What’s a Mere Constitution to One Appointed by God to Govern?

By Derek Matyszak

What is a mere constitution for one appointed by God to govern?

The transcript of the interview granted by Mugabe to the national broadcaster to mark his 91st birthday makes for depressing reading.

ZANU PF’s 6th National People Congress purported to ratify various amendments to the party constitution, including removing a requirement that one of the two Vice-Presidents be a woman. Previously the constitution established a Presidium of four as part of the Central Committee, providing for a President and First Secretary, a National Chairman and stating that there must be

“two Vice Presidents and Second Secretaries one of whom shall be a woman ….elected by Congress directly upon nomination by at least six (6) Provincial Co-ordinating Committees. After the amendment, the same clause was changed to read that there must be:

Two (2) Vice Presidents and Second Secretaries appointed in accordance with the Unity Accord by the President for their skill, experience, probity, integrity and commitment to the party ideology, values, principles and policies.

When asked about this change during the birthday interview President Mugabe responded:

Ah, have we removed it? I do not think we have removed it. We just ignored it for now….

This response is remarkable for several reasons. Firstly, despite having emphatically stated that he remains in charge of the party, Mugabe appears unaware of this important change to the party constitution by his supposed underlings. The second point of note is the unabashed admission by Mugabe of believing himself entitled to simply ignore the rules of the party as set out in its constitution. Since it is Mugabe, and Mugabe alone, who appoints the Vice-Presidents, the “we” who claimed to ignore the constitution is solely Mugabe. Mugabe had also chosen, immediately after the Congress, to ignore the requirement, set out in the same section, section 32, that a National Chairman must be appointed. The requirement in the ZANU PF Constitution that “women shall constitute at least one third of the total membership of the principal organs of the Party…” never seems to have been applied. Yet as part of the same response to the question about the amendment, in almost the same breath, Mugabe also stated:

…you must be a disciplinarian, obedient to the rules of the party. A good disciplinarian is the one who first applies discipline to himself or herself. You apply it to oneself you don’t go against the rules of the party. You follow the rules of the party….

This cameo encapsulates Mugabe’s style of governance – the delegation of duties to his underlings, but with little attention paid thereafter to how those duties are carried out or supervision. His minions are left to their own devices. And the belief that rules, procedures and constitutional requirements, which somehow do not apply to him, must be scrupulously followed by others, when he so demands. No restriction on doing what he deems expedient is even conceived of.

As with ZANU PF, so with the country….

“We had to show them who is in charge.”

By Tony Reeler

We all have an unscientific weakness for being always in the right, and this weakness seems to be particularly common among professional and amateur politicians. But the only way to apply something like scientific method in politics is to proceed on the assumption that there can be no political move which has no drawbacks, no undesirable consequences. To look out for these mistakes, to find them, to bring them into the open, to analyse them, and to learn from them, this is what a scientific politician as well as a political scientist must do. Scientific method in politics means that the great art of convincing ourselves that we have not made any mistakes, of ignoring them, of hiding them, and of blaming others for them, is replaced by the greater art of accepting the responsibility for them, of trying to learn from them, and of applying this knowledge so that we may avoid them in future.” (Karl Popper, The Poverty of Historicism)

The comment from Blade Nzimande says it all, and the scales have finally dropped from the eyes of all in Southern Africa. As the South African parliament descended into chaos, we realize now that the “miracle” that is (was?) South Africa was merely a temporary aberration from “normal” Southern African politics, and we can see that the “deep structure” of democracy – tolerance of criticism – has yet to embed itself in South Africa, as it has not in the whole Southern African region. This is the point of the Popper quote: that unless there is tolerance for criticism, democracy cannot flourish.

Democracy is not merely the separation of powers, regular elections, or the rule of law: it is much more than that if it is to truly flourish, and it is more than mere tolerance, but active encouragement of criticism.

South Africa and Zimbabwe are interesting in this respect. Both countries have executive presidencies, and currently both are led by presidents who seem hugely intolerant of any criticism, but the consequences are very different. In South Africa, President Zuma is regularly criticized, even ridiculed, and the latest events in the South African parliament show that there is no place that he can hide from criticism; as much as the ANC tries to keep him away from having to answer questions, the people keep demanding answers to their questions, and, despite the Stalingrad strategy, they will hunt him down even in parliament.

