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One more hurdle could hinder elections

ZIMBABWEANS are now anxiously waiting to hear when elections will be held after the three main political parties in the coalition government finally cleared some of the sticky issues in the Copac draft charter, but analysts say there is yet another hurdle that might hinder the holding of elections this year.

REPORT BY PATRICE MAKOVA

If people agree to the new document in a referendum, its implementation is reliant on the enactment of new laws that harmonise the new charter with the country’s existing laws. This could take years as it did in Kenya since the proposed charter does not have timelines that mandate legislation passage within a specific period.

The three principals: President Robert Mugabe, Prime Minister Morgan Tsvangirai and MDC leader, Welshman Ncube say a referendum will soon be held, followed by elections.

The parties were already campaigning for a “Yes” vote after agreeing to further compromise on issues such as executive powers, devolution, presidential running mates and the establishment of an independent prosecuting authority and constitutional court.

But doubts have emerged as to when the new constitutional principles would be harmonised given that the country has a history of political bickering.

Political scientist Ibbo Mandaza thinks the country was unlikely to go to the polls this year, but in 2015 as parties in the coalition government still needed to align the country’s laws with the new constitution.

Such a process could take two years, he reckons.

Mandaza believes the synchronisation of the old laws with the new constitution would likely be long-drawn out, as was the case in Kenya where the process took two years in the worst case scenario.

He said lawyers from Zanu PF and the MDCs were aware of the requirement, but could not dare speak out, fearing being labelled “saboteurs of an election mode”.

Constitutional law expert, Greg Lennington concurred that aligning old laws with the new constitution was necessary before elections. 

He said the completion of the process would largely depend on how fast Parliament passed the necessary legislation.

“The difficulties will come if there are controversies,” he said. “This will delay the enactment of the necessary acts.”

Lennington said if all political parties in Parliament were agreeable to the contents, aligning the new laws could be done at once through a General Amendment Act – the best case scenario.

But MDC-T Copac co-chairperson, Douglas Mwonzora said while the process of aligning laws with a new constitution could take six months under normal circumstances, Parliament would be asked to expedite the process.
“Only provisions with a direct bearing on elections will be aligned to the new constitution before the next polls,” he said.

Mwonzora said provisions which have to be aligned to the new constitution included those to do with devolution of power, the conducting of elections and the behaviour of security forces.

Zanu PF Copac co-chairperson, Munyaradzi Paul Mangwana said it had been agreed that only electoral laws would be aligned to the new constitution.

“We are not Kenya which took two years to align their laws with a new constitution,” he said. “We wrote a new constitution on the understanding that we are not creating a new country.  Laws will continue with the exception of those not consistent with the constitution. Other laws will be amended as time goes on.”

Mangwana said in urgent need of aligning with the new constitution included provisions for special seats for women in Parliament and provincial council elections.

He said a Provincial Council Act had to be passed to give effect to a provincial council in a proposed limited devolved system.

“There are no time frames. I don’t know how long this alignment will take,” Mangwana said. “It will depend on how fast relevant ministers, the civil division of the Attorney-General’s office and Cabinet act.”

But the political bickering which characterised the constitution-making process for the past four years, makes it highly unlikely that the three parties would easily agree to the contents of a new legislation.

Laws to do with security sector and media reforms, land commission, traditional leaders, term limits for senior public officials and dual citizenship are likely to be contentious.

Zanu PF is unlikely to agree to meaningful democratic reforms. The party has been resisting the de-politicisation of security forces and the opening up of the broadcasting space.

Resolve outstanding issues first: Coltart

Constitutional lawyer and MDC legal affairs secretary, Senator David Coltart said although a new charter was imminent, the agreed electoral roadmap and all outstanding issues to the Global Political Agreement (GPA) had to be fulfilled before elections were held.

He said in terms of the law, aligning laws to the new constitution should not take long; but the track record of the coalition government speaks otherwise.

“If the necessary determination is there, this can be done within a month,” said Coltart.

He said apart from the electoral laws, several other pieces of legislation had to be aligned to the new constitution before polls were held.

These include laws to do with the protection of human rights, the Criminal Procedure and Evidence Act, Broadcasting Services Act and the Public Order and Security Act (Posa).

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