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Rebutting Ncube: The agreed rules gave Tsvangirai the Presidency, & Mugabe a run-off
Sheila Jarvis
August 24, 2008

View article on The Zimbabwean website

The rules

In a Zimonline interview on 20 August, a former MP & now lead negotiator for MDC-M, Prof Ncube correctly said "You can-t remake the rules after the game".

He added: "The game was that you had more than two players. One of the players had to get 50 + 1 percent for power to move to him".

If intended as a statement of law, this is directly contradicted by the Electoral Act, Ch 2:13, subparagraph 3(1) of the Second Schedule, which states as follows:

Determination, declaration and notification of result of Presidential poll

3.(1) . . . after the number of votes received by each candidate as shown in each constituency return has been added together in terms of subparagraph (3) of paragraph 2, the Chief Elections Officer shall forthwith declare the candidate who has received—

(a) where there are two candidates, the greater number of votes;

(b) where there are more than two candidates, the greatest number of votes; to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration.

Paragraph (b) is explicit. It deals PRECISELY with the situation Prof talks of, and it details what had to happen in the election of 29 March with its 4 candidates.

The run-off requirement is a separate rule in the Electoral Law - unchanged from before our first election of a President in 1990. The Second Schedule is a newer rule, added by ZANU-PF unilaterally, signed into law by RG Mugabe in 2005.

While others may disregard this rule from ignorance or interest, Prof Ncube is surely aware of it, not just as a Professor of Law, but also as one of negotiators who reviewed our electoral laws last year for this year-s elections. Paragraph 3(1) was endorsed then by all the negotiators, and by all the parties in Parliament, [the same parties engaged in the current talks], as they added another rule:

' "election period" or "period of an election" means—

(a) in the case of a Presidential election, the period between the calling of the election and the declaration of the result of the poll in terms of paragraph 3(1) of the Second Schedule-

The Electoral Law obliges a player to get over 50% in the first election only to avoid a run-off. To take over power, she or he just needs to come first.

The law is clearly sensible. Zimbabwe-s President has nearly unchecked powers. The introduction of Paragraph 3(1) ensured a trailing candidate could never hold those powers while contesting a run-off. Events since March have confirmed the dangers in that, and the wisdom in the law that should have prevented those.

Perhaps our legislators never planned to be so wise, but their words actually are, and can not be disregarded now just because they are inconvenient to some.

Their consequences

March 29-s official results put Tsvangirai well ahead, and Mugabe second.

All executive power rests still here with the President, at Mugabe & his backers- insistence. Tsvangirai became entitled to have all that power transferred to him.

Mugabe became entitled to a run-off.

Voters too had a right to rely on the rules the parties had agreed and published. Under those, they spoke clearly enough to "move the power", although without the cohesion needed to spare themselves a run-off.

They were entitled to have the leading candidate, not the chasing one, in charge of the nation, responsible for protecting their rights, while the second election was held.

Many agonies would have been spared, public threats made meaningless.

The agreed definition of the period of an election also leaves the March election unfinished, incomplete, as the prescribed declaration has not yet been made.

Once that is made, the run-off rule will require a second election within 21 days.

A second election is separate, to be held in the prescribed time AFTER the first. The countdown for it cannot start before the first election is duly completed.

The will of the people as expressed in free and fair elections is accepted in local and international law as the only legitimate basis for government. SADC and the international community agreed the June 27 'election- was neither free nor fair.

Thus it can give no legitimacy for Mugabe to govern in future under international or local rules. June 27 is a legal & diplomatic nothingness in any case.

This doesn-t mean there-s a vacuum: there-s a new President-elect until a run-off

What Tsvangirai lacks is not a RULE that would let him take power based on his March results.

What he lacks is some AUTHORITY willing to tell Mugabe that, having agreed to Paragraph 3(1) in 2005 and confirmed it in 2007, he must abide by it in full, and give way to the leading runner from March 29 pending the run-off.

In 8 years of trying, MDC has not found such relief through local courts while Mugabe, his appointees and supporters have repeatedly broken all the rules.

SADC, AU, UN should be that necessary authority. They should be willing to tell Mugabe and his government to abide by the rules they enacted, as each of them and each Member State have promised to uphold the rule of law.

