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….

Is women’s participation in elections darned, damned and doomed?


by Kudakwashe Chitsike

In July 2013, Zimbabweans went to the polls for elections that were set to end the Global Political Agreement (GPA) signed in 2008 and the subsequent inclusive government. This election was a winner takes all event; and there was a lot of excitement about the future from all political parties, but also a sense of trepidation as the previous elections had been riddled with violence. Civil society groups and the media had labelled the 2008 election, the most violent election period in Zimbabwe’s history. 

Women were particularly afraid of the violence as they suffered both as primary and secondary victims. In many instances, when there were threats of violence, the men would run away, but, because of their domestic responsibilities, women were not able to go as they had to look after children, the sick, and the elderly. In previous RAU reports, we documented women’s experiences with violence during elections which included arson, assault, destruction of property, rape, political intimidation, and threats.  There was enough evidence for women to have good reason to fear another round of elections.  During the existence of the inclusive government, the main political parties were preaching non- violence and peace, but there were reports of violence regardless.  The parties were aware that the world was watching, and specifically looking out for acts of violence during the 2013 elections. They were also aware that violence would discredit the elections as was the case in 2008, particularly the period leading up to the run off; thus, it was in their best interests to be seen to be advocating for non-violence.  There was very little overt violence but reports of intimidation before and during the elections were reported.

To explore the nature of women’s experiences during the elections in 2013, RAU conducted three focus groups discussions with participants from Masvingo, Bindura, and Marondera.  The study looked at the general operating environment, which included voting, the special vote, assisted voters, indelible ink, the vote counting and the results.  With regard to violence, most of the women who participated in the study stated that they voted in a relatively peaceful environment. Below are some of their statements:

In Masvingo we did not encounter the problems we encountered in 2008. There was no violence the same way there was in 2008, in fact people really voted in peace and people reflected their choices peacefully.

I met with a new but very pleasant experience where young men from different political parties would share glue for sticking campaign posters.

We were happy because the prayers we took part in worked. There was peace everywhere. I was an agent and I was happy because it was not as hard as it used to be in the previous years.

The women were from different political parties, but their sentiments on violence were similar; though they varied on other areas such as the registration process and inspection of the voters’ roll. The differences were clearly on party lines, where women from one party found it easy to register and inspect the voters’ roll and others found it near impossible.  The full report is available for download here on our website.

New politics, margin of terror, and the 2013 elections


by Tony Reeler

One of the enduring questions raised by the 2013 elections is the magnitude of the win by ZANU PF, and the even more staggering win by Robert Mugabe.  Questions about rigging aside, one relationship that keeps being posed (and answered) is the notion that ZANU PF did so well because the MDCs are so bad. Stephen Chan, a respected Zimbabwe commentator, has raised this recently, pointing out (in his view) that “…Morgan Tsvangirai’s Movement for Democratic Change (MDC) performed appallingly. Outwardly confident, it made the same mistakes it had in previous elections – as if internal reflection, self-criticism and learning from mistakes were impossible”.

A similar view is expressed by the Solidarity Peace Trust (SPT):

All these issues point to a party that has not been able to strengthen its organizational and strategic framework against a repressive regime that has constantly harassed its leadership and structures. However, since 2009 these weaknesses have eroded the support of both MDCs, as was evident from opinion polls carried out in 2012, which showed a drop in support for the MDCs and Tsvangirai and an upsurge in popularity for Mugabe and his party. These weaknesses and, of particular importance to the election campaign, the failure of the two MDC formations to develop an electoral pact in 2013, resulted in the loss of several seats to ZANU PF due to a split vote. For example in Matabeleland South, 8 of the 13 seats were lost to ZANU PF because of the this factor, while in Matabeleland North a united opposition would have won 11 of the 13 seats instead of which ZANU PF won 7 out of the 13. Together these factors meant that the MDCs were a much weaker force in 2013 than they were in 2008.

Now we must also note the arguments about ZANU PF developing a strong social base due to land reform and indigenisation, and also the problems of explaining this social base by reference to Mugabe’s 1 million voter margin over Tsvangirai, and concentrate on another source of “evidence” for the result. This is the evidence deriving from public opinion surveys. Essentially, there is an argument that ZANU PF has been increasing in its popularity with the citizens of Zimbabwe, and it is this popularity that explains the election result.

