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)

Security means uncurling my toes….


By EverJoice Win

What does security mean to you? That was the question surrounding this year’s 16 days of activism theme. Militarism, conflict, state sponsored violence, political violence, were some of the sub-themes we campaigned on. We talked about the big stuff, the big news tickets of the moment. The news coming out of Syria continues to be unbearable. Libya is still on the boil. In the DR Congo, thousands are fleeing across the borders, fearing for their lives as the election results are about to be announced. In Burma, Hillary Clinton smiled for the cameras and got paly-paly with the generals, temporarily shorn of their uniforms for better picture quality. In various Northern capitals anti capitalist protestors were carted off the streets, sometimes violently. At COP17, things got ugly and civil society had to be shoved back into their small allotted space. The wars in Afghanistan and Pakistan rage on. None of these places is too far away or too foreign. I know women there. I have met them. I know their names. They are my friends. I worry about them. I text. I email. I Skype them. Just to make sure they are ok. Being a global citizen means you curl your toes each time you watch the news.

The so called ‘security forces’ and law enforcement agencies continue to frighten me and other women out of our wits. In my home number two, the South African Police service decided that adopting militarised titles and ranks was the way to…..what? Instill discipline? Show seriousness? Give the service more gravitas? Induce fear? Each time I enter Rosebank police station to get my documents certified, I am greeted by a “colonel”, and sometimes a “lieutenant” looks over his shoulder. I clutch my bags in fear. I smile feebly and answer their questions with too many words, and run out as soon as I can. Thankfully I have never had to report a crime, or ask to be taken to a place of safety by these “soldiers”, because I just don’t know where they would take me! I don’t feel secure with a police man called “general”, no matter how much he smiles, or tries to convince me he is here for my protection.

In home number one, my state President goes by the grand title of, “Comrade Robert Mugabe, the President of the Republic of Zimbabwe, the First Secretary of ZANU PF and commander in chief of the armed forces”. This for a man with seven (well earned), University degrees! If he needed any accolades he has the BA, BA Hons, etc to pick from. Being told that the president is the commander in chief of the armed forces is not meant to make me respect the man. It says, ‘Be very afraid. He has guns. Pointed at your head. One move we don’t like and we pull the triggerS”. I know who is in control. And if I forget I am reminded on the hour every hour by the Zimbabwe Broadcasting Corporation.

I curl my toes. I draw my knees together. That is the effect men in uniform have on me. The military industrial complex announces itself, advertises itself and reminds us ‘they’ are in control of our countries, our lives, our bodies.

But it is not only these visible manifestations of our militarised world that make me insecure. Going to the supermarket makes me frightened. I am scared to see the price of food. I worry about whether there will be enough month left at the end of the money. I am too scared to ask a woman with three children how she lives on a twenty dollars per month wage. Yesterday I took my son to a doctor and she asked for 50 dollars just to write a referral note to the radiographer. In the space of two weeks I have buried two women, both aged 44, both died from diseases that could have been easily managed. I don’t fear death. I fear an undignified and painfully unnecessary death, such as I have seen countless times around me.

Two days ago I met a beautiful young person who identifies themselves as trans-gender. I immediately started worrying about how she was going to get out of that hotel back to her home in the township. What hoops she would have to navigate to ensure her own safety. I keep hearing the hateful sermons preached at one of those funerals I went to, “these ngochani are an abomination! We must cast the devils out of them! If you are a ngochani come forward so we pray for you!” I keep curling my toes and drawing my knees up.

A lot can happen in 16 days. And it did! So we come to the end of this year’s 16 days of activism against gender based violence. It has been an amazing two decades of organising by women, and a few good men, all over the world. To hear some talk today you would think they invented the campaign and made us women too while they were at it. Well let us not go there. I suppose we should just be happy that what started off as an idea, almost a pipe dream, with only 24 women, has grown to be one of the most well known global campaigns. Who says the feminist movement is small, insignificant and the changes it has brought can’t be “measured. If anybody had asked us on that bright summer day at Rutgers, what will success look like? How will you measure it? I don’t think we would have been able to provide an answer, let alone imagine that this is what the 16 days campaign would achieve. Hear yea, monitoring and evaluation zealots. This is what success looks like!

So what does security mean to me? It means uncurling my toes, unclenching my knuckles, free of fear – real or imagined, and living a life of dignity, experiencing sexual and other kinds of pleasure, and having the right to make choices.

