By Alex Bell
05 October 2012
There are renewed fears that an upcoming conference on the draft
constitution will be marred by violence and chaos, with analysts warning
that ZANU PF could hijack the process.
The 2nd All Stakeholders Conference is set to take place at the Harare
Sheraton from October 21 – 23 following an agreement by the principals in
government that the meeting go ahead.
The conference was in doubt with ZANU PF strongly resisting the draft
constitution forwarded by the parliamentary group responsible for a new
charter. The COPAC draft has faced serious criticism from other quarters as
well, with analysts warning it is a negotiated document that does not
properly reflect the will of the people.
The constitution making process was meant to be a people-driven one, as
instructed by the terms of the Global Political Agreement (GPA). But as
constitution analyst Blessing Vava told SW Radio Africa on Friday, the
process has been a political one.
“The political differences are such that nothing much will come from this
conference. In fact, there will be the same violence and chaos we saw during
the first All Stakeholders meeting,” Vava warned.
That meeting in 2009 was violence after it was interrupted by ZANU PF
aligned groups. The meeting only proceeded after the principals in
Vava said the inclusion of civil society groups in the October conference
could potentially see ZANU PF gangs like Chipangano being brought in to push
the party agenda. COPAC has said it will be inviting civic groups to
participate in the conference, but Vava said this could be a problem.
“ZANU PF is going to invite its civil society groups that have its agenda in
mind, and so will the MDCs. So the civil society groups will be a reflection
of the three political parties,” Vava said.
South African President Jacob Zuma says it will be disastrous for Zimbabwe
to hold general elections without sweeping political and electoral reforms.
President Zuma, who is the Southern African Development Community (SADC)
mediator in Harare, said failure to draft a new constitution and introduce
necessary reforms will lead to a repeat of the 2008 presidential election
violence which led to the death of more than 200 members of the Movement for
Democratic Change (MDC).
The election violence was allegedly perpetrated by President Robert Mugabe’s
Zanu PF party and so-called war veterans of the 1970s liberation war.
The independent NewsDay newspaper reported that President Zuma, who was
speaking on eTV’s Africa 360 program Wednesday, said the three political
parties in Zimbabwe’s shaky unity government together with SADC should map
the way forward in creating a conducive environment for holding free and
The 2008 presidential poll was described by most observers as a sham after
the Zimbabwe Electoral Commission failed to announce the results for almost
Zimbabwe is expected to hold general elections next year and the two MDC
formations have been calling for extensive reforms ahead of the vote.
Independent political analyst Dewa Mavhinga told reporter Jonga Kandemiiri
more needs to be done by Harare to ensure the polls are held in a violent
free environment, including arresting and prosecuting perpetrators of
The constitution-making process is still mired in controversy as the ruling
parties continue fighting over the contents of the draft constitution
compiled by a parliamentary committee.
An all-stakeholders constitutional conference to publicly discuss the draft
document is slated for the end of this month.
The two formations of the Movement for Democratic Change (MDC) have endorsed
the draft which dilutes the powers of the president and embraces devolution,
among other issues.
President Robert Mugabe’s party has rejected some of these provisions and
compiled its own document which trashes most of its contents.
The MDCs have rejected the Zanu PF proposals saying the draft constitution
adopted by the parties is no longer negotiable.
By Tererai Karimakwenda
05 October 2012
Zimbabwe’s Minister for Higher Education and veteran ZANU PF politician,
Stan Mudenge, is reported to have collapsed and died just before giving a
speech on Thursday.
According to reports on State run ZBC radio, the 71 year old Mudenge was in
Masvingo where he was the keynote speaker at the 39th Southern African
Society for Education Conference.
Mudenge will most be remembered as an academic, having lectured in history
at several universities in Africa. He also authored history books on ancient
African civilizations, which were used as textbooks after independence in
Zimbabwe. He also served as chief diplomat at the United Nations.
Mudenge was detained at Gonakudzingwa for a year after being arrested for
protesting against UDI in 1966. He studied in the UK after his release and
lectured in several African countries before joining ZANU in 1977.
The veteran politician held several posts within government after
independence, including being permanent secretary for Foreign Affairs in
1980, Minister of Higher Education between 1992 and 1995, Minister of
Foreign Affairs until 2005 and Higher and Tertiary Education Minister at the
time of his death.
SW Radio Africa correspondent Simon Muchemwa said Mudenge was known as a
quiet man who did not divulge much information to the press at public
events. Many people reacted to his academic achievements, considering him to
According to Muchemwa, not much of Mudenge’s personal life has been revealed
by the press, including the state run media outlets. It is known that
Mudenge’s first wife died some years ago and he married again, this time to
a much younger woman who was kept out of the spotlight.
Muchemwa said given his political involvement from the early days of ZANU,
he will most likely be declared a liberation hero and be buried him at the
National shrine in Harare.
By Tererai Karimakwenda
05 October 2012
The unions representing teachers in Zimbabwe had nothing to celebrate during
Teachers Day on Friday, with civil servants planning to strike next week
over wage increases they are demanding from government.
David Dzatsunga, the new president of the Apex Council that represents the
majority of government workers, told SW Radio Africa that a decision on
whether to strike would be made on Monday after a crucial meeting with its
Civil servants have been striking on and off for years demanding wage
increases from government. They were promised salary raises that never
materialized and have continued negotiating. But those negotiations were
recently suspended after new leadership took over the Apex Council.
“The Minister of Public Service, who is the face of government with whom we
interface, has not actually endorsed our new list of negotiators, alleging
that there is a wrangle in the Apex Council. She won’t even talk to us. So
we don’t know when we start negotiating,” Dzatsunga explained.
He added that the Public Service Minister suspended negotiations as a delay
tactic because government does not know what to do. Finance Minister Tendai
Biti has insisted that there are no funds for wage increases in the
treasury, an assertion dismissed by the Apex Council.
“There is a lot of conspicuous spending in government. Delegations go on
international trips and lots of money is gobbled up by that. At the end of
the day, bureaucrats in government are living large. And it is quite clear
resources are being spent by just a few people in upper echelons of power,”
He blasted the Finance Minister for staying in a government that does not
account to him for funds being made from the sale of diamonds from the
Civil servants are demanding salaries equivalent to the country’s poverty
datum line, which is currently pegged $600 per month. Dzatsunga said they
will on Monday whether a strike is the best way forward.
By Alex Bell
05 October 2012
The Zimbabwe Conservation Task Force has blamed the recent deaths of a
number of elephants and rhinos in the country’s main national park on a “man
At least 19 elephants and two rhinos have reportedly died of thirst in the
Hwange National Park, and there are warnings more animals will suffer the
same fate in the coming hot and dry months.
Parks authorities have said it does not have the money to maintain water
pumps that are meant to supply water to Hwange’s wildlife.
Caroline Washaya-Moyo, for the state-run parks and wildlife management
authority, is quoted as saying it was facing “serious financial challenges”
and blamed ‘accelerated evaporation rates’ for the water shortages.
The Conservation Task Force’s Johnny Rodrigues, has said the situation
cannot be blamed on the weather.
“It’s a man-made disaster. You can’t blame the animals and you can’t
blame drought. It’s poor management and lack of foresight. We can expect a
lot of deaths,” Rodrigues said.
More than 100 elephants reportedly died in similar conditions last November.
By Alex Bell
05 October 2012
Zimbabwe’s new US Ambassador has promised to help the country become truly
democratic, vowing to use his time as Ambassador towards this end.
Ambassador David Bruce Wharton was sworn in on September 10th and arrived in
Zimbabwe this week. He said in a video message that he is deeply honoured to
be appointed to Zimbabwe by US President Barack Obama and is very excited at
the prospect of returning to a country where he and his family lived and
worked a decade ago.
“My family and I lived, worked and learned in Zimbabwe a decade ago, and
returning would be a new stage in our lives. We are excited with this
opportunity to work with all of you again,” the Ambassador said.
Wharton spoke of a common heritage shared between Zimbabwe and the US ,
saying: “Americans and Zimbabweans have so much in common: family, faith,
hard work and love of the land which sustains our countries’ shared
The envoy also added that Zimbabwe should build strong institutions that
“We all deserve it (justice) and we all need strong institutions to defend
and administer it. Nations prosper when all people are equal before the law.
Zimbabweans and Americans have both fought for justice, know how important
it is and know that it requires constant nurturing,” Wharton said.
He added: “I will work to enable Zimbabwe to become a just, prosperous and
democratic state that meets the needs of its people, contributes to
development in the region, and plays an important role in world affairs.”
Staff Reporter 8 hours 46 minutes ago
HARARE - Zimbabwe National Liberation War Veterans’ Association president
Jabulani Sibanda has distanced his association from the demonstrations
staged against Finance Minister Tendai Biti on Tuesday.
Sibanda said the demonstrations were carried out by a group of “confused
“I am surprised that they claimed they were under my leadership,” he said.
“This is a misdirected move being carried out by confused people because we
are not even aware of that.
“They are just people who are seeking cheap publicity because their actions
show that they are disorganised. As ZNLWVA, we do not operate that way.”
Hundreds of former liberation fighters drawn from various provinces
countrywide stormed Minister Biti’s offices on Tuesday, accusing him of
incompetence and presiding over the demise of the economy.
They wanted their monthly pension payouts to be reviewed upwards and called
for the immediate resignation of Minister Biti.
Sibanda said some of the people in that group were masquerading as former
“At the end of the day, you will discover that not all of them are war
veterans. These are the same people who wanted to cause confusion at the
Njelele shrines,” he said.
A group of war veterans recently caused controversy when it conducted a
cleansing ceremony at the Njelele shrines in Matabeleland South.
Minister Biti has since scoffed at the war veterans’ demands describing the
demonstrations as “predatory behaviour”.
Sibanda said there was no reason why war veterans should demand salary
increments for civil servants.
