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  • New Constitution-making process - Index of articles

  • The broader implications of the NCA vs President Mugabe court case ruling
    Terence Chimhavi
    March 04, 2013

    The recent ruling by Judge President George Chiweshe in the high court case between the NCA and President Mugabe is a serious signal to the political environment obtaining in Zimbabwe and is a major pointer to the likely scenario that will prevail not only during the course of the referendum but also during the likely elections which the political leaders want to hoist onto the people of Zimbabwe at all costs.

    Part of Justice Chiweshe-s ruling read: "These provisions are clear and unambiguous. I am convinced that the powers given to the first respondent [President] by section 3 of the Referendums Act, being wide, discretionary and unfettered, fall into the category of those powers under section 31, wherein the first respondent [President] is required to act on his own deliberate judgment. That being the case, I conclude that the content of the first respondent [President], in setting the date of the referendum and the time within which voters may cast their vote, is not subject to review by a court.-- Put simply, the law of Zimbabwe says the executive president of Zimbabwe is not answerable to any individual or institution of our state for anything he may say or do.

    Now, considering the fact that our country is fast moving towards two important national processes, namely the referendum and elections, the ruling is a pointer that cannot be ignored in as far as its significance to the likely environment that will prevail during the conduct of both processes is concerned. The merits of the NCA case are clear, as it is already apparent on the ground that the efforts of various stakeholders including Copac and some civic society organizations to get the draft to the people, and allow them ample time to deliberate on and discuss the draft so that they make an informed decision is simply not enough. It seems that the political parties in government are prepared to ignore the credibility of the referendum only because they find themselves on the same side of the coin, in campaigning for the adoption of the draft. In so doing, they may just be setting a dangerous precedent that will surely dent the credibility of the elections as well.

    The Referendum-s Act clearly suggests that a referendum in Zimbabwe is treated as a general election and as such all sides, in this case the YES and NO sides ought to be given fair and equal treatment. After all, that is the whole essence of attaching a choice to the whole equation, YES or NO. Furthermore, it is a fundamental tenet of the conduct of a democratic, free and fair, credible election. What it then means is that, contrary to the scenario we are currently witnessing, both sides should enjoy the same obligations of the state such as access to the state media and resources to campaign for their positions. They should enjoy the same status of being able to go into the communities and campaign for their positions. Currently, it is only Copac and those accredited to it that can go into the communities and meet the people, without having to notify the police as prescribed under the obnoxious POSA.

    What is clear from the current scenario is that the electoral playing field remains skewed in favour of Zanu PF, and this is worrisome and seems to suggest that other reforms outside the completion of the constitutional reform exercise, agreed to in elections roadmap will not be adequately addressed to ensure that both the referendum and elections are credible, as they are conducted in an environment that is not free and fair to all contesting sides. That the two MDC formations find themselves on the same side with Zanu PF on the constitutional reform exercise and in pushing for the adoption of their draft constitution at the referendum does not diminish the fact that the referendum ought to be a credible process. Even in their perceived minority, all those that are opposed to this draft are still Zimbabweans and they deserve their right to air their position and campaign for the same. The MDC formations should not be too comfortable with this uneasy arrangement simply because they seem to be enjoying the unfettered freedoms that Zanu PF has kept to itself all along. After all, with this environment prevailing, they will run to the same courts to seek the same justice that the NCA is seeking, come election time.

    While it remains to be seen whether the ensuing two weeks to March 16 will see any change in terms of the electoral playing field, it needs no over-emphasis to assert that the environment that will prevail during the course of the referendum is the likely environment that will prevail during the conduct of elections, simply because it favours Zanu PF. I was really shocked listening to Hon. Douglas Mwonzora from Copac asserting at a public meeting that as the MDC they were 'thrilled- by Justice Chiweshe-s ruling. Surprisingly, the ruling clearly goes against the same electoral reforms that the MDCs are pushing for. Had they received proper advice, they should have been the first to question this ruling, which clearly puts them in danger of supporting the skewing of the electoral playing field ahead of the referendum and possible elections.

    In addition, and from another important angle, the ruling seems to buttress the reservations that many people have come to have with the constitutional provision for an executive presidency. The ruling by Justice Chiweshe that the executive president-s decisions cannot be questioned highlights the powers of an executive president, and it clearly confirms the long-held trepidation for the executive presidency, which position they unwittingly retain in the Copac draft under section 89. For as long as they remain silent in the face of such wanton bias, they will be complicit in creating an unequal playing field in the contest that they are agitating for, and rest assured, this is the same treatment they shall get come election time. That is why all right-thinking Zimbabweans should take this ruling by Justice George Chiweshe as an indicator of the times that lie ahead as we approach the referendum and elections in Zimbabwe.

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