NGOs' comments on referendum:
ZESN'S COMMENT ON THE REFERENDUM DATE AND DEPARTURE OF THE ZEC CHAIRPERSON The Zimbabwe Election Support Network (ZESN) notes that the referendum date has been penciled for 16 March 2013, a date which is literally in four weeks’ time. This raises serious concerns about citizens having a meaningful opportunity to learn about the draft constitution and to make an informed choice. The date also raises questions about the Zimbabwe Electoral Commission (ZEC) having sufficient time to organize a credible referendum consistent with laws of Zimbabwe as well as Southern African Development Community (SADC) and international principles and guidelines governing the conduct of democratic elections. The political decision to hold the referendum undermines the ability of the ZEC to enhance its capacity to conduct the election or strengthen its credibility with stakeholders and this might be a missed opportunity.
Further, ZESN is concerned that the referendum date was set before the draft was published in the government Gazette. In addition, citizens are yet to examine and study the draft as copies have not yet been availed to the public and plans for civic education by COPAC have not yet been implemented. ZESN also realizes that the proposed date will have the potential to disturb the already shortened school calendar given that most of the polling stations are normally located in schools and most teachers also serve as polling officials.
In addition ZESN notes that the announcement of the referendum date comes just 24 hours after the departure of the Chairperson of the ZEC Justice Simpson Mutambanengwe. In the past few years ZEC under the leadership of Justice Mutambanengwe has made strides in engaging stakeholders in a number of activities such as consultative meetings to strengthen synergies and relations. It is however sad to note that the time and energy that the institute and the government have invested in the Chairperson has been wasted particularly given that the resignation comes in an election year.
We urge that a new ZEC Chairperson be identified and approved expeditiously. According to the Electoral Amendment Act, 2012, Section 100B (1)(a) a chairperson is appointed by the Pre sident in consultation with the Judicial Service Commission and the Parliamentary Committee on Standing Rules and Orders. Further, subsection (2) stipulates that “The chairperson of the Zimbabwe Electoral Commission must be a judge or former judge of the Supreme Court or the High Court, or a person qualified for appointment as such a judge.” ZESN hopes that this process results in the speedy appointment of a credible chair to steer the Commission. The Network remains dedicated to the promotion of democratic elections in Zimbabwe. As such despite serious reservations ZESN will continue to watch the unfolding of the political developments in the country and provide independent non-partisan information on the electoral processes to the public, civil society, policy makers, political parties and electoral authorities. ZESN reiterates that Zimbabwe cannot afford to have anything but credible and legitimate elections as it transits from the Government of National Unity (GNU).
ZDI: DRAFTED ZIMBABWE CONSTITUTION DIVERTED ATTENTION FROM CURCIAL REFORMS At the Zimbabwe Democracy Institute (ZDI) we believe that the drafting process for this new constitution has been fundamentally flawed, producing a weak constitutional draft. Importantly, we also believe that interest in this draft has diverted attention from the other, crucial reforms necessary for free and fair elections to take place. [...] Whereas the draft was crafted by the major political parties in the inclusive government – ZANU- PF and the two formations of the Movement for Democratic Change (MDC) that have representatives in the House of Assembly – minority parties and interests groups were sidelined.
We believe that such a critical national pursuit should not have been discriminatory and partisan. While ZANU- PF and the MDC are the major political players, most Zimbabweans do not belong to these political parties. […] The new draft constitution is not a significant improvement on the current constitution: It retains excessive executive powers of the president; fails to embrace the principle of provincial devolution; fails to abolish the death penalty; and retains discrimination on the basis of sexual orientation.
What is more, Zimbabweans that are in the Diaspora have no right to vote and the contentious issue of dual citizenship is not addressed by the constitution, leaving it to the winning party in the next election to legally address citizenship rights.
That said, to its credit, the new draft constitution grants significantly more rights to women and has more provisions aimed at supporting gender equality. For instance, it provides that 60 Legislative seats shall be reserved for women and that in all constitutional commissions or committees, representation shall be 50 per cent women, and 50 per cent men.
Furthermore, for the first time, social and cultural rights such as the rights to health, water and education are protected in law. The difficulty will be how to realise those rights, given that the state is economically bankrupt.
Unlike the current constitution, the new draft constitution also sets term limits for the president at two terms of five years. However, this does not apply to the serving president. So, even though he is already in the role, President Mugabe would still be entitled to two further presidential terms under the new constitution. This falls short of what most Zimbabweans wanted.
They expected Mugabe to barred from contesting the next election on the basis that he presided over the state’s political and economic decay, not to mention his involvement in colossal human rights violations during his three-decade rule.[…] Given the elite consensus between the MDC and ZANU-PF and their decision to support a ‘YES’ campaign, their supporters will vote for the new draft constitution when the referendum is held, (probably in March).
Some civil society groups including the National Constitutional Assembly are campaigning for a ‘NO’ vote to the draft constitution, but ZDI expects that the draft will be approved at referendum because the majority of civil society organizations have been co-opted into the state after their political ally, the MDC, joined government in 2009.
Moreover, these organisations are under economic pressure support the constitution despite its imperfections: The drafting process was bankrolled by their major funders to the tune of more than $45 million (US). This has complicated and compromised the position of many in civil society, and explains why there is a lack of thought leadership from this sector on the topic of the draft constitution.
But ultimately how much difference would a good draft constitution make? It is our view that the draft constitution is ultimately unlikely to improve the political situation in Zimbabwe because the major governance crisis in Zimbabwe has never been about the constitution, but a failure to abide by the rule of law and a gross failure to observe principles of constitutionalism.[...]