“We believe someone is sending them to complicate things, but they are
tarnishing the name of the association,” he said.
War veterans are getting US$130 as a monthly pension payout, while the
poverty datum line is pegged at US$596. A ZNLWVA faction leader Joseph
Chinotimba said Sibanda should support the demonstrators.
“The war veterans need a redress of their welfare and this is the right way
to go,” he said. “Those who are saying the war veterans are confused are the
ones in that state.
“The problem with him (Sibanda) is that he is no longer representing the
interests of war veterans, but has become a politician.”
Chinotimba said war veterans would continue supporting actions that have to
do with improving their livelihoods.
“All we want is for Minister Biti to take up the issue with his Cabinet
counterparts. We will continue directing our anger at him until our concerns
are addressed,” he said.
But Minister Biti said he could not meet the demands of the war veterans.
Various sectors accuse Finance Minister Biti of failing to prioritise
allocation of resources.
Sanity prevailed yesterday as war veterans disbanded their illegal,
misplaced demonstration directed at the Finance Ministry yesterday.
In a statement, the MDC said, "this politically motivated gathering failed
to generate any positive outcome prompting Minister Biti to quickly
highlight that the War veterans were knocking at the wrong door. Minister
Biti demonstrated beyond reasonable doubt that the MDC is the only party
which takes time to listen to people’s concerns, war veterans included."
"The war veterans are well advised to, instead, question why the Marange
diamonds are being looted in broad day light by new black capitalists at the
expense of their welfare and every Zimbabwean. The war veterans are privy to
the goings on at Marange and other diamond mines because some are former
employees who were relieved of their duties after demanding transparency."
"Zimbabwe being the military state it has become, it would be interesting to
hear if the war veterans were granted police clearance prior to their
demonstration. The conspicuous absence of the police which should have been
regulating their conduct is also an interesting dimension to this
"War veterans are advised that the Ministry of Finance and therefore the
Minister, Hon Tendai Biti gets money from revenue collected through economic
activities like mining which however does not find its way into the fiscus,
but is rather funding a Zanu PF’s parallel government."
"The MDC being a pro poor party sympathises with the War Veterans and shares
their concerns of wanting to ensure that state resources are shared equally
to create a sustanable economy."
Friday, 05 October 2012 15:23
HARARE - Finance minister Tendai Biti has said the picket by war veterans at
his offices was politically motivated and said he will not be distracted in
performing his national duty.
He said the latest demonstrations, the 12th this year, was aimed at scoring
cheap political goals.
Biti told a news conference on Wednesday that it was unfortunate that the
ministries of Finance, Justice, Legal Affairs, Higher and Tertiary Education
and the Economic Planning and Investment Promotion have been affected as
government employees were unable to discharge their duties as all entrances
were barricaded by war veterans.
“This is the most critical period for my ministry and it is regrettable that
our work is being disrupted,” Biti said.
“As from 1 October, we were supposed to start this budget consultations but
we are unable to do so due to these insurrections.”
He castigated the police for failing to provide security for hundreds of
civil servants who were locked inside their offices by the war veterans till
late into the night.
“It is not fair more so, for civil servants who have to fight their way out
of the offices. Pregnant employees were not spared and some had to fork out
money from their hard earned salaries to pay for taxis home as they missed
government buses. It is unfortunate that war veterans can invade government
This represents the highest low point in the lifespan of the Global
“If it is a political fight, use politicians not civil servants,” saidBiti,
vowing he will never resign as Finance minister. Up to this afternoon, the
war veterans had not yet made any indications of meeting with the minister.
“I have never refused to see them and actually the last time I met them they
had 11 demands that they wanted me to address.”
The demands among other issues were; the welfare of the war veterans,
purchase of vehicles for chiefs, awarding a minimum living allowance for the
war veterans, concerns over the disbanding of Zanu PF’s district
coordinating committees (DCCs), disunity in the inclusive government, abuse
of war veterans by Zanu PF, accountability over diamond proceeds and the
widening gap between the rich and poor.
Minister Biti said on the welfare of the war veterans, his ministry had
disbursed US$6,2 million for paying school fees for their children and
funeral allowances. On vehicles for chiefs, the ministry was liaising with
the ministry of Local Government, Rural and Urban Development to see how
best the chiefs can get new vehicles.
“However, I cannot discuss with them the disbanding of DCCs because I am not
a Zanu PF member. On the increase of allowances, I cannot do anything as
there is the War Veterans’ Act, which stipulates how much they should be
paid. For the Act to be changed it must first go through Cabinet and I
cannot do it alone,” said Minister Biti.
On the non-remittance of diamond proceeds to the Treasury, the minister in
his last meeting with the war veterans informed them that they should
approach Obert Mpofu, the minister of Mines and Mining
Development as he was responsible with what was happening in Chiadzwa.
“There is no super minister in government who can change laws. Laws have to
be changed by Parliament and Cabinet. These attacks are political and also
meant to emasculate the person of the minister and are a breach of the GPA,”
said Biti. - Weekend Post
05 OCT 2012 00:00 - RAY NDLOVU
At the party's office in Bulawayo, it is evident that the Movement for
Democratic Change is keen to distinguish itself through its green emblem.
"A year ago people could not distinguish between the two Movement for
Democratic Change parties, but we have rebranded our party and adopted the
green colour as our symbol. Now everyone in Zimbabwe knows who we are and
what we are about," said Welshman Ncube, president of the breakaway MDC
At the party's office in Bulawayo, it is evident that the MDC is keen to
distinguish itself through its green emblem. It is visible everywhere, from
the high precast wall and the curtains in the office to the coffee mugs in
which tea is served.
Ncube assumed the leadership of the MDC faction in January last year when he
beat Arthur Mutambara at a party congress.
Before the victory Ncube's political career had been on the rocks, because
he was widely viewed as having orchestrated the 2005 MDC split, after which
Morgan Tsvangirai continued to lead the other faction. He refused to be
drawn into talking about the "petty details" around the split, which he said
were nothing more than a distraction as elections loom next year.
As the polls near, Ncube's profile appears to be growing stronger. In August
the Southern African Development Community (SADC) resolved to recognise him
as one of the principal players in Zimbabwe's political arena and President
Jacob Zuma also appeared to give tacit endorsement of Ncube's importance
when he met the MDC leader during his trip to Harare, snubbing Mutambara in
Nhlanhla Dube, the party's spokesperson, said the swelling interest in the
party attested that Ncube was now being recognised as "the alternative
voice" in the political landscape, which for the past decade has been
dominated by President Robert Mugabe's Zanu-PF and the Tsvangirai-led MDC.
Mugabe has indicated that elections will be held in March, a prospect Ncube
rejected. "Elections will never be held in March next year, because we have
missed several deadlines already," he said. "As it is, the second
stakeholders' conference has been postponed to the end of October, which
means we are unlikely to have a referendum until mid-December.
"It is not possible that straight after the referendum we go into an
election in March. Mugabe's statements are no different to the wishes
expressed by Zanu-PF to hold elections in 2011 and even this year. Elections
in March are unrealistic until the necessary political reforms have taken
Ncube scoffed at what he called Tsvangirai's lack of sound policies and his
"bed-hopping antics". At the party's 13th anniversary celebrations in
Bulawayo over the weekend, Tsvangirai enjoined his troops to persevere in
their quest to remove Mugabe from power.
"The anyone-but-Mugabe mantra is no longer appealing to the people," said
Ncube. "The voters have become more discerning and want to distinguish
political parties based on what their policies are. We have come out as the
more energetic and focused MDC that has capable leadership, rather than the
others who are tainted by scandal."
His MDC has, however, been on the receiving end of violence. Two weeks ago a
rally in Mutoko was disturbed by Zanu-PF-linked youths, who beat up
supporters. Ncube conceded that tough decisions would have to be taken if
violence took place.
"It would be foolish of us not to anticipate that violence will break out in
the next elections. In the heat of the political moment and given the
genetic make-up of a Zanu-PF supporter, certainly we all must expect them to
resort to violence. SADC must deploy a strong observer mission so that
Zanu-PF does not have its way in the election," he said.
Staff Reporter 23 hours 49 minutes ago
HARARE - Government has appointed a new National Indigenisation and Economic
Empowerment Board (NIEEB) headed by Retired Lieutenant General Mike
This follows the expiry of the outgoing board that was led by David
Chapfika, whose term of office lapsed on 1 October.
Some members of the outgoing board who were not retained include former
Youth Development, Indigenisation and Empowerment Minister, Saviour
Kasukuwere says the new board has experts in the legal field, entrepreneurs,
economic experts and academics who have vast experience and will add value
to the indigenisation and empowerment programme.
The board is expected to ensure that all foreign-owned entities comply with
the indigenisation and economic empowerment legislation, complete the
development of the national empowerment policy framework, and to implement
empowerment programme across the country.
Other board members include Sakhile Masuku, Spencer Chihota, Wilson
Gwatiringa, Ellen Gwaradzimba, Adam Molai, Tinashe Rwodzi, Dayford Nhema,
Desire Sibanda, Farai Mutamangira, Prince Mupazviriho, Tsarai Mungoni,
Thankful Musukutwa and Simon Musanhu.
NIEEB was established under the Indigenisation and Economic Empowerment Act
to spearhead the role of the indigenous majority in the country’s mainstream
economy and the attendant benefits of improving their standards of living.
Fierce wrangles have erupted over the administration and disbursement of the
funds allocated to community share ownership trusts launched by President
Robert Mugabe last year as part of Zanu PF’s campaign to regain critical
rural voters ahead of elections next year.
The tiffs pit the Ministry of Youth Development, Indigenisation and Economic
Empowerment, which initiated the schemes, the Ministry of Local Government,
the custodian of the trustees who are chiefs, and the National
Indigenisation and Economic Empowerment Board (NIEEB) that is responsible
for the disbursement of funds.
