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Negotiations, democratic space and Zimbabwe's 2008 elections
Research and Advocacy Unit
February 25, 2008

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Executive Summary
The publicly proclaimed objective of the SADC political mediation in Zimbabwe was to create political conditions for the holding of free and fair elections in Zimbabwe. The negotiations have led to a series of changes to the constitution, the electoral laws, the laws regulating freedom of assembly and the operation of the print and electronic media. The ruling party and the main opposition party agreed to these changes to the law.

There was considerable scepticism about this Mbeki led mediation process. After President Mugabe made a few insignificant amendments to electoral laws ahead of the 2005 elections, President Mbeki disingenuously proclaimed that conditions had been put in place to allow free and fair elections to take place. Many believed that the SADC mediation process would follow the same route and that Mugabe would only agree to a few insignificant changes to the electoral and political terrain shortly before any elections. These changes would be made at the last moment and would not result in any real opening up of the political space. Even if more significant changes were agreed to, they would be implemented so close to the election that they would not make any difference. They would, however, be exploited to allow Mbeki and SADC to characterise the elections as free and fair.

This paper explores the extent, if any, to which the amendments to BSA, AIPPA and POSA have increased democratic space in Zimbabwe.

The amendments to BSA will not open up the airways to a diverse range of broadcasters and end the current government's effective monopoly of the media. The reconstituted regulatory board will be still under the control of the executive. Even if the new board is appointed prior to the March elections, it will be unlikely to grant any new broadcasting licences before the election, particularly to applicants that are perceived as being critical of the government. If such licences were to be granted, the new stations would have little time ahead of the election to have any significant impact. There are also still a whole variety of other stringent requirements for potential licence holders that will be very hard to satisfy. These include local content requirements and the requirement that only Zimbabweans can be licence holders, unless there is ministerial approval for the grant of a licence to a foreigner - a provision that is likely to lead to the granting of licences only to foreigners who are sympathetic to government.

The amendments to AIPPA also fail to create much additional democratic space. The regulatory board is still likely to be dominated by ruling party sympathisers and this will dictate the way in which it functions. For instance, its new power to accredit foreign journalists for limited periods is likely to lead to accreditation mostly of foreign journalists that are sympathetic to the ruling party. Newspapers will still have to obtain registration, as will journalists who want to enjoy various 'privileges'. Unaccredited journalists will be permitted to operate, but subject to many restrictions and the plethora of repressive criminal laws can continue to be used as a weapon to silence "unfriendly" journalists. New powers to discipline journalists for unethical practices may also be used to silence anti-government journalists.

The amendments to POSA in theory open up the democratic space to a limited extent. The amendments are supposed to lead to a situation where Zimbabweans of all political persuasions will be able freely to exercise their democratic rights to hold meetings and to mount demonstrations. The law enforcement agencies are supposed to do everything possible to find ways to allow these rights to be exercised. If they receive credible information on oath that a demonstration will lead to extensive damage to property or other public disorder, it must hold a meeting with the organisers to try to find a way of eliminating the danger of such harm. If such negotiations fail and the authorities prohibit the demonstration, the organisers can appeal against the banning of the demonstration to a magistrate. However, the heavily politicised and partisan police force is still likely to apply these provisions in a biased fashion so that pro-government gatherings will be freely allowed and excuses will be found to close down most anti-government gatherings. This biased attitude was already evidenced in the banning of a MDC demonstration within weeks of the legislation becoming effective.

These so-called reforms are thus too little too late. They are very limited in scope and require the regulatory bodies, and, in the case of POSA, the police, to perform their duties in a fair, unbiased and professional manner, which is unlikely to be the case.

Nonetheless the 'reforms' should be put to the test, even if for no other reason than to expose their lack of any real substance and limited scope.

The protracted negotiations between the MDC and the Government of Zimbabwe have thus done little to open up democratic space and have been merely a time buying exercise for Presidents Mugabe and Mbeki. The pre-election climate shows every indication that the impending elections will be as unfree and unfair as the predecessors.

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