Zimbabwe’s EU Sanctions Judgment: What they won’t tell you

Zimbabwe’s EU Sanctions Judgment: What they won’t tell you

Alex T. Magaisa

Bad news is hard to sell. It’s a nightmare for purveyors of propaganda. When you specialise in propaganda, it is incredibly difficult to spin hard facts and when you try, you end up looking very silly.

This is the case with the EU sanctions judgment which the state daily, The Herald reports today under the kind headline, “EU Ducks Zim’s $US50 bn claim”.

They want you to believe that the European Union, which they were suing, has somehow “ducked” the claim. No, the EU has not “ducked” Zimbabwe’s claim. The claim by the individuals who were suing the EU has, rather simply, been “dismissed” by the General Court of the European Union. That is the fact. Here is what the judgment, released on 22nd April states in clear terms:

“THE GENERAL COURT (Eighth Chamber) [of the EU]

Hereby:

1. Dismisses the action [by the Zimbabwean individuals]”

This is the fact – that the ill-advised action has been dismissed for lack of merit. To say the EU “ducks” the claim is a poor attempt to soften an otherwise heavy blow. The EU has not avoided the claim, as the word “duck” suggests. Rather, the individuals who brought a case against the EU have lost their case. Simple.

But it is hard, isn’t it, for these people to admit to Zimbabweans that they have lost the case and not only that, but that they have been ordered to pay the heavy costs of this action? Which is why it makes sense for them to say the EU “ducked” the claim rather than that they have lost the case simply because the court found that it had no merit.

There is also gross misinformation that this was a case brought by Zimbabwe against the EU. No this was not a claim by Zimbabwe but by individuals and companies in their personal capacity.

Reading the judgment, it is clear that this was an action by individuals and companies that were subjected to targeted sanctions by the EU. Nowhere in the judgment is it suggested that the Government of Zimbabwe was a party to the action. It could not be because, in truth, the sanctions have never been against the Government of Zimbabwe but against individuals and companies – which is why they are called targeted sanctions.

It was these individuals and companies who were making a claim against the EU and it is these individuals, not Zimbabwe, who have lost the case. They are not Zimbabwe.

Further, it is important to note that this was not a claim in damages but for the annulment of the EU sanctions order. It is this claim to annul the sanctions order that was dismissed. It’s not clear where the alleged $50 billion claim is coming from, unless it was part of the original propaganda claims. The court did not rule on a claim for damages but on the legality of the targeted sanctions against individuals and companies.

When the then Attorney-General Johannes Tomana launched the legal action a few years ago, it was reported by the same paper as if they had a sound case and that the they were certain of victory. Some of us doubted the soundness of the claim and thought it was a sheer waste of taxpayers’ money. But they went ahead anyway and hired very expensive London barristers.

When the matter was argued, Tomana led a team of local lawyers all the way to Europe. They were not acting pro bono. They were billing probably the Government, notwithstanding the fact that these were personal claims by individuals on the sanctions list. So while the taxpayers must count the cost of poor decision-making, you can be sure that the lawyers are smiling all the way to the bank. And God knows who else is taking a share of that cake.

All along an impression was constructed in the state media that they had a strong case and that the EU would be embarrassed. Even as recently as Monday, they were announcing to the world that the sanctions judgment was due on Wednesday, probably preparing for celebration. If they had won that case, we would not have heard the end of it. The drums would be beating all day and night, with experts crawling from everywhere to offer their opinions, all pointing to the notion of vindication – that finally they had been vindicated.

But they were naïve if they really expected a positive result in this case. They weren’t serious. One is left with the distinct impression that this was no more than a money-spinning scheme because you can be sure that the legal fees in this case are enormous.

Now that the claim has been dismissed by a court of law, which they voluntarily approached and whose jurisdiction they accepted, what does it say about the propaganda on sanctions? If they had succeeded, they would be pointing to it as firm evidence of illegal sanctions and that they, not their incompetence, were the cause of the country’s economic crisis. Now that they have lost, will they have the decency to admit that they were wrong? Or will they start accusing the EU Court of being biased against them? If so, one would be tempted to ask why they approached it in the first place! They were not forced to go to that court. They went there willingly and accepted its jurisdiction.

Some lawyers sympathetic to Government say there is no reason to despair over the negative judgment because in their opinion, the EU has since softened its stance towards Zimbabwe. This is complete nonsense. If it is so important that the EU has softened its stance, why did they persist with the case when they saw that the EU was softening? Why did they not withdraw when they started engaging in dialogue? Is it not because they were adamant that they would win and that for them, winning was important because it would represent greater political leverage and give them political capital in their bid to maintain power? Does the loss not weaken Zimbabwe’s negotiating position as the EU can now point to a judgment which says there was nothing illegal about their sanctions?

Another consequence of this judgement is that it blows apart the repeated claim that Zimbabwe has been under “illegal sanctions”. In a way, they have worked hard to disprove their claim that the sanctions were “illegal”. President Mugabe and Zanu PF have always railed against the EU and the US for imposing “illegal sanctions”. Now that they went to a court of law which has ruled that there was nothing “illegal” about the sanctions, will they stop their useless rhetoric over “illegal sanctions”?

The truth is that, politically, the Government’s legal advisors messed up and diluted the propaganda lines. Zanu PF cannot now go around claiming “illegal sanctions” because they went to court and a court has ruled that the sanctions were, in fact, legal. If anything, Zanu PF has allowed an external arbiter to validate the sanctions and in the process exposed the emptiness of their “illegal sanctions” mantra.

Another consequence of this judgment is that it has created a firm legal precedent not only regarding the legality of the sanctions but also the basis upon which those sanctions were imposed. Reading through the 303-paragraph long judgment, one is struck by the meticulous manner in which the court scrutinised the evidence, making important legal statements on the conduct of the various individuals cited in the matter. The individual applicants in this matter should be very worried about the legal implications of this judgment.

And therein lies the folly of this action – here’s a regime which is notoriously unwilling to submit itself to judgment by external actors, which, through this legal action has allowed itself and its conduct to be thoroughly examined and subjected to legal judgment by an external court. And worst of all, from a European Court. The irony is that this is the same Government which led the closure of the SADC Tribunal.

However, missing entirely from The Herald’s report today is the issue of legal costs and who is expected to bear them. It is important for taxpayers and Zimbabweans in general to know because it is likely that they will be made to carry these huge costs. The relevant part of the judgment is as follows:

“THE GENERAL COURT (Eighth Chamber)

Hereby:

1. Dismisses the action;

2. Orders Mr Johannes Tomana and the 120 other applicants listed in the annex hereto to bear their own costs and to pay the costs incurred by the Council of the European Union and the European Commission …”

This means that the individuals who took this legal action must bear their own legal costs. These are likely to be substantial costs. They used at least two London barristers, one of them a QC. QCs are top barristers who can charge thousands of pounds per hour in legal fees. However, I doubt that these individuals will carry their own legal costs personally, even though these were personal claims against personal sanctions. Instead, these costs will most likely be borne by the Government, and therefore by the taxpayers.

This will be the case, notwithstanding the fact that all these individuals are very wealthy individuals in their own capacity. They all have mansions, luxury cars, their kids go to expensive private schools and universities, they have large farms and they don’t even pay toll-gate fees on the roads. Yet they won’t pay their costs. The taxpayer will be saddled with these costs. This shouldn’t be the case. The taxpayer should not have to carry these legal costs.