But before looking at this “evidence”, let us look briefly at the argument that ZANU PF obtained this enormous increase due to a massive increase in its “social base”, and we will ignore the issues of whether this is a social base due to “positive affiliation” (identification and voluntary support) or due to “patronage” (compliance and support based on comparative advantage for supporting ZANU PF).

The basis for this “social base” is generally argued to be three-fold: old Liberation War allegiance (mostly in the rural areas), access to land from land reform, and access to the benefits (or hoped-for benefits) of indigenisation. As regards the first of these, it is indisputable that ZANU PF commands voluntary allegiance from substantial rural supporters, and it was largely this group that gave Robert Mugabe his 43% in March 2008. And, in 2008, most land reform had already been in place for nearly 10 years, and that did not seem to give Robert Mugabe the advantage that is alleged he got in 2013. The big benefit on land seems to be increased tobacco production at the cost of food production.

As for indigenisation, it seems fairly clear that there have been few actual beneficiaries in rural communities, especially in Matabeleland North and South, although there are promises for the future when ZANU PF wins the election. So the benefits of indigenisation on the voters must have been expected in the future and a reason to vote for ZANU PF, which may be a possible explanation. However, it should be pointed out that very little of the US$4 billion supposedly realised from indigenisation seems to have landed in the fiscus, so it can equally be argued that the lack of benefits for the ordinary citizens of Zimbabwe should have counted against a vote for ZANU PF.

However, the assumption is that the “social base” can be inferred mostly from voter turn out, and there seems a missing step in the logic here.

Contrast these two statements:

If ZANU PF has a social base, they will get lots of votes.
ZANU PF got lots of votes.
Therefore, ZANU PF has a social base.

If ZANU PF gets lots of votes, they have a social base.
ZANU PF has a social base.
Therefore, ZANU PF gets lots of votes.

What is obviously missing here is any obvious link between lots of votes and social base. We can empirically verify the votes: they were in the boxes and counted. We can believe that land reform and indigenisation can make people ZANU PF friendly, but there is a missing step in the logic that shows that being ZANU PF friendly comes from land reform and indigenisation independently of the voter turn-out. This is where public opinion surveys and other forms of social research have their application.

Partial support for many has been a 2012 report by Freedom House, which concluded that support for the MDC-T had slipped markedly – from 38% to 20% – and that for ZANU PF had risen by the same amount – from 17% to 31%.  This report (and the SPT report) is being mendaciously used by the ZANU PF media to “explain the victory”. Essentially, the spin is that, in the period from 2010 to 2012, MDC-T’s support was sliding, and, one year on, ZANU PF’s support had increased so dramatically that the result was intelligible to all on the basis of changes in political party support.

However, basing election outcomes on public opinion surveys is always a dicey affair, especially when so many of the people do not give an opinion. In the Freedom House 2012 survey, 47% were unwilling to state their voting intentions, and this needs to be thought about carefully: nearly half would not say. But presumably, and in the light of 2013, these were interviewees who were worried about declaring their affiliation to ZANU PF for fear of victimisation. Reality suggests that this is not the case!

But there is a more serious problem with reliance on the Freedom House report – that it is not methodologically sound, and its conclusions are probably erroneous. A more empirically sound report, “The Margin of Terror”, was compiled by Michael Bratton and Eldred Masunungure of the Afrobarometer, and this came to rather different and more nuanced conclusions than those of  Freedom House. They also provided a number of reasons why the Freedom House report was methodologically unsound.

Firstly, this report concluded, on simple voter preference, that ZANU PF and MDC-T were in a “statistical dead heat”, with the former getting 32% and the latter 31%, and only 22% were unwilling to state their preference. This did represent a decline for the MDC-T from the post 2008 election heyday to early 2009 where expressed preference for MDC-T was 57% to ZANU PF’s 10%. So the difference here between Freedom House and the Afrobarometer is both over the extent of the decline and the final positions that both parties found themselves in 2012.

Secondly, Bratton and Masunungure posed two hypotheses to account for the decline: one was the positive effect of improved government performance, and the second was the negative effect of political fear. They tested both, and the conclusions, on face value, supported both working in favour of ZANU PF.

