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Seat: Expert breaks down legal necessities needed before polls
Violet Gonda, SW Radio Africa
May 09, 2013
SW Radio Africa
journalist Violet Gonda’s guest on the Hot Seat program is
lawyer Derek Matyszak, of the Harare-based Research
and Advocacy Unit. He gives his opinion on the key reforms that
are necessary, as a matter of law, before elections. Why does the
legal expert say security sector and media reforms are now not necessary
before elections? How will the proportional representation system
work and why does Matyszak believe there will be intense infighting
in the political parties over these special seats reserved for women?
Gonda: My guest on the Hot Seat programme is lawyer Derek
Matyszak of the Harare-based Research and Advocacy Unit and today
he’s going to give us his legal opinion on reforms needed
in Zimbabwe before elections. So let’s start with that Derek.
Matyszak: Well you could basically divide
the reforms into two types: those that are necessary as a matter
of law and those which are politically desirable in order to ensure
a free and fair election. So those in the first category include
Act – it has to be amended to conform to the constitution;
the Local Government Act needs to be amended and the Provincial
Councils Act require amendment to bring them in line with the constitution.
In the second category are probably first and foremost, media reforms
and there also needs to be reforms to the way that the security
sector operates and the way the criminal justice system operates.
I understand that some of the political parties are calling for
an extension of parliament to allow reforms to be implemented; so
is there any need to delay the life of parliament or even extend
the date of elections so that these reforms can be implemented?
Well at the very latest the political parties should have been aware
that amendments to the Electoral Act and the Provincial Councils
Act etcetera were needed the moment they agreed
on the COPAC Constitution. So the drafts people should have
been working on those amendments right from that date that the COPAC
draft was agreed. So it’s simply a question of when parliament
reconvenes on the 6th of May, for the proposed Bill to be brought
before parliament; the parliament is quite accustomed to fast-tracking
these kind of Bills and there’s absolutely no reason why the
necessary legislation – those three essential bits of legislation
– couldn’t be passed by parliament prior to June 29th
when parliament will automatically dissolve. So there’s no
need to extend it on that basis.
What happens if parliament is dissolved without these three amendments?
If parliament is dissolved without the amendments there still exists
the possibility of the president using the Presidential
Powers Temporary Measures Act to push this legislation through;
however it’s obviously undesirable for the president to use
this legislation when he is in fact a player in the forthcoming
election. However those objections could be muted if the legislation
that goes through is drawn with the consent of the three main political
What key changes are required to the Electoral Act?
The main change required to the Electoral Act arises from the fact
that the new constitution introduces or reintroduces the system
of proportional representation – so the Electoral Act will
have to set out the form of the proportional representation and
the details of the proportional representation that will be used
in the forthcoming election.
Gonda: What are the arguments
for proportional representation and what are the arguments against?
Matyszak: Well with the
“first past the post” system we have the possibility
of excluding parties from parliament who might nonetheless enjoy
the support of a substantial number of the voters. With the “first
past the post” system you just need the 50% plus one or 51%
in each constituency. So it’s quite possible, though unlikely
but it’s theoretically possible, in every constituency you
could have a situation where one party wins with 51% of the votes
and another party loses with 49% of the vote; the party that garners
51% of the vote in all constituencies will win every single seat
in the house of parliament – that would exclude the constituents
who gave 49% of the vote to the other party. So despite having a
substantial power base that party would be excluded entirely.
On a proportional representation
system, the seats will be allocated in accordance with the number
of votes garnered by each party. So on that system, one party would
get 51% of the seats in parliament and the other party would get
49% of the seats and would thereby not be excluded from power entirely.
Gonda: Many are saying
that with the problems that we have seen with the partners in this
unity government, the way they don’t trust each other, it’s
not going to be easy to work out who gets what after the vote. Do
you agree with this?
Matyszak: Yes certainly.
First of all just bear in mind that not all of the House of National
Assembly seats will be by proportional representation; it’s
only the 60 seats reserved for women that will be on the basis of
proportional representation and 60 of the seats in the 80 seat Senate
will be on proportional representation. So we have a mixed system
of both “first past the post” and proportional representation.
