On 16 March 2013, Zimbabwe held a referendum on whether to accept the draft COPAC Constitution. Initial reports suggest that an overwhelming majority of the approximately two million voters who did turn out for the referendum, voted ‘yes’. ZANU-PF and the MDC factions all supported a ‘yes’ vote.
The SADC Election Observer Mission declared the Constitutional Referendum credible and peaceful. Some of the concerns raised prior to the Constitutional Referendum, include that insufficient copies of the draft Constitution were distributed to the electorate and that there was insufficient time for the electorate to acquaint themselves with the Constitution. The SADC Electoral Observer Mission dismissed these concerns, noting that 90 000 copies of the Constitution had been distributed and that it was available on the internet. The Mission also noted that a month was sufficient within which people could acquaint themselves with the contents of the 172 page document.
News reports made two interesting observations on the Constitutional Referendum: Many of the voters were young women and there was a large voter turnout and support for the draft Constitution in rural ZANU-PF strongholds.
For women, the new Constitution brings some relief. The new Constitution enshrines equality between men and women in all spheres of life. This is a landmark achievement. In many countries in the region, women’s rights are still subjugated to customary laws. The new Constitution in Zimbabwe provides that “all laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.” Other sections of the Constitution require a gender balance in government and equality of spouses in marriage. Whilst this is a major achievement for any constitutional text, it will require political will to be implemented in practice.
Many might wonder why there was such strong ZANU-PF support for the Constitution when the text sought to limit presidential terms and powers. The answer is simple – the limit of two presidential terms in the Constitution has been deferred to the second election after the new Constitution. The new Constitution removes the office of the Prime Minister. The election of the two Vice-Presidents has been deferred by ten years. In the meantime, the President will be able to appoint the Vice-Presidents. In ten years, should the President die, resign or be removed from office, the First Vice-President will become President. However, in the meantime, should the President be unable to continue in his position for any reason, the President’s political party will appoint a President.
Media reports have also highlighted that the new Constitution limits the powers of the President. It is true, that the new Constitution does not allow the President to veto legislation. However, for all practical purposes, executive authority remains vested in the President. The President has the final say in the appointment of a whole range of important positions in government, including the appointment of cabinet; ambassadors; the Attorney-General; commanders of the Defence Force, Police Service, intelligence services, and prisons; chairpersons of the Electoral Commission, Human Rights Commission and Peace and Reconciliation Commission; as well as some or all members of the Land Commission, the Citizenship and Immigration Board, and the Judicial Services Commission. The President is not subject to the Parliamentary Code of Conduct. The President can dismiss ministers, appoint replacements, dissolve parliament, call general elections, declare war, and call a state of emergency.
Another contentious issue during the constitution-drafting process has been the devolution of powers. Whilst devolution is provided for in the new Constitution, limited powers are given to provincial councils and it is unclear how devolution will work in practice to ensure that decisions are made at a level closer to communities.
Once the Constitution is passed into law, a range of legislative amendments are due for debate in parliament. In fact, the idea behind many compromises in the Constitution was that the detail of issues could still be thrashed out at legislative level. But, it is quite unlikely that such thorough discussions on important pieces of legislation can be concluded before parliament closes on 29 June 2013.
Despite the referendum heralding in a new Constitution, it is debatable whether the conditions for a credible and peaceful election would be in place soon. During and after the referendum Zimbabwe Republic Police continued to arrest opposition party members and human rights activists on spurious grounds, including prominent human rights lawyer Beatrice Mtetwa. For a credible election to take place, it is pertinent that state institutions act in a non-partisan manner. This includes the state media, army, police, intelligence services, traditional leaders and the office of the Attorney-General. At the moment, parliament has not been able to exert authority over these institutions to ensure that they function democratically.
SALC’s article on the contents of the draft Constitution, dated 29 January 2013, can be accessed here.