Mugabe, reluctant to step down for years, notoriously said this year "ONLY GOD CAN REMOVE ME", then threatened war if voters tried to do so again. While the AU rejects impunity and political assassination, Mugabe it seems has come to depend upon them. Until his powers are checked, problems will continue.

There is nothing offensive in the laws I-ve outlined, no reason for these bodies not to insist that our de facto government fully comply with its own rules, and no reason to fail to recognize that Tsvangirai became a President-elect under those.

SADC, AU, UN etc can surely also ensure that a run-off election held while that candidate holds Zimbabwe-s reins of power is free and fair for both contestants.

The will of the people will then have decided the interim and final President.

The principles of democracy and the rule of law will have been saved.

If the run-off is combined with a referendum on an transitional constitution finally providing Zimbabweans with a full bill of rights, progress can be made while their will is respected on that issue too.

The alternatives

Although Tsvangirai was entitled to a transfer of power [based on his own votes, not his number of MPs], effort is being made to reach a settlement instead.

There are pragmatic reasons to try to avoid another election: Zimbabweans have endured 8 national polls in the last 8 years. The human, social and financial costs have been high. Few really want another winner-take-all contest now.

Thus talks - to seek another way forward, still based on the people-s free will.

Failing such a settlement, insisting on abiding by our law will be the only way to avoid a vacuum that must otherwise exist. Without a new agreement, requiring parties to abide by the rules they agreed on earlier will be SADC-s only option.

From reports & communiques it seems SADC does not yet plan to insist on this, maybe from ignorance of our rules, maybe for other undisclosed reasons.

It does not matter what its reasons are.

Having already recognised that June 27 did not represent the people-s free will, SADC cannot recognize any President or government founded upon that vote.

Professor Ncube, and the Mediator, must know that.

Mugabe can get any future legitimacy only from the people, via a free & fair run-off election duly held now in accordance our laws - or else indirectly under the 18th Amendment, should he be elected by MPs seen as legitimately elected.

Thus the relentless pressure now on Tsvangirai to give legitimacy to Mugabe - despite Mugabe-s public rejection of democracy & breaches of prior agreements.

If the [secret] deal on the table is the limit of 'what is practicable- for Tsvangirai but is unacceptable, it does not cure SADC-s problem - how can SADC or AU recognize Mugabe, without him having a legitimate basis now to rule?

He remains a residual President only while talks are held; and risks an AU admission that he is violating its Lome Declaration against Unconstitutional Changes of Government.

Conclusion

As a lawyer and accredited observer I have felt obliged to draw attention to the rules that the Professor and his political party, and Mugabe and his political party, endorsed before the games, and to the obvious breaking of those same rules.

To accuse Tsvangirai of wanting to change these rules after the game is unjust.

It is Mugabe & Co who did so, after they agreed to Paragraph 3(1), etc.

I don-t know if the Prof-s motive for ignoring these rules is his reported intense dislike of Tsvangirai; or a hope of sharing now in the absolute power that Mugabe failed to transfer under Paragraph 3(1) after the people-s votes in March were counted and recounted; or some other motive.

Whatever the reasons, I advise caution.

There is little reason to agree on anything new when previous agreements brokered by SADC have been broken with impunity; little point in relying now on a SADC-AU promise to underwrite and guarantee a "Global Political Agreement" if their Treaty promises to uphold the rule of law, democracy & human rights are being broken. Why keep making agreements if these can be dishonoured?

Think of a single key Memorandum of Understanding promise: humanitarian and welfare organisations would be able to give all assistance required in the interim.

Has it been kept? Or, in a repeat of gukurahundi, are Mugabe & Co still trying to starve the people into submission instead, while SADC remains silent?

At least with broken Treaty promises there is a chance that the SADC Tribunal, our new "house of justice" for the region set up to enforce the SADC Treaty, might be willing and able to help ensure these are fully carried out.

Any political deal not firmly based on the Treaty promises offers no such hope.

Finally, anyone tempted to sign an agreement with Mugabe must bear in mind his prior [and very public] warning: how can a ballpoint pen fight a gun?

Why sign anything, if he will still control all the guns?

*The author is a senior legal practitioner in practice in Harare, and board member of Zimbabwe Lawyers for Human Rights, with extensive experience in Zimbabwe-s election laws

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