What is then likely to happen is that you might get current MPs
at the moment who are feeling insecure about retaining their seats
and they might think a safer way to get back into the parliament
is through the proportional representation system,
So what will happen for
example in the case of the women’s seats, the seats reserved
for women, there will be six seats per province – so each
party will be required to submit a list of at least six people per
province that they would like to see attaining those reserved seats
in the National Assembly. So if for example the MDC has a list of
six women for say Midlands province and they win two thirds of the
vote – that means the first four people on that list will
attain those particular seats. So you can imagine there will be
some competition for people not only to get onto the list but the
actual place they will have on the list because the person who is
at the top of the list has a greater chance of getting into parliament
on that basis. So there’s likely to be some rather intense
infighting within parties as the jostling for places on the party
list is determined.
Gonda: Is this a fair
system and are women a special interest group?
Matyszak: Well that takes
you into the whole debate about affirmative action etcetera which
is another path that would require a detailed discussion on some
other occasion but proportional representation is favoured in many
jurisdictions that I’m talking about – a pure proportional
representation system is favoured in numerous countries and it’s
certainly better when a country is deeply divided society like Zimbabwe
because you avoid the winner takes all kind of scenario.
But there are quite a
few different systems of proportional representation, which can
yield very different results. You can, for example, have proportional
representation system, which requires a party to achieve a minimum
number of votes before they can get a seat. So suppose for example
in one constituency, the smaller MDC only secures 10% of the votes,
should that be sufficient for a seat or should one have a threshold
of say 30%? So these different systems will yield very different
results and the biggest differences are what happens to the smaller
parties and certainly the MDC-N has the biggest interest in negotiating
which particular system of proportional representation is eventually
included in the Electoral Act.
Gonda: Is proportional
representation based on political will or is it legally binding?
By this I mean what chances are there that political leaders can
make promises but then change their mind on candidate selection
for these special seats after the elections?
Matyszak: Yes, although
it would be very unusual; it has happened before – I think
it happened in Guyana that the elections took place without the
lists, the proportional representation lists, being published before
the election but that’s very anomalous and very unusual. Normally
the Electoral Commission requires the political parties to submit
the lists of the people who will attain seats by virtue of proportional
representation so that the electorate knows who they are actually
voting for on the basis of this proportional representation system.
So once the parties have submitted their lists to ZEC they will
be bound by those lists.
Gonda: But is the electorate
really voting for these people who will take these 60 seats?
Matyszak: Well no that’s
the thing about proportional representation = is that it’s
not constituency-based. So whereas on a constituency-based election
you know this is your candidate for the constituency, that is the
person who represents your interests in the constituency and you
vote for her or him accordingly. With the proportional representation
system you’re voting for the political party and you can only
see indirectly; ‘well if this party gets this percentage of
the vote then these people on the list will attain seats in parliament’,
so it’s a rather more indirect way of going about it.
Gonda: What about those
other two amendments that you said are important – the Local
Government Act and the Provincial Councils Act – what exactly
is needed to be tweaked?
Matyszak: Well there
are some minor changes to the way in which Local Government is to
be run in the constitution, which I don’t recall offhand but
the structure of the Provincial Councils is very different under
the new constitution and ten members of the Provincial Council will
also be appointed on the basis of proportional representation. And
the Provincial Council itself will be electing the chairperson –
so the present powers of the president to appoint the provincial
governors will be removed by virtue of the new constitution and
that’s one of the most significant changes as far as presidential
powers is concerned in the new constitution.
Gonda: Can we talk about
some of those politically desirable reforms that may not happen
before elections and let’s start with security sector reform.
Matyszak: Yes, the problems
with the security sector – there’s a lot of work to
be done on security sector reform and that’s not something
that can take place in a matter of months and in fact it requires
several years to have effective security sector reform. It would
be more correct to be looking at security sector governance and
the reason why I say that’s not going to happen is because
the opportunities that have presented themselves to try and make
sure that it does happen have passed by without being seized.
So for example, in January
of last year, all the heads of the security sector came up for reappointment
to their offices and they were all reappointed with the acquiescence
it seems of the MDC. A lot of the problems with the security sector
stem from the very top of those sectors in the way that the security
sectors are being governed – that was the opportunity to say
well it’s time to revisit these particular posts and the people
that occupy them. That opportunity was lost.
