The Zimbabwean
By Sokwanele
7 June 2013
Zimbabwe Election Watch Issue 3 is written in the wake of a Constitutional Court ruling handed down on 31 May which compels the President to hold elections before 31 July 2013. This ZEW summary focuses primarily on the ensuing issues raised by the ruling.
The case was brought before the courts by Jealously Mawarire, a private citizen, a registered voter and a member of the Centre for Election Democracy in Southern Africa. His complaint was that his constitutional rights to have elections before the 30th June had been violated by the failure to do so by the President.
The court ruling follows endless disputes between the three main parties on when elections should be held. Robert Mugabe’s Zanu PF party has been adamant that elections should be held earlier – 29 June 2013 was their preferred date – while the MDC parties have insisted on September/October as a more reasonable time. The later date, the MDCs and others have argued, allows time for necessary legislation to be passed following the acceptance of a new constitution, and also allows time for reforms to be implemented as agreed in the Global Political Agreement (GPA). Zanu PF is resisting implementing reforms, and their push for an early election date has been seen as one way for them to secure elections without reforms.
The court ruling also comes one week before the Southern African Development Community (SADC) holds a special summit on 9 and 10 June 2013 in Mozambique to discuss and approve a roadmap for Zimbabwe’s elections.
How the various parties respond to the ruling will have consequences for clauses in the SADC electoral guidelines. Two of these are of particular concern to election weary and violence wary ordinary Zimbabweans: in particular, 4.1.1 compelling governments to protect the constitutional and legal guarantees of freedom and rights of the citizens, and 4.1.2 asking governments to provide a conducive environment for free, fair and peaceful elections.
Zanu PF has responded with support for the date: Robert Mugabe has said he will comply with the ruling and hold elections before 31 July regardless of objections from his rivals (http://bit.ly/13wQMvg). And both MDCs have publically recognised the importance of the rule of law and their willingness to comply with it: Douglas Mwonzora, spokesperson for MDC-T, said “For the avoidance of any doubt, the MDC is ready for free and fair elections in Zimbabwe. That means for the MDC, the issue is not about the date of the elections, is about the conditions under which these elections are held” (http://bit.ly/17og5Fk). Welshman Ncube, MDC leader, has said “We all need to respect court judgments because not to do so invites anarchy” (http://ht.ly/lILYh).
Despite stated support for the principle of the rule of law, the two MDC parties have also expressed serious reservations over the rightness of the ruling. Welshman Ncube, himself a constitutional lawyer, wrote:
No court of law should ask us to believe and accept that 1 plus 1 equals 3. I have read and reread the majority judgment over and over, again and again and I have read again and again the provisions of the former constitution and the current constitution that fell for interpretation and my mind refuses to accept the possibility of the correctness of that judgment.
To accept that judgment as correct would amount to me committing grave violence on my intellect. With the greatest respect, the majority judgment is PLAINLY wrong. One plus one is not three. Yes, the judgment binds us and we have to comply with it to the extent that it will be possible to do so, but we cannot accept that it is correct when it is plainly wrong (ibid.)
The MDC-T said:
The case was clearly sponsored by the chaos faction of Zanu PF to achieve three results. First, it was to force an election in June 2013. Second, it was to enable President Mugabe to singularly set the election date without consulting the Prime Minister as is required by the Global Political Agreement. Third, it was to force elections in Zimbabwe without the necessary reforms. Fourth, it was to avoid the election being in proximity of the UNWTO (http://on.fb.me/11htt5J).
The MDC-T has also inferred that they believe the recent appointment of two new judges to the bench was Zanu PF’s way of securing judicial advantage for their party in cases like this one. They argue that Robert Mugabe swore in the judges before he assented to the new constitution, and in so doing bypassed the more rigorous new conditions for judicial appointments enshrined in the new constitution. There is clear precedent for Zanu PF influencing judicial appointments that dates back through the last decade right up until the current time: in ZEW Issue 1, for example, we highlighted the current harassment of Justice Charles Hungwe following two judgements he made which did not support the political agenda of Zanu PF hardliners.
