THERE was understandable excitement from some quarters after the conclusion of the constitution-making process, albeit after intolerable delays and the consumption of extensive resources.
Column by Wilfred Mhanda
It is, however, important to put things in their proper perspective to help people understand the significance of this development.
Zimbabwe’s problems partly lie in its authoritarian political culture, undemocratic processes, unaccountable government and lack of respect for the rule of law, not merely the need for a new constitution.
These problems have driven millions of Zimbabweans into the diaspora and they are precisely the same factors that precipitated the constitutional and legitimacy crisis we experienced a few years ago premised on the inconclusive electoral process of March 2008.
The political crisis culminated in the signing of the Global Political Agreement (GPA).
The country’s current constitution, read together with the relevant provisions of the Electoral Act and schedules, provided that in the event of an inconclusive presidential election (in this case March 29 2008), the run-off has to be conducted within 21 days from the date of election, which would have meant it should have been held not later than April 19 2008.
However, what eventually transpired is that the presidential election run-off was slated for June 27 2008, exactly three months and one week after the expiry of the window period to hold it in terms of the law.
Furthermore, the result of the presidential election was only announced five weeks after the date of the poll.
These two unlawful developments precipitated the constitutional and legitimacy crisis as there was no longer any legitimate or lawful government or head of state after the expiry of the legally prescribed period for the presidential run-off.
It is noteworthy that this was a constitutional crisis and not a crisis of the constitution, as some would have us believe.
The crisis did not emanate from the constitution per se, but from the misuse of the institutions meant to buttress the constitution: in other words, it was a political crisis; a subset of the much deeper crisis in which Zimbabwe was and still is enmeshed.
Could it then be reasonably concluded the country’s constitution and Electoral Act accounted for the crisis? Clearly no rational view would subscribe to that.
What then were the factors that precipitated the crisis? It can be cogently argued that the political impasse was occasioned by institutional weaknesses. This requires some elaboration.
Had the Zimbabwe Electoral Commission, the Attorney-General’s Office, judiciary, state security sector (which subsequently unleashed an orgy of violence against the electorate), the Registrar-General’s Office, the state-controlled media and the traditional authority structures discharged their constitutional mandates and operated within the framework of the law and defended the country’s constitution, the political crisis after the 2008 elections would not have materialised.
The weaknesses of these institutions lay in their failure to discharge their constitutional mandates and to operate within the ambit of the law.
Could it then be argued that a new constitution, like a magic wand, would make all these institutional weaknesses disappear overnight? As long as the institutional weaknesses that brought about the crisis subsist and are not resolved, it would be wishful thinking to hope for credible, free and fair elections whose outcome would not be contested.
Let us put things in perspective again in simple language. The constitution and concomitant statutes constitute the software for governing the country with the constitution as the operating system upon which laws run.
The laws are the software packages that have to be compatible with the operating system and the constitution.
State institutions on the other hand are the hardware that houses the operating system. In this day and age of information communication technologies, it is common cause that any software without compatible and matching hardware drivers delivers no value.
This is not to say that the focus on the constitution and legislative reform are pointless. But such reforms would help much if the problems affecting the hardware are not addressed.
The hardware constitutes what is known as state power. Whoever controls state power calls the shots. The objective of the GPA was to reclaim, restore and to democratise the control of national institutions so that they serve the national interest, not narrow partisan interests.
State institutions are the base while the constitution and the country’s laws are the superstructure. There is a need to strike a dynamic and dialectical balance between the two.
Focusing on one without the other is clearly counterproductive. This is the reason why Sadc has been insisting on both constitution and refroms that encompass both software and hardware changes if it is to facilitate genuine democracy.
By now it should be clear that it was not the governance software that precipitated the crisis, but the institutional hardware. More than four years have now been wasted at great cost on barking up the wrong tree. It is not too late to change focus however.
When calls are made for institutional reforms, they are not meant to facilitate an MDC victory, but to pave the way for democratic rule and practice, accountable government and laying a solid foundation for entrenching the rule of law. Political parties in power are never comfortable with strong institutions as they constrain their room for manoeuvre.
They would rather have pliable and weak institutions that they can easily manipulate to serve their interests.
It would therefore be folly and misguided to pin hopes on an MDC victory with the notion and expectation that they would, once in power, embark on reforms to strengthen state institutions. Doing that would be tantamount to subcontracting the struggle for democracy and only live to fight another day. The struggle for democracy must be citizen-driven to ensure accountability.
What is to be done in light of the foregoing, now that we have a new constitution, however flawed? Is it enough to just entrench democratic rule? Would it be in the national interest to call for elections before the problems of the hardware have been resolved? Surely, that would be a recipe for disaster.
Besides, as has been previously argued by Ibbo Mandaza writing in this paper, there will be urgent need for reforms and to harmonise and synchronise the country’s laws with the new constitution. Talk of deadlines to hold elections becomes trite and immaterial in the circumstances.
What is required is addressing the country’s underlying problems, not a mad rush to meet self-serving deadlines that only trigger the re-emergence of the same problems sooner rather than later.
Effecting institutional reforms of necessity requires transitional arrangements in terms of the timeframes, mechanisms and framework that enable the process.
The debate should now be about reforms that guide and facilitate the holding of credible elections and transitional arrangements thereafter.
Calling for elections now, without the requisite institutional reforms would be tantamount to putting the cart before the horse.
Mhanda is an ex-Zanla commander whose liberation war name was Dzinashe Machingura.
He recently wrote a book titled Dzino: Memories of a Freedom Fighter.