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GNU II
Research and Advocacy Unit
January 24, 2013

http://researchandadvocacyunit.wordpress.com/2013/01/24/gnu-ii-2/

The preamble 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.

The misconception 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.

The obvious 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 of Parliament. 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.

However, the 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 profound.

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 and undemocratic.

However, the 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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