SINCE the advent of the government of national unity (GNU), there has been considerable confusion over when the next general elections should be held.
Opinion by Derek Matyszak
The confusion has been compounded by various inaccurate claims as to what Zimbabwe’s constitution does and does not mandate in this regard.
One of the most recent additions to the many conflicting pronouncements, all of which claim to be authoritative on the matter, appeared as a comment in the Zanu PF-controlled Herald daily newspaper.
The editorial averred that a new parliament must be elected before June 29, 2013 and that a failure to do so would be “unconstitutional” and would sully the fact that “one of our proudest traditions is consistently holding elections as and when they were due”.
In so doing, the Herald echoed statements to a similar effect made by others, most notably Justice minister Patrick Chinamasa.
Polls after two years into GNU?
From the commencement of the GNU on February 11 2009, a central part of the MDC-T’s political rhetoric was to portray the GNU as a transitional arrangement, pending the adoption of a new constitution, which would lead to free and fair elections thereafter.
The Global Political Agreement (GPA) set a 19-20-month timetable for the constitution-making process. Accordingly, in this scheme of things, the transitional government would last approximately two years. For this reason, it came to be assumed the GNU had a two-year lifespan. In fact, the GPA provides a start date — the day of signature — and no end date.
The existence of the GNU and GPA are coterminous. Thus the GNU likewise has no specified end date.
It is possible that the omission was deliberate with both political parties wishing to keep their options open in this regard. However, Zanu PF has since alleged that the MDC-T had sought a two-year timeframe during negotiations although it had wanted a five-year arrangement.
The GPA, despite assertions to the contrary, contains no requirement that elections be held once the constitution making process was completed. Furthermore, the GPA also does not provide that the GNU is to be a transitional arrangement terminating after the creation of democratic conditions leading to free and fair elections.
It was merely implicit that the GNU would come to an end with the next general elections.
The notion that the GNU expired in February 2011 and that elections would then be a legal necessity, continued to be advanced mainly in the Herald, quoting President Robert Mugabe in October 2010 and January 2011, stating that the inclusive government could not be extended beyond a few months after its expiry. When the expiry date arrived, they reported that all parties were considering a six-month “extension”.
Elections after new constitution?
The alleged expiry date of the GNU came and went without elections, as did the purported six-month extension. Mugabe’s statement that the GNU “could not be extended” was quietly forgotten. The timetable for the making of a new constitution was likewise abandoned.
However, by the end of 2011, it had become generally accepted the timing of elections was now linked to the completion of the constitution-making process politically, strengthening the false perception that this was a legal requirement.
With the process beset by bickering, financial constraints, and consequent repeated delays and stagnation, Mugabe’s statements throughout the second half of 2011, that elections would be held in March 2012, were thus met with considerable scepticism.
However, it was obvious the new draft constitution was unlikely to be finalised by this date and the annual Zanu PF conference studiously ignored their resolution of the previous year on the matter. The conference resolutions of 2011 thus simply referred to polls “to be held in 2012”.
Undeterred by the fact that his previous definitive pronouncements as to election dates had not come to pass, Mugabe continued to claim, from early 2012, that elections were imminent. Since the lack of tangible progress on the new constitution was apparent to all, Mugabe sought to give these pronouncements some credibility by stating that the elections would be held with or without a new constitution, and an attempt was made to de-link the process from elections.
In one of his articles, Zanu PF politburo member Jonathan Moyo correctly pointed out that there is no legal requirement or provision in the GPA that a new constitution must be in place prior to elections, but incorrectly sought to argue that court proceedings pertaining to the three Matabeleland by-elections legally oblige Mugabe to call elections before the end of March 2013.
Mugabe had previously ignored constitutional provisions requiring that he should secure the prime minister’s consent when appointing governors, judges and ambassadors.
However, Sadc, the “guarantors” of the GPA, indicated that it would not countenance elections without the completion of the constitution-making process. Many believed that Mugabe would not defy Sadc on the issue, and his threats to call for elections without a new constitution were treated accordingly and were increasingly ignored.
