Constitution Watch of 31st March 2012 [Will the Constitution be Ready Before Elections?]

CONSTITUTION WATCH 2012 [31st March 2012]

Will the Constitution be Ready Before Elections?

COPAC: Latest Predictions for the Path Ahead

Speaking earlier this week about the recall of the lead drafters [see Constitution Watch of 30th March 2012], COPAC co-chair Douglas Mwonzora, ever optimistic, ventured that COPAC should now be able to achieve:

• completion of the draft, including fine-tuning after the current 10-day exercise, by the end of April

• Second All-Stakeholders’ Conference in May

• the Referendum in September, possibly earlier if everything goes smoothly.

That obviously assumed a trouble-free few weeks ahead, with speedy agreement between the parties on the outstanding issues and no hitches over getting the final draft approved by the principals, then translated into all vernacular languages and Braille, as previously promised, and, very importantly, printed in large numbers for distribution to participants in the Second All-Stakeholders’ Conference in time to permit them to study it and consult their constituencies before the Conference itself – a tall order indeed.

The co-chairs have also mentioned the possibility of a mini-outreach before the Second All-Stakeholders’ Conference, to explain the draft and help people familiarise themselves with it. Something of the sort would be desirable – if the reaction to the leaked drafts is anything to go by, people have been far too ready to misconstrue provisions or not read them in context.

President Mugabe’s Different Time Frame: Referendum in May!

On Wednesday 28th March COPAC’s ZANU-PF co-chairperson Munyaradzi Paul Mangwana reported to the party’s Politburo on COPAC’s progress on the draft. Afterwards party spokesman Rugare Gumbo said the party’s negotiators Patrick Chinamasa and Nicholas Goche had been given until Friday to clear the parked issues. Failing that, the principals would take over. The Politburo would meet again in extraordinary session on Wednesday 4th April to “decide once and for all on the constitution”. On Friday, at a meeting of ZANU-PF Central Committee, President Mugabe, in remarks broadcast later on television and radio, reiterated his insistence that the elections must be held this year, with or without a new constitution, and said that the Referendum must be in May. If COPAC could not finish the job in time, he insisted, the principals would do it for them and if the Referendum returned a No vote, there would be elections under the Lancaster House Constitution, meaning the present Constitution without the amendments made to it by Constitution Amendment No. 19 that underpin the existence of the Inclusive Government.

Problems Raised by the President’s Declaration

The President’s timetable sets targets impossible to reconcile with Article 6 of the GPA – and surely impossible to achieve at all. It has not taken into account the following problems:

For a Referendum in May

• even if the principals decide to intervene and try to finish the job themselves, it is difficult to see them doing so in time for a May Referendum

• the timetable does not allow for the holding of the Second All-Stakeholders’ Conference required by Article 6

• nor does it envisage the ensuing debate in Parliament, which in any event is in recess until mid-May

• it overlooks the need to gazette the final draft before a referendum

• there will not be enough time for the country to examine the draft after its translation into vernacular languages, and Braille, meaning that voters will not have long enough to be properly informed of the merits and demerits of the draft placed before them for adoption or rejection

• no heed is paid to the need to amend or replace the current, out-of-date Referendums Act – or the difficulties of doing that when the necessary Bill has not yet been approved by Cabinet

• the voters roll is still not acceptable to civil society, MDC-T and MDC – despite the Registrar-General’s recent claims that it is perfect.

For a General Election

• an election before proper implementation of the GPA would go against repeated SADC Summit resolutions and before the Zimbabwe political playing field has been levelled by making the reforms necessary to avoid a repetition of the 2008 election violence.

• both MDCs have said they would not take part without a fairer environment, and an election without them would be a sham in the eyes of the region and the world.

• there is a “Catch 22” situation: if the President breaks the GPA, ends the Inclusive Government and calls elections, he may forfeit recognition as President by SADC. If he does not break the GPA and it continues in existence, Schedule 8 to the Constitution will remain in force, meaning that the President cannot legally call for elections without the consent of the Prime Minister.

• lack of funds for an election. The Treasury has not budgeted for an election this year, only for the Referendum. If the funds come from elsewhere than the fiscus [e.g. from diamond revenues] this would add fuel to the criticism that elections are always skewed in favour of the incumbent by the use of State resources for re-election, which would affect the credibility of the election.

Zimbabwe Electoral Commission [ZEC]

• ZEC would have to run the Referendum, but the Electoral Act has still not been amended to flesh out its terms of reference to enable it do so properly.

• If the GPA is abandoned and ZEC is called on to run a general election under the Lancaster House Constitution [amended 19 times] and an unamended Electoral Act, it may find it difficult to organise a credible election.

Note: ZEC’s existence as an independent constitutional commission does not depend on the continued existence of the GPA. Although the present constitutional provisions for ZEC were added by Constitution Amendment No. 19, just ahead of the formation of the Inclusive Government, those provisions will remain in force if the GPA comes to a premature end before the adoption of a new constitution. Only Schedule 8 to the Constitution, which provides for the structure of the Inclusive Government, will fall away if the GPA comes to an end.

Final Comment

The President has been declaring that he wants immediate elections from well before the end of last year. This most recent declaration, although forcefully made, may still be impossible to implement, but it is likely to serve the useful purpose of getting COPAC to avoid any more unnecessary delays – although it is to be hoped that, after the debacle of the First Stakeholders’ Conference, the upcoming Second All Stakeholders’ Conference, a vital part of the constitution-making process, will have adequate preparation and not be unduly rushed. Also, people must have a chance to study the final gazetted version thoroughly before the Referendum. It would be sad if, after all the seemingly preventable delays that have dragged the process on for three years, rather than the one year it should have taken, the important last stages were to be skimped.

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