How can a pen fight a gun??

The game was that you had more than two players. One of the players had to get 50 + 1 percent for power to move to him.”

If intended as a statement of law, this is directly contradicted by the Electoral Act.

The run-off requirement is a separate rule in the Electoral Law – unchanged from before our first election of a President in 1990. The Second Schedule is a newer rule, added by Zanu (PF) unilaterally, signed into law by Mugabe in 2005.

While others may disregard this rule from ignorance or interest, Ncube is surely aware of it, not just as a Professor of Law, but also as one of negotiators who reviewed our electoral laws last year for this year’s elections.

The Electoral Law obliges a player to get over 50% in the first election only to avoid a run-off. To take over power, she or he just needs to come first.

The law is clearly sensible. Zimbabwe’s President has nearly unchecked powers.

March 29’s official results put Tsvangirai well ahead, and Mugabe second.  

Voters were entitled to have the leading candidate, not the chasing one, in charge of the nation, responsible for protecting their rights, while the second election was held.

The will of the people as expressed in free and fair elections is accepted in local and international law as the only legitimate basis for government. SADC and the international community agreed the June 27 ‘election’ was neither free nor fair. Thus it can give no legitimacy for Mugabe to govern in future under international or local rules.

What Tsvangirai lacks is not a rule that would let him take power based on his March results. What he lacks is some authority willing to tell Mugabe that, having agreed to Paragraph 3(1) in 2005 and confirmed it in 2007, he must abide by it in full, and give way to the leading runner from March 29 pending the run-off.

SADC, AU, UN should be that necessary authority. They should be willing to tell Mugabe and his government to abide by the rules they enacted, as each of them and each Member State have promised to uphold the rule of law.  

The Alternatives

Although Tsvangirai was entitled to a transfer of power [based on his own votes, not his number of MPs], effort is being made to reach a settlement instead.

There are pragmatic reasons to try to avoid another election: Zimbabweans have endured eight national polls in the last eight years. The human, social and financial costs have been high. Few really want another winner-take-all contest now.

Thus talks – to seek another way forward, still based on the people’s free will.

Failing such a settlement, insisting on abiding by our law will be the only way to avoid a vacuum that must otherwise exist. Without a new agreement, requiring parties to abide by the rules they agreed on earlier will be SADC’s only option.

Having already recognised that June 27 did not represent the people’s free will, SADC cannot recognize any President or government founded upon that vote.

Professor Ncube, and the Mediator, must know that.

In conclusion, there is little reason to agree on anything new when previous agreements brokered by SADC have been broken with impunity.

Think of a single key Memorandum of Understanding promise: humanitarian and welfare organisations would be able to give all assistance required in the interim. Has it been kept? Or, in a repeat of Gukurahundi is Mugabe still trying to starve the people into submission instead, while SADC remains silent?

Any political deal not firmly based on the Treaty promises offers no such hope.

Finally, anyone tempted to sign an agreement with Mugabe must bear in mind his prior [and very public] warning: how can a ballpoint pen fight a gun?

Why sign anything, if he will still control all the guns?