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II and how to get there
December 21, 2012
One of the erroneous
conclusions to have come from the recent Zanu PF annual people’s
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.
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
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.
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.
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.
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
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.
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.
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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