Senator Coltart, MDC Secretary for Legal Affairs, has also identified a fundamental contradiction in the Constitutional Court ruling, and that is that if all parties are to comply with the ruling, then the only way they can do so is to break the law. He points out that the new constitution specifies a minimum 30 day period for voter registration and inspection exercise which is a fundamental precursor for nomination courts. He points out that the new constitution demands a further 30 days between nomination day and election day:
I am writing this as plainly as I can! 30 days plus 30 days equals 60 days. Today is the 5th June 2013. Add 60 days to that and you will see we get to the 5th August.
Unless we amend the Constitution to reduce the days mentioned above an election held on the 31st July will be unconstitutional and therefore unlawful. That is hardly the best way to start this new Constitutional era (http://on.fb.me/11htt5J).
The confusion and discussion will make its way to the SADC summit this weekend and pressure will be on SADC to broker a way forward. Five of Zimbabwe’s political leaders have come together (leaders representing MDC-T, ZAPU, MDC, MKD and ZANU Ndonga) to form a joint position demanding that political and electoral reforms are implemented before the next harmonized elections. In a statement released yesterday, the five said:
The leaders expressed reservations about the practicality of the July 31st deadline set by the court and resolved that they will communicate their position to SADC. The parties therefore, look forward to the extra ordinary SADC summit to affirm previous SADC resolutions and the agreed roadmap to elections.
SADC, via the office of Jacob Zuma, the South African President and facilitator of Zimbabwe’s GPA, has provided some indication for the focus of the meeting:
With or without the court ruling, we are going ahead to meet the parties as the facilitation team ahead of the SADC summit (to be held in Mozambique on Sunday), which (decision) was agreed on during the summit held in Addis Ababa, (Ethiopia, two weeks ago). All parties have been invited.
As the facilitator put it at the summit, we want the comfort of having a clear roadmap to the elections, with timelines agreed upon by the parties themselves. The ultimate is to have credible elections. We want to avoid the 2008 scenario” (Lindiwe Zulu -Â http://bit.ly/1b3KMg1).
ZEW continues to log breaches of the SADC electoral principles and guidelines throughout, and eight examples of breaches since Issue 2 are outlined below.
The new voter registration drive, as required under the new constitution, was due to start on Monday this week (3 June) but will now only start on 10 June 2013 and run-up until 9 July 2013. The previous registration drive was plagued by problems right up until it concluded. Examples of breaches affecting voter registration in this ZEW issue include funding shortages, an admission by the Zimbabwe Electoral Commission (ZEC) chairperson that the exercise was chaotic, and a serious concern raised by the Women’s Affairs, Gender and Community Development deputy minister Jessie Majome, who noted that the registration exercise disenfranchised women:
Proof of residence disenfranchises women because of the nature of the society we live in. There are very few women who can claim to own a house, let alone a lease agreement in their name.
Majome’s point is a violation of SADC electoral guideline 4.1.3 which compels signatory states to ensure non-discrimination in voters’ registration. And when the Parliamentary Portfolio Committee on Defence and Home Affairs attempted to visit voter registration centres to monitor and inspect the voters’ roll countrywide, their permission to travel was refused by the Clerk of Parliament. Silobela MP, Anadi Sululu, who is also a committee member, described the decision as ‘political’.
Police obstacles to meetings and voter education continued. Two examples: in Hwange, police falsely accused Zimbabwe Election Support Network (ZESN) officials of illegally carrying out voter education in the region. They confiscated hundreds of materials meant for distribution in the area to encourage people to register to vote. Simba Makoni, leader of the Mavambo / Kusile / Dawn (MKD) party, had police permission to hold a meeting with the Norton Community withdrawn only hours before the meeting was scheduled to start.
Finally, in previous ZEW issues we have highlighted extreme partisanship on the part of security sector leaders. In this issue, three police officers found themselves charged with contravening the Police Act because they attended a political rally – an allegation they deny. The difference in this case is that the police officers apparently attended an MDC-T ralley. Noting the very different approaches to these men and the heads of the security sector, Zimbabweans will infer that political partisanship is acceptable within the security sector, provided it is supportive of the Zanu PF party.