Second, in line with the principle that he who loses pays the costs, these individuals have also been ordered by the court to pay the costs of the two bodies that were sued, in this case, the costs incurred by the Council of the European Union, the legislative arm of the EU and the European Commission, which is the executive body of the EU. These are likely to be very substantial costs. Again, the individuals and not the Government should be paying these costs. But it is likely that the Government will be made to carry these costs.

These are the things that The Herald or the Government generally will not tell Zimbabweans. They will say the EU ducked their claim instead of telling it like it is – that they lost the case they had brought; that it was dismissed for lack of merit. They will not tell you that they were ordered to pay the substantial legal costs and that these substantial legal costs will in fact be shifted onto the already burdened shoulders of the taxpayers.

wamagaisa@yahoo.co.uk

When populism gets in the way of economic wisdom

When populism gets in the way of economic wisdom

Alex T. Magaisa

Picture this: You are the Finance Minister of a severely distressed economy and you are engaging international finance institutions (IFIs) and other creditors in order to open gateways to access credit.

You hope this might give the impaired economy a boost and perhaps a chance for recovery. You know that these IFIs are not impressed by your country’s lack of fiscal discipline and reckless economic policies. So in preparation for the trip to Washington D.C. to meet these IFIs, you make a bold announcement which indicates a serious intention to cut down on recurrent expenditure.

It is a bold statement which on the face of it, communicates the message that we are prepared, as a nation, to make some serious sacrifices, and therefore to implement some austerity measures. You know it will disappoint a lot of people and probably make you very unpopular but it is necessary and has to be done.

So you convene a press conference and make your big announcement. Then you make your trip to the meetings, saying to them, look, we are serious. You are at the meeting when your boss takes to the podium at a national event and publicly humiliates you, saying the announcement to suspend civil servants bonuses is invalid and will not be implemented.

He reverses your bold announcement and although he does not say where the money will come from, he promises that civil servants will still get their bonuses. All this notwithstanding the fact that the same government has struggled to pay the previous year’s bonuses.

But there you are, meeting with the people to whom you are giving a list of things that you are going to do to cut government expenditure and your boss drops a bomb on you, effectively nullifying one of your key policy interventions. It makes you look like a fool. A self-respecting person would throw in the towel and save his dignity and integrity.

This is what happened last weekend to Patrick Chinamasa, Zimbabwe’s Finance Minister.

After making his bold statement cancelling civil servants’ bonuses for two years, his boss, President Mugabe at the weekend publicly rebuked him and said the bonuses will be paid. For some strange reason, bonuses for civil servants are regarded as a right. They are not linked to individual or general economic performance – every civil servant gets a 13th cheque.

Chinamasa was reported to be in Washington D.C. where he had gone with his delegation for the Spring meetings with the IMF and the World Bank. There he was most probably making a case for resumption of credit lines and other support. He was probably telling them how the government is going to cut expenditure by suspending the payment of bonuses. This bold statement was supposed to impress creditors and financiers, but just as he was doing so, his boss was saying the opposite, publicly humiliating him. It’s a hard job being Finance Minister in Zimbabwe. But Chinamasa is not the first to face this kind of behaviour.

Tendai Biti recently narrated how, when he was Finance Minister in the Government of National Unity (GNU) era, President Mugabe announced out of the blues at a public event that there would be a wage increase for all civil servants. All along, Biti had been saying there would be no wage increase because there was no money. This had earned him unpopularity among civil servants. Even some of his comrades thought he was playing bad politics.

Politically, Biti had every reason to play good boy in order to appease civil servants. He did not have to make these unpopular decisions. He could have been generous to the point of recklessness, increasing wages for civil servants and playing Father Christmas every month of the year and making civil servants believe the MDC would give them more money if they were in power. After all, Biti was the Secretary-General of the MDC and populist economic policies could have endeared him and his party to the ordinary people. But he was sensible and he took the unpopular but necessary line, saying we eat what we kill and that if we, as a nation, kill a mouse we must not expect to eat the meat of an elephant.

Then, as now, Mugabe took to the podium at a public event and announced that there would be a wage increase for all civil servants, contradicting his chief of Treasury. In recounting the episode, Biti says he was exasperated by his boss’ behaviour and that they haggled over the issue. He says eventually, they found a compromise because when Mugabe had made his announcement he had not specified the magnitude of the wage increase. He had just said there would be an increment but not by how much.

The compromise then was to settle for the lowest possible increase. But even that small increase was not motivated by economic sense but by populist politics. President Mugabe is a man who wants to appease and when economic rationality gets in the way of appeasement, the latter wins all the time.

As many have observed, back in 1997, President Mugabe faced an unusual threat from veterans of the liberation struggle. They protested at a public event, unhappy that senior government officials were corruptly benefiting from the War Victims Compensation Fund and their perks of government.

After that public protest, Mugabe promptly agreed to meet with them. At the meeting, he succumbed to their heavy demands. It was immediately announced that each war veteran would receive $50,000 and monthly payments of $2,000 in addition to other benefits.

When the then Finance Minister, Herbert Murerwa complained that there was no money in the budget, this was ignored. He had to find the money. In the end, the veterans got their largesse and economists blame these large and unbudgeted payments for the sharp drop in the local currency on a day generally referred to as Black Friday (14 November 1997). It was the beginning of the fall of the Zimbabwe Dollar, a downward spiral from which it has never recovered. Then again, as now, populist politics had got in the way of economic sense and the result was a disaster.

It is not clear how President Mugabe’s rant against his Finance Minister will have affected his presentations to creditors and financiers in Washington D.C. But it would have been awkward for him and his delegation. These cannot be easy moments for professionals who know there is no room for populist rhetoric in business meetings.

Chinamasa has taken his humiliation, saying in response to his boss that he made a “mistake”. His explanation for the so-called “mistake” is, however, quite telling. He lists a number of challenges that the government is failing to meet. Among them are the bonus payments from last year, pension payments for civil servants, wages for staff at foreign missions, medical aid contributions for staff and repayment of debts to creditors.

In essence, while Chinamasa is admitting to having made a “mistake”, he is actually giving justification for his earlier announcement to suspend bonuses and demonstrating the irrationality of his boss’ reversal of his policy announcement.

wamagaisa@yahoo.co.uk

Why I still celebrate independence

Why I still celebrate independence

Alex T. Magaisa

Today, I celebrate independence. I always have and always will. The hardships and suffering at the hands of the post-independence government have caused many to doubt the relevance of independence.

Indeed, that there is even a question of comparison between colonial Rhodesia and independent Zimbabwe is a serious indictment on the country’s leadership. That question would never be asked if there weren’t significant doubts over the role and effectiveness of the post-independence government.

Ordinarily, it should be obvious that life is better than under the colonial government, but the fact that some people dare to make a comparison should cause serious embarrassment on the part of the leadership. It suggests a serious betrayal of the dreams of the men and women who made ultimate sacrifice to liberate the nation from colonialism.

Yet these failings and shortcomings of the current government notwithstanding, I still celebrate independence.

I was only a toddler during the last few years of the war of liberation and I do not have a lot of memories of what happened during that dark period. But a few incidents stick out.

One afternoon, a group of young men descended upon our village. They were carrying guns and were all over my grandparents’ compound. I remember holding on very tightly to my mother’s skirt, completely terrified by the experience. One of the men smiled and said, in a very soft voice, “Manje shamwari zvawakabata mai, ko inini vangu vari kupi?” Then he laughed as he said this and the other men joined in the laughter.