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.

Of Carts and Horses


The Research and Advocacy Unit suggested in 2010 that there would be little or no constructive development with regards to the creation of a new constitution, only trivial reforms in non-key areas, and an inevitable election (at a time of ZANU PF’S choosing), there was nothing prescient about this. Many other commentators made the same points. The critical issue that we were pointing to was the need for the reforms necessary for the holding of free(ish) and fair(ish) elections. It is abundantly clear that no such reforms have taken place, the constitutional process is perilously close to collapse, and today the prospect of elections has moved closer to being a reality rather than a threat with the suggestion to the Supreme Courts that elections will need to be held in March next year. As so often happens in Zimbabwe, an apparently commendable attempt to ensure accountability – in this case, the legal challenge by three fired MPs to be allowed to contest again for their seats in a by-election – has backfired entirely.

The small matter of three necessary by-elections has opened Pandora’s box: it has raised the legal necessity for all the needed by-elections: 16 vacant seats in the House of Assembly and 11 in the Senate. And it is the Senate seats that are the problem. Senate seats are not geographically contiguous with House of Assembly seats, so these by-elections will actually have to involve a sizeable chunk of the population.

Consider the following, and the numbers are now greater, four years on, that the total number of voters in the 2008 polls was approximately 2.4 million. Using the 2008 data, the numbers of voters in the required by-elections are approximately 1.5 million voters, or 60% of the total electorate in 2008 terms. So this is not really going to be a by-election in any conventional sense of the word, it is an exercise involving more than half the 2008 registered voting population of Zimbabwe.

Furthermore, and very importantly, why should the Supreme Court not take note of the President’s submission that the matter of by-elections does not merely involve three constituencies, and not take cognizance of the fact that there are 26 outstanding by-elections: 16 for the House of Assembly and 10 for the Senate? This little conundrum has been lurking in the shadows ever since the first application was made to compel the government to hold by-elections, but it seems, as always, that the devil is in the detail, and nobody except ZANU PF ever pays attention to the detail. And given that the cost to the nation of having a referendum, by-elections next, and finally harmonized elections is apparently a cost of US$250 million, the ZANU PF case gets stronger still.

So, we may now be six months away from another major election. SADC has laid down the ground rules: first, they were laid down at Livingstone last year, and, secondly, re-iterated with force at Luanda. Constitutional reform and reforms sufficient for the holding of credible elections has been the demand of the region. These are aspirations in the absence of any clearly stated consequences by SADC for failure to produce these outcomes. It is clear that the SADC Protocol allows for consequences, for, as Article 33 states:

Sanctions may be imposed against any Member State that:

  1. persistently fails, without good reason, to fulfill obligations assumed under this Treaty;
  2. implements policies which undermine the principles and objectives of SADC; or
  3. is in arrears in the payment of contributions to SADC, for reasons other than those caused by natural calamity or exceptional circumstances that gravely affect its economy, and has not secured the dispensation of the Summit.

 

The question here is whether Zimbabwe’s recalcitrance in acting upon the decisions of the Troika and the Summit will be interpreted as persistent failure, without good reason, to fulfil the obligations assumed under the Treaty. What were the assumed obligations? The failure to provide a credible roadmap for elections, and what did that mean? The failure to implement fully the conditions in the Global Political Agreement, and what did that mean? And who failed? ZANU PF, or MDC-T, or both? And if the answer to all these questions suggested persistent failure without good reason, would SADC invoke sanctions against Zimbabwe, and what could those sanctions be? And would Zimbabwe just withdraw from SADC in the same way it withdrew from the Commonwealth? And would withdrawal produce the same result? After all, withdrawal from the Commonwealth meant simply that the Commonwealth just walked away from the Zimbabwe problem, even though it too had a treaty with as pious principles as SADC.

But really the problem is one of carts and horses, as we (and others) tried to point out in 2010. The cart is the constitution that cannot move the horse that is the necessary reforms for the holding of decent and credible elections. Constitutions cannot deliver credible elections: these are produced in an absence of electoral manipulation, non-violence, protection of the basic freedoms of speech, assembly, association, and movement, all fostered by the institutions of the state. If the horse cannot be harnessed, then the cart is hardly much use, and the horse of reforms has been running wild., and there is no sign that anyone looks like trying to tame this horse: they talk about it a good deal, but there is no sign that anyone is picking up the reins.