Zimbabwe, by contrast, has a president that seems wholly unaccountable, rarely having to answer any critical questions from any quarter, and certainly not in parliament. Parliament will debate the president’s state of the nation address, but the president will not be present to answer the questions, which President Zuma now seeks to emulate. Furthermore, publicly criticizing the president is a tricky business, even if we are now allowed to call him a goblin according to the Chief Justice. However, this may be trickier than we think, because only idiots would do this according to Chief Justice, and presumably anyone who did the call the president a goblin might be put to proving that he or she was an idiot in this ferociously intolerant country.

What seems to be the major problem in our Southern African “democracies” is the refusal to see that criticism is the basis of both good politics and good development. This is what Amartya Sen pointed out a while ago: good democracies have sound economic development, and this is considerably more than merely having robust institutions. This is not to say that robust institutions are not important. Independent courts and electoral bodies, professional state agencies, and a parliament that rigorously exercises its oversight function are of course critical, but without the acceptance of the fundamental role of criticism, these institutions erode and become shells.

Now, this is not to say that all criticism is valuable. Insult, ridicule and hate speech that so frequently masquerade as criticism serve no great purpose. Contrast the media storm over the President tripping and falling with the tepid response to his remarks about women at the recent AU summit. The former seems to have been predicated exactly by the way that the president immunizes himself against criticism, and thus his minor misfortune provides many frustrated citizens with an opportunity to show their anger, but this is trivial.

His remarks about women – amounting to a view that their best place is in the home and having babies – are much more serious, and especially when assuming the chairmanship of a body that is committing itself to empowering women in 2015. This should require demands from Zimbabwean citizens, and especially Zimbabwean women, to explain whether he is serious in this view and whether this view will render him conflicted about implementing the AU agenda. This is the kind of criticism that politicians should expect, and is what Popper is pointing out.

The point here is that politicians, just like scientists, are rarely right. Policies enacted by governments are very similar to the experiments carried out by scientists, but, unlike scientists who know that they are only likely to get partial truths (and will have the errors pointed out very quickly), politicians tend to insist that they have the right answers, that there are no hidden problems likely to emerge from their policies, and that criticism is unpatriotic. Yet history is largely a record of poor policies and mistakes by governments. One could construct an immensely long justification by reference to all the failed policies revealed in the historical record.

Take one small example from our own recent history. Government decides to follow the strictures of the World Bank and the IMF and implements an economic structural adjustment programme, with the inevitable impact on the poor as the social support framework largely disappeared. The many critics of ESAP pointed out, with recourse to the empirical record across the world of dozens of ESAP programmes, that this would have exactly the effect of marginalizing a substantial number of people. Some of those marginalized were those supporters of the government that had been responsible for removing the former colonial government, the war veterans, and they were not happy. Nonetheless the policy was applied, and the “hidden effects” that followed were the looting of the War Veterans Compensation Fund, the massive unbudgeted payout to the war veterans – leading to collapse of the Zimbabwe dollar – and food riots in 1998.

And when, during all this time in the 1990s, everyone (bar the capitalist enclave) said this is not working for us and change the policy, government merely persisted in telling us that it would work in the end. As Naomi Klein has put it, shock therapy is good for you!

And why do politicians and governments not behave like scientists? Give up their precious views when confronted with refuting evidence? It is precisely because they abhor criticism. As Popper puts it, they practice the great art of convincing themselves that they have not made any mistakes, of ignoring them, of hiding them, and of blaming others for them. Even worse than merely being immune to criticism, governments can take steps to prevent criticism: by banning political parties, shutting down the press, and even resorting to violence. In the farce that was the State of Nation Address in South Africa, both shutting down the press (by jamming electronic media) and violence (forcibly ejecting MPs) were seen. But worse happens elsewhere in Southern Africa!

Acceptance of criticism is the fundamental basis of democracy, and, even more than this, is the active fostering of criticism. It is what politicians should expect, encourage, and practice: without criticism, we can never learn from our mistakes, and we should expect to make mistakes – it is the human condition to do so. As Karl Popper has eloquently put it:

“The war of ideas is a Greek invention. It is one of the most important inventions ever made. Indeed, the possibility of fighting with words and ideas instead of fighting with swords is the very basis of our civilization, and especially of all its legal and parliamentary institutions.” (Conjectures and Refutations: The Growth of Scientific Knowledge)

Our lives: Perpetual Hunger Games Episodes

By Caroline Kache

DSTV has been showing ‘The Hunger Games’ a gruesome trilogy movie depicting a dystopia. Set in ‘Panem,’ a country consisting of the wealthy Capitol and 12 other districts with varying levels of poverty, the Hunger Games sees two unfortunate candidates, male and female  chosen from each of the poor districts to participate in a compulsory annual televised death match called the Hunger Games. There can only be one winner at the end and butchering the rest is just part of the game.

