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An analysis of the second Constitutional Select Committee (COPAC)
draft constitution
Election
Resource Centre
August 26, 2012
Introduction
The key role
of citizens in a democracy is participation. However, in Zimbabwe
the culture of democracy is not yet fully embraced, citizens are
not adequately empowered to freely and fully participate in the
decision making process of the government, particularly during electoral
processes. In view of the impending Second All-Stakeholders' Conference,
which will likely be held by the end of August 2012, there is need
for civil society to call for a positive constitutional order that
will usher in participatory, accountable and transparent elections.
According to COPAC officials, the conference is expected to be attended
by 2200 delegates drawn from MPs, representatives of political parties
and civil society groups. The purpose of the conference is to deliberate
and share views
on the outcomes of the recently finalized second draft
constitution. Our hope as ERC is to see the electorates' views represented
in the draft that will finally go through to the referendum.
Constitution
making is a highly political tool; it is the making of an ultimate
law of a country, so it requires great competence and effective
public consultations. The resolved tenets of this Draft Constitution,
outlined in the preamble, are to build a united, just and prosperous
nation, founded on values of transparency, equality, freedom, fairness,
honesty and the dignities of hard work. Therefore, the draft should
reflect the application of these guiding principles.
In preparation
of the all stakeholders' conference, the ERC independently reviewed
the final COPAC draft constitution to see whether it upholds these
principles. This review specifically focused on the sections on
Elections and the Zimbabwe Electoral Commission (ZEC). ERC identified
key aspects of the Kenyan constitution, which is considered to be
one of the most progressive constitutions in Africa, and proffered
legitimate recommendations that will most likely bring solutions
to the constitutional and electoral problems that Zimbabwe is currently
facing. ERC aims to influence electoral policies to ensure that
the general public freely participates in elections and that the
process is transparent, accountable and democratic.
Background
Constitutional
inadequacies, amongst other political challenges, have contributed
to electoral shortcomings in Zimbabwe. Though Zimbabwe is known
to have a generally well written constitution (The Lancaster House
Constitution),
this constitution is, to some extent, flawed because it protects
the interests of specific groups e.g. political parties and/or political
elites. The same can be said about the laws that were born out of
this constitution or its amendments, especially the Electoral
Act of Zimbabwe, which is currently being reviewed. The Electoral
Amendment Bill has passed through parliament and awaits the
President's assent.
The challenges
faced by the Current Constitution (Lancaster House), which has been
amended 19 times, are that it allows for Executive supremacy, that
is, the President has ultimate power to appoint ZEC members from
a list provided by Parliament's Committee on Standing Rules and
Orders (SROC). It also gives excessive precedence to electoral law,
which is inadequate. The constitution does not include voters' rights
and does not guarantee Diaspora votes.
The effects
of constitutional and political deficiencies relating to elections,
by and large, have been the; substandard voters roll, electoral
laws that are inconsistent with democratic principles, minimum voter
turnout and registration, exclusion of Diaspora vote, lack of access
to adequate electoral information, biased and inaccurate media coverage
of elections, political interference in electoral processes, political
violence, and, last but not least, the lack of full independence
of the Zimbabwe Electoral Commission (ZEC).
The COPAC draft
addresses some of the aforementioned challenges. In response to
the inadequate Lancaster House Constitution, a number of alternative
draft constitutions were proposed and these have, in one way or
the other, influenced the outcome of the second draft.
The Constitutional
Commission Draft of 2000, which was led by Justice Godfrey Chidyausiku,
was also known as the Chidyausiku Constitution. It was rejected
at a referendum held in 2000. Just like the COPAC draft, it gives
precedence to the inadequate Electoral laws.
The National
Constitutional Assembly draft was produced
by the NCA after wide public consultation in 2001. The constitution
provides for the inclusion of voters' rights, which are also included
in the COPAC draft under political rights. The draft was an ideal
constitution, but was not politically realistic given the polarized
nature of Zimbabwe's politics.
