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A new constitution alone will not guarantee a free and fair election
Youth Forum
May 18, 2012

The misguided notion being peddled by many a politician who is in support of the current constitution making process being led by Copac that the new charter will lead to free and fair elections should be quickly discarded and not entertained as it is a great travesty to common sense and logical thinking. Not only is this view a blatant lie on the part of those peddling it, it also smacks of cheap political rhetoric and subterfuge on those trying to justify the millions of donor funds that they fruitlessly spend in hotels and bars, under the guise of coming up with a democratic and people driven constitution for the country.

Almost two years beyond its initially set deadline, the constitution making process has tottered from one crisis to the other, encountered numerous hurdles, including at one time a crippling shortage of funds due to waning donor support and confidence in the process. As it stands, Copac has since delivered what it has termed the first consolidated draft constitution to the 'management committee' made up of six negotiators from the three governing parties, albeit with 'parked issues', though it is still not clear who is to decide on these parked issues before the draft constitution can be brought to parliament and eventually to a referendum. What is clear as of now is that it is no longer relevant what the people might have or have not said during the chaotic outreach meetings conducted by Copac, but that the discretion now lies with a few party representatives to agree and decide on what they will present in the form of a draft constitution to a referendum. Talk about a people-driven constitution.

However, after reading the current draft, one is struck by the glaring similarities between this draft and the current constitution, especially with regards to the powers that remain vested in the proposed executive presidency, itself singled out as one of the key factors behind the governance crisis gripping the country. Simply too much power is vested in one individual, itself a very undemocratic practice that is a slap in the face of participatory democracy. The same crisis is certainly behind the infighting in Zanu PF driven by the succession issue and is the main reason why they cannot discuss leadership renewal amongst themselves. This is now manifesting in the serious infighting and violence that has characterized the district coordinating committee elections and the current restructuring exercise. There is certainly no need and defies logic in this day and age to concentrate so much power in an individual in any government or political power structure for that matter. In no way should any individual from the executive arm of state be above and beyond reproach of the other two arms of state - the legislature and the judiciary. No democracy can work under such ludicrous conditions, and most certainly such an arrangement cannot support a free and fair election, especially one in which the incumbent participates.

Many of the provisions in the draft constitution in circulation gravely exposes the two MDC formations as being not genuine in their self-proclaimed mandate as the leaders of democratic change and reform in the country. Even as we acknowledge the fact that whatever constitution will be brought for a referendum will be largely a negotiated document, the extent to which the new charter neglects and omits fundamental tenets inherent of any democratic constitution relevant and alive to the realities of us as a people and as a nation clearly betrays the selfish and monetary interests that drove the three parties to author a new constitution for the country on behalf of the people, while all along trying to convince the public that they were being consulted and included all the way. It was very treacherous of the MDC, especially the formation led by the PM to vilify and victimize its civic friends and strategic partners for trying to knock sense to the party and its leadership that they were playing their cards wrong in allowing themselves to fall for the Zanu PF trap by making it a preserve of the politicians alone to author a constitution on behalf of the people. It is also mind-boggling as to why the current draft is mum on the Diaspora vote. After all, we heard Copac during earlier episodes of its on-going circus loudly proclaiming that it had gone on an overdrive to consult the Diaspora in the writing of the new charter. And to think that the two MDC formations are also in support of the two vice presidents agenda clearly betrays how easily they can be swayed by Zanu PF into changing earlier positions and principles. In all this, it is clear that Zanu PF is in the driving seat. Never mind that they seem not to want the constitution; for them it makes just perfect sense to be wasting and buying time in government.

Some schools of thought have and continue to suggest that a new constitution alone is not the panacea to a free and fair election. They go on to argue that apart from the level of the constitution, there are also two subsequent levels that have a bearing on the conduct of a free and fair election, being the statutory level (acts of parliament relevant to the holding and conduct of elections) as well as the codes of conduct and non-statutory regulations relevant to various stakeholders with direct and indirect interest to any election. They further argue that it is at the latter two levels where you are most likely to effect greater impact in safeguarding the conduct of a free and fair election. For example in the current Copac first draft, section 4.18 subsection 1 (a) provides for every Zimbabwean the right to make political choices freely, but the stark reality is that various acts of parliament and a lax code of conduct affecting various players' and stakeholder participation in elections all make it difficult to realize a free and fair election. Proponents of violence during elections will always be at work and get away with it because there is a lack of proper code of conduct for political parties with regards to the behavior of their supporters during elections, and even if it were there, there would be need for proper coordination with law enforcement agents to make this work effectively. Again, a constitution alone cannot guarantee this.

The parties in government also indirectly acknowledge that a new constitution alone will not guarantee that Zimbabwe will have a free and fair election. The 'Roadmap to Zimbabwe's Elections' as proposed by the SADC Summit of 17 August 2010 and subsequently negotiated by the parties' negotiators in April of 2011 has the issue of constitutional reforms as one of eight issues identified as being critical for the holding of a free and fair election. So it would be foolhardy for any of the three parties to then go ahead and assure its supporters or membership that once the new Copac constitution is in place, the country can have a free and fair election. This is a blatant lie.

It is against this background that the government and especially the three parties in that government should wake up to the reality that their futile project code-named Copac is a waste of the country's time and resources. Clearly this constitution is a product of negotiations and horse-trading between the political parties, a key point in explaining the delays that have hit the drafting stage of the process. What is also clear from the current draft is that it does little in advancing a democratic culture in Zimbabwe, especially one which is premised on the supremacy of the constitution. This alone is exemplified in the manner in which the draft keeps intact most of the presidential powers present in the current Lancaster House constitution.

While at the moment, it may not be really relevant to scrutinize the Copac first draft clause by clause, primarily because of the 'parked issues' that it still contains, it remains fact and not fallacy that the adoption of this new constitution alone will not guarantee a free and fair election in the short-term. Furthermore, the process that the inclusive government is undertaking to come up with this constitution fundamentally takes away the people of Zimbabwe's inherent right to author a constitution for themselves, free of political interference and arm-twisting as is the current case. Even if the eventual constitution is going to be 'better than the current' to borrow the words of some of our conservative optimists, this will never make it a constitution by the people of Zimbabwe and as such their ownership and subsequent allegiance to such a constitution will always be questionable and in doubt.

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