They could laugh, too, I thought. This caused me to relax a little. He called me over and we had a conversation, during which he asked for my name and what I wanted to do when I grew up. I said I wanted to be a farmer.

When he asked why, I said it was because I wanted to drive a tractor. This caused a burst of laughter among all the men. I had seen a person driving a tractor and I admired that a man could drive something with such big wheels. When I heard that he was a farmer, I thought it was best to become a farmer so that I could drive a tractor, too. That was my dream. The men laughed again when I finished speaking.

The man then said that he and the other men were vanamukoma, my big brothers, and that they were working hard so that one day I could be a farmer and drive a tractor. He had a plastic bottle strapped onto his waist and he asked me to go and fill it up with water, which I did with much pride.

The men were hungry and thirsty. They wanted something to eat and water to drink. The women were already fetching water from the village well. They had also asked for some clothes and the young men of the village were selecting some old denims and boots to give to the men.

My grandfather was a renowned farmer by the very modest standards of peasant communities crammed on poor land. He had nurtured a healthy and fertile citrus orchard around his compound. There were many citrus fruits at his compound – oranges, mangoes, peaches, guavas and many more.

The men politely asked for some fruit. They were not yet ripe but they didn’t mind. They did not have much time to wait for food to be prepared and they would make do with the semi-ripe fruit, they said.

As they left, they instructed the women to spread finger-millet around the compound. That way, the chickens would run around the compound, picking the grains of finger-millet and in the process cover the many footprints left by the men.

As I learnt later, the wisdom of this was that leaving the footprints would give away the presence of the guerrilla fighters and this would put my grandparents and all the villagers into serious trouble if they were discovered by the colonial government’s forces. If they tried to sweep the compound in the afternoon, it would only raise suspicion that they were trying to cover up something. The chicken prints however, would do a good of covering the footprints without raising too much attention and suspicion. I was rather impressed by this wisdom of the guerrillas and I have never forgotten that incident.

On another occasion, we heard the sound of gunfire across the Save River, which was not far from the village. Shortly afterwards, an emissary from villages near the river brought a message that there was trouble in Wedza, across the river. A fight had erupted between the guerrillas and the government forces. Everyone ran for safety.

We ran for miles, away from the sound of gunfire. All the villagers, the old and the young, ran for their lives. Others hid in bushes while those who were able ran even further. My mother was carrying my young brother on her back and I was holding on to her hand, as we ran in the bushes. Many women and children were running, too.
Later, we got to a village near Kwenda Mission and there, we found sanctuary. However, I was so traumatised by the whole incident that I spent the entire afternoon hiding under a bed. Hours later, we returned to the village. The big boys who had remained near the village came to tell us that the fighting had ended.

A third incident was when some men brought two very healthy cows to the village. All the villagers were assembled at the cattle pen and told that the comrades had brought makabichi (cabbages). I later learnt that these cows had been stolen from the nearby commercial farms in Wedza. They were to be slaughtered and fed to the villagers and the guerrillas.

The men of the village duly slaughtered the cows and the meat was distributed. There was a lot of joy in the villages. This meat was referred to as makabichi to disguise its true nature. If authorities asked people what they were eating, they simply responded that they were eating makabichi (cabbages) and the authorities would not know that makabichi was, in fact, meat.

Over the years, I have heard from older villagers many other stories of events during the war. The war was an ugly experience and many bad things happened during that time. People died. Others were maimed and property was lost. Things were particularly bad in the rural areas, where many of us lived. It was a dangerous period and a time of immense suffering.

When the war ended, people celebrated. The war was over. People could get on with their lives again.

The end of the war also brought independence and with independence came the rights that had eluded many black Africans during the colonial period. There was great cause for celebration. The war had been a terrible and traumatic experience. Everyone wanted it to end.

I wish I could remember more about the war, but I know I was too young. One thing I do know though is that I have enormous respect for the young men and women who sacrificed their lives and time to prosecute the liberation struggle. Many of them never returned home to their families. They died and were buried in the bushes. Some of those who returned were scarred for life, some in physical forms but many more in the mental universe.

Last year, when I was in Harare with my two boys, Ano and Tino, I made it a point to drive them to the National Heroes Acre and there, I showed them the Tomb of the Unknown Soldier.

It was the main reason I went there, to pay tribute to the men and women who made the ultimate sacrifice and never returned home to their families. These are the unsung heroes of the struggle for independence.

But I also wanted my boys to have some appreciation of their history and that their people also have heroes to celebrate. My boys are growing up in a society that is different from the one in which I grew up. The history they learn rarely touches on the history of their people. Of late, because they are growing up and beginning to understand the ways of the world, they have begun to ask questions about their country and its people.

I regularly talk to them about the liberation struggle, about independence and the many stories around it. I have books which I give them to read. Their country is sometimes in the international media, but often for the bad reasons. They want to know more about it and I try to give them access to the bigger picture. I play a lot of Zimbabwean music, mostly Simon Chimbetu’s music. After playing a song like Hatikanganwe (We will never forget) many times over, they often ask what it’s all about and I use the opportunity to tell them about the war of independence.

“Kwaiyenda avo vakashinga moyo chete
Kwaikwire makomo avo vakashinga moyo chete
Kwaiyambuka avo vakashinga moyo chete
Musamukanganwe Jojo, Mikairi namukoma Tanyanyiwa
Vakatorwa moyo nehondo …”

I tell them that the song celebrates the heroes of the liberation war, the young men and women who took the brave decision to go to war. I tell them it is a song that reminds us not to forget the sacrifices of Jojo, Mikairi and Tanyanyiwa, symbolising the many men and women who went to war and perished there.

I know that many fellow Zimbabweans today look back at what has happened since we gained independence in 1980 and question whether all those sacrifices were worth it.

I know that many fellow Zimbabweans are disappointed and feel let down by an arrogant and heartless leadership which has failed to deliver on their basic needs and expectations.

I know that there is a lot of hurt and feelings of betrayal.

I know too, that many fellow Zimbabweans are tired of the empty rhetoric and the corruption.

I know that this has caused many to start questioning the relevance of independence.

It is true that things have not worked out quite as many would have hoped in 1980, when the country got independence. I imagine that the men and women who lost their lives would feel utterly betrayed by their comrades who have become corrupt beyond measure and consigned the majority to a life of penury.

But all the same, this does not diminish the sacrifices made by those men and women. They had dreams and they valiantly fought for them. Many died in the process. It is those men and women that I celebrate and honour on the day of independence. The failings of their surviving comrades does not dilute the importance of these sacrifices. But there is another reason why I still celebrate independence.

Every nation on this earth has its defining and indelible moments of history. These are moments that form the foundation of a nation. The Americans have the War of Independence. The French have the French Revolution. The British have, among other things, the Magna Carta, whose 800th anniversary (yes, 800 years) is currently being celebrated.

If you go around the world, almost every country has a defining moment that forms its foundational stone. Sulu Chimbetu, the great Simon Chimbetu’s son has a beautiful song on his latest album which captures this message.

“Nyika nenyika ine nhoroondo yayo”, he sings in Hondo.

“Musha nemusha une nhoroondo yawo”

Every country, every village has its own story.

For us, the liberation struggle is that defining moment. It is the foundation. That is our story. It can never be wished away. The failings and transgressions of present-day governors cannot alter this historical fact.

And for this reason, I always celebrate Independence Day and I always remember the sacrifices of the men and women who made it happen, including my own grandparents and fellow villagers who fed, clothed and protected the young men and women who prosecuted the liberation struggle. They are my heroes too.

