ZIMBABWE can revert to the old constitutional order minus Amendment No19 if the Global Political Agreement (GPA) signed in September 2008 collapses, constitutional lawyers said this week.
This follows statements from Zanu PF, including President Robert Mugabe who pointed out that he would call for elections if the GPA collapses, using the constitution as it was before the 19th Amendment which created the government of national unity.
Late last month, Mugabe said: “For those who do not want, we will simply dissolve parliament and go for an election under the old constitution.”
Zanu PF spokesperson Rugare Gumbo said elections should be held with or without a new constitution.
“If we can’t find the money (for the constitution-making process which has since stalled) then the constitution-making is inconclusive and then we revert to the Lancaster House constitution — minus Constitutional Amendment No19,” Gumbo said.
Political analysts concurred this week that Amendment No19 of 2009 would automatically fall away from the supreme law once the GPA is terminated by its signatories — Mugabe, Morgan Tsvangirai and Arthur Mutambara from the smaller MDC faction.
Amendment 19 legalised the GPA that had been signed by Zanu PF and the two MDC formations after an inconclusive 2008 presidential election.
The Amendment created the framework for power sharing in the coalition government among the three political parties. It created the offices of Prime Minister and its deputies in addition to providing a ration of sharing ministerial positions within the cabinet.
Constitutional lawyer and National Constitutional Assembly national chairperson Lovemore Madhuku said the present government owed its existence to GPA.
“It is legally correct that Mugabe will have the powers to call for elections without consulting the Prime Minister if the GPA collapses,” Madhuku said. “Mugabe through the controversial mandate he got from the June 27, 2008 election will remain the President and use powers invested by the constitution minus Amendment 19.”
Madhuku hastened to add that Mugabe’s rule would not be without challenges from political foes.
“If the GPA collapses we return to the pre-GPA position. This is a controversial political point but not controversial from a legal point,” Madhuku added, “The June 2008 electoral mandate is controversial as there are political legitimacy issues surrounding it.”
Madhuku said Zanu PF and Mugabe were likely to cause the collapse of the GPA so that the country may return to the pre-GPA era.
The inconclusive 2008 election and violence surrounding the poll gave rise to the call for a coalition government as the country healed.
University of Zimbabwe Constitutional Law lecturer Creg Linnington said constitutional Amendment 19 will remain in place as long as the Inter Party Agreement, also known as the GPA, remained in force.
“Consultations between the President and the Prime Minister will have to take place on any serious political decisions as long as the agreement is in subsistence,” Linnington said, “Schedule 8 of Amendment 19 compels the President to consult the Prime Minister as long as the agreement is in existence.”
Mass Public Opinion Institute (MPOI) director and University of Zimbabwe Political Science lecturer Eldred Masunungure questioned the political correctness of taking the country back to the pre-GPA period though it was legally feasible.
“Constitutionally the President may be allowed to take such an action,” Masunungure said, “In the political arena it is different. Is it politically correct to dissolve the GPA and call for elections?”
Masunungure urged restraint in taking such action as the country had not healed enough and neither had the inclusive government fulfilled all the condition of the agreements.
The GPA calls for the inclusive government to do reforms on the constitution, media, security sector and electoral laws among other issues.
MDC-T secretary-general and one of the GPA negotiators, Tendai Biti, said Amendment 19 fell away once the GPA collapses but he did not foresee that situation arising any time soon.
“It is true that the amendment falls away as soon as the GPA is dissolved,” Biti said, “However, I do not think that any party in the inclusive government would want to see the GPA collapse.”
The thin line between politics and the law has been very evident since the signing of the GPA more than two years ago and political parties have interpreted it differently to suit themselves.
The GPA, signed at the height of the political and economic crisis, is not very explicit hence the problems with its implementation and various interpretations. This has rocked the unity government on several occasions, including Tsvangirai’s recent lawsuit against Mugabe for alleged constitutional violations relating to the president’s unilateral appointments. The GPA states that Mugabe should consult Tsvangirai before making key appointments.