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GNU II and how to get there
Tony Reeler
December 21, 2012

http://www.theindependent.co.zw/2012/12/21/gnu-ii-and-how-to-get-there/

One of the erroneous conclusions to have come from the recent Zanu PF annual people’s conference held in Gweru is the notion that there was an end point to the Global Political Agreement (GPA): specifically that there was a two-year limit to the GPA.

As Derek Matyszak has repeatedly pointed out and, as he points out in his recent analysis, the GPA only provides a start date, which is the signing of the GPA on September 15 2008.

So the problem with the Zanu PF position is that the Government of National Unity (GNU) continues as the GPA remains in force. The GPA does not even mention the timing of the next general election and, Matyzsak points out, there is no requirement that either a new constitution or a referendum must take place.

Clearly no-one has been reading his analyses of the GPA over the past two years.

So the big question is: When do the GPA and the GNU end?

They can end whenever any party decides to withdraw from the agreement since the two are tied together. This, however, does not apply to the life of the current parliament which, under the current constitution, should be five years from the date at which the past election took place and the president was sworn into office.

This means that the previous elections were completed after the presidential run-off and the swearing-in of the president by the Chief Justice, June 29 2008. According to the constitution, the next elections shall take place no later than four months after the dissolution of parliament by the president, which means they must be completed by October 29 2013.

The legal analysis provided by Matyzsak makes it evident that the current constitution entitles Zimbabweans to “free, fair and regular elections”, and that presidential and parliamentary elections should take place at the same time. But Schedule 8 of the Constitution - which came from the GPA and was part of Amendment 19 - also provides that the Office of the President “shall continue to be occupied by President Robert Gabriel Mugabe”.

This was stipulation of the GPA. So if the GPA continues in force, there is no point in having presidential elections since the only president can be Robert Mugabe.

So, does the GPA end with elections, or can it continue in spite of elections? It can be assumed that it should end with elections, but this is not stated anywhere. There clearly is a problem here, and Matyzsak points this out and offers a number of solutions.

Firstly parliament, the president’s term of office and the GNU could be extended by a constitutional amendment. This could avoid the need for elections but, as Matyzsak points out, might be challenged as unconstitutional because the right to vote in elections are a fundamental right of citizens under the current constitution.

Hence whilst this may seem a good device for dealing with the current political stalemate, it may be seen as self-serving for the respective political parties. However, it is also evident that many Zimbabwean citizens seem to have little appetite for elections at present, no matter how much they believe in democracy and the power of elections as a basis for democracy.

Assuming that bad elections can be avoided, what kind of constitutional amendment should we have?

One way will be to extend the life of the current government through an amendment, to hold a referendum on the new constitution and, assuming that the constitution is acceptable to the electorate, to use this time to harmonise the relations between the new constitution and the existing laws, with all the implications for reform ahead of future elections. This, of course, could be an exceedingly lengthy process, and it will be crucial to decide in the amendment to the constitution which will be the necessary reforms. But it will have to end in an election.

Another approach could be to agree that there is deadlock, and to agree upon a new “interim” constitution. This is an approach that has been suggested by others previously, and was the approach successfully adopted by South Africa in the lead up to its independent elections in 1994. The critical aspect of this solution will lie in the nature of the agreement over the nature of this interim instrument as well as the time frame for the life of the arrangement, and what reforms must take place during the life of the transition. Again this arrangement will have to end in an election.

The key issue in the interim before elections with either of the above two approaches are the reforms oft-mentioned by Sadc and, critically, which reforms will be necessary to providing the conditions for elections acceptable to Zimbabweans, Sadc, and the international community at large.

As has been argued before by the Research and Advocacy Unit, there needs to be realism in what will constitute “minimum conditions”, for the reforms necessary for full democracy may not be essential to the holding of credible elections.

For example, ensuring that the security forces are wholly under civilian control is a much shorter process than trying to deal with the reform of the army, the police and the intelligence services.

Again, ensuring the media are open is more easily done through agreements about the governance of the state media and similar bodies than allowing the setting up of independent radio and television stations: hate speech and misinformation can be controlled more easily by regulation than by allowing competing sources of propaganda.

Thus, the key issue for short-term stability is the question of what will be the nature of the interim constitution, and here Zimbabwe might take a lesson from South Africa and the processes that led up the elections in 1994. The quality of the elections will depend on the quality of the transition rather than the obverse: bad processes rarely lead to good outcomes.

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