After careful statistical analysis, it appears that some voters attributed the improved “right” direction, the “good” management of the economy, and “improved educational services” to ZANU PF’s role in the Inclusive Government. This is a paradoxical finding, given that MDC-T was responsible for fiscal control and MDC for education. This would support a view that the MDCs were not marketing themselves as effectively during the GPA as ZANU PF, and even provides support for the SPT thesis about a growing social base. But there was more to come.

On political fear, the study revealed a negative relationship between an interviewee’s expectations of violence and an intended vote for ZANU PF, and, more interestingly, that silencing opponents was more likely to make an interviewee vote against ZANU PF. Most interesting of all, the more likely an interviewee was to perceive the survey as government-sponsored, the more likely they were to express preference for ZANU PF. Furthermore, this last factor had the strongest effect on whether a person would come out openly in support of ZANU PF, and strongly suggests the operation of political fear.

However, Bratton and Masunungure then tease out the effects of people that perceive the survey to be government-sponsored and hence fearful of being honest. Through a slightly complicated analysis, they then conclude that the probable split of support for the various political parties in 2012 was MDC-T (49%), ZANU PF (45%), and all the others put together (7%). This was almost exactly, as they point out the split that obtained in the March 2008 poll, and, as they say, the analysis implies that, if voting intentions do not change, Zimbabwe can expect another close election in 2013.

If this had been the case, then Tsvangirai should have got 1.7 million votes and Mugabe 1.5 million, but actually Mugabe got 700,000 more votes against this supposed trend, and actually got 1.03 million more votes than he got in 2008, a more than 95.46% increase. But interestingly, Tsvangirai got pretty much the same number of votes as he got in 2008.

Well, opinion surveys certainly cannot argue against ballots in the box, all 3.4 million of them. But then Zimbabwe tends to disconfirm all the more general findings of political science, as we have pointed out before: clearly trends only mean things in countries other than Zimbabwe. However, given the support of analyses of the Voters’ Roll (especially in comparison with the census), it can be argued that the survey is likely to be more accurate than election result, and it still remains to explain the result on grounds more closely related to the process of the election itself.

In Zimbabwe, other trends seem to apply. Zimbabwe sees ZANU PF losing ground, regaining it through violent elections, and then being returned with two-thirds majorities in a subsequent “peaceful” election. 2013 marks the end a second such cycle in Zimbabwe: 2000 was fairly violent, 2002 was at least as violent as 2008, and 2005 was peaceful. Then we have the peaceful poll in March 2008, the horrors of June 2008, and the peaceful poll in July 2013. And obviously citizen’s opinions (and their votes) have very little to do with it. No wonder some commentators, like Dr Mandaza, wonder why we bother with elections: all they do is make a mockery of the best that political science can offer!

Food for Thought: The basics of power


by Lloyd Pswarayi

Zimbabwe held its harmonised elections on the July 31st 2013, and ZANU PF attained an overwhelming majority in the House of Assembly, with its presidential candidate Robert Mugabe defeating MDC’s Morgan Tsvangirai convincingly by amassing 61% of the total votes. This effectively marked the end of the Inclusive Government and ushered in a new mandate for ZANU PF to implement the policies contained in the party’s election manifesto. The 2013 elections were expected to address one of the fundamental problems of the Zimbabwe crisis – the crisis of legitimacy. However, there were more questions than answers concerning the outcome, and the MDCs have claimed that there was massive rigging. Notwithstanding the rigging allegations, the fact remains that ZANU PF is now in charge. ZANU PF was ‘voted’ for by the people and they claim that they derive their legitimacy from the outcome and not necessarily the process of the July 31 elections. The party and its apologists have successfully put a spin on election observer mission statements and added “fair, and credible” in describing the elections”, (Of course that is not true).

I argue here that the whole notion of “legitimacy’ is a debatable issue. In political science, “legitimacy usually is understood as the popular acceptance and recognition, by the public, of the authority of a governing régime, whereby authority has political power through consent and mutual understandings, not coercion”. Firstly, legitimacy is derived from a mandate given by the people willingly and readily to continuously surrender their power to the governing party. Legitimacy is therefore not a one day event, but it is something that has to be earned every day. Assuming that the process that led to the winning of elections was perfect and fit into the “free, fair, credible” description, policies to support the people that delivered this mandate will continuously justify the question of legitimacy.