Sources say these three organs are fighting among themselves while at times
conniving to loot the funds that would have been contributed by companies
that have complied with the indigenisation laws, leaving the intended
beneficiaries, the communities, out of the equation.
“There are three arms that are wrestling for total control of the schemes
and this results in lack of accountability,” said a well-placed source in
the Indigenisation ministry.
The source said the funds, administered by NIEEB, are being run in an opaque
manner, creating fertile ground for rampant corruption and embezzlement.
The militarisation of the new board of directors for (NIEEB) was likely to
worsen transparency and accountability deficits which the previous board
Indigenisation minister Saviour Kasukuwere yesterday announced a new board
of directors for NIEEB, chaired by retired Major-General Mike Nyambuya. The
board includes Indigenisation acting secretary George Magosvongwe, legal
practitioner and member of the previous board Farai Mutamangira and founder
and chairman of Savanna Tobacco Company and outgoing board member Adam
Molai, among others.
The appointment of Nyambuya to the helm of the indigenisation fund further
consolidates militarisation of institutions Zanu PF deems strategic to its
political and economic survival. Nyambuya joins the ranks of retired
Brigadier Mike Karakadzai at NRZ, ZTA’s colonel Karikoga Kaseke and ZBC
financial director Brigadier General Elliot Kasu, among others.
Kasukuwere’s ministry yesterday also presented compliance certificates to
companies that registered their approved indigenisation programmes. The
certificates were issued by NIEEB.
However, there has been no fanfare surrounding the issuance of shares
certificates to beneficiary communities, nor has there been much publicity
about the trust deeds.
It is this opacity which those involved say is creating opportunities for
rent-seeking behaviour and corruption. Last year, five chiefs in Zvishavane,
namely Mazvihwa, Masunda, Mapanzure, Wedza and Mafala, dipped into US$2
million dollars from Mimosa Mine under the Zvishavane Community Share
Ownership scheme. The chiefs then awarded themselves US$5 000 each as
sitting allowances for meetings they attended to decide on how to share the
This sparked a furore with Local Government minister Ignatius Chombo who
directed the Zvishavane chiefs to return part of the US$2 million they had
shared among themselves. Chombo ordered that the funds be administered by
Zvishavane district administrator, with Runde Rural District Council
conducting disbursements of the funds.
In an interview yesterday, Kasukuwere said the funds should be run by local
boards comprising chiefs, councillors, a lawyer and an accountant, who is
the custodian of the scheme which is given a share certificate. He said the
empowerment programme is set to benefit the communities and not the
“The community benefits through construction of infrastructure like roads,
clinics, schools and water facilities,” he said.
Outgoing NIEEB chairman David Chapfika dismissed allegations of
misappropriation, maintaining that once funds have been disbursed the onus
on what to do next lies with the local board of trustees, which includes
chiefs. He also refuted allegations that funds remain held in the NIEEB
accounts instead of being deposited into the trustees’ accounts.
Staff Reporter 8 hours 56 minutes ago
HARARE - The media was yesterday barred from covering the case in which a
Central Intelligence Organisation operative is accused of conniving with a
farmer to extort money from Zifa chief executive Jonathan Mashingaidze.
Richard Mubaiwa (31) and Banket farmer John Chari (32) allegedly attempted
to extort US$6 000 from Mr Mashingaidze after telling him that he was on the
elimination list over his involvement in the Asiagate scandal and his links
to Prime Minister Morgan Tsvangirai.
Defence counsel, Ms Fadzai Mageza and Mr Tapiwa Makanza sought an order
barring the media from covering the case.
Harare magistrate Mr Tendai Mahwe allowed the application and immediately
cleared the gallery.
The State alleged that sometime in February this year, Mubaiwa phoned Mr
Mashingaidze and identified himself as Run’anga from the President’s Office.
He allegedly told him that he had a file with information about the Asiagate
scandal and the role he played in troubling innocent people.
It is alleged Mubaiwa told him the file had pictures of Fifa president Sepp
Blatter, Prime Minister Morgan Tsvangirai and Zifa president Cuthbert Dube.
Mubaiwa, it is alleged, told Mr Mashingaidze that he had pictures of the
Prime Minister in his Zifa office, which indicated he was a member of the
The CIO operative said he was looking into his political background, which
included his connection to the MDC-T.
It is alleged he requested Mr Mashingaidze to meet him at Chikwanha Shopping
Centre in Chitungwiza to discuss the matter before conniving with Chari whom
he briefed about the discussion he had with Mr Mashingaidze.
On the same day at around 7pm, Mr Mashingaidze met Chari in the company of
four other unidentified men who were in a parked white kombi.
Mr Mashingaidze, it is alleged, was taken to a secluded place behind
Chikwanha Shopping Centre and was accompanied by another unidentified man
who kept a distance.
It is alleged Chari told Mr Mashingaidze that he was to be eliminated and
that his bosses required US$10 000 or US$6 000 for him to be protected.
Mr Mashingaidze produced US$20.
Chari allegedly told him to go and look for the required money and indicated
to him that he was going to contact him the following morning. The following
day, Mr Mashingaidze advised Zifa president Mr Dube and Brigadier General
Elliot Kasu and at around 2.30 pm.
It is alleged that Chari later phoned Mr Mashingaidze and told him to come
to Avondale Shopping Centre with the money. Mr Mashingaidze met Chari at
Spar Supermarket before he was given US$2 000 that was in an envelope.
Chari took the money and ordered him to go and look for the balance before
he was arrested by plain-clothes police officers who recovered the money.
He implicated Mubaiwa.
A Harare-based independent organisation providing analyses of topical issues
and policy-based research has questioned the legitimacy of High Court Judge,
Justice George Chiweshe’s recent judgment on by-elections and dismissed it
as a violation of law.
by Tarisai Jangara
Chiweshe granted President Robert Mugabe an extension until March 31st next
year to hold by-elections in three constituencies that have been vacant
Mugabe has successfully argued that the government is too broke to hold the
by-elections in Nkayi South, Bulilima East and Lupane East that were left
vacant when MDC-N expelled Abednico Bhebhe, Norman Mpofu and Njabuliso
Research and Advocacy Unit, in a statement, said the judgment reflects a
conflict between the executive, judiciary and legislature.
“The granting of the extension to this date for the three by-elections is a
violation of the principle of the separation of powers established by our
constitution. The President is already in breach of the law in having failed
to call these by-elections and the 24 other that are due.
“It is not for the courts or the President to decide which laws can be
ignored out of political expediency – though unfortunately this is not
atypical of the modus operandi of both in present day Zimbabwe,” reads the
RAU argues that the ruling by the High Court undermines the election
roadmap, which includes a new constitution, electoral reforms, media reforms
and realignment of the security sector.
According to RAU, the extension of the by-elections is unconstitutional and
implies that the government cannot afford to fund democracy.
The organisation noted that by postponing the by-elections, government had
failed to comply with constitutional provisions, with the courts using
poverty an excuse to violate the law.
RAU said the possibility of having elections next year was a “fairytale”
given that there are numerous reforms needed for Zimbabwe to hold credible
elections, further noting that nothing had been done to clean up the
shambolic voters’ rolls and to free the airwaves.
The organisation added that a new constitution and the promulgation of the
Electoral Act were not sufficient for free and fair elections.
“The idea that a new constitution and the Electoral Act will do anything to
render the next elections free and fair is hype advanced by all the
political protagonists and SADC. No matter what electoral laws are in place,
a free and fair election cannot take place without some restraint placed on
the security sector,” said RAU.
The takeover of wetlands in Harare for development purposes pose a huge
threat to the future of the city’s water supply. Wetlands are like a
sponge - if you push down or squeeze a sponge, you squeeze all the water
out. That is what we are doing to our water supplies.
by Staff Reporter
In the Government Gazette of July 27, Environment and Natural Resources
Minister, Francis Nhema invoked the powers granted to him under the
Environment Management Act (Chapter 20:27) with the Declaration of the
Protection of Harare Wetlands.
Harare has a Wetland Map which gives the Schedule and shows the coordinates,
to the nearest three meters, which can be viewed by members of the public at
the offices of the Environment Management Agency. But who will save our
Many wilderness areas in Zimbabwe are being destroyed or potentially going
to be destroyed by mining companies and some of these include; Mana Pools, a
World Heritage Site, Mavuradonah Wilderness Area, Hwange National Park, and
there are many more. The Zambezi Society, a local environment group are
leading the campaign to put a stop to potential mining that could take place
along the Rukomechi and Chewore Rivers.
They have engaged various stakeholders such as Impaco, Environment
Management Agency, Safari Operators Association of Zimbabwe, National
Museums and Monuments of Zimbabwe, Lower Zambezi Tour Operators and Unesco
and a committee has been set up to deal with the issues. For further
Zimbabwe is a beautiful country and it is up to us, every single Zimbabwean
to protect and conserve what we have. You can make a difference by getting
involved in conserving our planet earth, our Zimbabwe so why not get out
there and do it.
Bulawayo, October 05, 2012 - Bulawayo Mayor, Patrick Thaba-Moyo, says the
city's water crisis has worsened and there are plans to start importing
water from other towns.
The Mayor, who was addressing journalists at a press club in the city, also
appealed for rain prayers.
“What I can tell you is that the water situation in this city is now getting
worse as our remaining three supply dams are getting dry. If we don’t
receive rains in the next coming month they will be disaster in this city,"
"But as the city council we will not sit and watch whilst our people dying
due to water shortages. We have also made some plans to bring water from
other towns or from Zambezi River using the National Railways of Zimbabwe
goods trains,” he said.
The city's deepening water crisis has seen more than a million people going
without the precious liquid for half a week devastating an already reeling
local economy facing massive deindustrialisation.
Recently the local authority asked residents to participate in a “big flush”
concurrently at 7:30pm every Saturday evening so that human waste does not
solidify in the city’s aging sewerage pipes.
