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)

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 ELECTION DATE CIRCUS, ACT II?


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

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

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

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

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

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

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

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

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

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

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

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

Do NGOs and Donors undermine the State?


The Afrobarometer always provides highly interesting perspectives on what African citizens (as opposed to their governments) believe. Over the past decade the Afrobarometer has demonstrated the sophistication of African citizens’ understanding of politics, governance, and democracy. The findings are often surprising.

For example, recent analyses have shown the resurgence of popular support for traditional leadership, mainly because these folk provide a buffer for failing governments[1], or that youth, right across Africa, has diminishing faith in the power of elections to bring about democracy. The latter is clearly important in the light of the North African revolutions, but recent research by Resnick and Casale suggests that, whilst African youths tend to vote less and have lower levels of partisanship, they are not more likely to protest than older citizens[2].

These are interesting asides however, and we want to focus on a problem common in many African countries, the frequently fraught relations between states, donors, and civil society, especially NGOs. This is particularly interesting for Zimbabwe where there are continual statements from senior government Ministers that assert that these bodies work in concert to effect “regime change” at the worst and undermine the authority of the state at the least[3].

A very recent Afrobarometer report examined the views of African citizens about the role that donors and NGOs play in the political lives of their countries. As the Afrobarometer report pointed out, in admittedly a complex statistical analysis[4]:

Findings suggest that across a wide range of African countries, including fragile states like Liberia and stronger states like Botswana and South Africa, donors and non-state actors are strengthening, rather than undermining, citizens’ legitimating beliefs, as measured by their willingness to defer to the tax department, the police and the courts. Citizens who believe that donors and non-state actors, including domestic and international NGOs and international businesses, are doing a lot to help their country, rather than a little, are more likely to be willing to defer to the tax department. People who perceive that donors and non-state actors exert too little, rather than too much, influence over their government, are less likely to be willing to defer to the tax department, police, and courts. The opposite is true for those who perceive that donors and non-state actors exert too much influence, rather that too little influence, over their government.

Unfortunately, Zimbabwe was not included in the 19 countries from which the data was derived, but the sample of countries was sufficiently large[5] as was the number of citizens included (26,513). So this is a fair test of what African citizens think about donors and NGOs. And the findings certainly rubbish the claims by so many African governments that these bodies have a malevolent influence over their citizens.

African citizens, rather than distrusting donors and NGOs, see these bodies, where they are very present and active in a country, as strongly complimenting the work of their governments, and, very surprisingly, results in citizens claiming that this would make them more likely to pay tax, and more willing to defer to the authority of the police and the courts. Overall, this suggests a win-win situation for states and citizens: good states will attract donors, encourage non-state actors, and be rewarded with good citizens. Bad states repel donors, suppress non-state actors, and end up with unresponsive citizens.

It is also worth pointing out that it remains surprising at the continental level that donors continue to engage with so much faith in Africa, but this is not necessarily the case at the individual country level, where there may be excellent synergies between state, donors, and NGOs. Donor countries and donors continue to provide financial support to Africa in spite of the very discouraging picture. As a 2012 report from the Political Economy Research Institute points out in respect of capital flight from Sub-Saharan Africa[6]:

A key constraint to SSA’s growth and development is the shortage of financing. Indeed SSA faces large and growing financing gaps, hindering public investment and social service delivery. At the same time, the sub-region is a source of large-scale capital flight, which escalated during last decade even as the region experienced growth acceleration. The group of 33 SSA countries covered by this report has lost a total of $814 billion dollars (constant 2010 US$) from 1970 to 2010. This exceeds the amount of official development aid ($659 billion) and foreign direct investment ($306 billion) received by these countries. Oil-rich countries account for 72 percent of the total capital flight from the sub-region ($591 billion). The escalation of capital flight over the last decade coincided with the steady increase in oil prices prior to the global economic crisis.

 

Assuming that flight capital has earned (or could have earned) the modest interest rate measured by the short-term United States Treasury Bill rate, the corresponding accumulated stock of capital flight from the 33 countries stands at $1.06 trillion in 2010. This far exceeds the external liabilities of this group of countries of $189 billion (in 2010), making the region a “net creditor” to the rest of the world. The stereotypical view that SSA is severely indebted and heavily aid-dependent is not fully consistent with the facts.

