July 31 polls: History repeats itself

Consider, if you will, the following pre-election headlines and press clippings:

Massive registration of voters by Zanu PF (The Zimbabwean of June 14 2008);

Opposition now ‘mince-meat’ for Zanu PF (AFP, February 4 2008);

Mugabe bends law to retain power (Sapa-AFP (IOL), April 24 2008);

Zec admits voters’ roll ‘in shambles’ (The Standard, March 29 2008);

Opposition reveals rigging plot (Zimbabwe Independent, March 27 2008);

Zim court turns down opposition (Sapa-AFP (IOL), April 14 2008);

Zuma calls for more pressure on Zim (Cape Times (IOL), April 23 2008); and

Chaos mars Zanu PF primary elections in Bulawayo (Zim Online, February 4 2008).

Both MDC factions have expressed surprise at the announcement (of the election date). “It’s an act of madness and arrogance,” Nelson Chamisa, spokesperson for the MDC-T told the AFP news agency.

“At the moment the conditions in Zimbabwe do not allow for free and fair elections and so we are heading towards illegitimacy if we go ahead with the elections …” (Zimbabwe sets March date for poll, BBC News Online, January 26 2008).

MDC-T leader Morgan Tsvangirai said setting the vote date … was illegal, but “we will contest” (Commission sets Zimbabwe run-off for June, USA Today Online, May 16 2008).

The enactment by President Robert Mugabe of Presidential Powers (Temporary Measures) (Amendment of the Electoral Act) Regulations summarises everything that is wrong with this election in particular and Zimbabwe in general (Mugabe can’t play God with us, The Standard March 27 2008).

Press clippings and headlines of this ilk are familiar to anyone keeping track of the media in the build-up to Zimbabwe’s July 31 elections. However, all these headlines and clippings are extracted from press reports relating to the elections of 2008, and not those of 2013.

Given the current brouhaha over the recent announcement of the date of the elections for 2013, claims of unconstitutionality and the (mis)use of the Presidential
Powers (Temporary Measures) Act (PPTMA) to amend electoral legislation, it is worth remembering that Zimbabwe has trodden this path before.

At the beginning of 2008, then South African president and Sadc facilitator, Thabo Mbeki, was mediating intense negotiations for democratic reforms ahead of the elections slated for that year. It was believed by Mbeki and the MDC formations that the reforms would be implemented ahead of the elections so that the outcome would not be disputed.

In the midst of this mediation, on January 25 2008, Mugabe shocked all stakeholders by suddenly proclaiming the elections, setting the date as March 29. It was clear that the agreed reforms could not be in place by then. The announcement, anticipating the comments made in regard to the proclamation setting the 2013 election date, drew a furious response from the MDC formations, with Chamisa referring to the precipitate date as being a “slap in the face” for Mbeki — somewhat more refined, but similar in sentiment, to MDC president Welshman Ncube’s infamous comment that the July 31 date effectively told Sadc to “f” off.

In 2008, the use of the PPTMA to amend the Electoral Act also evoked controversy. Regulations promulgated by Mugabe on March 17 2008, purportedly using the PPTMA, changed the electoral law so as to allow police officers to be present in polling stations and to “assist” incapacitated voters.

Only a few months before, parliament had amended the Electoral Act to exclude police officers from polling stations. Mugabe, a contestant in the impending poll then, thus overrode the explicit intention of parliament and restored a legislative provision, the removal of which parliament had deemed would enhance the democratic integrity of the election.

The use of the PPTMA to amend electoral legislation is unconstitutional. The constitution then, as now, requires the electoral law to be made by “an Act of parliament” and not by presidential regulations. An urgent application in this regard was brought before the High Court ahead of the 2008 election, challenging the amendment by Mugabe. Justice Antoinette Guvava avoided dealing with the constitutionality of this use of the PPTMA. She dismissed the application on technical and procedural grounds.

In so doing, the judge replicated the approach of the Supreme Court in 2002, ahead of the presidential election of that year. Then, Tsvangirai had likewise challenged as invalid changes made to the Electoral Act by way of a regulation and not by an Act of parliament as the constitution requires.