The Bulawayo Mayor also said his council will investigate reports that some
manufacturing companies in the city, which are exempted from water shedding,
are now selling water to desperate residents.
Last week Prime Minister Morgan Tsvangirai said his office will work hard to
resolve Bulawayo's critical water situation.
A recent study found that diamond mining companies are endangering thousands
by polluting rivers, but holding them accountable is likely to prove tricky.
5 OCTOBER 2012 - 2:14PM | BY BERNARD CHIKETO
Thousands of Birchenough Bridge residents and patients at a local hospital,
downstream of Zimbabwe’s notorious Marange diamond fields, are panicking
after a recent report suggested they may be at risk of developing health
complications such as cancer from metal-poisoned water.
A recent study, commissioned by the Zimbabwe Environmental Lawyers
Association (ZELA) and conducted by the University of Zimbabwe (UZ),
revealed that the Save river, from which water supplies are drawn, as well
as the Singwizi and Odzi tributaries, are laden with dangerous chemicals.
The report lays the blame for the hazardous pollution on diamond-mining
operations, and ZELA alongside local villagers have applied to the High
Court to stop three diamond mining companies from discharging polluting
materials into the rivers. At least one of the three firms has already
rejected the scientific findings, however, and given the vested interests in
these companies by influential individuals as well as the currently
ineffective system of punishing polluting companies, there is concern over
what can actually be done to tackle the issue.
Testing the water
Three diamond mining companies – Anjin, Diamond Mining Corporation, and
Marange Resources – operate along the rivers and for over two years, the
Odzi, Singwizi and Save have been visibly muddy, betraying their pollution.
According to the UZ report, a range of elements found in the water could
prove a serious hazard to people’s health. The heavy concentrations of
chromium and nickel – both constituents of a chemical compound used in
diamond extraction – “are potentially carcinogenic agents” warns the study.
Levels of iron – another element used in diamond extraction – exceed World
Health Organisation standards and “suggest that the local population could
be at risk of iron poisoning”. High levels of fluoride could lead to dental
and skeletal flourosis, and high bacterial contamination poses “an immediate
risk of outbreaks of waterborne diseases such as diarrhoea, cholera and
typhoid”, reads the report.
If true, the lives and livelihoods of thousands of households could be in
danger as water from these rivers is used just for drinking but to irrigate
crops, bathe, and care for livestock. Some of this water could also be being
piped on to Mozambique, and river additionally passes through the 6,000
hectare Save Conservancy, a wildlife sanctuary often heralded as a model for
Responding to the report
A provincial official from Zimbabwe National Water Authority (ZINWA), the
government agency responsible for the country’s water supplies, spoke to
Think Africa Press on condition of anonymity. He insisted that the water
supplied to Birchenough Bridge was safe as it would have been filtered by
sand as ZINWA’s pipes tapped the water from the river bed.
Pressed on whether they had run tests to determine the nature of the water
pollutants and apply the requisite chemicals, he claimed they had. And he
expressed ignorance of the UZ study. Enquiries to ZINWA for its official
position went unanswered.
On the other hand, Manicaland’s Provincial Health Director, Tapiwa Murambi,
expressed confidence in the university’s findings, on which the ministry
said it planned to act.
Kingstone Chitotombe, provincial manager for the Environmental Management
Agency (EMA), also agreed that, while his organisation had not independently
verified the UZ report, the three diamond mining companies operating in
Marange were polluting the rivers. Chitotombe told Think Africa Press that
the EMA was contemplating starting legal proceedings against the polluting
companies. He believed a court ruling would have far reaching consequences
and that even a verbal warning following a conviction would elicit a
Treading political waters
Chitotombe could, however, be being overly optimistic. On previous occasions
of being found polluting, the mining companies have done little to change
their practices, and powerful individuals with vested interests in the
companies could make changing the status quo tough.
It is notable that earlier this year, journalists Andrew Mambondiyani,
Sydney Saize, and two other colleagues were charged with “criminal nuisance”
for investigating the pollution and interviewing locals.
In July, after publishing the UZ report, ZELA contacted mining company Anjin
to request the pollution stop. The response three days later denied the
allegations. “Honestly speaking,” the letter read, “it happened one or two
times. Pumps broke down and little recycled water was not pumped away in
time, resulting in the overflow of the water from the ponds, which the
company has received criticism and was fined by EMA.”
The letter from Anjin was signed by Brigadier-General Charles Tarumbwa, a
senior official with the mining company. And, according to London-based NGO
Global Witness, he is not the only high-ranking official from the ruling
ZANU-PF party in Zimbabwe’s military and security forces holding key
positions in Marange diamond mining companies. Former Air Vice Marshall
Robert Mhlanga chairs the board of Mbada Diamonds, for example, while
members of Anjin’s board include the permanent secretary of Zimbabwe’s
Ministry of Defence, two commissioners of the Zimbabwe Republic Police, and
current and former officers of the Zimbabwe Defence Forces, say Global
Changing the tide?
Another impediment to improving pollution is the currently ineffective
system of punishing polluting firms. Mbada Diamonds is a joint venture
between state-owned Marange Resources Ltd and Grandwell Holdings Ltd., a
subsidiary of the South African company Reclam. In its 2011 annual report,
Reclam explained that it was more cost-effective to pollute and pay the
necessary fines than to invest in pollution control.
It reads: “Fees are assessed for exceeding agreed limits on emissions and
effluents. Currently these fees are generally small in relation to the cost
of environmental protection equipment and it is generally less expensive to
pay the fees than to install anti-pollution devices. Further, the applicable
laws do not generally require clean-up of environmental pollutants, and when
clean-up is required, the applicable laws provide no guidance as to the
extent to which the clean-up must be carried out.”
The effect of river pollutants on the health of thousands of individuals,
livelihoods of thousands of households, and the environment could be
disastrous, and are indeed already being felt. Many now accept that the
Marange diamond mining companies – Anjin, Diamond Mining Corporation, and
Marange Resources – are responsible for much of the hazardous waste and that
they are not fulfilling the obligations that come with operating upstream of
water supplies many Zimbabweans thousands depend on. Outrage and action is
growing, but holding polluters accountable could prove difficult.
Community Radio Harare recently published this:
As water shortages continue to worsen in many Harare suburbs, some
mandimbandimbas have taken charge of local boreholes demanding that each
resident must pay $1 to access the borehole water.
Several residents who spoke to Talking Harare confirmed that the
mandimbandimbas were terrorizing them and taking advantage of the water
crisis by demanding money. ‘Yes it is true that the mandimbandimbas are
asking us to pay $1 per resident for us to access UNICEF boreholes that are
the only source of water in Highfield. For example, at Highfield Satellite
Clinic this situation has been going on for over a week now and these people
seem to be untouchable once again as nothing is being done to stop them,’
said Mrs Faith Madondo of Highfield.
When Talking Harare visited Mbare, it noticed the mandimbandimbas
controlling hundreds of residents who were trying to draw water from a mass
tap near Mbare Netball Complex. Residents were being asked to pay
‘maintenance’ fees for the water tap which is apparently owned by council.
The situation was similar at a borehole near Budiriro 2 Primary School and
other suburbs like Glen Norah, Dzivarasekwa and Glen Norah. Those who were
failing to pay were turned away and denied access to water.
The mandimbandimbas were recently chucked out of kombi ranks where they were
forcing transport operators to pay them fees which were not justified since
all bus termini in Harare are owned by Harare city council. Police and
soldiers moved in to remove them following incessant complaints by members
of the public, kombi operators and stakeholders that these were becoming a
law unto themselves and causing havoc to the travelling public and transport
Meanwhile, some touts who were removed from kombi ranks are slowly trickling
back after council failed to swiftly move in and reclaim its termini.
Talking Harare observed that at Copacabana, Market Square and Fourth Street,
the illegal touts are coming back and causing confusion once again.
This entry was posted on October 5th, 2012 at 3:09 pm by Bev Clark
ANALYSIS OF ELECTION-RELATED PROVISIONS OF THE COPAC DRAFT CONSTITUTION
PAPER PREPARED FOR ZESN
1. INTRODUCTION.. 1
2. The Bill of Rights. 2
2.1 Right to Vote. 2
2.2 Freedom of Association and Freedom of Assembly. 5
2.3 Freedom of expression and freedom of the media. 8
2.4 Access to information. 8
2.5 Rights of arrested and detained persons. 9
2.6 Funding of political parties. 10
3. Electoral System.. 10
3.1 Plurality System versus Proportional Representation. 10
3.2 Quota for Women. 12
3.3 Number of Parliamentarians. 12
3.4 Direct election of the President 12
3.5 Announcing results of presidential elections within five days. 13
3.6 No more harmonization of elections. 13
3.7 Challenge to presidential election. 14
3.8 Assumption of Office of President-elect 14
4. Delimitation of Constituencies. 15
5. Timing of Elections. 16
6. Electoral Commission. 16
7. Commencement of the Constitution/Transitional Provisions. 17
A constitution is the bedrock to democracy. However Constitution Building is a process and not an event. The Lancaster House Constitution was the first supreme law of the land. This Constitution was drafted in Lancaster as a cease fire and transitional document. This Constitution to date has been amended 19 times in 32 years. Ownership of the constitution is a problem, as this constitution is not home grown and people driven. Zimbabweans have always had a quest to have what is termed a people driven constitution with the aspirations and needs of the citizens, including how they desire to be governed. The lack of a constitutional blue print resulted in the formation of the National Constitutional Assembly (NCA) a pressure group whose goal is to ensure that the country has a constitution crafted by the people for the people.