The Kariba Draft
was formulated through an elitist model, where political elites
from all the political parties represented in the government came
together and drafted the constitution. So, essentially this draft
consists mainly of the preferences of these political elites. Though
written professionally, it did not necessarily meet the needs of
the mass, but rather the prevailing values of the elites. Like the
COPAC draft, the President appoints the ZEC members from a list
provided by Standing Rules and Orders Committee (SROC).
An Analysis
of the COPAC Draft based on the Kenyan Constitution
Though regional
and international instruments may serve as an ideal benchmark for
constitutional and electoral practices, Kenya's constitution is
a practical or closer to home benchmark for Zimbabwe, given that
Kenya and Zimbabwe share a similar political background. Both countries
are former British colonies and have had Lancaster House Constitutions.
Notably, Kenya and Zimbabwe have power sharing governments that
emanated from the contested elections results. Just like Zimbabwe,
Kenya is expected to hold elections in 2013, but luckily for them
they have successfully completed their constitution making process.
The new Kenyan constitution is generally considered as a moderately
legitimate, progressive and adequate constitution in Africa. Though
the COPAC draft constitution borrows some of the issues provided
for in the Kenyan constitution, this draft, however, deliberately
disregarded pertinent issues, which were likely to make the draft
an almost perfect document.
The draft is
generally a compromise between ZANU PF and MDC parties, so its provisions
are vague, contradictory and ambiguous. It gives politicians superfluous
room to manipulate the adherence to the constitution by giving precedence
to the electoral laws which are drafted by legislators who are,
by design, politicians. The Kenyan constitution uses specific and
clear terms and gives the state or commission clear procedures and
timelines on how to administer elections, without using reckless
terms or giving too much room to legislators to use their own discretion,
particularly on highly controversial or sensitive matters. Some
examples are given in the analysis below.
Announcement
of results
Zimbabwe has
vast election experience and is well capacitated to give specific
timelines on electoral processes. For instance, on the announcement
of results, section 7.2 (b) simply states that "the results
of the election or referendum are announced as soon as possible
after the close of the polls". There is no further section
that gives specific timelines for the announcement of results. In
the first COPAC draft, there were sections specifically on the announcement
of results by polling or retuning officers, but these sections seem
to have disappeared. Though the Electoral Bill has detailed provisions
for announcing results, the Constitution should have adequately
addressed this issue. Delayed results give room for election fraud,
so the time specifications are highly necessary because they hold
the ZEC accountable for failure to announce results within the stipulated
time. Given the uproar that tainted the 2008 Presidential elections
over the delay in announcing results, the Constitution is the best
opportunity to address this problem. It should, therefore, state
the exact period within which results should be announced, and the
most practical or reasonable time is within two days of the close
of the polls.
Diaspora
Votes
The constitution
recognizes that every citizen is eligible to vote. Under the Constitution's
Chapter on Citizenship which is being contested by ZANU PF, a citizen
may be a resident or a non- resident by descent, birth or by registration.
However, due to the Constitution's excessive referral to the Electoral
Act, the state, under this Act, may provide limitations to the qualification
of registration by non-resident Zimbabweans. In light of the special
facilities required for the Diaspora to vote and the likely state
limitations alluded to above, the Constitution should give clear
provision for the inclusion and protection of Diaspora vote. This
will, in turn, mean that the Act's provision on the voter registration
eligibility can be challenged in the Constitutional Court, yet another
provision being contested by ZANU PF.
The current
Electoral Act requires proof of residence to register as a voter,
so this, somehow, deprives non-resident citizens of their right
to vote. This issue needs to be carefully challenged at constitutional
level in order to ensure that Diaspora voters' rights are protected.
Dr Alex Magaisa, a senior lecturer at the Kent Law School, in his
interview on
SW Radio Africa (July 23, 2012), rightfully stated that the constitution
"should be interpreted more broadly to say that every citizen
who is eligible to vote should be allowed to vote regardless of
their location". The ERC firmly agrees with this view.