The second opportunity
to engage in security sector reform came with the changes to the
constitution and earlier drafts of the constitution did in fact
attend to the issue of security sector governance. Those proposed
amendments were taken out in the final COPAC draft and left the
situation as it currently is, so there was an opportunity to do
security sector or reform the governance of the security sector
when drafting the new constitution – that opportunity was
also lost no doubt due to Zanu PF obduracy but that obduracy remains
so that reform is not likely to take place.
Was the security sector reform part of the GPA,
part of the Global Political Agreement?
Gonda: The reason I’m
asking that is because Defence Minister Emmerson Mnangagwa is quoted
saying that is was never part of the GPA.
Matyszak: Well I think
to some extent Mr. Mnangagwa is correct; the MDC is correct in the
fact that security sector governance is in fact mentioned: there
is a clause which requires or which indicates the security sector
should be impartial and does not belong to any particular political
party but there are no mechanisms by which it said that must be
implemented and those would be the reforming mechanisms.
Gonda: There seems to
be a problem with the politicization of the army or the security
sector where you have on the one hand army generals have said they
will not salute Prime Minister Morgan Tsvangirai but on the other
hand the MDC Minister for Defence, Giles Mutsekwa recently revealed
that the MDC has been holding secret talks with the service chiefs.
What can you say about this?
Matyszak: Well I think
Mutsekwa is trying to depoliticize the security sector. Once you
have the security chiefs coming out and saying that they will not
salute a president who did not take part in the liberation struggle
that can be interpreted as a threat to engage in a coup. Of course
the reason they phrased it like that is deliberately to leave it
ambiguous and that’s not the only interpretation you could
put on that. But certainly it is a political statement which essentially
is a threat to the electorate and should not be tolerated and SADC
should make some very clear statements around that.
Gonda: If indeed the
MDC are talking to the army generals, should they be making this
Matyszak: I don’t
see why not. I think too many of the talks take place in secret.
I think the MDC should make a clear demand that the security sector
should undertake to abide by the results of the election and SADC
should also make that demand of the security sector to get them
to state clearly that they will abide by the results of the election.
That is a requirement of the SADC principles and guidelines on elections,
it’s the basic democratic norm and given that the security
sector has made or the security sector chiefs have made these ambiguous
statements they need to clear the air in this regard.
Gonda: Service chiefs
are appointed by the president, the army generals?
Gonda: So if the appointment
of these generals or service chiefs is the prerogative of the president,
is it not better to leave this problem for now and whoever takes
over government after elections can then implement the policies
that they want?
Yes well first of all although the president appoints the security
sector, the appointments, reappointments etcetera, under the GNU
those all have to be done with the consent and agreement of the
prime minister and that provision has been ignored and the appointments
have all been made unconstitutionally. The problem with the new
constitution is that a huge amount of power remains vested in the
president, including the appointment of the security sector people
though there are some very badly worded and ambiguous provisions,
which suggest that the people who are currently in those positions
shall remain in their position.
There’s also a
not ambiguously worded provision which says that the current Attorney
General shall continue in his job and shall continue to be in charge
of prosecutions – so if Morgan Tsvangirai wins the elections,
he wouldn’t be able to change that.
But the problem with
the new constitution, that because it vests so much power in the
president you have a situation that if you have an authoritarian
undemocratic president elected into office, you will have an undemocratic
and authoritarian governance in the country. If you have a president
who is human rights orientated and subscribes to liberal democratic
values then you will have liberal democratic governance in the country.
But that is why it is a bad constitution –the governance of
the country should not depend on the whims of a particular individual.
It should depend on the machinery not the person who operates the
Gonda: So basically you
are saying a new government will not necessarily have the powers
to change the people in the security sector even if they wanted
Matyszak: They cannot
change the position of the Attorney General, that’s written
into the constitution; the provisions relating to the heads of the
army etcetera, those provisions are rather ambiguously worded and
I wouldn’t say that it’s clear that they can do so.
I wouldn’t say that it’s clear that any of the new presidents
couldn’t do that. As I say it’s badly worded provisions,
which might be ironed out when the provisions come to be passed
as an Act.
Gonda: Is this something
that can be amended before the new constitution is passed into law?
Matyszak: Yes there are
certain glitches if you like in the new constitution, there are
certain sections which are badly worded and that needs to be sorted
out before the provisions are passed into law. There are also a
few contradictory sections etcetera – these kinds of errors
are normal when one is drafting complicated legislation like a constitution
and hopefully they’ll be sorted out before the Bill is presented
Gonda: You also mentioned
the issue of media reforms. The MDC formations are saying that media
reforms are needed before elections can be held but what can be
realistically be put in place before elections?