Watching The Hunger Games, I began to reflect on how our lives are in a perpetual Hunger Games mode. Every day, for the ordinary Zimbabwean, is a fight for survival. The poor die every day to give the wealthy members in our own Capitol their vantage. For instance, the week beginning 12 January, close to 200 families were evicted from Mazowe to pave way for a sanctuary. The photos of the families weeping, spirals of smoke and the ruins of what they once called home pictured in the soot and ashes were heart wrenching. How those responsible for this devastation can live with themselves is beyond me. Or maybe they just don’t care because as in the Hunger Games, they find other people’s misery entertaining!

In the Hunger Games, Katniss (one of the characters) forms a bond with Rue another character) a young girl whom she views as her young sister. They become like sisters, taking care of each other. When Katniss is injured and unconscious, Rue nurses her back to health. But then Rue dies. The agony of Katniss’ loss at the hands of a cruel establishment is a daily reality for many Zimbabweans.

Many people die on Zimbabwe’s major highways. The Harare-Beit bridge route is a nightmare, recording high numbers of deaths every year. Sisters, aunts, uncles, friends perish; their deaths remain impressed in our memories because they could have been averted. Why nothing is ever done is the big question; is it inability to do something about it, or they are just unwilling? How come the same people who do not prioritise raising funds to repair major roads are fast and efficient when raising funds for a party congress or a tour for the first lady? Millions are raised in a few days and splurged on non-events. If the same passion and effort were put to benefit the nation, would we still be stuck in this perpetual prison of poverty? But then, as in the Hunger Games, they thrive on other people’s misery.

Maybe my expectations for our government are too high, or it is because I am part of the poor districts residents that do not understand life in the Capitol. Or am I simple minded to think that humanity demands that we at least ensure that everyone lives with a bit of dignity?

Evicting the poor people in Mazowe without notice or any relocation plan, forcing the displaced people in Chingwizi to live in those deplorable conditions, promising to create an imaginary 2.2 million jobs, widening the gap between the rich and the poor- our government lives in the Capitol-far removed from the districts. They do not understand how every day is a struggle for those in the districts or how the tax they have imposed to make life in the Capitol more comfortable makes life in the districts more and more unbearable.

Is there a solution?

Maybe it is time for Panem to become a democracy! But even if it does it can only be enjoyed by the young who have not experienced the Hunger Games. Those of us who grew up in that era are scarred for life. We will always remember people and things we lost in the games, but that doesn’t mean we will stop trying to change the status quo. Panem must be free and no one should ever struggle unto death whilst someone else enjoys!

Wisdom says the only constant thing in life is change. I would urge our leaders to remember that. In the genius words of Leonard Zhakata who summaries everything so neatly in his song Mugove he says;

vakuru woye ndipeiwo kamukana kangu
ndinyevere vaye vaye
vakawana mukana wekuvepo pamusoro
vakaite mhanza yekukwirepo pamusoro
kwakuchitora mukana uyu sehuchenjeri
wotanga kutsikirira vari pasi
votanga kuchipfira mate vari pasi
kuzvirova dundundu nekuzvitutumadza
ndoti kwete apa vachenjeri marasika

kana wakaberekwa semunhu wese iwe
kana wakadonhawo rukuvhute semunhu wese
pamisoro yose yakati tseketseke nenyika iyi
usazvinyepere usazvifadze nenhema
usazvinyepere usazvifadze nenhema
usazvifurire uchizviita makoya zvese
usazvifurire uchizviita shasha yevose

vaye vaye vaunodzvinyirira
vaye vaye vaunotsikirira
kuchema kwavo munamato mukuru kumatenga
tenzi hakuna anoziva mhinduro
nyangwe nemusi waichauya

deno ndaive ini ndigere paye
deno ndaive ini ndiripo paye
ndairidza huwi
ndodaidzira vamwe vangu
kuno kwabika dopiro vakomana
huya mose huyai munombore

kana paine pamakandichengetera baba
ndinokumbirawo mugove wangu ndichiri kurarama tenzi
tarirai ndosakadzwa sechipfeko nevane mari
ndisina changuwo
ndinongodzikirirwa
ndinongodzvinyirirwa
ndinongoshandiswa nhando
ndichingofondotswa

Why doesn’t the “bulge” burst in Zimbabwe?

