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Update on GNU – Bill Watch 29/2009
Veritas
August 27, 2009

Ceremonial Opening of Second Session of Seventh Parliament

Tuesday 1st September

The President will make the customary opening speech to a joint sitting of both Houses, outlining the Government’s legislative agenda for the new session. The Houses will then adjourn for a week before commencing normal business.

Update on Inclusive Government

The inclusive government formed in February has now been in existence for six months. There has been much talk, but much of the promised action seems to be stalled by lack of agreement between the three parties.

Ministerial Review – Ministers spent the weekend of 21st and 22nd August in “retreat” at Nyanga to review progress on the 100-day Action Plan. The Prime Minister admitted that “progress has been disappointingly slow” – he mentioned slow economic growth, continued violations of the rule of law, delays in launching a land audit, and inability to stop the brain drain and revive health and education. A promised report on the review has not yet been released.

Impasses to be discussed with President Zuma – South African President Jacob Zuma, current SADC chairperson, will be on a two-day working visit to Harare arriving late on the 27th and is due to meet the three GPA [the Interparty Political Agreement commonly known as the Global Political Agreement] principals, the President, the Prime Minister and Deputy Prime Minister Mutambara, to discuss problems in the inclusive government ahead of next week’s SADC Summit.

MDC-T has said it will be raising several issues including the unilateral appointments of the Attorney-General and the Reserve Bank Governor after the GPA was signed, Ministerial mandates, the President's refusal to swear in MDC-T’s Senator Roy Bennett as a Deputy Minister; and. the delay in appointing new provincial governors nominated by MDC-T and MDC-M [although party negotiators agreed to a new distribution of these posts at the end of this August, the President is still said to want any change delayed till August 210 when the incumbents’ terms end.]

ZANU-PF has claimed that MDC-T concerns have been satisfactorily resolved already but said it will be raising MDC-T’s failure to condemn the travel ban on ZANU-PF leadership and to persuade the USA to repeal the Zimbabwe Democracy and Economic Recovery Act [ZIDERA], and the fact that external radio stations are still beaming news it disagrees with into Zimbabwe.

6 Month Review of Allocation of Ministerial Portfolios Due – the SADC Summit communiqué of 9th November 2008 specified that there must be a review of the allocation of Ministries in the inclusive government : “(iii) the efficacy of the arrangement referred to in paragraph 2 above, be reviewed after six (6) months by the Parties with the assistance of the guarantors, SADC, AU and the Facilitator”. This was confirmed by the Summit communiqué of 27th January: “(v) the allocation of ministerial portfolios endorsed by the SADC Extraordinary Summit held on November 9, 2008, shall be reviewed six (6) months after the inauguration of the inclusive government.” It is now time for that review. Presumably the parties should already have conducted the review in order to report to next week’s SADC Summit.

Ministerial Responsibilities Still Not Clarified – six months into the inclusive government the country has still not been officially told which Acts of Parliament have been assigned to which Ministers to administer. Normally this is done promptly after changes in Ministry names and responsibilities, by gazetting statutory instruments listing all the Acts assigned to each Minister. The failure to do this has caused confusion; e.g. legally, Electoral Acts and their concomitant regulations still come under the former Ministry of Justice, Legal and Parliamentary Affairs, which no longer exists, and neither the new Ministry of Justice and Legal Affairs nor the new Ministry of Constitutional and Parliamentary Affairs has been given responsibility for their administration.

Upcoming SADC Summit – this will be held in Kinshasa, DRC, from 2nd to 8th September, with Heads of State and Government meeting on the last two days. The agenda has not been finalised, and whether or not Zimbabwe features prominently on the agenda will depend on the outcome of the talks with President Zuma. The SADC chair will pass to the DRC at the Summit.

National Security Council [NSC] – the second meeting of the NSC is due on 31st August. [Its first meeting took place on 30th July. This was several months late, as under the NSC Act, passed as a precondition to the formation of the inclusive government, the Council should have been meeting every month from March onwards]. The NSC was supposed to replace JOC [Joint Operations Command – comprising security chiefs and President Mugabe and close aides] with a body that would include the Prime Minister and other top inclusive government executives. The question is whether JOC is continuing to meet.

National Economic Council [NEC] – the NEC has still not met. Article 3 of the GPA commits the parties to the establishment of this Council, to be composed of Government and private sector representatives.

Land Audit – Article 5.9 of the GPA says there must be a “comprehensive, transparent and non-partisan land audit”. This has not yet taken off, although it was one of the major targets for the “first 100 Day Action Plan” ending August 5th. The Minister of Lands now says he needs more than US$30 million to set up an independent land committee, an inter-ministerial committee composed of permanent secretaries and senior government officials, and provincial and district committees, and that it would take 6 to 9 months if he got the funding. Others have pointed out that land audits already exist, commissioned by the President over the last few years to eliminate multiple land ownership and assess land use, and these should be made public and implemented. Government departments must have records of recent offer letters and an audit of these, taking into account the existing audits, would be neither a lengthy nor a costly business and could be more easily done in an accountable and transparent manner.