A lot of rubbish has happened since independence. Those who are culpable carry the burden of that nonsense. But this does not diminish the significance of independence. The story of the nation cannot be properly told without the story of liberation and of the attainment of independence.

If we dig deeper and search further, we can still excavate the true meaning of independence and rescue those values and ideals that men and women laid their lives for. Among them are the rule of law, fairness, democracy, respect for human dignity, economic freedom, happiness and the protection of fundamental rights and freedoms.

We are still some long way from achieving these things but their attainment, with the right, caring and competent leadership, is not impossible.

Still, I celebrate the enormous sacrifices made by the brave men and women of yesteryear. That they and we all have been betrayed by their comrades is not their fault.

The ultimate tribute song that touches my heart and soul each time I play it is of course, the timeless Pane Asipo.

Mavaudza amai vake here kuti mwana wenyu akashaika
Akafira musango kure
Kure kusina naniko
Makumbira kudzinza rake here
Kuti tambirai mwana uyu kani
Mupei pekugara azorore
Igamba rehondo …

(Have you told his mother, that her son died in the war, in lands far away where no people live? Have you asked his ancestors, to accept his spirit and allow it to rest in peace, because he is a war hero?)

A beautiful tribute. Happy Independence Zimbabwe!

wamagaisa@yahoo.co.uk

When we were students (and what happened next)

When we were students (and what happened next)

Alex T. Magaisa

Back in 1994, I was a 19-year old student at the University of Zimbabwe, fresh from high school and part of a very excitable and energetic group of students. Those were interesting times. We were the generation that had started school soon after independence and now we were fulfilling our dreams. But we were also beginning to ask many questions.

I remember joining a series of demonstrations at various establishments across Harare, which were accused of perpetuating discriminatory practices. University life does something to young minds. Brought up to be obedient and docile at strict high schools, the university student suddenly discovered himself and began to see it as their role to ask hard questions, indeed, to be the “voice of the voiceless”.

We were young and excitable and we thought very highly of ourselves. We were quite vain and arrogant, regarding ourselves as some special breed.

Back then, there were very few universities and such paces bred elitism in the true sense of the word. In fact, there were only two major universities, the UZ and NUST, in Bulawayo, which had been established a few years earlier. There was Africa University in Mutare but it was private and still fairly marginal.

The result was that out of the thousands A-Level graduates who could easily have qualified for university education, very few entered the UZ and NUST and this generated an excessive amount of pride and arrogance among those who made it.

The UZ was the place to be, the local equivalent in terms of prestige and exclusive entry, of an Ivy League university in the US or Oxbridge in the UK. It was extremely hard to get in and many of those who did grew rather big heads. It was an odd mixture of different cultures, backgrounds and interests, although the majority, like myself came from mission boarding schools, where the school and religious authorities ran a tight ship. Coming to university was some liberation. Suddenly we could drink alcohol and smoke freely and we had the liberty to visit girls’ residences, freedoms that had eluded us in high school.

We wore T-Shirts carrying inscriptions like “Academic Blast Furnace” and at the Students’ Union bar, where we drank copious amounts of alcohol, drunk students proudly declared, “We drink daily and pass annually” or something like that. When we got our pay-outs (grants), we proudly declared that we were paid to learn, that we were so good that the state had decided to pay us to learn.

Thinking about it now, and looking at some of the images of that time, I cringe. But I console myself with the thought that it was a phase that one had to go through. It made sense at the time and I can certainly say I had the best of times in the 4 year period between 1994 and 1997 at the UZ. But back to 1994 and the demonstrations.

One evening a rumour quickly spread around campus that a male student and his girlfriend, presumably a student as well, had been denied entry at a restaurant located at the local Second Street Extension shops. It was a fairly new establishment called Adrienne’s, a very posh and excusive place.

UBA, as university students would not ordinarily have ventured into such spaces, preferring the establishments of the cheaper and affordable fast-food variety. UBAs preferred to spend their money on alcohol, not on food and books. Second Street Extension shops was a popular rendezvous for many university couples – if you were lucky to have a USA, as the female students were called, or were making an effort to get one, you would take a walk down to Second Street Extension for a pizza from Pizza Inn or some chips and chicken from Chicken Inn or Nandos.

You might play a game of pool, teaching the USA how to hold the stick and hit the ball accurately or indulge in some video games. Afterwards, with your ice-creams from Creamy Inn, you walked back to college – a romantic walk – and there, if you were lucky, you found time to share closer moments at one or the other’s place of residence. The UBA without similar fortune would drown themselves in alcohol at the SU or catch a lift into town where they would return by taxi in the wee hours of the morning, often with female company of the commercial variety, for a few moments of purchased pleasure.

This was the normal UBA-USA routine, not going to places like Adrienne’s. It was not the natural habitat for UBA. I suspect this particular UBA, if the story was true, had gone there in an effort to impress the young lady, probably to up his game against competition. But, as it turned out, it doesn’t seem to have gone according to plan.

The story that did the rounds afterwards was that this fellow had been denied entry by the white owners of the establishment. With hindsight, I suspect the procedure was that one had to book a table at a place like that but our fellow might not have known this. He might have just turned up and asked for entry whereupon he might have been told there was no table. He took this to be denial of entry and believed that was motivated by the colour of his skin. Well, that is certainly how the story was sold to us via the agency of the rumour-mill, which was very active at college.

And as rumours go, they quickly develop new strands and dimensions, with one or two coming up with their own versions of how they had been mistreated at the same or similar establishments.

If my memory is faithful, it was also around this time that the media reported on a story that a black employee had been subjected to degrading treatment by his white employer in the industrial areas. Apparently, as punishment for something wrong that he had done, the form of punishment was to make the employee stand in a circle marked on the ground all day. He was not allowed to move out of that circle. If my memory serves me well, it was referred to as the “Circle of Despair” in the state-owned Herald newspaper. It caused a lot of outrage when it was reported, revealing the latent racial tensions that lay beneath the veneer of post-independence unity and reconciliation.

This incident at Adrienne’s sparked an outrage at college. How could this be happening in an independent Zimbabwe, 14 years after independence? It was very easy to whip up the emotions of a young and excitable crowd at college and student leaders were very adept at doing this. Alcohol, whose price at the SU bar could be slashed at a moment’s notice, was a useful tool.

Things turned ugly very quickly. This “racism” had to be confronted and for that reason Adrienne’s restaurant was marked out for attack. A message had to be sent that Rhodesia was long gone and that racial discrimination was unacceptable. That was the overwhelming sentiment among the students.

Anyway, things quickly got into motion and hordes of singing and aggressive students marched onto Adrienne’s restaurant. It was built of glass and was fragile and easily vulnerable to attack. My memory is now hazy on what exactly happened that evening as I did not attend and was relying on second-hand information. But I think the owners eventually managed to negotiate with the student leaders and some offers of special discounts were offered to UZ students. That compromise ensured Adrienne’s survival.

When I sat there for dinner with a guest two years ago, I could not help but recount the events of those days. The place has of course had new owners now and looks like it has been well and truly indigenised. But still, I have always wondered whether the story that sparked those events was actually true.

Having “conquered” Adrienne’s, this generated new energy and a new resolve. It emboldened those who were leading the demo, which was now packaged as a crusade against unfair white privilege and discrimination. The view was that there were many more places that were like Adrienne’s which allegedly discriminated against blacks. They had to be confronted, too, it was said.