By Tony Reeler

There is a growing interest in the consequences of the growing populations of young people in many countries. Various commentators have speculated about the effects of large youth bulges in North Africa and the Middle East, and disaffected youth are seen by the Economist Intelligence Unit (EIU) as being one factor in the relatively large increase in protests around the world. Citing the International Labour Organisation (ILO) report, World of Work Report 2013: Repairing the Social Fabric, the EIU points out that marked social unrest and protest was recorded in 46 of the 71 countries covered in the ILO report. The implications behind the unrest are not wholly clear, but, following Ivan Krastev, in his article, From Politics to Protest, the EIU describes the protests (rather dismissively) as “rebels without a cause”. The main point raised by Krastev, and endorsed by the EIU, is that this is all sturm und drang, and possibly just the kind of letting off steam needed by unresponsive governments.

However, this seems at odds with the growing literature on “youth bulges”, an increasing demographic phenomenon in developing countries, and a conundrum in Zimbabwe. Briefly, the evidence suggests that when a country’s demography shows a bulge in the young population of greater than 30% of the total population, bad things start to happen, and irrespective of whether the country is a democracy or an autocracy. The thesis, perhaps originally proposed by Samuel Huntington, has been both supported and amended by a number of careful statistical studies. Most interesting of these has been a series of studies by Henrik Urdal (Urdal.2004; Urdal.2006), corroborated by other work (Cincotta.2008). In his later work, Urdal tested six hypotheses about the effects of youth bulges:

Hypothesis 1: Countries that experience youth bulges are more likely to experience political violence than countries that do not.
Hypothesis 2: The higher the dependency burden, the stronger the effect of youth bulges on political violence.
Hypothesis 3: The lower the economic growth, the stronger the effect of youth bulges on political violence.
Hypothesis 4: The greater the expansion of higher education, the stronger the effect of youth bulges on political violence.
Hypothesis 5: The more autocratic a country, the stronger the effect of youth bulges on political violence.
Hypothesis 6: The higher the urbanisation rates, the stronger the effect of youth bulges on political violence.

When tested against a very large data set, the models generated provide food for thought in the conclusions reached, but the interactions are complex and do not allow a simple conclusion that youth bulges per se are a problem. Defining political violence as internal armed conflict, terrorism and riots, Urdal concludes that, simply, the greater the youth bulge the greater the risk of political violence for both autocracies and democracies, but this is mediated by the finding that it is countries intermediate between these two extremes that are at the greatest risk. Furthermore, each of the factors identified above – dependency burdens, lowered economic growth, increased rates of higher education, and urbanisation – all interact with youth bulges in different ways, and depending on the country context.

So what could this all mean for Zimbabwe, a country where the youth bulge is large – : youth (under 30 years) comprise 69.8% of the total population, and 74% of the unemployed according the most recent census (Zimstat.2012). Now there is and has been political violence in Zimbabwe, but this is mostly one-way traffic, and government-sponsored in all probability, but certainly condoned by government. But there is no internal armed conflict, terrorism, or riots in Zimbabwe, and why not?

Well, in part the answer comes from Urdal’s work: “A factor that partly determines the violent potential of youth bulges is the access to emigration”. This applies in the case of Zimbabwe, as the majority of the Zimbabweans emigrating, whether legally or not, are the youth. Although very difficult to estimate accurately, given the enormous irregular migration to South Africa and Botswana, statistics calculated from just those leaving the country through ports, rose from 359,095 in 2008 to 1,077,743 in 2010 (Zimstat.2010). 45% of the Zimbabweans in South Africa are reckoned to be under 30 years. A UNDP study estimated that over three million Zimbabweans were living outside the country. With the 2012 Census claiming that the population living in Zimbabwe was slightly more than 13 million, this migration is clearly a very significant portion of the population.

So migration clearly is taking the pressure off, but it may also be that other factors mitigate the effects of this enormous youth bulge. Remittances from the diaspora are certainly alleviating both the economic decline and the effects of dependency. It is difficult again to accurately estimate the extent of remittances, but one study suggested that estimated remittances from the United Kingdom alone amounted to £0.94 billion in 2007 (Zimbabwe Institute.2009). Official estimates in Zimbabwe by the same UNDP study were US$1.4 billion in 2009 through official routes, but the same study pointed out that studies in South Africa indicated that 98% of Zimbabweans remitted money back through informal routes. It is possible that remittances into Zimbabwe are the equivalent of the fiscus, 75% of which is now used for paying about 290,000 government workers and the security sector.

