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2013 elections: Zimbabwe's Ground Hog Day
and Advocacy Unit (RAU)
July 12, 2013
you will, the following pre-election headlines and press clippings:
registration of voters by Zanu-PF (The Zimbabwean of June 14 2008);
now ‘mince-meat’ for Zanu-PF (AFP, February 4 2008);
- Mugabe bends
law to retain power (Sapa-AFP (IOL), April 24 2008);
- Zec admits
voters’ roll ‘in shambles’ (The Standard, March
reveals rigging plot (Zimbabwe Independent, March 27 2008);
- Zim court
turns down opposition (Sapa-AFP (IOL), April 14 2008);
- Zuma calls
for more pressure on Zim (Cape Times (IOL), April 23 2008); and
- Chaos mars
Zanu-PF primary elections in Bulawayo (Zim Online, February 4
- Both MDC
factions have expressed surprise at the announcement (of the election
date). “It’s an act of madness and arrogance,”
Nelson Chamisa, spokesperson for the MDC-T told the AFP news agency.
the moment the conditions in Zimbabwe do not allow for free and
fair elections and so we are heading towards illegitimacy if we
go ahead with the elections …” (Zimbabwe sets March
date for poll, BBC News Online, January 26 2008).
- MDC-T leader
Morgan Tsvangirai said setting the vote date … was illegal,
but “we will contest” (Commission sets Zimbabwe run-off
for June, USA Today Online, May 16 2008).
- The enactment
by President Robert Mugabe of Presidential Powers (Temporary Measures)
(Amendment of the Electoral
Act) Regulations summarises everything that is wrong with
this election in particular and Zimbabwe in general (Mugabe can’t
play God with us, The Standard March 27 2008).
and headlines of this ilk are familiar to anyone keeping track of
the media in the build-up to Zimbabwe’s
July 31 elections. However, all these headlines and clippings
are extracted from press reports relating to the elections of 2008,
and not those of 2013.
Given the current
brouhaha over the recent announcement of the date of the elections
for 2013, claims of unconstitutionality and the (mis)use of the
Powers (Temporary Measures) Act (PPTMA) to amend electoral legislation,
it is worth remembering that Zimbabwe has trodden this path before.
At the beginning
of 2008, then South African president and Sadc facilitator, Thabo
Mbeki, was mediating intense negotiations for democratic reforms
ahead of the elections slated for that year. It was believed by
Mbeki and the MDC formations that the reforms would be implemented
ahead of the elections so that the outcome would not be disputed.
In the midst
of this mediation, on January 25 2008, Mugabe shocked all stakeholders
by suddenly proclaiming
the elections, setting the date as March 29. It was clear that the
agreed reforms could not be in place by then. The announcement,
anticipating the comments made in regard to the proclamation setting
the 2013 election date, drew a furious response from the MDC formations,
with Chamisa referring to the precipitate date as being a “slap
in the face” for Mbeki - somewhat more refined, but similar
in sentiment, to MDC president Welshman Ncube’s infamous comment
that the July 31 date effectively told Sadc to “f” off.
In 2008, the
use of the PPTMA to amend the Electoral Act also evoked controversy.
Regulations promulgated by Mugabe on March 17 2008, purportedly
using the PPTMA, changed the electoral law so as to allow police
officers to be present in polling stations and to “assist”
Only a few months
had amended the Electoral Act to exclude police officers from polling
stations. Mugabe, a contestant in the impending poll then, thus
overrode the explicit intention of parliament and restored a legislative
provision, the removal of which parliament had deemed would enhance
the democratic integrity of the election.
The use of the
PPTMA to amend electoral legislation is unconstitutional. The constitution
then, as now, requires the electoral law to be made by “an
Act of parliament” and not by presidential regulations. An
urgent application in this regard was brought before the High Court
of the 2008 election, challenging the amendment by Mugabe. Justice
Antoinette Guvava avoided dealing with the constitutionality of
this use of the PPTMA. She dismissed the application on technical
and procedural grounds.