That is the detail in another devil to which no-one has paid any attention (except rhetorically), and, given the time scale that may now apply – March 2013 – what are the chances that it can be tamed? So much to do, and yet so little done!

 

Celebrating our Heroes – Part 1


Zimbabwe will celebrate its heroes of the liberation struggle who fought gallantly and selflessly to bring about independence from colonial rule.  This is an important date as it reminds us why men and women took up arms and sacrificed their lives for the freedom we enjoy today.

This two part article is food for thought as we commemorate Heroes’ Day on 13thAugust; it is inspired by political developments in the country including comments attributed to the Prime Minister during a memorial service of the late nationalist Reverend Ndabaningi Sithole.

“Leadership is very unique; it must inspire future generations and shape where the country is going and what you are leaving for the children”. Morgan Tsvangirai

The Prime Minister’s comment is profound and I want to believe this principle inspired the vision of the nationalists to take up arms and fight colonialism, even though the odds were against them. No doubt the Rhodesian Forces were superior and well trained compared to the young guerrillas who in most cases had to do on the job training. Thousands  joined the throngs of men and women crossing the borders of the country to receive military training to equal the ‘enemy’, a lot of university students, even secondary school boys and girls both willingly and forcibly  abandoned their studies to go and fight for what they believed was the future they deserved. Many stayed behind and chose to provide moral and logistical backing in support of the liberation struggle.

But what really inspired these young men and women? Their vision was a free Zimbabwe, where all men and women were treated equally, where the black majority would assert themselves as free citizens enjoying every facet of this God given nation. It was the spirit of self-determination, also inspired by events in other African countries that had liberated themselves.  Many people were frustrated and wanted to get rid of the discrimination of the majority by a white minority. It was not uncommon for white police officers to stop blacks and carry out embarrassing body searches, even to the extent of stripping them naked. It was not uncommon for blacks to be beaten in the streets and barred from places that were exclusive for whites. So it was this desire to end human rights violations and enjoy the freedoms that also contributed to men and women joining the struggle.

Celebration of Zimbabwe’s Independence 1980

In many cases, blacks were evicted from productive land in areas such as Govo, Jiri in Bikita, Chirumhanzu, Chiundura and dumped in tsetse fly infested and semi-arid, unproductive and uninhabitable areas such as Zhombe and Gokwe. These grievances and many others put together inspired a people to change the system of government represented by a white minority, and in its place put a government that shared its vision of a free Zimbabwe, free from the human rights abuses, free to pursue personal interests protected by the state, and to enjoy  the many resources available.

The brave men and women who crossed borders were ably supported by the unarmed rural folk who were at the forefront, shielding their ‘sons’ and ‘daughters’ whilst they were fighting to liberate the country. They did so because they shared the same vision of a free Zimbabwe with better opportunities for all to enjoy. It was  risky for many, especially given that they had no weapons or skills to fight the Rhodesian forces and sometimes the guerilla forces. Often women were raped or abused in the process, but unfortunate as it was, they believed it was for the greater good – a free Zimbabwe.  So the notion that those who took up arms and did the actual fighting are the heroes falls away. The liberation struggle was a vision shared by men and women, youth included, playing their part.

The second part of the article will explore the vision of the liberation struggle in post independent Zimbabwe.

Elections and the new Constitution.


This is an article written by one of our researchers which appeared in The Independent (Zimbabwe) on 27 Jul 2012.

The official figures released by ZEC for the results Presidential run-off election of June 2008 indicated that Robert Mugabe had garnered approximately one million more votes than he had during the first round of voting just three months earlier. Yet according to ZEC the voter turnout, was exactly as it had been in March – around 42% of the registered voters. These statistics invite three, and only three, possible readings of the result: that one million voters who had voted for Mugabe’s main contender Morgan Tsvangirai, had, over the three month period, switched their allegiance; that one million voters, who had not bothered to vote in the heavily contested first round, turned up to vote in the second round, in which there was only one candidate -Tsvangirai having announced his withdrawal. The third possibility is that due to Tsvangirai’s withdrawal and the endemic violence which swept through the country after the first round of voting, there was no monitoring of polling and the numbers submitted to ZEC on the electoral returns were merely wishful thinking on the part of ZANU PF party cadres. This possibility is the only one plausible.