Still no law reform as outlined in the GPA – No progress has been seen on promised Bills to reform laws limiting freedoms of expression, assembly and association; without these reforms international aid is unlikely to be forthcoming. Lack of movement to reform indigenisation legislation is seen as hindering foreign direct investment. Uncertainty about the result of the Kimberley process probe and continuing disputes over mining claims and land ownership are also deterrents to investment and economic progress.

Speculation about inclusive government being prolonged for 5 years – this is widespread, the suggestion being that Parliament and the inclusive government will sit out Parliament’s normal 5-year term, ending in 2013. Officially the parties deny this. The GPA says nothing about how long the inclusive government will continue. The only time-frame laid down by the GPA is that stipulated by Article 6 for the production of a new Constitution [and even that could be changed by agreement between the three parties, because Article 6 was not incorporated into the Constitution by Amendment No. 19 – see Bill Watch 6 of 24th February]. There has been a general assumption that the introduction of a new Constitution would necessarily be preceded or closely followed by fresh elections, but the GPA does not tie the parties to this.

Appointment of New Vice-President Not Yet Announced

There has been no appointment of a replacement for Vice-President Msika. [There must be two Vice-Presidents, both nominated by the President and/or ZANU-PF – Constitution, Eighth Schedule, GPA Article 20.1.6(2).]

By-elections

There have been press reports claiming that the three parties to the GPA are negotiating to prolong the 12-month ban on their contesting by-elections against each other. This has been denied by the offices of all the principals to the agreement. The ban is in GPA Article 21, and is due to expire on 15th September, twelve months after the signing of the GPA. There is no constitutional or legal obstacle preventing the parties from extending Article 21 of the GPA if they so wish; it is a matter between them. It is now impossible to hold by-elections before September 15, so if the “truce” is not extended the major parties can contest against each other, together with independents and the other parties. The Government’s failure to call by-elections promptly after vacancies arise is in breach of the Constitution and the Electoral Act.

The number of pending by-elections has risen from 10 to 15. This is because 5 more constituency seats [see under 5 new vacancies below] have fallen vacant in Parliament since Bill Watch Special of 31st July on Current Voting Strengths in Parliament. The seat formerly occupied by the late Vice-President Msika was an appointed seat, so no by-election is required.

5 new vacancies

Of the 5 new vacancies 1 is in the Senate, 4 are in the House of Assembly:

Senate

The Mberengwa seat is vacant, following the death of Senator Richard Hove [ZANU-PF] on 21st August.

House of Assembly

(1) The Emakhandeni-Entumbane seat is vacant, following the death of Cornelius Dube [MDC-T] on 15th August.

(2) On 18th August the Speaker notified the President of three more vacancies in the House of Assembly – Nkayi South, Lupane East and Bulilima East [previously held by Abednico Bhebhe, Njabuliso Mguni and Normal Mpofu]. These vacancies were triggered by MDC-M’s notification to the Speaker that the MPs had been expelled from the party and no longer represented its interests [Constitution, section 41(1)(e)]. [The MPs have announced their intention to appeal to the Supreme Court against the High Court’s dismissal of an urgent application to stop the Speaker from declaring their seats vacant.]

Parliamentarians and the Courts

MPs Arrested for Disorderly Conduct:

On 18th August nine MDC-T MPs were arrested for alleged disorderly conduct at the Ministry of Finance. They were taken to Harare Central police station, but later released. They have been told that if it is decided to prosecute, the State will proceed by way of summons. As yet they have heard no more. This minor offence does carry a maximum sentence of US$200 or 6 months’ imprisonment, if they were to be prosecuted and convicted, but it would be a travesty of the law if the MPs were to receive prison sentences of six months. [A prison sentence of 6 months or more for an MP entails the loss of his or her seat.]

Deputy Minister Mahlangu on trial

The trial of Deputy Minister Thamsanqa Mahlangu [MDC-T, Nkulumane] on a charge of theft of a cell phone is under way at the Harare magistrates court and will continue on 28th August. It would be inconceivable if he were found guilty that a prison sentence of more than six months would be imposed.

Suspended MPs

Judgment has not yet been handed down in the case in which Mathias Mlambo [MDC-T, Chipinge East] has challenged his suspension from the House of Assembly in terms of section 42 of the Constitution, pending his appeal against conviction and the imposition of a prison sentence of more than six months.

Court Challenge to Speaker

Judgment is still pending in the High Court case seeking to declare the election of Lovemore Moyo as Speaker invalid.

Update on Legislation

Acts still to be gazetted – the Finance (No. 2) Bill and the Appropriation (Supplementary) Bill [both passed on 23rd July] have still not been gazetted.

Bills – no new Bills have been gazetted. The Reserve Bank of Zimbabwe Amendment Bill, which was gazetted on 14th August, can be introduced when Parliament resumes.

Statutory Instruments and General Notices – GN 104/2009, gazetted on 21st August, contains Clemency Order No. 1 of 2009. This provides for the unconditional immediate release of several groups of prisoners – excluding anyone serving a sentence for murder, rape or other sexual offences, carjacking, armed robbery, stock theft, or tampering with ZESA power lines and installations. Those benefiting are: all prisoners under 18 and all female prisoners; all prisoners certified as terminally ill; all prisoners in open prisons; and all prisoners serving sentences of 3 years or less who have already completed at least a quarter of their sentences.

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