In response to pressure from civil society and the growing need for democratic processes and democracy, the President appointed a 400 member Constitutional Commission led by Justice Chidyausiku in 1999 to come up with a Constitution. However the proposed constitution was rejected in a Constitutional Referendum in the year 2000. The No vote however did not stop the clamor for a new constitution. The NCA soldiered on with this quest and produced the NCA draft Constitution. In 2007 the three political parties (ZANU PF, MDC-T, MDC) met in Kariba and came up with what is termed the Kariba Draft Constitution. The Kariba Draft Constitution was never adopted as the Supreme Law of the Land. The Global Political Agreement (GPA), which resulted in the formation of an Inclusive Government in February 2009, in Article VI outlined stages to draft a new constitution. This critical process has a number of stages which are outlined and these should be adhered to. The stages include, selection of a Constitutional Parliamentary Select Committee, first stakeholders conference, public outreach to collect views from the citizens, data analysis, drafting, second stakeholders conference, Referendum and adoption of the Constitution. To date this process has reached the drafting stage, though there are hiccups and disagreements on certain issues by the political parties. Two working draft constitutions have already been published in the Herald, the first one in February and the second one in May 2012.
The Zimbabwe Election Support Network (ZESN) is guided by the main goal of promoting democratic elections in Zimbabwe. The organisation was part of ZZZCOMP an initiative which brought together Zimbabwe Lawyers for Human Rights (ZLHR), Zimbabwe Peace Project (ZPP) and ZESN to monitor the outreach process. From the outset ZESN has had an interest in the Constitution Reform Process to ensure that the supreme law will promote free, fair and democratic elections. During the outreach phase, ZESN conducted public outreach activities to inform citizens about the various options available on Electoral Systems, Election Management Bodies and Systems of Governance. The organisation also wrote various position papers on the above matters. ZESN was coming from a position were problems of representation of minority groups, wastage of results and violence had been witnessed because of the electoral system utilized in Zimbabwe which is First Past the Post (FPTP). ZESN was also lobbying for an independent Election Management Body which would report to Parliament and not the current case were ZEC reports to the Minister, an executive branch.
A whole plethora of reforms is needed to conduct free and fair elections. The organisation has been lobbying for an environment that is conducive, where fundamental freedoms of association, assembly, speech and movement are upheld and protected. The Analysis of the Constitution will look at the following aspects:
This analysis is meant to inform citizens about the provisions relating to elections in the working draft Constitution and to what extent they promote credible elections.
This paper seeks to analyse the provisions of COPAC’s Draft Constitution which have a bearing on elections and electoral processes. COPAC has not yet produced its “final draft” and what is being referred to herein is the Draft published as a supplement to the Herald of 2 May 2012.
The approach adopted in this paper is that each provision which has a bearing on elections and electoral processes is identified, explained and analysed. The analysis focuses on the legal meaning of the provision and its practical implications. Special attention is paid to how any provision relates to the current law with a view to illustrating the extent, if any, to which the Draft Constitution addresses defects on electoral matters in the current constitution.
The paper identifies the following provisions of the Draft Constitution as having a direct bearing on elections and electoral process.
· The Bill of Rights – provisions on a basket of rights which are central to elections, such as the right to vote.
· The Electoral System
- Parliamentary election
- Presidential election
· Independent Institutions supporting democracy
- Electoral Commission
· Separation of Powers with special focus on the powers and functions of the President in relation to elections.
· Commencement of the Constitution, including transitional provisions.
Each aspect is now examined in detail.
2. The Bill of Rights 2.1 Right to Vote
A major weakness of the current constitution was that it did not provide, in the Bill of Rights, certain fundamental political rights considered essential to free and fair elections. One such missing political right was the right to vote. This defect was rectified by Amendment No. 19 which introduced a new section 23A providing for the right to vote. Before Amendment No. 19, the absence of a right to vote in the Constitution was dramatized by the case of Madzingo & Others v Minister of Justice and Others. Madzingo and his colleagues were all registered voters but were resident and employed in the United Kingdom. They were unable to travel to Zimbabwe to cast their votes in their respective constituencies for the 2005 parliamentary election. They were concerned that no mechanism had been established in the UK to enable them to vote. They approached the Supreme Court seeking an order compelling the authorities to put in place mechanisms for them to vote while in the United Kingdom. The Supreme Court dismissed their application primarily on the basis that the right to vote was not constitutionally protected in the Bill of Rights.
The COPAC Draft has adopted the provisions of section 23A of the current constitution which provide for a right to vote. The specific provision in the COPAC Draft is in 4.10(3) in the following words:
“Subject to this Constitution, every citizen of Zimbabwe who is of or over eighteen years of age has the right –
(a) to vote in all elections and referendums to which this Constitution applies, and to do so in secret, and
(b) to stand for election for public office and, if elected, to hold such office.”
This COPAC formulation is an improvement on the current section 23A. Section 23A (2) provides as follows:
“Subject to this Constitution, every adult Zimbabwean citizen shall have the right –
(a) to vote in referendums and elections for any legislative body established under this Constitution, and to do so in secret, and
(b) to stand for public office and, if elected, to hold office”.
The two underlined portions show the areas which have been improved. The current Constitution refers to every “adult” while the COPAC Draft is specific about the age of adulthood (which it puts at 18 years). The current constitution uses the word “adult” without defining it and this may be problematic as it does not follow that adulthood begins at 18 years. The second improvement relates to the COPAC Draft’s use of the words “all elections”.
The incorporation of the right to vote in the Bill of Rights is important. It puts the right to vote at the same level as other fundamental rights which can be enforced easily by direct access to the highest court. Further, it also sets the right tone for all legislation on elections as such legislation is thereby required to be consistent, in every respect, with the right to vote.
The incorporation of a right to vote for all citizens in the COPAC Draft raises the issue of the diaspora vote. In the Madzingo case referred to above, the Supreme Court rejected an application for a diaspora vote on the basis that the right to vote was not in the Bill of Rights. The question is: Now that the right to vote has been provided for in the Bill of Rights, does this translate to a diaspora vote? The answer is: not necessarily. In theory, if the Bill of Rights grants every citizen the right to vote, this necessarily includes a diaspora vote. However, whether or not the right to vote entails a diaspora vote depends on the limitations on the right. If the right to vote is subject to limitations, one of the most common limitations is the residence of the voter: Voters resident outside the country may be excluded from exercising the right to vote.
Is the right to vote in the COPAC Draft subject to limitations? The answer is YES. The COPAC Draft has what is called a“ general limitation clause” which applies to most rights in the COPAC Bill of Rights. This is different from the current constitution which has “specific limitation clauses” in respect of given rights. There is no specific limitation on the right to vote but the right is subject to the general limitation clause. The general limitation clause is in 4.43(2) which provides as follows:
“The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in an open, just and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right or freedom concerned;
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;
(e) the relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and
(f) whether there are any less restrictive means of achieving the purpose of the limitation.”
This general limitation clause seeks to make it difficult to restrict a right in the Bill of Rights. For that reason, it may be difficult for the Electoral Act to continue to restrict the right to vote to citizens who are resident in the country. To deny citizens in the diaspora the right to vote, it must be shown that it is “reasonable, necessary and justifiable”. If the courts hold the absence of a diaspora vote to be neither reasonable nor necessary, then the COPAC Draft would be said to be incorporating a diaspora vote. If they hold otherwise, there would be no diaspora vote. Why should such a matter be left to the courts? That is a major weakness.
Rationale for external voting
The Constitution should be clear on the rights of all citizens to vote despite residence status. Zimbabwe is signatory to international and regional protocols that protect the rights of all citizens to suffrage. In addition, many Zimbabweans outside the country were forced to a large extent to migrate by structural economic and political problems that gripped the country and by a loose definition can be termed forced migrants. A significant number has kept close ties to their home country and have intentions of returning once the economy has improved. Their economic contribution cannot be ignored and therefore have a right to demand and be granted the opportunity to vote externally. While in the constitutional debate currently underway, the issue of dual citizenship has been part of the debate and the rights of Zimbabweans living outside the country have not been included though there has been token inclusion as they have been asked to input their views on the website. In addition, the fact that the Electoral Management Board (EMB) has been able to extend the postal vote to some citizens means that they have to some extent the capacity to implement this and they need to scale their efforts to include a broader cross-section of Zimbabweans living outside their country.
However, the officials assigned with the implementation of external votes must be perceived to be unbiased and there need to be no room for suspicion of bias and electoral fraud. There is need for impartiality and non partisan ship to be developed as Zimbabwe works to extend external voting to all citizens.
The freedoms of association and of assembly lie at the core of political rights. It has been said:
“… freedom of assembly is understood to be foundational for the life of a liberal democracy for two primary reasons. First, it helps create space for collective politics. This space for collective politics is crucial. While a single voice is likely to be drowned out in the political community, a collective voice is far more likely to get its message across. Secondly, assembly is essential for democratic politics because only through meeting and talking with fellow citizens can we critically explore the various beliefs and values which animate our political decisions. It is generally believed that the more we discuss the ideas we seek to put into practice, the better and the more legitimate our political decisions are likely to be”.
Without adequate protection of the freedoms of assembly and of association, there can be no free and fair election. These two freedoms enable the formation of political parties, participation in the activities of political parties and the holding of campaign meetings and related activities.
The current constitution makes provisions for these two freedoms in section 21. What has been regarded as a weakness of the current constitution is that it allows restrictions on these freedoms in circumstances judged to be “reasonably justifiable in a democratic society”. It is because of this allowance by the Constitution that the Public Order and Security Act (POSA) has not been found to be unconstitutional.
Unlike the current constitution which provides for these two freedoms in one section (that is, section 21), the COPAC Draft provides for these two freedoms in three sections. In 4.9, it provides for freedom of association while in 4.10 it protects the freedom of assembly. In 4.18, it expands on these two freedoms under the heading of political rights. In particular, 4.18 (2) says:
“Subject to this constitution, every citizen of Zimbabwe has the right –
(a) to form, to join and to participate in the activities of a political party or organization of their choice.
