The Research and Advocacy Unit suggested in 2010 that there would be little or no constructive development with regards to the creation of a new constitution, only trivial reforms in non-key areas, and an inevitable election (at a time of ZANU PF’S choosing), there was nothing prescient about this. Many other commentators made the same points. The critical issue that we were pointing to was the need for the reforms necessary for the holding of free(ish) and fair(ish) elections. It is abundantly clear that no such reforms have taken place, the constitutional process is perilously close to collapse, and today the prospect of elections has moved closer to being a reality rather than a threat with the suggestion to the Supreme Courts that elections will need to be held in March next year. As so often happens in Zimbabwe, an apparently commendable attempt to ensure accountability – in this case, the legal challenge by three fired MPs to be allowed to contest again for their seats in a by-election – has backfired entirely.
The small matter of three necessary by-elections has opened Pandora’s box: it has raised the legal necessity for all the needed by-elections: 16 vacant seats in the House of Assembly and 11 in the Senate. And it is the Senate seats that are the problem. Senate seats are not geographically contiguous with House of Assembly seats, so these by-elections will actually have to involve a sizeable chunk of the population.
Consider the following, and the numbers are now greater, four years on, that the total number of voters in the 2008 polls was approximately 2.4 million. Using the 2008 data, the numbers of voters in the required by-elections are approximately 1.5 million voters, or 60% of the total electorate in 2008 terms. So this is not really going to be a by-election in any conventional sense of the word, it is an exercise involving more than half the 2008 registered voting population of Zimbabwe.
Furthermore, and very importantly, why should the Supreme Court not take note of the President’s submission that the matter of by-elections does not merely involve three constituencies, and not take cognizance of the fact that there are 26 outstanding by-elections: 16 for the House of Assembly and 10 for the Senate? This little conundrum has been lurking in the shadows ever since the first application was made to compel the government to hold by-elections, but it seems, as always, that the devil is in the detail, and nobody except ZANU PF ever pays attention to the detail. And given that the cost to the nation of having a referendum, by-elections next, and finally harmonized elections is apparently a cost of US$250 million, the ZANU PF case gets stronger still.
So, we may now be six months away from another major election. SADC has laid down the ground rules: first, they were laid down at Livingstone last year, and, secondly, re-iterated with force at Luanda. Constitutional reform and reforms sufficient for the holding of credible elections has been the demand of the region. These are aspirations in the absence of any clearly stated consequences by SADC for failure to produce these outcomes. It is clear that the SADC Protocol allows for consequences, for, as Article 33 states:
Sanctions may be imposed against any Member State that:
- persistently fails, without good reason, to fulfill obligations assumed under this Treaty;
- implements policies which undermine the principles and objectives of SADC; or
- is in arrears in the payment of contributions to SADC, for reasons other than those caused by natural calamity or exceptional circumstances that gravely affect its economy, and has not secured the dispensation of the Summit.
The question here is whether Zimbabwe’s recalcitrance in acting upon the decisions of the Troika and the Summit will be interpreted as persistent failure, without good reason, to fulfil the obligations assumed under the Treaty. What were the assumed obligations? The failure to provide a credible roadmap for elections, and what did that mean? The failure to implement fully the conditions in the Global Political Agreement, and what did that mean? And who failed? ZANU PF, or MDC-T, or both? And if the answer to all these questions suggested persistent failure without good reason, would SADC invoke sanctions against Zimbabwe, and what could those sanctions be? And would Zimbabwe just withdraw from SADC in the same way it withdrew from the Commonwealth? And would withdrawal produce the same result? After all, withdrawal from the Commonwealth meant simply that the Commonwealth just walked away from the Zimbabwe problem, even though it too had a treaty with as pious principles as SADC.
But really the problem is one of carts and horses, as we (and others) tried to point out in 2010. The cart is the constitution that cannot move the horse that is the necessary reforms for the holding of decent and credible elections. Constitutions cannot deliver credible elections: these are produced in an absence of electoral manipulation, non-violence, protection of the basic freedoms of speech, assembly, association, and movement, all fostered by the institutions of the state. If the horse cannot be harnessed, then the cart is hardly much use, and the horse of reforms has been running wild., and there is no sign that anyone looks like trying to tame this horse: they talk about it a good deal, but there is no sign that anyone is picking up the reins.
That is the detail in another devil to which no-one has paid any attention (except rhetorically), and, given the time scale that may now apply – March 2013 – what are the chances that it can be tamed? So much to do, and yet so little done!