I recall two that were specifically targeted – Ramambo Lodge, a gazebo-type bar/restaurant (which probably had a gallery as well) that was located along the then Moffat Street (now Leopold Takawira Street). I think these days the location houses the headquarters of the Land Rover dealership. The other was Sandros, along Julius Nyerere Way, which was very popular with tourists and dreadlocked young men and women. I understand it is now a place of worship.

Looking back at it, these were places where some students were keen to enter but had never had the courage to do so. This became an opportunity. I took advantage of the invasion of Ramambo Lodge to discover what went on there. I was also there at Sandros, where incidentally, Tuku, a local artiste was belting out his popular songs to tourists. The inside of Ramambo Lodge was amazing. We drank a lot of alcohol that evening, including spirits that we were offered which we had never known. Previous threats to burn down the thatched roof of Ramambo Lodge quickly dissipated and everyone had a merry time. Afterwards, everyone was very intoxicated.

It was in the spirit of that time that Lawrence “Warlord” Chakaredza (May his soul rest in peace) threatened to go and exhume the remains of Cecil John Rhodes from the beautiful Matopos, where he has been resting since his death just over a century ago.

Warlord was a small but spiky character with a streak of aggression and courage that gave him legendary status among the students. We had heard of his “extraordinary feats” while we were at high school and when we arrived in 1994, we expected to see a hefty and brawny character called Warlord. Instead, what we saw was a small and actually rather affable character.

He was part of what was known as the Revolutionary Command Council (RCC), an informal group of self-proclaimed leaders of students’ demonstrations. The name had been derived from a unit of the same identity made popular during the Gulf War. He was among the leaders of these demonstrations against allegedly racist institutions. His next target was Rhodes’ grave. However, this did not gain much traction. The government would not permit the desecration of the grave.

The demos quickly ended. The next chapter, in 1995, were demonstrations against police brutality, after a student had been shot and killed during a demonstration. I recall the Police Commissioner, Augustine Chihuri churlishly saying, Tear smoke is tear smoke, it is not perfume” in response to criticism and complaints against police brutality. But that is a story for another day.

I just remembered these incidents in my university days in light of the furore over statues and lately the horror we are witnessing over foreigners in South Africa. What happened next in Zimbabwe – just a few years after our own demonstrations is something that South Africans must take heed of. These are dangerous times and such situations can very easily get out of hand, especially if politicians take advantage of these very emotional issues for their own nefarious agendas. What is happening is bad but it could get worse.

wamagaisa@yahoo.co.uk

The Anatomy of Electoral Reforms: Why the MDC must free itself from the “No Elections without Reforms” Box

The Anatomy of Electoral Reforms

Alex T. Magaisa

One afternoon of 5th July 2013, the MDC-T wrote a letter to the head of the ZBC, the national broadcaster, inviting them to the launch of the party’s election manifesto scheduled for 7th July 2013, at Rudhaka Stadium in Marondera. Zanu PF’s presidential candidate, Robert Mugabe, had just launched his party’s election manifesto on the same day and the event had been given live coverage by the ZBC. We believed that it would only be fair for the ZBC to provide the same facility to the MDC-T.

We did not expect the ZBC to respond positively to our request for live coverage because we knew of their entrenched bias against the MDC. But we wrote to them anyway, because it was necessary to demonstrate that we had made the effort but that they were, indeed biased and would not offer us equal opportunities. It was important to demonstrate their failure and/or refusal to comply with the electoral laws. This evidence would later be placed before the courts and election observers if need be, as evidence of unfair and unequal treatment in contravention of the electoral laws.

The ZBC duly responded to the invitation. They could provide live coverage of the MDC launch of its election manifesto. But there was an impossible condition. Attached to the letter was an invoice for the service. It would cost the MDC a cool $165,000 to cover the event, they wrote! This was a ridiculous sum of money given the prevailing economic conditions. We knew Zanu PF had not been asked to pay for their election manifesto launch and that they had not in fact paid a cent for live coverage of their event. No-one, not even Zanu PF with all its resources would afford to pay that kind of money. This was blatantly unfair.

“Thank you for responding to our invitation”, we wrote back to the ZBC, “however, your invoice quoted for US$165 000 as coverage fee is in our opinion not competitive and grossly unfair given that as a State broadcaster, the constitution requires that you give equal and fair coverage to all political players at this time of election campaigning”.

“We do not believe that we are being treated fairly and equally with other players, in particular, Zanu-PF as required by the constitution. We are aware that Zanu-PF did not pay for the coverage of their campaign launch at Zimbabwe Grounds on Friday 5 July 2013”. This was our letter to the ZBC, protesting against their ridiculous and impossible quote.

The ZBC did not respond. We went ahead and launched the manifesto. The ZBC was there but not for live coverage, as they had done for the Zanu PF event. We watched the news later that evening. They devoted a couple of minutes if not less to the MDC election manifesto launch and spend much of the time talking about Mugabe’s speech at his party’s manifesto launch two days earlier. This would be the pattern for the rest of the campaign period. Zanu PF had the lion’s share of coverage and the MDC had the baboon’s share. And when they covered the MDC, it was in the most negative terms.

We wrote to ZEC and quoted all the various provisions of the constitution and the electoral law which require fair and equal treatment by the state media and pointed out that this was clearly being breached by the national broadcaster. In the case of the manifesto launch, the ZBC had not directly refused to provide live coverage, but they had set an impossible condition which we knew they had not set for our competitor. The effect of their condition was effectively to refuse to provide live coverage of the event.

This was just one instance indicating the unfair and unequal electoral environment which was tilted in favour of Zanu PF and against its competitors. For years, the MDC-T had tried to get media reforms as part of the broader package of electoral reforms. The constitution and the law were clear – there were requirements on the state media to be fair and impartial and to give all electoral parties equal opportunities in its coverage. These measures, which still exist in the laws, were blatantly breached. ZEC did nothing about it, even though complaints were submitted.

The point I am making here is that the problem is not in the absence of laws requiring fairness and equal opportunities in media coverage of political actors in election campaigns. The problem is simply in the lack of implementation of these rules, motivated by self-interest and facilitated by the absence of consequences for non-compliance.

When therefore, the MDC-T and other opposition parties talk about electoral reforms, they must bear in mind that this is not merely about reforming the laws but more importantly, about reforming the behaviour, attitude and conduct of those who are charged with operationalising these systems.

Knowing the site of reforms is necessary because it helps to inform the strategies that can be adopted to advocate for and influence those reforms. It also helps to appreciate the complexity of the ‘electoral reforms’ which they have demanded as necessary before they can participate in any future elections. The question being, what is currently being done to achieve these reforms, apart from boycotting by-elections? I am not convinced that a boycott of by-elections alone, without more, will yield anything in this regard.

Let us look at another example.

Prior to the July 31 elections, on several occasions, the MDC-T wrote to the Zimbabwe Electoral Commission (ZEC) and the Registrar-General, in his capacity as the Registrar of Voters. A number of issues were raised in the various correspondence but I will consider only two for purposes of analysing the anatomy of electoral reforms. The two are the electronic voters roll and security sector involvement in elections.

Electronic Voters Roll

The first concerned the electronic voters roll. Both the constitution and the Electoral Law are clear on the obligation of the electoral authorities to provide a “searchable and analysable” electronic voters roll. This is necessary to enable contestants to inspect and verify the authenticity and accuracy of the register that is used in voting. The voters’ roll is probably the single most critical piece of material in elections because it determines the eligibility of individuals to vote and the accuracy of voting figures. This is why the law requires that it be provided free of charge to contestants who need it.