I want to look at legitimacy from a food security perspective in Zimbabwe, given reports of possible starvation mostly in the rural areas. Reports point to the fact that nearly 2.2 million Zimbabweans currently face starvation. Government has assured the nation that no-one will starve and a deal has been struck to import maize from Zambia. This food security situation is worrying as it has become a trend that this country cannot feed its people and has to rely on food imports. This is especially unacceptable coming from the backdrop of a programme that saw nearly 350,000 families being allocated land in the year 2000 during the fast track land reform programme. But of course, failure of the process has however been squarely heaped on the MDC, sanctions and failure by the former Finance Minister to release funds to support the programme.  

Image

One of the key points in the ZANU PF election manifesto for the 2013 harmonised elections was adequate support to be given to farmers through finance schemes and the setting aside of $1billion for the sector. A government loses legitimacy when it cannot feed its people and rightly, people are bound to withdraw their support from it. In the new dispensation, addressing food security concerns is a fundamental problem that the ZANU PF government will face because there is no MDC to blame.

In my view, the government, and in particular, the Ministry of Agriculture, has not been serious about food security in this country. When a government cannot feed its people, surely it ceases to be relevant. If people are hungry, they may revolt against the system, and the only way for the system to contain this is would be to suppress its people through familiar tactics such as intimidation, violence, threats, targeting of perceived opinion makers such as teachers. The whole thing may end up messy with communities becoming unsafe to live in, and woman and children are directly violated. The real holders of power (the people) will demand change and this would be a legitimate call. From experiences in the past, ZANU PF has labelled this the “regime change agenda”.

Year in year out, there are reports of shortages of inputs, inputs stolen by chefs, inputs delivered late, and the results have not been surprising. The Minister of Finance, at his victory celebration party in Rusape recently pointed that government would supply agricultural inputs to 1.6 million families in Zimbabwe for the forthcoming season.  These inputs include one bag of compound fertiliser, one bag of Ammonium Nitrate; 10kg bag of seed and “for the very first time”, a bag of agriculture lime. This may sound like ZANU PF means serious business, but this is a big joke and populist. It may only deliver hunger in 2014. This trick has been tried before multiple times and has produced nothing but disaster.

My advice to the Minister of Agriculture, VaMade is that his Ministry is very important and everything contained in the ZANU PF election manifesto hinges on ensuring food security. If this does not happen, unfortunately people (the real holders of power) will question why we need ZANU PF in government. They will even start talking about NIKUV this and NIKUV that and this would be undesirable talk that questions the party’s legitimacy to govern. I know you want to shame the West who have strongly criticised the land reform programme and the only way to do so is to ensure that all the silos owned by the Grain Marketing Board (GMB) are filled with grain and we are exporting to the region because we have achieved excesses. How do we achieve that excess Honourable Minister? Firstly I think government should immediately abandon piece-meal policies by supporting small-holder farmers fully with six (6) bags of Compound D, eight (8) bags of Ammonium, 25kg of seed maize and full extension services. This costs money and this is money that is not available. But there is a solution Honourable Minister. Government should support 1.6 million people with sufficient inputs that are availed on time and indiscriminately. People from other political parties also deserve access to these inputs as well, regardless of their political affiliation. It should probably also be made compulsory that everyone who benefited from state land through the land reform programme grows at least a hectare of maize. Yes I said compulsory! If government could compulsorily acquire land, then it can also compulsorily enforce production because it is in the public interest.

Whilst government is still working on securing funds to finance this sector, some mechanism needs to be put in place to identify legitimate small scale farmers in every district that can fully benefit from the government input scheme to grow maize. In return, government could consider a ratio of say 40/60 with the farmers, where the farmers retain 40% of the maize and sell the remaining 60% to the GMB at competitive prices. Even those who may not have directly benefited from full support would benefit from a pricing regime that encourages maize production and timely payments. Imagine what sustaining this over the years and making sure there is optimal production on land would do in the long term.