Finally, the highly efficient repressive machinery employed by the government to curb dissent also keeps the lid on the pressure cooker of the youth bulge. And here the youth are consistently mindful of the consequences of civic participation, but one wonders what might happen when they are no longer fearful or the ability to repress diminishes?

Silenced voices at home; orators abroad-the universality of justice

By Kuda Chitsike

One of the major reasons, leading to the negotiation of the Global Political Agreement was that violence during the run off period had reached unprecedented levels. Approximately 200 people were killed, thousands displaced and assaulted, but there was no mention of the rape that women suffered. It is well known that there was widespread violence, but what is less known is that sexual violence was perpetrated against women as a political strategy.  Previously, there was a lot of anecdotal evidence but no proper documentation was available in the aftermath of the election. Civil society organisations, including women’s groups were hesitant to talk publicly about politically motivated rape, even though survivors were seeking refuge in their organisations and their horror stories were known. The silence of the women’s groups muted the voices of the survivors; if well-established organisations were unwilling to speak on their behalf, who would listen to their individual voices? But as time went on the survivors of rape became bold, began speaking out about their experiences during the election period, and demanded to be heard and taken seriously.

The first public report on sexual violence in Zimbabwe during the election period was written by an American-based organisation, AidsFreeWorld, ‘Electing to Rape: Sexual Terror in Mugabe’s Zimbabwe.’ This report was released in December 2009 and it was based on 70 affidavits collected from women who were survivors of rape and were living in South Africa and Botswana where they felt free to speak.  A second report was produced by the Research and Advocacy Unit (RAU) and the Zimbabwe Association of Doctors for Human Rights (ZADHR) in 2010, entitled, ‘No Hiding Place: Politically Motivated Rape of Women in Zimbabwe.’  In these two reports, women reported that they were repeatedly raped and beaten for their support of the MDC, whether perceived or real, as the perpetrators told them so during the ordeal. Some stated that this happened in front of their children and family members, and, as a result of the rape, their marriages broke down. Most of the women did not receive appropriate care for the trauma that they had experienced. The women exhibited high levels of sleeplessness, nightmares, flashbacks, and hopelessness: symptoms, which are commonly associated with experiences of trauma.

These two reports gave credence to the claims that the women were making about politically-motivated sexual violence, and the issue could no longer be ignored.

The recently released findings of the Khampepe report supported what Zimbabwean organisations have been saying for the last 14 years, violence and intimidation are part and parcel of elections.  This report has implications for Zimbabwean women who lodged a case in 2012 in the South African courts with the support of AidsFreeWorld. The women brought their case to a South African court because they had failed to get any recourse in Zimbabwe. When they tried to report their cases to the police they were either turned away, told that the police were not dealing with political violence cases, or told by the police that they gor what they deserved. Sometimes the police outrightly  refused to open dockets, which effectively meant the women were unable to go for medical examinations.

AidsFreeWorld submitted an amicus brief to the South African courts after a case was brought by the Zimbabwean Exiles’ Forum and the Southern African Litigation Centre in 2008 on behalf of MDC supporters who alleged that they were tortured by ZANU PF supporters and state agents. On 30^th October 2014, the Constitutional Court in South Africa ruled that the South African Police Service (SAPS) is obliged to investigate crimes against humanity “where the country in which the crimes occurred is unwilling or unable to investigate.” The ruling is based on the fact that South Africa is obliged to investigate because it signed and domesticated the Rome Statute on the establishment of the International Criminal Court.

This ruling has given hope to the Zimbabwean women who were brave enough to tell their stories. Unfortunately not all perpetrators will be brought to justice, but it sends the right message; that sexual violence will not be tolerated in any society for any reason.

Had the election report, which was compiled by the high court judges Sisi Khampepe and Dikgang Moseneke, been released when it was compiled it is highly probable that 2008 might never have happened as a government of national unity could have been negotiated in 2002. The Kamphepe report supported other observers’ groups that stated that there was serious election violence and it would have added to international pressure to end the Zimbabwean crisis.

