Last week Mugabe publicly shredded the Global Political Agreement (GPA) he signed with Tsvangirai and the smaller formation of the MDC led by Arthur Mutambara when he arrogated to himself the power to determine the lifespan of the inclusive government and to declare when fresh polls should be held.
The ageing Mugabe told his captive Zanu PF party youths at “Shake-shake” building in the capital last Thursday that the unity government’s term of office will end in February and that he will not consider extending it. He said the constitutional referendum should be in the first quarter of next year followed by elections before June.
His decision was informed by Tsvangirai’s protestations against the octogenarian leader’s unilateral re-assignment of ambassadors, the re-appointment of provincial governors, and the refusal by Mugabe to swear-in Roy Bennett as Agriculture deputy minister, among other outstanding issues of the GPA.
Tsvangirai wrote letters locally and abroad saying Mugabe was in breach of the constitution and the GPA, a move which irked the 86-year-old veteran leader and his party which insisted that the pact “did not affect the president’s constitutional powers”. Put succinctly, Mugabe and Zanu PF said the GPA cannot supersede the constitution.
There lies the problem!
It is common cause to everyone who has read the GPA and Constitution of Zimbabwe Amendment No19 Act that gave effect to the inclusive government that that piece of legislation took away Mugabe’s powers to solely make key appointments.
Article XX of the GPA, which is an integral part of the constitution through Amendment No19, deals with the framework of the inclusive government a clear that the president, among other things, is bound by the supreme law to appoint service/executive commissions; make key appointment; and dissolve parliament after consulting the prime minister.
A constitutional watchdog, Veritas, this week said Amendment No19 made it “clear beyond argument that during the life of the GPA, Article XX prevails over other provisions of the constitution”.
“The mistaken interpretation must come from the fact that prior to Constitutional Amendment No 19 the constitution did give the president the sweeping powers he still, incorrectly, claims,” the watchdog said.
The constitutional amendment also had a domineering effect over other provisions of the constitution that were in place before it was passed.
“For the avoidance of doubt, the following provisions of the Interparty Political Agreement (known popularly as the GPA), being Article XX thereof, shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in the constitution,” amendment reads.
Mugabe also incorrectly claimed that the lifespan of the inclusive government ends in February. Nowhere is this stated in the GPA. What is stated in both the GPA and the constitutional amendment is that the agreement “and the relationship agreed to hereunder will be reviewed at the conclusion of the constitution-making process”.
“According to the current constitution the next elections must be triggered by dissolving parliament,” Veritas said. “This is done by the president by proclamation in the Government Gazette. But as long as the GPA lasts, the president cannot act alone; he must first obtain the Prime Minister’s agreement.”
This follows from the constitution Schedule 8, GPA Article 20.1.3(q), which states that the president “may, acting in consultation with the Prime Minister, dissolve Parliament”, and Section 115 of the constitution, which says that in Schedule 8 “in consultation” means “that the person required to consult arrives at the decision after securing the agreement or consent of the person so consulted”.