The clear legal requirements notwithstanding, neither ZEC nor the RG could provide the electronic voters roll. The 2013 election came and went without it and this remained the case more than a year after the election. This was a clear breach of the law, which compromised the election. Once again, we see that the problem is not the absence of the law requiring the provision of the electronic voters roll but the behaviour, attitude and conduct of those that are given the power to operate the system. If they do not want to provide the electronic voters roll, they just won’t give it. At best they will concoct all sorts of excuses, even if they don’t make any sense.

The real problem is the culture of impunity – vanoita madiro aJojina, as they say back in the village, which encapsulates the notion that they do whatever they want. This, again, is because there are no direct consequences for their unlawful behaviour. The system allows it and in fact requires them to behave like that and rewards them. Zimbabweans, even if they are outraged, do nothing to prevent it or to demand their rights.

The way to judge whether or not there have been reforms in this case is not to look into the laws because the laws already require the provision of the voters roll. The way to gauge whether or not they have changed is to take part in an election and see if they will comply and if not to demand that these rights be respected and if not, one can exercise their right to pull out. That way the point is made more emphatically. It’s a tactical issue. If you stay away completely, you will never be able to gauge the progress of reforms, if any.
Securocrats and Elections

The third example relating to electoral reforms concerns the role and influence of the security establishment in elections. The opposition has complained for many years over the pervasive role and influence of the securocrats in electoral matters. On a number of occasions in the last 15 years, senior members of the military have made political statements demonstrating a clear bias towards Zanu PF and against the MDC. In the run-up to the 2008 presidential run-off election, the military were accused of running a campaign of violence against supporters of the MDC. In the 2013 elections, military personnel were said to have carried out mobilisation campaigns for Zanu PF particularly in the rural areas. All these aspects were seen as unlawful and unfair interference by the military in the election process.

But there are other, more subtle ways in which the security sector has influenced the electoral landscape. A number of senior military officers are retired into the civil service or state institutions. In some cases, serving officers are deployed in civilian institutions. Recently, we read that the Deputy Prosecutor-General, Florence Ziyambi was allegedly assaulted by senior members of the army who are currently deployed at the National Prosecuting Authority. However, the constitution prohibits serving members of the military from involvement in civilian institutions. But all this is ignored.

It has long been suspected that bodies such as ZEC and others are populated by members of the security services. This is an important phenomenon, which goes to the very heart of electoral reforms which are often spoken of only in general terms by members of the opposition. But these kind of reforms do not happen overnight, especially if you understand the genesis and evolution of this phenomenon, where military men and women are deployed into civilian structures.

Those who understand the history of Zanu PF as a military-political organisation, know how this pattern has evolved since the years of the liberation struggle. Military historians have demonstrated how during the war Zanu PF developed a system of retiring or redeploying its senior guerrillas into political/civilian roles at the rear. This practice continued in the early years of independence, as senior military personnel were deployed to civilian institutions.

Those who retired from the military over the years were also redeployed into civilian institutions. This has become more prominent and noticeable in recent years, but more because we are all paying more attention to it. The point here is that the so-called “militarisation of the state” is by no means a new phenomenon. If you ask them, they will tell you that the redeployment of former military men into civilian roles is not new or unique to Zimbabwe and that would be true.

I mention this because it is important to understand the nature of the beast and to appreciate what it means for the electoral reform agenda. The truth of the matter is that electoral reforms are not and will never be a quick-fix job. There is no magic formula by which one day the opposition will wake up and say now there have been electoral reforms, therefore we will contest in future elections. It is a very complex matter because by their very nature, some of the practices that we are grappling with as a nation are deeply ingrained in our institutions.

These reforms will take years, if not decades to achieve. It’s a system, indeed, a way of life that has been established over a long period of time. I do not see any particular change in this pattern before 2018. A few weeks ago, we saw the appointment of new diplomats to various countries. Virtually all of them were ex-military personnel being deployed and retired into civilian service. A narrow view might be that these have nothing to do with elections but that would be to miss the point. Those appointments reflect a broader picture of the role and effect of the security establishment with the state structure.

Prior to the 2013 elections, as part of the reform agenda, we spent weeks trying to get an agreement on a Code of Conduct for the security services in regard to the election. It was drafted and discussed but there was no result, until the election came and went. The draft is probably buried somewhere. I cannot see how it will be adopted now, with the opposition no longer having the little leverage they had while in government. The constitution has clear requirements on the need to protect the security establishment from politicisation. But at the same time, speaking at a political event, a Vice President of the country introduces the head of the military as the “real” political commissar of Zanu PF. They do this because they can and nobody can stop them, whatever the law says.

By now the opposition parties must surely know that the problem is hardly with the men and women who are commissioners of ZEC. They are figureheads who have no power in real terms, notwithstanding what the constitution or the Electoral Law says. This is why despite the countless correspondence we wrote or the meetings we held with them, their word really counted for nothing and they could not do anything. If they are to take any blame, it is that they have allowed to carry a burden that is not theirs and to soil their reputations in the process. They are to be pitied, not blamed.

The opposition parties know or should know that the real centre of authority is in the secretariat of ZEC and another obscure, less-known but most critical organ called the National Logistics Committee, which is the one that actually runs the elections. This committee is populated largely by Zanu PF functionaries, albeit under the cover of civil service and state institutional roles. Many people now about ZEC but very few are aware of this crucial committee. And because no-one pays attention to it, they literally do as they please. Those who run the logistics of an election control the election. If you want reforms, you look into these little and obscure but critical bodies.
When the opposition parties negotiated the GNU, they concentrated on reforming the top-tier of ZEC, by nominating their own commissioners. This also happened in other commissions. What they did not know then, was that the real site of reform was not that top-tier but the lower-tier consisting of the secretariat and the other little but obscure bodies like the National Logistics Committee.

In conclusion, all this raises an important issue that the electorate must be asking: What is the MDC and other opposition parties doing to ensure that reforms are implemented. Because to be sure, electoral reforms are not merely about changing the laws and regulations. They go deeper than that, into the attitude, behaviour and conduct of those with responsibilities under the electoral laws and in electoral institutions. Failure to abide by the rules must have a cost. If there is no cost or if the cost is law, there is no incentive for them to comply. What the opposition should be focussing on are ways in which to raise the cost of non-compliance with electoral laws.

Election boycotts work sometimes, as was the case in the presidential run-off election in 2008. Tsvangirai boycotted that election and it raised the cost of non-compliance, forcing President Mugabe and Zanu PF to the negotiating table even after he had “won” a “resounding victory” in what was effectively a one-man race. The price of non-compliance and violence was that the result was robbed of its legitimacy ad recognition.

It might have worked on July 31 2013, because SADC, the AU and others would have understood the boycott. But on this occasion, I am just not convinced that the boycott of the by-elections has or can achieve the same effect. I think it is two years too late and in constituencies where the Zanu PF rigging machinery would have been under the most severe stress, given that these are traditionally, opposition strongholds.

I raised the issues to highlight the complexities of the electoral reform agenda. It is not a simple overnight affair. My fear is that if the MDC and other opposition parties stick to this line religiously and refuse to be flexible to deal with elections on a case by case basis, it could be a very long time before they contest Zanu PF. Rather than box themselves in the “no elections without reforms” corner, the opposition parties need to be exploring avenues by which to confront and beat the system, however skewed it is.

