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Research and Advocacy Unit
to the resolutions which emerged from the recently concluded ZANU
PF 13th National People’s Conference
noted “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”. This observation by
the Conference is simply wrong. In fact, the GPA provides a start
date only – the date of the signing of the agreement (15.09.08)
– and no end date. The existence of the GNU is specifically
stated, in Schedule 8 to the Constitution, to be contingent upon
the existence of the GPA. Since the GNU lasts for so long as the
GPA is in existence, and that agreement is open ended, then so too
is the life of the GNU.
that the GPA provided a two year life-span for the GNU arose from
Article 6 of the GPA. Article 6 set out a specific 18 month timetable
to be followed for the making of a new constitution for Zimbabwe.
The process was to commence within two months of the inception of
the GNU and thus should have been concluded about two years after
the signing of the GPA. However, the GPA does not state that a general
election must be held after a referendum
on the new constitution. The GPA does not in fact mention the
timing of the next general election at all. It is thus not a constitutional
requirement that a referendum on a new constitution must take place
before general elections can be held.
So when does
the GPA (and thus GNU) end and when must elections be held? The
GNU will end if any party resiles from the GPA, which may be done
at any time. With the termination of the GPA for whatever reason,
Schedule 8 to the Constitution,
and thus the GNU, fall away.
intention of the current Constitution is that presidential elections
and parliamentary elections be held simultaneously. It is also clear
that the life span of Parliament is generally five years commencing
on the day the President entered office following elections (29.06.08)
and that elections must be held within four months of the dissolution
Furthermore, section 23A of the Constitution provides that, every
Zimbabwean has the right to free, fair and regular elections. A
failure to hold elections after the dissolution of Parliament would
contravene this provision. Schedule 8 to the Constitution on the
other hand, provides that the Office of President “shall continue
to be occupied by President Robert Gabriel Mugabe.” There
is obviously no point in holding a presidential election if Mugabe
is to continue in office notwithstanding any contrary result of
that election. It must thus be assumed, even though the badly drafted
GPA does not state as much, that the GPA and GNU will not continue
after any election. But the precise date of termination is not known.
Should it end when Parliament is dissolved or should it end once
the results of the next election are announced?
At the latest
however, the GNU must, by implication, come to an end, with elections.
The next question, then, is when must such elections take place,
as a matter of law? We have seen that elections must take place
within four months of the dissolution of Parliament. This may be
the automatic dissolution after five years, or an earlier dissolution
by the President, which must be with the consent of the Prime Minister,
if the GPA is still in place.
mandatory dissolution of Parliament in June 2013 can be constitutionally
delayed. If the President makes a Declaration of War, the life of
Parliament may be extended, yearly, for up to five years. Similarly,
it may be extended when the President has made a Declaration that
a state of emergency exists or that a situation exists which may
lead to a state of public emergency. If this Emergency Declaration
remains in place, the life of Parliament may be extended for up
to one year. No criteria are set for the circumstances in which
such a Declaration may be made and the President has an absolute
discretion in this regard, subject only to the need for ratification
within 14 days of the announcement by the House of Assembly.
While the Emergency
Declaration remains extant, the State may hold persons in “preventative
detention” and no action taken to deal with the state of emergency
or possible emergency may be deemed to be in contravention of constitutional
rights pertaining to the right to liberty, freedom from arbitrary
search, and freedoms of association, expression, freedom of movement
and freedom from unfair discrimination. The ability to make an Emergency
Declaration could be manipulated for political purposes through
collusion between the President and the House of Assembly. Thus
the possibility exists for the main political parties to agree that,
for example, that the failure to conclude the constitution making
process has led to a situation which, if allowed to continue, may
lead to a state of public emergency. The life of Parliament could
then be extended for up to one year. However the implications for
basic civil liberties, if this course of action is followed, are
The life of
Parliament, the President’s term of office and thus the GNU
could also be extended by a constitutional amendment to this end.
The amendment might, however, be subject to challenge on the basis
that elections are a fundamental feature of Zimbabwe’s constitutional
democracy and cannot be suspended by agreement between political
parties. The extension of the life of Parliament in this way would
clearly appear motivated by political self interest and expediency
current constitution making process suggests another means of continuing
a unity government which avoids the disadvantages of those outlined
above. The parties involved in negotiating the provisions of the
new constitution may announce a deadlock and that they are unable
to agree a final constitution for the country. Instead of a final
constitution, the negotiating parties could then indicate that the
solution is to agree an interim constitution. This interim constitution
would contain the provisions for a GNU II and contain clauses which
create the conditions for free and fair elections within a stipulated
time frame. For instance, the interim constitution could include
new provisions for the appointment of the heads of the security
sector and the opening of the electronic media. The interim constitution
could also provide for the sharing of executive power and that all
sitting legislators retain their seats until the elections. If the
interim constitution were successfully put to a referendum the arrangement
could be held to have democratic legitimacy.
Defeat in the
next elections could signal the demise of the losing political party.
With both ZANU PF and MDC-T sensing the possibility of defeat, it
is not entirely improbable that ZANU PF and the MDCs may seek to
use a transitional constitutional mechanism to enter into a GNU
II. The problem for Zimbabwe is, however, that given the MDCs lack
of negotiating acumen (manifested when the GPA deal was struck)
it is likely that the MDC-T will make immediate concessions against
the promise of future undertakings which will never be implemented.
This will lead Zimbabwe to two more years of stasis while the MDC-T
continues its strategy of hoping for change in the office of the
Presidency via Mother Nature rather than politics.
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