(b) to campaign peacefully for a political party or cause
(c) to participate in peaceful political activity, and
(d) to participate, individually or collectively, in gatherings or groups or in whatever manner, in peaceful activities to influence, challenge or support the policies of the Government or any political or whatever cause”.
It is clear that these four rights are an elaboration of the freedoms of association and of assembly. Thus, although stated separately in the COPAC Draft in 4.18 as political rights, these are ingredients of the freedoms of association and of assembly in 4.9 and 4.10 respectively. Put together 4.9 , 4.10 and 4.18 of COPAC provide for freedom of association and of assembly in the same manner as section 21 of the current constitution.
Like the current constitution, the COPAC Draft limits the freedoms of association and of assembly. These freedoms may be limited by a law of general application provided it is “reasonable and is necessary and justifiable in an open, just and democratic society”. The general limitation clause in the COPAC Draft has already been reproduced in full above. In the current constitution, the specific limitation to these freedoms applies where it is “reasonably justifiably in a democratic society”. With a conservative Supreme Court, the general limitation clause in the COPAC Draft will not outlaw POSA.The Supreme Court has already ruled that provisions of POSA which oblige organizers of public gatherings to give notice to the police are constitutional because it is “reasonably justifiable in a democratic society”. The Supreme Court made this decision in the case of Tendai Biti and the MDC v Minister of Home Affairs
The facts of that case related to campaign meetings for the 2002 Presidential election. They were summarized by the court as follows:
“On 28 January 2002, Biti, acting in terms of section 24(1) of (POSA) wrote to the officer commanding the Police, Harare Suburban District, Chief Superintendent Kupara, notifying her that the MDC would be holding twelve public meetings in the Harare East constituency from 2 to 23 February 2002. The date and venue of each meeting, as well as time at which each meeting was to commence, were given. In reply, Kupara informed Biti that only four of the twelve meetings could be held. The rest were prohibited for various reasons. Aggrieved by that decision the applicants approached this court and filed this application, alleging that section 24 of the Act infringed their rights of freedom of expression and freedom of assembly”.
It was in the context of these facts that the court ruled in favour of POSA saying:
“… this court has recognized the need to reconcile the rights of freedom of expression and assembly with government responsibility to ensure the sound maintenance of public order. There must be a compromise which will accommodate the exercise of the protected rights within a framework of public order which enables ordinary people to go about their business without obstruction”.
The Supreme Court’s position on POSA provisions on notifying the police may not be changed by the COPAC Draft because the court may still interpret the general limitation clause in the same way as it did the clause in the current constitution.If that turns out to be the case, POSA would remain even under the COPAC Draft2.3 Freedom of expression and freedom of the media
The current Constitution provides in section 20 for freedom of expression. The courts have given wide scope to section 20 so that although the “freedom of the media” is not specifically mentioned, it has been emphatically held that it is included.
The COPAC Draft is a significant improvement in that it mentions specifically some important issues which are implied by section 20 of the current constitution. In the COPAC Draft, the relevant clause is 4.12. It has the following specific features:
· Freedom of the press and other media stands on its own as a fundamental right and includes protection of confidentiality of journalists.
· Broadcasting and other electronic media are required to be independent of government control.
· All state-owned media are required to be impartial and to “afford fair opportunity for the presentation of divergent views and dissenting opinions”.
· Incitement to violence and advocacy of hatred or hate speech are specifically prohibited and cannot be defended as freedom of expression.
The approach of the COPAC Draft to freedom of expression is more conducive to free and fair elections than the current constitution because the matters specifically included have a direct bearing on the conduct of elections. For example, requiring the state media to be impartial and afford space to divergent views would enable all the different electoral campaign messages to be covered.2.4 Access to information
The current constitution does not provide for a right of access to information held by institutions of the state. Modern constitutions around the world provide for a right of access to information in the Bill of Rights. The COPAC Draft joins this modern trend and provides for the right of access to information in clause 4.13. The most relevant portion of the clause reads:
“Everyone, including the press and other media of communication, has the right of access to –
(a) Any information held by all institutions and agencies of the State and Government at all levels, in so far as the information is required for the exercise or protection of a right or in the interests of public accountability…”
The COPAC Draft leaves details of this right to legislation and allows restrictions to the right on the grounds of “the interests of defence, public security or professional confidentiality”. This may be another classic case of giving with the right hand and taking with left hand. The grounds permitted for restricting the right of access to information are notoriously vague. However, it is substantial progress for election purposes to have the right of access to information provided for the Bill of Rights. The press may utilize this right in furtherance of making electoral processes more transparent.2.5 Rights of arrested and detained persons
One of the most common features of recent elections in Zimbabwe is the unlawful arrest and detention of opposition politicians and activists. The current constitution, in section 13, protects the right to personal liberty. However, the section is not sufficiently precise in a number of respects leaving room to security organs and agencies to abuse the power of arrest to curtail campaign activities of opposition candidates.
The COPAC Draft in 4.21 provides for some rights of arrested and detained persons which would make it difficult for security agents to engage in politically motivated arrests. The rights of arrested and detained persons specified in the COPAC Draft include:
· being informed at the time of the arrest of the reason for the arrest or detention.
· being permitted to contact, at the expense of the State, their spouse or partner or next of kin or close relative or legal practitioner.
· being brought before a court not later than 48 hours after the arrest.
It is an improvement that these rights are being specified in the Constitution itself. The current constitution is very vague on these rights. For example, regarding being informed of the reasons for an arrest, it says:
“Any person who is arrested or detained shall be informed as soon as reasonably practicable....”
Clearly, “as soon as reasonably practicable” can be several days after the arrest. The COPAC Draft avoids this by insisting that reasons must be given “at the time of arrest”. Another example of vagueness of the current constitution relates to the time within which an arrested person must be brought to court. It says:
“Any person who is arrested or detained… shall be brought without undue delay before a court…”
“Without undue delay” may take several days. The COPAC Draft insists on 48 hours whatever the nature of the alleged offence.
These specific rights in the COPAC Draft make it difficult to sustain random and politically motivated arrests and this is conducive to a free election environment.2.6 Funding of political parties
The current constitution has no specific provision on the funding of political parties. Funding of political parties is regulated outside the Constitution by the Political Parties (Finance) Act. The COPAC Draft makes political party financing a constitutional issue by incorporating it in the Bill of Rights. The State is obliged to provide funding for political parties for “the purpose of promoting multi-party democracy”. The relevant clause of the COPAC Draft is 4.18 (4) which provides:
“For the purpose of promoting multi-party democracy, an Act of Parliament must provide for the funding of political parties, but such funding may be withheld from political parties which do not uphold the principles and values of this constitution or whose internal structures and procedures are not reasonably democratic.”
Under current law as contained in the Political Parties (Finance) Act, not every political party is funded. To qualify for funding, a political party must participate in a general election and obtain not less than 5% of the votes cast for Members of Parliament in that election. Votes cast in the presidential vote do not count.
The fact that the COPAC Draft has a specific provision on political party funding would have effect on the existing law. The COPAC Draft does not restrict funding to political parties participating in a general election of Members of Parliament. A political party may, for good reasons, decide to participate in local government elections only or only contest in the presidential election. It would be contrary to the spirit of the provisions in the COPAC Draft to exclude such political parties from funding.3. Electoral System 3.1 Plurality System versus proportional representation
Under the current constitution, the electoral system is the winner-take-all or first-past-the post for parliamentary elections. This is for both the House of Assembly and Senate. For the presidential election the Electoral Act provides for an absolute majority system, calling for a second election between the top two candidates if the first election fails to produce a winner.In the COPAC Draft, the House of Assembly will be known as the National Assembly.
The COPAC Draft proposes to retain the winner-take-all system for the first 210 seats in the National Assembly and to introduce proportional representation for the Senate and for the additional 60 seats reserved for women in the National assembly..
For the National Assembly, the COPAC Draft proposes to increase the number of MPS from 210 by adding an additional 60 seats. However, the first 210 MPs will be elected on the current system of a winner-take-all in 210 constituencies. The additional 60 female MPs will be elected through a system of proportional representation based on the number of votes cast for the 210 MPs. In other words, the number of female MPs for each party on the additional quota would be determined by the proportion of its votes in the election for the 210 seats. It does not follow that a political party with most seats among the 210 will get most of the seats on the additional quota as it is possible under the winner-take-all system for a political party with less votes to get most seats.
This proposal by the COPAC Draft for the National Assembly follows the model being used by Lesotho. In Lesotho, the National Assembly has a total of 120 MPs. Of these, 80 are elected in terms of a winner-take-all system in 80 constituencies while the remaining 40 are allocated on the basis of proportional representation based on the number of votes cast in the election of the constituency seats.
It must be said that this model is not a substitute for proportional representation nor does it achieve any of the advantages of proportional representation.
Regarding proportional representation as a system of elections in the Senate, the COPAC Draft provides in 7.5 (2) for the majority of Senators to be elected “by registered voters in each province by a system of proportional representation based on the votes cast in the general election for members of the National Assembly.” There will be no separate election for the Senate. The allocation of Senatorial seats per province will be determined by the provincial vote.
For all intents and purposes, the limited scope given to proportional representation means that the COPAC Draft has rejected proportional representation as an electoral system for Zimbabwe.
What are the advantages of a mixed system?
The advantages of mixed systems are that it combines the FPTP election with a strong accountability with a more proportional representation. It enhances democracy, inclusivity and enables power sharing at the legislative level. It promotes reconciliation and tolerance and Zimbabwe is in much need of a peaceful election and the aftermath of the Presidential runoff requires both. It provides high possibility for gender balance in the legislature. It will go a long way in the emancipation and empowerment of women.3.2 Quota for Women
There is a specific quota for women in the COPAC Draft for both the National Assembly and the Senate. In the National Assembly, 60 seats are specifically reserved for women. The other 210 seats for constituencies are available for both men and women. This means that out of 270 MPs, at least 60 will be women. This represents about 22%. This percentage will rise depending on the number of women elected among the 210. It is important to note that the reserved seats for women will be only available “for the life of the first two Parliaments” under the COPAC Draft. Thereafter, there will be no quota for women. The makers of the COPAC Draft seem to be of the view that “after the life of two Parliaments”, society would have accepted the concept of gender equality and therefore women would have overcome the current obstacles to being elected MPs. This is obviously mistaken. More critically, the “life of two Parliaments” is not necessarily ten years: it may be shorter because Parliament may be dissolved before its five-year term.