Justice Wilson Sandura, a lone voice on the bench, agreed. Led by Chief Justice Godfrey Chidyausiku, the remainder of the bench declined to adjudicate upon the issue, citing a supposed technicality. Even though Tsvangirai was a contestant in the election, the majority held that he had no locus standi — that is that he had no interest in the issue and thus could not bring the application before the court.

When Mugabe lost the first round of the presidential election in 2008, a flood of illegalities followed, including the run-off election itself. The result of the first round was withheld. Using a tortured interpretation of Section 67A of the Electoral Act, which had not been suggested by legal counsel, and deploying a series of non-sequiturs, Justice Tendai Uchena declined to order the release of the results when an application to compel publication came before him.

Section 110 of the then Electoral Act required that a run-off election be held within 21 days of the election, where no contestant achieved an absolute majority (that is 50% plus one vote). When 21 days came and went without the run-off, it was argued that “the election” is not merely the day of voting, but the entire process up to and including the announcement of the result — so the 21 days, it was maintained, only commenced once the result was announced.

Fast forward to May 2013 and the new Constitutional Court (Concourt) orders that the next election must be held by July 31. The argument that “an election” means the entire process ending with the announcement of the result, so vociferously argued in 2008 by the Minister of Justice, Patrick Chinamasa, and others, is now forgotten. The meaning of “an election” reverts to being polling day, as it ought, rather than the entire electoral period. As with 2008, there is an outcry that the date has been set before reforms are in place.

As with the 2008 presidential run-off, the date set is regarded as unconstitutional by the MDC parties. The July 31 date allows insufficient time for the constitutionally required 30-day intensive voter registration period to be completed. It is uncertain if essential amendments to the Electoral Act (such as those pertaining to proportional representation) can pass through parliament in time, as once the election dates are announced by the president, the new constitution bars any further changes to the Electoral Act.

“No problem,” says Mugabe. Without warning to, or obtaining the required consent of cabinet, which he had met but a few hours before, and without consultation with the Zimbabwe Electoral Commission, as the constitution requires, Mugabe once more uses the PPMTA to amend the Electoral Act so that registration is now allowed to continue beyond the sitting of the Nomination Court, in order that the constitutional requirement of the 30-day intensive voter registration period can be met. The amendments also include provisions introducing proportional representation into the Electoral Act — despite the fact that the new constitution specifically states that such provisions shall be by way of an “Act of parliament” and not presidential regulations.

The election date is set by a proclamation made on the same day as the regulations. An outcry about the election dates follows. There is an application to the
Concourt about the use of the PPTMA to amend electoral legislation. The judges hearing the matter include Chidyausiku and Guvava, both of whom had previously avoided dealing with the question of the constitutionality of the use of PPTMA in this manner, and Justice George Chiweshe, whose past judgments as to when elections must be held always seem to dovetail with presidential preference.

As in 2002 and 2008, the judges dismiss the application. The reasons for the dismissal are yet to be given. But a betting man will wager that when the judgment is delivered, we will find that the issue has not been dealt with and the judges have precluded consideration of the point on a technical, procedural ground.

Thus, it seems that all players — Mugabe, Zanu PF, the MDC parties, Western countries, Sadc, governance NGOs, etc — are reciting the lines (though not, apparently, from memory) written for them in 2008. And this is so, not merely in relation to the date of the election, the use of the PPTMA, and reforms. They are dutifully repeated in relation to bias in the media, the voter registration process, accreditation of observers and the security sector, allegations of rigging, vicious primary battles, fissures and multiple candidacies, Zanu PF’s hubristic claims of inevitable victory, MDC parties’ despondency, and party splits and pacts — as a glance at the press headlines of 2008 will confirm.

Only the European Union has departed slightly from the script, easing restrictive measures against senior Zanu PF officials, claiming that this is a “reward” for what it claims are the changes and progress in Zimbabwe’s polity.

The next few months will reveal whether the drama will continue to unfold exactly as before, with the penultimate act a descent into chaos and brutal repression following a Mugabe defeat and the denouement of a second global political agreement.

Matyszak is a lawyer and senior researcher with the Research and Advocacy Unit.