Electoral disputes and violence
The ERC welcomes
the provisions of section 5.6 which allows any aggrieved candidate
to challenge the validity of an election of a President or Vice
-President by lodging a petition or application with the Constitutional
Court within seven days after the date of the declaration of the
election results. This allows for quick redress of election irregularities
and reduces potential for conflict which normal arise when disputes
are allowed to brew. However the same provision gives little room
for aggrieved parties to secure the necessary information and material
to challenge the said election results hence restricting the possibility
of successful petitioning.
The second draft,
however, only calls for petitions from aggrieved candidates, which
implies that candidates are the only election stakeholders who can
challenge an election. As eluded to above, the draft does not explicitly
order parliament to enact legislation for resolving other electoral
dispute. It merely states that the State must take all appropriate
measures, including legislative measures to ensure the timely resolution
of electoral disputes, and that the Electoral Commission must ensure
that, "appropriate systems and mechanisms are put in place-
i)to eliminate electoral violence and other electoral malpractices
ii) to ensure the safe keeping of electoral materials." The
word "appropriate" weakens the supremacy of the Constitution,
but it gives the state full discretion of the degree to which mechanism
should be put in place. With that in mind, the state may simply
go as far as just using non-statutory dispute resolution methods,
which are less effective. The Kenyan constitution explicitly states
that, "Parliament shall enact legislation to establish mechanisms
for timely settling of electoral disputes". The Kenyan constitution
also calls for the filing of any petitions, from anyone, concerning
elections, which should be filed within twenty-eight days after
the declaration of the election results by its Independent Electoral
and Boundaries Commission. Zimbabwe's elections have evidently been
marred by election disputes and conflict and the courts are alleged
to be overwhelmed with electoral matters, hence there have been
delays in resolving issues. A clear call by the constitution to
formulate legislation or legal mechanism to solve electoral disputes
will go a long way to resolve some of the electoral challenges.
The creation of an independent electoral tribunal which is separate
from the judiciary may help resolve election related matters faster
and in a cheaper way. This tribunal should be given constitutional
protection and should hold powers to make ultimate rulings on less
complex electoral cases instead of referring simple matters to the
courts.
ZEC's
involvement in Electoral law making
ERC also welcomes
section 7.3.4 which states that, "No amendments may be made
to the Electoral law, or to any subsidiary legislation made under
that law, unless the Electoral Commission has been consulted and
any recommendations made by the Commission have been duly considered".
ZEC has a critical role to play in reviewing electoral laws given
their vast expertise and knowledge on electoral issues, this may
go a long way in ensuring the enactment of appropriate and well
thought out electoral law.
Voter
registration
Under the functions
of ZEC provided in the Draft Constitution, voter registration is
said to be a function of ZEC while at the same time providing room
for delegation of such a function through the electoral law by mentioning
the option of supervising the voter registration process. Delegating
the voter registration process will compromise the independent management
of elections. At present, voter registration is conducted by ZEC
through the Registrar Offices and this has opened up room for political
manipulation of the process which has led to a "shambolic voters
roll".
Recommendations
to COPAC and Election Policy makers
Given the above,
the ERC proffers the following recommendations;
- The phrasing
of the constitution should be clear, explicit and precise, and
not vague, to avoid political manipulation
- The selection
or appointment of the members of ZEC should not be unilateral
and confined to legislators only; it should involve public consultations
and should be based on merit
- The constitution
should be guided by international and regional standards, principles
and guidelines e.g. SADC, AU and the UN
- The constitution
should explicitly provide for the State or the Electoral commission
to establish legislative measures to resolve election disputes
and conflicts, such as setting up an elections tribunal or an
Electoral Court as provided by the Electoral Amendment Bill
- The constitution
should provide for the clear provision for the diaspora vote
- The constitution
making process should uphold the principles of constitution-making.
Conclusion
Generally, the
COPAC 2nd draft constitution is a progressive document that is a
clear departure from where Zimbabwe was in the last 32 years. ERC
however urges political parties, individual politicians and legislators
to have the political will to address legitimate concerns being
raised by all stakeholders ahead of the 2nd All Stakeholders' Conference
and the Constitutional Referendum.
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