Constitution Watch Will the Constitution be Ready Before Elections?

31 March 2012

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:
Constitution Watch Will the Constitution be Ready Before Elections? 31 March 2012
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
Constitution Watch Will the Constitution be Ready Before Elections? 31 March 2012
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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