In the Senate, the COPAC Draft provides for women to constitute at least half of the sixty Senators representing provinces. The Senate has 28 other members: 18 chiefs, 8 provincial governors and 2 representing persons with disabilities. These other members need not be women. This means that out of 88 senators, at least 30 must be women. This represents about 34%. This percentage will rise depending on the number of women among the 28.
An electoral system based on proportional representation is the most effective model for accommodating gender balance in Parliament.3.3 Number of Parliamentarians
For the lower house, the COPAC Draft provides for a total number of 270 MPs. The upper house has a total of 88 senators. The total number of legislators under the COPAC Draft is 358.. Under the current constitution, the total number of parliamentarians is 303 (210 + 93). The COPAC Draft therefore provides for an increase of 55. This increase will burden the fiscus and the already overburdened taxpayer.3.4 Direct election of the President
The COPAC Draft maintains the position in the current constitution where the president is elected directly by all registered voters: clause 5.5. However, the COPAC Draft, like the current constitution is silent on whether the winner must have 50% plus one or a mere simple majority. A good constitution should prescribe for this in the Constitution itself and not leave it to the Electoral Act as is the case now.
3.5 Vice- Presidents as running mates
The COPAC Draft incorporates the American system of presidential running mates. Every presidential candidate is required to nominate two persons to stand for election with him or her as Vice- Presidents. The candidate must designate one of them as first Vice-President and the other as the second Vice-President. This means that the two Vice-Presidents will be jointly elected with the President. In the event of the President`s death, the first Vice-President will automatically become President for the entire unfinished term of the President. The second Vice-President will become the first Vice-President and another person will be appointed by the new President to become the second Vice-President.3.6 Announcing results of presidential elections
To avoid a repeat of the 2008 scenario where results of the presidential election were not announced for five weeks, it is advisable to introduce a time-limit for the announcement of presidential results. In addition, the current system in the Electoral Act of announcing the results at each polling station must be elevated to a constitutional position. Regrettably, the COPAC Draft has not provided for these matters. Regarding the announcement of election results, it merely says that “the results [must be] announced as soon as possible after the close of the polls”.3.7 Challenge to presidential election
Under the current constitution, there is no provision on challenging election results. The provisions are, however, in the Electoral Act, which provides for a challenge within 30 days of the announcement of the election result.
The COPAC Draft has specific provisions on challenging the validity of a presidential election. In terms of clause 5.6, “any aggrieved candidate” may challenge the validity of a presidential election in the Constitutional Court within seven days of the declaration of the result. Once a petition has been lodged, the Constitutional Court is required to hear and determine the matter within fourteen days after the lodging of the petition. If the Constitutional Court invalidates the election, there must be a fresh election within 60 days. The election of a Vice-President may be challenged only on the ground that he or she was not qualified for election.
The effect of the lodging of a petition challenging the election of president is that the “president-elect” cannot be sworn into office. The swearing in is put in abeyance pending the decision of the Constitutional Court, and the incumbent president continues in office: clause 22.214.171.124 Assumption of Office of President-elect
Under the current constitution, the President-elect must be sworn in either on the day he/she is declared elected or not later than 48 hours thereafter: section 28(5).
The COPAC Draft proposes to delay the swearing in order to give room to those who might wish to challenge the presidential result. Accordingly, it provides for assumption of office on the ninth day after the declaration of the result if there is no petition challenging the election. If there is a petition, the assumption of office has to wait for the Constitutional Court to determine the matter. If the election petition is dismissed, the president-elect is sworn in within 48 hours of the decision of the Constitutional Court.4. Delimitation of Constituencies
Under the current constitution, the delimitation of constituencies is undertaken by ZEC. This was introduced by Amendment No. 18 in 2007. The first delimitation by ZEC was for the 2008 election. Before 2007, delimitation was undertaken by a separate body called the Delimitation Commission.
The COPAC Draft retains the role of ZEC in this regard.
Significantly, the COPAC Draft proposes that the delimitation the undertaken “once every ten years”: clause 7.7(1). The rest of the provisions on delimitation follow the provisions of the current constitution. Even the problematic provision allowing a 20% variation in the number of voters per constituency are reproduced.
The “once every ten years” provision has no foundation whatsoever. The current practice of a delimitation every five years or before every general election is more conducive to democratic and credible elections as there is considerable voter mobility in the country.
Regrettably, the COPAC Draft maintains the 20% variation in delimitation which has been used for manipulating constituency boundaries. The common practice is not to allow variation beyond 5%.5. Timing of Elections
Under the current constitution, the exact date of an election is determined by the President but it must not be more than four months after the dissolution of Parliament.
The COPAC Draft makes two changes to this position. First, a general election must be held before and not after the expiry of the five-year term of Parliament. It must be held not later than 30 days before the expiry of the term. However, where Parliament is dissolved before the expiry of its term, an election must be held within 90 days of the dissolution. In this latter respect, the COPAC Draft reduces the period from four months to 90 days. The second change is that in setting an election date, the President must act”after consultation with the electoral Commission”. “After consultation” is different from “on the advice of”. Where the expression, “on the advice of” is used, the President is bound by the views of the electoral Commission. Where the President acts “after consultation”, he/she is not bound. This means that the COPAC Draft retains the current position where the exact dates for an election are determined by the President.6. Electoral Commission
The Electoral Commission in the COPAC Draft is one of eight institutions “supporting democracy”. In theory, all the other seven have some impact on elections but it is more appropriate to focus on the Electoral Commission.
The COPAC Draft follows closely the provisions of the current constitution on ZEC. However it proposes two changes..
(i) There is an option for the Electoral Commission to be given the role of registering voters. Under the current constitution, ZEC merely “supervises” the registration of voters by the Registrar-General. This option will only apply if the Electoral Act provides for that role. If the Electoral Act maintains the current position, then ZEC will continue merely to supervise the registration of voters by the Registrar General. It is puzzling why the COPAC Draft leaves this crucial decision to the Electoral Act.
(ii) The Electoral Commission will accredit observers. Under the current constitution, ZEC accredits observers “in accordance with an Act of Parliament”. The current Act of Parliament, the Electoral Act does not give ZEC full control over the accreditation of observers. It shares that role with government ministers (Foreign Affairs & Justice).7. Commencement of the Constitution/Transitional Provisions
The transitional provisions of the Constitution are contained in a special schedule, the Sixth Schedule. There are two relevant dates for the commencement of the constitution. The first date is the date when the constitution, after being signed into law by the President, is published in the Government Gazette. That day is called the publication day. On that day, some provisions of the constitution, including all those on elections, become effective. The second date is the date when the new President assumes office. On that day, the rest of the constitution enters into force. The position therefore is that the constitution enters into force in two stages: some provisions start on publication day while others follow and start when the President has been sworn into office.
With specific reference to elections, the Electoral Act would have to be scrutinized, and if necessary amended, to ensure that it is in conformity with the constitution. However,it must be noted that no new delimitation is required for the first elections which follow immediately after the enactment of the constitution. The existing boundaries of provinces, constituencies and wards will apply. Further ,regarding registration of voters, every voter on the existing voters roll automatically remains as a registered voter. There will be undertaken an intensive voter registration for those not on the voters roll and a voters roll inspection exercise for at least sixty days after the publication of the constitution. ZEC will continue as currently constituted but should any vacancy arise, it will be filled in accordance with the new constitution.
 All these aspects are identified in the terms of reference for this paper
 2005 (1) ZLR 171 (S)
 Stuart Woolman and John de Waal “Freedom of Assembly: Voting with your Feet”, in Van Wyk et al, Right and Constitutionalism 292 at 299
 See Clause 4.41
 2002 (1) ZLR 197 (S)
October 5, 2012, 12:28 pm
Last Sunday’s MDC rally in Bulawayo attracted some 20.000 people. A
Freedom House report had observed that the number attending the Anniversary
Rally would be an indication of the MDC’s popularity. It had been claimed
that Zanu PF is increasing its popularity while the MDC is sinking in the
public’s estimation. The truth of that assertion seems to be denied by the
presence of 20.000 in Bulawayo. Today, someone has suggested that Mugabe,
Tsvangirai and Mutambara are in cahoots to disband COPAC and have the
government take over the process of making a new constitution for the
country. If that is in fact the case, one wonders what those 20.000 loyal
MDC supporters who have suffered so much for their loyalty to the party will
think of their leader being in cahoots –even more than he already is - with
Mugabe, the very man they are pledged to dislodge from power.
“The struggle,” Morgan Tsvangirai told the crowd, “has reached a point
of no return.” For the supporters travelling to the party’s 13th anniversary
celebrations by bus, that must have seemed ironic as Zanu PF missiles were
aimed at their buses. Indeed, by Tuesday three of the victims of the bus
attacks were still in hospital. If ‘a point of no return’ implies that the
situation in Zimbabwe is over the worst, that victory is in sight, there is
certainly no sign that Robert Mugabe’s followers sense the end is near.
