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Even Zimbabwe's constitution waits for Mugabe to pass the baton,
or pass away
Allison, The Guardian Africa Network
March 26, 2013
It was, by all
accounts, the most fair and trouble-free vote in recent memory.
As Zimbabweans went
to polling stations last Saturday to approve a new constitution
– which they did, by a 95% margin – reports of intimidation
and foul play were few and far between, at least by Zimbabwe's admittedly
low standards: a beaten up journalist here, an arrested activist
there. "Transparent, orderly and professional," was how
the Southern African Development Community (SADC) observer mission
characterised the referendum, and it was right, for the most part.
This was not
a surprise. That the referendum would be a success was never in
doubt once both major parties – Robert Mugabe's Zanu-PF and
the Movement for Democratic Change faction led by Morgan Tsvangirai
– agreed to campaign to approve the draft
constitution. For once, those old enemies found themselves in agreement,
making intimidation or coercion on a significant scale unnecessary,
ballot-stuffing and vote-rigging redundant. There was nothing at
stake, so nothing to fight about: an important point to remember
for those who think that this referendum might be the model for
the presidential elections planned for later this year. It is not.
And now Zimbabwe has
a nice, shiny new constitution that's worth taking a closer look
at. Of course, there are some good points. "The constitution
is particularly strong where it puts the aspirations of ordinary
Zimbabweans at the centre of government," writes Petina Gappah
on Comment is Free. "A strengthened bill of rights obliges
the state to put the empowerment of women and girls ahead of regressive
cultural practices; makes significant inroads into the death penalty;
forbids all forms of torture; guarantees freedom of expression and
belief; and imposes obligations on the state to take steps to ensure
access to shelter, health education, food and legal aid."
So far, so good. But
then things start to unravel as it becomes clear that this document
was written in the spirit of bitter compromise. On the vexed issue
of land ownership, only "indigenous" peoples are entitled
to compensation for appropriated land. It will be up to the new
constitutional court to decide who falls into this category, but
it's unlikely to be broad enough to include white farmers booted
off their farms or narrow enough to signal a bonanza for Zimbabwe's
1,200-strong San population. It's "a not particularly subtle
code for black," says Gappah.
The constitutional court
is a bit of a problem in its own right. In South Africa, the constitutional
court functions as the prime guardian of the constitution, and in
practice has been one of the most effective bulwarks against the
expansion of government powers and the passage of bad law. In Zimbabwe,
the constitutional court will be drawn from the ranks of the existing
supreme court, which has been thoroughly discredited as an independent
judicial body. No judges can come from anywhere else for the next
decade, the new constitution says – guaranteeing that Zimbabwe's
top judicial organ will continue to be a mouthpiece for Zanu-PF
policy until then.
Then there's the constitution's
most exciting clause: the introduction of term limits. Each president
is allowed a maximum of two five-year terms, but this does not apply
retrospectively, meaning that – if he is re-elected –
Mugabe is constitutionally entitled to another decade in office.
And if he should die, or resign, within that 10-year period, then
his party would be allowed to appoint a successor rather than go
back to the electorate.
The number of these special
clauses which expire in 10 years is telling. They were inserted
at the insistence of Zanu-PF negotiators, and they offer the greatest
clue yet into the party's plans for Mugabe's succession. The likely
scenario is that Zanu-PF will ride the wave of Mugabe's still great
popularity to earn another win in the upcoming elections (or, at
the very least, get enough genuine votes to ensure that not too
much dodgy business is needed to get him across the line). Once
he's installed in office, the party can manage the issue of succession
at its leisure. And if Mugabe doesn't want to be succeeded, then
he's got 10 years in which to pop off and leave the party firmly
in control. Given that he's 89 now, this is not an unlikely scenario.
So why did the MDC, which
has been fighting for so long to get rid of Mugabe and Zanu-PF,
agree to these provisions? The obvious answer is that it feels confident
it can win the upcoming elections; and, by being so cooperative
during the constitutional negotiations, that it has guaranteed that
SADC will step in if Zanu-PF tries to fiddle the vote. But perhaps
there's more to it. Perhaps the MDC, like the Zanu-PF wannabe leaders
jockeying for position, knows that nothing will really change until
Mugabe passes over power or passes on – and, until that happens,
this constitution is the best way to keep things relatively stable.
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