By so doing, you will be departing from a culture of dependency where every year we have to rely on Western donors to feed our people. Isn’t they are the very same people you claim want to effect a regime change? When you address the food security issues, more energy and resources are channelled into other sectors of the economy and create jobs for the youth that find themselves selling airtime even with university degrees. 

As Zimbabwe’s 2013 Elections Approach: A Call for an End to Torture


Photo Accredited to Sokwanele
Photo Accredited to Sokwanele

The International Day in Support of Victims of Torture was created by the United Nations to end torture and raise awareness of an international convention, which went into effect on June 26, 1987 after it had been ratified by 20 states.

In support of victims of torture around the world, this year’s theme honors the “Right to Rehabilitation,” assured in Article 14 of the Convention Against Torture.  This right entitles survivors to long-term holistic medical, psychological, legal and social services.  Access to these resources is vital to healing the lives of those who have suffered and ensuring their safety and inclusion in society.  To truly restore hope to the victims of torture, this year’s focus on rehabilitation must be more than a slogan, but honored with concrete actions to guarantee these rights are implemented. 

As the world observes this day of solidarity, I pause to reflect on the Zimbabwean 2008 elections when human rights activists and opposition supporters were targeted and tortured for their political affiliation.  I believe the year will be remembered by many as the darkest year in the history of Zimbabwe since independence.

I was present in Zimbabwe during that fateful year and watched powerlessly as my fellow human beings were subjected to some of the most degrading treatments.  Examples of these abuses were reported by international media like  Dateline,  an Australian current affairs news program.  Some supporters of the opposition party were held at a torture camp known as Matapi Base in Mbare—a township on the outskirts of Harare—where they endured beatings on a daily basis.  There were 328 cases of torture alone by August of that year.  The wave of violence that engulfed the country left many with permanent physical and psychological scars.

Those who lived to tell the stories of their ordeals were left in a state of constant fear due to intimidation from their victimizers. Many among the victims are yet to find rehabilitation for the abuses they were subjected to.

In the following video produced by WITNESS and our partner in Zimbabwe, Research and Advocacy Unit, one survivor tells her story of the sexually based violence she and many other women and girls endured in the last election.  Targeted and raped for her political activism, her struggle to cope with the trauma of her experience stresses the urgency of focusing on rehabilitation for victims and their families.

We can no longer afford to stay quiet when our Zimbabwean brothers and sisters are faced with uncertainty.  As Zimbabwe prepares for the next election in August, we must stand in solidarity with them by persuading decision makers (both local and international) to put necessary mechanisms in place that will ensure survivors’ right to rehabilitation and to elections free from torture.

This Blog is reposted from the witness website, the original can be found on

http://blog.witness.org/2013/06/as-zimbabwes-2013-elections-approach-a-call-for-the-end-to-torture/

ZIMBABWE’S DUAL LEGAL SYSTEM


Zimbabwe is often stated to have a “dual legal” system, whereby traditional customary laws run parallel to the formal and statutory laws of the State. However, it now seems increasingly possible to say that another duality is emerging, the law as it is and the law as interpreted by ZANU PF, its sycophants, acolytes and supporters, overt or covert. Curiously enough Dr. Madhuku has recently made several odd pronouncements on the law which are closer to the latter than the former and seem more in keeping with his announced intention to venture into politics, than as a legal expert.

His latest such pronouncement, if the Herald of Monday 17th June 2013 is to be believed, is that Mugabe is unable to approach the Constitutional Court, as requested by SADC, to extend the 31st July election date deadline, as was ordered in the Mawarire case on the 31st May, 2013. The apparent basis for this contention is that the Concourt is unable to alter an order which has already been implemented.

This contention is bizarre. Subsection 38(4) of the Electoral Act specifically allows the dates given in an electoral proclamation to be changed by the President. According to Dr. Madhuku’s argument, since the Constitutional Court order has already been implemented, the President would be free to use subsection 38(4) to move the election date beyond the 31st July, without being in contempt of court, as he had already implemented the order as required. This is manifestly not so. The clear import of the Concourt order is that whatever election date is proclaimed, either as originally set or as altered, it must be one which ensures that the election takes place before 31st July. (And here we are supposed to ignore the argument advanced by Dr Madhuku and the Minister of Justice in 2008 around the date for the Presidential run-off election, that “the election” does not mean the date of voting but the entire electoral process ending only upon the announcement of the result – an argument which now seems forgotten in applying the Concourt order).