Neither does Mugabe himself show that he is about to concede defeat. As for
MDC supporters, they are still under daily attack from Mugabe’s thugs and
the ‘self-styled war veterans’ continue to invade farms. One particular
group which invaded an area in the Vumba back in 2004 has caused immense
environmental damage. Now the authorities are trying to evict the war
veterans but they have so far failed. “Mugabe gave us this land,” the war
vets say, “and we will only leave when Mugabe tells us to go.” Zimbabweans
in the diaspora will all have fond memories of the Vumba, that beautiful
area in the eastern highlands and now the ‘war veterans’’ activities
threaten the fragile environment: chopping down trees, ploughing on river
beds and killing game for the pot. It is not only for their ‘farming’
methods that the war veterans have been in the news this week. Not for the
first time, they have invaded the Minister of Finance’s offices in Harare,
demanding Tendayi Biti’s resignation if he fails to award them an increase
in their pensions. In response, the MDC issued a strong statement blaming
Zanu PF officials for looting the country’s resources. It is the Minister of
Mines offices war veterans should be invading said the MDC, referring of
course to the Marange diamonds.
It seems almost obscene in the light of such colossal diamond wealth to
mention the fact that Zimbabwe’s ancient sewage system is collapsing in
Harare and in Bulawayo water is desperately short. The danger to the whole
country’s health applies to all classes and areas of the country. Bulawayo
residents have been told that they must all flush their toilets at the same
time, once every three days! In Harare, the taps are dry as the water
shortage hits the whole country. Power outages too are now so common that
people are more and more resorting to generators. We are like Nigeria,
someone commented, as the song says ‘never expect power always’! Schools
and hospitals not to mention prisons and other institutions where large
numbers of people have to be catered for now constitute a very real threat
to public health.
It will take a great deal of money to put the infrastructure right and
as the respected commentator, John Robertson, points out Zanu PF control the
diamond wealth. Instead of using that wealth for the public good, the party
have used it to buy the support of the army, the CIO and their own party
members. The party actually controls the mining operations, Robertson claims
and while the country collapses, Zanu PF thrives. At the Anniversary Rally,
Tsvangirai told the crowd that “Mugabe will not be allowed to rig the
election” but with the army clearly on Zanu PF’s side – thanks to the
diamonds - it’s hard to see how Tsvangirai can make that claim a reality.
Yours in the (continuing) struggle, Pauline Henson
CONSTITUTION WATCH 2012
[5th October 2012]
How Will the New Constitution Impact on Elections
In Part I we outlined the changes that a new constitution will make to Zimbabwe’s electoral system. In this Part we shall set out what other major steps need to be taken to ensure that the next general election is free, fair and peaceful and not a repeat of the 2008 debacle.
The New Constitution Alone will not Create Conditions for a Free and Fair Election
During the long-drawn-out constitutional drafting process, commentators, press reports, etc, have suggested that the new constitution would go a long way to ensure the next general election would be free and fair. In fact the new constitution will not in itself create those conditions, as we indicated in Part I. A great deal will need to be done to create conditions under which free and fair elections can be held.
SADC Heads of State and government at their recent summit at Maputo urged the parties to the GPA: “to develop a roadmap together with timelines that are guided by requirements of the processes necessary for the adoption of the constitution and the creation of conditions for free and fair elections to be held.” This roadmap was in fact agreed by the parties and presented to an extraordinary SADC summit in Johannesburg in June 2011, but it left some unresolved issues and failed to state some time-lines. Very few of the “agreed issues” have been implemented. Now, with time running out before the next elections must be held, the SADC Organ Troika is reported to have recommended that a Cabinet mechanism be established to secure agreement on the unresolved issues and oversee implementation of the roadmap. [There is no evidence yet that this Cabinet mechanism has been set up.]
Any legislation to regulate the conduct of the next election, must be passed before the 29th June 2013 [because after that there will be no Parliament to pass it] and the general election itself must be held before the 29th October 2013. [Note: the life of Parliament could be extended by Parliament passing an amendment of the Constitution to that effect; otherwise it can only be prolonged if Zimbabwe is at war or if there is a state of public emergency.]
What Must be Done Before Free and Fair Elections can be Held
1 Measures directly related to elections
As outlined in Part I, the new constitution spells out who is to be elected and who will be entitled to elect them, but apart from requiring some elections to be held under a system of proportional representation it does not deal with the way in which elections are to be held. A great deal of legislative and administrative work remains to be done.The Electoral Act will have to be amended or replaced
Under the new constitution some seats in the Senate and the National Assembly and in provincial councils will be filled by elections on a system of proportional representation. [Note this applies to provincial councils under the COPAC draft; but ZANU-PF want this changed – see Part I] The Electoral Act currently requires all elections to be held on a first-past-the-post system so the Act will have to be amended to allow the holding of elections under the new system. The elections of provincial council members will also have to be provided for [unless the amendments proposed by ZANU-PF are adopted]. Very extensive amendments will be needed to do this — far more than those contained in the recently-gazetted Electoral Amendment Act — so the Electoral Act may have to be replaced in its entirety.The voters’ roll will have to be revised or a new roll prepared
The existing voters’ roll is generally regarded as completely inaccurate, stuffed with the names of voters who have long since died. Although the Registrar-General has stoutly defended the roll’s accuracy, his defence has not been endorsed by the Zimbabwe Electoral Commission, which is nominally responsible for compiling the roll. An accurate voters’ roll is essential for the holding of a fair election, so the existing roll will have to be revised or a new roll will have to be compiled. This will take at least six months — far longer than the 60 days specified in the new constitution — though the work could begin immediately, and new voters such as prisoners provided for by the new constitution could be added later.
New delimitation exercise desirable As pointed out in Part I, the new constitution will not alter the current number of constituencies for elections to the lower House of Parliament, and there will be no other constituency-based elections. Hence the next general election could theoretically be held on the basis of the existing constituencies. It would, however, be better to have a fresh delimitation exercise, because there have been doubts about the accuracy and fairness of previous delimitations and there has been a new population census since the last one. A fresh delimitation will take at least six months if it is to be done properly, because delimitation is not just a matter of drawing lines on maps: the present Constitution and the COPAC draft [and the ZANU-PF amended draft] require the Electoral Commission to consider “any community of interest between registered voters”, and one cannot do that without asking voters if they have a community of interest.
Voter Education Voter education will have to be undertaken by ZEC or ZEC approved organisations. There will inevitably be large numbers of young, first-time voters on a properly-compiled new voters roll. Even for long-standing voters, education will be necessary to ensure that there is understanding of the changes made to election procedures by a new Electoral Amendment Act.Preparations for monitoring of elections
With a past history of electoral violence and contested election results in Zimbabwe, the system for national and international electoral observers needs revision to ensure that:
· the observers are drawn from a wide spectrum of opinion
· the observers are allowed to monitor all aspects of the electoral process, from the registration of voters to the announcement of results
· the monitoring period extends from well before the election itself until at least a month after the results have been announced.
The Electoral Act does not provide for this extended type of monitoring, though the Electoral Amendment Act which has recently been gazetted will allow observers to be accredited to cover the period before an election is actually called. If the first elections under the new constitution are to be credibly monitored, the legal position of observers will have to be strengthened.
2. The Electoral Environment
For an election to be free and fair it is not enough for voters’ rolls to be accurate, for constituencies to be properly delimited or for the Electoral Act to be clear and comprehensive. The environment in which the election takes place must allow all parties and candidates that wish to do so to contest the election and put their cases fully to the electorate.
Some of the mechanisms and measures that are needed were specified in the Zimbabwe Elections Roadmap which, as already mentioned, was tabled at an extraordinary SADC summit in June 2011:Media reform
· The State-owned broadcasting and print media must be reformed to make them politically neutral, enabling the electorate to hear views other than those of ZANU-PF. This may be done, as suggested in the Roadmap, by appointing new boards of the Zimbabwe Broadcasting Company, the Broadcasting Authority of Zimbabwe and the Mass Media Trust.
· New, genuinely independent, broadcasters must be licensed.Rule of law
· The commanders of the Police Force, the Defence Forces and the CIO must commit themselves to operate in a non-partisan manner, consistent with their obligations under article 13.1 of the GPA. This is particularly important in the light of statements by senior army officers that they will not recognise a non-ZANU-PF government.
· More importantly, the commanders must take appropriate measures to prevent politically-motivated violence on the part of the members of their forces and, generally, to ensure the political neutrality of their forces.Freedom of assembly and association
Even though the new constitution guarantees these freedoms, its provisions will not be effective until they are incorporated into statute law. The Public Order and Security Act [POSA] must be replaced or further amended to reduce the discretion given to police officers to prohibit political meetings, and to ensure that any discretion they do have is exercised only to avert readily foreseeable disorder. Until this is done anyone who wants to challenge the existing law will have do it through a constitutional application to the Supreme Court, and that is likely to take so long that the election will be over before a decision is reached.Freedom of speech
The Access to Information and Protection of Privacy Act [AIPPA] must be replaced or amended to allow genuine freedom of speech during elections. In particular, the prohibition against denigrating the President must be amended to allow the President to be questioned and criticised at election times just like any other politician.
Time-Frame for These Reforms
All these reforms must be instituted as soon as possible because there is not much time left for them to be implemented. The deadline for the next elections is dictated not by agreement on the new constitution, but by the life of Parliament under the present Constitution. Parliament was elected in March 2008, and under section 63(4) of the present Constitution it lasts for five years from the date on which the President was sworn in. Mr Mugabe was sworn in on the 29th June 2008 after the run-off presidential election, so the life of the present Parliament ends on the 29th June 2013, when Parliament will stand dissolved. In terms of section 58(1) of the Constitution, a general election must be held within four months after Parliament stands dissolved, so the next general election must be held before the 29th October 2013. [The life of Parliament can be extended if Zimbabwe is at war or if there is a state of public emergency, but one hopes neither of those eventualities occurs]
As a result, any legislation to regulate the conduct of the next election, must be passed before the 29th June 2013 [because after that there will be no Parliament to pass it] and the general election itself must be held before the 29th October 2013.
If the next general election is to be held under the new constitution, then, in addition to the electoral reforms we have outlined, the new constitution itself will have to be enacted while there is still a Parliament – i.e. before the 29th June 2013.
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