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Analysis of election-related provisions of the COPAC draft Constitution
Zimbabwe Election Support Network
October 05, 2012

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Executive Summary

A constitution is the bedrock to democracy. However Constitution Building is a process and not an event. The Lancaster House Constitution was the first supreme law of the land. This Constitution was drafted in Lancaster as a cease-fire and transitional document. This Constitution to date has been amended 19 times in 32 years. Ownership of the constitution is a problem, as this constitution is not home grown and people driven. Zimbabweans have always had a quest to have what is termed a people driven constitution with the aspirations and needs of the citizens, including how they desire to be governed. The lack of a constitutional blue print resulted in the formation of the National Constitutional Assembly (NCA) a pressure group whose goal is to ensure that the country has a constitution crafted by the people for the people.

In response to pressure from civil society and the growing need for democratic processes and democracy, the President appointed a 400 member Constitutional Commission led by Justice Chidyausiku in 1999 to come up with a Constitution. However the proposed constitution was rejected in a Constitutional Referendum in the year 2000. The No vote however did not stop the clamor for a new constitution. The NCA soldiered on with this quest and produced the NCA draft Constitution. In 2007 the three political parties (ZANU PF, MDC-T, MDC) met in Kariba and came up with what is termed the Kariba Draft Constitution. The Kariba Draft Constitution was never adopted as the Supreme Law of the Land. The Global Political Agreement (GPA), which resulted in the formation of an Inclusive Government in February 2009, in Article VI outlined stages to draft a new constitution. This critical process has a number of stages which are outlined and these should be adhered to. The stages include, selection of a Constitutional Parliamentary Select Committee, first stakeholders conference, public outreach to collect views from the citizens, data analysis, drafting, second stakeholders conference, Referendum and adoption of the Constitution. To date this process has reached the drafting stage, though there are hiccups and disagreements on certain issues by the political parties. Two working draft constitutions have already been published in the Herald, the first one in February and the second one in May 2012.

The Zimbabwe Election Support Network (ZESN) is guided by the main goal of promoting democratic elections in Zimbabwe. The organisation was part of ZZZCOMP an initiative which brought together Zimbabwe Lawyers for Human Rights (ZLHR), Zimbabwe Peace Project (ZPP) and ZESN to monitor the outreach process. From the outset ZESN has had an interest in the Constitution Reform Process to ensure that the supreme law will promote free, fair and democratic elections. During the outreach phase, ZESN conducted public outreach activities to inform citizens about the various options available on Electoral Systems, Election Management Bodies and Systems of Governance. The organisation also wrote various position papers on the above matters. ZESN was coming from a position were problems of representation of minority groups, wastage of results and violence had been witnessed because of the electoral system utilized in Zimbabwe which is First Past the Post (FPTP). ZESN was also lobbying for an independent Election Management Body which would report to Parliament and not the current case were ZEC reports to the Minister, an executive branch.

A whole plethora of reforms is needed to conduct free and fair elections. The organisation has been lobbying for an environment that is conducive, where fundamental freedoms of association, assembly, speech and movement are upheld and protected. The Analysis of the Constitution will look at the following aspects:

• The Bill of Rights
• The Executive- Election of the president, challenge to presidential election, assumption of office by President-elect, term of office of the President
• Executive Functions (Separation of Powers)
• Electoral Systems
• Delimitation of Constituencies
• Timing of Elections
• The Electoral Commission
• Commencement of the Constitution and Transitional Mechanisms

This analysis is meant to inform citizens about the provisions relating to elections in the working draft Constitution and to what extent they promote credible elections.

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