Robert Mugabe electioneering

The violence which engulfed the country over this period was organised, co-ordinated and controlled by sections of the security sector and aided and abetted by a complacent and compliant Police Service, rendering the niceties of the Electoral Act and any other legislation designed to ensure a free and fair election completely irrelevant. It is patently obvious that if a repetition of this electoral debacle is to be avoided, the security sector needs to be reined in. This implies security sector reform. However, as experience from other countries has demonstrated, security sector reform is a lengthy and complex process. Ahead of elections, Zimbabwe may only realistically implement those reforms necessary to facilitate a free poll. To do this requires removing or limiting the power of those who control the security sector and who are ultimately responsible for the violence of 2008. For this reason, the question of how service chiefs are appointed is of vital importance.

What does our current constitution have to say on the subject? Section 96(4) of the constitution, under which the 2008 elections were held, provides:

The Commander of the Defence Forces, and every Commander of a branch of the Defence Forces, shall be appointed by the President after consultation with such person or authority as may be prescribed by or under an Act of Parliament.

45 million dollars, many meetings and much negotiation later, the latest draft constitution proposes, in section 11.11(2), that section 96(4) is replaced with the following:

Every Commander of the Defence Forces, and every Commander of a service of the Defence Forces, is appointed by the President after consultation with the Minister responsible for the Defence Forces.

The provisions relating to the manner in which the Commissioner-General of Police is appointed likewise remain largely unaltered, with absolute discretion in this regard vesting in the President.

It is a vexed question as to how appointments are made to key positions in a democratic government in such a way so as to ensure that the incumbent is non-partisan and not subject to political influence. Rather than attempting to resolve or attenuate the problem, the proposed constitution gives unfettered discretion to a person (who in all probability will be a candidate in an election) to appoint individuals to head those institutions which have the brawn to subvert the will of the electorate if he does not win the election – or to ensure that he does.

The democratic way of attending to this problem is to limit the discretion of the person making the appointment, to make the process transparent and to put some distance between the locus of political power and the appointing authority.  This is exactly what an earlier draft of the proposed constitution, circulated in May, 2012, attempted to do. In terms of that draft, the power of the President to choose the individuals who would head the security sectors was removed. For example, in appointing the Commander of the Defence Forces, the President was required to act “on the advice of the Defence Forces Commission”. The Commission thus chose the office holder, the President merely formally made the appointment. At least 50% of the selecting Commission had to comprise civilians. Even more significantly, although the President was to appoint the Commissioners, the composition of the Commissions was to be approved by a Parliamentary Public Appointments Committee which was to conduct interviews of the candidates in public. This body itself had to “proportionally represent all groups and parties represented in Parliament”. Similar procedures were proposed for the appointment of the Commissioner-General of Police.

The latest draft restores the unfettered power of the President to appoint service chiefs, representing a massive compromise by the MDC. In fact, the draft leaves virtually all of the vast powers vested in the President intact and little different from those under the current constitution. There are, however, two significant changes. One is that the President’s power to appoint Provincial Governors is subject to democratic considerations. The other is that under the current constitution all key appointments made by the President, including the appointments of the service chiefs, and regardless of whether these appointments are merely an extension of a term of office, in an acting capacity or a lateral transfer, must be made with the consent of the Prime Minister. This requirement will end with the Inclusive Government so that the executive power of the President in this regard will in fact increase rather than be diminished under the proposed constitution – though it must be noted that the requirement of securing the Prime Minister’s agreement before making appointments has been studiously and consistently ignored by Mugabe for the duration of the GNU in any event.

Although numerous articles have appeared in the press suggesting that the sticking points between the parties during constitutional negotiations concerned citizenship, devolution of power and gay rights, it is clear from the difference between the earlier and present draft of the constitution, outlined above, that the real cause of dissention was the old chestnut of presidential power. The fact that excessive power is vested in the President contributed to the rejection of the proposed constitution in the referendum of February 2000. It was also the main point of dispute in the negotiations around the GPA, and it has been the primary bone of contention amongst the parties in the GNU. The changes quietly effected to the earlier draft reveal that once again ZANU PF has had its way on an issue which may negate the democratic advances still proposed. The “policy” adopted by the MDC, clearly evident in September 2008, of protest and capitulation continues. And Zimbabwe’s politics continues it circular trajectory – we were told the GNU was the only solution to a flawed election, now we are told an election is the only solution to a flawed GNU; we were told we needed a new constitution before we could have a democratic election, now it seems we need a democratic election before we may have a new constitution. Plus ça change, plus c’est la même chose.