 

And the general trend has been getting worse over the past four decades: net losses in the early 1970s were about US$28 billion, but by 2005-2010 they were estimated at US$202 billion. It is not the purview of this short opinion piece to examine the reasons for all this capital flight, but it does seem that the knee-jerk statements by African (and increasingly Zimbabwean leaders) to blame the West for its (and our) problems is not very honest. Some honest examination of who is sending out all that money might go some way to solving some of Africa’s economic problems, and could even pay off all of Sub-Saharan Africa’s debts.

There are also the knee-jerk attacks on the motives of the non-state actors. This is the really sorry story, because non-state actor is a term that covers virtually everyone that is not a government or a donor: NGOs, CBOs, associations like churches and sports clubs, international NGOs like Oxfam and Save the Children, and so on. African citizens say that the more of these that exist and are working hard for them, the more likely the nation and key institutions are one they trust. And, of course, they have an interest in regime change: any government that the non-state actor sector sees is not serving the interests of the people will be challenged.

But it depends on what is meant by regime change. It can range from wanting a new political party to govern (and only by election, not coup or violence) through to wanting a particular change in policy direction. Regime change straddles wanting a new government through to trying to influence a regime to change its policies, and this latter is where the vast number of NGOs put their energies. And since NGOs and CBOs in Africa are mostly filling the gaps where government cannot deliver, it is the reason why African citizens have trust in them. It also turns out that this is the core political activity in any nation, and why civil society (and its organisations) are at the heart of the political life of the citizenry.


[1] Baldwin, K (2011), When politicians cede control of resources: Land, Chiefs and coalition- building in Africa. Working Paper No. 130. AFROBAROMETER.

[2] Resnick, D., & Casale, D (2013), The Political Participation of Africa’s Youth: Turnout, Partisanship, and Protest. Working Paper No. 136. AFROBAROMETER.

[3] Most recently these sentiments were repeated by Minister Chinamasa in the statement following the meeting between the various Zimbabwean political parties and the British government. See COMMUNIQUE ISSUED BY HONOURABLE PATRICK CHINAMASA, Deputy Secretary for Legal Affairs of ZANU PF And The Minister of Justice and Legal Affairs At the Conclusion of the Meeting of Representatives of the Inclusive Government of Zimbabwe and the Friends of Zimbabwe (FoZ) held in London, QEII Conference Centre from 25 to 26 March 2013.

[4] Sacks, A (2013), Can Donors and Non-state Actors undermine Citizens’ Legitimating Beliefs? Working Paper No.140. AFROBAROMETER.

[5] The counties were Benin, Botswana, Burkina Faso, Cape Verde, Ghana, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mozambique, Namibia, Nigeria, Senegal, South Africa, Tanzania, Uganda, and Zambia.

[6] Boyce, J. K., & Ndikumana, L (2012), Capital Flight from Sub-Saharan African Countries: Updated Estimates, 1970 – 2010, October 2012. Political Economy Research Institute. University of Massachusetts, Amherst.

Free and Fair Elections?


Since 2010, RAU has been pointing out that the most important matter to be resolved ahead of any future elections is the reform of national institutions. This position has been repeatedly supported by SAPES and the Zimbabwe Liberators Platform. SADC, both through the Troika and the Summit, has also insisted on the deep message beneath the GPA: constitution AND reforms, then elections. Most recently, President Jacob Zuma himself has pointed out the need for urgent action ahead. Speaking at the recent meeting in Pretoria of the SADC Organ on Politics, Defence, and Security, Zuma made the following points:

  • “Security sector realignment cannot be postponed any longer”;
  • “In this regard Jomic needs to be activated as a matter of priority”;
    “The facilitation team supplemented by the representatives of Tanzania and Zambia must be enabled to participate actively in Jomic”;
  • “Namibia as a member and incoming chair of troika should now be included” ;
  • “Without the above two points it will be difficult to ensure that there is no intimidation and that violence is not allowed to escalate, if and when it occurs.”

So, when the President and the Minister of Justice are quoted as saying that elections will be held by 29th June, and in the shenanigans around the continued detention of Beatrice Mtetwa and the 4 MDC officials and repeated harassment of NGOs, the total absence of reforms is now critical. The kinds of reforms now needed must be realistic and effective, for there is no longer time for the kind of wishful thinking that has characterized most calls for reform by Zimbabwean political parties and civil society bodies.

