New constitution fails to rein in security forces

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Derek Matyszak

THE official figures released by the Zimbabwe Electoral Commission (Zec) for the results presidential election run-off of June 2008 indicated that President Robert Mugabe had garnered approximately a million more votes than he had during the first round of voting just three months earlier. Yet according to Zec the voter turnout, was exactly as it had been in March — around 42% of the registered voters. These statistics invite three, and only three, possible readings of the result: that the one million voters who had initially voted for Mugabe’s main contender MDC-T leader Morgan Tsvangirai, had, over the three-month period, switched their allegiance or that one million voters, who had not bothered to vote in the intensely contested first round, turned up to vote in the second round, in which there was only one candidate, Mugabe, after Tsvangirai had pulled out citing violence and intimidation.
The third possibility is that due to Tsvangirai’s withdrawal and the wave of endemic violence which swept through the country after the first round of voting, there was no monitoring of polling and the numbers submitted to Zec on the electoral returns were merely wishful thinking on the part of Zanu PF party cadres. This possibility is the only one plausible.
The violence and brutality which engulfed the country over this period was organised, co-ordinated and controlled by sections of the security sector and aided and abetted by a complacent and compliant police service, rendering the niceties of the Electoral Act and any other legislation designed to ensure free and fair elections completely irrelevant.
It is patently obvious that if a repetition of this electoral debacle is to be avoided in the next elections, the security sector needs to be reined in. This implies security sector reform.
However, as experience from other countries has demonstrated, security sector reform is a lengthy and complex process. Ahead of elections, Zimbabwe may only realistically implement those reforms necessary to facilitate a free poll. To do this requires removing or limiting the power of those who control the security sector and who are ultimately responsible for the violence of 2008. For this reason, the question of how state security service chiefs are appointed is of vital importance.
What does our current constitution have to say on the subject? Section 96(4) of the constitution, under which the 2008 elections were held, provides: “The Commander of the defence forces, and every commander of a branch of the defence forces, shall be appointed by the President after consultation with such person or authority as may be prescribed by or under an Act of Parliament.”
After spending US$45 million, endless meetings and convoluted negotiations, the latest draft constitution proposes, in Section 11.11(2), that Section 96(4) is replaced with the following: “Every Commander of the defence forces, and every commander of a service of the defence forces, is appointed by the President after consultation with the Minister responsible for the Defence Forces.”
The provisions relating to the manner in which the commissioner-general of police is appointed likewise remain largely unaltered, with absolute discretion in this regard vesting in the president.
It is a vexed question as to how appointments are made to key positions in a democratic government in such a way so as to ensure that the incumbent is non-partisan and not subject to political influence. Rather than attempting to resolve or attenuate the problem, the proposed constitution gives unfettered discretion to the president (who in all probability will be a candidate in an election) to appoint individuals to head those institutions which have the brawn to subvert the will of the electorate if he does not win the election — or to ensure that he does.
The democratic way of attending to this problem is to limit the discretion of the person making the appointments, to make the process transparent and to put some distance between the locus of political power and the appointing authority.
This is exactly what an earlier draft of the proposed constitution, circulated in May, had attempted to do. In terms of that draft, the power of the president to choose the individuals who would head the security sectors was removed. For example, in appointing the Commander of the Defence Forces, the president was required to act “on the advice of the Defence Forces Commission”. The commission thus chose the office holder, the president merely formally made the appointment. At least 50% of the selecting commission had to comprise civilians.
Even more significantly, although the president was to appoint the commissioners, the composition of the commission was to be approved by a Parliamentary Public Appointments Committee which was to conduct interviews of the candidates in public. This body itself had to “proportionally represent all groups and parties represented in parliament”. Similar procedures were proposed for the appointment of the commissioner-general of police.
The latest draft restores the unfettered power of the president to appoint service chiefs, representing a massive compromise by the MDC parties. In fact, the draft leaves virtually all of the vast powers vested in the president intact and little different from those under the current constitution.
There are, however, two significant changes. One is that the president’s power to appoint provincial governors is subject to democratic considerations. The other is that under the current constitution, all key appointments made by the president, including the appointments of the service chiefs, and regardless of whether these appointments are merely an extension of a term of office, in an acting capacity or a lateral transfer, must be made with the consent of the prime minister.
However, this requirement will end with the inclusive government so the executive power of the president in this regard will in fact increase rather than be diminished under the proposed constitution — though it must be noted that the requirement of securing the prime minister’s agreement before making appointments has been studiously and consistently ignored by Mugabe for the duration of the government of national unity (GNU) in any event.
Although numerous articles have appeared in the press suggesting that the sticking points between the parties during constitutional negotiations concerned citizenship, devolution of power and gay rights, it is clear from the difference between the earlier and present draft of the constitution, outlined above, that the real cause of dissention was the old chestnut of presidential power.
The fact that excessive power is vested in the president contributed to the rejection of the proposed constitution in the referendum of February 2000. It was also the main point of dispute in the negotiations around the Global Political Agreement, and it has been the primary bone of contention amongst the parties in the GNU.
The changes quietly effected to the earlier draft reveal that once again Zanu PF has had its way on an issue which may negate the minor democratic advances still proposed. The approach adopted by the MDC parties, clearly evident in September 2008, of protest and capitulation continues.

And Zimbabwe’s politics continue in a circular trajectory — we were told the GNU was the only solution to a flawed election, now we are told an election is the only solution to a flawed GNU; we were told we needed a new constitution before we could have a democratic election, now it seems we need a democratic election before we may have a new constitution. Plus ça change, plus c’est la même chose (French expression for the more things change, the more they remain the same).

  • Matyszak is a former University of Zimbabwe law lecturer, constitutional law expert and researcher on legal matters.

 

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