If the draft constitution serves as a yardstick, the MDCs’ claim that a new constitution is a necessary pre-condition for democratic polls is disingenuous. Similarly, the security sectors’ opposition to the draft constitution in its present form and position that the next elections must proceed under the present constitution may be equally disingenuous. The Commanders of the Defence Forces and Commissioner-General should, in fact, be pleased with the appeasing provisions of the draft constitution. The reasons are apparent in what follows.
Although not specifically stipulated in the GPA itself, one of the major stated objectives of the agreement is to avoid the debacle of the June 2008 election and create the conditions for a free and fair poll. A new constitution is held out as a means by which this might be achieved, primarily by limiting the overweening power of the President in the current constitution and by cleansing the political process of violent interference by the military.
Control of the security sector is of crucial importance in this regard, and this in turn means that the manner in which the commanders of each branch of the security sector are appointed is of similar significance.
Under the current constitution the appointment of the commanders of the Defence Forces and the Commissioner-General of Police is the prerogative of the President, with the proviso that, for as long as the GPA subsists, the Prime Minister must consent to any appointment to these posts whether in a substantive or acting capacity or any extension or renewal of the term of office of the incumbent. This constitutional requirement has been ignored by the President, indicating the importance ZANU PF attaches to having full control over the security sector.
The draft constitution removes the power of the President to choose the individuals who will occupy these posts, and his power of appointment is merely formal. In terms of the draft, when making appointments to the Defence Forces the President must act “on the advice of the Defence Forces Commission”. The Commission thus chooses the office holder, the President merely formally makes the appointment. At least 50% of the Commission must comprise civilians. Even more significantly, although the President appoints the Commissioners, the composition of the Commission must be approved by the Parliamentary Public Appointments Committee (PPAC) which will conduct interviews of the candidates in public. This body itself must “proportionally represent all groups and parties represented in Parliament”. Thus the political party with the first majority in parliament after the commencement of the new constitution will indirectly determine the appointment of the Defence Force chiefs. Similar procedures are proposed for the appointment of the Commissioner-General of Police with the curious, and perhaps inadvertent, difference that the Commissioners comprising the Police Services Commission are appointed with the approval of parliament’s Senate, rather than the PPAC. The composition of the Senate is yet to be determined, though it seems that non-constituency seats will be confined to a reduced number of traditional leaders.
Also of significance in this regard is that the draft constitution requires that the operations of the Intelligence Services be governed by an Act of Parliament, thus attenuating the possibility of the body being used as the political plaything of the President as at present.
So far so good. But anyone who thinks that we will thus have new heads of security sector, appointed in compliance with the new constitution and ahead of the next election will be disappointed. This is so because, contrary to the proclaimed objective that the new constitution will set the conditions for the next election, the draft proposes a transition to the new constitution. In terms of this transitional arrangement only three parts of the new constitution will be operative prior to the election. The first of these relates to polling and the only significant difference with the present establishment is that a system of limited proportional representation is proposed and a delimitation commission is to be established; the second relates to the conduct of the security services which enjoins them not to engage in behaviour which they should not, under the current legal regime, engage in any event; the third provides for the reconstitution of the Electoral Commission. The manner of appointment of the reconstituted Electoral Commission is not radically different from that in place at present, but will give the MDC an opportunity to have a second bite at the cherry and to rectify their failure to ensure that only Commissioners with a robust approach to democracy and fair electoral practices are appointed.
These then, are the only “reforms” that will be in place prior to the elections if the draft is adopted. The current heads of the security establishment will continue to hold sway. Worse than that the draft proposes that “anyone who, immediately before the commencement day [of the new constitution], held or acted in a public office under the former Constitution continues to hold or act in that office, ….until the expiry of his or her term of office… until he or she resigns, retires or is removed from office in terms of this Constitution or those conditions of service…”. Hence even when the new provisions relating to the appointment of security chiefs become operational after the elections, Chihuri, Sibanda, Shiri and Chiwenga will all remain in office until the expiry of their terms of office in 2016, unless fired by the President before then. The only good news is that the draft proposes a two term limit for these positions, and, unlike the clause pertaining to term limits for the Presidency and tailor made for Robert Mugabe, does not contain the requirement that the two terms must be “under this constitution”. The current heads of the security sector would thus not be eligible for reappointment after 2016.
By then, however, Constantine Chiwenga might be more concerned about the presidential term limits….