Matyszak: To some extent
it’s not a legal necessity but the new constitution has good
provisions relating to the media which should try and, which should
change this ridiculous situation where the electronic media’s
dominated by one voice in the country – the voice of Zanu
PF. I think we’re the only country in the region which has
this ridiculous situation. The new constitution requires that or
removes government interference to a large extent over the licencing
of radio stations but to try and get a new radio station licenced
and a new Broadcasting Services Act in place prior to the elections
is a virtual impossibility.
Gonda: The state broadcaster,
the ZBC is considered not to be impartial, why can’t there
be reforms at this institution before elections?
Well you would need to get some agreement from Zanu PF to have a
more balanced coverage and of course as far as Zanu PF is concerned
they already give balanced coverage. They do not regard News Hour
as being Zanu PF Hour, which it quite clearly is – so one
gets into subjective territory, which is quite difficult to argue
about – what is and what isn’t biased etcetera. There
are already provisions in place; there were provisions in place
for the 2008
elections for the Zimbabwe Electoral Commission to make sure
that the political parties had equal coverage on ZBC during the
electoral period. Those provisions simply weren’t enforced.
Whether the new ZEC will be able to do that is a matter for some
Gonda: And Zanu PF says
there is only one issue that remains and that is the removal of
sanctions. What are your thoughts on this?
Matyszak: Well I can
never understand this argument of Zanu PF. They keep on saying that
Zimbabwe is under sanctions and then we find that Tomana has issued
proceedings against the EU to remove sanctions against individuals
so I don’t understand what Zanu PF is saying. Is it individuals
that are under a regime of sanctions or is it the country? Because
if it’s the country then that’s certainly not what the
EU and the US state. There’s also no requirement in the GPA
for sanctions to be removed. What the GPA says is that both parties
shall work together to try and lift what they call sanction and
my interpretation of that is that Zanu PF is then obliged to bring
about the conditions which will cause sanctions to be removed and
Zanu PF has singularly failed to do so.
Gonda: But you know the
US government recently removed sanctions on two banks and one of
them is AgriBank and the US ambassador told us that the banks hold
the greatest opportunity to improve the lives of ordinary Zimbabweans
and that they play a vital role in long term investments of the
country. So doesn’t this contradict what they have been saying
– that the firms under sanctions don’t hurt Zimbabwe?
Matyszak: Well nobody’s
yet made any link between the measures introduced by the US and
the UK and EU; nobody’s made any link between those measures
and Zimbabwe’s economic collapse. Nobody has said these measures
caused this financial problem, which caused these industries to
collapse. That link has never been made and I don’t believe
it exists. Certainly what the so-called sanctions regime has done
is that it has created or given the impression that Zimbabwe is
a pariah state. Well Zimbabwe is a pariah state and until it gets
its governance and human rights act together it deserves to be treated
as such so that is where sanctions have had an impact and the way
to solve that problem is for Zimbabwe not to be a pariah state.
Gonda: Are there any
circumstances, which you see, which we might find ourselves having
Matyszak: Certainly I
think it’s quite possible that both Robert Mugabe and Morgan
Tsvangirai would like a GNU II at this juncture. I think both candidates
probably think that they are unelectable at this point and they
would quite like to remain in office through a GNU II. I don’t
see that either of them could sell a GNU to their constituents at
this point in time. However if we have a closely fought election
which happened in 2008 it would make sense that there’s some
sort of power sharing takes place but you would need an election
for each party to determine their bargaining strength in that power
sharing negotiation. So if there’s a GNU to emerge it needs
to emerge probably after an election has taken place.
Gonda: But do they really
need to sell a GNU to the constituents if they didn’t do this
when they formed the coalition government in the first place?
Matyszak: Well they managed
to sell the GNU successfully in 2008, in September 2008. I think
the constituents now realize they were conned and they’re
not likely to be conned so easily a second time round.
Gonda: What will the
people really do about this?
Matyszak: As I said,
I don’t think they could sell the GNU II to their constituents
now; after the election the constituents might see the balance of
power is such that we have no choice other than to do a GNU II but
they would like this GNU II to look very different from GNU I.
Gonda: Thank you very
much Derek Matyszak for talking to us on the programme Hot Seat.
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