As we pointed out recently and several times previously, there are four key areas of reform that can change the electoral playing field[1]:

Firstly, the security sector needs oversight, what some have termed Security Sector Governance as opposed to Security Sector Reform. The latter is a decade-long process, while the former merely requires strong civilian oversight of the uniformed services and the intelligence agencies. This achieved in two ways: appointments of the senior officials through full consensus by all political parties, and a wholly civilian oversight body – in Zimbabwe’s case, agreement between the President and the Prime Minister of the appointments to the army, the police, the prisons, and the intelligence service, the disbanding of JOC, and a wholly civilian National Security Council.

Secondly, ensure that all state institutions adhere completely to their enabling legislation. The police are not allowed to be members of political parties or participate in political activities, and shall carry out their duties in a wholly non-partisan manner. Traditional leaders – chiefs, headmen, and village heads – are not allowed to be politically partisan, and must report all crimes in their areas of jurisdiction, without exception, to the police.

Thirdly, the Office of the Attorney-General (and the Attorney-General) must be completely non-partisan. The Attorney-General should be appointed with the agreement of both the President and the Prime Minister.

Fourthly, the state media – television, radio, and the press – shall be regulated by an independent body for instances of bias and the propagation of hate speech. Reform of the state media will a lengthy process, and, thus, in the short term all that is feasible is that there is an effective stop to all political bias and hate speech.

Add to this President Zuma’s latest comment that SADC observers need to be deployed well in advance of the election – now actually if the statements by the President and the Minister of Justice are to be taken seriously.

All of this will be difficult to achieve, but not impossible, but the big question is what to do if there is no credible attempt at reform. There can be only one position, that responsible political parties should not dignify flawed elections by participation. Actually, this should be their position right now. Whatever the constitution says, either the old or the new, adherence to minimal legalism will not solve the Zimbabwe crisis or bring legitimacy to the state if elections are a farce, and elections are farcical if citizens cannot speak, assemble, associate, and vote in complete freedom.

South Africa and SADC seem to see this quite clearly, but do Zimbabwean political parties. So, no reforms, no elections must be the call by all!

written by

Tony Reeler


[1] RAU (2012), On Restoring National Institutions and Elections. The Governance Programme. March 2012. HARARE: RESEARCH & ADVOCACY UNIT; Reeler, A. P (2013), Of Camels, Constitutions, and Elections. February 2013. HARARE: RESEARCH & ADVOCACY UNIT.

Can’t say No?


The constitution making process has revealed the utter contempt with which Zimbabwe’s politicians treat the electorate, from Operation Chimumumu of the outreach programme, to insulting our intelligence by constantly claiming that the document they have presented as the proposed new constitution reflects the people views, rather than being the result of inter-party negotiation, and then allowing insufficient time for most people to consider the substance of the draft.

 

Should, however, one reject the draft simply to punish the politicians for this arrogance and to demonstrate that the electorate refuses to be treated so shoddily? On the other hand, if, regardless of the process which produced it, a brilliant document has been prepared is one not being churlish and shooting one’s self in the foot by rejecting the draft? Hardly. Even the proponents of a “yes” vote concede that the document is a poor thing (but their own), the best they could do under the circumstances. It is, we are told, nonetheless “incremental progress” and we should thus vote “yes”.

 

We have heard this argument before. We were told that the Constitutional Commission’s draft of 2000 was progress and we should thus vote “yes”. But the people voted “no” because the draft did not achieve that which they had set as their objective, to reduce the vast powers of the President.

 

We were also told to support the GPA because, although the accord left Mugabe’s vast powers intact, it was the best that could be obtained under the circumstances, was incremental progress and was the means by which the integrity of the electoral process could be restored. A new constitution was presented as one of the instruments by which this would be accomplished.

 

This being the stated intention behind the constitution making process, the draft should be rejected on this ground alone. Its provisions will do nothing to restore the integrity of the electoral process. Certainly it contains hopeful clauses stipulating that elections “must be peaceful, free and fair, free from violence and other electoral malpractices” and that “neither the security services nor any of their members may, in the exercise of their functions act in a partisan manner; further the interests of any political party or cause; prejudice the lawful interests of any political party or cause; or violate the fundamental rights and freedoms of any person.” But the constitution very deliberately fails to include any remedy or steps that can be taken if there is no compliance with these provisions. They are thus little more than pretty window dressing designed to allow politicians to tell the naïve that the draft is not all bad.

