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against time: The need for legal and institutional reforms ahead
of Zimbabwe's elections
Rights Watch (HRW)
January 10, 2013
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2008 the Zimbabwe African National Union-Patriotic Front (ZANU-PF)
and the two factions of the Movement for Democratic Change (MDC)
party agreed to form a powersharing
government, formed officially in February 2009. But over four
years after the Global
Political Agreement (GPA) was signed little progress has been
made on one of the key aspects of the GPA that aimed at preparing
the country for credible, free and fair elections. The legal and
institutional reforms that are expected to address various political,
institutional and human rights issues ahead of the 2013 elections
have either not been introduced or are not being implemented.
unity government, whose partners are anything but united, consisting
of the former ruling ZANU-PF and the two MDC factions has failed
to hold accountable those responsible for past human rights abuses,
including during the 2008
electoral violence. It has also failed to reform key state institutions
responsible for the administration of justice, which remain highly
politicized and extremely partisan towards ZANU-PF.
The main purpose
of the GPA was to establish institutional and legal reforms to create
a conducive environment for the holding of free and fair elections.
The formation of the unity government, however, left longtime President
Robert Mugabe and ZANU-PF - because of their control of key government
ministries including defense, state security and justice - with
significantly greater power than the MDC, which has been used to
frustrate or stop crucial reforms.
On a number of occasions
since the unity government assumed office President Mugabe and Prime
Minister Morgan Tsvangirai of the MDC have issued joint public statements
condemning political violence but with no corresponding action to
dismantle the infrastructure of violence and end impunity.
The GPA, except
in article 20 (the framework for a new government) incorporated
into the constitution
19, has no legal status under the law of Zimbabwe, and as a
result, ZANU-PF has repeatedly undermined the GPA and put off the
implementation of essential reforms. Such reforms include amendments
to repressive laws such as the Access
to Information and Protection of Privacy Act (AIPPA), 2002;
Order and Security Act (POSA), 2007; the Criminal
Law (Codification and Reform) Act, 2004; and the Presidential
Powers (Temporary Measures) Act, 2007, which empowers the president
to enact legislation even during elections.
assesses the legislative and electoral reforms undertaken by the
unity government and analyzes the quality of those reforms and their
capacity to create an environment conducive to credible, free and
fair elections. Human Rights Watch has found that the contending
parties have focused on only one aspect of reforms - securing agreement
on the necessary legal and administrative requirements for free
and fair elections. However, little attention has been paid to the
implementation of the agreed reforms and to securing agreement and
ensuring reforms on areas where agreement has not been reached.
The unity government has neglected the enforcement of various agreements
that would facilitate a rights-respecting environment and the holding
of credible, free, and fair elections.
Mugabe, according to
papers filed with the High Court on September 27, 2012, wants national
elections to be held in March 2013, without prior consultations
with the prime minister as stipulated in the GPA. Nevertheless,
because of the power Mugabe wields, it is a strong indicator that
elections may indeed take place in March 2013.
The timing of national
elections is governed by Zimbabwe's constitution, which provides
that parliament, unless dissolved earlier, shall last for five years,
counting from the day the person elected as president enters into
office. Mugabe was sworn in on June 29, 2008, and the presidential
and parliamentary term of office ends on June 29, 2013, with fresh
elections required to be held no more than four months after that
date. If elections are not held in March as Mugabe has indicated,
the latest they can be held constitutionally is October 29, 2013.
reforms and the enactment of a new
constitution are key but insufficient for free and fair elections.
A level playing field for all political parties also requires robust
enforcement mechanisms that are implemented by independent and non-partisan
institutions, such as the judiciary and electoral commission, that
act to prevent violence, hold accountable perpetrators of abuses,
and ensure equal access to the media by political parties and candidates.
A comprehensive approach to democratic reforms in Zimbabwe requires
laws and regulations consistent with international standards, but
it also requires close attention to the independence and professionalism
of the government institutions and individuals - such as civil servants
- responsible for delivering reforms.
With the unity government
making little progress in several areas, including on key legal
reforms, there are genuine concerns that if elections are held in
March, there will be widespread human rights violations ahead of,
during and after the elections. Such violations will undermine a
credible, free and fair vote. Time is fast running out for the unity
government to institute reforms, including finalizing the new constitution
and allowing time for its provisions to be implemented before elections
The unity government,
supported by the Southern African Development Community (SADC),
should urgently introduce and implement key human rights and institutional
reforms as outlined in the GPA; otherwise it may be far too late
to create an environment conducive to the holding of credible, free
and fair elections. Failure to hold credible elections could result
in an increasing spiral of violence, chaos. and lawlessness.
government should take action to halt the ongoing political chaos
by ensuring a level playing field for all political parties and
the impartial enforcement of laws. Qualified, non-partisan individuals
should be appointed to run governance institutions, including the
Zimbabwe Electoral Commission (ZEC), the judiciary, and the police.
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