Two years ago, Zanu PF was intact and working solidly as a unit. This is no longer the case. The reconfiguration of the political landscape is itself a new space that has been created which can and must be exploited. Two years ago, the opposition had virtually no access into the old Zanu PF structures. This has changed, with the vanquished Mujuru group opening up new channels that can and must be exploited.

The truth of the matter is that it is going to take an exceedingly lengthy period of time before electoral reforms as highlighted in this paper can be achieved. But meanwhile, the opposition must remain vigilant and alert to the new opportunities and avenues that the evolving political landscape is generating. That way it can liberate itself from the “no elections without reforms” box.

For a long time after the 2013 elections I was despondent and had written off the 2018 elections. The events in Zanu PF over the last half-year and the fact that the ruling party has shown itself to utterly incapable of transforming the economy and therefore the downward spiral of the economy have revived some minute hope that there might still be a chance. It will depend not merely on electoral reforms, but whether the opposition parties, including the new entrants can exploit the opportunity that is presented. If the MDC does not free itself from the box of “no elections without reforms”, they might never contest an election again because these reforms might never come to complete satisfaction. What’s better is to seize opportunities when they arise.

wamagaisa@yahoo.co.uk

The MDC-T and By-elections: Half-Hearted Protests Won’t Work

The MDC-T and By-elections: Half-Hearted Protests Won’t Work

Alex T. Magaisa

In the days following the July 31 harmonised elections in 2013, I sat down with colleagues in the MDC-T as we tried to make sense of what had just happened. Those were difficult moments, extremely hard to comprehend.

It was a heavy blow, the daze that afflicts the senses of a pugilist upon receiving a heavy and unexpected punch from a sly opponent. We were staggering, confused, disoriented, and trying desperately to find our feet. The atmosphere was sombre and words were few, many of them questions as to what had really happened.

Amid the shaking of heads and mutterings, there was a general consensus among MDC-T supporters that there had been massive election rigging by Zanu PF. How it had happened was still a mystery whose answer we were trying to piece together.

A few days earlier, just before the elections, the mood had been buoyant, not least after the massive show of support at the Cross-Over Rally held two days before the election.

Now, only a few days later, the mood resembled that of a funeral. It was in that atmosphere that the question arose as to what the MDC-T should do going forward. The politicians, including all candidates, gathered at the residence of Morgan Tsvangirai, the party leader, where they hoped to plot a way forward in light of what had transpired.

We, the technical staff, sat elsewhere and also discussed the options. One issue that came up was what the MDC-T should do regarding participation in parliament. Zanu PF had won a two-thirds majority but the MDC-T had won seats in its strongholds, particularly in the cities of Harare and Bulawayo, where in the latter it had achieved a clean-sweep of all seats on offer. There were two views.

The first was that the MDC-T should totally boycott parliament, in order to strengthen its protest that the election had not been free and fair. The second was that the party should take its seats and participate in parliament.

I was in favour of the first view.

I did not believe that the strength of our protest would be assisted by taking up seats from an election that we were saying was illegal and illegitimate. My view was that if we were saying that the elections were not free and fair and therefore without legitimacy, our view would be strengthened by total disengagement and withdrawal from parliament.

I did not think that the presence of our MPs, in a parliament in which Zanu PF had two thirds majority would make any difference. If we were going to participate in parliament it would make our case weaker in our engagements with the region and the international community, to whom we were saying the election was illegitimate. How could they take our protest seriously when at the same time we were happy to accept the seats from an election which we were saying was rigged and illegitimate? It was a contradiction that I did not believe reconciled in our favour. However, this view was in the minority.

The main argument in favour of participation was that it was necessary in order to defend “the democratic space”. This argument was advanced in the case of provinces like Bulawayo, where the MDC-T had won all the seats and in Harare, where the party had an overwhelming majority of the seats.

It was an important argument, although I was not convinced how this “democratic space” was to be defended given the size of Zanu PF’s parliamentary majority. The MDC-T would not have the capacity to stop ordinary legislation or constitutional amendments should Zanu PF wish to make any legislative or constitutional changes. They would make some noise in parliament but no more than that.

My biggest problem was that participation in parliament signalled a half-hearted protest, a weak protest which would signal legitimation of the process about which we were complaining.

The greatest reason, as I saw it, was that it was impossible to stop the MPs who had won their seats from taking them up without risking a split in the party. Unbeknown to members of the public, the level of selfishness in politics is extraordinary. Politicians or at least most of them, are, by nature, extremely selfish creatures. The MDC-T candidates that had won their seats or were entitled to proportional representation seats would defend their right to take up their seats.

Being an MP comes with a number of perks, quite apart from assuming the high station of being referred to as an “Honourable” member of society. They would not give that up simply because the party felt the elections had not been free and fair. Indeed, I had overheard some saying that they had worked very hard and invested personal resources in their campaigns. For them, their victories were down to hard work. They may not have realised the irony of what this meant for their colleagues who had lost their seats – that this meant they had not worked hard enough to beat the system. But even if they had known, they would have probably said it wasn’t their problem.

The long and short of it was that it was clear that the party would not boycott parliament. They would participate and defend “the democratic space”, as the argument went. At that point the futility of the protest against the election became more obvious to me. If were unhappy with the election, we had to make important sacrifices to make that point. Everyone had to make those sacrifices. But the party was not prepared to do that.

I was therefore not surprised when SADC and the AU did not take our protests seriously. There were other factors, including the contentious decision to participate in the July 31 election itself but that is for another day.

Now the party has recently faced the question of participation in the by-elections after the expulsion of MPs who were accused of having crossed over and left the party. As that debate raged on, I thought about those discussions that we had had in the aftermath of July 31. The party could have chosen the path of escalating the election crisis by completely refusing to participate in parliament or taken the half-hearted route of protesting while still participating in parliament. It chose the latter.

The price was that few that mattered took the party’s protests seriously to cause any impact on the Zimbabwean political system. Instead, SADC and the AU went on to warmly embrace President Mugabe, giving him the Chairmanship of both organisations. More recently, he was on a state visit to South Africa, something that he could only have dreamt of just five years ago, when his rule was plagued with illegitimacy.

In many ways, the current debate mirrors the debate of that period. On the one hand the party has chosen not to contest the by-elections in 14 constituencies but it will still fill the vacancies in proportional representations seats. But in truth, both are by-elections by different names. The difference is that one set is contested and the other is not. The party has chosen to boycott the contested ones but elected to fill the uncontested ones. To observers it seems to be yet another half-hearted protest – one which says we can boycott one aspect but participate in the other.

This situation suits Zanu PF very well. Asked if the MDC-T has participated in the electoral processes to fill vacancies created by the expulsion of MPs, the answer cannot be no. The answer is that the MDC-T is participating in some but not in the others. It is this half-hearted, ambivalent approach that weakens the party’s protest.

If the party is serious about its protest against the unfairness of the electoral system, it ought to do what it should have done in the immediate aftermath of the July 31 elections, which is to withdraw completely from all processes, including participation in parliament. It cannot protest against elections without reforms while at the same time it is happy to submit names of candidates to fill the seats of MPs under proportional representation, which is part of the very same electoral system that they are protesting against.

As long as the MDC-T remains part of the political system, as participants in the conventional political processes, pretending to be defending the so-called democratic space, it lends legitimacy to the system and gives comfort not only to Zanu PF but to those that have lately begun to embrace Zanu PF notwithstanding the democratic deficit. The decision of the party not to contest in the by-elections, while taking up the remaining 7 proportional representation seats and remaining part of the parliamentary processes, will therefore not yield much by way of protest. If you want to create a crisis, then create a big crisis – not going for half-measures.

wamagaisa@yahoo.co.uk

Government Must Exercise Caution on Constitutional Amendments

This article appears in today’s issue of Newsday.

