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constitution: This referendum apathy suits Mugabe
April 18, 2013
'If I vote yes
in the referendum," an old woman from Gutu in rural Zimbabwe
said to her son, "will that mean that I am saying yes to Robert
Mugabe? And if I vote no, am I voting no to Morgan Tsvangirai?"
In Zimbabwe, the process of voting
on a new constitution cannot be separated from the personalities
that dominate Zimbabwe's politics.
A key component
of the agreement
that brought together Zimbabwe's feuding political parties in a
government in 2008 was a new constitution to be put to the public
vote. On Saturday Zimbabweans had that vote. The state-owned Sunday
Mail, which greets all government initiatives with unbridled enthusiasm,
reported that, "most polling stations recorded high voter turnouts".
As of writing, the count was still going on, but it was clear that
just over 2 million people – less than a third of the 6.6
million registered voters – had taken part. The key feature
of this referendum was voter apathy.
In terms of
this will not matter: only a simple majority is required. But Lovemore
Madhuku of the National
Constitutional Assembly, which has campaigned against the constitution,
argues that a turnout of less than 50% would amount to a rejection
of the constitution. His principled and determined campaign received
little publicity, but it had strong arguments.
There are certainly
some troubling compromises in the constitution. During its first
10 years, if a president died or resigned from office, the party
of that president would choose the new president, meaning that Zimbabwe
could well end up with a president that no one had voted for. A
strengthened constitutional court is weakened by a provision that
in the first 10 years it is to be composed of the current judges
of the discredited Supreme Court. On the charged issue of land ownership,
the constitution falls far short of international norms of non-discrimination.
Compensation for expropriated land will depend on whether land belonged
to someone "indigenous" – a not particularly subtle
code for black.
The no campaign
also objected to the constitution-making process. Politicians promised
it would be "people-driven", but the constitution has
been negotiated only by the parties in parliament. The "people"
have been asked to rubber-stamp the process once only now the politicians
are done with it, and even that rubber-stamping is problematic:
a reported 90,000 copies of the final draft
were printed for the 6.6 million voters – who had less than
four weeks to read it.
There are, however,
strong arguments in the constitution's favour. The most significant
change to the presidency would be the introduction of term limits.
Considering that most Zimbabweans – the under-30s –
have only ever known one leader, this would be a radical change.
also addresses the citizenship woes of the millions of disenfranchised
Zimbabweans born in the country to parents from Malawi, Zambia,
Mozambique and elsewhere who are currently labelled "aliens".
is particularly strong where it puts the aspirations of ordinary
Zimbabweans at the centre of government. A strengthened bill of
rights obliges the state to put the empowerment of women and girls
ahead of regressive cultural practices; makes significant inroads
into the death penalty; forbids all forms of torture; guarantees
freedom of expression and belief; and imposes obligations on the
state to take steps to ensure access to shelter, health education,
food and legal aid.
however, depends on a culture of constitutionalism – of respect
for the constitution and adherence to its terms. The yes vote will
almost certainly pass, and Zimbabwe will get its new constitution,
but a low turnout will suggest that Zimbabweans may be a long way
elections are supposed to follow the referendum. A low turnout in
those elections would be bad news for the Movement for Democratic
Change and the smaller parties who rely on their supporters to go
voluntarily to the polls in large numbers. However, it would be
good news for Zanu-PF, which has always prevailed even when losing
A Zanu-PF win
in the elections will be bad for constitutionalism, as the party
has not hesitated to trample on the constitution when it feels its
power slipping away. The recent arrests of civil society activists
and lawyers attest to this disregard of the rule of law. If Zanu-PF
wins yet again, the constitution that was supposed to be Zimbabwe's
new supreme law may end up being nothing more than another law to
be discarded by Zanu-PF. And the losers will be ordinary Zimbabweans
like my friend's mother in Gutu – let down once again by the
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