It seems necessary to state the obvious. The logic of the Concourt judgment, and the order issued, is that the election date the President must set, must be one that ensures that the election is held before the 31st July. If he wishes to use section 38(4) to change this date, to avoid being in contempt of court, he must approach the court to indicate why he is unable to apply the order – as he did so many times before in the case of the court orders issued around the by-elections.

There is a difficulty here, however. The basis upon which the extension could have been requested has changed. Initially it seemed that the President could not comply with both the Concourt order and the Constitution and electoral legislation. The Constitution requires a 30 day intensive registration process which the parties agreed in Cabinet had commenced on the 9th June (though which the Minister of Justice has since claimed was somehow self- implementing the moment the new constitution was passed). The Electoral Act provided/provides that voter registration must end the day before the nomination court sits. Thus the nomination court could not sit before the 9th July, and, as the Constitution provides that elections can be held no sooner than 30 days after this, bringing elections to the 9th August, there could be no simultaneous compliance with the Concourt order. Furthermore, the new constitution also provided that the Electoral Act could not be changed once the election dates had been announced. As the constitutionally mandated amendments were unlikely to come before parliament before the 17th June, and the new constitution requires a minimum 44 day period between the proclamation of the election date and the election itself (now interpreted to mean election day), once again it seemed that the need to amend the Electoral Act meant that the Concourt order could not be complied with without breaching the Constitution.

The President attempted to deal with both these problems by use of the Presidential Powers (Temporary) Measures Act (PPTMA). He thus issued Regulations, purportedly under that Act, not only incorporating the amendments to the Electoral Act relating to proportional representation etc, but also, reportedly, to change the Electoral Act so that voter registration may continue after nomination day.

This then supposedly resolved the problem of the constitutional requirement of the 30 day intensive registration period and the difficulty of amending the Electoral Act before proclaiming the election dates. The extension of 31st July deadline on the ground of unconstitutionality was thus seemingly extinguished.

However, the Regulations issued under the PPTMA are themselves unconstitutional. This is not on the basis of section 134 of the new Constitution, which precludes Parliament from delegating its law making authority, as the Prime Minister’s office has suggested, since is not yet in effect. It is because both the old and new constitution specifically require that electoral law is made only “by an Act of Parliament” and emphasises this is so particularly in relation to voter registration, a provision, as noted above, that the President has purported to alter by Presidential Regulation and not an Act of Parliament.

In considering the extension of the July, 31st the Concourt may be asked to rule that using the Presidential Powers (Temporary Measures) Act, as the President has done, to alter the Electoral Act is illegal, and that the problems relating to the amendment to the Electoral Act and the 30 day registration period remain, rendering the 31st July date constitutionally impossible.

However, the same judges who will adjudicate this matter have been reluctant to interpret the PPTMA as being restricted in this way by the Constitution. In 2002 in the matter of Tsvangirai v Registrar General, when precisely this issue was raised, only Sandura JA dealt with the point, holding that the PPTMA could not be used to amend electoral legislation. The remainder of the judges sidestepped the issue, and (astoundingly) held that Tsvangirai did not have the right to approach the court (locus standi) on the matter. Furthermore, if the President or the Minister of Justice makes the application for the extension, neither of the two could be expected to suggest to the court that the use of the PPTMA to amend electoral legislation, was illegal, now the sole basis for the extension.

An alteration of the 31st July deadline will also be a tacit admission by the Court that its order in the Mawarire case was legal nonsense. It will thus be a matter of no little interest as to how these judges will approach the Application to change the date, which has now been filed by the President.

Derek Matyszak

19.06.13.

Reforms and elections: The need for a Transitional Executive Council


When South Africa was faced with the problems of negotiating its transition by an election in 1994, it produced an extremely important mechanism to ensure that the election would be free and fair, and that the overwhelming power of the South African state (dominated by the National Party) could not be used to the advantage of the government in power. It did this by creating a Transitional Executive Council, a body that would exercise some of the delegated powers of the government and Parliament. This was a highly successful innovation that, in fact, was crucial to South Africa holding a wholly valid election, and moving safely to a change of regime. The TEC idea has considerable merit for Zimbabwe presently.