Government Must Exercise Caution on Constitutional Amendments

Alex T. Magaisa

The major purpose of this article is to urge Government to exercise caution in its proposals to amend the Constitution. A government Minister was quoted recently by the state weekly paper, indicating that constitutional amendments were imminent. But the national charter is barely two years old, has not been fully implemented, and yet Government is already giving signals that it wants to amend it. The justification they are giving is that it is too expensive to implement. This sounds like a very convenient excuse to avoid aspects of the constitution that Zanu PF never wanted.

Having participated in the constitution-making process, and knowing the compromises that were made and also having reviewed the problems regarding some of the clauses, I appreciate that there will be need at some point to fix some weaknesses but these revisions must not fundamentally alter the content which was overwhelmingly endorsed by the people.

This need for caution and the importance of protecting the constitution is the spirit that is evident in the provisions regulating the amendment of the Constitution. I intend here to give a simplified outline of the procedure for the amendment of the Constitution which is dealt with under s. 328 of the Constitution.

As I demonstrate, the procedure is deliberately complex and onerous in order to act as a strong disincentive to unnecessary amendments of the Constitution. The underlying and predominant object behind the onerous provisions is to ensure that the Constitution is protected from amendments at the whim of a sitting government.

The Constitution is an important national document, upon which all laws are founded. The process of making the Constitution was arduous and burdensome. It took a number of years and involved complex negotiations to arrive at a document that reflects a broad range of interests, not the views of a single political party. It required approval at a referendum. With an approval rating of more than ninety percent, the reasoning is that it should take something very important and unavoidable, to require an amendment to the Constitution.

Since political parties in charge of government prefer to panel-beat constitutions and laws to suit their own demands, it was agreed that the Constitution should be given sufficient protections against unnecessary amendments. Not only would this undermine the will of the people, as expressed through the referendum, but it would also be retrogressive as it would lead to a narrower and more partisan Constitution.

This is not to say that there should be no amendments at all to the Constitution. Like all laws, there may be recognition through experience, that it is necessary to amend the Constitution. Some things may not work in the way that was envisaged when the Constitution was passed. It may be necessary to tweak it, but only when it is really necessary.

This was the reasoning when important safeguards were established in s. 328, so that, while recognising that amendments to the Constitution may be necessary, nevertheless, such amendments should go through rigorous scrutiny and through an onerous procedure. This would mean that anyone who wants to amend the Constitution would have to possess a very good reason and solid grounds for doing so.

Now, I will set out the procedural safeguards in s. 328, designed to regulate the procedure for amending the Constitution and therefore to prevent unnecessary amendments.

The safeguards include:

1. The requirement that a Constitutional Bill has to be passed by a special majority in Parliament. Before Presidential assent is given, the Speaker of the National Assembly and the President of the Senate must provide certificate to prove that the Bill was passed by a special majority. Usually, ordinary Bills are passed by a simple majority. However, a Constitutional Bill requires a two-thirds majority of the members of both Houses – the Senate and the National Assembly. It is important to emphasise that this is in respect of all members, not just members who are present when the vote is taken. All of this means the requirement of a special majority is a particularly onerous one.

2. There is also a requirement that any amendment of the Declaration of Rights in Chapter 4 must be put to a national referendum, where it has to be approved by a majority of voters. Parliament alone does not have the power to amend the rights provided for in the Declaration of Rights. This ensures a high level of protection of the fundamental rights and freedoms contained in the Constitution. This adds to the onerous character of the constitutional amendment procedure in respect of fundamental rights and freedoms.

3. A further safeguard is that any Constitutional Bill must be subject to a wider consultative process before it is presented to Parliament. The Speaker has to give at least ninety days’ notice before a Constitutional Bill is introduced to Parliament. After this notice has been given, Parliament is required to invite members of the public to express their views on the proposed Bill. This can be done in public meetings and through written submissions. Parliament has a duty to convene meetings and provide facilities to enable the public to do so. This is a reflection of the process that was used during constitution-making, the idea of which is to ensure that the public is heard and actively participates in the making and amendment of the constitution.

4. A further limitation on the power of amendment is that any proposed amendment which seeks to extend the length of a term-limit provision, will not apply to a person who held or occupied that office, or an equivalent office, at any time before the amendment. This means an incumbent cannot be a beneficiary to a constitutional amendment which seeks to extend his or her term of office. This provision removes the incentive for incumbents to amend the constitution in order to extend their term of office.

5. Since all these safeguards could be removed if the provision which provides for them is easily amended, the provision contains an important mechanism of self-defence. S. 328(9) provides that the provisions which require amendments of the Declaration of Rights and circumscribe the power to extend term limits must not be amended unless they are put to a national referendum. This means amendments to the provision which deals with amendments can only be amended via a national referendum, which makes it very onerous.

The effectiveness and efficiency of the safeguards depends on the balance of power in Parliament and in particular, the strength of the ruling party vis-à-vis the opposition. Where the ruling party has a special majority, these safeguards are easier to surmount as it is likely that a ruling party will be able to whip its members to vote in favour of the Constitutional Bill.

Therefore, in the case of ordinary Constitutional Bills, which require only a special majority, the ruling party would be able to meet that threshold if they have the special majority. Applying this to the present Parliament, it is clear that with a special majority, Zanu PF would be able to meet the threshold to pass amendments to the Constitution, unless there is rebellion within its ranks.

In regards to special Constitutional Bills – for example, Bills that seek to amend the Declaration of Rights – in addition to the special majority in Parliament, they would have to be put to a national referendum. This means if the current government wishes to amend such provisions that require this special procedure, it would have to organise a referendum. Referendums demand resources – time, money and organisational capacity. This is onerous and burdensome.

Given that the country is struggling under the weight of economic challenges, it would have to be a serious matter that would justify taking this route. This means unless it is absolutely necessary, it is hard to see why the government would want to amend provisions that require this special route.

Is it necessary to amend the Constitution?

The first two years of the new Constitution have shown obvious reluctance on the part of government to implement some parts of the Constitution. For example, the devolution provisions have not been implemented. Commissions provided for in the Constitution have not yet been established. Laws required under the Constitution have not been established or realigned. Yet, against this background, the government is already discussing proposals to amend the Constitution.

While there are areas of concern, the proposition to amend the Constitution at this early stage sends very negative signals. This is a negotiated Constitution, and one that was approved overwhelmingly by the majority of Zimbabweans. Any justifications for its amendment so early in its life would have to be on very solid grounds.

These propositions give rise to fears that Zanu PF only wants to get rid of provisions that it never wanted in the first place. Obvious targets would include provisions on devolution and commissions such as the National Peace and Reconciliation Commission. This will be justified on the grounds of lack of money to sustain these institutions, but in reality the reason would be to avoid provisions that they were always opposed to but had to agree to in the constitution-making process.

Amending the Constitution so early only opens the flood-gates to more amendments and before we know it, we shall back to where we were before the constitution-making process. This is a dangerous route to take and the government needs to exercise restraint. If indeed, there where is any reason for changes, then the government should convene a national forum at which the propositions will be scrutinised and if changes must be done they will be done on the basis of a broad-based consensus.

wamagaisa@yahoo.co.uk