As we commemorate the 16 days of gender activism, there is hope that justice will be delivered and that the victims of election violence, particularly the victims of rape that have not been acknowledged will get the redress they deserve. Although their voices may have been largely silenced at home, they can get justice abroad-proving that justice is a universal principle and that no atrocity committed against another human being can be hidden forever.

Where’s Wally*? Looking for my member of parliament

Since the elections were held in July 2013 I have not received a notice of a meeting called by my Member of Parliament or even heard that he came to the constituency, at least to my ward. A whole year has passed and I am asking myself where is he, what is doing that is keeping him so busy that he does not come? When he is in parliament what issues is he bringing up and/or debating? Whose interests is he representing if he doesn’t come to us the people to find out what our issues are, and how we want them to be addressed?

Every five years we have elections, and, in the last 15 years, I have had the same MP, Dr. Tapiwa Mashakada, but what has he done in my constituency for him to be voted for consecutively? Are we as Zimbabweans voting for a political party rather than for an individual we think can represent our interests and who will work towards getting these interests addressed at a national level? From where I am standing, it looks very much like the former.  Dr. Mashakada has not done much in my constituency to warrant re-election and yet he continues to be elected.  My constituency is well known for water challenges and occasional refuse collection yet people are billed consistently. How then do we raise our issues if we never see the Honourable MP?

In the previous term, Dr. Mashakada was in government as the Minister of Economic Planning and Investment Promotion, so he can be forgiven for not visiting the constituency as often as he should. According to ‘Occasional Visitors: Attendance in the Seventh Parliament of Zimbabwe’ his attendance in parliament between June 2012 and June 2013 was not impressive at 29% and yet he was re-elected. Twenty nine percent is a fail grade under any circumstances, so why is he back in parliament; what did he do to deserve re-election?

There is urgent need for us to understand the roles and responsibilities of MPs; i.e. law-making, fostering public debate, oversight, and representation; this is in accordance with the constitution, section 117 (2) “The legislative authority confers on the legislature the power to:

1. Amend this Constitution in accordance with section 328;
2. b)  Make laws for the peace, order and good governance of Zimbabwe; and
3. c) Confer subordinate legislative powers upon another body or authority in accordance with section 134.”

About a month ago RAU held workshops with approximately 100 women and the majority of them did not know the role of parliament, yet most of them had voted. When asked what they expect from their MP, they said that he/she should attend to ZESA issues, attend functions in the constituency, i.e. weddings and funerals, provide food assistance among others, none of which fall under the broad outline stated above. It is important for the general public to know that MPs are there because we voted them to be our representatives in Parliament; they work for us, and just as we chose them we can as well get rid of them for non-performance.  If we all take the time to understand our governance structures and the constitution, we will take our power back and ensure that MPs are working for us and raising issues that are important to us.  The power resides in us the people and not in the MPs, but this is not as it is perceived or portrayed.  It is critical for the MPs themselves to know that they are there to serve, and not to claim allowances and demand vehicles under the guise of needing them to carry out their duties, yet few of them are serving their constituencies let alone going there.

During the campaign trail, MPs were ubiquitous and full of promises: now that they got what they wanted most of them are nowhere to be seen.  Many will only resurface during the 2018 pre election period.

If you not in parliament or working in the constituency where are you, what are you doing and who are you representing, pray do tell?!

* A series of children’s books created by Martin Handford. In the series children are challenged to find Wally hidden in a group.

The Succession debate reaches new lows.

So the debate over the appointment of Grace Mugabe reaches new constituencies. The National Council of Chiefs has now weighed in and has endorsed her candidacy. This once again reinforces the point made in RAU’s recent report on succession; that the national constitution and the ZANU PF constitution have become inextricably linked. But it raises also the more serious issue about what does the National Council of Chiefs, or least the President of the National council, think that he or they are doing here taking sides in an internal debate within ZANU PF, and, much more seriously, have they read the new constitution at all.

For those traditional leaders that might be in any doubt about how they should be approaching the succession problem, we invite them to consult the constitution, and particularly Section 281. It is very explicit about what they should actually be doing in respect of the succession debate and leadership in ZANU PF.

281       Principles to be observed by traditional leaders

(1)        Traditional leaders must—

(a)        act in accordance with this Constitution and the laws of Zimbabwe;

(b)        observe the customs pertaining to traditional leadership and exercise their functions for the purposes for which the institution of traditional leadership is recognised by this Constitution;  and

(c)         treat all persons within their areas equally and fairly.

