"Consider that the constitution is being written in a context where anti-democratic forces are more powerful than democratic forces. Do not let your quest for the perfect be an enemy of the good” - Ncube to NCA
As if the prospect of a free and fair election in Zimbabwe this year is not daunting enough, constitutional law professor Welshman Ncube (r) suggests elections can only happen in September, while the co-minister of Home Affairs, Theresa Makone thinks the referendum that is supposed to precede the election may not happen at all.
Prof Ncube, who has now accepted the Zanu (PF) defining him as a political principal, but not a government principal, told a Crisis in Zimbabwe interface forum yesterday that the implementation matrix of reforms favours a September election - contradicting Prime Minister Morgan Tsvangirai's July date.
But Makone, who talked tough about bringing the police in line when she was appointed Co-Home Affairs Minister, elbowing out Giles Mutseyekwa, sounded overwhelmed and unable to do anything about the violence that threatens to derail the long-awaited election.
In an SWradioafrica interview Makone also cast doubt on the police doing a proper job of investigating the killing of the son of an MDC-T official in headlands, saying President Robert Mugabe's party, ZANU PF had already put pressure on the police to downplay the arson attack that killed 12-year-old Christpower.
According to the report, Makone who is in charge of the Police as Minister of Home Affairs, actually warned that this year’s election would be bloodier than the 2008 elections, unless ZANU PF, “switches off its violence machinery.”
Analysts however say Zanu (PF) violence cannot be turned off like closing a tap of water, mostly because the Zanu (PF) officials fear the justice that will face them for their previous atrocities, but also because they want to protect their privileges that come with control of government resources gives them.
An end to the violence would have to be imposed through an external force, like the SADC which has already been tasked by the African Union to restore order in Zimbabwe, but is continuing to dither while the election is clearly under threat.
Makone accused President Mugabe, or his party of speaking of free and fair elections by day, but at night talking about winning at all cost, "even if it means repeating or exceeding the violence of 2008.”
The Zimbabwe Republic Police Commissioner-General Augustine Chihuri apparently reports to Makone only on policy issues, but on operational issues he reports to President Mugabe. She said between Chihuri and Mugabe someone was not doing his work.
President Mugabe has spoken, some say half-heatedly, about ending political violence, but the violence is continuing, suggesting that the Police Commissioner General is not doing his job. But we have not heard Mugabe reprimanding him. In fact he reappointed him recently over strong objections by Prime Minister Morgan Tsvangirai.
Makone told SWradioafrica's Violet Gonda that both the MDC-T and its splinter group, and Zanu (PF) were supposed to campaign together for a Yes Vote on the referendum, but ZANU (PF) had already gone into its default position of power-at-all-cost.
Then she shockingly revealed that she personally would not be surprised to hear that there will be no referendum after all, as everyone was now being catapulted into a rushed election which should have followed a referendum.
While the MDC-T has reportedly submitted a dossier on political violence to the SADC facilitator, President Jacob Zuma, nothing suggests that there is any kind of urgency that would be consistent with the sentiments expressed by Makone - a senior MDC-T official.
Meanwhile Ncube said the July date that was being bandied about was not practical. It would fail in the case of a close election that would require a run-off, because the run-off would coincide with the United Nations World Tourism Organization (UNWTO) Assembly which Zimbabwe expects to host in August 2013.
The date of the run-off must be 28 days after the first round of elections. “Unless you are very impractical, or you are a gambler, you cannot proclaim a July date," he said.
Ncube told civil society that MDC-T wanted elections before the UNWTO Assembly because that would be a deterrent to political violence as ZANU-PF would fear losing the chance of hosting of the event. But he doubted that Zanu (PF) would prioritise the UNWTO summit over staying in power, which makes the September election more likely.
It was also more likely to take that long to get the election show on the road because the process of adopting the new constitution and aligning the electoral Act with the new Charter would need time. According to his experience with negotiations there would be more than a month of haggling which could also delay the elections.
Also, if, as has already happened today, the National Constitutional Assembly (NCA) lost its Supreme Court bid to postpone the referendum set for March 16, and the Copac Draft Constitution was adopted by a Yes Vote, the time-lines would still point to a September date as the earliest for the election, said Ncube.
This is because the law provides that the new constitution be gazetted for 30 days, so it would optimistically reach Parliament soon after the referendum results are known, and if Parliament passes it quickly, the new constitution would become available by early May.
That Constitution requires a mobile voter registration for a minimum of 30 days, which optimistically takes the process to early June.
“Let’s assume the elections are announced on the 1st of May, the law says you need not less than 58 days between the date of proclamation and the election date, which will take us to end of July,” Ncube said.
The adoption of the new constitution would also mean that the electoral laws would need to be amended to rope in the new electoral system of proportional representation and ‘zebra’ allocation of seats, and amendment of the Urban Councils Act to factor in the issue of directly elected Mayors.
“You can factor-in a month or so where there will be haggling over electoral amendments. That’s why we have advocated for a September election. The government will be lawful until 27 September because elections must be done within 90 days after June 29,” said Ncube.
On the referendum date, Crisis in Zimbabwe Coalition Director McDonald Lewanika said the entire civil society was not happy with the proclaimed date, not just Madhuku. "All of us feel that the time given between now and the referendum is too little.”
Ncube, a former National Constitutional Assembly (NCA) Task force member, said it was a decision of the government principals rather than the political principals, so he could not be blamed, but he also added his voice to those who say the draft constitution represents incremental gains and its rejection would be a repeat of the 2000 miscalculation.
“We rejected the constitution of 2000 because we wanted a perfect constitution. Had we accepted that constitution we would not be having Robert Mugabe as a problem today because that constitution would have stopped him from contesting in the forth coming elections.”
He chided those who would reject the current draft Constitution not to repeat the mistake.
“We saw there are those who are still holding onto the purist way of writing a new constitution," said Ncube, adding that the NCA as represented Lovemere Madhuku was still holding on to that purist path, yet, when the NCA roped in now-Judge Ben Hlatshwayo to write a road-map for the NCA it was not meant to be a bible.
“I don’t think we will have an opportunity to have it the perfect way,” said Ncube, adding that the draft was “as good as you can get;” and that it was better than the current one in all areas, including on devolution.
More so, he urged critics to consider that the constitution was being written in a context where the anti-democratic forces were more powerful than the democratic forces, and he left them with the American saying: "Do not let your quest for the perfect be an enemy of the good”, said Ncube.