where a vacancy arises in parliament the president must set the dates for a by-election within 14 days. It is not for the judiciary or the executive to decide that the will of the legislature does not require compliance. It is for the legislature to decide that the law is inappropriate when general elections are pending (they were not at the time most by-elections fell due), it is the legislature which must then move an amendment to the Act.
It is not for the courts or the president to decide which laws can be ignored out of political expediency – though unfortunately this is not atypical of the modus operandi of both in presentday Zimbabwe. More importantly, and according the SADC demands, there remain the issues of electoral and media reforms. Ignoring the most pressing issues of security sector governance, policing, etc., there are two other key pieces of legislation needed ahead of elections: those of the amended Electoral Act and the passing of the Human Rights Commission Act.
The Electoral Act and Human Rights Commission Act now merely require the President’s signature and gazetting to become law, and it seems that the former has now been gazetted. Gazetting the latter is merely a very first step in setting up an institution that would be capable of meeting its duties during elections as is now envisaged by the amended Electoral Act. But there are far more critical reforms needed if Zimbabwe is to hold credible elections. Nothing has been done to clean up the shambolic voters’ rolls and it is not now feasible to compile new voters’ rolls before March, and it is apparent that ZANU PF never had any intention of allowing this to happen in any event. Similarly, ZANU PF will not allow the electronic media to be freed or entertain any reform of security sector governance.
The idea that a new constitution and the Electoral Act will do anything to render the next elections free and fair is hype advanced by all the political protagonists and SADC. In fact, they will have little or no effect on the elections. Bear in mind that the draft constitution provides that most of its provisions are only to come into effect AFTER the elections. No matter what Electoral Laws are in place, a free and fair election cannot take place without some restraint placed on the security sector. A clear, unequivocal and a public statement from
SADC now, that an election carried out in the manner of June 2008 will not be recognised, will go some way to achieving this restraint. Without such an unequivocal statement, the prospect of another 2008, where electoral laws were simply ignored, is ever present. Without the opening of the electronic media to non-ZANU PF aligned voices the election can never be deemed fair.
Without the reform of the voters roll the ability to conceal electoral fraud remains. And without a robust ZEC, silence can be expected from this quarter, or at best, the resignation of Commissioners who find such silence unacceptable.

Where is Education Money?


Yet again the unrelenting greed of our leaders has reared its ugly head, this time in the form of the non-payment of fees for 50 000 students under the State Cadetship Scheme to enable them to attend universities and other tertiary institutions for further education.

ZINASU, the Zimbabwe National Students Union launched a civil disobedience campaign on Wednesday code named “Final Force” for a duration of 60days. Their plan is to maintain pressure on the Ministry of Higher Education, the final outcome hoped for being the resignation of incompetent ministers. The President of ZINASU, Pride Mukono stated “ministers cannot continue to live a lavish lifestyle while students struggle in extreme poverty and fail to attend lectures”. He also said that “a number of ministers in the unity government benefited from state education funds.”

Higher Education Minister, Stan Mudenge ( also presently involved in the Save Conservancy indigenisation saga) and Finance Minister, Tendai Biti have recently been locking horns over the fees issue with Mudenge blaming Biti for only releasing $1 million of the $42 million budgeted amount. Biti has responded by saying that there is no money in Treasury due to the fact that possible funds from the Marange diamonds are being used to further enrich the ZANU-PF elite and military chiefs instead of being channelled into education and infrastructure.

When will the greed end and will the campaign launched by ZINASU result in the resignation of some of these greedy individuals? We wait and see…

Higher Education Minister, Stan Mudenge

Finance Minister, Tendai Biti

When will the greed end?


The latest development in the Indigenisation/Land issue in Zimbabwe is the move by several high ranking ZANU-PF officials to take over the Save Conservancy, a world renowned wildlife conservancy in the South East of the country where one of the only remaining black rhino populations in the world still exists. Follow these links to find out more about this extremely sensitive issue:

http://www.theindependent.co.zw/2012/08/23/plunder-fears-amid-wildlife-based-reform/

http://allafrica.com/stories/201208250044.html

http://savevalleyconservancy.org/2012/08/save-valley-conservancy-positional-statement-20-august-2012/

http://www.theindependent.co.zw/2005/06/24/move-to-acquire-conservancies-criticised/

Area labelled 7 is Save Conservancy