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The case for a democratic constitution
Wilfred Mhanda
April 08, 2005

http://www.theindependent.co.zw/news/2005/April/Friday8/2042.html

THE 2005 parliamentary elections have come and gone. Whether they were rigged or "free and fair" is neither here nor there.

It is as immaterial that Zanu PF won the election as it is that the Movement for Democratic Change (MDC) lost the election. The material outcome of that election is that Zimbabwe as a country and its inhabitants were the biggest losers.

Where a democratic dispensation does not obtain, the will of the people will not prevail. Those political parties that participated in this election including Zanu PF and the MDC were taking people for a ride and hoping to salvage the most from the political charade.

Zanu PF is now claiming to have garnered a two-thirds majority in the election. This is being deliberately disingenuous. The party by fair means or foul got 78 seats in an elective parliament of 120 seats. Simple arithmetic clearly shows that 78 is less than two-thirds of 120, which is 80 seats.

To claim a two-thirds popular mandate is therefore tantamount to no less than political fraud and electoral rape. Zanu PF’s claim of the two-thirds majority is based on borrowing two or three seats from the 30 seats appointed by the president without an electoral mandate.

This may be legal in terms of the present constitution but it remains undemocratic all the same. It is doubtful whether the spirit of the constitution ascribes the 30 seats appointed by the president to a given political party. If that were the case it would only serve to underline the deficiency, unsuitability and undesirability of the present constitution. In technical terms, those appointed members should be nothing more than alternate MPs with restricted voting rights.

If Zanu PF is as popular as it claims, then it should have won the two-thirds majority from the contested seats.

If they hold that the elections were free and fair, then they should accept

the people’s verdict which denied them the two-thirds majority as their free expression. To act otherwise would be to flout the will of the people and behave like bad losers. The claim of a two-thirds majority therefore does not pass the test of legitimacy based on either consent or the popular will of the electorate.

Zanu PF will obviously argue that their claim is based on the provisions of the current constitution. But was that constitution ever subjected to the electorate to confer legitimacy on it? Is it the will of the electorate that the president arrogates to himself the equivalent of one third of the power of the electorate to appoint MPs of his choice? What brand of democracy would that be?

Fair and fine, even the devil himself and the numerous tin-pot dictators may have their own "constitutions" and their brand of the rule of law but the bottom line for a truly democratic constitution is the involvement of the populace in crafting the constitution — a people- driven constitution as opposed to an imposed one.

We may have whatever constitution but it has to pass the legitimacy test. If it does not, then it cannot be democratic. Dictators like Saddam Hussein used to boast of over 95% popular support in elections but that was not a true reflection of the will of the people of Iraq.

The same applies to the former communist regimes in Eastern Europe that used to invariably lay claim to electoral victories in excess of 90% of the ‘electorate’. But when the people finally spoke as they will inevitably do in Zimbabwe, those huge majorities vanished into thin air!

Zimbabwe’s electorate, according to the voters roll used for the March 2005 General Election, comprises approximately 5,7 million registered voters. It is common cause that inclusive in this roll are over three million Zimbabweans in the diaspora who are either economic or political refugees. This clearly represents almost 50% of the registered voters by any means of calculation. What sort of legitimacy can Mugabe claim, which is based on less than 50% of the electorate?

When this reality is taken into account, Zanu PF’s 78 seats translate to less than a 33% electoral mandate which is a far cry from the two thirds they claim to have secured. What sort of democracy would justify a political party or an individual for that matter to claim the right to change a people’s destiny by tampering with the constitution on the basis of less than 33% electoral support? Are we talking of genuine democracy? This is democracy — Zanu PF style, characterised by the chastisement of more than 60% of the provincial chairpersons for daring to think differently. Just as President Mugabe correctly maintains that the West does not have a monopoly of democratic values, neither does he or his political party hold that monopoly. Democracy, whether in the West or in Zimbabwe, should be characterised by the unfettered expression of the will of the electorate which was obviously not the case in the just- ended election.

If Zimbabweans in the diaspora are not qualified to vote, why on earth should their names be retained on the voters roll? Would it not make sense to compile a voters roll of only those citizens of voting age resident in the country? Can the Zanu PF government claim to represent people, whose names are on the voters roll but are denied the right to vote? Is there consent from the disenfranchised people for Zanu PF to purport to act on their behalf when the party talks of the will of the electorate? Those political parties that participated in the elections should respond to these very pertinent democratic questions.

It is plain to all Zimbabweans that the result of this election will not bring respite to the country and its suffering people. How long are Zimbabweans prepared to wallow in poverty at the whims of undemocratic leaders and political parties? Zimbabwe does not belong to President Mugabe or his political party for that matter. If that were the case why would they bother calling elections at all? If they call those elections then it is incumbent upon them to respect the will of the electorate even if it denies them the two thirds majority. Otherwise they become guilty of being bad losers!

Just as Zanu PF had a legitimate right to advocate land reform (never mind the implementation and outcome and the corruption associated with it!) to correct historically engendered inequities, the people of Zimbabwe have an even greater legitimate and sovereign right to demand constitutional reform to correct the democratic inadequacies and deficiencies that have plagued Zimbabwe since Independence in 1980.

The people-driven constitution should serve as a contract between those who wield power in the name of the people on the one hand and the people themselves on the other as the custodians of the power and the right to be governed well. Democracy can never prevail in the absence of such a political and social contract that confers legitimacy on a political dispensation. The people of Zimbabwe have never had such a contract. The British-imposed Lancaster House Constitution cannot by any stretch of imagination be considered to be such a contract.

To argue about free and fair elections and their outcome in the absence of a homegrown national contract is at best to miss the point of the true meaning of democracy and at worst an unscrupulous and irresponsible attempt to usurp the people’s sovereign right to demand accountability of those who govern them on their behalf.

*Wilfred Mhanda is the Chairman of the Zimbabwe Liberators Platform.

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