(2)        Traditional leaders must not—

            (a)        be members of any political party or in any way participate in partisan politics;

            (b)        act in a partisan manner;

            (c)         further the interests of any political party or cause;  or

            (d)        violate the fundamental rights and freedoms of any person.

Our reading of Section 281 does not reveal any ambiguities in how the National Council of Chiefs should approach the problem: do not say anything, do not endorse anybody at all, let alone the First Lady, and, above all remember, that it is their duty to treat all persons within their areas equally and fairly.

In addition to the provisions of the new constitution is the Traditional Leaders Act [Chapter 29:11],  promulgated before the new constitution, but saying essentially the same things about the non-partisan nature of traditional leadership. Section 46(1) of the Traditional Leaders Act states clearly that in carrying out their duties the traditional leaders must not be “influenced by any considerations of race, tribe, place of origin, creed, gender or political affiliation”. And the duties of chiefs are equally clear in the Act:

1. a) promoting and upholding cultural values among members of the community under his jurisdiction, particularly the preservation of the extended family and the promotion of traditional family life;
2. b) carrying out the functions of a Chief in relation to provincial assemblies (see below);
3. c) nominating persons for appointment as Headmen by the Minister;
4. d) approving nominations by Headmen of Village Heads for appointment;
5. e) supervising Headmen and Village Heads in the performance of their duties;
6. f) discharging any functions conferred upon him in terms of the Customary Law and Local Courts Act;78
7. g) overseeing the collection by village heads of levies, taxes, rates and charges payable in terms of the Rural District Councils Act;
8. h) ensuring that Communal Land is allocated in accordance with the Communal Land Act79and to ensure that the requirements of any enactment in force for the use and occupation of communal or resettlement land are observed;
9. i) maintaining up-to-date registers of names of villages and their inhabitants
10. j) preventing any unauthorised settlement or use of any land;
11. k) notifying the Rural District Council of any intended disposal of a homestead and the permanent departure of any inhabitant from his area, and, acting on the advice of the headman, to approve the settlement of any new settler in his area;
12. l) adjudicating in and resolving disputes relating to land in his area;
13. m) and ensuring that the land and its natural resources are used and exploited in terms of the law and, in particular, controlling:

(i) over-cultivation; and

(ii) over-grazing; and

(iii)the indiscriminate destruction of flora and fauna; and

(iv) illegal settlements

and generally preventing the degradation, abuse or misuse of land and natural resources in his area;

1. n) ensuring that no public property, including roads and bridges, telephone and electricity lines, dip tanks and animal health centres, clinics, churches, cattle-sale pens, schools and related establishments, is damaged, destroyed or misused by the inhabitants or their livestock;
2. o) notifying the Rural District Council for the area concerned, as soon as is reasonably practicable, of the outbreak of any epidemic or prevailing disease, flood or other natural or unnatural disaster affecting the inhabitants, livestock, crops, the land, flora or fauna in his area;
3. p) liaising with and assisting development committees established in terms of the Rural District Councils Act in all matters relating to the planning and implementation of local development programmes; and
4. q) under the direction of the District Administrator or the Rural District Council, as the case may be, assisting drought and famine relief agencies in coordinating relief and related matters in his area.

As can been, these duties are all important aspects of rural life, many of which can be the focus of disputes between citizens, and citizens living within the area of jurisdiction of a chief can have the expectation that dispute will be dealt with in a non-partisan and impartial fashion uninfluenced by any considerations of race, tribe, place of origin, creed, gender or political affiliation. So, the constitution and the Traditional Leaders Act are not in conflict, and traditional leaders need to take heed of both, and take the lead in constitutionalism for the sake of those for whom they are responsible.

From “guided democracy” to “guided succession”?

The debate at the SAPES Trust Policy Dialogue Forum on succession last night, 4^th September 2014, offered an insight into why Zimbabwe lurches from crisis to crisis, and why the international community (and investors) is so chary about engaging the country. Derek Matyszak, talking about succession in the Presidency, both the national President and the president of ZANU PF, pointed out that the problem with the new (2013) constitution is that, by default, it imports the ZANU PF constitution into the solution for succession. And as he pointed out, and has argued in a detailed analysis, the problems inherent in the ZANU PF constitution may attenuate the crisis. But since “guided democracy” has always been the way in ZANU PF, perhaps we should worry less about what the ZANU PF constitution says, and try to look into the crystal ball about what exactly are Robert Mugabe’s intentions. Will he guide the succession or leave it to his afterlife?