Consider the objects of the TEC:

(a) creating and promoting a climate for free political participation by endeavouring to:

(i) eliminate any impediments to legitimate political activities;

(ii) eliminate any form of intimidation which has a bearing on the said transition;

(iii) ensure that all political parties are free to canvass support from voters, to organize and hold meetings and to have access to all voters for the purposes thereof;

(iv) ensure the full participation of women in the transitional and electoral structures and processes; and

(v) ensure that no Government or administration exercises any of its powers in such a way as to advantage or prejudice any political party;

(b) creating and promoting conditions conducive to the holding of free and fair elections;

 

Now the whole object of passing the Transitional Executive Council Act in 1993 was specifically to overcome similar problems to those currently faced by Zimbabwe. This highly innovative and courageous solution to the polarization in South Africa needs investigation by Zimbabweans[1].

Zimbabwe currently has a security sector blatantly (and illegally) expressing affiliation to apolitical party; the whole administrative apparatus (civil servants, local government officials, traditional leaders, etc.) of the state also affiliated to one political party; and finally the (mostly) discredited electoral machinery under the control of one political party. These are hardly the conditions under which a genuine, democratic election can take place, and this is the litany continuously and loudly proclaimed by political parties and civil society.

But how to then change this situation in the rapidly closing space ahead of the elections? Certainly there is insufficient time for legislative reform: there was barely enough time to pass the amendments to the Electoral Act, although this now seems remedied by Presidential decree. And it is certainly the case that both political parties and civil society generally has paid far too much time to the constitutional process and too little time to the process of reform. There have been many opportunities for the two MDCs to engage the crucial matters around reform, but this is not the place to recollect the missed opportunities. There has been a great opportunity under the GPA for civil society to re-position itself again as the watchdogs over the Inclusive Government, but this too has been largely lost.

This may all be water under the bridge with elections now slated for 31st July, but what was needed is for the political parties to agree that, taking a leaf out of the South African book, there is need to create the appropriate oversight bodies to ensure that the elections conform to the SADC Principles and Guidelines for the Holding of Democratic Elections. As was the case in South Africa, the government needed to create a Transitional Executive Council, and the requisite number of sub-Councils) to oversee the process.

This, of course, requires the political will to delegate much of the powers of the Government and the Presidency to a new body, but this is what was done for the South African elections in 1994, and the world acclaimed both the process and the wisdom of the political leaders: Nelson Mandela and F W de Klerk were awarded the Nobel Peace Prize.

How would this work in practice?

By Act of Parliament, an overall body would have been established to run the country up until the results were announced. This body would have been composed of representatives of all political parties, and it, in turn, would have established the sub-bodies to provide oversight of the electoral process. This needed not to be as comprehensive as was the case in South Africa where a large number of sub-councils were established: law and order, stability and security, defence, intelligence, foreign affairs, status of women, finance, and regional and local government and traditional authorities.

For Zimbabwe, only four key sub-councils would have been necessary: security sector (police, army and intelligence), media, local government, and traditional leaders. These would have been sufficient to ensure that the partisanship seen in all these areas was at least minimized. All Zimbabweans know that these are the critical institutions that allow or disallow free democratic activity, and, if constrained from being partisan, they could create the conditions for the kinds of poll that all Zimbabweans dream of. That Zimbabweans dream of freely and fairly voting is so evident from the recent referendum: that one million more voters turned out than in the previous elections in 2008 not only points out how many are currently disenfranchised, but also shows how keen Zimbabwean citizens are to participate in the political life of the country.

Could Zimbabweans ask for any less than this in our extremely vexed and polarized position? Could SADC ask for less in the light of their continual demand for reform? Will the President take this final opportunity to leave the legacy of an election that all can be proud of? Perhaps then we can have an election where, whichever party wins, the citizens can move into to the future knowing that they have freely elected the government of their choice?

However, another opportunity has been lost, and once again democracy is likely to be the loser in Zimbabwe.


[1] For a copy of the Transitional Executive Council Act,  see the Southern African Legal Information Institute. ]http://www.saflii.org/za/legis/num_act/teca1993336/]