In so doing,
the judge replicated the approach of the Supreme Court in 2002,
ahead of the presidential election of that year. Then, Tsvangirai
had likewise challenged as invalid changes made to the Electoral
Act by way of a regulation and not by an Act of parliament as the
Sandura, a lone voice on the bench, agreed. Led by Chief Justice
Godfrey Chidyausiku, the remainder of the bench declined to adjudicate
upon the issue, citing a supposed technicality. Even though Tsvangirai
was a contestant in the election, the majority held that he had
no locus standi - that is that he had no interest in the issue and
thus could not bring the application before the court.
lost the first round of the presidential election in 2008, a flood
of illegalities followed, including the run-off election itself.
The result of the first round was withheld. Using a tortured interpretation
of Section 67A of the Electoral Act, which had not been suggested
by legal counsel, and deploying a series of non-sequiturs, Justice
Tendai Uchena declined to order the release of the results when
an application to compel publication came before him.
of the then Electoral Act required that a run-off election be held
within 21 days of the election, where no contestant achieved an
absolute majority (that is 50% plus one vote). When 21 days came
and went without the run-off, it was argued that “the election”
is not merely the day of voting, but the entire process up to and
including the announcement of the result - so the 21 days, it was
maintained, only commenced once the result was announced.
to May 2013 and the new Constitutional Court (Concourt) orders
that the next election must be held by July 31. The argument that
“an election” means the entire process ending with the
announcement of the result, so vociferously argued in 2008 by the
Minister of Justice, Patrick Chinamasa, and others, is now forgotten.
The meaning of “an election” reverts to being polling
day, as it ought, rather than the entire electoral period. As with
2008, there is an outcry that the date has been set before reforms
are in place.
As with the
2008 presidential run-off, the date set is regarded as unconstitutional
by the MDC parties. The July 31 date allows insufficient time for
the constitutionally required 30-day intensive voter registration
period to be completed. It is uncertain if essential amendments
to the Electoral Act (such as those pertaining to proportional representation)
can pass through parliament in time, as once the election dates
are announced by the president, the new constitution bars any further
changes to the Electoral Act.
says Mugabe. Without warning to, or obtaining the required consent
of cabinet, which he had met but a few hours before, and without
consultation with the Zimbabwe Electoral Commission, as the constitution
requires, Mugabe once more uses the PPMTA to amend the Electoral
Act so that registration is now allowed to continue beyond the sitting
of the Nomination Court, in order that the constitutional requirement
of the 30-day intensive voter registration period can be met. The
amendments also include provisions introducing proportional representation
into the Electoral Act - despite the fact that the new constitution
specifically states that such provisions shall be by way of an “Act
of parliament” and not presidential regulations.
date is set by a proclamation made on the same day as the regulations.
An outcry about the election dates follows. There is an application
to the Concourt about the use of the PPTMA to amend electoral legislation.
The judges hearing the matter include Chidyausiku and Guvava, both
of whom had previously avoided dealing with the question of the
constitutionality of the use of PPTMA in this manner, and Justice
George Chiweshe, whose past judgments as to when elections must
be held always seem to dovetail with presidential preference.
As in 2002 and
2008, the judges dismiss the application. The reasons for the dismissal
are yet to be given. But a betting man will wager that when the
judgment is delivered, we will find that the issue has not been
dealt with and the judges have precluded consideration of the point
on a technical, procedural ground.
Thus, it seems
that all players Mugabe, Zanu-PF, the MDC parties, Western countries,
Sadc, governance NGOs, etc are reciting the lines (though not, apparently,
from memory) written for them in 2008. And this is so, not merely
in relation to the date of the election, the use of the PPTMA, and
reforms. They are dutifully repeated in relation to bias in the
media, the voter registration process, accreditation of observers
and the security sector, allegations of rigging, vicious primary
battles, fissures and multiple candidacies, Zanu-PF’s hubristic
claims of inevitable victory, MDC parties’ despondency, and
party splits and pacts - as a glance at the press headlines of 2008
Only the European
Union has departed slightly from the script, easing restrictive
measures against senior Zanu-PF officials, claiming that this is
a “reward” for what it claims are the changes and progress
in Zimbabwe’s polity.
The next few
months will reveal whether the drama will continue to unfold exactly
as before, with the penultimate act a descent into chaos and brutal
repression following a Mugabe defeat and the denouement of a second
global political agreement.
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