Stephen Chan, by contrast, offers the “guided succession” view. He did point out how desperately serious is the interaction between succession (and political settlement) and the economic survival of Zimbabwe. He was at pains to point out that, in order for Zimbabwe to attract the critically needed financial assistance, investors and donors need both clarity about the political security of the nation and economic policies that will ensure stability and growth. These latter do not need a genius macro-economist to tell us what to do, and since the SAPES conference earlier this year, it is clear that all local economists, bankers, and business men know what needs to be done. Little happens because the succession problem just won’t go away, and the political governance of both the present and the future remains uncertain.

However, Chan has an optimistic solution: “guided succession”. Offering the view that Mugabe’s elevation to the senior posts in the AU and SADC is a plan by the wise men in Africa to offer Mugabe a graceful exit (no pun intended), and that succession will be a process not an event. Hence, Mugabe will be inveigled to hand over in two years’ time, leaving the party two years to prepare a candidate for the 2018 elections. The question of which candidate is argued to be largely irrelevant since ZANU PF will easily win this election due to the parlous state of the opposition parties.

In Chan’s view, therefore, the anomalies in the ZANU PF constitution and the potential constitutional crisis that could be produced were Mugabe to die, or be unable to carry out his office, are not important. The party will not fragment, but will produce a successor in some fashion.

However, from Matyszak’s perspective, and Zimbabwean citizens generally, will this succession be “lawful”: will the ZANU PF constitution have been followed? The point here is that we, the citizens of Zimbabwe, have had 34 years, during which constitutionalism has been increasingly abandoned, both because of guided democracy and also because it is frequently just too inconvenient, politically speaking, to adhere explicitly to the constitution and the law. This is one of the reasons why there is no foreign direct investment or donor support for balance of payments: no-one is certain that the rule of law will be followed, and surely the manner of succession can strongly reinforce the rule of law or continue to undermine it.

Thus, clarity about succession is critical to restoring confidence and trust in the government.

Firstly, will ZANU PF follow its own constitution in electing a successor for the presidency? And as a starter it would be nice if more than Derek Matyszak knew what was in that constitution, and citizens could be reassured that ZANU PF has some kind of commitment to constitutionalism by making plain to the country (and everyone else) how they go about electing their leadership in a constitutional manner. A constitution that seems a secret document is not a reassuring basis on which to develop trust, and the possibility of a constitutional crisis, which Derek Matyszak suggests can happen, is not a good advertisement for the future, and for present trust in the Zimbabwe government.

Secondly, whether we like the result of the 2013 elections or not, the fact is that ZANU PF will govern until 2018, and may very well, as Stephen Chan argues, win that election too. It does not seem impossible, therefore, for the party to publicly indicate how succession will take place if it is not going to follow the (sort-of) explicit provisions of their constitution. If they are going to give us “guided succession”, well just give it to us, and then one problem can be solved – the matter of political confidence – and we can move onto the more fundamental problem of restoring the economy and giving citizens their livelihoods back.

But, thirdly, perhaps the issue is really that which Priscilla Misihairabwi-Mushonga pointed out, and is inherent in the immense powers of the presidency. As she pointed out, whatever constitutions say, Robert Mugabe is his own man, keeps his own counsel, makes up his own mind, and this is wholly opaque. Succession depends on what Robert Mugabe wants, and he gives us no clues. Thus, no matter what the national constitution says, no matter what the ZANU PF constitution says, no matter what the wise men of the AU and SADC think, and no matter what the international community wants, we, the Zimbabwean citizenry, wait for him to decide, as he has always done.

But, and here’s a thought, and raised at SAPES by a young mathematician from UZ, why do we citizens always wait for the elites to decide, and what can we do to get clarity? Join ZANU PF and demand a copy of the ZANU PF constitution? Try to use the courts to see whether there is the possibility that we can force ZANU PF into internal constitutionalism? Since the ZANU PF constitution, courtesy of their “overwhelming” victory at the polls in 2013, now is tacitly incorporated into the national constitution, don’t citizens have right to know explicitly what will happen and who will take charge? Or will we just meander along from “guided democracy” to “guided succession” and back to “guided democracy”? And why even bother with elections, just create a dynasty!

Tony Reeler, Senior Researcher

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 31^st 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.