The fact that, since 2010, Mugabe had been stating that election dates were soon to be announced, without the dates actually being set, led some to postulate an ulterior motive behind the pronouncements.
Given Mugabe’s advanced age and concomitant health problems, many within Zanu PF doubted that Mugabe would be fit and able to contest the next presidential election. These doubts were underscored after the Sadc meeting in Zambia in January 2011, when pictures of an extremely frail Mugabe clinging to a golf cart for support appeared in the press.
Mugabe was too weak to walk unaided and compelled to rely on the cart.
The question mark that thus appeared over Mugabe’s candidacy in the next election had the potential to widen the already deep fissures in Zanu PF caused by the race to succeed him as party leader.
Mugabe’s repeated statements that elections were imminent, that he would thus be around for elections, and be the Zanu PF candidate to contest it, could thus be viewed as merely a means of managing the succession issue within his party, and were made without any actual intention of proclaiming the dates.
It should be noted that although the constitution requires Mugabe to secure the prime minister’s consent before dissolving parliament ahead of general elections, and the MDC leader, Prime Minister Morgan Tsvangirai, indicated he would not give such consent before the constitution-making process was completed, Mugabe’s failure to announce election dates despite claiming that he would do so, is unlikely to have been on account of this legal nicety.
At the end of last year, in mid-December, the Zanu PF annual conference resolutions “note(d) that the GPA and the inclusive government, legally and constitutionally, ought to have come to their end after the expiry of the two years reckoned from the inception of the inclusive government” and “implore(d) the GPA parties to conclude the constitution making process before Christmas this year, failing which the head of state and government and commander-in-chief of the Defence Forces (Mugabe) should, in terms of the law, issue the relevant proclamation dissolving parliament and fixing a date for the holding of the harmonised elections under the current constitution.”
The resolution was not implemented. Political considerations, Sadc pressure, the need to finalise the constitution-making process, and the constitutional requirement to gain Tsvangirai’s consent meant that the determination of the election dates did not lie solely with Mugabe.
The new draft constitution was only put to a referendum on March 16 2013. As the failure to finalise the constitution-making process had been viewed as the major stumbling block to calling elections, the referendum re-ignited the debate as to the timing of the elections and highlighted the significance of a sub-plot relating to elections which has been running since 2008.
New constitution and poll dates
One issue relating to the timing of elections remains. The new constitution will (re)introduce provisions relating to a system of proportional representation in elections. The Electoral Act will need to be amended accordingly. Thus, it seems, at first glance, that elections cannot take place until parliament (currently in recess) has passed this necessary legislation into law, and it must do so before automatic dissolution on June 29 2013.
The MDC formations would have it that several other pieces of legislation are also required to ensure the integrity of the general elections, and that these too must be passed into law by parliament before dissolution.
However, the new constitution will do nothing to remove the president’s power to make regulations while parliament is in recess in terms of the Presidential Powers (Temporary Measures) Act.
The regulations “may provide for any matter or thing for which parliament can make provision in an Act”, and may be made whenever “because of the urgency, it is inexpedient to await the passage through parliament of an Act dealing with the situation”.
They remain in force unless amended or repealed at the next sitting of parliament. Mugabe may choose to use these powers to bring such legislation as he deems necessary into being and does not require a sitting parliament to do so.
One of the prominent characteristics of the Zimbabwean polity is the heated and protracted disputes around issues which can be resolved by a simple reference to the black and white provisions dealing with the point. This has been the case with regard to the GPA, the indigenisation legislation, and the constitution. The debate around the date for elections is merely more of the same.
Despite the dust that has been raised around the timing of elections it remains clear that:
The five-year lifespan of parliament ends on June 29 2013 (Section 63(4) of the current constitution) at which time parliament will be automatically dissolved.
Parliament may only constitutionally be earlier dissolved with the consent of the prime minister first obtained (Section 20.1.3(q) of Schedule 8 to the current constitution as read with section 115 thereof).
Elections must be held within four months of the dissolution of parliament (Section 58(1)) of the current constitution.
Matyszak is a lawyer and senior researcher with the Research and Advocacy Unit.