 

If the new constitution was to address the issue of electoral integrity, then this was the moment to attend to institutional reform, particularly the partisan nature of the criminal justice process and security sector which has played a key role in subverting democratic choice in the past. The MDC politicians proudly tell those who have felt or fear the double whammy of the combined operations of the Commissioner-General of Police and Attorney-General, that this problem has now been addressed. The Attorney-General will no longer be in charge of prosecutions. This will now be done by a Prosecutor-General. They fail to mention that the draft specifically provides that the current Attorney-General, Johannes Tomana, will be the new Prosecutor-General, that the President has the ultimate power to determine his successor in any event and that Chihuri will remain in his post. Hence, rather than addressing partisanship in the application of the criminal justice system, the draft is carefully drawn to ensure that it continues. Similar criticism can be directed at the problem of security sector governance. To make the point, one need only take note of one of many adverse provisions: while in democracies the operations of the intelligence services are governed and regulated by statute, the draft again specifically includes a clause to ensure that this does not happen and allows the intelligence services to remain the unregulated plaything of the President and to be used for party political purposes.

 

The “yes” proponents either obfuscate these issues or ask us to focus on the “incremental gains” reflected in the draft. The incremental gains appear predominantly in the unquestionably greatly improved Declaration of Rights. Its provisions are better for women. Gay, lesbian, bi-sexual, transgender and inter-sex rights are also given strong support, albeit not by name. There is improved freedom of expression in the media, etc.

 

These “incremental gains” in the Declaration of Rights do nothing to encourage a “yes” vote. They require an uncompromised and uncompromising judiciary and legislative reform to be realised. Contrary to the basic principle of the separation of powers, the draft ensures that the head of the executive retains control over both the judiciary and the legislature. Although there is an improved system of advertising for positions and the public interview of candidates for judicial office, if the President does not like the nominees that emerge from the process, he can by-pass this process and select candidates he finds more amenable. Similarly, the draft retains the President’s power over the legislature. Egregiously, under the present constitution the legislature consists of Parliament and the President who has the power to veto legislation. This is retained under the draft. Certainly, a two-thirds majority in Parliament can override the Presidential veto. But this is highly unlikely to happen in practice. The President is elected at the same time as the Members of Parliament. It is thus improbable that Parliament will comprise enough members opposed to the President, or of a different party, to counter his or her veto.

 

The “yes” and “incremental gain” proponents also disingenuously claim that once they win the elections they will amend the constitution to attend to these problems. But any constitutional amendment will require a two-thirds majority in favour in both Houses of Parliament. The current political configuration suggests that neither party is likely to be able to muster this majority. Hence, once the draft is accepted, the constitution making chapter will be closed and we will be stuck with a document that none regard as satisfactory for the foreseeable future. Politicians from the winning party, which ever that may be, are likely to be comfortable with the overweening powers of the President, even if the electorate is not. A “no” vote will keep the constitution making process alive, which might then continue under more favourable conditions, with a different balance of political power, at a later date. The GPA only requires that there be a referendum on the constitution before the elections – not that a new constitution be in place by then. So why the rush to bring the constitution making process to an end?

 

The rush is because the draft constitution provides a convenient fig leaf for SADC’s ineffectiveness and anaemic responses in the face of ZANU PF’s refusal to affect the reforms necessary for a credible election. None of the essential reforms necessary for the integrity of the electoral process have been implemented during the course of the GNU.  It also provides a convenient escape route for SADC, facing yet another flawed election in Zimbabwe. SADC has already started preparing the claim that although “not all” the reforms provided for by the GPA were implemented at least the election was conducted under a new constitution – an approach which delights ZANU PF. From there will follow the non-sequitur, (based on the off key refrain that a new constitution will protect the integrity of the electoral process) that the vote substantially reflects the will of the people and the poll is thus acceptable. A “no” vote will strip away this fig leaf and close this escape route for SADC. The narrow democratic space in which the elections will undoubtedly be conducted will thus be there for all to see.

 

The advantages of a “no” vote are thus readily apparent. It requires one to peer very closely at the draft through thick rose tinted glasses to discern any advantages accruing from a “yes” vote.

 

Derek Matyszak 05.03.13